FEATURED CASES

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Even if legal documents relating to pending cases were among the property allegedly destroyed by federal prison officials, prisoner had no viable claim for denial of his right of access to the courts in the absence of a showing that the loss of the materials resulted in specific prejudice to these court cases.

     A federal prisoner was transferred to a special housing unit after a correctional officer discovered 25 books of stamps in his cell, which exceeded the number allowed under prison rules. Prison employees secured the cell, and began inventorying the prisoner's property, placing it into cardboard boxes for transfer. In packing the material, an officer removed items he believed were government property, such as file folders and binders, and also removed paper clips and binder clips.

     A total of 13 boxes were ultimately filled and transferred to the special housing unit. Subsequently, upon release from the special housing unit, the prisoner was presented with ten boxes of material. Prison officials later claimed that the prisoner then declined to inventory his property, while the prisoner claimed that he was not allowed to review the materials.

     The prisoner ultimately claimed that several boxes of material had been retained and not returned to him, while prison officials claimed that two of the boxes contained contraband and were mailed outside of the prison. One additional box was later returned to the prisoner. The prisoner filed suit against the U.S. government and several prison officials, claiming that his property had been mishandled, damaged, and/or destroyed, and that lawsuit-related documents concerning several pending habeas and civil rights actions were among the materials missing or destroyed.

     A federal appeals court upheld the dismissal of a claim for interference with the prisoner's constitutional right of access to the courts. Even if it were true that legal materials were lost or destroyed, the prisoner could not recover on such a claim in the absence of any specific showing as to how the absence of the materials resulted in particular prejudice in the pending court cases.

     The appeals court also upheld judgment on the merits for the defendants on the prisoner's claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. for loss or destruction of his property, finding that the prisoner failed to show that the prison officials actually damaged or destroyed any of his property.

     Ortloff v. United States, #01-2725, 335 F.3d 652 (7th Cir. 2003).

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

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Prisoner who was awarded compensatory damages of $15,000 and punitive damages of $30,000 for alleged excessive force and inadequate medical care must use 25% of his damage award to pay his lawyer attorneys' fees, reducing the amount to be paid by the defendants from $40,654.75 to $29,404.75.

     A Kansas prisoner who claimed that correctional employees violated his civil rights by using excessive force against him and denying him adequate medical care was awarded $15,000 in actual damages and $30,000 in punitive damages. He sought an award of $69,425.50 in attorneys' fees and expenses of $9,934.26 as a "prevailing party" under 42 U.S.C. Sec. 1988.

     The trial court awarded fees and costs, but reduced the amount to $40,654.75 in fees and $1,509.15 in expenses. The court found that an hourly rate of $40, rather than $85 to $95 was proper for work which was done by legal investigators, law clerks, and legal assistants, all non-attorneys, particularly when the plaintiff failed to present any evidence of prevailing rates in the area. The court also reduced particular hours of attorney time, such as duplicate hours billed by two different attorneys for travel and time spent interviewing a witness prior to trial.

     The trial court's decision addressed such issues as the proper and reasonable rates for reimbursement for faxes, express delivery, postal costs, and expenses related to medical records.

     Finally, the court noted that the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(2) requires that a prevailing prisoner in civil rights litigation utilize 25 per cent of the damages awarded to him to pay a portion of the attorneys' fee when the award of attorneys' fee is not greater than 150 percent of the judgment.

     The court therefore ruled that the prisoner was required to pay $11,250 of the attorneys' fee award, reducing the amount of attorneys' fees to be paid by the defendants to $29,404.75.

     Jackson v. Austin, 267 F. Supp. 2d 1059 (D. Kan. 2003).

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

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Correctional rule barring prison employees from non-work-related contact with prisoners, parolees, probationers, and their relatives and visitors did not violate employees' rights.

     A current and a former employee of the Michigan Department of Corrections ("MDOC"), and their union, the United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 6000 ("UAW"), appealed a trial court's summary judgment for correctional officials. The plaintiffs had sued on the grounds that an MDOC rule that barred all MDOC employees from any non-work-related contact with prisoners, parolees, probationers, their relatives and visitors, violated their "clearly established rights to privacy, association, and due process guaranteed by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution."

     Specifically, the plaintiffs sought reinstatement after discharge for violating the rule, expungement from the plaintiffs' disciplinary records of any reference to a violation of the rule, and compensatory and punitive damages. On cross-motions for summary judgment, the district court held that the rule was constitutional and that the defendants enjoyed qualified immunity. A federal appeals court upheld this result.

     The rule at issue originally strictly prohibited "improper or overly familiar conduct with [offenders] or their family members or visitors." Violations of the rule "subjected an employee to disciplinary action up to and including dismissal." A non-exhaustive list of improper actions included "exchange of letters, money or items, . . . cohabitation [except in case of a pre-existing marriage], being at the home of [an offender] for reasons other than an official visit without reporting the visit, . . . giving [offender] [employee's] home telephone number, [and] sexual contact of any nature."

     Furthermore, the rule required reporting of "any contact made with [an offender], or their family member(s), outside the regular performance of an employee's job." The rule was revised to clarify the definitions of family member and visitor and recognize the power of the MDOC to grant individual employees limited exemptions to the rule. To receive such an exemption allowing contact with offenders' visitors or family members, but not offenders themselves, an employee would have to submit a "Offender Contact Exception Request" form and await approval from the Director of the MDOC. From the creation of the exception procedure to July 23, 2001, the appeals court noted, 226 such exceptions had been sought and of these 223 had been granted.

     One of the plaintiffs, then a Wayne County probation officer, was contacted by a man she had dated before becoming an MDOC employee and who was then serving a life sentence without parole in a prison outside her jurisdiction. She exchanged several letters with him. When she realized that she was in violation of the rule, she approached her supervisor about the matter. Four months later, she was terminated for her rule violation. The other plaintiff, while a bookkeeper at a correctional facility in Chippewa County, had befriended a prisoner clerk. Shortly after the prisoner's release, she gave him a ride in her car to a job interview. For this violation of the rule, she also was terminated by the MDOC. Both women had previously been positively evaluated by their supervisors and in neither case is there an allegation that their specific conduct had adversely affected the MDOC's function.

      Rejecting the argument that the rule broadly violates First Amendment rights of association, the court stated:

Almost all conceivable association affected by the Rule and all association alleged to have been discouraged by the Rule do not touch on matters of public concern. Loranger wishes to have contacts with an old friend and her "Little Sister." Akers wishes to assist a probationer whom she befriended. While all of these impulses are entirely understandable, even laudable, they are purely private matters of little or no concern to the community as a whole. The plaintiffs also envision hypothetical situations in which they are prevented from contacting a union official who is also related to an offender. But even such hypothetical situations do not rise to the level of public concern because mere individual labor grievances are not matters of public concern.

Plaintiffs come closest to alleging interference with an association touching on the public concern when asserting their right to contact a political party official who was also the uncle of an offender. If such association is made for a purpose such as campaigning for public office, it would arguably touch on a matter of public concern. However, a separate line of cases has upheld against constitutional challenge governmental restrictions on public employees' partisan political activities: Congress had, and has, the power to prevent [government employees] from holding a party office, working at the polls, and acting as party paymaster for other party workers.

     The MDOC, the court found, has a legitimate interest in preventing fraternization between its employees and offenders and their families. "Given the proven willingness of offenders to break the law, often violently, to reach their ends, on the one hand, and the near-plenary power over offenders entrusted to MDOC employees, on the other, the potential for exploitation of vulnerable offenders by MDOC employees, or vulnerable MDOC employees by offenders, needs no elaboration."

     The inclusion of offenders' visitors and families into the category with whom contact is forbidden, the court reasoned, "may be necessary to prevent the use of third parties to circumvent the ban on direct contact and influence."

     Since the rule was found to be constitutional, the court also found that the individual defendants were entitled to qualified immunity.

     Akers v. McGinnis, #01-18, 2003 U.S. App. Lexis 24155 (6th Cir.).

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

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Prison officials actions in preventing an inmate from corresponding with a former prisoner with whom he had formed a romantic attachment did not violate his rights.

     A prisoner claimed that prison officials violated his First Amendment rights by banning correspondence between him and a former prisoner with whom he had formed a romantic relationship.

     The ban was based on a policy which prohibits correspondence between current and former inmates. The plaintiff prisoner claims that after he was ordered to stop all communications with the former prisoner, his cell was searched and he was disciplined after mail was discovered which it was believed he was attempting to send out to the former prisoner. The prison confiscated eight pieces of mail that had been sent to or from the former prisoner, including one sent to the prisoner's brother with an enclosed letter to be forwarded to the former prisoner.

     A federal appeals court upheld this result, and found no violation of the prisoner's rights.

     The court found that there was a connection between incoming mail and a legitimate interest in insuring the safety of the prisons. Inmate to inmate mail between institutions "can be used to communicate escape plans and to arrange assaults and other violent acts." The policy at issue "does not bar prisoners from all forms of correspondence," but only "communication with a limited class of other people with whom prison officials" are concerned: former prisoners. "There are considerable grounds to determine that allowing unsupervised communication to former prisoners could harm prisoners, guards, and the prison system generally."

     A proposed alternative of the monitoring of inmate correspondence to prevent dangerous communication, the court reasoned, would be burdensome if not impossible, especially given "the real possibility that prisoners develop jargon or code to "prevent detection of their real messages." Because there would be an "inherent risk of missing dangerous communications, both through the use of deceptive language and due to the volume of incoming mail that prison staff would be required to read and review," the court did not feel that this proposal presented a reasonable alternative.

     In summary:

With respect to incoming mail, the Policy Statement is reasonably related to legitimate penological objectives. Incoming communication to inmates by former prisoners presents a serious set of dangers to prison safety and prison administration, and the regulation logically addresses those dangers by permitting correspondence only with approval. Accordingly, we conclude that the regulation does not unconstitutionally abridge Appellant Nasir's First Amendment rights.

    As for communication from a present prisoner to a former prisoner, the court pointed to Overton v. Bazzetta, 123 S. Ct. 2162 (2003), in which the Supreme Court recently considered and upheld a variety of restrictions on visitation imposed by the Michigan Department of Corrections, one of which forbids an inmate from placing a former prisoner on his list of approved visitors, unless that inmate was also a part of the inmate's immediate family. "The risks inherent in visits between a prisoner and a former inmate seem little different from the risks which flow from written communications between a prisoner and a former inmate." The policy was found to "further an important and substantial government interest unrelated to the suppression of expression and the limitation it imposes on First Amendment freedoms is no greater than necessary or essential to the protection of the particular governmental interest involved."

     Nasir v. Morgan, #01-2519 , 2003 U.S. App. Lexis 24013 (3rd Cir.)

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Prisoner's lawsuit was improperly dismissed for failure to exhaust available administrative remedies when he was actually unable to pursue a grievance, allegedly because prison officials refused to provide him with the necessary grievance forms.

     A Pennsylvania prisoner claimed that a correctional officer "planted" contraband near his locker in retaliation for his having previously filed a number of complaints against the officer. He also contended that he was subsequently denied a fair disciplinary hearing on the charge of possession of contraband, and that the cell he was placed in for disciplinary confinement was "unfit" for human habitation because of conditions there. His complaint claimed that the cell, in which he was confined for four days, was smeared with feces and infested with flies, and that he could not eat, drink, or sleep there.

     The trial court dismissed the prisoner's lawsuit immediately for his alleged failure to exhaust his available administrative remedies on his conditions-of-confinement claim, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a).

     A federal appeals court reversed and remanded, finding that the prisoner "lacked available administrative remedies" which he could exhaust.

     The prisoner had responded to the trial court's finding that he had not alleged that he filed any grievances regarding the conditions of his cell by arguing that he could not do so because prison officials denied him the necessary grievance forms, and, as a result, he lacked "available" administrative remedies. The appeals court noted that the trial court had not considered the prisoner's allegation that he was denied grievance forms.

     Further, the appeals court reasoned, even absent the claim that the prisoner was denied grievance forms, the trial court acted improperly in the procedure it followed. The failure to exhaust administrative remedies, the appeals court stated, "is an affirmative defense for the defendant to plead," and under 42 U.S.C. Sec. 1997e(c), failure to exhaust is not a permissible basis for the court to dismiss the case on its own. In this case, the defendants were not even served when the court dismissed the case, and therefore had not pled failure to exhaust by the prisoner or any other defense. Accordingly, even if the prisoner had failed to exhaust his administrative remedies, which would be excused if there were a failure to provide grievance forms, the trial judge was "premature in dismissing his complaint."

     The appeals court also found that the trial court had improperly dismissed the prisoner's retaliation claim as frivolous, and noted that the prisoner had exhausted available administrative remedies on this claim. It additionally ordered that, on remand, the trial court should determine whether the prisoner was subjected to "atypical and significant hardship" implicating a protected liberty interest that triggers due process rights at his disciplinary hearing, and, if so, whether those rights were violated.

     Mitchell v. Horn, #98-1932, 318 F.3d 523 (3rd Cir. 2003).

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Privately owned and run correctional facility and its corrections officer acted "under color of state law" for purposes of a federal civil rights claim. Federal appeals court reinstates lawsuit by prisoner claiming that officer subjected him to cruel and unusual punishment by slamming a door on his fingers, severing two fingertips.

    A prisoner in a Texas correctional facility owned and operated by a private prison-management corporation sued the company and one of its corrections officers for violation of his federal civil rights, claiming that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment when the officer "maliciously slammed" a door on his fingers, severing two fingertips. The plaintiff prisoner also claimed that the officer displayed deliberate indifference to his resulting serious medical condition, and that the company improperly trained and supervised the officer.

     The trial court, acting on its own motion, dismissed the lawsuit on the basis that the officer was an employee of the private company rather than an employee of the state of Texas, and therefore was not acting "under color of state law," as required for a federal civil rights claim.

     Reversing, a federal appeals court noted that acting "under color of state law" does not require that the defendant be an officer of the state. A private entity or person acts under color of state law when "that entity performs a function which is traditionally the exclusive province of the state."

     The appeals court held that "private prison-management corporations and their employees may be sued under § 1983 by a prisoner who has suffered a constitutional injury. Clearly, confinement of wrongdoers--though sometimes delegated to private entities--is a fundamentally governmental function. These corporations and their employees are therefore subject to limitations imposed by the Eighth Amendment."

     Rosborough v. Management & Training Corporation, #03-40493, 2003 U.S. App. Lexis 22864 (5th Cir.).

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Federal officers responsible for convicted drug felon in witness protection program were not liable for his alleged sexual abuse of a female at a residential juvenile facility where they helped him obtain employment, or for his alleged continued sexual abuse of her after he became licensed as a foster parent and obtained custody of her. Nothing in his past criminal record made it foreseeable that he would engage in such conduct, since he had no prior crimes of violence or sexual abuse.

     A convicted felon who was a participant in a federal witness security program was given a new identity by federal officers and placed in Boise, Idaho after serving four years in a federal prison for aggravated trafficking in cocaine. He was supervised by the United States Marshals Service and the United States Probation Office.

     The felon obtained employment at a juvenile residential facility as a "behavior technician," or counselor and he sought assistance from the federal officers in addressing the background check and fingerprinting required by the facility as a licensed group home under the jurisdiction of the Idaho Department of Health and Welfare.

     One of the officers met with various officials of that Department, informing them that the felon had a criminal history, was in the witness protection program, and could not be fingerprinted without breaching security. They were provided with his criminal history but not his actual name, and were told that the drug trafficking charge had been "aggravated" based on the quantity of drugs involved, and not on the use of a weapon or any violence (although part of the enhancement of the felon's sentence had been the presence of guns in his apartment at the time of his arrest).

     The Department was not informed, however, that the drug conspiracy in which the felon had been involved was one of the top ten drug cartels in the U.S., nor that there had been deaths of witnesses in the conspiracy (although the felon was not accused in these deaths).

     The felon allegedly then engaged in sexual abuse of a minor female who was a resident in the facility in which he was allowed to work. After leaving employment at the facility, he became licensed as a foster parent and the Idaho Department of Health and Welfare then removed the minor female from the facility and placed her in the felon's custody as his foster child. He allegedly then continued to sexually abuse her.

     The juvenile female sued the United States government and the federal officers, claiming that the officers acted negligently and that it was only through their assistance that her abuser had been able to secure a job as a behavior therapist at the juvenile treatment center where she resided, and later to obtain a license to serve as her foster parent.

     A federal appeals court upheld summary judgment for the defendants.

     The court found that it was not foreseeable that the felon would engage in sexual abuse of a minor, since his record contained no prior crimes of violence or sexual abuse. It also held that the "discretionary function" exception and the "misrepresentation" exception to the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) barred liability for the U.S. government in the lawsuit. The supervision of a relocated witness is a "discretionary function," the court found, and the misrepresentation exception shields government employees from liability for failure to communicate information, whether negligently or intentionally. Accordingly, the officers' alleged failure to communicate certain information to the Idaho Department of Health and Welfare could not be the basis of liability.

     Lawrence v. United States, #01-36142, 340 F.3d 952 (9th Cir. 2003).

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Wiccan prisoner's lawsuit against federal Bureau of Prisons seeking to cast spells and curses in prison should not have been dismissed, federal appeals court rules. Further proceedings ordered to determine whether a prohibition on casting spells would "substantially burden" the prisoner's exercise of his religion, and whether the least restrictive means was used to accomplish the government's alleged compelling interest in doing so.

      A federal prisoner who is a believer in "Wicca," a "polytheistic faith based on beliefs that prevailed in both the Old World and the New World before Christianity" wanted to follow the religion's practices, but was allegedly prevented from doing so by the Bureau of Prisons, which forbids "casting of spells/curses". See Policy Statement 5360.08. [PDF] The prisoner filed a lawsuit seeking an injunction that would require the prison to permit him to conduct activities appropriate to his faith. He relied principally on the Religious Freedom Restoration Act (RFRA), which provides:

(a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-1.

     The trial court dismissed the suit, stating that Boerne v. Flores, 521 U.S. 507 (1997), had held the RFRA to be unconstitutional.

     Reversing, a federal appeals court noted that this was "not a correct statement of Boerne's holding."

The Court did not say that the RFRA violates any substantive limitation. It held, rather, that the RFRA could not be deemed an exercise of the power granted by § 5 of the fourteenth amendment to "enforce" that amendment's other provisions. According to Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990), the first amendment, applied to the states by § 1 of the fourteenth, does not require government to accommodate religious beliefs adversely affected by laws and practices that are neutral with respect to matters of faith. Boerne declined to overrule Smith; it followed that the RFRA, which requires accommodation rather than neutrality, does not "enforce" the first amendment. The parties to Boerne did not offer any other source of authority to apply the RFRA to state and local governments. But legislation affecting the internal operations of the national government does not depend on § 5; it rests securely on Art. I §8 cl. 18, which authorizes Congress "to make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This permits Congress to determine how the national government will conduct its own affairs. No one doubts that the Bureau of Prisons itself could choose to accommodate religious practices. By and large, what the Executive Branch may elect, the Legislative Branch may require. (It would not be tenable to argue that prison management is a subject constitutionally committed to the President to the exclusion of the Congress.)

     The appeals court therefore held that the RFRA is still applicable to activities of the federal government, such as its prisons.

     The court also noted that the Defendants had conceded that Wicca is a religion for purposes of the statute, and rejected the Defendants' argument that it need not order further proceedings to evaluate the prisoner's claims or his religious practices. The Defendants argued that it was "self-evident why PS 5360.08 states that casting spells is never authorized. If an inmate were to cast a spell on another inmate, for example, and the other inmate were to find out about it, a fight or other serious disruption could easily occur."

     The appeals court reasoned that this was "not as self-evident" as the Bureau of Prisons may believe, and indeed stated that relying on other inmates' reactions to a religious practice "is a form of hecklers' veto."

     Under the statute, a federal governmental body that imposes "substantial" burdens on a religious practice is required to "demonstrate, and not just assert," that the rule at issue is the least restrictive means of achieving a compelling governmental interest.

     We cannot tell whether a limit on casting spells would "substantially" burden O'Bryan's religious activities, nor can we tell on this empty record whether "spells" cast by Wiccans would cause problems. Wicca follows the principle that adherents must not harm others, which implies that they cast no curses or hex-like incantations "on" others that might frighten or offend them. Thus it is premature to apply the RFRA's standard to O'Bryan's claims; that is a task for the district court in the first instance, and on a suitable record.

     A concurrence by one judge on the three-judge panel noted that prisons contain, according to a recent report, more persons who are mentally ill "than the total population of mental institutions in the United States." He suggested that "the effect of being forced to live with those who purport to deal in casting spells and calling down curses on such an unstable population might be subject for real consideration in formulating a prison regulation" on the issues raised in the case.

     O'Bryan v. Bureau of Prisons, #02-4012, 2003 U.S. App. Lexis 22958 (7th Cir.).

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

     Editor's Note: While RFRA does not, at this time, apply to state and local prisons and jails, the exact same legal standard of the imposition of substantial burdens on prisoners in such facilities is currently imposed by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc–2000cc-5. Click here for a discussion of recent decisions on the constitutionality of that statute. Also see the article which directly follows this one.

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Federal appeals court overturns trial court decision that federal statute imposing strict rule against imposing a substantial burden on prisoners' religious practices was an unconstitutional "establishment of religion" in case asserting prisoner's claim to a religious entitlement to kosher meals.

      A prisoner in Virginia was denied his requests for kosher meals that he claimed his religious beliefs required. He sued the state and officials of the Virginia Department of Corrections, alleging among other claims a violation of section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. Sec. 2000cc-2000cc-5.

     The trial court ruled that this statute had an impermissible effect of "advancing religion," and was therefore an improper "Establishment of Religion." A federal appeals court has reversed, holding that "Congress can accommodate religion in section 3 of RLUIPA without violating the Establishment Clause."

     The plaintiff prisoner claimed to be a member of the Church of God and Saints of Christ, a congregation founded in 1896 and headquartered at Temple Beth El in Suffolk, Virginia. Church members are commonly known as Hebrew Israelites, and they claim to be "followers of the anointed God" who honor but do not worship Jesus Christ. Most importantly for purposes of the case, this church requires its members to abide by the dietary laws laid out in the Hebrew Scriptures.

     After the prisoner converted to this religion, after "affiliation with a wide range of other religious groups during his incarceration," he made requests for a kosher diet. These requests were approved by local prison officials, but denied by the Department of Corrections, because it determined that the prisoner already had adequate alternatives from the regular, vegetarian, and no pork daily menus; because it doubted the sincerity of Madison's religious beliefs; and because it considered the prisoner's history of disciplinary problems.

     The prisoner then filed suit under RLUIPA, which states that "no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person - (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest."

     The appeals court argued, in rejecting the "establishment of religion" argument that the Establishment Clause does not require the government to be oblivious to the burdens that state action may impose upon religious practice and belief. An "alleviation of government burdens on prisoners' religious exercise is precisely the legitimate secular purpose" that RLUIPA seeks to advance, the court reasoned.

     The statute does not, the court stated, advance a particular religious viewpoint, or even "religion in general," but rather facilities "opportunities for inmates to engage in the free exercise of religion." This "secular goal" of exempting religious exercise "from regulatory burdens in a neutral fashion, as distinguished from advancing religion in any sense, is indeed permissible under the Establishment Clause." The mere fact that Congress did not also "consider whether other rights" besides the practice of religion are "similarly threatened," the court said, does not render what it did in the area of religious freedom impermissible.

Indeed, the context in which Congress was acting made it sensible for Congress to lift only state-imposed burdens on free exercise through RLUIPA. It was reasonable for Congress to seek to reduce the burdens on religious exercise for prisoners without simultaneously enhancing, say, an inmate's First Amendment rights to access pornography. Free exercise and other First Amendment rights may be equally burdened by prison regulations, but the Constitution itself provides religious exercise with special safeguards. And no provision of the Constitution even suggests that Congress cannot single out fundamental rights for additional protection. To attempt to read a requirement of symmetry of protection for fundamental liberties would not only conflict with all binding precedent, but it would also place prison administrators and other public officials in the untenable position of calibrating burdens and remedies with the specter of judicial second-guessing at every turn.

     Madison v. Riter, No. 03-6362/3, 2003 U.S. App. Lexis (4th Cir.).

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

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Update: Federal appeals court upholds ruling that drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law.

     A former inmate of an Oklahoma correctional facility claimed that while she was on work release at a state drivers' license examination center, an examiner forced her to have sex with him on numerous occasions. She sought damages for violation of her federal civil rights and specifically for cruel and unusual punishment in violation of the Eighth Amendment.

     Rejecting the defendant's motion for summary judgment on the basis of qualified immunity, the trial court found that it violated clearly established law for him to allegedly force her to have non-consensual sex with him in exchange for increased privileges, including expanded use of the telephone, visitors, shopping, and family visits. He allegedly transported her to the homes of friends and family and to go shopping, in violation of work release rules. He allegedly threatened that if she did not have sexual intercourse with him and perform fellatio on him, that she would lose her special privileges and be removed from the work release program. Smith v. Cochran, 216 F. Supp. 2d 1286 (N.D. Okla. 2002).

     A federal appeals court upheld this result, and also stated that, since the state Department of Corrections delegated its supervisory authority over work release inmates to those supervising prisoners in employment circumstances, the defendant clearly both acted under color of state law and had a duty to refrain from using excessive force against the prisoner. In this case, the defendant acted as the "functional equivalent" of a prison guard, in relationship to his authority over the prisoner.

     The right, under the Eighth Amendment, to be secure in one's "bodily integrity," the court stated, includes the right to be free from sexual abuse, such as that alleged by the plaintiff.

     Smith v. Cochran, #01-5085, 339 F.3d 1205 (10th Cir. 2003).

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

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Civilly committed sexual offenders can be placed in "therapeutic seclusion" either for purposes of therapy or to protect the offenders or others, but not as a means of inflicting extra punishment on them for their past sex crimes. Employees of state treatment facility were not entitled to qualified immunity on claims that they kept detainees in "seclusion" far longer than needed for reasons of therapy or security.

     Civilly committed sex offenders in a state treatment facility in Wisconsin sued facility employees, claiming that the routine use of "therapeutic seclusion" as practiced there violated their right to due process of law. The trial court denied summary judgment to some defendant employees who claimed a qualified immunity defense, and a federal appeals court has upheld that result. The plaintiffs were sex offenders kept in state custody past the ends of their prison sentences because they were civilly committed for an indefinite duration as "sexually violent persons" under state law.

     Therapeutic seclusion was imposed on the basis of misconduct. "Therapeutic seclusion" meant placement in a cell containing only a concrete platform (which serves as a bed), a toilet, and a sink. Detainees in such seclusion are often deprived of clothing and other amenities, and were allowed out, in shackles, one hour a day on weekdays and not at all on weekends, when facility staffing levels were lower. When staff members thought that secluded detainees might be ready for a return to the general population, they were allowed out two hours a day, but still kept in restraints, according to the court. One of the plaintiffs was held in seclusion for 82 days in a row, and for a total of more than 100 days in one year, and all of the plaintiffs had been held in seclusion for at least 20 consecutive days.

     The plaintiffs presented expert testimony affidavits from two psychiatrists who stated that the duration over which seclusion was being used was "medically inappropriate and universally condemned by the psychiatric profession as a therapeutic tool." One of the affidavits went so far as to say that any contrary view "could not represent an honest, professional judgment." The defendant officials, however, offered contrary affidavits from three of their own expert psychiatrists, establishing a factual dispute which the trial court found precluded summary judgment.

     The appeals court noted that detainees such as the plaintiffs were entitled to the exercise of professional judgment as to their needs, as a matter of due process. At the same time, the court stated, just as a pretrial detainee may be put in isolation and punished for violating institutional rules, provided that there is notice and an opportunity for a hearing, "so a civil detainee may be isolated to protect other detainees from aggression."

Institutions may employ both incapacitation and deterrence to reduce violence within their walls--though if mental limitations render a detainee insensible to punishment, the only appropriate goal would be incapacitation. Either way, if at trial defendants can establish that their use of seclusion was justified on security grounds, they will prevail without regard to the question whether extended seclusion is justified as a treatment.

     This did not, however, furnish the defendants with a defense of immunity since the evidence was in conflict as to whether a reasonable person could have thought the use of seclusion in this manner was appropriate from a security perspective, the court concluded. If the evidence presented is examined in the light most favorable to the plaintiffs, it found, the record showed that the defendants kept the plaintiffs in seclusion for periods far exceeding what could be justified by considerations of either security or treatment."

     While the plaintiffs' experts might be wrong, "it will take a trial to sort matters out." Indeed, "prisons may attract those members of the profession most disposed to stern measures, which makes some outside supervision vital." If a trier of fact concludes that the defendants' use of seclusion was designed to inflict extra punishment for the plaintiffs' sex crimes, "rather than to treat their condition or protect others from new violence, then the plaintiffs are entitled to damages."

     West v. Schwebke, No. 02-4298, 333 F.3d 745 (7th Cir. 2003).

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Requirement that prisoner participate in stress and anger management classes as a condition of early release, enacted after prisoner was sentenced, was not an improper retroactive enhancement of his punishment.

     A prisoner in the state of Washington, convicted of first-degree murder and serving a sentence of 320 months imprisonment, filed suit in state court, objecting to a new Department of Corrections policy in which inmates are screened to determine whether they would benefit from stress and anger management classes. The plaintiff prisoner was signed up for these classes on three occasions, but refused to attend and was sanctioned by the loss of earned release credits and privileges.

     He argued that requiring him to complete these classes and sanctioning him for refusing to do so violated the "ex post facto" clauses of the Washington state and U.S. constitutions. The policy was adopted by the Department under statutory authority which was new since the plaintiff was incarcerated. He asserted that the effect was to retroactively enhance his punishment, making it more onerous.

     The Supreme Court of the State of Washington rejected these claims. Ex post facto prohibitions in the constitutions, the court noted, forbid laws which punish as a crime an act previously committed, which was innocent when done, or which make more burdensome the punishment for a crime, after its commission, or which deprives someone charged with a crime of any defense available according to the law at the time when the act was committed.

     In this case, the court found, the prisoner was previously required to "participate in programming" in order to get earned time, since the beginning of his incarceration. The fact that the programming offered changed did not constitute an "added condition." Further, requiring the prisoner to take part in stress and anger management classes did not increase his punishment, since the intent was not to "punish" him but to aid in his rehabilitation. Such classes were designed to help offenders "cope in their environment, both in prison and post-confinement."

     In Re Forbis, No. 73381-3, 74 P.3d 1189 (Wash. 2003).

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Access to Courts/Legal Info

     Prisoner's claim that he was not aware of his legal rights and did not have access to an adequate law library, even if true, did not have the effect under Tennessee state law of extending the statute of limitations on his claims arising out of his arrest. Claims against state employees were time barred by the statute. Simmons v. Gath Baptist Church, 109 S.W.3d 370 (Tenn. App. 2003). [PDF]

Defenses: Eleventh Amendment Immunity

    Iowa State Tort Claims Act, I.C.A. Sec. 669.4, providing a limited waiver of sovereign immunity to lawsuits brought in state courts, did not expressly waive Eleventh Amendment immunity of the state and state agencies for purposes of detainee's suit against the state mental hospital, among other defendants, in federal court. Tinius v. Carroll County Sheriff Department, 255 F. Supp. 2d 971 (N.D. Iowa 2003).

     Eleventh Amendment immunity barred prisoner's claims against state probation board and prisons, as Pennsylvania did not waive its immunity for purposes of federal civil rights lawsuits, Congress did not abrogate state immunity in general, and plaintiff did not seek relief against state officers in their individual capacities. Berthesi v. Pennsylvania Board of Probation, 246 F. Supp. 2d 434 (E.D. Pa. 2003).

Defenses: Notice of Claim

     New York prisoner was entitled to file a late claim against the state for the alleged loss of his personal property during his transfer to a new correctional facility when his earlier timely, although improperly served, claim gave the state notice that he intended to pursue litigation, so that no prejudice to the state would occur. Wright v. State of New York, 760 N.Y.S.2d 634 (Ct. Cl. 2003).

     While Florida law required a prisoner asserting a claim against the state or one of its agencies to serve process on the state Department of Insurance, a non-party to the lawsuit, there was no time period within which to do so, and therefore it was not a precondition to maintaining a lawsuit against the state Department of Corrections for alleged malicious prosecution of the plaintiff prisoner on disciplinary charges of unlawful possession of wine. Cole v. Department of Corrections, No. 4D01-3462, 840 So. 2d 398 (Fla. App. 4th Dist. 2003). [PDF]

Defenses: Service of Summons

     When estate of inmate who died in county jail began the process of attempting service of process in a state court lawsuit against the sheriff and his deputies before the case was removed by the sheriff to federal court, the plaintiff had the option of completing service under state procedures or under federal rules. Court finds that one defendant waived or forfeited his "failure-to-serve" defense by not moving to dismiss the claims against him for over two years after the case was removed to federal court. Schmude v. Sheahan, 214 F.R.D. 487 (N.D. Ill. 2003).

First Amendment

     Trial court improperly granted defendant correctional officials' motion for summary judgment on prisoner's claim that they retaliated against him for having successfully settled a prior lawsuit against correctional officers by transferring him to a maximum security facility and imposing discipline upon him. There was a genuine issue of material fact as to whether such retaliation was a "substantial factor" in the actions taken. Bennett v. Goord, No. 01-0184, 343 F.3d 133 (2nd Cir. 2003).

Forfeiture

     Prison "mailbox" rule applied in determining whether a prisoner submitted a timely contest of the administrative forfeiture of his van by the FBI. The prisoner's papers contesting the forfeiture were filed when he delivered them to prison officials, not when it was received by the FBI. Appeals court reverses summary judgment in favor of the government in prisoner's challenge to the forfeiture. Longenette v. Krusing, No. 00-3690, 322 F.3d 758 (3rd Cir. 2003). [PDF]

Governmental Liability: Policy/Custom

     Plaintiff failed to show that county had a policy of deliberate indifference in training correctional officers in the handling of mentally ill detainees, or that any such inadequacy in county's training caused detainee's death. No liability for county for the death of detainee from heart failure while incarcerated. Carey v. Helton, No. 01-5623, 70 Fed. Appx. 291 (6th Cir. 2003).

Home Detention/Home Release

     Trial court's order prohibiting placing probationer on a home monitoring system improperly interfered with county sheriff's statutory authority under state law to regulate the manner in which she served jail time. State of Wisconsin v. Schell, No. 02-1394-CR, 661 N.W.2d 503 (Wis. App. 2003).

Inmate Funds

     Prisoner's agreement to forfeit drug proceeds as part of a plea bargain included $19,000 which had been held by his brother, and which his brother turned over to the state. State officials did not violate prisoner's civil rights in obtaining these funds, and prisoner had no standing to challenge the forfeiture of the money. Libretti v. Wyoming Attorney General, No. 02-8018, 60 Fed. Appx. 194 (10th Cir. 2003).

Medical Care

     Estate of woman who allegedly suffered a heart attack and died after being denied her daily dose of methadone for four days after she was jailed for driving without a valid license reaches $2.5 million settlement of federal civil rights lawsuit against Florida county. The defendant county had argued that the death arose from reasons unrelated to withdrawal from methadone. Estate of Johnson v. Orange County, No. 6:03-CV-655-ORL-18-KRS (M.D. Fla. Nov. 10 2003), reported in The National Law Journal, p. 26 (December 1, 2003).

     A mere difference of opinion as to what the appropriate treatment was for the plaintiff prisoner's back condition was insufficient to establish a claim for violation of his constitutional rights through deliberate indifference to his serious medical needs. Gray v. McCaughtry, No. 02-2436, 72 Fed. Appx. 434 (7th Cir. 2003).

Prison Conditions: General

     Prison officials' actions in depriving prisoner of all clothing, toiletries and property in his cell except for one pair of undershorts after he engaged in at least sixteen disciplinary violations, many involving throwing of drinks, soup, spit, urine or feces at officers near his cell, were not a violation of his Eighth Amendment rights, but were "proportionally targeted" at his misconduct. Additionally, any alleged deprivation of toilet paper was not deliberately indifferent, but negligent and inadvertent, and at worst, he was allowed one roll of such paper for a nine-day period. Trammell v. Keane, No. 01-0025, 338 F.3d 155 (2nd Cir. 2003). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     Pennsylvania prisoner failed to exhaust available administrative remedies before pursuing federal civil rights claim asserting that correctional officers failed to protect him against attack by another inmate when he did not file administrative grievances within the 15-day time period established by the state's inmate grievance system. Casey v. Smith, No. 02-4245, 71 Fed. Appx. 916 (3rd Cir. 2003).[PDF]

     Prisoner's failure to exhaust available administrative remedies for the alleged confiscation of his property required the dismissal without prejudice of his federal civil rights claim alleging that the seizure of his sexually explicit materials violated his First Amendment rights. McMillian v. Litscher, No. 99-3029, 72 Fed. Appx. 438 (7th Cir. 2003).

     When defendant prison officials suggested, but did not affirmatively plead as a defense, the prisoner's failure to exhaust available administrative remedies, their dismissal motion would be converted into a motion for summary judgment by the court, with an order providing for further briefing or the production of evidence, and the plaintiff prisoner given an opportunity to respond. Torrence v. Pesanti, 239 F. Supp. 2d 230 (D. Conn. 2003).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner's federal civil rights lawsuit against prison officials claiming that excessive force was used against him could not be brought by him as a pauper because of the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) even if the dismissals of his earlier cases as frivolous or failing to state a claim took place before the effective date of the statute, when at least six previous lawsuits brought by the prisoner were dismissed in this manner, and he failed to claim that he was in any imminent danger of serious physical harm when he filed the latest lawsuit. Wallace v. Franklin, No. 02-4308, 66 Fed. Appx. 546 (6th Cir. 2003).

Prison Litigation Reform Act: Injunctions

     Provision of the Prison Litigation Reform Act imposing a 90-day limit for preliminary injunctions, 18 U.S.C. Sec. 2626, applied in the absence of detailed findings and the entry of a final order, even if trial court's order enjoining Alabama correctional officials from continuing to operate a facility in an unconstitutionally crowded and unsafe manner did not detail what they were to do. Accordingly, the injunction expired after 90-days and the court no longer could consider plans submitted by the defendant officials to carry out the mandate of the preliminary injunction. The plaintiffs, however, were free to seek another preliminary injunction. Laure v. Campbell, 255 F. Supp. 2d 1301 (M.D. Ala. 2003).

Prisoner Assault: By Officers

     Correctional officers could not be held liable for deliberate indifference to assault on prisoner by fellow officer, when there was no prior indication that the attack would take place and when they immediately intervened to remove the alleged attacker from the prisoner. Carico v. Benton, Ireland, and Stovall, #02-1340, 68 Fed. Appx. 632 (6th Cir. 2003).

Prisoner Classification

     Federal Bureau of Prisons' policy deciding that it lacked discretion to place low-risk federal prisoners in community corrections centers was based on a "clearly erroneous" interpretation of a controlling federal statute, 18 U.S.C. Sec. 3621, and the bureau's conclusion was therefore not entitled to deference. Court orders bureau to reconsider the designation of place of imprisonment for each of the plaintiff prisoners. Estes v. Federal Bureau of Prisons, 273 F. Supp. 2d 1301 (S.D. Ala. 2003).

Prisoner Discipline

     Prison disciplinary hearing finding inmate guilty of violating rules concerning correspondence procedures and providing unauthorized legal assistance to other inmates was not supported by substantial evidence in the absence of the introduction of a package (and its contents) allegedly sent to him by another prisoner. Collins v. Pearlman, 756 N.Y.S.2d 582 (A.D. 2d Dept. 2003).

     Claim that prisoner was punished "more harshly" than other inmates who also were involved in the same scheme involving sending funds outside the prison to a person who then forwarded payments back to another prisoner did not show a violation of his right to equal protection of law. The plaintiff prisoner did not present any evidence about the disciplinary histories of the other inmates involved in the scheme or the particular circumstances of their involvement in the immediate misconduct, so it could not be established that officials acted irrationally in imposing greater punishment on the plaintiff. Hill v. Davis, No. 02-2640, 58 Fed. Appx. 207 (7th Cir. 2002).

Procedural: Class Actions

     Trial court's denial of state officials' motion seeking to exclude female inmates from the class in a class action lawsuit brought by male state inmates alleging inadequate medical care in violation of disability discrimination statutes was not a grant of injunctive relief, and therefore was not subject to immediate appeal under 28 U.S.C. Sec. 1292(a)(1). Plata v. Davis, #02-16161, 329 F.3d 1101 (9th Cir. 2003). [PDF]

Sexual Assault

     Correctional lieutenant who had sexual contact with female prisoner in federal facility held to have used "force" justifying the imposition of an enhanced criminal sentence despite not using a weapon, threatening or physically harming the victim, or inflicting pain on her. Court rules that the combination of the size disparity between the defendant lieutenant and the prisoner, the prisoner's circumstances in solitary confinement in a tiny cell with no other persons nearby, and being locked in her cell between his alleged attacks and repeatedly made to submit to him constituted "force" which placed her in fear. United States v. Denjen, 258 F. Supp. 2d 194 (E.D. N.Y. 2003).

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

     Community Corrections: Article: "Community Corrections and Community Policing," by David Leitenberger, Pete Semenyna, and Jeffrey B. Spelman, 72 FBI Law Enforcement Bulletin No. 11, pgs. 20-23. [PDF] "A partnership between corrections and police officers can greatly enhance community supervision efforts."

     Statistics:  "Jails in Indian Country, 2002." Bureau of Justice Statistics. Presents findings from the 2002 Survey of Jails in Indian Country, an enumeration of all 70 confinement facilities, detention centers, jails, and other facilities operated by tribal authorities or the Bureau of Indian Affairs. BJS conducted the survey on June 28, 2002, as part of the Annual Survey of Jails. The report presents data for each facility, including rated capacity, number of adults and juveniles held, number of persons under community supervision, number of persons confined on the last week day of each month since July 2001, average daily population during June, peak population during June, number of admissions in the last 30 days, inmate characteristics (such as conviction status, DWI/DUI offense, and seriousness of offense), number of inmate deaths, facility crowding, and jail staffing. Highlights include the following: At midyear 2002 jails in Indian country supervised 2,080 persons. Since 1998, the number of inmates in custody at midyear has increased by 26%, and rated capacity has increased 12%. Thirty-five percent of inmates were being held for a violent offense; 15% for domestic violence offense. 11/03 NCJ 198997 Acrobat file (278K) | ASCII file (21K) | Spreadsheets (zip format 63K)

     Statistics: "Capital Punishment 2002." Bureau of Justice Statistics. Presents characteristics of persons under sentence of death on December 31, 2002, and of persons executed in 2002. Preliminary data on executions by States during 2003 are included, and the report summarizes the movement of prisoners into and out of death sentence status during 2002. Numerical tables present data on offenders' sex, race, Hispanic origin, education, marital status, age at time of arrest for capital offense, legal status at time of capital offense, methods of execution, trends, and time between imposition of death sentence and execution. Historical tables present executions since 1930 and sentencing since 1973. Highlights include the following: Of the 6,912 people under sentence of death between 1977 and 2002, 12% were executed, 4% died by causes other than execution, and 33% received other dispositions. Fifty-one women were under sentence of death in 2002, up from 36 in 1992. After declining for two years, the number of executions increased to 71 during 2002. 11/03 NCJ 201848 Press release | Acrobat file (335K) | ASCII file (25K) Spreadsheets (zip format 39K)

     Statistics: "Recidivism of Sex Offenders Released from Prison in 1994." Bureau of Justice Statistics. Presents, for the first time, data on the re-arrest, reconviction, and re-imprisonment of 9,691 male sex offenders, including 4,295 child molesters, who were tracked for 3 years after their release from prisons in 15 States in 1994. The 9,691 are two-thirds of all the male sex offenders released from prisons in the United States in 1994. The study represents the largest follow-up ever conducted of convicted sex offenders following discharge from prison and provides the most comprehensive assessment of their behavior after release. Highlights include the following: Within 3 years following their release, 5.3% of sex offenders (men who had committed rape or sexual assault) were re-arrested for another sex crime. On average the 9,691 sex offenders served 3 1/2 years of their 8-year sentence. Compared to non-sex offenders released from State prisons, released sex offenders were 4 times more likely to be re-arrested for a sex crime. The 9,691 released sex offenders included 4,295 men who were in prison for child molesting.11/03 NCJ 198281 Press release | Acrobat file (521K) | ASCII file (107K) Spreadsheets (zip format 76K)

     Reference:

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

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