FEATURED CASES

WITH LINKS TO THE OPINIONS

Indiana Department of Corrections did not violate an employee's Fourth Amendment rights by requiring her to submit to a psychological examination inquiring into details concerning her personal life.

     A research analyst employed by the Indiana Department of Corrections was told, after working for two years, that she would have to submit to a psychological examination to keep her job.

     She complied, but filed a federal civil rights lawsuit against the Department and two of its officials, her immediate supervisor and the official who ordered her to take the test, claiming that the test, which lasted two hours and inquired into a number of details concerning her personal life, was an unreasonable "search" in violation of her Fourth Amendment rights. She also asserted state law claims for invasion of privacy and intentional infliction of emotional distress.

     The appeals court stated that if subjecting a public employee to a probing psychological examination is a search, then this one may well have been unreasonable, because this employee is merely a researcher and "has no contact with prisoners, is not armed or privy to state secrets, and has no other powers or opportunities, so far as we can tell, that would warrant imposing such a condition of employment."

     Ultimately, however, the appeals court ruled that the Fourth Amendment should not be interpreted as reaching "the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information."

The implications of extending the doctrine of those cases to one involving mere questioning would be strange. In a case involving sex or some other private matter, a government trial lawyer might be required to obtain a search warrant before being allowed to conduct a cross-examination--or the judge before being allowed to ask a question of the witness. Police might have to obtain search warrants or waivers before conducting routine inquiries, even of the complaining witness in a rape case, since they would be inquiring about the witness's sexual behavior. Questioning in a police inquiry or a background investigation or even a credit check would be in peril of being deemed a search of the person about whom the questions were asked. Psychological tests, widely used in a variety of sensitive employments, would be deemed forbidden by the Constitution if a judge thought them "unreasonable."

     The appeals court did not believe that the questioning involved in the psychological test was a search for purposes of the Fourth Amendment. It noted that states are, of course, free to protect privacy more strictly than the Fourth Amendment requires, and that the plaintiff was free to continue to assert her state-law claims in state court, "where they belong."

In most states if prison officials were to publicize highly personal information obtained from someone in Greenawalt's position by the kind of test of which she complains, she would have a state-law claim for invasion of her tort right of privacy. Indiana, it is true, has thus far refused to recognize this branch of the tort law of privacy. But the Fourth Amendment does not expand accordion-like to fill what may be a gap in the privacy law of a particular state.

     The appeals court noted that, even if it was wrong in deciding that the Fourth Amendment does not provide a remedy for the "unpleasantness of being subjected to a psychological test," there was no doubt that the existence of a right against having to submit to such a test as a condition of employment was not "clearly established" when the lawsuit was filed, entitling the defendants to qualified immunity.

     Greenawalt v. Indiana Department of Corrections, No. 04-1997, 397 F.3d 587 (7th Cir. 2005).

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

     Editor's note: Implicit in the court's ruling, which found that the requirement of the psychological test was not a Fourth Amendment violation in this case, where the employee had no contact with prisoners, was the principal that such a requirement would also not violate the Fourth Amendment if applied to a correctional officer or other employee who did have prisoner contact and/or was armed.

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Ban on non-subscription bulk mail and catalogs was not rationally related to a legitimate penological interest and therefore violated the First Amendment, but correctional officials were entitled to qualified immunity.

     The Washington state Department of Corrections appealed from an injunction issued by a federal trial court which ruled that a ban on the receipt by prisoners of non-subscription bulk mail and catalogs violates the First and Fourteenth Amendments. Additionally, thirteen correctional officials appealed from the denial of their motion for qualified immunity for damages as a result of their actions restricting inmates from receiving third-party legal materials which allegedly posed a threat of increasing the risk of violence.

     A federal appeals court upheld the rulings of the trial court. Under the legal standard set forth in Turner v. Safley, 482 U.S. 78 (1987), it held, the Department's ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is therefore unconstitutional. While the ban violated the First Amendment rights of Prison Legal News (PLN), the plaintiff publisher, the individual defendants were entitled to qualified immunity for doing so, because those rights were not clearly established.

     The appeals court also ruled that the trial judge was not wrong in declining to grant qualified immunity to the individual officials, however, for their policies regarding receipt of third-party legal materials. The court found that if the evidence at trial showed that the Department applied the policy in a discriminatory way based on the content of the legal materials, as PLN argued, they violated clearly established law.

     The plaintiff Prison Legal News is a Washington nonprofit corporation that publishes and distributes publications regarding inmate legal issues, including a monthly subscription magazine, which has 3,000 subscribers across the United States, including 120 who are inmates in Washington's state correctional facilities.

     The Department's Policy Directive contains provisions prohibiting inmates from receiving "bulk mail" unless it is a "subscription publication." In contrast to first and second-class mail rejected due to prohibited content, "no rejection notice is required for bulk mail that is not a subscription publication." Additionally, inmates are not permitted to receive catalogs by mail, whether sent first class, second class, or at a "bulk mail" rate. If mail other than that constituting bulk mail is rejected for delivery, inmates receive notice of the rejection and may appeal the decision.

     The policy regarding "third-party legal materials" state that such materials must consist of "judicial opinions (published and unpublished), reports and recommendations, orders, complaints or answers, settlement agreements, class action notices, legal briefs and memoranda, and motions," and also comply with other requirements against the delivery of "mail containing information which, if communicated, could create a risk of violence and/or physical harm to any person," and be stamped "approved third-party legal materials" by correctional staff members.

     The trial court held that these policies regarding non-subscription bulk mail and catalogs violated the PLN's First Amendment rights, but that individual defendants were entitled to qualified immunity, because the law on the subject was not clearly established. It further concluded that summary judgment was not appropriate for the claim regarding third-party legal materials because "resolution of these issues requires highly fact-dependent inquiries that . . . are not amenable to summary determination." The decision on qualified immunity was limited to the policies on non-subscription bulk mail and catalogs.

     In a prior case, Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001), the court held that publishers and prisoners have a constitutionally protected right to receive subscription non-profit bulk mail and that a ban on bulk mail was unconstitutional as applied to such mail. The appeals court now ended that ruling to non-subscription non-profit bulk mail. The only distinguishing feature, the court noted, was that the inmates in the present case did not pay for the mail sent to them. But the court noted that the prisoner recipients had requested the material.

This case is not a scenario in which a publisher has attempted to flood a facility with publications sent to all inmates, regardless of whether they requested the publication. In fact, PLN submitted evidence that at one of the correctional facilities, the mailroom received an average of only thirty-one catalogs and non-subscription bulk rate mail per day.

     The appeals court concluded that the receipt of such non-subscription bulk mail and catalogs did not impose a greater burden on prison resources than subscription bulk mail and catalogs, and that First Amendment rights were implicated in the sending and receipt of such materials. It further concluded that the same process of notification on the withholding of such publications should be followed. The appeals court also upheld, however, the qualified immunity finding of the trial court, finding that reasonable correctional officials could have believed that the materials involved in this case were different enough to merit a different result.

     The appeals court rejected the argument that the grant of summary judgment was improper in light of evidence submitted by PLN to suggest that prison officials acted with "a specific intent to interdict the information it offered prisoners about their legal rights." It noted that "a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated," citing Crawford-El v. Britton, 523 U.S. 574 (1998).

     As for the rules concerning third-party legal materials, the trial court "correctly held that the DOC regulation prohibiting mail that could create a risk of violence and physical harm to any person is constitutional on its face." The only issue was whether the prison officials applied the rule in a manner that was unconstitutional, i.e., in manner that singled out PLN for discriminatory treatment, denying delivery of approximately 100 legal documents while allowing other publishers to deliver similar material.

PLN suggests that the real motive of the prison officials who prevented third-party legal materials from being delivered was to suppress materials that embarrass the DOC and educate inmates on how to file their claims. Although an improper motive ordinarily will not defeat a request for qualified immunity, if the policy were applied in a discriminatory fashion based on the content of the material, this would clearly violate PLN's First Amendment rights. Accordingly, we hold that the prison officials are not entitled to qualified immunity regarding PLN's claim that they violated its constitutional rights in banning the receipt of the third-party legal materials.

     Prison Legal News v. Lehman, No. 03-35608, 397 F.3d 692 (9th Cir. February 01, 2005)

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

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Detainee adequately alleged facts from which a reasonable jury could decide that a doctor employed by a private company providing medical services at a county jail was deliberately indifferent to his need for medical treatment for his allegedly severed tendons on his right hand.

     A man severed several tendons in his right hand immediately before his pre-trial detention in a county jail. After he was released, he sued the county sheriff, and a number of other defendants, including his treating physician at the jail, claiming that his constitutional right to adequate medical care in jail had been violated.

     A federal appeals court found that the plaintiff did not put forward sufficient evidence to establish a genuine issue of fact as to whether his injuries resulted from a policy or custom of either the sheriff, or a company providing medical services at the jail, so summary judgment for these defendants, as well as the county, was upheld. The court did find, however, that there was a genuine issue as to whether the treating physician was deliberately indifferent to his need for medical treatment for his hand, so summary judgment in favor of the doctor was reversed.

     The detainee was actually taken to the county jail when an ambulance and police car arrived at a home where he had just severely cut his hand after falling partway through a glass door. It was discovered that there was an outstanding warrant for his arrest. Following the arrest, he was taken to a hospital emergency room for treatment.

     The detainee claimed that during the thirty-one days he was at the jail, the bandages on his arm were changed only once, and the jail nurses did not check the wound on any regular basis. He also claimed that he believed he had the opportunity to speak with a doctor only once during the entire time he was incarcerated.

     The defendant doctor, an employee of the private company supplying medical services at the jail, served as the medical director of the county jail and workhouse. On the basis of documents, he acknowledged that he must have seen him on at least one occasion.

     After his release from the county jail, two surgical operations were performed which reconnected the detainee's tendons, but these did not fully restore his full use of his right hand, according to the complaint, interfering with his ability to make a fist, write normally, type with the injured hand, lift weights, or participate in sports.

     The appeals court noted that the detainee's medical need was "quite obvious," and that his medical request forms stated that his tendons were completely severed--a "condition that almost any lay person would realize to be serious." Additionally, an affidavit from the emergency room physician who had treated him verified the seriousness of this condition.

     The court found that there was a genuine issue of material fact as to whether the defendant doctor had actual or constructive knowledge of the detainee's condition and his need for treatment, based on the detainee's submissions of medical request forms, and the doctor's one visit with the detainee. A reasonable jury could conclude, the appeals court found, that the doctor was not being truthful or accurate when he stated that he had not seen the medical request forms and did not know that the detainee's tendons were in fact severed. There was also evidence as to the possible effect of the alleged failure to provide appropriate medical treatment.

     The trial court therefore, erred in granting summary judgment for the defendant doctor.

     The appeals court also found that the doctor, although employed by a private entity, acted under color of state law, based on the role he played in directing medical care for detainees at the facility.

     Johnson v. Karnes, No. 03-4200, 2005 U.S. App. Lexis 3278 (6th Cir. 2005).

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U.S. Supreme Court rules that prisoners could challenge state parole procedures through a federal civil rights lawsuit, and were not required to instead seek habeas corpus relief, when success in their challenge would not directly result in their release from custody.

     Two Ohio prisoners filed federal civil rights lawsuits under 42 U.S.C. Sec. 1983, challenging determinations by state parole officials that one of them was not eligible for parole and that the other was not suitable for parole. They argued that the state's parole procedures violated their constitutional rights. In both cases, the federal trial courts found that the prisoners could not pursue Sec. 1983 lawsuits and instead had to seek habeas corpus relief. A federal appeals court reversed, finding that the prisoners could pursue civil rights actions.

     An 8-1 majority of the U.S. Supreme Court, with Justice Kennedy dissenting, has now upheld that result, ruling that state prisoners can bring Sec. 1983 lawsuits for declaratory and injunctive relief challenging the constitutionality of state parole procedures, and do not need to instead seek relief exclusively under federal habeas corpus statutes.

      The Court's majority rejected the state's argument that the prisoners could only pursue federal habeas, or similar state, proceedings because Sec. 1983 cannot be used to challenge "the fact or duration" of their confinement. The decision noted that success in challenging the constitutionality of the state's parole proceedings would not necessarily mean immediate or speedier release for the prisoner, as success would not necessary show the invalidity of their confinement or its duration. The use of Sec. 1983, therefore, does not violate the principles set forth in Heck v. Humphrey, 512 U.S. 477, barring federal civil rights claims where success would necessarily imply the invalidity of a conviction and the conviction had not previously been set aside.

     Neither of the prisoners, the court noted, were seeking an injunction ordering their immediate or speedier release, and success would mean at most new eligibility reviews or a new parole hearing, at which parole officials could still, in their discretion, decline to grant parole.

     Wilkinson v. Dotson, 03-287, 2005 U.S. Lexis 2204.

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Federal appeals court rules that maximum allowable attorneys' fees, under the Prison Litigation Reform Act, should be based on 150% of the hourly rate authorized by the Judicial Conference of the United States, not on 150% of the lower hourly rate actually paid to court-appointed counsel under the Criminal Justice Act, which is based on the amount actually appropriated by Congress.

     In 1980, inmates at a Michigan prison filed a federal civil rights lawsuit claiming various constitutional violations. A consent decree was entered into by the parties, which was approved by a federal trial court. "Surprisingly as it may be," a federal appeals court commented, "to this day, 24 years after the suit was filed," the plaintiffs' attorneys are still monitoring the defendants' compliance with the consent decree, and, by order the trial court are still being paid attorneys' fees. But the "propriety of this state affairs" was not the issue before the court. Rather, it was the proper calculation of attorneys' fees under the Prison Litigation Reform Act, which provides, in 42 U.S.C. Sec. 1997e(d)(3) that attorneys' fees in prisoner civil rights litigation may not be "greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel."

     18 U.S.C. Sec. 3006A, known as the Criminal Justice Act, establishes a maximum allowable fee for court appointed lawyers representing indigent defendants in federal criminal cases and authorizes the Judicial Conference of the U.S. to increase these fees by taking into account factors such as inflation and prevailing hourly rates.

      The plaintiffs' attorneys filed a motion for attorneys' fees and costs incurred in the first half of 2002, calculating their fees at a rate of $169.50 per hour, or 150 percent of $113, which was the rate authorized by the Judicial Conference, and requested from Congress in the Conference's 2002 budget proposal. Congress, however, had not approved that $113 per hour figure due to budget constraints, so the hourly rate actually paid to appointed counsel was $75 per hour for work performed up to May 1, 2002 and $90 per hour after that.

     The defendants argued that the rate paid to the plaintiffs' attorneys should not be based on the hourly amount authorized by the Judicial Conference, but on the lower amount actually paid to court-appointed counsel at the same time. Under this analysis, the maximum allowable fee for work performed prior to May 1, 2002 was $112.50 or 150 percent of $75, and for work performed after May 1, 2002, the maximum allowable fee was $135, or 150 percent of $90. The trial court agreed with the defendants.

     The federal appeals court however, found that there was "no ambiguity" in the provisions of the PLRA, and therefore that the attorneys' fees awarded under the PLRA should be based on the hourly rate for court-appointed counsel that is authorized by the Judicial Conference, rather than on the rate that is actually paid to such counsel."

If Congress had wanted attorney fees under the PLRA to be based on the amount of money budgeted for payment of court-appointed counsel, it could easily have used such language rather than cross-referencing § 3006A.

     Therefore, the maximum allowable hourly rate for attorneys' fees under the PLRA for the period in question was $169.50, or 150% of $113. The appeals court therefore reversed the trial court's decision and remanded the case so that the trial court "may award attorney fees to the plaintiffs based on an hourly rate no greater than $ 169.50."

     Hadix v. Johnson, No. 03-1068 2005 U.S. App. Lexis 3275 (6th Cir.).

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California prisoner complied with the requirement that he exhaust available administrative remedies by filing provided form describing his alleged disability of visual impairment and the accommodations he requested. His failure to identify specific prison employees as allegedly responsible for his grievances did not alter the result when the form supplied by the state did not ask for particular individuals to be named.

     A California prisoner appeals from the dismissal of his disability discrimination claim under the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., against prison officials. The dismissal was entered by the trial court because of his alleged failure to exhaust his administrative remedies prior to filing suit, as required by the by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a).

     The prisoner, who has impaired eyesight, alleged that there was no assistance program at the facility to aid him in going to the dining hall, religious services, the law library, prison self-help activities, or medical appointments. He additionally complained about the lack of Braille programs and the unavailability of a legal technical assistance to help, as well as the absence of railings he could use in moving to the restroom, shower room, day room, or telephone facilities. He claimed that he hurt himself by hitting the water fountain on his way to the restroom, as well as hurting his head and back when he slipped on soap in the shower and breaking a tooth walking into a wall on his way to the shower.

     The prisoner filed a form with prison officials entitled "Reasonable Modification Or Accommodation Request," informing them that he was blind and needed help in performing various everyday functions. After an interview, his request was denied, and he was told that it was his responsibility to request assistance from staff members. An appeal to the second and third stages of review was denied.

     The prisoner filed a lawsuit asserting his ADA claims against a number of defendants. The trial court ruled that the prisoner had sufficiently grieved his claims, but that his appeals allegedly did not put the defendants on notice of his claims against them individually, and therefore found that he had failed to exhaust available administrative remedies.

     A federal appeals court disagreed. It found that the PLRA requires the prisoner to use the administrative process that the state provides. In the case of disability discrimination claims, the state provided a specific form to file, which asked the prisoner to describe his disability, to "describe the problem," and to declare "what specific modification or accommodation is requested." The form did not require identification of any specific persons.

     The prisoner completed the provided form, and in doing so, "the availed himself of the administrative process the state gave him." The PLRA, the appeals court ruled, "does not require more," so that completion of the form, followed by taking all the steps of the administrative appeals process achieved the purposes of the PLRA's exhaustion requirement, and the prisoner's compliance with that requirement "was complete." 

     Butler v. Adams, No. 04-15478, 2005 U.S. App. Lexis 1898 (9th Cir. 2005)

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White detainee's assertions that prison guards improperly failed to protect him against an assault by a black prisoner with a known propensity for attacking whites by allowing him unsupervised access to a dayroom occupied by him were sufficient to state federal civil rights claims. Trial court improperly dismissed detainee's lawsuit.

     A federal appeals court ruled that the trial court improperly dismissed a pre-trial detainee's lawsuit claiming that he was inadequately protected from racially motivated attacks by another inmate known to have a propensity for attacking white prisoners.

     The plaintiff, who is white, was a resident at an Illinois correctional facility awaiting a civil commitment trial under a state sexually violent persons statute. While he was playing cards in an unsupervised recreational area, he was allegedly severely beaten by an African-American prisoner who is had previously attacked white prisoners on a number of other occasions.

     The detainee's lawsuit claimed that certain correctional employees personally knew of his attacker's propensity for violent behavior and history of attacking white prisoners, as well as knowing of a pattern of attacks by black prisoners in general against white prisoners in the facility, yet failed to take adequate steps to prevent such attacks.

     The appeals court found that the facts alleged were sufficient to establish, if true, that the defendants acted with deliberate indifference to a substantial risk of harm, in light of their alleged specific knowledge of the risk to the plaintiff. The appeals court also ruled that deliberate indifference could be found even if the identity of the ultimate attacker was not known in advance of the assault. The plaintiff alleged that the defendants had allowed his attacker, with known violent propensities to attack white prisoners such as himself, unsupervised access to the dayroom where the attack occurred.

     The appeals court also found that the allegations in the complaint were sufficient to state a possible equal protection claim, based on the plaintiff's assertions that some of the defendants treated him differently from similarly situated black prisoners by failing to protect him from attacks by black prisoners, failing to punish black prisoners for such attacks, and by failing to adequately investigate the attack on him. It rejected the defendants' argument that these "conclusory" allegations were not sufficient in spelling out the nature of their duties to either supervise, investigate or punish. The appeals court found that these arguments were an attempt to inappropriately introduce facts outside of the complaint, and ruled that until evidence identified the specific roles of the particular defendants, these allegations were sufficient to provide notice of the plaintiff's claims.

     Brown v. Budz, No. 03-1997, 2005 U.S.App. Lexis 2646 (7th Cir. 2005)

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Conditions at Georgia county jail failed to create a substantial risk of serious harm necessary to show a violation of constitutional rights in the failure to protect a prisoner from attack by other inmates who thought he had taken money from one of them. Allowing inmates to possess money for commissary purchases, while perhaps not the "best practice," was not a violation of the constitution.

     While detained at a Georgia County jail, a prisoner was beaten and injured by three other prisoners. A federal civil rights lawsuit claimed that the county, the sheriff and the jail administrator violated the prisoner's Eighth and Fourteenth Amendment rights by failing to prevent this attack. The trial court denied motions by the sheriff and jail administrator for qualified immunity, and also denied the sheriff's motion for Eleventh Amendment immunity from suit in his official capacity.

     A federal appeals court reversed both rulings, finding that the sheriff and jail administrator, in their individual capacities, were entitled to qualified immunity, and that the sheriff, in his official capacity, was entitled to Eleventh Amendment immunity for establishing the jail policies and practices pertinent to the prisoner's claims.

     The plaintiff's claims were based on conditions at the jail under which inmates were allowed to keep money in their cells for the purpose of making commissary purchases, and were allegedly allowed to play cards and gamble, as well as a physical layout which hindered officers from preventing inmate-on-inmate attacks, and a history of such fights, often connected with the possession of money, etc. Despite this, the court noted, nothing in the record showed that the particular attack was related to gambling.

     The lawsuit also argued that the detainee having been placed in an "all-black" cell increased the risk of serious harm to him, but the trial court had found that the detainee had himself requested to be placed there because he "hung out with them on the street and he knew all of them really well." Accordingly, race also played no role in the attack. The appeals court also found no support for the claim that prisoners were not properly segregated on the basis of their tendencies towards violence, or that this contributed to the attack. The attacked prisoner himself had a felony conviction for bringing a deadly weapon onto school property, and was therefore not a non-violent prisoner placed among those with a propensity for violence.

     There was nothing to show that the attackers and the attacked prisoner had a problem with each other before the attack. The attack was, however, led by one inmate who thought the attacked prisoner had taken his money.

     The appeals court found nothing in the record to show that inmates in the county jail were exposed to anything approaching a "constant threat of violence."

     In short, even viewing the evidence in the light most favorable to the plaintiff, the appeals court concluded, as a matter of law, that the conditions at the county jail failed to pose the "substantial risk of serious harm" necessary for a constitutional violation.

[T]he evidence presented in this case paints a picture, while not ideal, that is less severe than what would be sufficient to rise to the level of demonstrating objectively a substantial risk of serious harm to inmates. Inmates at Toombs County Jail were segregated based on a number of particularized factors, including the kind of crime committed and an inmate's potential personal conflicts with others. Moreover, the Jail was not understaffed on the night of the attack: five officers were on duty, which is typical for Toombs County. Jail officials had a history of punishing inmate violence, rather than looking the other way to preserve the status quo. And while inmate fighting does happen in Toombs County, the record is insufficient to show that serious inmate-on-inmate violence was the norm or something close to it. Also, the fights that did occur were linked to no recurring specific cause: causes ran the gamut from disagreements over television channels, to retaliation for pre-incarceration street activity, to card games, to food.

     There was no evidence in the record to show that past serious fights which resulted in severe injuries were related to money. While the policy of allowing jail inmates to have possession of money "may possibly not be the best practice," the appeals court found, "we are unprepared to say that it is a violation of the federal Constitution to allow inmates to have some cash inside a jail."

     Additionally, while the jail's physical layout presented jail personnel with difficulty in seeing into certain inmate cells during the night from the control tower, in practice, the guards left the tower and walked around the cellblock area to conduct periodic checks.

     Accordingly, the defendant sheriff and jail administrator were entitled to qualified immunity, as there was no showing of a violation of the prisoner's constitutional rights under the Eighth Amendment. Under these circumstances, the appeals court found it unnecessary to "reach the remaining questions of deliberate indifference, causation, or preexisting clearly established law."

     Finally, based on a prior ruling in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc) [PDF], in which it was held that a Georgia sheriff sued in his official capacity for his role in establishing and administering jail policies and practices functions as an arm of the state, the appeals court found that official capacity claims against the sheriff were barred by Eleventh Amendment immunity.

     Purcell v. Toombs County, No. 02-11994, 2005 U.S. App. Lexis 3221 (11th Cir. 2005).

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Federal appeals court orders additional proceedings on whether family members of deceased inmate suffered severe emotional distress, under Oklahoma law, following his death, in a case where family members were awarded $1.1 million in damages under the Federal Tort Claims Act based on alleged outrageous conduct in failing to disclose the battered condition of his body before shipping it to them for burial.

     The federal government appealed from an award of $1.1 million in damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), 2671-80, to the estate and family of a prisoner who died at a federal detention center in Oklahoma. The award was based on alleged intentional infliction of emotional distress following the death.

     The prisoner was arrested for DUI, and was found to have an outstanding warrant for federal parole violations. He was transferred to the federal detention facility and was placed in protective custody at his own request. The morning after his placement in the special housing unit at the facility, guards found his blood-soaked body in his cell hanging from a noose made of torn bed sheets.

     The family asserted that the prisoner was "murdered" by either prison guards or another inmate, and claimed that prison officials acted to cover up the suspicious nature of his death by destroying evidence and cleaning his cell before an investigation could be completed, and also argued that prison officials were deliberately indifferent to the prisoner's medical needs because guards purportedly waited several minutes to open the cell door and cut the noose. The U.S. government stated that the prisoner's wounds were self-inflicted and that he was dead by the time the guards discovered him.

     An autopsy report documented numerous injuries to the prisoner's body, including multiple contusions on the head, arms, back, and legs; a bruised anal verge; lacerations on the head and neck; a small fracture to a neck bone; and several skin abrasions. Because of these extensive injuries, the medical examiner initially listed the manner of death as "pending," and later classified it as "unknown."

     Following the death, the trial court found, the BOP never notified the family that an autopsy had been performed, although some family members had requested one, and never told the family about the "obvious and extensive trauma" to the prisoner's body. The family members were told that the prisoner's death was a suicide.

     When the body was shipped to a California funeral home for burial, the prisoner's wife, mother and sister, upon opening the casket, saw the autopsy incisions and numerous bruises and lacerations on the body, which they did not expect. The detention facility subsequently issued a press release regarding the death, stating that the medical examiner had tentatively ruled the death a suicide and that the injuries were the results of his "persistent attempts" to harm himself. In fact, the cause of death listed by the medical examiner was "unknown," not suicide, and the issuance of the press release was the first time the family had learned of an official investigation into the death.

     Subsequent federal criminal investigations resulted in no charges, and concluded that the prisoner had committed suicide, but found "serious deficiencies" in the BOP's response to the death, including an initially inadequate investigation by the detention facility, and the misplacing or altering of crucial evidence by facility personnel. Following a further review of the case by the local police and prosecutor, the medical examiner changed the manner of death on the autopsy report from "unknown" to "suicide," and identified the cause of death as "traumatic asphyxia."

     The district court in the FTCA action entered judgment against the government for intentional infliction of emotional distress, and awarded plaintiffs $ 1.1 million in damages to the family, including $250,000 to the prisoner's mother, $200,000 each to three siblings, and $50,000 to his now deceased father's estate.

     Under the Federal Tort Claims Act (FTCA), the U.S. government can, with some exceptions, be held liable for claims that would be imposed on private individuals or entities under state law. A number of past court decisions have allowed claims for emotional distress, and on appeal, the U.S. government did not claim that the claim for intentional infliction of emotional distress under Oklahoma law was unavailable under the FTCA.

     The appeals court found that the plaintiffs administrative claim filed with the government provided sufficient notice of their intentional infliction of emotional distress claim. The appeals court also rejected the argument that the claim was subject to an exception to the FTCA in Section 2680(h) provided that the FTCA does not apply to "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."

     The U.S. government argued that the emotional distress claim fell within the misrepresentation exception because the trial court found that the family suffered damages when the government failed to communicate certain facts to the family, namely, the battered condition of the prisoner's body and that an autopsy had been performed.

     The appeals court found that this was not "misrepresentation" for purposes of the exception.

Plaintiffs' emotional distress arises from the government's callous treatment of the family in the aftermath of Trentadue's death, including its shipping of Trentadue's [the prisoner's] battered remains to unsuspecting family members. Two essential components of negligent misrepresentation -- reliance and pecuniary loss -- are not present on the record before us. Therefore, in our view, the district court correctly found that this is not an action for negligent misrepresentation or deceit under § 2680(h).

     The appeals court agreed with the trial court that the government acted in "deliberate disregard of a high probability that its actions would cause" the family emotional distress as they searched for answers in the wake of the death. The treatment of the family, including the initial nondisclosure of the unusual circumstances of the death, the "obstinance" concerning authorization for an autopsy, and the failure to inform the family of the body's battered condition amounted to outrageous conduct that "needlessly and recklessly" intensified the family's emotional distress, the court found.

     Because, however, the trial court did not make any explicit findings as to severity of each individual family member's emotional distress, the appeals court found that it was unable to determine whether the emotional distress suffered by each plaintiff was "severe" as defined by Oklahoma law, and as required, therefore, for an award of damages. Further proceedings on that issue were therefore ordered.

     Trentadue v. Lee, No. 01-6444, 397 F.3d 840 (10th Cir. 2005)

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City and police officer were not liable for suicide of pre-trial detainee in his cell when officer did not know that the detainee was suicidal and the city had constitutionally adequate suicide prevention policies.

      A Detroit man was arrested for breaking into and refusing to leave a rental property owned by his brother and for attempting to hit his brother with a metal pipe. He was placed in a holding cell in a police precinct. The following morning, the detainee appeared agitated, talked loudly and was "ranting." He destroyed some of his holding cell, including breaking the sink and toilet, as well as ripping a phone from the wall. He was moved to a so-called "suicide" cell--not because he had expressed any suicidal intent, but rather, allegedly only to avoid further destruction of city property. After the move, he was allegedly no longer aggressive.

     He was later moved to one of two police cells in the Detroit Receiving Hospital that were maintained for detainees with medical problems, after he complained of chest pains and breathing difficulties. The officer on duty at those cells was not notified of any suicidal tendencies, and the detainee was screened by an intake nurse before being placed in one of the cells. Approximately an hour and a half after he arrived, he committed suicide, hanging himself in his cell by a hospital gown, having slipped his handcuffed hands under his feet to the front of his body. The prisoner had previously been handcuffed when he created a disturbance.

     In a federal civil rights lawsuit against the city and officer on duty at the hospital, a federal appeals court upheld summary judgment for the defendants. There was no evidence to show that the officer actually knew that the detainee was at risk of committing suicide. Since the detainee's conduct and statements did not give rise to any constitutional duty on the part of his jailors "to screen or monitor him for suicide," there was no evidence that the officer violated his constitutional rights in any way.

     The appeals court also found that there was no basis for finding the city to have caused the suicide through inadequate suicide prevention policies.

     In this case, there was no showing that the city was deliberately indifferent to the constitutional rights of its pre-trial detainees in relation to their suicidal behavior.

Pre-trial detainees do not have a constitutional right for cities to ensure, through supervision and discipline, that every possible measure be taken to prevent their suicidal efforts. Detainees have a right that city policies, training and discipline do not result in deliberate indifference to foreseeable and preventable suicide attempts. Here, the plaintiff never made any statements that could reasonably be interpreted as threatening to harm himself, and none of his destructive acts were self-directed. There was no indication that he would turn his anger and agitation upon himself. The city's agents complied with city policies regarding medical care. Gray [the prisoner] was transferred to the Receiving Hospital because of his physical complaints. He was screened by an intake nurse before being placed in a cell.

     Of the twenty in-custody deaths, other than this detainee, which occurred in the city's various holding facilities over the prior eight-year period, the court noted, only two were suicides. Additionally, by using existing suicide prevention procedures, the evidence showed, officers had been successful in interrupting eight suicide attempts in the hospital cells in the past twenty years, and this was the only completed suicide in those cells during that time period.

     Gray v. City of Detroit, No. 03-2515, 2005 U.S. App. Lexis 3419 (6th Cir. 2005).

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U.S. Supreme Court, by 5-3, rules that prisons cannot segregate prisoners by race even temporarily except under extraordinary circumstances where there is a compelling interest in doing so.

     The U.S. Supreme Court, by a vote of 5-3, with Chief Justice Rehnquist not participating in the decision, has ruled that an alleged California Department of Corrections (CDC) unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days every time they enter a new correctional facility could only be justified if it satisfied the requirements of "strict scrutiny," i.e., served a compelling governmental interest and was "narrowly tailored" towards doing so. The policy was allegedly aimed at helping to reduce racially-related gang violence.

     With the exception of those double cells in the reception areas, the rest of the state prison facilities, including dining areas, yards, and cells, are fully integrated, and after the initial 60-day period, prisoner are usually allowed to choose their own cellmates unless there are specific security reasons for denying them.

     The policy was challenged by a California African-American inmate who has been incarcerated since 1987, and who, each time he was transferred to a new facility, was double-celled with another African-American inmate.

     The majority of the U.S. Supreme Court noted that racial classifications imposed by government must be analyzed by a reviewing court under "strict scrutiny," in which the government has the burden of proving that the classifications are "are narrowly tailored measures that further compelling governmental interests." Prior caselaw, the majority noted, has insisted on the application of such strict scrutiny "in every context," even for so-called "benign" racial classifications, such as race-conscious university admissions polices, race-based preferences in government contracts, and race-based districting intended to improve minority representation.

The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." We therefore apply strict scrutiny to all racial classifications to "smoke out" illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.

     The Court's majority rejected the Department's argument that its policy should be exempt from this "categorical rule" because it is "neutral," neither benefiting nor burdening one group or individual more than any other group or individual. In other words, the majority said in characterizing this argument, strict scrutiny should not be applied because all prisoners are "equally" segregated.

     The majority pointed to its prior caselaw concerning segregated education as already having rejected the notion that "separate can ever be equal -- or 'neutral.'" Additionally, it noted that the Court had previously applied a "heightened standard of review" in Lee v. Washington, 390 U.S. 333 (1968) (per curiam), striking down Alabama's policy of segregation in its prisons.

     Racial classifications, the majority reasoned, can stigmatize individuals by reason of their membership in a racial group, and also threaten to "incite racial hostility." The decision argued that by insisting that inmates, upon arrival, only be housed with other prisoners of the same race, prison officials could possibly "breed further hostility among prisoners and reinforce racial and ethnic divisions." 

By perpetuating the notion that race matters most, racial segregation of inmates "may exacerbate the very patterns of [violence that it is] said to counteract."

     The decision cited Trulson & Marquart, "The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prisons," 36 Law & Soc. Rev. 743, 774 (2002) (a study of prison desegregation, finding that "over [10 years] the rate of violence between inmates segregated by race in double cells surpassed the rate among those racially integrated").

     The Court's majority noted that "virtually all" other states and the federal government manage their prison systems without reliance on racial segregation, and that federal regulations governing the Federal Bureau of Prisons (BOP) expressly prohibit it. 28 C.F.R. Sec. 551.90.

     Because the CDC's policy is an "express racial classification," the decision continued, it is "immediately suspect," so the court below erred in failing to apply strict scrutiny to it, and to require the CDC to demonstrate that its policy is "narrowly tailored to serve a compelling state interest." The majority rejected the argument that the more "deferential standard" of review stated in Turner v. Safley, 482 U.S. 78 (1987) should be applied because the segregation policy in question only applies in a prison context.

     That lesser standard, upholding restrictions on rights that bear a reasonable relationship to legitimate penological interests, the Court stated, has never been applied to racial classifications, and has been applied only to rights that are "inconsistent with proper incarceration."

The right not to be discriminated against based on one's race is not susceptible to the logic of Turner. It is not a right that need necessarily be compromised for the sake of proper prison administration. On the contrary, compliance with the Fourteenth Amendment's ban on racial discrimination is not only consistent with proper prison administration, but also bolsters the legitimacy of the entire criminal justice system. Race discrimination is "especially pernicious in the administration of justice." And public respect for our system of justice is undermined when the system discriminates based on race.

     Only extreme circumstances, such as a social emergency rising to the level of imminent danger to life or limb, such as a prison race riot, the majority implied, requiring temporary segregation of inmates could justify an exception to the principal that the Constitution is "color-blind, and neither knows nor tolerates classes among citizens."

     Prison administrators, the Court stated, will have to demonstrate that any race-based policies are narrowly tailored to address a compelling interest in prison safety. On remand, the CDC will have the burden of showing that its policy fits those requirements. "Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts. Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account."

     The majority emphasized that it had not decided whether the policy in question violated the equal protection guarantees of the constitution, but only that strict scrutiny is the proper standard of review to be applied.

     A strong dissent by Justice Stevens argued that, going further than the Court's majority, the CDC policy should be declared, on the basis of the existing record, to violate the equal protection clause of the Fourteenth Amendment, and that the CDC had "utterly failed" to justify it under either the strict scrutiny analysis or the more deferential reasonable relationship standard set forth in Turner.

The CDC's segregation policy is based on a conclusive presumption that housing inmates of different races together creates an unacceptable risk of racial violence. Under the policy's logic, an inmate's race is a proxy for gang membership, and gang membership is a proxy for violence. The CDC, however, has offered scant empirical evidence or expert opinion to justify this use of race under even a minimal level of constitutional scrutiny.

     Another strong dissent, by Justices Thomas and Scalia, argued that "time and again, even when faced with constitutional rights no less 'fundamental' than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case, in light of the presence of some of the most violent prison gangs in America--all of them organized along racial lines" in California prisons.

In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives. I respectfully dissent.

     Johnson v. California, No. 03-636, 2005 U.S. Lexis 2007.

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Jewish prisoner's apparently sincerely held belief that it violated his religion to work in a non-kosher prison kitchen was not entitled to lesser consideration simply because it might not be a "central" tenet of his religion, but legitimate penological interests including budgetary concerns and the need for non-discriminatory prison staffing were sufficient, on limited review, to justify requiring him to accept the work assignment.

     A Jewish inmate in a Kansas correctional facility objected to his work assignment in the food service area of the prison. He told his unit team counselor and a prison chaplain that the non-kosher prison kitchen was an "unclean area" for a Jewish person, particularly since there was no "mikveh" (a purifying bath involving rainwater stored in a ceremonial fashion) available for "purification." He refused to work in the kitchen and after a hearing was found guilty of a work performance violation.

     When he was again assigned to work in the kitchen, the prison's director of religious programs obtained an opinion from a rabbi who serves as a religious advisor for the Kansas Department of Corrections that working in a non-Kosher kitchen did not violate the Jewish religion, and that if an inmate was truly concerned about "contamination," he could wear gloves. The rabbi also stated that a "mikveh" is used only on special occasions, such as conversion to the Jewish faith. The prisoner's continued protests that the work assignment violated his beliefs were rejected, and he was again found guilty of a work performance violation, resulting in a downgrade in his prison incentive level rating, and a loss of the right to possess property items in his cell.

     In upholding the rejection of the prisoner's claims for alleged violation of his right to free exercise of his religion, a federal appeals court found that the trial judge properly applied a four-part legal test established by Turner v. Safley, 482 U.S. 78 (1987).:

"When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner's reasonableness standard requires a court to examine: (1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights.

     The appeals court found that the prisoner had demonstrated sufficient evidence of the sincerity of his religious beliefs to survive summary judgment. His fear of contamination was triggered by both "aroma ingestion and contact with non-kosher food" in the prison kitchen. And he showed the strength of his beliefs by his willingness to face discipline rather than accept the work assignment.

     While the defendant prison officials argued that avoiding the ingestion of non-kosher odors and the handling of non-kosher food is a "non-central religious practice" in the Jewish faith, the appeals court rejected the argument that the prisoner's belief, shown to be sincere, was therefore somehow entitled to less protection than "central or core tenets" of Judaism. The appeals court also noted that the term "kosher" covered a "broad spectrum" of interpretation, and that the idea that "ingestion of non-kosher odors may somehow be contaminating is not so far-fetched as to be fanciful or unworthy of belief."

     The appeals court found that the trial judge properly relied on two legitimate penological interests in finding the analysis of the four Turner factors in this case to weigh in favor of requiring the prisoner to work in the kitchen in spite of his concerns about non-kosher food handling and odors. These interests were budgetary concerns and the need for a "nondiscriminatory and consistent prison staffing."

     The appeals court engaged in limited review, due to procedural problems with the prisoner's appeal of the trial court's order of summary judgment, dismissing that aspect of the appeal for want of jurisdiction, while affirming the denial of the prisoner's motion for reconsideration, finding that his arguments that the defendants' stated penological justifications are vague and that monetary concerns did not justify assigning him to the kitchen did not justify reversal of the trial court's denial of his motion.

     Searles v. Dechant, No. 03-3347, 393 F. 3d 1126 (10th Cir. 2004).

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Access to Courts/Legal Info

     Ohio state prison regulations limiting inmates' visits to the law library, but not their access to library materials, while they were placed on cell isolation were justified by legitimate penological interests in punishing prisoners who violate institutional rules. Federal appeals court finds, therefore, that even if these regulations did, in fact, result in actual injury to a prisoner's pending case attempting to pursue a collateral appeal of his sentence, this was inadequate to show an unconstitutional denial of access to the courts. Further, even if the denial of access was a clearly established violation of the prisoner's right of access to the courts, the prison librarian and library administrator did not know of his deadline for filing a state court motion for reconsideration of his challenge to his sentence, and were therefore entitled to qualified immunity, since "no reasonable jury could find that the defendants knew or should have known their conduct violated, or even arguably violated" the prisoner's constitutional rights. Colvin v. Schaublin, No. 03-4368, 113 Fed. Appx. 655 (6th Cir. 2004).

Death Penalty

     New Jersey correctional officials could not implement new regulations eliminating the requirement of the presence of an emergency cart with medical equipment and supplies at the scene of executions--for the purpose of reviving the inmate in the event of last minute stays--without providing an explanation of its reasoning. Defendant officials were required to present "strong" medical evidence that the effects of the lethal injections used were irreversible. Officials would also be required to show how new restrictions on media access to and filming of executions were justified by legitimate penological, safety, and security concerns. In Re. Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. A.D. 2004).

DNA

     A defendant convicted of possessing stolen bank funds is not required, under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. section 14135a, to submit a DNA sample to her probation officer. U.S. v. Cooper, No. 04-1334 (3d Cir. 2005). [PDF]

Drugs and Drug Screening

     Federal Bureau of Prisons did not violate prisoner's rights by determining that he was ineligible to enter a residential drug abuse treatment program because he had only used, but had not abused, alcohol in the twelve months prior to his incarceration. Laws v. Barron, No. CIV.A. 6:04-133, 348 F. Supp. 2d 795 (E.D.Ky. 2004).

First Amendment

     California State Department of Corrections administrative bulletin banning sexually explicit materials depicting frontal nudity did not violate a prisoner's First Amendment rights. Correctional officials properly sought to reduce sexual harassment of female guards and prevent the development of a hostile work environment and also enhance prison security. Further, depriving prisoners of such sexually explicit materials did not impose an "atypical and significant hardship" in relation to the "ordinary incidents of prison life," and was therefore not a violation of due process. Additionally, the prisoner did not successfully show a violation of equal protection rights, as he did not claim that he was treated any differently than similarly situated prisoners with respect to the possession of such materials. Munro v. Tristan, No. 03-16770, 116 Fed. Appx. 820 (9th Cir. 2004).

Inmate Property

     Utah prisoner failed to show that prison officials violated his due process rights by allegedly taking certain items of his personal property, in the absence of any showing that post-deprivation remedies under state law were inadequate. Federal appeals court also rejects prisoner's claims that his right of access to the courts was violated, when there was no showing that the alleged deprivation of requested legal resources interfered with any attempt to pursue a non-frivolous claim. Harris v. Chabries, No. 04-4139, 114 Fed. App. 363 (10th Cir. 2004).

     When Louisiana state law provided a prisoner with adequate post-deprivation remedies for the alleged loss of his watch and wedding ring, he could not pursue a federal civil rights lawsuit asserting that their loss violated his due process rights. Walker v. Horne, No. 04-30287, 114 Fed. Appx. 598 (5th Cir. 2004). [PDF]

Mail

     Prisoner's First Amendment rights were not violated by denying him receipt and possession of a racist magazine, Pagan Revival, which the inmate himself admitted contained "hatred." Censoring such publications, a federal appeals court held, was reasonably related to legitimate penological interests in institutional order and security. Lindell v. McCaughtry, No. 03-4094, 115 Fed. Appx. 872 (7th Cir. 2004).

Medical Care

     North Dakota prisoner did not show that he had a serious medical need which had been deliberately ignored when physical examinations and tests had resulted in a conclusion contrary to his "self-diagnosis" that he was suffering from terminal cancer. Purported "diagnosis" by another doctor who had not examined the plaintiff prisoner, but made his conclusion based on information obtained from the prisoner's sister, was insufficient to create a genuine issue as to the existence of cancer. Kunze v. Diehl, No. A1-04-005, 345 F. Supp. 2d 1031 (D.N.D. 2004).

     Prisoner failed to show that correctional employees were deliberately indifferent to his need for surgery for his back condition, which he claimed should have occurred sooner than it did. The evidence showed that medical personnel saw him frequently, and repeatedly prescribed pain medications until the surgery was scheduled. Additionally, the prison limited his work assignments to those complying with the physical limitations indicated by his doctors. There was also no proof that prison employees retaliated against him for seeking medical care, as the evidence showed that he had indeed violated the prison disciplinary rules as he was accused of doing. Witmer v. Powell, No. 04-7064, 114 Fed. Appx. 372 (10th Cir. 2004).

     Correctional officer who confiscated diabetic prisoner's oral medication pills shortly after he received an insulin shot, and who stated his belief that the prisoner did not then need them, did not act with deliberate indifference to prisoner's serious medical needs. Booth v. King, No. 03-CV-802, 346 F. Supp. 2d 751 (E.D. Pa. 2004).

Prison & Jail Conditions: Asbestos

     New York prisoner failed to show that his alleged involuntary exposure to friable asbestos in a state prison violated his Eighth Amendment rights when there was no evidence that the level of exposure created an unreasonable risk of serious damage to either his immediate or future health. Further, the evidence presented did not indicate either the intensity or duration of the alleged exposure in most areas of the cellblock in which the prisoner was confined, and there was no indication that the prisoner had any asbestos-related disease. Pack v. Artuz, No. 99 CIV. 4604, 348 F. Supp. 2d 63 (S.D.N.Y. 2004).

Prison & Jail Conditions: General

     Texas prisoner's claim that prison officials acted with deliberate indifference to his health and safety during the winter of 1999-2000 by denying him adequate clothing and shelter was frivolous, based on a prior federal appeals court decision concerning almost identical claims against some of the same defendants, and rejecting those claims, Winthrow v. Heaton, 67 Fed. Appx. 252 (5th Cir. 2003). The prior decision, however, did not bar his claims concerning a subsequent winter, that of 2000-2001, since it did not determine that the defendants, some old and some new, "could not have acted with deliberate indifference at a later date." The dismissal of claims concerning the winter of 2000-2001 was therefore vacated. Winthrow v. Garcia, No. 04-40487, 116 Fed. Appx. 524 (5th Cir. 2004). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     Colorado state prisoners who sued to challenge their conditions of confinement in the county jail they were transferred to could not pursue their claims when they had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). The record in the case showed that the prisoners failed to file grievances in the jail. This failure was not excused by the initial refusal of jail officials to furnish them with jail grievance forms because they were state prisoners, when the grievance forms were eventually provided. Garcia v. Taylor, No. 03-1361, 113 Fed. Appx. 857 (10th Cir. 2004).

     Prisoner's lawsuit over the alleged unauthorized deduction of $150 from his inmate trust account was properly dismissed when he failed to exhaust his available administrative remedies. Buhl v. United States, 117 Fed. Appx. 39 (10th Cir. 2004).

Prisoner Discipline

     Disciplinary hearing's determination that a prisoner was guilty of violating prison rules against possession of a weapon and altering an authorized item was supported by substantial evidence in the record, including the finding of a weapon in an area in the prisoner's control, a misbehavior report which stated that a metal nail file imbedded in a pen was found in his locker, and a picture of the allegedly altered pen. Charles v. Selsky, 785 N.Y.S.2d 798 (A.D. 3d Dept. 2004). [PDF]

Prisoner Assault: By Employee

     Nurse and officer did not use excessive force in restraining prisoner at nursing station after he became "upset and agitated" when nurse took, and indicated that she would not return, his non-prescription and non-authorized glasses. The nurse and officer acted for the purposes of maintaining order and any resulting bruising and swelling was not serious enough to require medical attention. Mason v. Peters, No. 01-CV-62481, 346 F. Supp. 2d 396 (W.D.N.Y. 2004).

Prisoner Assault: By Inmate

     Massachusetts prisoner failed to show that the county sheriff, in his individual capacity, committed any acts or omissions that could be said to constitute either reckless or callous indifference to the risk that he would be attacked by another prisoner. Further, county sheriff, in his official capacity, was a state employee following the abolition of the county government, so that official capacity federal civil rights claims for damages could not be pursued against him. Broner v. Flynn, No. CIV.A. 01-40027, 311 F. Supp. 2d 227 (D. Mass. 2004).

Prisoner Suicide

     Police officer working as jailer in city jail was not entitled to peace-officer immunity under Alabama State law on a claim against him by the sister of an inmate who committed suicide there. The officer allegedly failed to follow mandatory rules and procedures requiring him to check on the prisoner twice an hour, and therefore was not exercising discretion when he engaged in the conduct that allegedly led to the inmate's death. Court rejects, however, claims against police chief based on training, implementing and enforcing procedures concerning the identification and handling of potentially suicidal prisoners. Howard v. City of Atmore, No. 1021312, 887 So.2d 201 (Ala. 2003), as modified on denial of rehearing (2004).

Private Prisons or Entities

     A prisoner failed to show any custom or practice for which a private contract health care provider could be held liable under federal civil rights law for alleged deliberate indifference to his serious medical needs. It was insufficient to merely allege various individual actions by the provider's employees, such as failing to provide him with a back brace, when there was no showing that any policy or custom of the provider led to these alleged deprivations. Dashley v. Correctional Medical Services, Inc., No. 2:04CV00014, 345 F. Supp. 2d 1018 (E.D. Mo. 2004).

Racial Discrimination

     Supervisor of prison transportation work crew did not violate an inmate's Eighth Amendment right against cruel and unusual punishment by allegedly using a racial epithet against him. While the use of the term, if true, was "inexcusable and offensive," it did not, without more, constitute a violation of constitutional rights. Moore v. Morris, No. 04-6140, 116 Fed. Appx. 203 (10th Cir. 2004).

Religion

     Denial of a Native American prisoner's request to use homemade foods to celebrate the "Harvest Moon Festival" did not violate any clearly established right. State prison chaplain was therefore entitled to qualified immunity on prisoner's First Amendment claim concerning the denial. Further, the plaintiff prisoner was allowed to use food provided by the correctional facility in connection his observation of his religious festival, and the restrictions on "homemade foods" was applied equally to prisoners of all religions. Pierce v. Smith, No. 02-M-1349, 347 F. Supp. 2d 1143 (M.D. Ala. 2004).

Segregation: Administrative

     Prison officials did not violate any clearly established constitutional rights of a prisoner scheduled to be released from disciplinary segregation by scheduling a hearing to determine whether he should be kept in administrative segregation. Only an informal, "non-adversary review" of the information supporting a prisoner's administrative confinement was required, to be held within a reasonable time after placing the prisoner in such confinement. In this case, additionally, the prisoner was notified of a review hearing, and refused to attend it. Martin v. Curry, No. A-03-604, 690 N.W.2d 186 (Neb. App. 2004).

Sexual Harassment

     Prison guard did not violate a Pennsylvania prisoner's Eighth Amendment rights by allegedly "blowing kisses" at him. While the prisoner claimed that this made him "fearful" of a future potential sexual assault, such conduct, while "unprofessional" did not state a claim for violation of federal civil rights. Prison psychiatrist had a clear obligation to report the prisoner's alleged subsequent threats against the guard, and was not required to give him Miranda warnings before discussing the incidents with him. The prisoner's statements to the psychiatrist were therefore admissible in subsequent prison disciplinary proceedings against him. Burkholder v. Newton, 116 Fed. Appx. 358 (3rd Cir. 2004). [PDF]

Terrorism, Enemy Combatants, and Military Prisoners

     U.S. soldier's claim that his Eighth Amendment rights to adequate medical treatment were violated while he was confined at the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas (USDB) were barred by the doctrine stated in Feres v. United States, 340 U.S. 135 (1950), barring claims by members of the military against the U.S. government under the Federal Tort Claims Act "where the injuries arise out of or are in the course of activity incident to service." Tootle v. USDB Commandant, No. 04-3018, 390 F.3d 1280 (10th Cir. 2004).

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

     Policies, Procedures, and Guidelines: Inmate Visiting Guidelines, California Department of Corrections. 7 pgs. [PDF]

     Publications: Department of Corrections Guide for Friends and Family of Incarcerated Offenders, Washington State Department of Corrections, 76 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.