FEATURED CASES

WITH LINKS TO THE OPINIONS

Deputy's statement to prisoner, in front of other inmates, revealing his HIV status did not violate his constitutional rights. Federal trial court holds that there is no general fundamental constitutional right to privacy for personal medical information and that any judgment about whether such information should be protected must be left to legislative action.

     A Virginia prisoner filed a federal civil rights lawsuit seeking damages from a prison deputy for her action in allegedly revealing his HIV status in the presence of other inmates. He claimed that when he approached her to request receiving a "snack bag," she responded by stating loudly, "Get away from the desk," and "I'm not scared of you or your AIDS." This loud statement allegedly was overheard by other inmates in the area at the time. The prisoner's lawsuit claimed that this violated his constitutional right to privacy.

     A federal trial court disagreed and has dismissed the lawsuit for failure to state a claim on which relief may be granted.

     While the U.S. Supreme Court has found a constitutional right to privacy, the trial court stated, covering many private decisions involving marriage, procreation, contraception, abortion, child raising, and education, it "significantly" has "carefully avoided creating a broad, fundamental privacy right, noting that the matter of general individual privacy rights is an issue" that should be "left largely to the law of the individual States."

Consistent with this principle, there is no Supreme Court declaration that an individual's confidential medical information falls within a constitutionally protected "zone of privacy."

    There is, the trial court found, "no general fundamental constitutional right to privacy in personal medical information." In addition to the lack of U.S. Supreme Court authority for such a right, the trial judge contended, there also was no prior case law by the U.S. Court of Appeals for the Fourth Circuit finding such a right. (Virginia is within the territory governed by the caselaw of Fourth Circuit). The court cited Taylor v. Best, 746 F.22d 220 (4th Cir. 1984) (upholding a requirement that an inmate divulge his medical history, including his family medical history, to a prison psychologist, with any "privacy interest"--not "privacy right" being outweighed by "compelling public interests in assuring the security of prisons and in effective rehabilitation).

     A prior trial court decision, Adams v. Drew, 906 F. Supp. 1050 (E.D. Va. 1995), also held that it did not violate the privacy rights of a pretrial detainee when he and other HIV positive prisoners had to line up for the distribution of AZT medication which is associated with HIV, rejecting the argument that this unnecessarily exposed his HIV positive status to other prisoners.

     Finding that no constitutional right had been violated by the deputy's alleged conduct, the court dismissed the lawsuit.

     It also commented that it "may well be sensible public policy to provide legal protection to ensure the privacy of medical records," and noted that there were many state statutes which address issues of patient confidentiality and the privacy of the medical records, as well as the recently enacted privacy rule of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, which became effective on April 14, 2003, which creates national standards to keep individuals' medical records and other personal health information confidential. Standards for Privacy of Individuals' Identifiable Health Information, 45 C.F.R. Sec. 160. (Elsewhere in this issue, there is a link to a list of resources concerning HIPPA and its rules).

     The nature and scope of protection for the privacy of medical information and records, the court stated, is "more sensibly determined by elected legislators via state or federal statute, rather than by judicial stretching of the constitutional text to reach a subject not explicitly treated in the text."

     Sherman v. Jones, 258 Fed. Supp. 2d 440 (E.D. Va. 2003).

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

     Research Note: Two federal circuit courts of appeal have directly held that constitutional privacy protection does not extend to an individual's HIV status. See Tokar v. Armontrout, 97 F.3d 1078 (8th Cir. 1996) (inmates do not have a clearly established constitutional right to privacy in their HIV status), and Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994) (there is no general constitutional right to nondisclosure of private information). Another federal appeals court has commented, in statements not essential to the holding of a case, that it is not at all certain that an inmate had a constitutional right to privacy in his HIV status. See Anderson v. Romero, 722 F.3d 518 (7th Cir. 1995). Two federal appeals courts have reached a contrary conclusion. See Doe v. City of New York, 15 F.3d 2264 (2nd Cir. 1994) (individuals infected with the HIV virus "clearly possess a constitutional right to privacy regarding their condition"), and A.L.A. v. West Valley City, 26 F.3d 989 (10th Cir. 1994) ("There is no dispute that confidential medical information is entitled to constitutional privacy protection.").

     Editor's Note & Warning: As the events above occurred prior to the effective date of the privacy rule of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, (April 14, 2003,). creating national standards to keep individuals' medical records and other personal health information confidential, correctional facilities, which come under the coverage of that rule as medical care providers, should not rely on the case above as a basis for thinking that it is somehow "ok" to release such information. Doing so may result in liability under the HIPAA rule. The case above addresses only the issue of whether there is a constitutional violation, not whether there is a violation of privacy rights under either HIPAA or else applicable state statutes or caselaw.

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Jury verdict in favor of correctional officers' use of tear gas against prisoners locked in their cells during prison riot upheld. Plaintiff prisoners were not entitled, in the absence of a showing of "bad faith," to instructions to the jury that would have allowed it to infer that "missing evidence" such as video footage of the gassing incident would have been unfavorable to the defendant officers.

     Two Wisconsin prisoners sought damages for the alleged violation of their Eight Amendment rights stemming from injuries they suffered when the defendant correctional officers, prison officials, and the private corporation which operated the prison locked them in their cells and sprayed them with tear gas during a prison riot. They also asserted a state law claim for assault and battery.

     The federal trial court dismissed the federal civil rights claims based on the prisoners' failure to exhaust administrative remedies prior to filing suit. The jury later returned a verdict for the defendants on the state law assault and battery claim.

     The federal appeals court upheld the requirement that the prisoners exhaust their available administrative remedies before filing suit. The plaintiff prisoners' complaint sought injunctive relief requiring adequate weapons training for prison employees, medical attention to inmates injured in the gassing incident, and decontamination of the affected areas of the prison. The appeals court noted that even if these requests were "non-grievable" under prison policy, prison officials did have the power to render some of the relief requested by the plaintiffs. Requiring the prisoners to go through the grievance process would "afford prison officials the opportunity to take some corrective action that would preclude litigation."

     The appeals court also upheld the jury's verdict in favor of the defendants on the state law claims. It rejected the prisoners' argument that the trial judge should have given the jury a "missing evidence" instruction allowing the jury to infer that certain evidence not produced by the defendants, specifically video footage of the gassing incident and incident statements from officers on the scene, would have been unfavorable to the defendants.

     With regard to the missing evidence instruction, this court has held that, absent a showing of bad faith, failure to produce evidence is not sufficient to warrant such an instruction.

     In this case, there was no evidence of bad faith by the defendants, so the failure to give the proposed jury instruction was not "plain error" requiring further proceedings. The plaintiffs were also not harmed by the trial court's failure to give an instruction regarding the possible awarding of punitive damages for "reckless disregard" of the plaintiffs' rights, in light of the fact that the jury did not award actual damages.

     Beaudry v. Corrections Corporation of America, No. 02-6073, 331 Fed. 3d 1164 (10th Cir. 2003).

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

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Failure of correctional officials to provide a prisoner with the actual lab reports resulting from his random drug test at his disciplinary hearing did not violate his due process rights. Vermont Supreme Court upholds "zero tolerance" policy against use of illegal drugs. Correctional officials need not set a "threshold level" for indications of drug use found in inmate's urine to convict him of rule violation.

     A Vermont inmate who tested positive for marijuana after he was subjected to a random drug test in prison was convicted of violating the state Department of Corrections drug policy. He filed suit in state court challenging the validity of the drug test itself, along with the results and analysis of his urine sample, and the use of the test to impose discipline on him.

    The Supreme Court of Vermont rejected each of the prisoner's arguments. It noted that only "some evidence" need be found to support an inmate disciplinary conviction, a lesser standard than "preponderance of the evidence" as used in most civil cases, and much less than the standard of "beyond a reasonable doubt" used in criminal cases. All that must be shown is that there is "some evidence" which could support the conclusion reached at the disciplinary hearing.

     The court also found that the failure to provide the prisoner with the actual laboratory reports from his drug tests at the disciplinary hearing was not a violation of his due process right to present evidence in his favor. The court found that despite the prisoner's claim that the urine sample might not be his, there was sufficient evidence of the chain of custody of the sample to support the conclusion that the sample was his. Proof beyond a reasonable doubt that the sample was the inmate's was not required, only a "reasonable assurance" that it was.

     The court next rejected the prisoner's argument that the correctional officials should be required to establish a "threshold level" for toxins or other indicators of drug use found in his urine, in order to distinguish direct "use" of illegal drugs from "second-hand smoke" exposure to marijuana. The Department of Corrections, in establishing a "zero tolerance" policy for use of illegal drugs, had adopted a testing protocol with procedures that have at least a 90% reliability rating, the court noted.

     The court found that the Department had the legal authority to carry out random drug tests, and that prisoners in its custody have a diminished expectation of privacy. Such random testing must be carried out with procedural safeguards, the court stated, including the establishment of clear, objective guidelines by a high-level administrative official, the following of these guidelines by implementing officials, and "no systematic singling out of inmates in the absence of probable cause or articulable suspicion." The court found no violation of these requirements.

     Finally, the court ruled that the random drug testing program was not invalid under state law on the basis of alleged failure to comply with the requirements of the Vermont Administrative Procedure Act, 3 V.S.A. Sec. 800-849, for the issuance of policies. The drug testing program was more of a "practice" than a policy, and did not change the prisoner's substantive legal rights, according to the court.

     King v. Gorczyk, No. 02-180, 825 A.2d 16 (Vt. 2003).

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

     Editor's Note: The Vermont Department of Corrections policy on Offender Drug Testing is available online. For a description of the drug testing program of another state's correctional department, see the Oregon Department of Corrections' report on "Inmate Drug Usage in the Institutions During June 2003," (2 pgs. PDF format). Oregon conducts a random drug testing program, drug testing on the basis of suspicion of drug use, and testing of prisoners enrolled in an Alcohol and Drug training program (such prisoners are tested each month). The report describes each program and the results for a recent month.

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Louisiana appeals court upholds award of $85,000 to daughter of prisoner who died after being transported to the hospital. Sheriff's employee, during transport of prisoner, allegedly failed to follow doctor's instruction to give inmate oxygen, and did not attempt to clear his airway after the prisoner vomited during CPR.

     A Louisiana prisoner died of cardiac arrest at a hospital after being transported there by ambulance from the parish prison. He had complained of chest pains and shortness of breath, and was later found non-responsive and seizing in his cell. A prison doctor ordered that he be sent to the hospital immediately, and he was placed on a gurney and sent to the hospital with two prison employees. The doctor allegedly instructed them to give him oxygen.

     On the way to the hospital, the prisoner went into cardiac arrest, and the two sheriff's employees began CPR. While one of them was performing chest compressions, the prisoner vomited. There was conflicting evidence as to whether the prisoner's airway was then cleared, and specifically as to whether he was "bagged" or ventilated during transport. He arrived at the hospital with no pulse or respiration, and attempts to revive him were unsuccessful.

     The prisoner's daughter, who was an eleven-year-old minor at the time of his death, but is now an adult, filed a wrongful death lawsuit against the sheriff and one of the employees. Following a bench trial, the judge awarded the plaintiff $85,000 in damages against both defendants, based on alleged negligent failure to administer proper treatment to the prisoner when he went into cardiac arrest in the ambulance, which caused him to lose a chance for survival. The entire damage award was based on the relationship between the prisoner and his daughter, with none of it based on the prisoner's pain and suffering prior to death.

     Upholding this award, an intermediate state appeals court rejected the argument that the defendants were immune from liability under La. R.S. 40:1235(A) providing immunity to medical technicians who render emergency medical care to a person while in the performance of their medical duties and "following the instructions of a physician," in the absence of intentional misconduct or gross negligence.

     The appeals court found first, that the sheriff's employee admittedly did not administer oxygen, which was a violation of the physician's instructions. This was one basis for a finding of no immunity under the statute. The court also stated, however, that even if it were to find that the employee followed the doctor's instructions merely by transporting the prisoner to the hospital, "we hold that the corpsman's failure to establish an airway during CPR and failure to administer oxygen in direct contravention of the physician's orders constituted gross negligence."

     The appeals court also noted that the hospital records showed that the prisoner had "vomitus in his mouth" and nostrils upon arrival, which it found was a proper basis for discrediting the testimony of the employee about whether the prisoner was ventilated in the ambulance. The hospital records also stated unequivocally that the prisoner was not ventilated in the ambulance, which the court reasoned would "necessarily reflect the information" the employee had given to the hospital attendant upon arrival.

     There was sufficient medical testimony to support a finding that the actions of the employee in the ambulance caused the prisoner to lose a chance of survival, the court found.

     Lastly, the court found no error or excessiveness in the amount of damages awarded. The decedent's daughter had stayed with him at his mother's house before he was incarcerated and enjoyed such activities as going to the movies and the park with him. While she did not receive regular child support from her father, he did give her money, clothes and presents, and during the six months that he was incarcerated, he called his daughter four to six times a month and sent her cards and letters, although she was not allowed to visit him in jail. The daughter testified that she missed her father while growing up and visited his gravesite. The appeals court found, based on this evidence, that the amount of damages awarded was not "an abuse of discretion" by the trial judge.

     Johnson v. Foti, No. 2002-CA-1995, 844 So. 2d 1050 (La. App. 2003).

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

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Prisoners challenging the procedures used to determine parole eligibility and suitability could pursue their claims as a federal civil rights lawsuit rather than a habeas corpus petition. Prisoners did not claim an immediate entitlement to parole, but rather that the parole board comply with what they claimed was the law in making parole determinations.

     A federal appeals court, ruling en banc, has reversed a trial court's dismissal of two Ohio prisoners' federal civil rights lawsuit against state parole officials claiming procedural improprieties in their parole hearings.

     The trial court had reasoned that a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 was not the appropriate method of challenging parole determinations. The appeals court agreed that a petition for habeas corpus would be the appropriate method if the prisoners were claiming an immediate entitlement to parole or arguing for the invalidity of their convictions or sentences.

     In this case, however, the prisoners were raising procedural challenges to the parole boards methods of determining parole eligibility and suitability. Such challenges could be brought as a federal civil rights claim since they did not imply an immediate entitlement to parole or a shorter sentence, but instead only sought ruling requiring the parole board to comply with what they claimed was the law in making parole determinations.

     If successful, the appeals court noted, the prisoners would not be granted parole, but merely new hearings at which the parole board would still have the discretion to make decisions about whether to ultimately grant them parole or not. The prisoners challenged such alleged irregularities at their hearings as not being allowed to speak and not being asked questions, despite state law legal requirements that board members consider the prisoner's oral or written statements, and the alleged basing of decisions on alleged convictions for which a prisoner had not actually even been charged.

     Dotson v. Wilkinson, No. 00-4033, 329 F.3d 464 (6th Cir. 2003).

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

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Attorneys' fee restrictions imposed by the Prison Litigation Reform Act apply to all lawsuits filed by a prisoner, not just those that challenge prison conditions. Federal appeals court rules that they also apply to a civil rights lawsuit challenging the denial of parole or otherwise challenging the length of confinement. Court also rejects equal protection challenge to the statute, and rules that it allows for the awarding of attorneys' fees on work done litigating attorneys' fees issues (so-called "fees on fees").

     A Georgia prisoner was sentenced to twenty years, constituting five years in prison and fifteen years of probation on charges of aggravated assault at a time when, under state law, a prisoner was required to serve at least one-third of his prison term before becoming eligible for a parole hearing.

     In 1997, however, the state parole board amended its policy to require persons such as the prisoner to serve a minimum of 90% of their prison sentence before eligibility for a parole hearing, and applied the rule retroactively. The prisoner challenged the policy as violative of his rights because of the retroactive application and a federal trial court enjoined the enforcement of the policy against him. He was subsequently granted parole.

     Following his success in gaining his release, he filed a motion under 42 U.S.C. Sec. 1988 seeking an award of attorneys' fees in the amount of $34,875 and costs in the amount of $335.21, for a total award of $35,210.21. The defendant Parole Board objected to the motion and claimed that the prisoner's lawsuit had been one "with respect to prison conditions" so that the motion for attorneys' fees and costs should be governed by restrictions and limitations imposed by Sec. 1997e(d) of the Prison Litigation Reform Act (PLRA). The plaintiff prisoner responded to this and also filed a motion for additional attorneys' fees for his lawyer's work in litigating the underlying motion, seeking an additional $2,375.

     The trial court agreed that the PLRA attorneys' fee provisions applied, and rejected the plaintiff prisoner's argument that the statute's restrictions on awards of attorneys' fees violated his right to equal protection. It also found that Sec. 1997e(d) allows a prevailing plaintiff to be awarded attorneys' fees for litigating attorneys' fees issues (or so-called "fees on fees"). It then awarded the prisoner a reduced attorneys' fee award of $9,194.82 and costs of $113.96, for a total award of $9,308.78, less than a third of the amount requested.

     A federal appeals court upheld this result, but arrived at the application of the PLRA provisions to the prisoner's case by different reasoning than the trial judge. Because this section of the statute says that it applies to "any action brought by a prisoner," the court stated, and does not mention the phrase "prison conditions" specified elsewhere in the statute, this means that it applies to all lawsuits that are filed by a prisoner and is not restricted to lawsuits challenging "prison conditions" that are filed by a prisoner. It therefore applies to the prisoner's challenge to the denial of his parole or to other lawsuits challenging the length of confinement, as opposed to the conditions of confinement.

     The appeals court easily rejected the prisoner's equal protection challenge to the statute, noting that prisoners are not a suspect class and that the right to an award of attorneys' fees is not a fundamental right. The classification of prisoners impacted by the statute was rationally related to a legitimate interest in protecting the state and federal treasuries from which the majority of prisoner civil rights awards are paid, and decrease the filing of "marginal or trivial lawsuits."

    Lastly, the appeals court joined two other federal appeals circuits (the Third and Fifth) in concluding that "fees-on-fees" are recoverable under Sec. 1997e(d)(1) of the Prison Litigation Reform Act. See Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001) and Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998).

     Jackson v. State Board of Pardons and Paroles, No. 02-15545, 331 F.3d 790 (11th Cir. 2003).

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

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Jail guards on duty at the time that a inmate with a history of violent outbursts and mental instability killed a pretrial detainee were not entitled to qualified immunity from liability for failure to protect the decedent when they allegedly knew that the assailant posed a serious risk of harm to fellow prisoners. Supervisory personnel, however, had no knowledge that guards were failing to monitor assailant, as required.

     A Florida pre-trial detainee was placed in a unit of a detention facility which houses mentally ill inmates. Another prisoner placed into the same housing unit had a history of schizophrenia and violent tendencies, as well as involvement in a prior incident in which he had struck another inmate.

     Although there were three separate cells in the housing unit, the doors to the cell allegedly remained unlocked, allowing the three inmates to "interact with each other." A day after the schizophrenic prisoner was placed into the unit, he allegedly attacked the pretrial detainee during a schizophrenic episode, strangling him with shoelaces. The injured prisoner was found unconscious on the floor with ligature marks around his neck, and subsequently died.

     A federal civil rights lawsuit contended that the jail guards on duty at the time were liable for failure to protect the deceased prisoner against the attack, and had failed to comply with requirements that they monitor the cell block, particularly in light of their knowledge of the assailant's past history of violent outbursts and mental instability, and that he was in the "midst of a violent schizophrenic outrage" prior to killing the detainee.

     Rejecting the guards' motion for summary judgment on the basis of qualified immunity, a federal appeals court found that it had been sufficiently alleged that they had subjective knowledge of the substantial risk of harm that the assailant posed to other prisoners and failed to perform any monitoring of inmates in the housing unit at all prior to the attack. The plaintiffs alleged that the two guards took consecutive breaks prior to the attack, and that a computer game was observed on the computer screen at their monitoring station at the time of the murder. The court found that this was sufficient to present a factual issue as to whether their failure to monitor a known violent, unstable inmate caused the death.

     The appeals court rejected the plaintiffs' claims for liability against four supervisory personnel, however, as there was no claim that they were personally involved in the episode or that they knew that the guards were not monitoring prisoners on the housing unit. In the absence of any knowledge that the guards failed to monitor inmates, or that they had any past history, or even one prior incident, of failing to monitor inmates or of watching computer games, the supervisors could not be held liable. There was also no alleged affirmative custom or policy implemented by the supervisory personnel that played any role in the detainee's death. The supervisors, therefore, were granted qualified immunity.

     Cottone v. Jenne, #02-14529, 326 F.3d 1352 (11th Cir. 2003).

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

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The proper focus in deciding whether a prisoner was entitled to due process protection before being sentenced to confinement in a special housing unit, a federal appeals court rules, was the number of days in the sentence, not the number of days the prisoner actually wound up serving. Denial of qualified immunity to defendant correctional officials upheld in prisoner's lawsuit over his sentence to ten years in special housing unit.

     A former New York state prisoner filed a federal civil rights lawsuit claiming that two prison officials violated his procedural due process rights during a disciplinary proceeding in which he was sentenced to 120 months confinement in a Special Housing Unit (SHU) for his alleged role in a prison riot.

     The trial court denied a motion by the defendants for summary judgment on the basis of qualified immunity, and the defendants, on appeal, emphasized the fact that the plaintiff prisoner eventually served only 335 days of his ten year SHU sentence, arguing that it was not clearly established at the time of the challenged conduct that disciplinary confinement for periods of less than one year "implicated a protected liberty interest."

     The prisoner, who was accused of leading the prison riot, assaulting a staff member, possessing a weapon, and engaging in violent conduct, claimed that he was not provided with exculpatory evidence, such as a videotape of the riot and prison recreation schedules, prior to the hearing, and that one of the prison officials failed to independently review this evidence during the hearing. The prisoner further claimed that he was denied his request to call a prison guard as an alibi witness and that a hearing officer "otherwise frustrated or ignored" his attempt to present a viable defense.

     At the conclusion of the hearing, the prisoner was found guilty of the charges, and sentenced to 120 months (ten years) of confinement in the SHU, as well as loss of all commissary, package, and telephone privileges for the same period with a recommendation of denial of 120 months of good time credit. In a criminal proceeding in state court on charges arising out of the same prison riot, the prisoner's attorney was able to introduce the same exculpatory evidence the prisoner claimed had been excluded from his disciplinary hearing, and the prisoner was acquitted of all charges after less than an hour of jury deliberations. Another prisoner was subsequently convicted of the assault on a prison guard for which the plaintiff prisoner was disciplined.

     In denying the defendant prison officials' motion for qualified immunity, the trial judge reasoned that the correct focus for determining whether there was clearly established law that the prisoner was entitled to due process before the imposition of a disciplinary sentence was on the length of the sentence imposed, rather than, in hindsight, looking at the length of time the prisoner actually served. The federal appeals court agreed, upholding the trial court's decision.

     Under Sandin v. Conner, 515 U.S. 472 (1995), the appeals court noted, there can be claims for damages for violation of procedural due process only when disciplinary punishment imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The length of the disciplinary confinement is one of the guiding factors in applying this, the court noted.

It would defy logic to analyze qualified immunity, as defendants urge, in terms of unpredictable subsequent events, and courts have repeatedly declined to frame the clearly established inquiry through the "20/20 vision of hindsight."

     Whatever "confusion Sandin may have left in its wake," the appeals court concluded, a credible argument could not be made that it was not "clearly established at the time of the alleged violations that disciplinary punishment, consisting of ten years of solitary confinement, triggered due process protection."

     Hanrahan v. Doling, #02-0169, 331 F.3d 93 (2nd Cir. 2003).

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

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Prison disciplinary committee hearing officer needed to make specific findings as to why he found that the materials a prisoner was being punished for possessing were "gang-related." Additionally, findings were required to determine if the prisoner had, as he claimed, been previously disciplined for possessing the same materials, which were allegedly confiscated from him and then returned to him.

     An inmate at a New Jersey state prison sought judicial review of a final decision of the state Department of Corrections disciplining him for possessing materials relating to a security threat group, the Bloods gang, in violation of prison rules. The prisoner argued that he is neither a member of any gang nor sympathetic to the Bloods, and has also been previously sanctioned for possessing some of the same materials.

     The prisoner also argued that the Department failed to show how the materials in question were "gang-related," and contended that the materials only contain "common cultural expressions" in support of black nationalism and against racism.

      After examining the materials and the record, an intermediate New Jersey appeals court found "merit in these arguments" and reversed and remanded for further proceedings.

     During a routine search of the prisoner's cell, officers seized numerous letters and pictures which, according to them, related to the United Blood Nation, a group that presents a recognized security threat to the prison. At a disciplinary hearing, the prisoner indicated that he had received most of the documents from his brother and had possessed them for four to five years. The hearing officer imposed fifteen days of detention, 180 days of administrative segregation, and 180 days loss of commutation credits, with disposal of the alleged contraband. He reasoned that these sanctions were justified because this was the prisoner's second offense for possessing gang related materials.

     The appeals court noted that the hearing officer did not provide any reasons explaining why he concluded that the materials are gang related and deserving of sanctions. The court found that this was unacceptable. While an administrative decision is normally entitled to deference, the court stated, "we will not perfunctorily review and rubber stamp the agency's decision."

     The court stated that its review of the documents in question "leaves us with the impression that there may be some merit" to the prisoner's argument regarding the "benevolent content of the documents." While a few of the letters made references to gang activity by the Bloods, the court noted, the "context was critical." Statements in one letter said that the writer had been a Blood, and that during nine years in the gang he had never learned what he was "learning now, the power of Blackness and the destruction that we do to ourselves and how we eliminate our future with the things we do today." In another such letter, the writer stated that the Bloods were "outta control."

     Other documents appeared to be Black Muslim oriented, and included statements like "what's up Blood." The prisoner argued that these uses of the term "Blood" referred to a "close male friend, a young black man, a dashing man" in young urban Black culture, and were not references to the Bloods gang at all. He provided support for this in definitions from several published dictionaries. Several other letters "appear to be harmless communications between friends," and referred to civil rights figures like Rosa Parks and political activities like the "Million Man March."

     The court found that "given the nature of these materials, some explanation as to which parts or why all are gang related was essential."

A prisoner does not lose all constitutional protections upon incarceration. Instead, these protections must be counterbalanced against the goal of accommodating the prison's need for "internal order, discipline, security and rehabilitation."

     The court further found troubling the fact that the prisoner was found guilty previously of possessing security threat group materials, and that he claimed that the materials were later "inexplicably returned to him," with some of the returned materials subsequently confiscated and becoming the basis for the more recent disciplinary charges. It might be fundamentally unfair, the court noted, to permit repeated disciplinary prosecutions and sanctions for the same offense or conduct, particularly if the materials were returned to the prisoner.

     The court therefore ordered a new hearing at which the hearing officer must determine whether any of the recently confiscated materials had been the subject of the previous hearing. Additionally, if they were found to be gang related, "proper findings and conclusions that can be reviewed by this court must be provided," with it being insufficient to merely "list by category the evidence that was considered."

     Balagun v. New Jersey Dept. of Corrections, 824 A.2d 1109 (N.J. Super. A.D. 2003).

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

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Jail inmate's suicide was an unforeseen incident which could not be shown to have taken place because of the failure of officers to regularly conduct surveillance of his cell, when he acted "calm and controlled" before he took his own life, and his behavior did not show that he might be a danger to himself.

     A 17-year-old male in Georgia, taken in for questioning about the recent death of a woman in the area, "without emotion or remorse," quickly admitted to murdering the woman at his grandfather's direction. During his booking, "psychiatric problems" was circled by an officer on the intake form because the arrestee mentioned having had past treatment as a boy for "anger management."

     It was subsequently stated that the prisoner did not appear to be a danger to himself or others, and that he gave no indication of unusual behavior. Despite this, the officer wrote on the intake form that the prisoner should be placed in an observation cell "due to high risk." Once at the local jail, the prisoner showed no embarrassment at his guilt, but instead was "calm and outgoing," even joking with a jail employee about the homicide. Jail employees subsequently testified that there was nothing that gave them any indication that the prisoner might be suicidal. Officers did, however, check on him in his cell several times, they later claimed, but no entry was made in a logbook of several of these checks.

     Later that evening, when an officer opened the prisoner's cell for the purpose of taking him to produce a DNA sample, he found the prisoner hanging by a bedsheet from a heating grate, having turned purple. He was stiff and cold to the touch, and blood had already pooled in his feet. The parents of the decedent filed a wrongful death lawsuit against the county sheriff, the manager of the county jail, and county detention officers.

     Upholding summary judgment for all the defendants, an intermediate Georgia appeals court found that the prisoner's successful suicide, under these circumstances, was an "unforeseeable intervening act" for which the defendants were not liable. There was nothing to put them on notice that the prisoner might be suicidal.

     The appeals court also found that the sheriff and jail manager, in taking actions of operating the jail and making decisions concerning the prisoner's cell placement, had engaged in discretionary acts for which they were entitled to official immunity under state law. The detention officers' duty to regularly check on the inmate, however, was mandated by jail policy, and there was some evidence that they had failed to carry out this ministerial task, on which they did not have discretion. They, accordingly, were not entitled to official immunity, and may well have acted negligently in failing to check on him more regularly.

    In the final analysis, however, the appeals court found that any negligence or failure to carry out their duties on the part of the officers did not cause the prisoner's death. The prisoner was not on "suicide watch," and there was no prior indication that he should have been. There was no evidence that suggested that if the officers had carried out the required surveillance of a prisoner not on suicide watch that the prisoner would not have been able to take his own life. Any suggestion that this was the case "is pure speculation," the appeals court stated.

     Harvey v. Nichols, No. A03A0568, 581 S.E.2d 272 (Ga. App. 2003).

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

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Female jail inmate who said she was sexually assaulted by a correctional officer could pursue claims against the county and its sheriff based allegations that sexual relationships at the facility between correctional officers and female inmates were "so widespread" that policymakers had "constructive knowledge" of them but did nothing to remedy the situation.

     A female inmate in a Maine county jail claimed that she was sexually assaulted on two occasions by the same male correctional officer, once being required to show him her breasts and to place his penis in her mouth while he masturbated onto her, and once being forced between the washer and dryer of the jail laundry when the officer allegedly inserted his finger into her vagina. Her federal civil rights lawsuit named the county and its sheriff as defendants and also asserted claims for violations of state law.

     Federal civil rights liability of a county or its sheriff in his official capacity can only be based on the existence of an official policy or custom which causes a deprivation of federally protected rights, the court noted. In this case there was no evidence that the sheriff, the official with final policymaking authority, had any involvement in the alleged sexual assault of the plaintiff prisoner, and nothing that showed the existence of an official policy or decision adopted by the county which caused harm to the prisoner. The court also rejected the argument that the county had inadequately trained the plaintiff's alleged assailant.

     The officer knew, the court stated, both based on common sense and the training he had actually received, that he should not sexually assault inmates. The written policies of the sheriff's department prohibited such conduct, and there was no showing of inadequacy in the department's training programs.

     On the other hand, the court found, liability can be based also on the existence of an unconstitutional "custom or practice" if it is "so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice."

     In this case, the record presented "undisputed evidence," the court stated, of inappropriate sexual relationships between three county corrections officers and three different inmates, and it appeared that sexual misconduct involving at least one officer and inmate was "ongoing in nature."

     The court disagreed with the defendants' argument that evidence of consensual sexual relationships between officers and inmates cannot support the plaintiff's claims.

Sexual misconduct by the corrections officers towards inmates, consensual or otherwise, if it were a common practice, may have contributed to the environment in which, ultimately, plaintiff was sexually assaulted.

     The court found that there were therefore issues of fact which prevented entry of summary judgment in favor of the defendants regarding whether the practice by corrections officers of sexual misconduct with inmates was so widespread that the defendants had constructive knowledge of it, and yet did nothing to end the practice, causing the assaults on the plaintiff.

     Faas v. Washington County, 260 F. Supp. 2d 198 (D. Me. 2003).

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

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Congress passes new federal statute: the Prison Rape Elimination Act of 2003.

     On July 25, 2003, the U.S. House of Representatives voted by unanimous consent to approve a federal statute designed to attack the problem of sexual assault in correctional facilities, the Prison Rape Elimination of Act of 2003 (H.R. 1707). The same law was also passed unanimously by the U.S. Senate the day before as Senate bill 1435. The law will now go to President Bush for his signature, which is expected.

     In the course of discussion of the bill, statistics were presented to show that one in five men in prison has been sexually abused, usually by other inmates. Proponents of the bill also claimed that rates for women, who are "most likely to be abused by male staff" can reach as high as one in four in some facilities.

    The law requires the gathering of national statistics about sexual assaults in correctional facilities, developing guidelines for states about how to address prisoner rape; the creation of a review panel to hold annual hearings; and the provision of grants to states to combat the problem.

    »Click here to read the text of the legislation on the AELE website. [PDF]

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County jail's "clothing exchange" procedure, which resulted in officers viewing prisoners in a state of undress as they changed from street clothes into jail uniforms, did not violate pre-trial detainee's Fourth Amendment rights. Federal appeals court upholds the reasonableness of the procedure even in the absence of a particular suspicion that the detainee had weapons or contraband.

     An Indiana woman arrested on misdemeanor charges of resisting arrest and battery on a police officer was processed into the county jail. Once there, she was required to undergo the jail's clothing-exchange procedure, during which a female officer ordered her to fully disrobe, with the exception of her underpants, and exchange her street clothes for a jail uniform. The officer observed her during this process, but never touched her or conducted any inspection of her body cavities. The arrestee was released from custody several hours later, and was required to change back into her street clothes while once again being observed by a female officer.

     The arrestee, whose charges were subsequently dismissed, claimed that the entire procedure was a violation of her Fourth Amendment rights against unreasonable searches and seizures. She argued that the observation of her in a state of undress was unreasonable because there was no reason to suspect her of possession of weapons, drugs, or other contraband, and she had no prior arrest record.

     A federal appeals court upheld summary judgment for the defendant correctional officials and the reasonableness of the procedure. The court noted that the prisoner was:

not required to disrobe completely (she was, in fact, allowed to keep her undergarments on; the fact that she was not wearing a brassiere, thus requiring her to expose her breasts, does not by itself transform the exchange into a gross intrusion); she was allowed to undress in a semi-private setting with only one same-sex officer present to witness the exchange; and she was not required to submit to a visual inspection of any body cavities or to any touching by the jail officer.

     Further, the search was conducted in a "professional manner," and the arrestee was not "manhandled nor treated rudely" at any point. The search was conducted in a semi-private area, and there was no evidence that the setting for the clothing exchange allowed anyone other than the one observing female officer to witness the plaintiff disrobing.

     The court found that the procedure was justified by an important governmental interest in protecting the jail against the possible smuggling of contraband.

We believe that the observed clothing exchange policy employed by the jail is a rational approach to achieving the objective of preventing the smuggling of weapons or other contraband into (or for that matter, out of) the general jail population--a rather substantial concern given the nature of the jail system.

     The appeals court found that the jail's expressed interest in making sure that there was a complete inventory of the prisoner's possessions "adds to the case justifying the intrusion in an observed clothing exchange."

     The appeals court found that the jail officials "must view any person entering the jail system with at least a minimal amount of suspicion," especially a person such as the plaintiff who was charged with battery on a police officer. "We question," the court commented, "whether such a charge can ever be called 'minor.'" The court also noted that jail officials may, at the time of intake of a prisoner, have "little information" regarding the circumstances which gave rise to the arrest.

Given this, we believe that the relatively narrow intrusion involved in an observed clothing exchange like the one at issue in this case does not tip the scales in favor of finding such a procedure unreasonable and unconstitutional.

     Stanley v. Henson, #02-2806, 2003 U.S. App. Lexis 14962 (7th Cir. 2003).

     »Click here to read the text of the decision on the court's website. [PDF]

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Prisoner suffering from gender identity disorder stated a claim for inadequate medical treatment based on alleged indifference to their need for protection against self-mutilation following the withdrawal of hormone therapy.

     A Virginia prisoner, born biologically male, suffers from gender identity disorder (GID), also known as gender dysphoria or transsexualism, a disorder characterized by a feeling of being trapped in a body of the wrong gender. Preferring to be female, she has undergone various procedures to appear more feminine, including dermabrasions and a chemical face peel. She has also received estrogen treatment to slow hair growth, soften her skin, and develop breasts and other female characteristics.

     Incarcerated since 1983, she received estrogen therapy for her disorder in 1993 and this continued until 1995 when it was terminated under a new policy of the Virginia Department of Corrections (VDOC).

     The policy stated that "neither medical nor surgical interventions related to gender or sex change will be provided to inmates in the management of [GID] cases. If an inmate has come into prison and/or is currently receiving hormone treatment, he is to be informed of the department['s] policy and the medication should be tapered immediately and thence discontinued. Inmates presenting with [GID] should be referred to the institution['s] mental health staff for further evaluation."

     In the case of this prisoner, however, rather than the hormone therapy being "tapered off," a federal civil rights lawsuit claims, the hormone treatment was "terminated abruptly," causing the prisoner to suffer nausea, uncontrollable itching, and depression. The prisoner also developed an allegedly "uncontrollable urge to mutilate" her genitals, the complaint alleged. While she had previously engaged in some self-mutilation before, it had consisted primarily of cutting her arms and hands, but after the halt to the hormone therapy, she stabbed or cut her genitals on more than 20 occasions.

     The lawsuit further contends that her requests for resumption of the hormone therapy and treatment by a gender specialist have been denied and that her self-mutilation has continued.

     A trial court ruled that the abrupt halt to the hormone therapy, by itself, did not violate the prisoner's Eighth Amendment rights. On appeal, she argued that the trial court erred in also dismissing other claims that the denial of treatment for her compulsion to mutilate herself constituted deliberate indifference to her medical needs.

     The plaintiff alleged that the defendant correctional officials know that she suffers from GID and previously treated her for it, abruptly terminating the treatment for "no legitimate reason," resulting in a compulsive self-mutilation for which the defendants have refused to provide any treatment to prevent.

     A federal appeals court has now agreed with the prisoner that these allegations "adequately state a claim for relief." The plaintiff's need for protection against continued self-mutilation "constitutes a serious medical need to which prison officials may not be deliberately indifferent." And the court found that the "limited record" before it did not demonstrate "any justification" for either the policy requiring termination of the hormone treatment or the alleged denial of any other treatment to prevent the continuing self-inflicted injuries.

     The appeals court found that there was some evidence to suggest that the refusal to provide hormone treatment was based "solely on the Policy rather than on a medical judgment concerning" the prisoner's specific circumstances, which distinguished the immediate case from Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986) (holding that a prisoner who had engaged in self-mutilation was not entitled to hormone therapy for gender dysphoria because the denial of the treatment was based on "an informed [medical] judgment").

     Additionally, even if hormone therapy was not appropriate, this did not refute the claim that the prisoner "has not received any treatment to suppress her compulsion to mutilate herself." While the prisoner had received some anti-depressant medications and counseling, it was not clearly demonstrated that "the treatment was provided" for the purpose of preventing her self-mutilation or that it was "deemed to be a reasonable method of preventing further mutilation."

     The appeals court therefore reversed the trial court order dismissing the prisoner's lawsuit, and ordered further proceedings on her claims.

     De'Lonta v. Angelone, #01-8020, 330 F.3d 630 (4th Cir. 2003).

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

     Editor's Note: In the article above, we have followed the appeal court's practice of using feminine pronouns to refer to the prisoner. Of possible interest to facilities with transsexual prisoners is "Model Protocols on the Treatment of Transgender Persons By San Francisco County Jail" by Murray D. Scheel and Claire Eustace, published by the National Lawyers Guild and the City & County of San Francisco Human Rights Commission (Aug. 7, 2002). (24 pgs. .PDF format, includes a bibliography). Also see "'Trapped' in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism," by Darren Rosenblum, Michigan Law School. General information on the topic of gender identity disorders, including full text articles and several free access electronic books may be found at the website of The International Journal of Transgenderism, published by the Harry Benjamin International Gender Dysphoria Association, which publishes the Standards of Care for Gender Identity Disorders (Sixth Version, February 2001).

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Access to Courts/Legal Info

     Prisoner had no constitutional right of access to probate court which was violated by prison officials' alleged actions in not allowing him to retrieve legal papers from his locker before he was transported to the court for personal business there. His protected constitutional right of access to the courts only extended to direct appeals or habeas corpus applications in criminal cases and civil rights claims. Plaintiff prisoner also failed to show that a warden's decision to transfer him was retaliatory for his letter of complaint over the incident, rather than, as asserted, based on concern for his safety after he was assaulted by other prisoners. Lewis v. Randle, No. 02-4297, 66 Fed. Appx. 560 (6th Cir. 2003).

     Prisoner's right of access to the courts was not violated by the failure to photocopy 1,800 pages of documents in support of his petition for post-conviction relief when he suffered no detriment based on the failure to attach the voluminous documentation. He was previously informed that the petition would be accepted without the attachments and the court actually reviewed the documents and found them to be mostly inadmissible and duplicative of other court records, and ultimately dismissed the petition on other grounds. Drennon v. Hales, No. 27926, 70 P.2d 688 (Idaho App. 2003). [PDF]

     Florida court declines to adopt a "reverse mail box" rule under which the time deadlines for a prisoner to file court documents would begin to run from the time a document was actually delivered to a prisoner by prison officials. Ashley v. State of Florida, 845 So. 2d 1008 (Fla. App. 5th Dist. 2003). [PDF]

Drugs and Drug Screening

     Substantial evidence supported a disciplinary determination that a prisoner had violated rules against possession of controlled substances when a correctional officer testified that a bag, containing heroin and attached to a drag line, was seen hanging outside the prisoner's cell, the chain of custody of the prisoner's urine sample was adequate, and the proper drug testing procedures were followed. Davis v. Selsky, 759 N.Y.S.2d (A.D. 3d Dept. 2003). [PDF]

Employment Issues

     Dispute over whether county violated the terms of a collective bargaining agreement by requiring correctional officers to dispense medication to prisoners was subject to arbitration under Illinois state law regardless of whether or not the disputed job assignments were legal under a state controlled substances law. Any exclusion from arbitration has to be expressly stated in a public employees' collective bargaining agreement under the Illinois Public Labor Relations Act, 5 ILCS 315/8. Rock Island County Sheriff Grchan v. AFSCME, AFL-CIO, Local 2025, #3-03-0052, 791 N.E.2d 57 (Ill. App. 3d Dist. 2003).

Funeral Attendance and Prisoner Burial Issues

     Public cemetery commissioners did not violate Massachusetts' prisoner's rights to equal protection under the state constitution or state statutes by denying his request to purchase a burial plot for himself in the same cemetery in which his wife, who he was convicted of murdering, was buried. LaCava v. Lucander, No. 01-P-549, 791 N.E.2d 358 (Mass. App. 2003).

Inmate Funds

     Prisoner's rights were not violated by actions prohibiting him from using his account funds to purchase personal hygiene products when he received a monthly "indigency package" containing hygiene products which contained what was absolutely necessary for personal hygiene. His inability to purchase over-the-counter medications for his headaches also did not amount to cruel and unusual punishment. Stolte v. Cummings, No. 89,229, 70 P.3d 695 (Kan. App. 2003).

     Florida statutes making prisoners liable for $50 per day for the portion of their sentences remaining after the effective date of the statutes was not a violation of their due process rights or the prohibition on ex post facto laws that increase criminal punishments retroactively. The purpose of the statutes was not punishment but rather the reimbursement of public funds spent on the prisoners, who had no vested right to free room and board. Goad v. Florida Department of Corrections, No. SC00-785, 845 So. 2d 880 (Fla. 2003). [PDF]

Medical Care

     Prisoner's liver problems and alleged "bashful bladder syndrome" were not sufficiently serious to show that nurse was deliberately indifferent to his serious medical needs by approving him for assignment to an "arduous" field work job. Pate v. Peel, 256 F. Supp. 2d 1326 (N.D. Fla. 2003).

Overcrowding

     Correctional officer had no right to intervene as a party in litigation alleging that the correctional facility in which he worked had overcrowded and unsafe conditions. His asserted interest in avoiding the risk of future civil liability which might result from the need to take "drastic measures" to maintain order was "purely a matter of speculation" about the occurrence of a "long sequence of" future events. Laube v. Campbell, 217 F.R.D. 655 (M.D. Ala. 2003).

Parole

     Parole Board's consideration of negative letters from prosecutors did not violate prisoner's due process rights, but further proceedings are ordered on whether prisoner's attorney was not notified of parole hearing. Parole Board's actions of delaying a hearing or assigning the prisoner to the highest parole offense category were not in retaliation for the prisoner's filing of federal litigation, but rather were in response to his lawyer's request and the application of appropriate legal factors respectively. Buhrman v. Wilkinson, 257 F. Supp. 2d 1110 (S.D. Ohio. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prison officials were entitled to amend their response to inmate's lawsuit claiming that correctional employees assaulted him to assert a defense of failure to exhaust available administrative remedies. While they were aware of the defense earlier, the law was not clear that it applied to the circumstances of this lawsuit prior to the U.S. Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), ruling that 42 U.S.C. Sec. 1997e(a)'s requirement of exhaustion of remedies applies to all prisoners "seeking redress for prison circumstances or occurrences." Livingston v. Piskor, 215 F.R.D. 84 (W.D.N.Y. 2003).

     While the failure of prison officials to respond in a timely fashion to a prisoner's grievance might show, in some instances, that the prisoner had sufficiently exhausted available administrative remedies, the plaintiff prisoner failed to present evidence that he was "hampered" in this case by an untimely response, so trial court's dismissal of his lawsuit was appropriate. Sergent v. Norris, No. 02-4142, 330 F.3d 1084 (8th Cir. 2003).

     Inmate who completed only the first step of a multi-step jail grievance procedure failed to satisfy the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before filing his lawsuit seeking damages for an allegedly unreasonable body cavity search. Morgan v. Maricopa County, 259 F. Supp. 2d 985 (D. Ariz. 2003).

Prisoner Assault: By Inmates

     Prison employees were not liable for alleged failure to protect inmate from assaults by prison gang members when they each responded to his complaints about threats and assaults by making reports to supervising officers, conducting investigations, or informing appropriate officials so that the alleged problem could be investigated. Thompson v. Eason, 258 F. Supp. 2d 508 (N.D. Tex. 2003).

Prisoner Assault: By Officers

     Federal appeals court rules that correctional officers' use of force in restraining detainee, which resulted in his death from a compression injury to his neck, was not excessive. The detainee was an "exceptionally large and strong" man and evidence showed that he became violent in his cell and after he was let out of his cell. Further, there was no evidence that the officers intentionally attempted to choke the prisoner. Walters v. County of Charleston, No. 02-1297, 63 Fed. Appx. 116 (4th Cir. 2003). [PDF]

Prisoner Death/Injury

     Prisoner injured from a slip and fall on a wet floor in county jail failed to show that correctional officers actually knew that there was water on the floor, or that the water had remained there for any substantial period of time, as required for him to recover damages for his resulting injuries. Heliodore v. State of New York, 759 N.Y.S.2d 554 (A.D. 3d Dept. 2003). [PDF]

Prisoner Discipline

     Prison disciplinary and grievance committees in Illinois were not required to follow the requirements of the state Administrative Procedure Act, 5 ILCS 100/1-1 et seq. in conducting their hearings and other proceedings, so that alleged failure to do so in connection with revocation of prisoner's good-time credits did not violate his state statutory rights or his right to constitutional due process. Ratliff-El v. Briley, No. 3-01-0727, 789 N.E.2d 781 (Ill. App. 3d Dist. 2003).

     Prisoner's conviction of a disciplinary offense of possessing tobacco in violation of prison rules was supported by some evidence, based on correctional officer's filed report that she observed him with a baggy of what appeared to be tobacco, which was sufficient to uphold the discipline imposed. Disciplinary proceeding provided adequate due process even though another prisoner involved in the same incident was not convicted. Graham v. Vannatta, No. 02-3155, 64 Fed. Appx. 575 (7th Cir. 2003).

     Prisoner who did not argue in his administrative appeals of loss of good time credits that his requests to call witnesses were refused could not raise that argument for the first time in federal habeas corpus proceeding. Morrow v. Vannatta, No. 02-1837, 64 Fed. Appx. 553 (7th Cir. 2003).

Procedural: Discovery

     Prisoner asserting that prison officials interfered with his access to the courts and retaliated against him for filing lawsuits must identify, in response to interrogatories, what lawsuits he is referring to, when his complaint and its exhibits were "devoid" of such information. Davidson v. Goord, 215 F.R.D. 73 (W.D.N.Y. 2003).

Procedural: Evidence

     Plaintiff prisoner who sued correctional employees for alleged failure to protect him from stabbing by another prisoner could not object on appeal to the admission of evidence that he was labeled a "homosexual predator" on correctional records when his own lawyer made a "strategic decision" to allow the jury to learn that in order to lessen any "negative impact the information may have had if left unexplained." Gibbs v. Bolden, No. 02-1560, 65 Fed. Appx. 519 (6th Cir. 2003).

Public Protection

    County sheriff did not act as an agent or employee of the state when he allegedly released a state prisoner unlawfully before he had fully served his sentence, barring a claim for wrongful death against the state under the Governmental Tort Liability Act, T.C.A. Secs. 8-8-201(3) by a mother for the released prisoner's subsequent shooting and killing of her son. Cooper v. State of Tennessee, 106 S.W.2d 688 (Tenn. App. 2003). [PDF]

Religion

     A temporary denial of access to congregational religious services and programs while a prisoner was in segregation on a later expunged disciplinary conviction was not a significant deprivation of his rights sufficient to support a federal civil rights claim. Fiorentino v. Biershbach, No. 02-3158, 64 Fed. Appx. 550 (7th Cir. 2003).

Strip Search: Prisoner

     Inmates stated a valid claim against jail for violation of their Fourth and Fourteenth Amendment rights based on an alleged policy of conducting strip searches upon prisoners who returned to the jail after receiving release orders. The prisoners were returned to the jail after a court ordered their release to await the results of a search for additional criminal charges against them. Bynum v. District of Columbia, 257 F. Supp. 2d 1 (D.D.C. 2002).

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

     Article: "Career Criminals, Security Threat Groups, and Prison Gangs," by David M. Allender and Frank Marcell, 72 FBI Law Enforcement Bulletin, No. 6, pgs. 8-12 (June 2003). Also available in .html format.

     Policies & Directives: The Vermont Department of Corrections has established a page on its website on which it plans to eventually publish on line all of its essential policies and directives. Selected policies and directives on various subjects appear there now in full text accessible through clickable links.

     Publication: Correctional Boot Camps: Lessons Learned From a Decade of Research by Dale J. Parent (National Institute of Justice - NIJ) (July 2003) (Text or PDF) This NIJ Research for Practice presents findings from 10 years of data analyzing whether boot camps are successful in reducing recidivism, prison populations, and operating costs. The report found that although boot camps generally had positive effects on the attitudes and behaviors of inmates during confinement, these changes did not translate into reduced recidivism. Programs were often too brief to exert a lasting effect on inmates released to the community and they lacked, as well, a strong treatment model or sufficient preparation for reentry into the community. Boot camps' efforts to achieve multiple goals contributed to conflicting results. For example, lengthening camps so that more treatment programs could be included, which reduced recidivism, also shortened the discount in time served and undercut lower prison bed costs.

     Statistics: Prisoners in 2002. Reports the number of persons in State and Federal prisons at yearend, compares the increase in the prison population during 2002 with that of the previous year, and gives the prison growth rates since 1995. The report also provides the number of male and female prisoners on December 31, 2002. It includes incarceration rates for the States and the 5 highest and 5 lowest jurisdictions for selected characteristics, such as the growth rate, number of prisoners held, and incarceration rates. Tables present data on prison capacities and the use of local jails and privately operated prisons. Estimates are provided on the number of sentenced prisoners by offense, gender, race, and Hispanic origin. Bureau of Justice Statistics. NCJ 200248 July 27, 2003. Press release | Acrobat file (335K) | ASCII file (40K) Spreadsheets (zip format 46K)

     Website: The U.S. Department of Health and Human Services has created a website containing information about compliance with medical records privacy standards imposed by federal statutes and regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The website contains fact sheets, training materials including PowerPoint presentations, a list of HIPAA-Related links, educational materials, and a list of answers to frequently asked questions about the rules and their applicability.

     Reference:

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