FEATURED CASES

WITH LINKS TO THE OPINIONS

Federal trial court was wrong to dismiss prisoner's civil rights lawsuit claiming that the confiscation of his legal papers resulted in the loss of "several lawsuits." While the manner in which the prisoner presented the claims may have been "artless," the complaint alleged facts which, if true, would be sufficient to require relief.

     An Illinois prisoner acting as his own attorney filed a federal civil rights lawsuit claiming that prison officials confiscated his legal papers, including a brief in the Supreme Court of Illinois, causing him to lose a number of lawsuits, as well as a number of other claims, and that he was punished for complaining by being placed in solitary confinement and then in a higher security prison.

     The trial judge dismissed the lawsuit on the ground that the complaint failed to state a claim, noting that the Supreme Court of Illinois later overruled the cases on which the plaintiff relied in the brief that he was prevented from filing, and that the complaint did not contain a "chronology of events from which retaliation may plausibly be inferred."

     The appeals court agreed that if a complaint pleads facts that show that the plaintiff does not have a claim, "the complaint should be dismissed without further ado," and that the judge would have been right to dismiss the charge about the confiscation of legal papers if all the plaintiff had been complaining about was that his brief in that one state supreme court proceeding had been confiscated, because the complaint itself states that the cases on which the brief relied were later overruled.

If your legal papers are confiscated in a doomed proceeding, there is no harm and no basis for a constitutional suit. This is true even though there is always a chance that the court would have ruled erroneously in your favor.

     In this case, however, the prisoner claimed that he had lost "several lawsuits" because of the defendants' confiscating his legal papers, "not just one." The trial judge, the appeals court commented, apparently believed that the failure of the complaint to identify those other lawsuits provided "insufficient detail to make his suit plausible."

     The appeals court found, however, that this is an approach that the Federal Rules of Civil Procedure and the decisions of the courts "forbid." All that the rules require, the court noted, under Fed. R. Civ. P. 9(b) is that a complaint state the plaintiff's legal claim, such as denial of access to the courts in violation of the due process clause, in a manner sufficient to provide notice of the claim.

     If the defendant needs more information, the appeals court stated, he can serve an interrogatory on the plaintiff.

The complaint in this case, though artless (the plaintiff is not a lawyer and did not have the assistance of one in drafting the complaint), provides adequate notice of legal claims that, if factually supported, would entitle him to relief under 42 U.S.C. Sec. 1983. It was therefore error to dismiss the complaint.

     Thomson v. Washington, #03-2304, 2004 U.S. App. Lexis 6086 (7th Cir. 2004).

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

     •Return to the Contents  menu.

Federal court properly rejected prisoner's federal civil rights claim since the First Amendment rights of inmates to receive commercial bulk mail was not "clearly established" when he was refused receipt of a "Green Lantern" comic book, so that prison officials were entitled to qualified immunity. Court upholds rejection of other magazines with sexual ads or "role-playing content." Further proceedings ordered, however, on state law free speech claims.

     A prisoner at an Oregon correctional facility subscribed to the Green Lantern comic book, as well as purchasing issues of Muscle Elegance magazine and White Dwarf magazine. The prison refused to deliver the comic book because prison regulations prohibited the receipt of bulk mail. The prison also rejected one issue of Muscle Elegance magazine due to the sexual content of ads which contained alleged portrayal of actual or simulated sexual acts or behaviors. Three issues of White Dwarf were rejected because of their "role-playing content." (The magazine is published by a game company that, among other things, publishes role-playing games).

     The prison subsequently purchased a "Green Lantern" comic book subscription for the inmate after its rule concerning the receipt of bulk mail by inmates was declared unconstitutional. The prisoner also contested the rejections of Muscle Elegance and White Dwarf magazine in administrative proceedings in which the rejections were upheld.

     He then filed a federal civil rights lawsuit challenging all three actions as violative of his First Amendment rights, as well as his free speech rights under Article 1, Section 8 of the Oregon state Constitution. The trial court granted summary judgment for the defendants on the federal claims, and dismissed the action without explicitly disposing of the state law claims.

     The appeals court upheld the result as to the federal claims, finding that prison officials were entitled to deference so long as their regulations were reasonably related to legitimate penological interests. It found that there was ample evidence to support the legitimate penological interest of reducing prohibited behaviors such as sexual aggression and maintaining respect for legitimate authority. The regulations at issue prohibited the receipt of materials that contained any amount of sexually explicit or role-playing or fantasy content.

     The appeals court found that the rejected issues of Muscle Elegance and White Dwarf did contain such content. Muscle Elegance contained ads for sexually explicit videotapes including aggressive or violent sexual acts involving domination. White Dwarf magazine "simulates violent battles in an imaginary fantasy world in which the roll of dice determines which leaders have the power to crush their enemies."

     The appeals court rejected the argument that the definition of "role-playing" was vague or overbroad and encompassed materials such as chess, theatrical scripts, and films. The court found that there was evidence showing a rational connection between role-playing materials that are based on the impact of simulated physical power used to obtain dominance over others, as opposed to reliance on legitimate authority, and the harmful behavior that can result in a prison, including gambling.

     The prison did not prohibit playing chess or reading about chess, and the prison also permitted inmates to receive publications that show nudes or bodybuilders not engaging in, or simulating sexual acts or behaviors, or that have "scholarly value, or general social or literary value," the court stated.

     The appeals court further found that prison officials were entitled to qualified immunity from liability for money damages for their prior rejection of delivery of Green Lantern comics to the plaintiff, as the right of prisoners to receive bulk mail, the sole basis for the rejection, had not previously been declared a constitutional right, and the law on the subject was accordingly not "clearly established" at the time of the rejection. It was eighteen months after the rejection of the Green Lantern comic that the appeals court held that the prohibiting the receipt of commercial bulk mail was unconstitutional in Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001) [PDF] Accordingly, reasonable prison officials could not be expected to know that the rejection of the comic book on the mere ground that it was bulk mail was improper. Once they did know this, they arranged for the prisoner to receive the comic.

     The federal appeals court ordered further proceedings on the prisoner's state law claims, however, holding that the trial court should either rule on the merits of those claims, or expressly indicate the basis for declining to exercise jurisdiction over them.

     Bahrampour v. Lamper, #02-3519, 356 F.3d 969 (9th Cir. 2004).

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

     •Return to the Contents  menu.

Even if prisoner received inadequate medical care after secretly ingesting cocaine upon his arrest, resulting in his death in custody, county was not liable to his estate in the absence of any evidence that an official policy of providing inadequate care was the cause of his injuries.

     The estate of a Michigan detainee who died in custody at a county jail from having secretly ingested large quantities of cocaine upon being arrested for a marijuana offense sued the county, claiming that the death was caused by inadequate medical care that the detainee received.

     The trial court granted summary judgment to the county, and a federal appeals court recently upheld this result.

     A deputy sheriff arrested the detainee for possession of marijuana and a few minutes later allowed him to go behind a tree, allegedly to relieve himself. It was later determined that, once behind the tree, he swallowed approximately one ounce of cocaine, possession of which is a felony under Michigan law. Upon his arrival minutes later at the county jail, the detainee was observed by jail personnel walking and acting erratically, pulling down his pants in full view of everyone in the booking area.

     Jail personnel asked him, "What did you take," and he maintained that he had only smoked marijuana and drank alcohol. A medical examination was ordered. A nurse examined the detainee, and he told her that he had been drinking and using marijuana. She administered two doses of albuterol, a medication used to treat asthma that has a known side effect of causing an accelerated heart rate. She also took a blood alcohol test that indicated that the detainee was not intoxicated, and the nurse then left.

     The detainee was sweating profusely and jail personnel determined that he was not well enough to go through the booking process, so they placed him in a general population cell. The detainee admitted to a cellmate there that he had swallowed cocaine but also stated that he did not want jail personnel to know. Cellmates later said that the detainee could barely talk, was staggering, and looked sick. Shortly thereafter, a cellmate pounded on the cell's Plexiglas window, yelling "he's hurt!." The detainee allegedly appeared to be having a seizure and his eyes were "real glassy."

     The nurse came to the cell, and the detainee now only said that he had swallowed "some pills." The nurse took his heart rate, and decided that a high heart rate was due to marijuana use, and again left, believing that the detainee needed no further care. Eleven minutes later, the nurse returned, responding to a cry from a cellmate that the detainee had "passed out." A few minutes later, he began to have multiple seizure and an ambulance was summoned. He was pronounced dead at a hospital emergency room less than an hour later.

     The trial court found that there was no showing of any unconstitutional custom or policy on the part of the county which "required the deliberate indifference which could have led to the plaintiff's death." The court rejected an argument that the county's policy of entering into a contract with a private service to provide medical personnel, and then having jail personnel allegedly defer to their medical judgment somehow amounted to providing inadequate care.

Indeed any other ruling here would be extremely detrimental to prisoners who are incarcerated in Michigan jails because the presence of medical personnel is essential to their safety and their health. Unfortunately the plaintiff here, [...] was the only person who knew what he had ingested, and he was asked on several occasions by the medical personnel and others, apparently, at this jail what was wrong, and he did not disclose what his medical need was.

     Upholding the summary judgment in favor of the county, the appeals court noted that the "crux" of the plaintiff's argument was that the county's policy was responsible for the alleged constitutional violation in this case because the booking deputies deferred to the nurse, who was allegedly unqualified under Michigan law to make certain decisions concerning the detainee's treatment that the contract permitted her to make, and she retained him in a general population "cell without referring him for emergency medical treatment/evaluation because of the County’s policy of deference . . . .”

     The appeals court found nothing unconstitutional about municipalities hiring independent medical professionals to provide on-site health care to prisoners in the jail, or for municipalities and their employees to rely on medical judgments made by medical professionals responsible for prisoner care.

In fact, most would find such a policy laudable in many respects. Not only does such a policy – like the one at issue in this case – allow prisoners to receive prompt health care from on-site doctors or nurses, it also ensures that an independent party, rather than a corrections officer, makes the critical decisions about whether and at what point a prisoner’s medical needs are sufficiently severe that ambulatory care or hospitalization is warranted.

     While it was possible that the prisoner received medical care that fell below the applicable standard of care under state law, or even was so woefully inadequate as to rise to the level of a constitutional violation, that violation did not result from a faulty county policy.

     The mere fact that an "otherwise sound program" has "occasionally been negligently administered," or that individual personnel may "occasionally make mistakes," the court noted, "says little about the legal basis for holding the county liable," but this seemed to be the essence of what the plaintiff was arguing for. Indeed, the plaintiff seemed to recognize this by subsequently having also filed a medical malpractice lawsuit in state court against the private entity providing the nurse and other medical personnel to the county.

     In summary, the county's policy was aimed at improving the quality of prisoner medical care, so even if the prisoner received constitutionally inadequate medical care, there was "simply no evidence" that the policy was the "moving force" behind that violation.

     Graham v. County of Washtenaw, No. 02-1614, 358 F.3d 377 (6th Cir. 2004).

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

     •Return to the Contents  menu.

Dismissal of federal prisoner's claim for alleged loss of his property due to negligence of prison employees was proper. No such claim could be brought under Federal Tort Claims Act, and prisoner failed to exhaust available prison grievance procedure as to any civil rights claim. Further, mere negligence leading to loss of property cannot be the basis of a constitutional claim.

     A federal trial court dismissed the lost property claims of a federal prisoner in Colorado because of his alleged failure to exhaust available administrative remedies before filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). The prisoner was taken from his cell and placed in a special housing unit, and Bureau of Prisons employees detained the personal items he left behind in his cell. When he was released from the special housing unit, his belongings were allegedly missing, and he filed an administrative tort claim seeking $247.10 for the loss of the property because of alleged negligence by the prison staff.

     The prisoner did not commence a grievance under the separate administrative procedure for complaints about prison conditions. The BOP offered to settle the claim for $9.30, but the prisoner declined the offer, and instead filed a federal lawsuit, claiming that he had exhausted available administrative remedies.

     The trial court dismissed the lawsuit for failure to state a constitutional violation and for failure to exhaust available remedies, presumably the grievance procedure.

     A federal appeals court upheld this result. It found that the language of the statute, as well as prior court interpretations of it, was clear and that "resort to a prison grievance process must precede resort to a court."

     This appeals court, disagreeing with some other circuits which have ruled that failure to exhaust remedies is an affirmative defense that must be raised and proven by a defendant, held that it was the plaintiff's burden to plead exhaustion of available remedies.

     The appeals court noted that as to the prisoner's claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(c), the statute itself provides that it does not apply to a claim "arising in respect of" the "detention of any goods, merchandise, or other property" by any law enforcement officer, and that the U.S. government had therefore not waived sovereign immunity on the prisoner's claim for the alleged negligent loss of his property.

     Insofar as the prisoner attempted to assert a federal civil rights claim against individual officers for the loss of his property, the prisoner failed to exhaust the available prison grievance procedure, and therefore could not pursue this claim in court. Further, allegations of merely negligent conduct leading to loss of property cannot be the basis for a constitutional claim.

     Steele v. Federal Bureau of Prisons, #02-1492, 355 F.3d 1204 (10th Cir. 2003).

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

     •Return to the Contents  menu.

Lieutenant who assigned a prisoner a new cellmate who subsequently sexually assaulted him was not liable, despite prisoner's claim that he feared an assault from a Latin Kings gang member. There was no showing that the sexual assault had anything to do with this gang, and there was no evidence from which the lieutenant could be said to be aware of a substantial risk of harm from pairing these two prisoners together.

     An Illinois prisoner needed a new cellmate after his former cellmate complained about being housed with him. A Lieutenant on the second shift matched the prisoner with another inmate who, two days later, sexually assaulted him. The injured prisoner sued the Lieutenant for allegedly subjecting him to cruel and unusual punishment. A jury accepted this claim and awarded the prisoner $1.5 million in compensatory damages.

     The plaintiff prisoner had been anally raped by an inmate at another facility, and when he arrived at the current one, told the prison psychologist that he did not feel safe. He had problems with one cellmate who allegedly stole some of his property, and stated that he believed that the responsible inmate belonged to the Latin Kings gang, which he also believed may have been preparing to kill him. The prison therefore found him a new cellmate. It was only after this new cellmate objected to spending time with him that the Lieutenant assigned him the cellmate that ultimately assaulted him.

     The prisoner immediately sought out the Lieutenant and privately told him that he feared for his life if celled with the cellmate selected. The Lieutenant allegedly stated that there was no place else to put the two inmates that evening, and then brought the two prisoners together and asked each, in turn, if he had a problem with the other. The plaintiff shook his head in the negative, and the Lieutenant took that as agreement to the assignment. Nothing further happened that evening or the next, but the following evening the new cellmate allegedly compelled the prisoner to perform oral sex.

     Nothing in the record suggested that that the assault had anything to do with the Latin Kings gang. The Lieutenant had no further contact with the situation.

     Reversing the award against the Lieutenant, the appeals court noted that he was not the one who assaulted the plaintiff prisoner and could not be held "vicariously" liable for the cellmate's crime. His duty was to refrain from placing the plaintiff prisoner "in harm's way gratuitously." Prisons are dangerous places, the court noted, and inmates get there "by violent acts, and many prisoners have a propensity to commit more."

     Some prisoners, the court also noted, are "manipulative" and "cry wolf" in an effort to have a cell to themselves or choose a favored cellmate. In this case, the court found, there was no reason to believe that the Latin Kings gang ever had "it in" for the plaintiff, since he did not belong to a rival gang and there was no history of violent or overtly hostile encounters between him and any gang member.

     Guards therefore must, the court suggested, "discriminate between serious risks of harm and feigned or imagined ones, which is not an easy task given the brief time and scant information available to make each of the many decisions that fill every day's work."

     Under the circumstances of the case, the court found, no reasonable juror could find that the Lieutenant "actually recognized" that placing the plaintiff and his cellmate together exposed the plaintiff to substantial risk. The cellmate did not act for the Latin Kings, so that the harm that the plaintiff professed to fear "did not come to pass."

     In short, the objective risk to the plaintiff of sharing a cell with his cellmate was no greater than the risk of sharing a cell with any other prisoner, so the Lieutenant could not be found to have known about a substantial risk from the pairing and to have then deliberately disregarded the danger.

     The Eighth Amendment does not give inmates veto power over their cellmates, the court stated, and "prisoners cannot use the Constitution to achieve this control indirectly by making unsubstantiated assertions."

     Riccardo v. Rausch, #02-1961, 359 F.3d 510 (7th Cir. 2004).

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

     •Return to the Contents  menu.

Federal appeals court upholds dismissal of claims against warden, videographer and corrections officer who did not have physical contact with prisoner but who witnessed his transfer to segregation unit in the absence of any evidence that they ordered or condoned the excessive use of force by others. Court orders further proceedings, however, as to whether prisoner was unnecessarily beaten once he arrived in cell.

      An Illinois inmate confined at a maximum security prison claimed that he was maliciously treated by the prison's Tactical Team--"familiarly dubbed the 'Orange Crush,' from the orange jumpsuits team members wear" when escorting particularly dangerous inmates from one part of the prison to another. He also claimed that he was beaten once he arrived at a segregation unit by officers, after the Tactical Team delivered him there.

     The prisoner was taken to the segregation unit after he had been implicated in an attack on two correctional officers, and after he refused to "cuff up" when the warden, an assistant warden, and an officer visited his cell. Tactical Team officers were summoned to transfer him and three other inmates to the segregation unit as punishment for the attack.

     The summoned team members, accompanied by the warden, a videographer, and others then escorted the prisoners to the segregation unit. The videographer was present in order to videotape the proceeding to protect officers and prisoners. The plaintiff prisoner later claimed that one of the team members held a baton with one end on top of the chain portion of the handcuffs between his wrists and the other between his legs, enabling him to apply continuous downward pressure on his wrists and upward pressure on his groin.

     After he was transferred to the segregation unit, the prisoner claimed that one of the officers pushed his face against the bars of a caged area immediately outside the unit, although he could not identify which officer did this, and that he was later tripped and taken into a cell and kicked and punched, after which officers allegedly sprayed freezing water into his cell, broke the light in his cell and turned off the water to the sink and toilet.

     The prisoner sued seventeen different defendants, including the warden and videographer, claiming excessive use of force, or wrongful failure to intervene against the use of such force.

     A federal appeals court upheld the trial court's rejection of claims against the warden and videographer, as well as against one of the officers, noting that none of these defendants had physical contact with the prisoner, and that, during their participation in the transfer, there was no visible use of excessive force which would have required them to intervene. There was no showing that any of these three had either ordered or condoned the use of excessive force against the prisoner.

     The court also found that the force used by team members in transferring the prisoner to the segregation unit was minimal and only inflicted, according to the prisoner's own complaints, discomfort and a sore wrist. The prisoner's handcuffing was for safety purposes, and the videotape of the transfer showed only "incidental bumping," rather than the unnecessary infliction of pain. This did not result in significant injuries or the need for medical attention.

     The court did order, however, further proceedings to determine whether one of the officers, and if so, which one, pressed the prisoner's face against the segregation cell bars and then assaulted him, and whether the prisoner was actually beaten upon his arrival at the cell.

     Fillmore v. Page, No. 02-3208, 358 F.3d 496 (7th Cir. 2004).

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

     •Return to the Contents  menu.

Federal appeals court reinstates prisoner's claim under the Federal Tort Claims Act for negligently caused injuries resulting from him falling from his top bunk after he was given a medical pass entitling him to a bottom bunk.

     An Ohio man was in federal prison serving a six month sentence for bank fraud. He was initially assigned a top bunk bed. After approximately three weeks in the prison, he was given a medical examination, a physician's assistant issued the prisoner an "idle, convalescent and change in work classification status" form, also known as a "bottom bunk pass," which stated that the prisoner was to engage in no climbing and should be allowed a bottom bunk for medical reasons while at the prison. The pass was issued because of the prisoner's past medical history.

     Bottom bunks at the prison were highly sought after and the prison kept a waiting list for them based on seniority to facilitate the assignments, but if an inmate received a bottom bunk pass for medical reasons, he is immediately assigned a bottom bunk, even if there are no vacant bottom bunks, because the medical pass takes priority over the assignment on the basis of seniority.

     In this case, the prisoner was given only one copy of the pass, which he kept, but not one to give to his housing unit manager, as was customary. The prisoner assumed that prison officials would be notified of the change in his status without any affirmative action on his part, and that he would change bunks soon, but no notification was received. One evening, the prisoner awoke on the floor after having fallen off of his top bunk bed, having switched the mattress on it earlier that day. He suffered serious injuries to his knee.

     After he was released from prison, he filed a personal injury claim against the federal Bureau of Prisons under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., claiming that the government was negligent. The trial court granted the government's motion for summary judgment, finding that a "discretionary function exception" to the statute applied, and that the prisoner's comparative negligence in failing to bring the bottom bunk pass to the attention of the management of his housing unit also barred recovery.

     A federal appeals court disagreed. Negligence in not directing the prisoner to give a copy of his pass to unit management, if proven, and in failing to give him two copies of the bottom bunk pass would amount to negligence in following a "non-discretionary policy," the court found, and that particular negligence claim is therefore not protected by the discretionary function exception to FTCA liability.

     The prison's policy for handling bottom bunk passes did not give the medical staff or the unit management any discretion, the court found, but rather dictated their actions. The failure to give him a second copy of the pass to give to unit management was "arguably in violation" of the prison's policy, and therefore not protected by the discretionary function exception.

     Under Ohio's comparative negligence law, plaintiffs cannot recover if the plaintiff's own negligence outweighs that of the defendants. This standard is imported into negligence actions under the FTCA arising out of injuries in Ohio in federal prisons. There was, however, conflicting evidence as to whether the prisoner was negligent in failing to inform unit management of his bottom bunk pass and whether he had received any verbal instructions that he had to do so. This constituted conflicting evidence as to whether he was comparatively negligent, so that it could also not be a basis for summary judgment.

     Bultema v. U.S., No. 02-3490, 359 F.3d 379 (6th Cir. 2004).

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

     •Return to the Contents  menu.

Prison did not violate the religious freedom rights of inmate members of the "Church of the New Song" who were in lock-up during the religion's "celebration of life" feast by denying them trays of food from the banquet. Appeals court upholds ruling that there was insufficient evidence to show that the Church required its members to hold this feast, and the ban on receipt of the trays was reasonably related to legitimate institutional security goals.

      Plaintiffs at an Iowa state prison claimed to be members of the "Church of the New Song (CONS)," a religion founded in the early 1970s by a federal prisoner named Harry Theriault. They filed suit when prison officials refused to permit food trays prepared for CONS' "celebration of life" banquet to be taken to CONS members who were in lock-up at the time of the banquet, claiming that the denial violated their First Amendment rights.

     The trial court entered an order requiring the prison officials to allow CONS members in lock-up to receive trays of food from the banquet.

     Overturning this result, a federal appeals court noted that a valid First Amendment claim under these circumstances gives the plaintiff prisoners the burden of establishing that the alleged religious belief or ritual in question is based upon a teaching of the CONS religion, that their belief in the teaching is sincerely held, and that the governmental action in question "actually infringes upon the individual prisoners' free exercise of this belief."

     Here, the appeals court found that there was insufficient evidence in the record to show that CONS "instructs its adherents to hold such a feast" as the "celebration of life," so that the trial court "clearly erred" in finding that the requirement of a feast for the "celebration of life" is a belief rooted in the CONS religion. Plaintiffs, the court noted, gave various conflicting explanations of the origin of the "celebration of life feast" and its meaning, ranging from a commemoration of the day on which the CONS was founded to a spring celebration in honor of natural's renewal of life, to being the same as the "Sacred Unity Feast" referenced in the "Paratestament," a partial text of which is the sole written statement of CONS theology and ritual that the record in the case contains. Based on this "it is difficult to credit the claim" that the feast is rooted in the CONS religion, the appeals court concluded.

     The denial of the food trays therefore did not violate the plaintiffs' First Amendment rights. "If a sincerely-held belief was implicated, it was not a belief grounded in CONS theology or its prescribed rituals as revealed by the materials the parties have put forward for our examination." Further, even if the CONS religion were assumed to somehow ordain a special "celebration of life" banquet, the court continued, the ban on providing food trays to CONS members in lock-up did not violate any prisoner's free-exercise rights.

     Denial of such trays into the lock-up unit was justified by security concerns about keeping contraband out of the unit, particularly in light of testimony that health regulations prevented staff from thoroughly searching the food trays to ensure that they were not being used to deliver contraband. This concern, in particular, was found to be acute since CONS members had previously sent contraband into the lock-up unit through a variety of illicit methods.

     The ban was therefore reasonably related to legitimate security concerns.

     The appeals court upheld, however, the trial court's refusal to reopen the question of whether CONS was a religion, based on the defendants' arguments that the group was nothing other than a front for gang activity, stating that the proper procedural mechanism to do so was to seek to dissolve an injunction on the issue previously issued in another case.

     Goff v. Graves, No. 02-1279, 2004 U.S. App. Lexis 5832 (8th Cir. 2004).

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

     Editor's Note: While Theriault once testified that CONS was initially established as a "game," it was recognized as a religion protected by the First Amendment in Theriault v. Carlson, 339 F. Supp. 375 (N.D. Ga. 1972), vacated 495 F.2d 390 (5th Cir. 1974). A federal trial court in Texas, however, ruled that CONS was "not a religion," but rather a "masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful and/or reasonably disallowed by the various prison authorities but for the attempts ... to classify them as 'religious' and, therefore, presumably protected by the First Amendment." Theriault v. Silber, 453 F. Supp. 254 (W.D. Tex.), appeal dismissed, 579 F.2d 302 (5th Cir. 1978), cert. denied, 440  U.S. 917 (1979). The Eighth Circuit, on the other hand, recognized CONS as a First Amendment protected religion in Remmers v. Brewer, 494 F.2d 1277 (8th Cir.), cert. denied, 419 U.S. 1012 (1974).

     •Return to the Contents  menu.

Federal appeals court rejects prisoner's claim that his constitutional rights were violated by requiring him to participate in sexual offender treatment program requiring him to admit to his offense, under penalty of a loss of privileges, including denial of visitation with his minor child, if he failed to participate.

     The plaintiff prisoner was incarcerated by the Colorado Department of Corrections on a conviction for sexual assault of a minor. He claimed that correctional officials violated his constitutional rights by directing him to participate in a sexual offender treatment program requiring him to admit that he had committed the assault and by imposing certain adverse consequences upon him when he refused to participate. In particular, he claimed that the officials' refusal to allow visitation with his minor child violated the First and Fourteenth Amendments. He further argued that, by depriving him of opportunity to earn good time credits at the higher rate available to prisoners who participated in the treatment program, officials violated the Fifth Amendment's prohibition against compelling self-incriminating testimony.

     A federal appeals court rejected all these claims.

     It found that the consequences of the prisoner's refusal to admit that he had committed a sexual assault were not so severe as to likely compel him to be a witness against himself, and that the restriction of visitation privileges also did not violate his rights.

     Other privileges lost by the prisoner for his refusal to participate in the treatment program included:

(1) he could not have a television or a radio in his cell; (2) he could not use tobacco; (3) he had no canteen privileges; (4) certain personal property was removed from his cell; (5) he could not engage in recreation with other prisoners; and (6) he was required to wear orange pants.

     The prison officials denied his requests for visitation privileges with his daughter because they believed that his refusal to participate in the treatment program meant that they could not properly evaluate him to determine if these visits would be detrimental to his rehabilitation.

     The appeals court found that the defendants had offered some evidence, "indicating that contact between sex offenders and children, even their own children, may adversely affect both the child and the offender." While that evidence might be debatable, "and a particular sex offender may constitute no threat whatsoever to his own children," the court found it "noteworthy" that the plaintiff himself offered no evidence to support his challenges to the defendant's objectives. The plaintiff prisoner was allowed to maintain contact with his children by means other than visits, such as letters.

On this record we conclude that, in refusing to allow visits between a convicted sex offender who refused to comply with the requirements of the treatment program and his child, the defendants did not violate [the plaintiff's] First and Fourteenth Amendment rights.

     Wirsching v. State of Colorado, #00-1437, 360 F.3d 1191 (10th Cir. 2004).

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

     •Return to the Contents  menu.

Prisoner who is former cancer research scientist could pursue claim that prison policies exposed him to excessively high levels of environmental tobacco smoke by housing him with smoking cellmates.

     The plaintiff prisoner in a federal civil rights lawsuit against the smoking policies of the Illinois prisons "knows a lot about the ill effects of exposure to second-hand tobacco smoke," according to a federal appeals court. In addition to having a Ph.D. in biochemistry, he is a former Resident Research Assistant in the Laboratory of Molecular Carcinogenesis in the Division of Cancer Etiology, National Cancer Institute, which is affiliated with the National Institutes of Health in Bethesda, Maryland.

     The trial court, however, dismissed as moot his claims that smoking policies in the Illinois prisons were exposing him to excessive levels of second-hand tobacco smoke, after he was transferred to a different prison facility.

     The federal appeals court did not agree. The plaintiff had been housed in at least three different correctional facilities in Illinois. While his complaint, filed while he was at the second facility, was pending, he was transferred to a third prison. He had previously allegedly asked to be assigned to a cell with a non-smoking cellmate at the second prison, but his requests were denied.

     The plaintiff contended that the exposure to his cellmates' tobacco smoke caused him to suffer headaches and nausea, and the appeals court stated that the transfer to the third facility "accomplished nothing," since he was once again housed with a smoking cellmate despite his request for a non-smoker. During his first five and a half months there, he testified that he had a non-smoking cellmate for only two and one-half days.

     He claimed that this exposure to second-hand smoke threatened his future health and causes him to suffer from continual smoking related effects, including headaches and burning eyes.

     The appeals court found that the plaintiff's complaint "alleges a concrete, particularized, actual injury that is directly traceable" to the Illinois prison's "system-wide practice of housing non-smoking inmates with smokers," including current and potential future health problems. The complaint challenged the statewide policies on the issues, so that the transfer to a new facility did not render the claim moot, particularly since the same problem appeared to exist there. Further proceedings were therefore ordered on the prisoner's claims.

     Lehn v. Holmes, #01-1957, 2004 U.S. App. Lexis 7206 (7th Cir. 2004).

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

     •Return to the Contents  menu.

Misdemeanor detainee, who was awarded $1 in nominal damages in lawsuit challenging blanket policy of strip searching all detainees at county jail regardless of the nature of their charges, did not have any basis to seek injunction against such searches, since he could not show that he had a likelihood of being rearrested and sent to the same facility again and subjected to a similar search..

     A New York county and its employees appealed the issuance of an injunction by a federal trial court against strip searching misdemeanor admittees to the county jail in the absence of individualized suspicion that they were concealing weapons or contraband.

     A federal appeals court has found that the misdemeanor detainee who brought the original lawsuit lacked standing to seek injunctive relief. He had been arrested by county police when his then-wife reported that he had threatened violence during a domestic dispute. Upon arrival at the county correctional facility, he was subjected to a strip/visual cavity search under a policy in place at the time requiring such searches of all detainees regardless of the severity of the charged or whether the detainee was suspected of concealing weapons or contraband.

     After charges against him were dropped, he sued the county, challenging the blanket strip search policy. The federal appeals court upheld a judgment in favor of the plaintiff and an award of $1 in nominal damages, but ordered further proceedings on the injunctive relief issue. On remand, the trial court granted the injunction.

     On further appeal, the appeals court found that the plaintiff had not established, or even alleged, that there was a likelihood of a future encounter between the county police and himself likely to result in a subsequent unconstitutional strip search. The plaintiff was a license attorney, with no prior criminal record, and had never been arrested outside the context of his "contentious divorce proceedings," which were now over.

     Further, even if he were rearrested, the court reasoned, it was "entirely conjectural" that he would be detained overnight and sent to the county correctional facility, since most misdemeanor detainees are released on their own recognizance or on bail.

     To establish a sufficient likelihood of a future unconstitutional strip search so as to be entitled to injunctive relief, the court found, he would have to show that if he is arrested by the county and if the arrest is for a misdemeanor, and if he is not released on bail and if he is remanded to the county correctional facility and if there is no particularized reasonable suspicion that he is concealing contraband, he will again be strip searched.

Such an accumulation of inferences is simply too speculative and conjectural to supply a predicate for prospective injunctive relief.

     Shain v. Ellison, #02-9262, 356 F.3d 211 (2nd Cir. 2004).

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

     •Return to the Contents  menu.

Federal appeals court reinstates claim against prison warden for alleged failure to protect transsexual inmate from an attack by a maximum-security prisoner. Plaintiff prisoner raised a sufficient factual issue as to whether the warden had knowledge of the possible risk to her safety because of her vulnerability and her attacker's status as a "predator," but failed to act to protect her.

     A federal appeals court panel, by a 2-1 vote, has overturned summary judgment in favor of a prison warden in a federal civil rights lawsuit brought by a transsexual inmate who claimed that the warden acted with deliberate indifference in failing to take steps to protect her from attack by another prisoner.

     The plaintiff is a male-to-female transsexual, who, at the time of her incarceration at the facility in question was preoperative, but who still displayed female characteristics, including developed breasts and a feminine demeanor. She was undergoing hormone therapy and because of her feminine appearance was placed in the protective custody unit to guard against attacks from other inmates. A second inmate in that unit allegedly assaulted her on several occasions, culminating in a severe attack in which he beat her with a mop handle and then struck her with a fifty-pound fire extinguisher.

     The alleged attacker had a long history of assaults on other inmates and was classified as a maximum-security prisoner at the time of the attack. The transsexual prisoner was classified as medium-security. The warden himself admitted that the alleged attacker was a "predatory inmate."

     This "predator," however, was placed in the protective custody unit in order to protect him from the repercussions of his testimony against his fellow inmates in a prison riot in which he himself had been convicted of aggravated assault for beating two prisoners during that riot.

     In granting summary judgment to the warden in the prisoner's lawsuit, the trial court stated that as the attack on the plaintiff wasn't sexual, her status was "irrelevant to the determination of a substantial risk" and that there was not evidence from which it could be concluded that the warden knew of the attacker's history of violence and specifically of attacks upon other inmates.

     The appeals court disagreed, finding that there was evidence from which a trier of fact could conclude that the prisoner was vulnerable not just to sexual assault, but also to physical assaults from her fellow inmates, so that her presence in the unit with other inmates without segregation or protective measures presented a "substantial risk to her safety" of which the warden was aware. It also found that the was evidence from which a trier of fact could conclude that the warden was "in fact aware" of the substantial risk that the attacker posed to "any inmate with whom he was placed."

     Deliberate indifference, the appeals court stated:

can be demonstrated through “inference from circumstantial evidence,” and a prison official cannot “escape liability . . . by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” . Our cases [...] demonstrate that the converse is true as well: where a specific individual poses a risk to a large class of inmates, that risk can also support a finding of liability even where the particular prisoner at risk is not known in advance.

     Such evidence included a protective control screening form concerning the transsexual prisoner, which was signed by the warden, and indicated that she was placed in the protective custody unit for her own personal safety. The warden's own testimony indicated that "transgendered inmates are often placed in protective custody because of the greater likelihood of their being attacked by their fellow inmates." Additionally, the warden himself characterized the attacker as a predatory inmate, and the attacker's record included a long institutional history of being a "disruptive, violent inmate."

     A strong dissent by one judge found that the warden's testimony at most indicated that he "recognized the existence of certain risks attendant with the placement of certain categories of inmates in protective custody," but that this however, did not amount to an awareness of a significant risk of harm to the plaintiff's health of safety. "The Eighth Amendment requires, instead, that a warden actually recognize a significant risk of harm arising from particular facts. While the majority properly states that, in some contexts, a particular victim, or a particular perpetrator, need not be known, general recognition of some risks is not enough.".

Moreover, the majority takes a position that will make it more difficult for prison officials to deal with the complicated issues involved in incarcerating pre-operative transsexual inmates. These inmates may not be well-suited to the general populations of either men’s or women’s institutions, and protective custody may be a warden’s best alternative to provide for the safety and security of transsexual inmates. The majority’s broad position that protective custody poses obvious harms to transsexual inmates could impel correctional officials to avoid liability for harms to these inmates by either placing all transsexual inmates in individual isolation or by building prisons solely for transsexuals. The Eighth Amendment cannot be read to compel such a result.

     Greene v. Bowles, No. 02-3626, 361 F.3d 290 (6th Cir. 2004).

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

     •Return to the Contents  menu.

Access to Courts/Legal Info

     Wisconsin prisoner failed to show that prison officials denied him access to courts by refusing to provide him copies of his previously submitted grievance concerning his disciplinary conviction. Prisoner failed to show that the dismissal of his pending court proceeding was based on his failure to provide the court with a copy of the past grievance form, and therefore failed to show that he suffered actual harm. Tyler v. Bett, #03-2727, 86 Fed. Appx. 970 (7th Cir. 2004).

Death Penalty

     Prisoner was not entitled to a stay of execution on the basis of his claim that if a lethal injection was administered to him in an improper way, he could experience severe pain without any visible indication of it. In Re Williams, #04-3014, 359 F.3d 811 (6th Cir. 2004).

Defenses: Notice of Claim

     Florida prisoner failed to provide adequate notice of his negligence claim against the Department of Corrections to satisfy notice provision of statute waiving sovereign immunity for claims against the state. Prisoner's first letter misidentified the correctional facility in which he had been incarcerated, and second letter was not copied to the state Department of Insurance, which was therefore never given knowledge of the need to investigate or respond to the claim. Maynard v. State, #1D02-1048, 864 So. 2d 1232 (Fla. App. 1st Dist. 2004). [PDF]

Defenses: Procedural

     Under Missouri law, a county sheriff's department and the medical department of the sheriff's department were merely components of the county and could not be separately sued. Further, a local government entity without the capacity to be sued under state law cannot be sued in federal court. Catlett v. Jefferson County, 299 F. Supp. 2d 967 (E.D. Mo. 2004).

Diet

     Prisoner suffering from diabetes did not show an excessive risk of harm to his health from the inclusion of pork in his prescribed diabetic diet. Doctor only included a reference to a pork-free diet because prisoner requested it and there was no evidence that the inclusion of pork threatened the prisoner's health or that the calories provided were inadequate. Hall-Bey v. Cohn, #02-3731, 86 Fed. Appx. 200 (7th Cir. 2004).

Disability Discrimination: Prisoners

     Prisoner failed to adequately show that he was discriminated against on the basis of disability when prison officials denied him use of a computer and took his calculator away. An affidavit by an individual stating that he had a learning disability was insufficient to show that he was disabled, and evidence showed that he was denied the use of the computer only after being disciplined for inappropriate conduct. Additionally, calculator was removed on the basis of a possible security risk. Damron v. North Dakota Com'r of Corrections, 299 F. Supp. 2d 970 (D.N.D. 2004).

Inmate Funds

     Kansas prison policy requiring inmates to save 10% of all money into a trust account did not violate the due process rights of prisoners serving life sentences. The state had a legitimate interest in making sure that prisoners had some money available to help in their readjustment if they were released, and in providing some money for the inmate's estate if they died while in custody. Ellibee v. Simmons, No. 91,050, 85 P.3d 216 (Kan. App. 2004).

Medical Care

     Federal trial court approves settlement between the parties in class action lawsuit by diabetic inmates claiming denial of adequate medical care. Settlement was fair in guaranteeing certain types of treatment to prisoners and providing for the monitoring of the treatment. Gaddis v. Campbell, 301 F. Supp. 2d 1310 (M.D. Ala. 2004).

     Prisoner's assertion that prison medical staff did not inform him of nor treat him for tuberculosis and denied him follow-up treatment after foot surgery was sufficient to state a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment. Allah v. Artuz, #01-0067, 86 Fed. Appx. 455 (2nd Cir. 2004).

     Orthopedic surgeon was not entitled to qualified immunity on prisoner's claim that he deliberately failed to schedule him for needed shoulder surgery for almost two years and also knew that an excessive delay might cause permanent disability. Benjamin v. Schwartz, 299 F. Supp. 2d 196 (S.D.N.Y. 2004).

Medical Care: Mental Health

     Statements by state prison psychologist to mentally ill prisoner who made suicidal threats that no one would care if he died did not constitute deliberate indifference to serious medical needs, when psychologist also recommended that the prisoner remain under observation, and the prisoner had access to other psychologists at the prison, as well as to a psychiatrist to whom he had been referred. Means v. Cullen, 297 F. Supp. 1148 (W.D. Wis. 2003).

Medical Records

     Release of state inmate's medical records to Attorney General after inmate asserted a medical malpractice claim against the state for alleged administration of incorrect medication by prison staff was not authorized under New York state law, so inmate was entitled to an award of $500 in damages. Davidson v. State of N.Y., 771 N.Y.S.2d 197 (A.D. 3d Dist. 2004). [PDF]

Officer Assault: By Inmate

     Correctional officer was properly awarded $250,000 on his counterclaim against prisoner even though this exceeded the damages requested, in light of the unprovoked nature of the prisoner's attack and the seriousness of the "life-threatening" injuries suffered by the officer. Douglas v. McCarty, #03-6776, 87 Fed. Appx. 299 (4th Cir. 2003). [PDF]

Parole

     Pennsylvania prisoner was not entitled to a judicial order requiring the state Board of Probation and Parole to grant him parole. Despite his claim that a sentencing judge and prosecutor sent unfavorable recommendations to the Board in retaliation for his filing of a successful federal habeas petition, the Board followed established procedures in denying parole, and the denial was justified by the reasons given. Burkett v. Frank, 841 A.2d 646 (Pa. Cmwth. 2004). [PDF]

Prisoner Assault: By Officers

     Genuine factual issues as to whether correctional officers suffocated detainee after he stated his desire to surrender during altercation barred summary judgment on excessive force claim brought by detainee's estate. Bozeman v. Orum, 302 F. Supp. 2d 1310 (M.D. Ala. 2004).

Prisoner Classification

     Prisoner was entitled to a preliminary injunction against the Bureau of Prisons' (BOP) new regulation which had the effect of delaying his release to a halfway house until 90% of his sentence had been served. Prisoner claimed that regulation was adopted in violation of Administrative Procedure Act, 5 U.S.C. Sec. 553 (b,c,d). Colton v. Ashcroft, 299 F. Supp. 2d 681 (E.D. Ky. 2004).

Prisoner Discipline

     Refusal to allow prisoner to call inmate witnesses at administrative segregation hearing did not violate his procedural due process rights when the inmates were asked the questions the prisoner prepared and their audiotaped responses were played at the hearing. Rosales v. Bennett, 297 F. Supp. 2d 637 (W.D.N.Y. 2004).

     Pre-trial detainee's claim that deputy sheriff found him guilty of a major offense he was not charged with, and which had no factual connections to the actual charges brought stated a claim for violation of due process. Jones v. Brown, 300 F. Supp. 2d 674 (N.D. Ind. 2003).

Prisoner Restraint

     Prisoner was not entitled to damages for use of back restraints after his disciplinary conviction. He failed to show that their use was an "atypical and significant hardship in relation to the ordinary incidents of prison life," and rash which he allegedly suffered from the use of the restrains was not "serious harm" as required to support a claim for deliberate indifference to a serious medical need. Tasby v. Cain, #03-30334, 86 Fed. Appx. 745 (5th Cir. 2004).[PDF]

Prisoner Suicide

     Private psychiatric hospital and not-for-profit company which owned it were not immune under Tennessee law for potential liability for county jail inmate's suicide on the basis of their employee's alleged action in telling county jail that suicide protocol precautions were not necessary for this prisoner. Employee also qualified as a "state employee" because of his service in screening prisoners to determine if hospitalization was appropriate, and as a state employee, he was entitled to statutory immunity, but this did not alter the result as to the hospital or its owner. Shelburne v. Frontier Health, 126 S.W.3d 838 (Tenn. 2003).[PDF]

Private Prisons and Entities

     Under New Jersey state law, state and county correctional facility could be held vicariously liable for alleged medical malpractice by private contractors that provided medical care to now deceased inmate, since their duty to provide adequate health care to the prisoner could not be delegated. Prisoner allegedly died because he was either denied or given inadequate dosages of prednisone medication for "Paroxysmal Nocturnal Hemoglobinuria with hemolytic episode" (PNH), a condition for which the only potential cure is a bone marrow transplant. Scott-Neal v. N.J. State Dept. of Corrections, 841 A.2d 957 (N.J. Super. A.D. 2004).

Segregation: Disciplinary

     Penalty of placement in disciplinary segregation for a 15 day period with no loss of good time credits was not a sufficiently "atypical and significant" hardship that it implicated a prisoner's due process rights. Marksberry v. Chandler, No. 2002-CA-001920-MR, 126 S.W.3d 747 (Ky. App. 2004). [PDF]

Sexual Harassment

     California prisoner could not seek damages under 42 U.S.C. Sec. 1983 for sexual harassment by officers based on mere verbal harassment. Prisoner claimed that one officer unzipped his clothing and told the inmate to grab the officer's penis, walking away laughing when he refused, and that a second officer held a candy bar towards his genital area, flipping it up and down, and then responding "I don't kiss and tell" when the inmate asked if this action was directed towards him. Minifield v. Butikofer, 298 F. Supp. 2d 900 (N.D. Cal. 2004).

Sexual Offender Programs and Notification

     Retroactive application of a rule making a prisoner incentive program dependent on participation in a sexual offender treatment program was not an impermissible enhancement of punishment of prisoner convicted of rape and aggravated sodomy. Carroll v. Simmons, #03-3236, 89 Fed. Appx. 658 (10th Cir. 2004).

Transsexual Prisoners

     Placement of intersexual (hermaphrodite) prisoner with both male and female characteristics in segregated confinement for 438 days with severely limited privileges solely because of status of ambiguous gender was not a violation of the Eighth Amendment. Such placement was not aimed at punishment, but at protecting the safety of the inmate and other prisoners, and the plaintiff prisoner was provided with all basic necessities. Court also rejects equal protection claim. Continuation of administrative segregation beyond 30 days, however, without a hearing and with no attempt to "elevate" prisoner's living conditions was "completely arbitrary and capricious," and lacked a rational basis. Prison officials should have known this, and were therefore not entitled to qualified immunity, but only nominal damages of $1 were awarded, in the absence of evidence of actual harm, such as lasting mental or physical damages resulting from the segregated confinement. Plaintiff would also be awarded expert costs, attorneys' fees, and court costs as a prevailing party under 42 U.S.C. Sec. 1988. DiMarco v. Wyoming Dept. of Corrections, 300 F. Supp. 2d 1183 (D. Wyo. 2004).

     •Return to the Contents  menu.

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

     Elderly & Ill Prisoners: "Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates," by Anno, B. Jaye; Graham, Camelia; Lawrence, James E.; Shansky, Ronald. An exploratory report regarding the management of aging and infirm inmates is presented. Six chapters follow an executive summary: introduction; what we know about elderly; chronically ill, and terminally ill inmates; effective evaluation for identifying the special needs of inmates; program, housing, and treatment considerations; ethical and policy considerations for the care of elderly and infirm inmates; and conclusion. Appendixes include: Criminal Justice Institute Survey-Managing the Needs of Aging Inmates and Inmates With Chronic and Terminal Illnesses; site-visit reports; and site visit checklist. National Institute of Corrections (Washington, DC) Criminal Justice Institute (Middletown, CT) (148 pgs. 2004) [PDF]

     Female Offenders: "Developing Gender-Specific Classification Systems for Women Offenders," by Hardyman, Patricia L.; Van Voorhis, Patricia. This report addresses the need for classification systems that provide necessary information about women offenders, are adapted to women, and are effective in matching women to appropriate custody levels and programming. It highlights study findings on current practices for classifying women offenders and reviews the key elements of NIC-assisted classification initiatives in seven states. Publisher National Institute of Corrections. Prisons Division (Washington, DC) George Washington University. Institute on Crime, Justice and Corrections (Washington, DC 2004) (81 pgs. PDF)

     Prisoner Classification: "Prisoner Intake Systems: Assessing Needs and Classifying Prisoners" by Johnette Peyton. Examines tasks, assessments, and technology used in prison intake systems. Includes in-depth profiles of systems in four states. National Institute of Corrections (Washington, D.C. 2004). 98 pgs. [PDF]

     Reference:

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

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