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Mother of prisoner suffering from hepatitis C and AIDS who died within a day of being transferred from jail medical facility to hospital failed to show that doctors at hospital acted with deliberate indifference to his serious medical needs. Default judgments entered against two correctional employees based on claim that prisoner received no follow-up or special treatment for months after being diagnosed with hepatitis C and as being HIV positive.

     A prisoner in a Puerto Rican jail was diagnosed with hepatitis C in July of 1996, and tested positive to the HIV virus which causes AIDS at the end of October 1996. He allegedly received no follow-up or special treatment following either diagnosis. On November 30, 1996, he again went to medical personnel at the facility, complaining of pain in the ribs, diarrhea, vomiting and appetite loss.

     The attending physician described the prisoner as "acutely" sick at that point, and as having AIDS. He remained in the medical area until the next day, when he was transferred to a hospital, arriving there shortly after midnight on December 2, 1996. Once there, medical personnel administered medication and took x-rays. He first received antibiotics on December 2nd at 3:30 p.m., and died the next day at 9:40 a.m.

     The prisoner's mother brought a federal civil rights lawsuit claiming that correctional officials and employees violated her son's Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. Doctors at the hospital were also named as defendants.

     The trial court has granted a motion by two such doctors to dismiss the claims against them. The court agreed that the prisoner's AIDS constituted a serious medical condition, but also found that there was no support for the allegation at the doctors acted with deliberate indifference to his medical needs.

     Once he was admitted at the hospital, the medical staff took x-rays and administered antibiotics, and the fact that it "took them several hours to do so is insufficient to presume" that they "had the recklessness or the intentionality needed to surmise that they deliberately deprived" the prisoner of the medical attention he deserved.

     The complaint failed to specifically claim that the defendant doctors "knowingly disregarded a known harm and thus acted with deliberate indifference" to the prisoner. Proving that they "could have done more" in terms of treating the prisoner is insufficient to state a constitutional claim.

     Default judgments were entered against two correctional employees in the case, and separate proceedings will be held to assess damages.

     Rivera v. Alvarado, 240 F. Supp. 2d 136 (D. Puerto Rico, 2003).

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

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Federal court strikes down as unconstitutional Arizona statute prohibiting prisoners from communicating with Internet websites through the mails or otherwise or receiving mail from them. Court finds that prohibition is not reasonably related to a legitimate penological purpose and that other statutes and policies already prohibit communication involving fraud, harassment of victims, communication with minors, and other purported purposes of the ban on communication with Internet service providers.

     A number of prisoner and human rights advocacy groups that maintain Internet websites filed a federal civil rights lawsuit challenging an Arizona statute that prohibits prisoners in state correctional facilities from sending mail to or receiving mail from an Internet communication service provider or from having access to the Internet through a provider. The plaintiffs publish first-hand accounts from prisoners on their websites and often send information to prisoners in the mail.

     In 2000, the Arizona legislature passed HB 2376, subsequently codified as A.R.S. Secs. 31-235(C), (D), 31-242, and 41-1604(A)(9). Under this statute, prisoners in Arizona correctional facilities are prohibited from contacting Internet services providers through the mail or receiving mail from them. The Arizona Department of Corrections (ADC) is required to impose disciplinary sanctions on inmates who correspond with a provider or attempt to do so or request that any person access a provider's website.

     Prisoners in Arizona facilities were notified if they were suspected of violating the policy and told about websites where information regarding the inmate had appeared, as well as what sanctions would be imposed if the inmate did not have all information regarding the inmate removed from the website within three weeks.

     Under the policy, state correctional officials allegedly imposed disciplinary sanctions on at least five inmates because their names appeared on Internet websites. In each case, the prisoners argued either that he had requested his information be placed on the website before such requests constituted disciplinary violations, he had no role in posting his information on the website, or else that he had been unsuccessful in having his information removed from the website. Sanctions imposed included verbal counseling, reprimands, placement in Parole Class Three (ineligible to earn release credits), extra duty, disciplinary detention, and loss of privileges relating to visits, phone calls, and commissary.

     The plaintiffs, representing the operators of websites publishing such information argued that the enforcement of the statute and resulting policy violated the rights of both themselves and the prisoners. The federal trial court found that the outside advocacy groups had standing to challenge the statute's "limiting effects on the circulation of their message," even though the actual enforcement of the statute is directed at prisoners.

     The federal trial court further rejected the argument that the blanket restriction of communications between inmates and Internet service providers is necessary to prevent attempts to defraud the public and to preclude inappropriate contact with minors, victims, or other inmates.

[E]xisting regulations and statutes already preclude such conduct. Arizona statutes criminalize fraud, and ADC regulations prohibit inmates from sending mail with the intent to defraud or otherwise illegally solicit assistance. ADC policies also prohibit inmates from corresponding with (1) minors; (2) victims of their crimes; (3) other inmates; (4) any person who requests not to receive mail from the inmate; or (5) "anyone to whom lewd, threatening, or similar offensive material has been sent by the inmate."

     Correctional officials, the court found, also have methods in place to enforce these existing regulations. Prisoners are denied direct Internet access, and prison staff may open all incoming mail and inspect it for contraband, as well as read all incoming mail that is not privileged to determine if the contents might facilitate criminal activity. Outgoing mail may also be read and examined for contraband, and if extensive monitoring of inmate mail is found to be difficult or expensive, it is permitted to impose limits on the volume of mail inmates may receive. Current Arizona prison regulations also permit staff members to monitor and record inmates' telephone calls.

     The court found the defendant officials' other arguments about the penological objectives of the policy also lacking in merit, particularly the "speculative" argument that the goal of deterrence would be impaired by allowing such correspondence because both "the inmate and the general public may perceive incarceration as 'less arduous.'"

Although prison authorities are permitted to establish regulations in anticipation of potential problems, "they must at a minimum supply some evidence that such potential problems are real, not imagined."

     The court found that the statute in question was not rationally related to legitimate penological objectives and was therefore unconstitutional. It enjoined Arizona correctional officials and employees from enforcing the prohibition contained in the statute.

     Canadian Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz. 2003).

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

     Editor's Note: The plaintiff groups in the above reported lawsuit included the National Prison Project of the American Civil Liberties Union Foundation, the Canadian Coalition Against the Death Penalty, Stop Prisoner Rape, and Citizens United for Alternatives to the Death Penalty.

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Federal appeals court panel rules that statute requiring federal parolees submit a DNA sample to be included in a database violates the Fourth Amendment as a "suspicionless search" for law enforcement purposes.

     In a case of first impression, a federal appeals court panel, by a 2-1 vote, has ruled that the forced extraction of blood from parolees under the federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a, violates the Fourth Amendment.

First, we must consider whether, under general Fourth Amendment principles, blood may be extracted from parolees without their consent, simply because of their status as parolees. We conclude that, as a matter of general Fourth Amendment law, forced blood extraction from parolees requires individualized suspicion. Second, we must determine whether forced blood extraction under the DNA Act falls within the exception of the Supreme Court's "special needs" doctrine. We hold that, because the DNA Act primarily serves a law enforcement purpose, the compulsory collection of blood samples pursuant to the Act does not fall within the special needs exception.

     The DNA Act requires those in federal custody, on parole, on probation, or on supervised release to provide a DNA sample. For practical purposes, this requires all such persons to submit to the non-consensual withdrawal of blood by governmental authorities or their designees. "No suspicion that an individual will commit or has committed another offense is required. Nor is there any requirement that the sample be taken in order to aid in the investigation of a particular crime." Once taken, the DNA sample is turned over to the Federal Bureau of Investigation, which carries out an analysis of it and includes the results in the "Combined DNA Index System" (CODIS), a DNA information bank. The DNA evidence is then permanently available for future use in connection with the investigation and prosecution of crimes. Federal, state, and local law enforcement officials who conduct such investigations are able to compare CODIS information with DNA evidence obtained from crime scenes and to use it to identify and prosecute the perpetrator.

     The plaintiff in the case previously pled guilty to criminal charges of armed bank robbery and the use of a firearm and was sentenced to a term of imprisonment to be followed by a three-year term of supervised release with standard conditions including the obligation to "follow the instructions of the probation officer," and to refrain from committing "another Federal, state or local crime." He was released from prison, and, in March of 2002, under the Act, federal probation authorities ordered him to submit to a blood extraction for DNA analysis. He was subject to the DNA Act because the substantive offense to which he pled guilty, armed bank robbery, is one of the specified covered offenses. He refused to comply with the order and his refusal was the basis for the Probation Office's recommendation to the federal trial court that he be found in violation of his supervised release. The failure "to cooperate in the collection of [a] sample" under the Act is a class A misdemeanor.

     After conducting a hearing, the district court rejected the probationer's constitutional challenge and found that his refusal to submit to the compulsory blood extraction ordered by the Probation Office constituted a violation of the terms of his supervised release. It sentenced him to four months in custody for the violation and ordered that supervised release continue for a two-year term following release, but then stayed the order of custody pending an expedited appeal.

     The federal appeals panel reversed the trial court's decision upholding the order requiring him to submit to the extraction of blood for the purpose of providing a DNA sample, and sentencing him to a term of imprisonment and increasing the period of his supervised release for his refusal to comply.

     The court found that blood extractions are searches for purposes of the Fourth Amendment and are subject to the normal Fourth Amendment requirements. The court rejected as a "false analogy" the argument by the government that "that compulsory blood extraction under the Act is permissible because the method of data collection employed -- the taking of blood -- is no more intrusive than fingerprinting."

First, the elision of two very different kinds of evidence obscures the constitutional difference between invasive procedures of the body that necessitate penetrating the skin, and an examination or recording of physical attributes that are generally exposed to public view. An individual cannot hold the same expectation of privacy for this latter category of information that he does for his internal properties, including blood. [...] Although, as Pudd'nhead Wilson remarked, fingerprints do contain unique identifying information, they, like the human voice and the features of the face, are external to the individual. To obtain this identifying information requires no intrusive invasion of bodily privacy. By contrast, while DNA, like fingerprints, identifies an individual, DNA identification results from a forced intrusion into an individual's body. Fingerprinting, involving aspects of an individual's identity routinely exposed to public view, "represents a much less serious intrusion upon personal security than other types of searches and detentions."

     Additionally, the court stated, "we note that even fingerprinting is not entirely free from the kind of Fourth Amendment concerns at stake here," and is done as part of the booking procedure to confirm that law enforcement has the right person in custody. "When law enforcement officials detain individuals for the purpose of obtaining fingerprints in furtherance of a criminal investigation, however, that detention violates the Fourth Amendment unless supported by probable cause or a warrant."

     The appeals court found that "reasonable suspicion must exist before the government may compel parolees to submit to the extraction of blood from their bodies contrary to their wishes." The court also found that the law enforcement purpose of obtaining DNA samples to help solve future crimes was not directly related to the administration of parole itself, but rather served a general law enforcement purpose.

That purpose, according to the government, is to further "the overwhelming public interest in creating a comprehensive nationwide DNA bank that will improve the accuracy of criminal prosecutions" for generations to come. It is undoubtedly true that, were we to maintain DNA files on all persons living in this country, we would even more effectively further the public interest in having efficient and orderly criminal prosecutions, just as we would were we willing to sacrifice all of our interests in privacy and personal liberty. We chose, however, not to follow that course when we adopted the Fourth Amendment. Thus, it is the constitutional concept of Fourth Amendment reasonableness that governs our inquiry here, and not simply the governmental interest in solving and prosecuting crimes more efficiently. In short, the Government's desire to complete a comprehensive data bank does not outweigh Kincade's reasonable expectation of privacy in his body.

     The court held that a search of a parolee's body to obtain DNA is reasonable "only if the search is supported by individualized reasonable suspicion." The court also rejected the government's argument that the compulsory collection of DNA samples " falls within the category of special needs cases in which the governmental conduct is exempted from the Fourth Amendment principles that are ordinarily applicable to searches and seizures."

Whatever benign secondary purposes these searches may happen to serve, the primary purpose is to provide law enforcement officials, both at the state and federal level, with information about individuals that can be used to identify them as criminals and to prosecute them for their crimes. Kincade, should he be subjected to such a search, in effect will have been compelled to provide evidence with respect to any and all crimes of which he may be accused, for the rest of his life. Kincade has completed his sentence, and the court has ordered a term of supervised release for three years. The forced extraction of his blood with the subsequent categorization of his DNA would affect him for the rest of his life. Thus, he is entitled to the protection afforded by the Fourth Amendment.

    "However intermingled with good intentions," the court concluded, DNA statutes "represent an alarming trend" under which "the privacy and dignity of our citizens" are being "whittled away" by "imperceptible steps."

The fact that these statutes currently affect only those individuals most susceptible to state supervision renders this threat no less important. Under the government's view of the "special needs" doctrine, the rest of us might not be far behind. Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resultant damage cannot be undone.

     United States of America v. Kincade, No. 02-50380, 2003 U.S. App. Lexis 20123 (9th Cir.).

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

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U.S. government's alleged negligent failure to supervise experiments in which prisoner's testicles were exposed to high levels of radiation could not be the basis of liability under the Federal Tort Claims Act, since such failure fell within a "discretionary function" exception to the Act.

     A former inmate at an Oregon prison, while incarcerated from 1963-1969, participated in federal government funded research experiments that exposed his testicles to high levels of radiation. These experiments, known as the "Heller Experiments," were designed to produce information regarding the effects of radiation on the male reproductive system. For voluntarily participating in the experiments, the prisoner was paid $5 per month for agreeing to the radiation exposure, $10 per biopsy, and $100 for undergoing a vasectomy. He subsequently filed a federal lawsuit against both the U.S. government and private parties involved in the experiments.

     The plaintiff and his wife claimed that the experiments resulted in him suffering from intermittent pain and rashes on his scrotum and groin, pain from the biopsies, as well as severe emotional distress. They also asserted that he suffers from a significantly increased risk of developing cancer and other serious illnesses, and requires medical monitoring for those problems.

     The private parties involved in the experiments reached a settlement with the plaintiff. A federal appeals court has upheld the dismissal of all claims against the U.S. government.

     The complaint was filed under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346, 2671 et seq. The appeals court found that the plaintiff's claims based on the government's alleged negligent failure to supervise and oversee the experiments were barred by the "discretionary function" exception to this statute, as expressed in 28 U.S.C. Sec. 2680(a). This exempts from liability any claim based upon the "exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

     The plaintiffs claimed that the government breached duties including ensuring that risks to experiment participants were minimized, ensuring that selection of participants was fair, and ensuring that all participants were fully informed so that their consent was freely given.

     The appeals court noted that it could find no mandatory or prescribed government regulation on the record that required the government agencies to supervise the manner in which their independent contractors implemented the research contracts. The mere fact that some government employees involved in the project discussed various biomedical issues, including safety concerns did not "constitute a mandatory regulation." These were only "sporadic communications, made by individuals of varying levels of importance to the operation of the experiments," and could not "constitute a blanket regulation constraining the Government's operations."

     Additionally, at the time the experiments were contracted, the U.S. government was:

faced with the competing policy considerations of limited resources, research expertise in private institutions, and the Congressionally expressed desire for scientific research progress.

     This was sufficient to determine that the government's actions on the issue were susceptible to being based on social, economic, or political policy, involving balancing interests, allocating scarce resources, and setting priorities, which requires the exercise of discretion.

     In addition to dismissing the claim of negligent supervision against the U.S. government for lack of jurisdiction, the appeals court dismissed the intentional infliction of emotional distress claim simply because the plaintiff failed to state a prima facie case.

     This claim was based on the allegation that from the early 1970s until around December of 1993, the U.S. government intentionally concealed the nature of the Heller experiments from the participants, and intentionally failed to provide medical monitoring, or to inform participants that medical monitoring was required. While the plaintiff conceded that the government did not "intend to inflict emotional distress," he argued that the government "knew with substantial certainty that withholding information" concerning the experiments would cause him to "worry about getting cancer, relive prison experiences, or neglect his family in an effort to attend to a lawsuit."

     But the court found that it was not the government's "failure to disclose" the information regarding the experiments which was the source of the plaintiff's emotional distress. Indeed "it was this very information" that the plaintiff alleges to have caused his distress.

     Bibeau v. Pacific Northwest Research Foundation, Inc., No. 01-36147, 339 F.3d 942 (9th Cir. 2003).

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

     Editor's Note: For a useful discussion of the history of prison research regulation, click here to read a chapter on that subject in a 1994 report prepared by the U.S. Department of Energy's Advisory Committee on Human Radiation Experiments.

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Refusal of West Virginia prison officials to allow prisoner to receive or possess certain books found to be obscene did not violate his First Amendment or due process rights. Policy applied advanced legitimate penological interests in security and rehabilitation.

     A West Virginia prisoner, during his incarceration, became an "avid reader" of the "Paper Wings" line of books, an adult-fiction serial published by Komar Publishing. Every two to three months, he received a subscription installment of six Paper Wings books through the mail. He was not able, however, to "build a private library" because correctional property restrictions limited the number of personal items each inmate may possess, and therefore, every time a new package arrived, he had to ship the old package home to his mother.

     Finally, however, prison officials intercepted one such package and told the prisoner he could not receive it because the sender's name did not appear on the prison's "approved vendors list." The prisoner then requested that Komar Publishing be added to that list. Upon reviewing the material, however, prison officials found it to be obscene, and denied the prisoner's request.

     The prisoner filed a federal civil rights lawsuit claiming that the refusal to permit his receipt of the books violated his First and Fourteenth Amendment rights. During discovery in the case, the prisoner indicated that books "similar to Paper Wings" were in the prison library. The warden responded to this disclosure by ordering a review of the library's reading materials and the removal of anything found to be obscene. During a two-month review of the library, staff members removed 259 of the 1226 volumes, or nearly 21% of the library's total inventory. Among the books allegedly removed were William Styron's Sophie's Choice, Gore Vidal's Myra Breckingridge, and a number of works by John Updike.

     The prisoner amended his lawsuit to also claim that the purging of the library was similarly a violation of his rights.

    The federal court found that the underlying policy was clearly legitimate. Prohibiting the receipt and possession of obscene material furthers a legitimate interest in preserving security and further inmate rehabilitation.

     After reviewing a copy of an entire "Paper Wings" book submitted by the prisoner as an exhibit to his motion for summary judgment, the court found that the defendant officials acted rationally in determining that it was obscene.

     While the materials from Paper Wings are books, and contain graphic descriptions of sexual acts, including sexual intercourse, anal intercourse, fellatio, cunnilingus, bestiality, bondage/sadism and masochism, etc., the prisoner "steadfastly characterizes them" as "sexually explicit novels," "erotic novels," or "erotic literature," and implies that they are "something short of obscene." The court found otherwise:

A novel is a longer, complex work of prose addressing themes of human experience through a chronologically connected sequence of events. The Paper Wings book submitted by Cline [the plaintiff prisoner] resembles a novel only to the extent that is nearly 200 printed pages of text and bound along the left edge. Otherwise, it is a collection of graphically described sexual escapades taking place between and amongst a recurring cast of characters, separated only by terse and extremely secondary plot points.

     All but one of the chapters of the book submitted contained descriptions of sexual activities, interrupted by brief plot points, such as a husband urging a wife to dress herself so they may both attend a business dinner. The one chapter that was an exception, the court noted, was a 21-page description of masturbation, fellatio, cunnilingus, vaginal intercourse, and anal intercourse -- "uninterrupted by any distracting plot points." The court also rejected the argument that the prison policy's definition of obscene material as that "depicting" such activities could not be applied to the books since they contain only pure verbal descriptions and no pictures.

     The court also rejected the prisoner's argument that he should not be denied the books because he is a "model inmate" and none of the feared violence or rehabilitative setbacks has ever occurred at the facility where he is incarcerated.

The Court will not tie the defendants' hands by forcing them to wait until violations occur before permitting them to enforce the regulation. The prison officials reasonably see a need for preventive measures, the Court must defer to that rational decision.

     The court also noted that the rule in question only restricts obscene material and permits the prisoner to receive non-obscene materials, which may include sexual themes.

     The prisoner's challenge to the "purge" of the library was dismissed without prejudice, on the basis that he had not exhausted his administrative remedies on that issue.

     Cline v. Fox, 266 F. Supp. 2d 489 (N.D.W. Va. 2003).

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

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Lawsuit by New York prisoners against over fifty correctional employees concerning more than forty separate and unrelated incidents at fourteen different prisons over a period of almost ten years was properly dismissed, federal appeals court rules. Complaint failed to establish the existence of a policy or practice existing throughout the state correctional system or even within one prison which caused a violation of Eighth Amendment rights. Claims included alleged assaults by correctional officers, failure to protect inmates from assaults by other prisoners, and failure to provide medical care for injuries. Additionally, none of the plaintiffs stated that they had exhausted available administrative remedies prior to filing suit.

     A group of New York inmates sued over fifty employees of the state Department of Correctional Services, along with the Department's top officials, such as its Commissioner, Health Commissioner, Inspector General, and the superintendents of fourteen separate correctional facilities. The lawsuit alleged that each of the plaintiff prisoners suffered a violation of his civil rights as a result of actions or failures to act on the part of DOCS officials and employees. The complaint alleges the occurrence of more than forty incidents that resulted in serious physical injury to the plaintiffs, including attacks by correctional officers, improper physical punishments, attacks by other inmates for which the defendants are responsible because of their failure to provide a safe prison environment, and denials of medical care to plaintiffs suffering from injury and illness.

     Upholding the dismissal of the complaint, a federal appeals court noted that the plaintiffs had set forth only "the most basic facts" of the alleged incidents, with each plaintiff allotted one paragraph of the complaint to provide the place and approximate time of the incident involving him, along with a sentence or two concerning the injury alleged to have arisen from the incident. Further, these incidents were "dispersed across time and space," occurring at fourteen separate correctional facilities, at dates ranging from 1990 to 1999.

     The plaintiff's claims, therefore, "share a common nucleus of operative fact" only "in a very broad sense." The trial court had found that while the complaint was not labeled a class action it is "akin to a class action challenging State prison conditions and operational practices."

     The appeals court stated that the claim of each individual plaintiff, standing alone, "may or may not have merit," but "taken together, the claims do not establish the existence of a policy or practice existing throughout the DOCS system, or within a single DOCS facility, such that manageable discovery or a reasonable trial could be held in the action."

Amalgamating more than forty discrete incidents of misconduct by DOCS officials does not make for a sustainable lawsuit

     In many ways, the court noted, the only "substantial relation" of each incident to the other alleged incidents "is that they are all associated with DOCS." The "sheer diffuseness of the plaintiffs' allegations completely subverts their federal law claims," the court commented.

     The appeals court noted that the immediate case was different from those in which "systemic abuses were at issue" based on evidence of "concerted intent among prison officials" that was "expressed through discernible regulations, policies or practices." In this case, what was alleged was a "series of discrete incidents taking place within a single prison system over a long period of time," and an accumulation of incidents "does not necessarily amount to a qualitative violation of the Eighth Amendment" prohibition on cruel and unusual punishment.

     The appeals court also rejected the plaintiffs' argument that they had successfully asserted a claim for "conspiracy" to violate their federal civil rights, since they had not alleged, "except in the most conclusory fashion, that any such meeting of the minds occurred among any or all of the defendants." The appeals court rejected the prisoners' claim that the court should appoint a special master to "essentially administer DOCS in order to ensure its compliance with the Eighth Amendment," since the plaintiffs had not shown a need for such a drastic remedy, and had not met the requirements for prospective relief under 18 U.S.C. Sec. 3626(a)(1)(A).

     The appeals court also noted that none of the plaintiffs alleged that he had exhausted available administrative remedies as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act, which constituted yet another basis for the dismissal of the complaint.

     Webb v. Goord, #02-0097(L), 340 F.3d 105 (2nd Cir. 2003).

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

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Federal appeals court orders further proceedings to determine whether state Department of Prisons, in taking from a prisoner the interest earned on his inmate trust account for the use of a fund for the "benefit of all offenders" owed him any just compensation. Prisoner would be entitled to compensation if the interest earned on his funds exceeded his share of the costs of administering inmate trust accounts.

     A Nevada prisoner filed a federal civil rights lawsuit claiming that the director of the Nevada Department of Prisons committed an unconstitutional taking of his property for public use without just compensation in violation of the Fifth Amendment to the U.S. Constitution by not returning to him any of the interest earned on funds in his inmate trust account.

     Under a Nevada statute, NRS Sec. 209.221 and 209.241  inmate trust accounts are pooled together to generate interest and the interest and income earned on the money in the fund, after deducting any applicable charges, are credited to the offenders' store fund, which "must be expended for the welfare and benefit of all offenders."

     The prisoner claimed that this use of the interest on his funds was an unconstitutional taking of his property without just compensation. The trial court ruled that the statute was constitutional so long as it was not applied retroactively and was not an unconstitutional taking of the inmate's property.

     A federal appeals court has ordered further proceedings, vacating the trial court's decision. It noted that in Brown v. Legal Foundation of Washington, 123 S. Ct. 1406 (2003), the U.S. Supreme Court ruled that the interest earned on client funds held in trust by attorneys was the "private property" of the owner of the principal, but did not find that the state's transfer of the interest to charitable entities that provide legal services to the indigent violated the Fifth Amendment. "Just compensation," the Supreme Court found, "is measured by the net value of the interest that was actually earned" by the owner of the principal. The Supreme Court reasoned that because the state laws governing such funds only required client funds which otherwise could not earn interest to be deposited in common funds for pooling, the clients were not actually earning the interest, since without the pooling, no interest at all would be earned, so their loss was zero, and there was no "taking" at all.

     The appeals court found that it was not clear on the record whether the interest earned by the plaintiff prisoner's principal was exceeded by his share of the costs of administering the prisoners' property fund. But that information, it stated, was "precisely what we need to know in order to determine whether the director has taken" the prisoner's "interest without just compensation." It may well be, the court speculated, that the costs of administering the prisoners' property fund are so high-- and the interest earned on the prisoner's account so low -- that there is "no net loss and therefore no compensation due."

     But this could not be determined by looking only at the overall fund, which operated at a net loss, but rather required a particular calculation to determine whether the prisoner suffered any net loss sufficient to entitle him to compensation. (The data reflected that in the most recent year for which there were records, the Department spent $393,178 to provide the prisoners with personal property fund accounts, while the amount of interest transferred from the prisoners' personal property fund into the offenders' store fund was $108,485, so that "in the aggregate," the prisoners' property fund generates "no net gain at all, but rather a substantial loss.").

     McIntyre v. Bayer, No. 01-55169, 339 F.3d 1097 (9th Cir. 2003).

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

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Ohio prisoner had a clearly established right to marry his girlfriend, but it was not clearly established that he had the right to affirmative assistance from correctional officials in obtaining a marriage license. Correctional officials were therefore entitled to qualified immunity from liability for money damages for initially failing to provide such assistance. Couple, who married following settlement of their federal civil rights lawsuit, were not "prevailing parties" entitled to an award of attorneys' fees when they did not obtain a judgment on the merits of their claim or a court-ordered consent decree.

     An Ohio prisoner became engaged to a woman while he was incarcerated. They were unable to obtain a marriage license, however, since he could not appear in person to apply for it, and a court declined to waive the requirement that he personally appear before a probate court to get one. (In Ohio, county probate courts issue marriage licenses). A state statute allows the waiving of the personal appearance requirement in cases involving illness or physical disability, but makes no exception for incarceration.

     A judge did offer, however, to assist the couple to marry by appointing a correctional employee designated by the warden as a deputy clerk of the county probate court for the purpose of issuing the marriage license. The warden of the prison, however, declined the prisoner's request that he designate someone, stating that "I do not see myself or the institution being involved in this process," other than allowing a brief marriage ceremony during normal visiting hours if the couple obtained a marriage license. The warden repeated this position in response to a request by an attorney that the couple hired, citing a policy of the Ohio Department of Rehabilitation and Correction that specifies that "all preparatory obligations, such as securing a marriage license, are the sole responsibility of the couple to wed."

     The director of the Department made the same response, stating that obtaining a marriage license is the couple's responsibility, and that it is not the responsibility of the Department to obtain marriage licenses for inmates in its custody." The couple filed a federal civil rights lawsuit against the warden, the director, and a number of other defendants, claiming violations of their right to marry and right of access to the courts, seeking injunctive and monetary relief.

     At a settlement conference, it was agreed that the county probate court would deputize an employee of the central office of the state correctional department as a clerk to issue the marriage license to the inmate at the prison. Approximately two weeks later, the plaintiffs were married. The claims for injunctive relief were then dismissed as moot.

     A federal appeals court has upheld a determination that the individual defendants were entitled to qualified immunity from the claims for money damages. While the prisoner had a clearly established constitutional right to marry, the court found, the right to the "affirmative assistance" of prison and judicial officials in doing so was not so clearly established that the defendants would have believed that declining to provide assistance in obtaining a marriage license was unconstitutional.

     The appeals court also ruled that the couple were not "prevailing parties" for purposes of an award of attorneys' fees under 42 U.S.C. Sec. 1988. While they obtained a "voluntary change" in conduct when the defendants agreed to a special procedure which allowed the marriage license to issue, they did not get a judgment on the merits of their case or a court-ordered consent decree. The court ruled that private settlement agreements, without judicial approval, do not entitle the plaintiffs to prevailing party status for purposes of attorneys' fees awards.

     The court pointed to the U.S. Supreme Court's decision in Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health and Human Resources, 532 U.S. 598 (2001), in which the term "prevailing party" for purposes of attorneys' fees awards was limited to parties who obtain either a "judgment on the merits" or a "court-ordered consent decree," and the so-called "catalyst theory" was rejected. Under that theory, applied by some courts prior to Buckhannon, a plaintiff who obtained relief through a settlement was a prevailing party if they could demonstrate that their lawsuit was causally related to securing the relief obtained and established some minimum basis in law for the relief secured.

     Toms v. Taft, No. 01-4035, 338 F.3d 519 (6th Cir. 2003).

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Prisoner could pursue federal civil rights lawsuit challenging procedures used in prison disciplinary proceeding or the resulting administrative sanction, such as placement in segregation without first having disciplinary determination set aside, since a successful claim would not necessarily result in any earlier release from incarceration, federal appeals court rules.

     A California state prisoner filed a federal civil rights lawsuit alleging violations of his right to due process and equal protection of law arising from the procedures used in a prison disciplinary hearing and a subsequent administrative appeal. He also claimed that the conditions of his term of administrative segregation exceeded the normal hardships associated with incarceration.

     The trial court dismissed the challenge to the disciplinary procedures, reasoning that the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) required the prisoner to invalidate his disciplinary sentence before seeking damages in a federal civil rights lawsuit. These cases bar litigation of federal civil rights claims without the setting aside of a conviction or sentence if success in the lawsuit would necessarily imply their invalidity. The appeals court also dismissed the prisoner's claims regarding his two-year term of administrative segregation as lacking a protected liberty interest.

     A three-judge panel of a federal appeals court reversed, concluding that the prisoner could challenge the conditions of his confinement in a federal civil rights lawsuit because his claims, if successful, would not necessarily invalidate a disciplinary action that affects the fact or length of his confinement. The court also concluded that the prisoner's challenge to his term of segregated confinement could be pursued as a "potentially atypical and significant hardship." The appeals court found that the trial court's dismissal of the prisoner's equal protection and supervisory liability claims was an abuse of discretion.

       The plaintiff prisoner faced disciplinary charges when a correctional officer discovered his cellmate wounded inside their shared cell. He was charged with "battery of an inmate with a weapon with serious bodily injury," based on the report of the responding officer, and two medical reports prepared by emergency room personnel who treated the cellmate's injuries.

     During the disciplinary hearing, the prisoner sought to call his cellmate and the medical staff to testify as to their statements, but both requests were denied. He was found guilty and sentenced to ten days of disciplinary detention and sixty days loss-of-privileges, and was referred to administrative segregation. He was subsequently assigned to administrative segregation for a term of twenty-four months. He filed two unsuccessful administrative appeals challenging both the procedures used during the disciplinary process and the resulting disciplinary sentence.

     The federal appeals court held that:

The favorable termination rule does not apply to Sec. 1983 suits challenging a disciplinary hearing or administrative sanction that does not affect the overall length of the prisoner's confinement. Where the prison's alleged constitutional error does not increase the prisoner's total period of confinement, a successful Sec. 1983 action would not necessarily result in an earlier release from incarceration, and hence, does not intrude upon the "heart" of habeas jurisdiction. In such cases, the favorable termination rule of Heck and Edwards does not apply.

     In the immediate case, the court found, if the prisoner was successful, he would not necessarily shorten the length of his confinement "because there has been no showing by the State that the expungement" of the discipline he sought was "likely to accelerate his eligibility for parole." He could therefore pursue his federal civil rights lawsuit.

     The appeals court noted that the trial court failed to consider whether the two-year period of segregation imposed an "atypical and significant hardship" warranting additional due process protections during his hearing. While the appeals court could not determine from the record whether this was the case, it noted that the prisoner's objections included allegations that his segregated unit was "overcrowded and violent, and that the isolation severed ties to his family." The court stated that "most significantly," the length of confinement "cannot be ignored in deciding whether the confinement meets constitutional standards." It therefore ordered further proceedings to make this determination.

     Ramirez v. Galaza, #00-15994, 334 F.3d 850 (9th Cir. 2003).

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Correctional officer could be found to have acted with deliberate indifference to an inmate's suicide threat if he actually, as alleged, responded to the threat by encouraging him to go ahead, leaving the area for a time, and refusing to return when other inmates tried to inform him of the inmate's hanging himself.

     The mother of a South Dakota inmate who successfully committed suicide in custody sued twelve prison officials and employees for alleged deliberate indifference to her son's serious medical needs. The trial court granted summary judgment to eleven of the defendants, and the remaining correctional officer defendant appealed, contending that he was entitled to qualified immunity from liability.

     A federal appeals court upheld the denial of qualified immunity to this officer, finding that there were genuine issues of material fact as to whether he was deliberately indifferent to the prisoner's threat to kill himself.

     These questions revolved around disputed facts concerning what the officer did during a fifteen to twenty-five minute period after the prisoner informed him that he was going to commit suicide. The officer argued that he tried to convince the prisoner not to do so and alerted another guard to call a "code red," so that his conduct was not "deliberate indifference."

     The plaintiff alleged, however, that after the prisoner stated that he was going to kill himself, the officer responded by telling him "you do what you got to do and I'll do what I got to do," and then walked away, despite the fact that the prisoner was tying his pants into a knot and putting them over his head. A number of prisoners claimed that after the officer left, the suicidal prisoner stopped responding to their questions and that they began pushing their emergency buttons, yelling for guards, and banging on their doors, but that no one appeared for between fifteen to twenty-five minutes.

     When officers subsequently entered the prisoner's cell, he did not respond to any of the resuscitation attempts and he was pronounced dead.

     If the defendant officer, as alleged, "purposefully left and stayed away" after the inmate's suicide threat, and did not come back even as the other prisoners pressed their emergency buttons and yelled, this could constitute deliberate indifference, and indeed, the alleged conduct could be interpreted as encouraging the prisoner to go ahead and kill himself. While it was undisputed that the officer took "some measures" in response to the prisoner's suicide threat, there was also evidence, taking the facts in the light most favorable to the plaintiff, that the officer engaged in intentional delay.

     The defendant officer was therefore not entitled to summary judgment on the basis of qualified immunity.

     Olson v. Bloomberg, No. 02-1874, 339 F.3d 730 (8th Cir. 2003).

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Jail's failure to provide a second nighttime jailer, even if it violated the provisions of an earlier consent decree concerning jail conditions did not establish a violation of the rights of a pretrial detainee who committed suicide during night hours when only one jailer was on duty. Sole jailer did not act with deliberate indifference to the needs of the detainee, who had allegedly expressly threatened suicide, by waiting for approximately one hour and 46 minutes between conducting checks of the prisoner's cells.

     An intoxicated arrestee allegedly told a deputy, while being transported to the jail, that his girlfriend had recently hanged herself while in another jail. The jailer on duty was advised of this and the prisoner also allegedly stated that if he had to stay in jail all night he would kill himself. The prisoner was placed in a cell which was monitored by a video camera and a deputy allegedly went to the cell and removed everything that he thought the prisoner could use to hurt himself, as well as asking other prisoners in adjacent cells to keep an eye of him.

     When the arresting deputy left the jail, there was only one jailer on duty, and he performed a cell check at 9 p.m., finding no problem with the prisoner. At 10:46 p.m., the jailer performed another cell check, and found the prisoner "sitting upright against the wall with something hanging from the top bunk around his neck. The prisoner had used the elastic from his underwear to hang himself, and he failed to respond to attempts to resuscitate him.

     The detainee's estate sued the county and various county officials for deliberate indifference to the risk that the prisoner would kill himself. The plaintiffs pointed to a consent decree in an earlier jail-condition lawsuit. Under the terms of that decree, the plaintiffs argued, the failure of the county to fund a second, nighttime jailer constituted deliberate indifference.

     A federal appeals court ruled that even if the failure to have a second nighttime jailer on duty was a violation of the consent decree, this, standing alone, did not constitute deliberate indifference. There was no specific issue concerning suicide in the earlier litigation, and no showing that before the incident in question any prisoner at the county jail had ever committed suicide, so that the decision not to fund an additional nighttime jailer did not show a failure to respond to a substantial likelihood of detainee suicide.

     The consent decree also required the jail, besides having two jailers at night, to have the cells checked every hour. The court noted that the consent decree was entered without any affirmative finding that there had been a violation of prisoner's rights.

     The appeals court concluded, under the facts of the case that the failure of the jailer to comply with the requirement of the consent decree to check the cells every hour was not deliberate indifference. The consent decree did not establish a constitutional right to hourly jail checks, and it was not focused on suicide. Additionally, the jailer was aware that the prisoner's belt, shoelaces and the contents of his pockets had been confiscated and his cell stripped of implements that might assist suicide. While these facts showed an awareness that the prisoner was a suicide risk, they "also decreased the risk."

     The jailer was not required to foresee that the prisoner would hang himself with the elastic from his underwear, the court commented. Further, the jailer did not "ignore" the prisoner. He was instructed to watch him and he did, including looking at him through the TV monitor at least every 15 minutes. The TV monitor picked up almost all of the cell. The fact that the camera did not pick up every corner of the cell, the court stated, might be evidence of negligence, "but could hardly demonstrate deliberate inference."

     Cagle v. Sutherland, No. 02-13131, 334 F.3d 980 (11th Cir. 2003).

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Female prisoner stated a claim for violation of her Eighth Amendment rights by male correctional officer who allegedly made sexual advances towards her and by supervisors who allegedly took no remedial action despite prior complaints of similar conduct by the same and other officers towards other female prisoners.

     A female prisoner in a Missouri correctional institution brought a federal civil rights lawsuit claiming that she had been sexually assaulted by a male correctional officer. The lawsuit named both her alleged assailant and a number of supervisory officers as defendants.

     Her complaint asserted that as she bent forward, a male officer approached her from behind and without warning or consent pressed and rubbed his pelvis against her. In a subsequent incident, he allegedly grabbed her breast, verbally demanded sexual favors, made physical sexual advances, and attempted to force himself upon her.

     She claimed that she reported these events to appropriate personnel and the events became known to supervisors, and that she suffered bodily and emotional harm as a result of the officer's actions. She also claimed that other inmates at the facility had previously had similar experiences with the same and other officers, and had made similar complaints, but that supervisors had failed to take corrective action.

     The trial court dismissed the lawsuit in its entirety for failure to state a claim and on the basis of qualified immunity. It found that the facts alleged did not constitute an Eighth Amendment violation or a violation of equal protection, and that in the absence of an underlying constitutional violation by the alleged assailant, the supervisors could not be held liable.

     A federal appeals court agreed that the plaintiff prisoner failed to state an equal protection claim, since she did not state any facts to show that she was treated "differently from other similarly situated inmates." But it found that the alleged conduct of the male officer in making physical sexual advances, touching her, and attempting to force himself upon her did state a claim for violation of the Eighth Amendment prohibition on cruel and unusual punishment, particularly as the prisoner stated that she suffered resulting emotional and bodily harm. The court cited cases holding that sexual assaults qualify as physical injuries as a matter of "common sense" and that sexual assaults "certainly constitute more than" minimal injury.

     The appeals court stated that the officer was not protected by qualified immunity. "Any reasonable corrections officer would have known in January 1999 that sexually assaulting an inmate would violate the inmate's constitutional rights." The appeals court reinstated the Eighth Amendment claims against both the alleged assailant and the supervisors.

     Williams v. Prudden, No. 02-1754, 67 Fed. Appx. 976 (8th Cir. 2003).

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Access to Courts/Legal Info

     Pennsylvania and Massachusetts correctional authorities had a "shared responsibility" to make sure that a prisoner convicted of murder in Pennsylvania and then transferred to a Massachusetts prison had access to the courts, but prisoner did not show that he was entitled to an injunction requiring that he be given access to Pennsylvania legal materials when correctional officials arranged for legal representation for him in Pennsylvania post-conviction proceedings. Correctional officials can satisfy a prisoner's right of access to the courts either by providing access to law libraries or access to legal assistance. "A prison need not provide both; either one can be sufficient." Hannon v. Allen, 241 F. Supp. 2d 71 (D. Mass. 2003).

Defamation

     Prisoner's libel and slander claims against federal prison employee for calling him a liar and a "vexatious litigant with a morally deviant character" could not be pursued under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since that statute specifically exempts defamation claims. Beckwith v. Hart, 263 F. Supp. 2d 1018 (D. Md. 2003).

Diet

     Inmate's placement on a diet of "nutri-loaf" as a punishment was not cruel and unusual, despite his repeated regurgitation of the food, and his ultimate vomiting of blood. Prison nurse only knew of two instances in four days in which inmate vomited and provided proper medical advice. No hearing was required prior to imposition of a temporary "nutri-loaf" diet, since it was not an "atypical and significant hardship" in relation to the "ordinary incidents of prison life." Gates v. Huibregtse, No. 02-2887, 69 Fed. Appx. 326 (7th Cir. 2003).

Disability Discrimination: Inmates

     Illinois court rules that sovereign immunity barred a paraplegic inmate's claim seeking damages against prison warden for alleged disability discrimination under Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132. State did not consent to be sued by prisoners based on ADA violations, and Congress had not abrogated the state's immunity under the statute. Evans v. Page, No. 5-02-0126, 792 N.E.2d 805 (Ill. App. 5th Dist. 2003).

Drugs and Drug Screening

     Evidence of positive drug test, positive retest, and positive independent retest which prisoner requested were sufficiently reliable to support his disciplinary conviction for drug use. Direct testimony by director of laboratory which did testing was not necessary when documentation was presented at hearing concerning the reliability of the testing procedure and the chain of custody of the sample tested. Claypool v. Nebraska DCS, No. A-02-812, 667 N.W.2d 267 (Neb. App. 2003).

Inmate Property

     Indiana prisoner had a state constitutional right to pursue a small claims action seeking compensation for prison employees' alleged damage to his color television set, but had no right to an order that he be transported to the court hearing. Normal trial rules testing the legal sufficiency of the complaint did not apply to small claims proceeding. Niksich v. Cotton, No.48A02-0210-CV-851, 793 N.E.2d 1189 (Ind. App. 2003).

     Indiana prisoner's claim that state officials took away his watch were not sufficient to state a federal civil rights claim when there were adequate remedies under state law for the loss of personal property. Craft v. Mann, 265 F. Supp. 2d 970 (N.D. Ind. 2003).

Marriage/Procreation

     Parole rule which absolutely prohibited parolee traveling internationally to the Philippines to marry a woman with whom he had been corresponding did not violate his constitutionally protected right to marry or to travel, and was justified by the state's desire to avoid losing all right to supervise the parolee once he was outside the country. The rule did not absolutely prohibit him from marrying, but merely affected the timing or place of his marriage plans. Williams v. Wisconsin, No. 02-4233, 336 F.3d 576 (7th Cir. 2003). [PDF]

Medical Care

     Inmate's assertion that doctor was aware of his back and throat pain caused by acid reflux but failed to adequately treat it was sufficient to state a claim for deliberate indifference to a serious medical need. Bond v. Aguinaldo, 265 F. Supp. 2d 926 (N.D. Ill. 2003).

     Prison doctor did not act with deliberate indifference to serious medical needs of a prisoner suffering from tuberculosis and anxiety symptoms. Doctor examined the prisoner four times in a two-month period, required laboratory tests to be performed, and prescribed medication, and determined that he did not observe symptoms serious enough to require transferring the prisoner to a medical facility. Butler v. Madison County Jail, 109 S.W.3d 360 (Tenn. App. 2003). [PDF]

Parole

     African-American prisoner's claim that parole board chairman improperly made threats against him in violation of his First Amendment rights and constituting racial discrimination seven years before his parole was revoked was untimely and barred by the statute of limitations. Norwood v. Michigan Department of Corrections, No. 02-1779, 67 Fed. Appx. 286 (6th Cir. 2003).

Prison Conditions: General

     Allegation that Indiana prison cells in special detention unit were "very small" and that prisoners were denied out of cell recreation, along with allegations that the cells were "filthy," totally lacked sanitation, and had inadequate ventilation and air circulation systems, along with inadequate fire safety and smoke detection systems stated a possible claim for violation of the Eighth Amendment prohibition on cruel and unusual punishment. Boyd v. Anderson, 265 F. Supp. 2d 952 (N.D. Ind. 2003).

Prisoner Assault: By Inmates

     New York state commissioner of correctional department, in merely sending prisoner a response letter advising him to address his safety concerns with local officials and his counselor, was not sufficiently involved in alleged failure to protect prisoner against assault by other inmates to be held liable. Plaintiff prisoner also did not exhaust available administrative remedies before filing lawsuit claiming that correctional officer identified him to other prisoners as a "snitch" and then failed to protect him against assault. Burgess v. Morse, 259 F. Supp. 2d 240 (W.D.N.Y. 2003).

Prisoner Assault: By Officer

     Prisoner could not pursue a federal civil rights lawsuit alleging that correctional officers assaulted him without provocation and used excessive force against him when success in his claim for damages would imply the invalidity of his disciplinary conviction for assault and battery and "insolence" arising from the same incident. The prisoner's claims were barred by the principles established in Heck v. Humphrey, 512 U.S. 477 (1994), since his disciplinary conviction had not been set aside. Denham v. Shroad, No. 02-1821, 56 Fed. Appx. 692 (6th Cir. 2003).

Prisoner Death/Injury

     A reasonable jury could only conclude that the plaintiff prisoner's throat or lung cancers were caused by his cigarette smoking, when the offered opinion of his expert witness that they were caused by exposure to thoriated tungsten welding rods during his prison work assignment as a welder was not reliable or relevant. Expert's testimony was excluded and summary judgment granted for defendant prison officials. Burleson v. Glass, 268 F. Supp. 2d 699 (W.D. Tex. 2003).

Prisoner Discipline

     Alaska Supreme Court rules that imposition of discipline on prisoner based on a hearing conducted by a single hearing officer did not violate state constitutional right to due process, even if administrative code then required a hearing by three hearing officers, in the absence of any showing of bias. Brandon v. State of Alaska Dept. of Corrections, No. S-10056, 73 P.3d 1230 (Alaska 2003). [PDF]

     Disciplinary finding that prisoner who was observed trying to stab another inmate with a pen was guilty of possessing contraband that could be classified as a weapon was not supported by substantial evidence. Court rules that an "unaltered pen" was not contraband, but that prisoner was properly found guilty of violating rules against assaulting other prisoners. Lamage v. Selsky, 760 N.Y.S.2d 561 (A.D. 3d Dept. 2003). [PDF]

Prisoner Suicide

     Prisoner's failure to object, in the trial court, to a magistrate's report and recommendations resulting in the dismissal of his claims that correctional officials were deliberately indifferent to his suicide attempts by allowing him to possess and swallow razor blades, barred his arguing any of his claims on appeal. Bacon v. McGarry, No. 02-4194, 71 Fed. Appx. 19 (10th Cir. 2003).

Prisoner Transfer

     Montana prisoner did not have any state-created liberty interest in being housed in a particular correctional facility and was therefore not entitled to an order preventing his being transferred to a different prison. Wright v. Mahoney, No. 02-575, 71 P.3d 1195 (Mont. 2003). [PDF]

     Missouri prisoner failed to adequately plead facts showing that he was denied transfer to a Canadian prison in retaliation for his filing of civil lawsuits against state and prison officials. Charron v. Holden, No. WD 61747, 111 S.W.3d 553 (Mo. App. W.D. 2003).

Public Protection

     State youth correctional officials could not be held liable for seventeen-year-old juvenile offender's shooting and killing of taxi driver after he was released from custody. State of Alaska had no duty to use due care in deciding whether or not to extend the juvenile's commitment and there was no showing that the offender presented a "particularized" threat to the person he killed. State of Alaska v. Sandsness, No. S-9910, 72 P.3d 299 (Alaska 2003). [PDF]

Search: Guards/Employees

     While reasonable suspicion, not probable cause, was the legal standard required to search a prison employee's car while parked in a correctional institution's parking lot, an eleven month old anonymous tip that he was keeping a 9 mm gun in his car did not provide reasonable suspicion for the search when there was no independent corroboration of any information received and no indication of how the tipster obtained his information. Wiley v. Department of Justice, No. 02-3044, 328 F.3d 1346 (Fed. Cir. 2003).

Sexual Harassment

     Male correctional officer was properly awarded $750,000 in compensatory damages for alleged sexual harassment by a female co-worker and the alleged failure to his superiors to adequately remedy the problem, along with $850,000 in attorneys' fees and costs. New Jersey Supreme Court upholds, however, reversal of $3 million punitive damages award, based on inadequate jury instructions concerning willful indifference by upper management which failed to explain the term "upper management." Further proceedings ordered on issue of punitive damages. Lockley v. State of New Jersey Department of Corrections, 828 A.2d 869 (N.J. 2003).

Visitation

     Denial of family visits to prisoner did not violated any constitutionally protected liberty interest, and his inability to "visit with whom he wishes is an 'ordinary incident of prison life,'" and "part of the penalty that criminals pay for their offenses against society." Macedon v. California Department of Corrections, 67 Fed Appx. 407 (9th Cir. 2003).

Work/Education Programs

     Prisoner in Tennessee had no constitutional right to a particular job assignment or to prison employment in general, and therefore could not pursue claim for violation of due process based on prison's failure to restore him to his former job after his disciplinary conviction was reversed. Carter v. Tucker, No. 03-5021, 69 Fed. Appx. 678 (6th Cir. 2003).

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

     Book: When Prisoners Come Home: Parole and Prisoner Reentry (Studies in Crime and Public Policy) by Professor Joan Petersilia of the University of California at Irvine ($29.95, 288 pages, New York: Oxford University Press 2003).

     Publication: "Probation and Parole in the United States, 2002" Reports the number of persons on probation and parole, by State, at yearend 2002 and compares the totals with year end 1995 and 2000. It lists the States with the largest and smallest parole and probation populations and the largest and smallest rates of community supervision, and identifies the States with the largest increases. This report also describes the race and gender of these populations and reports the percentages of parolees and probationers completing community supervision successfully, or failing because of a rule violation or a new offense. Highlights include the following: The adult probation population grew 1.6% in 2002, an increase of 63,434 probationers, about half the average annual growth of 3.1% since 1995. Overall, the Nation's parole population grew by 20,808 in 2002, or 2.8%, almost double the average annual growth of 1.5% since 1995. 08/03 NCJ 201135 Press release | Acrobat file (335K) [PDF]| ASCII file (17K) Spreadsheets (zip format 26K).

     Publication: Research in Review, Volume 6, No. 3. [PDF] A publication of the Pennsylvania Department of Corrections. (12 pgs. September 30, 2003). This issue focuses upon the process evaluation of the Department's Community Orientation Reintegration program, concerning preparing inmates for reintegration into the community, and reports on a study of the program by a team of researchers from the Washington, D.C.-based Urban Institute.

     Website: American Correctional Chaplains Association.

     Website: Correctional Education Association. The Correctional Education Association (CEA), founded in 1946, is a non-profit, professional association serving educators and administrators who provide services to students in correctional settings.

     Website: Corrections Technology Management. Includes articles from the current issue of Corrections Technology Management magazine, as well as an archive of articles from past issues from 1998 to the present.

     Website: National Prison Hospice Association. Addresses issues concerning the care of dying prisoners, and includes on-line resources and links to helpful information, and a selected bibliography.

     Website: Mental Health in Corrections Consortium. This organization holds an annual symposium conference on correctional mental health issues. The 2004 Symposium is entitled "Mental Health Training for the Correctional Environment: Research, Practice, Results," and will be held on April 19 through April 21, 2004 in Kansas City, MO. The website also has a listing of links to organizations of interest to those involved in correctional mental health.

     Website: Pennsylvania Prison Wardens Association. Provides senior administrators in the field of adult corrections and associated disciplines a means to improve the correctional system at the state and local level. The website recognizes significant contributions of its members through posting of awards to its members, provides information on news, training opportunities, jobs, and upcoming events to the public, and provides email, bulletin boards, policies & procedures and other information to members of the organization. The website currently has an on-line nine page article in .pdf format entitled "Performance Measures and Strategic Planning for Corrections" by Harry Wilson and Kathleen Gnall. Mr. Wilson is the Superintendent of the Pennsylvania State Correctional Institution at Cresson, and Ms. Gnall is Chief of the Planning, Research and Statistics Division for the Pennsylvania Department of Corrections.

     Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.

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