FEATURED CASES

WITH LINKS TO THE OPINIONS

Trial judge improperly dismissed prisoner's lawsuit claiming that he was improperly denied a court appearance and access to a lawyer for 73 days while being held in jail on an alleged parole violation. The prisoner's claim was for denial of access to the courts, so that success in his lawsuit would not necessarily imply the invalidity of the arrest for violation of parole.

     An Oklahoma state inmate appealed the dismissal of his federal civil rights claim as frivolous under 28 U.S.C. §1915(e)(2)(B). The prisoner's claim was essentially "that he was denied an attorney and a court appearance while held in jail for 73 days on an alleged parole violation." He ad been convicted in Oklahoma but was serving his parole in Colorado under an interstate compact with Oklahoma, and was required to submit to drug screening as a condition of parole. His parole officer called him to her office, where she accused him of having "flushed" his system to remove drugs from his urine. He was then arrested for violating his parole.

     He was confined for 73 days in the Adams County Colorado Detention Center while awaiting extradition to Oklahoma for parole revocation proceedings. During that time, he complains, he was not given a hearing and his requests to meet with an attorney were allegedly denied. He also claimed that he was not informed of the specific basis for his continued detention. At some point, after he sent a letter to the local public defender, his release was procured.

     After he sued concerning his denial of access to a lawyer and the courts, the trial court dismissed the lawsuit, stating that his "challenge to the failure of defendants to release a parole hold, if successful, necessarily would imply the invalidity of his incarceration," and therefore could not be the basis for a federal civil rights claim. The court relied on Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994). Heck held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . ."

     In this case, the appeals court stated that it failed to see how the plaintiff's success on his claims that he was denied a court appearance and access to a lawyer would "demonstrate the invalidity of any outstanding criminal judgment against the plaintiff."

Indeed, the record does not even indicate whether parole was ever revoked on the ground that led to the incarceration in question. And nothing in the record suggests that his damages claim would be inconsistent with a proper parole revocation. The district court therefore erred in applying Heck to dismiss the complaint. We need not determine whether there are any other proper grounds for dismissal.

     French v. Adams County Detention Center, No. 04-1094, 2004 U.S. App. Lexis 16648 (10th Cir. 2004).

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Prison warden and other officials were not entitled to qualified immunity in lawsuit by three prisoners claiming that they exhibited deliberate indifference to attacks on them and other actions by HIV-positive prisoner who threatened to "infect them," urinated on the floor and placed fecal matter there when assigned to "clean" the restrooms. Plaintiffs also claimed that they faced unlawful retaliation by some of the defendants after filing their lawsuit.

     Three South Dakota inmates sued their warden and a number of other prison officials, claiming that their Eighth Amendment rights not to be subjected to cruel and unusual punishment were violated by alleged exposure to an HIV-positive prisoner who they said assaulted them and threatened to "infect them." This prisoner engaged in behavior, while assigned to clean the prison restrooms, such as urinating on the floor, spitting in the sinks and water fountain, and smearing fecal matter on the floor. The prisoner also allegedly engaged in fights with other prisoners, doing things like spitting in their face, or exposing them to his blood from a cut on his lip.

     The plaintiff prisoners allegedly complained about this and one obtained signatures from several inmates to try to initiate a class action lawsuit, and was accused by two of the defendants of initiating an illegal "petition drive."

     Two of the plaintiff prisoners also claimed that two of the defendants retaliated against them for bringing the lawsuit by placing them in segregation, and that all three of them were denied access to the prison law library in retaliation. Two of them were placed in segregation two days after the prison received a file stamped copy of their lawsuit.

     The trial court declined to grant motions by the defendant prison officials for summary judgment on the basis of qualified immunity.

     A federal appeals court upheld this result. It found that there was a factual issued as to whether the defendant officials knew that the inmate who allegedly attacked other prisoners and fouled up the restrooms was AIDS infected and threatened to infect other inmates, and subsequently failed to respond to this risk in a reasonable manner.

     There was also a factual issue, the appeals court found, as to whether the defendants, or some of them, improperly retaliated against the plaintiffs for filing their lawsuit.

     Nei v. Dooley, #03-3261, 372 F.3d 1003 (8th Cir. 2004).

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New York prisoner was not improperly denied the right to call witnesses at the disciplinary hearing finding him guilty of violating prison rules against the use of controlled substances based on the hearing officer's refusal to allow him to call every other prisoner who provided a urine sample on the same date. Finding of guilt was based on substantial evidence and prisoner failed to explain what all these witnesses would add, other than arguments based on "pure speculation."

     A prisoner in New York challenged a disciplinary determination that he was guilty of violating prison rules prohibiting the unauthorized use of controlled substances, after two tests produced positive results for the presence of opiates in his urine.

     An intermediate New York appeals court found that the determination was supported by "substantial evidence," including a misbehavior report, hearing testimony, and documentary evidence concerning the drug tests and the chain of custody of the urine sample, as well as the test results. The court rejected the argument that an apparent inconsistency in the times noted by the corrections officer who obtained the prisoner's sample and kept it in his control before placing it in the freezer for testing constituted a "break" in the chain of custody sufficient to invalidate the test results. The officer's testimony at the hearing, the court found, adequately explained the apparent inconsistency in times, and showed that the chain of custody remained intact.

     The court also found that the plaintiff prisoner failed in his effort to prove that his positive test results were caused by either contamination from another inmate's urine, his medications, or a failure to recalibrate the testing equipment, based on testimony by both the correctional officer and medical personnel that indicated that no contamination could have occurred, and that the particular medications taken by the prisoner could not have caused a false positive.

     The court also rejected the argument that the prisoner was improperly denied the right to call witnesses at his hearing because he was not allowed to call all the inmates who had provided urine samples on the same day and a representative from the company that manufactured the urinalyses testing equipment.

     The court found that there was ample evidence in the record on the issues involved in the case, and that the plaintiff prisoner failed to provide anything other than "pure speculation" to explain what these witnesses might add to the proceeding. Accordingly, calling them would have "been irrelevant or redundant."

     Graziano v. Selsky, 779 N.Y.S.2d 848 (A.D. 3d Dist. 2004).

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While prisoner successfully proved that prison security director improperly put him in segregation in retaliation for filing "too many" complaints and grievances, in violation of his First Amendment rights, under the Prison Litigation Reform Act, he was not entitled to an award of compensatory damages in the absence of physical injury, but only $1 in nominal damages. Appeals court also upholds the decision not to award punitive damages, since the defendant acted out of "frustration," rather than with an "evil motive," and upholds application of PLRA section to limit attorneys' fee award in the case to $1.50.

     An Iowa inmate made numerous complaints and grievances while incarcerated, most of which followed unsuccessful requests for medical care to address a spinal cord injury. After the prison's head of security allegedly "tired" of this behavior, he placed the inmate in segregation for sixty days. The inmate filed a federal civil rights lawsuit against this individual and other prison officials claiming unlawful retaliation against him for exercising his First Amendment rights.

     The trial court denied a motion by the defendants for summary judgment, and following an evidentiary hearing, found that the head of security had unconstitutionally retaliated against the inmate by placing him in segregation because he filed numerous grievances. Applying the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e), however, the trial judge found that, since no allegation or evidence of physical injury was shown, damages that could be awarded were limited to nominal damages.

     It therefore awarded $1 in nominal damages. While the trial court considered the issue of whether to award punitive damages, it decided against doing so, finding that the defendant had not acted with an "evil motive or reckless indifference," but rather out of "frustration and a desire to protect his staff" from the inmate's perceived "abuse." The trial court further reasoned that, because the head of security had, in the meantime, retired, an award of punitive damages would also not serve to deter future conduct. Applying a limit on attorneys' fees found in the Prison Litigation Reform Act (PLRA) to the facts of the case, the trial court also awarded attorneys' fees of $1.50.

     In a 2-1 decision, a panel of federal appeals court upheld this result in its entirety. The dissent focused on the issue of whether compensatory damages could be awarded for First Amendment violations in the absence of an allegation of physical injury.

     The majority found that the PLRA's limitation on damages for mental or emotional injury to those who also sustain a physical injury applies to claims of First Amendment violations. In such cases, nominal damages are available, as are injunctive and declaratory relief, and, in appropriate cases, punitive damages, according to the court.

     The majority agreed that there was no basis, under the facts proved, for an award of punitive damages, in light of the absence of "evil motive" or "reckless or callous indifference" on the part of the defendant.

     The majority also found that the provision of the PLRA placing a limit on the award of attorneys' fees, 42 U.S.C. Sec. 1997e(d)(2), was constitutional. That provision provides that a portion of a judgment of damages, not to exceed 25 percent) shall be applied to satisfy the amount of attorneys' fees awarded against the defendant, and if the award of attorney fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant. Applying that to this case, the award of $1 in nominal damages alone justified an attorneys' fee award limited to $1.50, the majority stated.

     The dissent strongly argued that the majority's application of the bar on compensatory damages in the absence of physical injury, in a case involving First Amendment violations, in which such injuries would not typically occur, did not fit in with the intent of Congress in enacting the provision, which the dissenting judge believed was to deter frivolous litigation and claims.

     Royal v. Kautzky, No. 02-3446, 375 F.3d 720 (8th Cir. 2004).

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Federal appeals court rules that trial judge lacked an adequate factual basis to find that a ban by Congress on the use of federal funds to distribute sexually explicit publications to prisoners was "reasonably related" to a legitimate governmental interest in rehabilitation.

     A federal prisoner at a low-security correctional facility in Allenwood, Pennsylvania filed a lawsuit challenging a Congressional ban on the use of federal funds to distribute certain sexually explicit material to prisoners, along with its implementing regulation. The trial court rejected the prisoner's argument that the ban violates the First Amendment and dismissed his complaint, finding the prohibition to be reasonably related to the legitimate penological goal of prisoner rehabilitation.

     A federal appeals court has ruled that the trial court erroneously resolved the constitutional issue presented by the plaintiff prisoner "without an adequate factual basis" for doing so, requiring further proceedings.

     The legislation at issue, the Ensign Amendment, originally enacted as part of the Omnibus Consolidated Appropriations Act of 1997, prohibits the use of funds appropriated for the United States Bureau of Prisons (the "BOP") to "distribute or make available any commercially published information or material to a prisoner . . . [when] such information or material is sexually explicit or features nudity." Pub. L. No. 104-208, § 614, 110 Stat. 3009-66 (1996). The amendment has been codified at 28 U.S.C. § 530C(b)(6).

     An BOP implementing regulation defines the key terms of the amendment as follows:

"sexually explicit" means "a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation"; "features" means that the publication in question "contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues"; and "nudity" means "a pictorial depiction where genitalia or female breasts are exposed." 28 C.F.R. § 540.72(b). [PDF]

     An exception is made in the interpretation of the regulations for material that contains nudity "illustrative of medical, educational, or anthropological content." Examples given by the BOP in a 1996 program statement by the BOP include National Geographic, Our Bodies, Our Selves, the swimsuit issue of Sports Illustrated, and the "Victoria's Secret" catalog. Fed. Bureau of Prisons Program Statement 5266.07 (Nov. 1, 1996). (The most recent version of this program statement is 5266.10, [PDF], entitled "incoming publications.") The regulations, therefore, the court noted, are clearly targeted at the receipt of hardcore and softcore pornography by prisoners.

     On appeal, the appeals court agreed with the prisoner that the trial court erred in finding a rational connection between the ban on pornography and rehabilitation in the absence of any factual record, and in failing to engage in a "contextual, record-sensitive analysis" before determining the ban's overall reasonableness under Turner v. Safley, No. 85-1384, 482 U.S. 78 (1987).

On remand, therefore, the District Court must first identify with particularity the specific rehabilitative goals advanced by the government to justify the restriction at issue, and then give the parties the opportunity to adduce evidence sufficient to enable a determination as to whether the connection between these goals and the restriction is rational under Turner.

     To say, the appeals court reasoned, that that rehabilitation legitimately includes the promotion of "values," broadly defined, "with no particularized identification of an existing harm towards which the rehabilitative efforts are addressed," would essentially be to acknowledge that "prisoners' First Amendment rights are subject to the pleasure of their custodians."

While the actual right to view materials subject to the Ensign Amendment's proscriptions might be significantly narrow in this case, courts may not abdicate their responsibility to scrutinize carefully the government's reasons for infringing that right. Were the Ensign Amendment's scope limited to federal prisoners who have committed sex crimes or violence against women, the means-end connection would be sufficiently obvious such that the first prong of Turner could be resolved on the basis of common sense. [...] However, we do not find the connection between the Ensign Amendment and the government's rehabilitative interest to remain obvious upon consideration of the entire federal inmate population, including those prisoners not incarcerated for sex-related crimes.

     The court stressed that it was not saying that such a connection could not be made, only that there was no factual record in this case on which to base such a finding. The court remanded for further proceedings to establish such a record.

     Ramirez v. Pugh, No. 02-2101, 2004 U.S. App. Lexis 16619 (3d Cir. 2004).

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

     Editor's Note: Another federal appeals court previously rejected a First Amendment challenge to the Ensign Amendment and its implementing regulation in Amatel v. Reno, No. 97-5293, 156 F.3d 192 (D.C. Cir. 1998), finding the restriction on the distribution of sexually explicit material to be reasonably related to the asserted penological interest of prisoner rehabilitation. That court saw no need for an evidentiary record to support that finding, arguing that its own "common sense" was sufficient to verify the rational connection between the Ensign Amendment's ban on sexually explicit publications and the asserted goal of rehabilitation. That court still did, however, cite a number of scholarly studies supporting the proposition that "pornography leads to male objectification of women, and that certain types of pornography can lead to male aggression and desensitize viewers to violence and rape."

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Inmate had no protected property interest in the interest that accrued on an account containing his work release wages, so that a policy of the Alabama Department of Corrections prohibiting him from receiving such interest was constitutional.

     A former Alabama inmate, who had participated in the work release program while incarcerated, filed a lawsuit against the Alabama Department of Corrections challenging a policy which prohibits prisoners in the program from receiving the interest earned on bank accounts in their name into which the majority of their earnings from the program are deposited. The plaintiff prisoner claimed that the failure to pay this interest to him constituted an unconstitutional taking of property.

     Inmates in the work release program must have any wages paid directly to the Department, which then withholds a statutorily determined percentage (currently 40%), and deposits the remainder of the funds into bank accounts in the prisoner's name. The funds placed in the account, minus any withdrawals that the prisoner makes while incarcerated, is paid to the prisoner upon their release. While the accounts earn interest, the Department's policy prohibits the prisoner from receiving that interest. Instead, the interest is used in part by the Department to recoup the cost of administering the accounts, and also to fund various recreational activities for prisoners.

     A federal appeals court has ruled that the policy in question is constitutional. The state of Alabama, the court found, had not created any protected property interest in the interest earned on such accounts, so that the denial of payment of that interest to the plaintiff did not deprive him of anything to which he was entitled.

     The "Takings Clause" in the Fifth Amendment, which was made applicable to the states through the Fourteenth Amendment, provides that "'private property shall not be taken for public use without just compensation.'" A similar rule applies under Alabama state law. But to state a "takings" claim under either federal or Alabama law, the court noted, a plaintiff must first demonstrate that he has a property interest that is constitutionally protected.

     After examining prior Alabama case law and the applicable statutes and regulations, the federal appeals court ruled that the state had not created any protected property interest for the inmates in receiving the interest. Accordingly, there was no "taking," since nothing was "taken" to which the inmate was entitled.

     Givens v. Alabama Department of Corrections, No. 03-14086, 2004 U.S. App. Lexis 17248 (11th Cir. 2004).

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Illinois statute which allowed the involuntary administration of psychotropic medication to a pretrial detainee was not unconstitutional, but in the case of the individual plaintiff detainee, the trial court improperly granted the state's request to medicate him.

     A pre-trial detainee in Illinois who told police, when he was arrested, that he was their "commander" and a "priest of the high order," and who struggled with and struck them, was found to be unfit for trial, and was admitted to a state mental health center, receiving various anti-psychotic drugs. At one point, he was found fit for trial after receiving such medication, and was released on bond, but once out, he ceased taking his medication and was again found unfit to stand trial. He was remanded to the custody of the state Department of Human Services for inpatient treatment, and readmitted to the mental health center.

     His treating psychiatrist filed a petition with the court for involuntary treatment with anti-psychotic medication on a non-emergency basis. The psychiatrist indicated that the detainee was suffering from schizophrenia, was delusional, and had deteriorated in his ability to care for himself.

     The detainee filed a motion to dismiss the petition, arguing that a section of the state mental health code, 405 ILCS 5/2-107.1(a-5)(4)(1), allowing a court to order such involuntary administration of psychotropic medication was unconstitutional as applied to pre-trial detainees generally and to him specifically. The trial court rejected these arguments and ordered that he be involuntarily medicated for a 90-day period. He was later tried and found not guilty by reason of insanity.

     On appeal from the trial court's order, an intermediate Illinois appellate court rejected the argument that the statute was unconstitutional as applied to pre-trial detainees in general. The statute requires evidence that proves by clear and convincing evidence that the benefit from the involuntary administration of the medication would outweigh any harm that it might cause.

     A court considering a petition under the statute, the appeals court noted, has to consider what important governmental interests are at stake, whether the involuntary medication will significantly further those interests, whether the medication is "necessary" to further those interests, and whether the administration of the drugs is "medically appropriate," or, in other words, in the patient's best medical interest.

     In this case, however, the appeals court found that the trial court had improperly granted the petition to involuntarily administer psychotropic medication to the detainee. A stipulation as to what testimony various medical personnel would give if called at trial did not adequately address, the appeals court found, what important governmental interests were at stake, or whether the involuntary medication would "significantly further" those interests or was "necessary." Additionally, the stipulation, which was the basis of the trial court's ruling, did not adequately address the issue of whether the involuntary medication was in the detainee's "best interests."

     While the detainee had been released by the time the appeal of the order reached the court, it decided to rule on the issue in the case anyway, rejecting the argument that the case was moot, in light of the short time period such orders usually were in effect, and the strong public interest in resolving the question presented.

     In Re Mark W., No. 05-02-0461, 811 N.E.2d 767 (Ill. App. 5th Dist. 2004).

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Prisoner's raising of his complaint in a disciplinary hearing might amount, in some circumstances, to exhaustion of remedies prior to commencing litigation for purposes of Prison Litigation Reform Act.

     A former inmate in a New York detention center sued correctional officers there seeking damages for injuries he suffered when he was allegedly attacked by another inmate who he claimed was incited by one officer and when another officer purportedly left him for seven hours with his hands cuffed behind his back, in a cell with another prisoner. The trial court denied the defendant officers' motion for dismissal on the basis of qualified immunity, but dismissed the lawsuit on the basis of the plaintiff's alleged failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).

     A federal appeals court vacated the dismissal and ordered further proceedings. The detention facility where the plaintiff was incarcerated is operated by the U.S. Bureau of Prisons (BOP), which provides a grievance procedure applicable to confinement-related issues, which consists of up to four steps, depending on the circumstances.

     After the alleged assault, in which the plaintiff prisoner was injured, he himself received a disciplinary infraction for "fighting with another person," and was placed in administrative detention while awaiting a hearing. At the hearing, the prisoner described the circumstances surrounding the attack, including a correctional officer's alleged comment to the prisoner who attacked him, which allegedly helped incite the attack. Despite this, he was found guilty of the infraction. He filed an appeal of the disciplinary conviction, and at the first level, the conviction was upheld. On further review by the BOP Central Office, the Central Office ruled in his favor, finding that the incident report did not describe any factual evidence the prisoner was actually fighting "and not a victim in this case." After a new hearing, the prisoner was exonerated.

     In the second complained of incident, the officer who allegedly left him handcuffed for seven hours, causing him severe pain in his shoulder and back, subsequently issued a disciplinary infraction to him, citing him for "refusing to obey an order." The prisoner contested this, stating that he submitted to the order to be handcuffed, and that the officer subsequently refused to respond to his requests to be uncuffed as time went on.

     The prisoner was found guilty of the infraction, and his appeal to the facility warden was denied, following which a further appeal was granted, directing the facility to conduct further investigation because the "evidence is contradictory." Upon yet another further appeal of the disciplinary determination, the regional office "elected to expunge the incident report." Having prevailed, the prisoner filed no further appeals.

     The appeals court ordered further proceedings, therefore, on the issue of whether the prisoner, in complaining about the first officer's conduct through a disciplinary appeal engaged in exhaustion of remedies sufficient to comply with BOP regulations, or whether he was required to file a separate grievance against the officer. Additionally, the court said, there was the question of whether the prisoner's submissions in the disciplinary process were enough to put the prison officials on notice of the prisoner's concerns about the officer's role in the other inmate's assault on him. The appeals court directed the trial judge to address these issues.

     The plaintiff prisoner argued that, because under BOP regulations the appeals process for disciplinary rulings and for grievances is "one and the same," he reasonably believed that raising his complaints during his disciplinary appeal sufficed to exhaust his available administrative remedies. The appeals court stated that this argument "cannot be dismissed out of hand." The intent of the PLRA's exhaustion requirement, the court said, was to provide prison officials with sufficient notice of the prisoner's claims and an opportunity to address them through an administrative process prior to litigation. In further proceedings in this case, the question of whether the prisoner substantively satisfied the exhaustion requirement will be addressed.

     Johnson v. Testman, No. 02-0145 2004 U.S. App. Lexis 17236 (2d Cir. 2004)

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Prisoner who was injured while doing electrical work as part of prison work assignment was entitled to reversal of summary judgment for defendants in his Eighth Amendment deliberate indifference claim against supervisors. There was sufficient evidence to raise a factual issue as to whether the defendants knew of the risks the prisoner would face from the work he was being assigned to do.

     After receiving a severe electrical shock while he was working as an electrician at an Indiana correctional facility, a prisoner filed a federal civil rights lawsuit seeking to hold two supervisors liable on the basis that they were deliberately indifferent to the risk of harm he faced, and had knowingly placed him in a dangerous situation in violation of the Eighth Amendment.

    The trial court granted summary judgment for the defendants on the deliberate indifference claim, finding that the plaintiff lacked evidence that the defendants had knowingly placed him in a dangerous situation. The federal court then relinquished jurisdiction over state law personal injury claims the plaintiff also asserted in his federal lawsuit.

     A federal appeals court overturned this result.

     The prisoner had been directed to locate an electrical circuit in a food industry plant capable of handling the additional load of another machine. The prisoner contended that he was assigned to do potentially dangerous electrical work even though he was not a journeyman electrician. He further claimed that he and his team first asked one of the supervisors to let them perform the work after hours with the power off, but the supervisor refused on the basis of his desire to reduce overtime costs. He further claims that he asked a supervisor for protective gloves, but that this request was denied.

     The prisoner and one of the supervisors climbed above the ceiling of the plant and began testing the electrical lines using a circuit tracer which was attached by stripping the insulation from the line and attaching alligator clips to the exposed wire. While the prisoner did this, he alleged, the supervisor stayed by his side instead of climbing down to shut off the power.

     The prisoner was using pliers to strip the insulation from a live 480-volt line in order to attach the alligator clips when current from the line entered his left middle finger and exited his left knee, knocking him unconscious.

     The two defendant supervisors denied much of this account factually, claiming that there were other reasons for the failure to authorize after-hours work, such as preventing an accidental power outage elsewhere in the plant, and that the prisoner "declined" an offer of protective gloves. One of the supervisors also claimed that once a circuit was identified for testing, he was turning the power to it off. He claimed that the prisoner himself was at fault because of failing to verify that the line was dead before stripping away the insulation.

     The appeals court found that these two conflicting accounts of how the prisoner suffered his injuries made summary judgment inappropriate. If the prisoner's account was believed by a fact finder, there was a basis for finding that the defendants knowingly placed him in a dangerous situation, in deliberate indifference to a serious risk of harm. This evidence, if believed, presented more than mere negligence. The reinstatement of the federal claim, the appeals court noted, also reinstated the plaintiff's state law personal injury claims in the federal proceeding.

     Hall v. Bennett, No. 02-2683, 2004 U.S. App. Lexis 16609 (7th Cir. 2004).

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California prison regulation which prohibiting inmates from wearing long hair was reasonably related to legitimate penological interests such as security, hygiene, prison workplace safety, and prevention of escapes. Accordingly, the regulation did not violate either the First Amendment of a Native American prisoner or a federal statute concerning Native American religious freedom.

     A Native American inmate in the California state prison system appealed from a trial court decision in favor of prison officials in his federal civil rights lawsuit claiming that the California Department of Corrections' hair length regulation infringes upon the free exercise of his Native American religious beliefs in violation of the First Amendment. He also appealed from the trial court's conclusion that he could not state a claim on which relief could be granted under the American Indian Religious Freedom Act of 1978 (AIRFA), 42 U.S.C. § 1996.

     In upholding this result, a federal appeals court first found that the AIRFA was simply a "policy statement" and did not create any judicially enforceable individual rights on which a lawsuit could be based. The AIRFA is a joint resolution of Congress that establishes the "policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions . . ., including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."

     Further, while the trial court found that the plaintiff prisoner sincerely believes that his hair is sacred as part of his Native American religion, and that he should not cut it except in certain circumstances, such as to express mourning for the death of a relative, etc., the regulation prohibiting male inmates from wearing their hair longer than three inches, or in a manner extending over the eyebrows or below the top of the shirt collar while standing upright was supported by legitimate penological interests.

     The defendant Department presented six different penological interests to the court that it claimed were advanced by the hair length regulation. They were:

1. Short hair makes it easier to identify inmates who leave approved areas, create disturbances, or pose an escape risk; 2. Short hair facilitates searches for concealed contraband, and reduces the difficulty and time needed for such searches; 3. Short hair promotes hygienic living conditions; 4. Short hair ensures that prisoners who work in industrial jobs can wear safety devices like goggles; 5. Short hair reduces animosity among prisoners, especially those in prison gangs who show loyalty through their hairstyles; and 6. Short hair encourages a positive self-image, which may facilitate employment opportunities for inmates upon their release.

     The defendant Department presented evidence that preventing an escaped prisoner from being able to easily change his appearance by cutting his hair aided in recapturing escapees, and the trial court also found that it had valid concerns about prisoners concealing contraband in long hair and having problems with hygiene and workplace safety, based on past experiences, including a significant problem with lice in the prison population and the fact that physical examinations of inmates for lice took longer for inmates with long hair. The appeals court agreed with the trial court that the argument that the regulation served the interest of preventing gang identification was weak because "Skinhead inmates could still display gang loyalty by shaving their heads, which did not violate the regulation." Finally, while the trial court did not "specifically state whether it found that promoting a prisoner's positive self-image was a valid penological interest, but such a conclusion can fairly be inferred from the court's order."

     The federal appeals court failed to find that any portion of this ruling was clearly erroneous, and found that there was a reasonable relationship between the hair length regulation and the stated penological interests, which was sufficient to uphold the regulation under First Amendment analysis.

     In a footnote, the appeals court stated that it was expressing no opinion as to whether the regulation violates the Religious Land Use & Institutionalized Persons Act (RLUIPA), which provides that the government may not impose a substantial burden on an inmate's exercise of religion unless the regulation in question furthers a compelling state interest in the least restrictive manner. 42 U.S.C. § 2000cc-1(a), since the plaintiff did not bring his claim under that statute, but only under the First Amendment.

     Henderson v. Terhune, #02-17224, 2004 U.S. App. Lexis 16613 (9th Cir. 2004).

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     Editor's Note: For an opposite point of view, see Mara R. Schneider, Note, "Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not," 9 Mich. J. Race & L. 503, 507-12 (2004).

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Federal appeals court rules that strip searches performed on young girls following their entry into custody in juvenile detention centers were constitutional on the basis of the special need to protect them and other children in the facility, but that "repetitive" strip searches conducted while the juveniles remained in custody are violative of the Fourth Amendment unless there is reasonable suspicion that the juvenile possesses contraband.

     The parents of two female children appealed from a trial court ruling that, even though the state of Connecticut's blanket strip search policies for all those admitted to juvenile detention centers violates the Fourth Amendment, the particular strip searches of their daughters were lawful. They argued that the searches were unlawful because there was a lack of a reasonable basis to believe that the juveniles had done anything that would be a crime if committed by an adult, or had possessed weapons or other contraband.

     A federal appeals court concluded that the strip searches conducted "upon each initial entry into the custody of the state's juvenile authorities were lawful, but that repetitive searches, conducted while the girls remained in custody, violated the Fourth Amendment in the absence of reasonable suspicion that contraband was possessed."

     Persons placed in the state's juvenile facilities include juveniles accused of serious offenses, but detention also can occur if a parent refuses to take a child back into their home and the state cannot promptly find a bed elsewhere in a suitable facility. Juveniles who are troubled, and who have run away from home, become beyond the control of their parents, engaged in indecent or immoral conduct, been a truant or overtly defied school rules, or, if thirteen years of age or older, has engaged in sexual intercourse with a person of a similar age, may also be confined in the state's three juvenile detention facilities or in a number of other places with which the state has contracts.

     A policy specifies that a strip search shall be conducted upon each detainee's "initial intake" at a juvenile detention facility and upon each detainee's "readmission," or after any detainee has left the facility's supervision for a while for a furlough or hospital treatment or is returning to attend a court hearing. The policy also authorizes strip searches upon "reasonable belief that a detainee may be carrying dangerous contraband."

     One of the juveniles involved in the case was allegedly strip searched eight times. The second was strip searched twice.

     The trial court held that the overall strip search policy, applicable to all confined children in juvenile detention centers, violated the Fourth Amendment, but nevertheless ruled that the strip searches of the plaintiff's minors were reasonable because the history of both girls suggested "prospective behavior which would predispose them to bringing various contraband" into a facility," based on their rejection of authority. The trial court's final ruling contained no language about the alleged Fourth Amendment violation contained in the overall policy.

     A federal appeals court, reviewing this ruling, noted that a "special needs" standard applies to searches in detention facilities.

Strip searches of children pose the reasonableness inquiry in a context where both the interests supporting and opposing such searches appear to be greater than with searches of adults confined for minor offenses. Where the state is exercising some legitimate custodial authority over children, its responsibility to act in the place of parents (in loco parentis) obliges it to take special care to protect those in its charge, and that protection must be concerned with dangers from others and self-inflicted harm. [...] At the same time, the adverse psychological effect of a strip search is likely to be more severe upon a child [*21] than an adult, especially a child who has been the victim of sexual abuse.

     The appeals court noted that neither side in the case had called to its attention any prior appeals court ruling on the reasonableness of strip searches of juveniles in lawful state custody, in the absence of individualized suspicion of possession of contraband. It also noted, however, one case in which a court upheld strip searches of incarcerated juveniles, but only upon a showing of reasonable suspicion of possession of contraband, Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992) and a district court decision ruling unconstitutional strip searches of detained juvenile aliens conducted by immigration authorities. Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988).

     The appeals court found that the strong interest in preventing the introduction of contraband into the facility, and the role of the state in acting as a parent towards the juveniles justified an initial strip search upon admission to the facility, "but the state's opportunity to maintain surveillance during custody after an initial strip search, in addition to the availability of other search techniques, renders unreasonable a subsequent strip search in the absence of reasonable suspicion of possession of contraband."

     The court found that the state's primary non-law enforcement purposes for the searches were to protect the children from harm inflicted by themselves or other inmates, and protecting the safety of the institution. These valid purposes, combined with an additional purpose of detecting past abuse that the children may have been subjected to, combined to provide a number of "special needs" that confront the juvenile facilities at a child's initial admission to a detention facility.

Assessing all of the circumstances--the risks to the psychological health of the children from performing the searches and the risks to their well-being and to institutional safety from not performing the searches, we conclude that the strip searches upon initial admission do not violate Fourth Amendment standards.

     The appeals court did not reach the same conclusion, however, as to the "repetitive searches" undertaken after the children had been searched and remained in custody, in the absence of any " reasonable basis to think that they had acquired and secreted contraband while in custody." The court therefore found that three of the searches of the first child and the second search of the second child (which allegedly concerned a "missing pencil") were "unlawful." Further development of the record on remand, the court found, was also required as to two other searches of the first child, in order to make findings as to the possible existence of reasonable suspicion for those searches.

     The appeals court panel's decision was by a 2-1 vote, with one judge strongly dissenting against the upholding of the initial strip searches of both of the children, neither of whom had been charged with a crime, in the absence of reasonable suspicion. That judge would find that, "regardless of whether the suspicionless strip searches occurred upon entry or re-entry, they were unlawful."

     N.G. v. State of Connecticut, No. 02-9274, 2004 U.S. App. Lexis 18834 (2nd Cir. 2004).

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Sheriff's action in placing web cameras in a pre-trial detention center to broadcast images of the detainees on the Internet violated their 14th Amendment substantive due process right by subjecting them to punishment, federal appeals court rules, and therefore was properly enjoined.

     Punishment of pre-trial detainees is prohibited by the 14th Amendment, since they have not been convicted of any crime. Applying this principle, a federal trial court entered a preliminary injunction against the use of world-wide-web cameras ("webcams") in the Maricopa County Madison Street Jail. A federal appeals court has upheld that result.

When Maricopa County Sheriff Joe Arpaio announced the installation of webcams in the Madison Street Jail, he proclaimed, "we get people booked in for murder all the way down to prostitution. . . . When those johns are arrested, they can wave to their wives on the camera." Sheriff Arpaio also explained that his policy deterred crime and opened up the jails to public scrutiny: "The public has the right to know what's going on in our jails. . . . And I believe that they act as a tool to deter crime. We hope that the only visit people make to our jail is a virtual visit." In July 2000, four webcams began streaming live images of pretrial detainees to internet users around the world.

     The cameras were installed in a facility that was used exclusively to house pre-trial detainees, and were placed in areas of the jail that were not open to the public except through pre-arranged tours. They were also installed in close proximity to closed-circuit security cameras that were monitored 24 hours a day by officers.

     Three of the cameras were trained on the men's holding cell, including its bunk bed area, on the pre-intake area where incoming prisoners are photographed and fingerprinted, and on the intake search area where pre-trial detainees were subjected to patdown searches.

     The location of the final camera, the appeals court noted, "is hotly contested by the parties," with the plaintiffs in the lawsuit claiming that for at least six months, one webcam captures images of the toilet and surrounding area in the women's holding cell, and that it was only repositioned in the response to the lawsuit. The sheriff, however, contended that his officers moved the camera within hours of learning that it was displaying images of the toilet area over the Internet, and it was ultimately repositioned to capture images of the hallway outside of the holding cells.

     The appeals court noted that while the images were initially displayed on the Maricopa County Sheriff's website, the number of visitors viewing that site with the images "quickly overwhelmed" its capacity, so that the sheriff entered into an arrangement with a website called "Crime.com" to distribute the images to the public. Within a few days, the Crime.com website allegedly recorded six million "hits," with web users visiting from as far away as Sweden, Britain, and Germany. Crime.com ceased operations after the lawsuit was filed, but before the trial court granted the injunction.

     The lawsuit was brought by 24 former detainees at the jail. The appeals court rejected arguments that the case was moot or that the plaintiffs were unlikely to be back at the jail again and on display on the Internet. Evidence showed, for example, that one of the plaintiffs had been detained at the jail on twenty different occasions in a five-year period. Eleven other plaintiffs had also been detained at the jail previously on more than one occasion.

     The appeals court rejected the argument that the webcams assisted in the legitimate purpose of maintaining jail security. There were already closed-circuit security cameras stationed nearby and the webcam images could be viewed by "millions of people worldwide," making them "plainly an excessive response" to any interest in jail security.

     The appeals court also found that the sheriff's actions constituted punishment of the pre-trial detainees, causing them to suffer some harm or "disability," and were intended to punish them.

Plaintiffs were certainly harmed by Sheriff Arpaio's actions. Having every moment of one's daily activities exposed to general and worldwide scrutiny would make anyone uncomfortable. Exposure to millions of complete strangers, not to mention friends, loved ones, co-workers and employers, as one is booked, fingerprinted, and generally processed as an arrestee, and as one sits, stands, or lies in a holding cell, constitutes a level of humiliation that almost anyone would regard as profoundly undesirable and strive to avoid.

     The webcams, the court ruled "are not reasonably related to a non punitive purpose," and the trial court therefore did not abuse its discretion in issuing an injunction against them because the plaintiffs were likely to prevail on their claim that placing webcams in a pretrial detention center violates the Fourteenth Amendment substantive due process rights of pretrial detainees by subjecting them to punishment.

     A strong dissent by one judge argued that the use of the webcams was reasonably related to legitimate governmental objectives in deterring crime, and also that the majority made the "legally erroneous conclusion" that all levels of possible infliction of shame are constitutionally prohibited "punishment."

     Demery v. Arpaio, No. 03-15698, 378 F.3d 1020 (9th Cir. 2004).

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Death Penalty

     Texas prisoner on death row could pursue federal civil rights lawsuit claiming that the state's protocol for lethal injection violates the Eighth Amendment prohibition on cruel and unusual punishment, since that claim challenged the method of execution rather than the death sentence itself. Court finds that the prisoner was entitled to a temporary restraining order staying his execution by this method. Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004).

Defenses: Eleventh Amendment Immunity

     A county juvenile training facility was not entitled to Eleventh Amendment sovereign immunity against liability in a federal civil rights lawsuit concerning the alleged failure to adequately train employees and failure to investigate and prevent sexual abuse committed against one juvenile resident by another. The facility was not an arm of the state, because the county rather than the state would be responsible for paying any damage award against the facility, even though the facility was built pursuant to a state statutory scheme concerning juveniles found to be delinquent, dependent, abused, unruly or neglected, as well as juvenile traffic offenders. S.J. v. Hamilton County, Ohio, No. 02-3852, 374 F.3d 416 (6th Cir. 2004).

Defenses: Statute of Limitations

     One-year statute of limitations for personal injury lawsuits under Kentucky state law applied to a prisoner's declaratory judgment action claiming that his due process rights had been violated during a prison disciplinary hearing which found him guilty of violation of rules concerning dangerous contraband. Million v. Raymer, No. 2002-SC-0205-DG, 136 S.W.3d 460 (Ky. 2004). [PDF]

Disability Discrimination: Prisoners

     Federal trial court reinstates prisoner's disability discrimination case against prison officials under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. claiming that his rights were violated when he was denied the services of an aide to take him to the law library, school, recreation and the barbershop. The prisoner uses a wheelchair because of severe osteoarthritis in his hips, and the trial court originally dismissed the ADA claim on the basis of them being barred by sovereign immunity under the Eleventh Amendment because his claim was against state officials. The claim was reinstated on the basis of Tennessee v. Lane, #02-1667, 124 S. Ct. 1978 (2004), finding that Congress expressed its intent to abrogate Eleventh Amendment immunity unequivocally when it wrote the ADA and that it had the power to enact at least that portion of it that applies to cases implicating the fundamental right of access to the courts. Flakes v. Frank, 322 F. Supp. 2d 981 (W.D. Wis. 2004).

Drugs & Drug Screening

     Disciplinary finding against prisoner for violating rules against marijuana use was supported by sufficient evidence, including drug test results which were admissible despite certain problems concerning the chain of custody of a urine sample, where the sample was clearly identified and had an intact seal when it arrived in a reasonable period of time at the testing lab. Lucas v. Voirol, No. 2003-CA-001811-MR, 136 S.W.3d 477 (Ky. App. 2004). [PDF]

     Disciplinary determination that prisoner violated rules against possession of drugs was adequately supported by substantial evidence, including positive drug test results and misbehavior report. The chain of custody of the sample was shown, along with evidence that the testing procedures followed were proper. Otero v. Selsky, 779 N.Y.S.2d 648 (A.D. 3d Dept. 2004). [PDF]

First Amendment

     Alabama prisoner could not pursue declaratory judgment action for the purpose of obtaining a determination that a program allowing inmates to view movie videos they were allowed to borrow from a correctional facility library as an incentive for good behavior does not violate federal copyright law. The correctional facility discontinued the program because of a concern that it might violate copyright law. The court found that the prisoner suffered no "injury" from the suspension of the program giving him standing to pursue the claim, and the possibility that the program violated copyright laws did not subject the prisoner himself to any possible litigation, nor did he himself have any interest in the copyrights of the movies in question. Lane v. Sticker, No. 2011161, 876 So. 2d 469 (Ala. Civ. App. 2003).

Incarceration Cost Recovery

     Prisoner's due process rights were not violated by court proceeding which allowed State of Illinois to attach $4,000 in a bank account in the prisoner's name to recover costs incurred during his incarceration. State complied with applicable service and notice requirements of pre-judgment attachment statute. People Ex Rel. Director of Corrections v. Edwards, No. 5-02-0455, 812 N.E.2d 355 (Ill. App. 5th Dist. 2004).

Inmate Funds

     State statute authorizing Kansas correctional officials to adopt a regulatory scheme for assessing fees against inmates did not violate a prisoner's due process or equal protection rights and was not an invalid retroactive enhancement of his punishment. The legislation was supported by legitimate goals such as teaching fiscal responsibility and reimbursing the state for the costs of incarcerating the prisoners rationally related to the scheme adopted. Elliott v. Simmons, No. 03-3280, 100 Fed. Appx. 777 (10th Cir. 2004).

Inmate Property

     Prisoner was not entitled to relief from correctional institution's seizure and forfeiture of personal property which exceeded rules concerning space limitations for such property in his cell. Prisoner failed to show that the state lacked a "legitimate interest" in regulating the volume of property kept in prisoner cells, including legal materials, and the court rejected the argument that he had an unqualified right to keep all of his legal material in his cell. Prison rules allowed him to keep legal materials so long as they fit within the 2.4 cubic feet limitation generally applicable to all personal property kept in inmate cells. In re Application for Forfeiture of Unauthorized Items Confiscated From Inmates Pursuant to AR 5120-9-55, No. CA2003-05-021, 811 N.E.3d 589 (Ohio App. 12 Dist. 2004).

Medical Care

     Medical treatment of federal prisoner for chronic hepatitis C complied with Bureau of Prison regulations, and the prison warden was entitled to summary judgment on prisoner's claim that he was denied proper medical care. Kane v. Winn, 319 F. Supp. 2d 162 (D. Mass. 2004).

     The statement, in a notice of intent to file a claim against the state for the wrongful death of an inmate, that the prisoner died due to negligence in the medical care provided for his "condition of congestive heart" was adequate to present a claim. Rodriguez v. State of New York, 779 N.Y.S.2d 552 (A.D. 2d Dept. 2004).

     Prisoner's assertion that prison officials, in the course of testing his blood glucose level, "jabbed" a device "deep within the flesh" of his finger, causing "profuse bleeding" and "serious nerve damage," subsequently failing to provide adequate medical care for the resulting injuries was sufficient to state a claim for violation of the Eighth Amendment. Morgan v. Duran, No. 03-17134, 102 Fed. Appx. 587 (9th Cir. 2004).

Officer Assault: By Inmate

     New York's highest court upholds reversal of award of damages for death of two officers shot and killed by a prisoner transported from a correctional facility to a prosecutor's office for a polygraph test. In the lawsuit by the estates of the officers, the plaintiffs contended that their deaths were caused by the improper use of a detective squad's locker room as a prisoner detention area, which allowed the prisoner to gain access to the locker containing the gun because its lock was either open or defective, and that the city was therefore liable for violating state labor law and its own city code requiring that buildings be maintained in a safe condition. While a jury awarded verdicts of $5,226,252 for the survivors of one officer, and $8,975,625 for the second, these awards were overturned on appeal. The immediate decision upholds those reversals and held that a provision of state labor law imposing a general duty to furnish a workplace free from recognized hazards "does not cover the special risks faced by police officers because of the nature of police work." The court also rejected the argument that rules requiring building owners to maintain safe conditions could be used as a basis for liability in these circumstances. Williams v. City of New York, 811 N.E.2d 1103 (N.Y. 2004). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's civil rights lawsuit claiming that correctional officers assaulted him was barred on the basis of his failure to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e. While he did write letters of complaint to prison officials, he did not report the alleged assault to the officers' immediate supervisor, and did not appeal adverse determinations concerning his complaint. Stephenson v. Dunford, 320 F. Supp. 2d 44 (W.D.N.Y. 2004).

Prisoner Assault: By Inmates

     Correctional officer was entitled to qualified immunity from liability in a lawsuit against him for failing to intervene, and instead running to get help, when a prisoner he was escorting back to his cell was stabbed to death by another prisoner. There was no clearly established constitutional right to have the officer immediately intervene rather than summoning assistance. Rios v. Scott, No. 03-41088, 100 Fed. Appx. 270 (5th Cir. 2004). [PDF]

Prisoner Assault: By Officers

     Detainee failed to establish that detention center guards used excessive force against him. Evidence showed that he verbally confronted them and physically pulled back from a booking counter when they tried to frisk him to determine if he possessed any concealed weapons. This determination was supported by a videotape of the incident in question. Tapia v. City of Albuquerque, No. 03-2133, 101 Fed. Appx. 795 (10th Cir. 2004).

Prisoner Death/Injury

     Evidence sufficiently established that prisoner's injury in a slip and fall while exiting a prison shower was not caused by any negligence on the part of prison officials. Wigfall v. Texas Department of Criminal Justice, No. 01-02-01264-CV, 137 S.W.3d 268 (Tex. App. 1st Dist. 2004).

Prisoner Discipline

     Disciplinary determination that prisoner violated rules against the possession of contraband was adequately supported by substantial evidence, including his admission that he had an empty pretzel bag containing loose poppy seeds and a misbehavior report. Gonzalez v. Goord, 779 N.Y.S.2d 602 (A.D. 3rd Dept. 2004). [PDF]

     Barring an accused inmate from two disciplinary hearings was necessary to preserve safety based on his conduct at another hearing held earlier that same day which required his forcible removal and resulted in a struggle with the officers bringing him back to his cell. Alexander v. Ricks, 779 N.Y.S.2d 606 (A.D. 3d Dept. 2004). [PDF]

     Circumstantial evidence presented at a disciplinary hearing concerning the prisoner's alleged committing of an "unhygienic act" of throwing feces and damaging of state property was sufficient to support a determination of his guilt. Correctional officer indicated that there had been no feces in a cell when he observed it earlier, that the presence of the feces outside the bars indicated that they had been thrown inside from the outside, and that the accused prisoner, serving as a food porter, was the only inmate present outside the cell during the period in question. Martinez v. Goord, 779 N.Y.S.2d 824 (A.D. 3d Dept. 2004). [PDF]

     Prisoners were entitled to habeas relief when their disciplinary convictions, which were the basis for revocation of their earned credits, were not supported by "some evidence." Their requests for disbursements from their inmate mandatory savings accounts to pay court copying fees for records and transcripts needed to prepare applications for post-conviction relief were reasonable under both a prison policy concerning the use of funds in such accounts and an Oklahoma state statute, and their disciplinary convictions for obtaining money by false pretense were therefore not supported by the evidence. Gamble v. Calbone, #03-6057, 375 F.3d 1021 (10th Cir. 2004).

Prisoner Suicide

     Deliberate indifference to the risk that a detainee in a county jail would commit suicide was not shown where the jailer removed shoes and socks from the detainee's cell, had him placed in a padded "lunacy cell," and instructed personnel to place him on a suicide watch. Additionally, when the detainee was subsequently observed in the cell without clothes and in a "frog-like" position, a nurse was instructed to observe the detainee to assist in determining whether the cell should be entered, and it was concluded that the detainee was merely sleeping at the time. The fact that this conclusion was incorrect might show negligence, but not the deliberate indifference required for a civil rights claim. Gray v. Tunica County, Mississippi, #03-60761, 100 Fed. Appx. 281 (5th Cir. 2004). [PDF]

Religion

     Further proceedings were required to determine whether prison officials' refusal to allow a Jewish prisoner to have a Sukkah booth in the prison yard, an enclosure within which to celebrate the religious holiday of Sukkot and within which to eat meals during the holiday, was based on genuine security concerns or were a pretext for interfering with his right to exercise his religion. Defendants were not entitled to qualified immunity from prisoner's claims. Wares v. Vanbebber, 319 F. Supp. 2d 1237 (D. Kan. 2004).

     Prison policy prohibiting inmates from wearing a visible string of Muslim prayer beads outside of his cell, when the necklace was larger than 1/8th of an inch in diameter did not violate his right to religious freedom. The rule was the least restrictive means that prison officials had of pursuing a legitimate penological interest in suppressing gang activity, and allowed the Muslim prisoner to wear prayer beads outside his cell if they were small enough so that they would be "unobtrusive" under his shirt. Charles v. Frank, No. 04-1674, 101 Fed. Appx. 634 (7th Cir. 2004).

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

     Annual Report: Texas Department of Criminal Justice Annual Review 2003. [PDF]

     Report: Final Report of the Independent Panel to Review Department of Defense Detention Operations. [PDF] (August 24, 2004) Report of a panel appointed by U.S. Secretary of Defense Donald Rumsfeld to investigate alleged abuse of prisoners at Department of Defense Detention facilities overseas.

     Report: Investigation of U.S. Military Intelligence Activities at Abu Ghraib. (August 25, 2004). [PDF] A U.S. Army investigation into the conduct of members of the 205th Military Intelligence Brigade at Abu Ghraib Prison in Iraq which found that 27 Brigade members allegedly requested, encouraged, condoned, or solicited military police to abuse detainees, participated in the abuse of detainees or violated established interrogation procedures, laws, and regulations during interrogation operations.

     Research: Ohio Department of Rehabilitation and Correction, Ohio Corrections Research Compendium. (April 2004, 274 pgs.). [PDF]

     Statistics: The Sourcebook of Criminal Justice Statistics, 2002 (August 2004). Visit Sourcebook Online which is updated as new material becomes available. The Sourcebook of Criminal Justice Statistics, 2002, the 30th edition, presents a broad spectrum of criminal justice data from more than 100 sources in 6 sections: characteristics of the criminal justice systems, . public attitudes toward crime and criminal justice topics, the nature and distribution of known offenses, characteristics and distribution of persons arrested, judicial processing of defendants, and persons under correctional supervision. Nearly all the data presented are nationwide in scope and, where possible, they are displayed by regions, States, and cities to increase their value for local decision-makers and for comparative analyses. The report includes over 600 tables, figures, subject index, annotated bibliography, technical appendixes with definitions and methodology, and list of source publishers and their addresses. To order: Printed copies are available for a postage and handling charge of $9.00 for U.S. buyers and $39.00 for buyers from Canada and other countries. NCJ 203301. A CD-ROM of the 1994, 1995, 1996, 1997-1998, 1999, 2000, 2001, and 2002 editions is available for a postage and handling charge of $9.00 for U.S. buyers and $39.00 for buyers from Canada and other countries. NCJ 203302.

     Reference:

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

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