FEATURED CASES

WITH LINKS TO THE OPINIONS

Doctor's alleged inadequate treatment of diabetic prisoner's fractured hip, if true, only amounted, at most, to negligence, and was insufficient to show either disability discrimination or a federal civil rights violation. Medical treatment decisions, a federal appeals court states, do not ordinarily fall within the scope of federal disability discrimination statutes.

     An Oklahoma prisoner broke his hip while incarcerated, and claimed that he suffered this fracture after experiencing a diabetes-related seizure and falling down. He claimed that his injuries were caused by the failure of prison officials to provide adequate medical treatment for his diabetes and failure to provide him with a wheelchair. He also claimed that medical evaluation of his injuries were not secured until over five months after his fall, and that the prison ultimately failed to provide "any treatment" for him at all.

     He sued, among other defendants, a prison physician for alleged deliberate indifference to his serious medical needs, state law medical malpractice, and alleged disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq.

     A federal appeals court found no basis for a finding of deliberate indifference on the part of the doctor, since the doctor's conduct, even if as the plaintiff alleged, was at most negligence in the diagnosing or treating of a condition, which might be sufficient for a state law medical malpractice claim, but could not support a federal civil rights claim for violation of the Eighth Amendment.

     The prisoner's disability discrimination claims, the appeals court ruled, were "also on tenuous grounds." In fact, the trial court ruled that the patient had not received substandard medical care, and also added that, even if he had "it is well settled that the ADA does not provide a private right of action for substandard medical treatment."

     Under either the ADA or the Rehabilitation Act, the appeals court commented, the prisoner was obligated, to state a claim, to show that he was "otherwise qualified" for the benefits he sought, and that he was denied those "solely by reason of disability." The term "otherwise qualified," the court had previously held, "cannot ordinarily be applied 'in the comparatively fluid context of medical treatment decisions without distorting its plain meaning.'"

     The doctor had posed two options for the prisoner's injuries--surgery, or doing nothing, and he did not make the final decision to deny treatment. But even if he had been, the court commented, the prisoner would not have been "otherwise qualified" for such treatment in the absence of his alleged disability--since his alleged disability was the very reason why he was seeking medical treatment.

     Such medical decisions as to the appropriate treatment for an illness or injury, the court stated, ordinarily fall outside the scope of the federal disability discrimination statutes.

     The appeals court did rule, however, that summary judgment on the state law medical malpractice claim against the doctor had been inappropriate, and ordered further proceedings on that claim, including on the issue of whether the federal court should retain jurisdiction of the case in the absence of any viable federal claims.

     Fitzgerald v. Corrections Corporation of America, No. 03-5029, 403 F.2d 1134 (10th Cir. 2005).

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Detainee suffering from paranoid schizophrenia, acute psychosis, impulse-control disorder, and "polysubstance abuse" could not assert disability discrimination claims since his impairments, because they could be corrected "or mitigated" by medication, did not constitute disabilities. Jail personnel did not use excessive force in using pepper spray to subdue him when he actively resisted his transfer to a hospital for treatment, and did not violate his right to receive adequate medical attention.

     A Kentucky man suffering from paranoid schizophrenia, acute psychosis, impulse-control disorder, and "polysubstance abuse," was arrested for trespassing at a golf course near his home, and taken to a county jail, where he was placed in isolation. ("Polysubstance abuse" evidently refers to the abuse of multiple substances). Because he was acting "consistently with his diagnosis," jail personnel feared for his safety and sought an emergency order for his hospitalization. When they obtained it, they took him to the hospital.

     The transfer, however, as later summarized by a court, was "not without event." He resisted and fought with guards, who used a stun shield and pepper spray to subdue him. The incident was videotaped and later resulted in convictions against the prisoner for assault on the guards. The hospital prescribed medication for treatment of the prisoner's mental illnesses, and returned him to the jail, where he was again isolated, and refused to take his medication. He was allegedly uncooperative, and injured himself, as well as suffering hallucinations and paranoid delusions. A jail nurse recommended psychiatric care outside the jail, and he was later transferred to a state correctional psychiatric center.

     The prisoner subsequently filed a federal civil rights lawsuit claiming that jail personnel used excessive force against him, denied him proper medical treatment, and were improperly trained. He also claimed that jail personnel discriminated against him and failed to make reasonable accommodation for his disability in violation of the Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq. or similar provisions of Kentucky state law. He also asserted claims for assault and battery and intentional infliction of emotional distress.

     Upholding summary judgment for the defendants, a federal appeals court found no evidence that jail personnel used excessive force against the prisoner, finding that the amount of force used was reasonable in light of the detainee's resistance to his transfer to the hospital and assault on the guards who were attempting to get him to needed medical treatment.

     As for the alleged denial of proper medical attention, the appeals court noted that, to the contrary, the efforts of jail personnel were focused on obtaining such treatment for him, including obtaining two different orders for his treatment elsewhere, and efforts to get him to take his medication after he was returned to the jail from the hospital, which was hardly evidence of deliberate indifference to serious medical needs. There was also no evidence of improper training of jail personnel.

     The court held that the plaintiff failed to show that his mental illnesses imposed a "permanent or long-term limitation" on any major life activity, since his impairments could be "corrected or mitigated by medication." This, the court found, precluded him from establishing that his impairments substantially limited him in a major life activity, and therefore barred his disability discrimination claim under either the ADA or Kentucky state law.

     Finally, the appeals court upheld the rejection of the assault and battery and intentional infliction of emotional distress claims, since the actions of the jail personnel were found to be reasonable under the circumstances.

     Atwell v. Hart County, Kentucky, No. 03-6421, 122 Fed. Appx. 215 (6th Cir. 2005).

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A twelve-hour delay in releasing a detainee after a judge determined that no bail was required on his intoxicated driving charge did not "shock the conscience," and was not caused by any official county policy or custom. Federal appeals court upholds summary judgment for county and sheriff in detainee's due process lawsuit.

     A Minnesota man arrested on a misdemeanor charge for intoxicated driving sued the county, the sheriff, and several of the sheriff's employees, claiming that a delay in his release from a detention center due to its outprocessing procedures violated his federal constitutional rights to due process. Claims against defendants other than the county and sheriff were subsequently dropped.

    A federal appeals court upheld summary judgment for the defendants. The detainee was arrested one morning and provided with a court hearing two days later, during which the judge continued the case to allow the arrestee to obtain a lawyer, ruled that no bail was required, and told him that he would be "going home." The plaintiff was taken back to the detention center and later released. He claimed that he was not released until 1:10 a.m. the following morning, twelve hours after the judge had ruled that no bail was needed. While the defendants argued that he was actually released approximately four hours earlier, the appeals court accepted the plaintiff's version of the events for purposes of the appeal.

     The plaintiff argued that the delay violated his right to due process under the Fourteenth Amendment. An official county policy requiring that detainees be released from the detention center "as expeditiously as possible." The policy does, however, include the need to maintain security and various standard procedures and paperwork, including a computer search for any new warrants or detainers that may have been issued after the person was originally book, preparation of "release citations" informing inmates of their next court appearance, and the location and return of money and personal effects to released detainees, as well as verification of identity and review of all release paperwork for possible errors.

     The appeals court noted that establishing a violation of due process as a basis for municipal liability requires that a plaintiff show something more than mere negligence, and instead show conduct by the municipality or by employees acting with its knowledge that "shocks the conscience given the totality of the circumstances." The court noted that in the course of the past year, it had already decided, through different three judge panels, three other federal civil rights cases concerning the outprocessing procedures at the Hennepin County detention center: Russell v. Hennepin County, 420 F.3d 841(8th Cir. 2005); Golberg v. Hennepin County, 417 F.3d 808 (8th Cir. 2005); and Luckes v. Hennepin County, 415 F.3d 936 (8th Cir. 2005). Those prior cases do not mention each other, but each panel concluded, although with somewhat different reasoning, that there had not been a sufficient showing to survive summary judgment for the defendant county.

     Luckes involved a man arrested under a warrant for unpaid traffic tickets who alleged that he was detained for 24 hours in a holding cell after being told that he would be released "shortly after booking." Golberg involved a delay in the release of an arrestee for ten hours after posting bail because of problems with a new computerized jail management system. And Russell involved the six-day delay in an arrestee's conditional release because of an administrative error.

     Together, the court stated, these cases teach that, in order for the plaintiff to show that his due process rights were violated and that the county should be held liable, he must show both that his detention "shocks the conscience" and that it was caused by a county policy or custom demonstrating a level of "culpability akin to criminal recklessness." The appeals court rejected the plaintiff's argument that a Fourth Amendment "reasonableness" standard should apply.

     The appeals court found that the facts presented by the plaintiff, even if true, did not show either a violation of due process or a county policy or custom causing the delay in his release. There was no claim that the county refused or failed to investigate claims that he should be released or subjected him to any other mistreatment, either by correctional staff or other inmates. He also failed to show any pattern of official tolerance by the county concerning delays in release. The county also described in detail the reasons for its procedures, some of which were mandated by state law.

     Lund v. Hennepin County, No. 05-1791, 2005 U.S. App. Lexis 23833 (8th Cir.).

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Pennsylvania Supreme Court upholds constitutionality of regulations prohibiting prisoners from receiving incoming publications found to be obscene, as well as of statute criminalizing the importation of such publication into prisons or their possession by prisoners. Inmates' lawsuit challenged the withholding of Penthouse magazine and several others available to the general adult public.

     Pennsylvania inmates sued the state Department of Corrections, challenging statutory and administrative prohibitions on the receipt of allegedly obscene publications through the mail by prisoners. They challenged both the state's criminal obscenity law (which contains criminal penalties for the delivery or entry of obscene material into correctional facilities or the possession of such publications by inmates) and an administrative directive which governs inmate mail and incoming publications.

     The Department relied on the statute and its own administrative regulations in refusing to deliver the magazines Penthouse, High Society, and Black Video addressed to five prisoners in state correctional facilities, finding that the publications violated the ban on obscenity. The prisoners challenged the disapproval of these publications through all levels of the administrative process, but their claims were rejected.

     The Supreme Court of Pennsylvania found no constitutional problem with the state criminal statute's prohibition on the delivery of obscene materials to inmates or their possession of such materials.

     While the prisoners were not criminally charged under the statute, the existence of the statute was the basis for amendments to the Department's administrative directive concerning prisoner mail and incoming publications. The prisoners argued that the statute improperly constituted "censorship and restraint of publication" in violation of the free speech and publication guarantees of the state constitution. They made no claim under the First Amendment of the U.S. Constitution, relying exclusively on state law.

     The prisoners argued that because the publications at issue are available to adults in the general public, they should not be prohibited from viewing them in prison. The court found these arguments to be "not persuasive." The court noted that, unlike other censorship statutes previously struck down under Pennsylvania state law, such as a movie censorship statute struck down in 1961, the statute at issue did not establish "pre-censorship" of what could be published or distributed, but preserved, for individuals charged under the statute, the right to have a jury determine whether the material at issue fell within the definition of obscenity.

     The court further noted that inmates in prison "do not enjoy the same level of constitutional protections afforded to non-incarcerated citizens," and the section of the statute the prisoners were attacking applied only to correctional institutions. The court concluded that the statute did not violate the state constitution.

     In addressing the administrative regulations the Department had enacted to carry out the policy embodied in the statute, the court agreed that the Department reasonably argued that restrictions on obscene materials advance a number of legitimate penological interests including preventing predatory behavior, preventing both consensual and non-consensual homosexual liaisons, preventing the spread of sexually transmitted disease, and protecting the safety and authority of prison staff.

We emphasize that the question is not whether the curtailment of distribution of obscene materials will remedy the aforementioned institutional concerns, but whether the Department reasonably believed that it would do so. The Department has established the reasonableness of its belief. It placed into evidence statistics demonstrating that the incidence of assault and sexual misconduct declined after its implementation of its new publication policy.

     Finally, the court rejected the argument that the prison regulations were defective because it did not give the inmate the right to have an "impartial tribunal" or a "jury trial" to determine what constitutes obscenity. Under the administrative regulations, incoming publications with questionable content are reviewed by an Incoming Publication Review Committee, and the prisoner can appeal from their decision through the grievance procedure. The regulations incorporate the definition of obscenity contained in the criminal statute.

     The court rejected the argument that the guarantee of a jury trial for persons criminally charged with violating the state statute should be followed in the administrative process applicable to the distribution of incoming publications throughout the prison system. The court suggested that the prisoners failed to address the "practical dilemmas" that would occur if they were given a "jury trial" for each challenge to a determination that an incoming publication contained obscenity.

     Payne v. Commonwealth Dept. of Corrections, J-83-2004, 871 A.2d 795 (Pa. 2005).

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North Carolina county only waived sovereign immunity to the extent of liability insurance purchased. Inmate who was awarded $49,500 by jury on his claim that a deputy sheriff assaulted him, therefore, could recover nothing, as the county's liability insurance only provided coverage for claims in excess of $250,000.

     An inmate in a North Carolina county jail sued a deputy sheriff he claimed physically assaulted him, causing injuries. After a jury trial in state court, an award of $49,500 in damages was returned for the plaintiff.

     Following the jury's award, the defendant deputy, and the sheriff, also named as a defendant in the suit, argued that the prisoner's claims, which were against them in their official capacities, were barred by sovereign immunity under state law.

     The trial court agreed that they were, except to the extent that the county had purchased liability insurance covering employees of the sheriff's department. In this case, the county had purchased insurance which only covered claims over $250,000, which was the county's self-insured retention amount.

     The trial court reasoned that, after adding the jury's award of $49,500, the plaintiff's costs of $1,750, and the defendant's costs of defense of $129,046.13, the total amount was $180,296.13, which was under $250,000. Accordingly, the trial court ruled that the defendants had not waived sovereign immunity on the claim at issue, and the plaintiff was barred from recovering the amount of the verdict or costs.

     An intermediate North Carolina appeals court agreed. Under state law, sovereign immunity generally bars liability in lawsuits against deputy sheriffs in their official capacities. A county can waive sovereign immunity by purchasing liability insurance, but only to the extent of the coverage purchased. In this case, as the county's insurance would not cover claims under $250,000, the plaintiff had no ability to recover his damages.

     The appeals court also found that the trial court properly declined to allow the plaintiff to amend his complaint, following the jury's verdict, to include a federal civil rights claim, since there was no evidence that the deputy, sued in his official capacity, acted pursuant to any municipal policy or custom. Since the liability of a county must be based on the existence of such a policy or custom, and cannot be based purely on its relationship to the deputy as his employer, an amendment to add a federal civil rights claim would be "futile."

     The appeals court also found no basis, under North Carolina law, to award attorneys' fees to the plaintiff on a civil assault case. The plaintiff sought such an award, in part, in an attempt to bring the amount of costs up in order to exceed the $250,000 amount required under the court's ruling for a waiver of sovereign immunity.

     Cunningham v. Riley, 611 S.E.2d 423 (N.C. App. 2005).

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Nurse who allegedly failed to perform any evaluation at all of prisoner who came to infirmary reporting severe chest pains could be liable for violation of the constitutional right to adequate medical treatment, based on subsequent finding that prisoner suffered a heart attack.

     A female prisoner filed a federal civil rights lawsuit against four employees of the Colorado Department of Corrections (DOC), claiming that they failed to provide her with constitutionally adequate medical care when she suffered severe chest pains which culminated in a heart attack. The trial court granted summary judgment for three of the four nurses, and partial summary judgment as to a fourth nurse. The appeals court upheld this result except as to one of the nurses, finding that the plaintiff had produced evidence which if, true, showed that this nurse was reckless under acceptable medical standards.

     The plaintiff prisoner sought medical attention one evening because of severe chest pain. When she reported this to the Licensed Practical Nurse (LPN) on duty at the infirmary, the nurse replied that there was nothing she could do because the infirmary was closed, and that the prisoner would have to return to sick call at the infirmary the following morning. It was this first nurse who the appeals court found to have acted in a reckless manner, if the plaintiff's version of the events were true.

     A second LPN on duty at the infirmary the next morning conducted a nursing assessment which included an electrocardiogram (EKG), which was read as normal, and she gave the prisoner a permission slip allowing her to miss work and other assignments for the day. When the pain persisted, the prisoner returned to the infirmary the next day and was evaluated by a Registered Nurse (RN) who administered a second EKG, which was also read as normal, although there were differences from the first EKG test conducted. A Nurse Practitioner (NP) then affirmed at the infirmary and performed an independent assessment, informing the prisoner that she suffered from a chest lining inflammation. While she also read the second EKG test as normal, she forwarded the EKG printout to a doctor for review. The doctor ordered that the prisoner be sent immediately to the hospital. At the hospital emergency room, it was determined that the prisoner had suffered a heart attack.

     The appeals court found that the plaintiff had succeeded in showing evidence that she had suffered unnecessary pain and a worsening in her condition, in the form of permanent and irreversible heart damage. In addition to such harm, however, a claim for deliberate indifference to a serious medical need in violation of the Eighth Amendment requires a "subjective component," which can be satisfied by showing an unjustified delay in providing treatment for a known problem. "Even a brief delay may be unconstitutional" in some circumstances.

     The appeals court found that there was evidence that the first LPN seen by the plaintiff at the infirmary, who was informed of the prisoner's severe chest pain, merely said that there was nothing she could do and neither administered first aid nor summoned medical assistance despite the prisoner's plea for help. This evidence, the appeals court found, contrary to the trial court's ruling, supported an inference that the nurse knew about and disregarded a "substantial risk" to the prisoner. This, the court reasoned, if true, violated applicable medical standards and the Department of Corrections own standards and procedures.

     If the prisoner's version of the incident was believed, the first LPN "refused to perform her gate-keeping role in a potential cardiac emergency by not seeking a medical evaluation" for the prisoner from either a doctor, physician assistant, or nurse practitioner. Rather than simply "misdiagnosing" the prisoner's condition, as it could be argued the other defendants did, this defendant "completely refused" to assess or diagnose the prisoner's medical condition at all by, for instance, taking her blood pressure, listening to her heart with a stethoscope, and performing a cardiac work-up.

     The record did not show, however, that the other three nurses acted with deliberate indifference towards the prisoner, but rather that each of them made good faith efforts to diagnose and treat the condition, even if they were perhaps mistaken in their diagnosis. The other nurses, therefore, were entitled to qualified immunity.

    The trial court had only granted partial summary judgment, however, as to the Nurse Practitioner, as to her conduct prior to being instructed by the doctor to send the patient immediately to the hospital. The plaintiff claimed that this nurse had, instead of immediately arranging for her transportation, told her to walk back to her cell, change her clothes, and then walk back to the infirmary, which she did before being driven to the hospital. Remaining pending, and not an issue on appeal, was the plaintiff's claim that this was improper and deliberately indifferent to the risk of harm to her in making her take that journey at that time.

     Mata v. Saiz, No. 03-1247, 2005 U.S. App. Lexis 22746 (10th Cir.).

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Prisoner's mere disagreement with doctors who decided that he was not a viable candidate for a liver transplant or surgery on his umbilical hernia was insufficient to show deliberate indifference to his serious medical needs. Prisoner was also barred from pursuing deliberate indifference claims against prison officials who were not personally involved in making decisions concerning his medical treatment.

     An Oklahoma prisoner sued three prison officials and two prison doctors, claiming that they had all been deliberately indifferent to his serious medical needs, delaying his treatment for an umbilical hernia, and denying him a liver transplant for treatment of his liver disease.

     Upholding the dismissal of the lawsuit, a federal appeals court found that the prisoner failed to show that any of the three defendant prison officials were personally involved in any way in the decisions concerning his medical treatment. None of them had participated in, supervised or authorized the specific decisions concerning what care and treatment he was given, which barred any claim that they had been deliberately indifferent to his medical needs.

     As for the two doctors, while they definitely were both involved in his care and treatment, the plaintiff failed to show anything more than a difference of opinion between them and himself concerning whether a liver transplant was a feasible form of treatment for his liver disease. The doctors believed that the procedure was too risky for him "due to the risk of peritonitis or inflammation and/or infection of the abdominal cavity." One of them also stated the opinion that the prisoner was not a candidate for a transplant due to his past "extensive history" of poor adherence to "medical regimens."

     Both of the defendant doctors also believed that the prisoner was not a viable candidate for surgery on his hernia because of his liver disease and his prior self-inflicted injury during which he cut his own umbilical hernia during a self-mutilation episode. As a result of this, the doctors believed that there was too high a risk of inflection should surgery on the hernia be attempted.

     The record did reflect that the prisoner did receive medical treatment for these problems, the court noted, even if the treatment provided was not what he preferred. This was insufficient to show deliberate indifference on the part of the doctors.

     Horton v. Ward, No. 03-6306, 123 Fed. Appx. 368 (10th Cir. 2005).

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D.C. prisoner denied parole by federal Parole Commission failed to establish a violation of his federal civil rights or unlawfully arbitrary action in denying him a representative at his parole hearing under rules which did not apply equally to federal prisoners seeking parole.

     The U.S. Parole Commission, since 1997, in addition to making determinations as to whether to grant parole to federal prisoners, has also made decisions concerning the granting or denying of parole to imprisoned felons convicted of violating the D.C. criminal code, as well as imposing conditions of such parole. The plaintiff, a D.C. prisoner, was denied parole by the Commission. He filed a lawsuit under 42 U.S.C. Sec. 1983 claiming that he was denied equal protection because the Commission's rules and policies prevented him from having a representative at his parole hearing at his facility, while these rules and policies did not equally apply to federal prisoners seeking to be paroled. He also challenged the rule under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706.

     The trial court dismissed his lawsuit, contending that the right he sought to establish was merely procedural, and he failed to allege that the right to have a representative at the hearing, if vindicated, would lead to a favorable outcome, i.e., the granting of his parole. The court therefore found that the prisoner had no standing to pursue his claim.

     A federal appeals court has agreed that the decision on standing was improper, because "in order to vindicate a procedural right, he was not required to establish that the right, if vindicated, would lead to a favorable outcome."

     The problem for the plaintiff prisoner's claim, however, was that he sued the Commission itself and not its individual members. The Commission, the court noted, as a federal agency, enjoys sovereign immunity from a federal civil rights lawsuit, so that the court had no jurisdiction over his Sec. 1983 claim. Additionally, the appeals court ruled, because the trial judge considered Commission materials beyond the pleadings, its dismissal could be viewed as a grant of summary judgment. The appeals court therefore affirmed a grant of summary judgment to the Commission on the Sec. 1983 claim and found that the APA claim failed on its merits.

     The appeals court found that the APA claim failed, because during the meetings following which the rule at issue was adopted, .the Commission discussed and was concerned about the resource constraints at the relevant facilities holding D.C. prisoners, and the Commission's General Counsel stated that because it was not clear that each of the facilities were "set up security-wise to allow in representatives," prior review should be required before representatives were allowed. At the time of the plaintiff's parole hearing, the Commission did not approve the presence of hearing representatives at the facility in which he was housed. The appeals court found that there was nothing to show that the rule adopted, or the Commission's failure to approve the presence of representatives at that particular facility at the time of the prisoner's hearing was "arbitrary or otherwise unlawful." Instead, there was a rational connection between the facts found by the Commission and the choice made, so that there was no violation of the APA.

     Settles v. US Parole Comm'n, No. 03-5368, 2005 U.S. App. Lexis 24018 (D.C. Cir.).

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Federal appeals court rules that it is not legally required that trial court dismiss a prisoner's entire complaint when it contains both exhausted and unexhausted claims. Judge should instead dismiss only the claims on which the prisoner has not exhausted available administrative remedies.

     A California prisoner was placed into administrative segregation for several years, and subsequently into a special housing unit because prison officials determined that he was affiliated with a prison gang and posed a threat to prison safety. He filed a federal civil rights lawsuit contending that his treatment at two prisons violated due process. The trial court granted summary judgment for the defendants on the basis that his claims included both a fully exhausted claim and some unexhausted claims.

     A federal appeals court ruled that the section of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, requiring the exhaustion of administrative remedies prior to filing suit did not require that the court dismiss the entire lawsuit, but that the trial court could instead exercise its discretion in granting leave to amend the complaint to pursue only the claims on which administrative remedies had been exhausted.

     The prisoner was designated an associate of the "Northern Structure" gang, and at both prisons he was incarcerated at, was locked in his cell for twenty-two and one-half hours per day as a consequence.

     The prisoner pursued three grievances concerning this, claiming that his validation as a gang member violated due process because of various procedural defects, which later became the basis of his federal civil rights lawsuit. The trial court, in granting summary judgment to defendant prison officials, reasoned that the prisoner failed to appeal two of his grievances to the third level, he had not met the exhaustion of remedies requirement.

     The federal appeals court disagreed, reasoning that dismissing an entire case that includes some claims on which administrative remedies had been exhausted, what it called the "total exhaustion-dismissal" approach, was not required by the statute. The court ruled that when a plaintiff prisoner has filed a "mixed" complaint and wishes to proceed on the claims for which he has exhausted available administrative remedies, the trial court should dismiss the unexhausted claims when the unexhausted claims are not "intertwined with the properly exhausted claims."

On the other hand, when a plaintiff's "mixed" complaint includes exhausted and unexhausted claims that are closely related and difficult to untangle, dismissal of the defective complaint with leave to amend to allege only fully exhausted claims, is the proper approach.

     In this case, the prisoner had fully exhausted the available grievance procedures and its three-level appeal structure as to one of his three grievances concerning alleged due process violations in his designation as a gang associate and his placement and retention in administrative segregation at one prison and in a special housing unit at a second. The appeals court held that on remand, if the trial court determined that his due process claims consisted of both exhausted and unexhausted claims that are "intertwined," the proper thing for it to do was to allow the prisoner to amend his complaint so that it refers only to his one fully exhausted grievance, and to consider, on the merits, whether he stated a viable due process claim on its basis.

     Lira v. Herrera, No. 02-16325, 2005 U.S. App. Lexis 23550 (9th Cir.).

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     Editor's Note: The Second, Sixth, Eighth, and Tenth Circuits have all considered the same question, with conflicting results. Compare Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005) (holding that § 1997e(a) mandates dismissal of an entire action when a prisoner files a mixed complaint), and Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004) (holding that § 1997e(a) creates a total exhaustion-dismissal rule), with Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004) (holding that § 1997e(a) is not a total exhaustion-dismissal rule), and Kozohorsky v. Harmon, 332 F.3d 1141 (8th Cir. 2003) (holding that § 1997e(a) requires dismissal of only the defective, mixed complaint rather than the entire action).

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Jail detainee was excused from having to exhaust jail grievance procedures before suing for alleged denial of medical care and treatment for her broken arm, when she presented evidence that the jail had a "flat rule" that complaints concerning medical treatment were "not grievable."

     A Kentucky detainee who claimed that she had a broken arm when she was incarcerated in a county jail and that the county and various officials failed to provide her with adequate medical treatment, sued for alleged violations of her constitutional rights.

     The federal trial court dismissed her lawsuit for alleged failure to exhaust available administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e. The trial court found that the prisoner had failed to file a grievance form concerning the alleged denial of medical treatment.

     The prisoner had filed two or more medical request forms however, and had sent one or more letters to jail officials complaining of their failure to provide treatment for her.

     Reversing the dismissal, the federal appeals court found that the plaintiff prisoner had submitted documentation from other prisoners to show that the county jail did not have any formal or stated grievance procedure, but that instead, the procedure for seeking medical treatment was simply to submit a request for medical treatment form, which the prisoner did, rather than filing a grievance. Indeed, other prisoners who had attempted to file grievances about the alleged denial of medical care at the jail were told that such denials were not grievable, but that they instead needed to submit medical request forms and "be seen."

     Such a "flat rule" against the submission of medical grievances, the appeals court ruled, excused the exhaustion requirement of the PLRA.

     It was clear, the court found, that the prisoner submitted numerous requests for medical treatment at the jail "and received none." The prisoner therefore had no further procedures to exhaust.

     Rancher v. Franklin County, Ky., No. 04-5220, 122 Fed. Appx. 240 (6th Cir. 2005).

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Muslim prisoner's rights were not violated by county jail's refusal to create an "all-Muslim" living unit, or by its cancellation of Muslim group worship services during lockdowns, periods of staff shortages, or when volunteer Muslim religious leaders were not available. Court also upholds limiting the number of inmates who could simultaneously attend group services, limiting group services to three times weekly, and the strip-searching of inmates returning from such services to a maximum-security area.

     A Muslim prisoner at an Illinois county jail, housed in a maximum-security area, claimed that correctional officials violated his First Amendment rights by restricting his opportunities to practice his religion. Among the complained of restrictions were the cancellation of Muslim group worship services during lockdowns and staff shortages, the cancellation of Muslim services when there were no volunteer imams available to preside over the worship, the limiting of Muslim group services to three times a week, a policy of limiting the number of inmates who could simultaneously attend Muslim services, a policy of strip-searching prisoners when leaving or returning from such services, and a former policy which had required that all religious materials be approved before they could be brought into maximum security areas in the facility.

     The prisoner also asserted that his rights to free exercise of religion were violated by the facility's rejection of a demand for the creation of a "Muslim-only" living unit.

     The trial court rejected each of these claims and granted summary judgment to the defendant officials.

     It found that the jail provided Muslim inmates with alternative avenues to practice their religion during times when group services had to be cancelled during lockdowns or when there were staff shortages or no available Muslim religious leaders to conduct the services. The plaintiff was free to pray in his cell, using religious materials he was allowed to keep there, and also to pray in the common area of his living unit. Security concerns justified the cancellation of group services under the stated circumstances, and limiting such services to three times a week had a rational relationship to a legitimate goal of controlling the number of non-sworn volunteers in a maximum-security living unit. Requiring that services be led by an outside volunteer leader, rather than an inmate, the court found, was also legitimate, based on security concerns.

     Allowing an unlimited number of Muslim services, or an unlimited number of Muslim inmates to simultaneously attend such services would "significantly, and adversely," impact on the jail's resources. The court also found that the strip-search policy was justified by legitimate security concerns, including the curbing of the movement of contraband.

     The court found that the plaintiff prisoner had failed to propose reasonable alternatives to the policies at issue which would not place undue burdens on the jail's resources or conflict with legitimate security concerns.

     As for the prior policy requiring the approval of religious materials brought into the maximum-security living unit, the prisoner failed to state what Islamic materials, if any, he was prohibited from possessing, and also did not show how those materials were central to his practice of his religion.

     The court further found that the plaintiff prisoner's wish to live in a "Muslim-only" unit was not based on his religious beliefs, but rather on a purely personal view that prisoners of different religious beliefs should not live together. The prisoner failed to show how the absence of a "Muslim-only" living unit substantially burdened his ability to freely exercise his Muslim faith.

     McRoy v. Cook County Department of Corrections, No. 03C6756, 366 F. Supp. 2d 662 (N.D. Ill. 2005).

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Prisoner was properly excluded from attendance at religious ceremony which was attended by Catholic Cardinal and the Governor of New York, and placed in administrative segregation during the event. Prisoner had expressed hostility towards the Cardinal, and announced his intention of attending the ceremony despite his exclusion and "confronting" the Cardinal for failing to assist him in challenging his conviction. Prison officials' actions did not violate his First Amendment rights.

     A New York prisoner claimed that correctional officials violated his First Amendment rights, including his right to petition government for a redress of grievances, when they prevented him from attending a religious ceremony which was attended by a Cardinal of the Catholic Church who consecrated the newly renovated Catholic Chapel at the facility. Also in attendance at the ceremony were the Commissioner of the Department of Correctional Services, the Governor of New York, and a state Assemblywoman.

     Seating at the ceremony was limited to 98 people, based on the size of the chapel, so the number of prison employees and inmates who could attend the ceremony was limited, and the Catholic Chaplain at the facility was responsible for making the selection. Only 50 of the approximately 100 inmates who asked to attend the ceremony were selected.

     The chaplain denied the plaintiff prisoner's request to be one of those in attendance. The prisoner had previously, during daily visits to the chaplain's office, complained that he had been wrongfully convicted, and had repeatedly asked him to contact the Archdiocese of New York on his behalf to request the Cardinal's support in challenging his conviction. The chaplain later stated that the prisoner's demeanor grew "increasingly hostile" during these visits and that he felt "increasingly harassed" by the visits. The chaplain also allegedly became aware that the prisoner had sent "threatening and belligerent correspondence" to the Cardinal.

     The chaplain informed the prisoner, approximately one week prior to the ceremony, that he would not be allowed to attend. One concern was that the prisoner might "act inappropriately" in the presence of the Cardinal if permitted to be there. The prisoner then told the chaplain that he planned to attend the ceremony anyway, and intended to "confront" the Cardinal during his visit to the facility.

     After this conversation was reported to the prison superintendent and the deputy superintendent of security, it was determined that the prisoner posed a security threat to the Cardinal and to the facility in general, and that he should be held in administrative segregation during the Cardinal's visit. He was placed there on the morning of the ceremony, and was strip-frisked before being placed in a special housing unit. He was returned to the general population seven hours later, after the Cardinal had left the prison.

     The prisoner claimed that this course of conduct violated his right to petition the government for redress of grievances, and constituted unlawful retaliation against him for exercising his First Amendment rights based on his activities as a member of the facility's Inmate Liaison Committee, a group New York prisons have at each facility for the purpose of "discussing and advising" officials on matters concerning the general welfare of the inmates. He also claimed that the defendants retaliated against him by removing him from that committee, and that his strip search was illegal.

     The federal court granted summary judgment for the defendants on all claims. The court found that the actions taken were reasonably related to legitimate penological interests in prison safety and security, in light of the prisoner's expressions of hostility towards the visiting Cardinal, and the prisoner's announced intentions of disregarding the chaplain's decision that he not be allowed to attend the ceremony, as well as his intention of "confronting" the Cardinal. Under these circumstances, placing him in administrative segregation during the ceremony was proper. The court also found the policy of strip-frisking all prisoners entering the special housing unit to make sure they did not possess contraband to be reasonable.

     Finally, the prisoner's removal from the Inmate Liaison Committee, far from being a violation of his First Amendment rights, was legitimately based on a number of disciplinary infractions. Prison officials are allowed, under applicable rules, to remove inmates from the Inmate Liaison Committee who have had recent or chronic disciplinary problems, which the court found was the case with this prisoner.

     Gonzalez v. Narcato, No. 01CV6102, 363 F. Supp. 2d 486 (E.D.N.Y. 2005).

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Defenses: Absolute Immunity

     District attorney was entitled to absolute prosecutorial immunity on prisoner's claims that he was denied equal protection because the prosecutor failed to pursue criminal charges against the other prisoner who allegedly attacked him in a holding cell. Jones v. Baysinger, No. 04-16944, 135 Fed. Appx. 132 (9th Cir. 2005).

Defenses: Service of Process

     New Jersey Attorney General was not authorized to receive service of process on prison warden's behalf, so that service on him was inadequate as service on the warden in prisoner's federal civil rights lawsuit. Purported service on police sergeant and county corrections commissioner was also defective. Touray v. Middlesex County, No. 05-1097, 139 Fed. Appx. 428 (3rd Cir. 2005).

Drugs and Drug Screening

     Determination that prisoner was guilty of using a controlled substance was supported by substantial evidence, including a misbehavior report, the testimony of the correctional officer who prepared it, and positive urinalysis test results. Wigfall v. Goord, 798 N.Y.S.2d 582 (A.D. 3rd Dept. 2005).

     Prisoner who left a urinalysis testing area was properly found guilty of violating drug testing procedures and disobeying a direct order. The fact that a regulation allowed a prisoner who could not immediately provide a urine sample in response to an order to do so within three hours did not alter the result, since the discipline was not imposed on the basis of his inability to immediately produce a sample, but rather on his decision, after being told of the consequences, of leaving the area before the three hour time period was expired. Brown v. Goord, 795 N.Y.S.2d 407 (A.D. 3rd Dept. 2005).

     Prisoner was not prevented, at disciplinary proceeding concerning alleged drug use, from presenting evidence that the medication he was taking at the time caused a false positive urinalysis test result for THC metabolite. His disciplinary loss of good time credits therefore did not violate his right to due process. Perez v. McKean, No. 05-1034, 136 Fed. Appx. 542 (3rd Cir. 2005).

Employee Injury/Death

     Correctional officers' claim that their employer had negligently or intentionally failed to establish or enforce adequate policies for their protection against wrongful conduct by prisoners was not barred by the "exclusive remedies" provision of the Alabama workers' compensation statute when the resulting damages were "purely psychological," rather than physical injuries. Bullin v. Correctional Medical Services, Inc., #2030573, 908 So. 2d 269 (Ala. Civ. App. 2004), cert. denied, #1040346 (Ala. 2005).

Employment Issues

     Male correctional officers alleged acts of sexual harassment, including asking female officer out on dates, including out of town trip, and engaging in alleged retaliation when she refused was sufficiently severe or pervasive to state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Porter v. California Dept. of Corrections, No. 02-16537, 419 F.3d 885 (9th Cir. 2005).

Escape

     Texas Department of Criminal Justice could not be held liable for death of a police officer killed by seven escaped prison inmates using captured prison guards' weapons eleven days after their escape. This use of the weapons to kill a police officer was too remote in time to satisfy the requirements for an exception to immunity under the Texas Tort Claims Act. Texas Department of Criminal Justice v. Hawkins, No. 05-03-01789-CV, 169 S.W.3d 529 (Tex. App. 2005).

False Imprisonment

     California parole agents and other defendants were immune from liability for detainee's incarceration in county jail for 25 days based on mistaken identity under state statute which provides immunity for both public agencies and employees for claims arising out of determinations as to whether to parole or release a prisoner. Perez-Torres v. State, No. B179327, 33 Cal. Rptr. 3d 227 (Cal. App. 2nd Dist. 2005).

     Georgia county sheriffs were not entitled to qualified immunity against detainees' claim that they were kept in jail past their scheduled release dates for periods ranging from one to ten days, since it is clearly required that detainees be released within a reasonable period of time after there is no lawful basis for their continued confinement. Powell v. Barrett, No. 1:04-CV-1000, 376 F. Supp. 2d 1340 (N.D. Ga. 2005).

Freedom of Information

     Pennsylvania Department of Corrections incident report, prepared after two inmates became ill and required medical attention, was not a public record required to be disclosed under the state's "Right-to-Know" law. Court also rules that chemical disbursement sheets recording the weekly and monthly disbursement of chemicals at the prison in connection with the making of rubber in a rubbermill room were not related to fiscal governance and were therefore also not subject to disclosure to prisoner requesting access to them. Heffran v. Department of Corrections, 878 A.2d 985 (Pa. Cmwlth. 2005).

Frivolous Lawsuits

     Pennsylvania prisoner's claim that prison doctor was deliberately indifferent to his serious medical needs, including back pain and partial loss of sensation in his toes and lower legs, was frivolous. The record showed that the prisoner was evaluated by various medical personnel, received several prescription medications, and underwent an electrocardiograph examination (EKG). The failure to refer the prisoner to a specialist or a local hospital did not show deliberate indifference. The doctor's alleged failure to inform the prisoner of the possible side effects of the medication was, at most, negligence, and could not be the basis for a federal civil rights claim. Jetter v. Beard, No. 04-1976, 130 Fed. Appx. 523 (3rd Cir. 2005).

Inmate Funds

     Seizure of inmate's disability pension benefits to pay for the cost of his care while incarcerated, pursuant to Missouri state statute, did not violate his right to substantive due process. Statute was not unconstitutionally vague as to specification of which of an inmate's assets could be considered in determining whether a prisoner had sufficient assets to support an assessment of costs of incarceration. State ex rel. Nixon v. Powell, No. SC 86453, 167 S.W.3d 702 (Mo. bank 2005).

Inmate Property

     Prisoner could not pursue federal civil rights claim against a correctional officer for depriving him of property by taking a check from his legal mail and putting it into his inmate trust fund account against his wishes. The prisoner failed to show that he had attempted to pursue state law post-deprivation remedies, or that they were inadequate in any way. McMillan v. Fielding, No. 04-5745, 136 Fed. Appx. 818 (6th Cir. 2005).

Medical Care

     Pretrial detainee's placement in a jail cell with another prisoner known to be infected with Hepatitis C was insufficient to constitute deliberate indifference to the detainee's health, as Hepatitis C is not spread through airborne transmission or casual contact. It is, instead, spread only through an exchange of bodily fluids, and the infected cellmate had no history or violent or risky behavior which would increase the likelihood of that happening. McMahan v. Wilder, No. 04-7115, 131 Fed. Appx. 125 (10th Cir. 2005).

     Diabetic prisoner's assertion that prison medical personnel only allowed him to test his own blood glucose level once a month did not establish deliberate indifference to his serious medical needs. A mere disagreement with medical personnel as to the proper treatment for his condition could not be the basis for a constitutional claim. Coleman v. Beard, No. 04-4250, 131 Fed. Appx. 10 (3rd Cir. 2005).

     U. S. Supreme Court vacated a temporary stay order issued by Supreme Court Justice Clarence Thomas that prevented a Missouri prison inmate from obtaining an abortion. The Missouri prisoner, who was pregnant when incarcerated on a parole violation, had obtained an order from a federal trial court requiring the state to provide access to an abortion by providing transportation to a clinic 80 miles away, despite a Department of Corrections policy under which such transportation is not provided for abortions that the Department does not deem "medically necessary." The prisoner reportedly planned to pay for the abortion herself. The Supreme Court action, which was a brief two-sentence order, with no dissents, had the effect of reinstating the trial court's order. Crawford v. Roe, No. 05A333, 2005 U.S. Lexis 7841, 74 U.S.L.W. 3270.

Prison Litigation Reform Act: Exhaustion of Remedies

     Pretrial detainee failed to exhaust available administrative remedies, as required by 42 U.S.C. Sec. 1997e, before filing his civil rights lawsuit claiming that county jail employees failed to adequately protect him from assault by fellow prisoners. While he filed administrative grievances, he admitted that he did not appeal their denials, and, based on that admission, the alleged failure to provide him with written denials of his grievances did not excuse his failure to appeal. Truly v. Sheahan, No. 04-2280, 135 Fed. Appx. 869 (7th Cir. 2005).

     Prisoner failed to sufficiently exhaust available administrative remedies before filing federal civil rights lawsuit challenging the denial of his request for surgery for a problem with his arm and the denial of his request for a single-occupancy cell. While the prisoner filed grievances and pursued appeals, he failed to name any of the defendants named in his federal civil rights lawsuit in his grievances. Williams v. Overton, No. 03-2507, 136 Fed Appx. 859 (6th Cir. 2005).

Prisoner Assault: By Inmate

     Federal prison employee could not be held liable for failing to prevent an attack on an inmate by his cellmate, in the absence of any evidence that he had either notice or knowledge concerning the alleged threats against the prisoner. Mohamed v. Tattum, No. 04-3165, 380 F. Supp. 2d 1214 (D. Kan. 2005).

Prisoner Classification

     Missouri's creation and use of revised prisoner classification policies, which resulted in a prisoner's reclassification and transfer to a higher security center did not amount to an unconstitutional retroactive enhancement of his punishment in violation of the "ex post facto" prohibitions of the U.S. or state constitutions. Davis v. Kempker, No. WD 64237, 167 S.W.3d 721 (Mo. App. W.D. 2005).

Prisoner Death/Injury

     Prison job counselor who did not know of a substantial risk of harm to a prisoner who was shocked by a buffing machine during work assignment because the machine did not have a ground-prong in its plug could not be held liable for his injuries. While the prisoner's allegations stated a claim against the prison safety manager and electrical shop foreman for deliberate indifference, they were entitled to qualified immunity because it was not clearly established at the time of the incident that failure to repair or remove the machine because of a missing ground-prong would violate the Eighth Amendment. Littlejohn v. Moody, No. 2:04CV330, 381 F. Supp. 2d 507 (E.D. Va. 2005).

Prisoner Discipline

     A Minnesota prisoner had a constitutionally protected liberty interest in his scheduled supervised release date, entitling him to procedural due process before that date was extended as the result of a prison disciplinary proceeding. In these circumstances, the Supreme Court of Minnesota holds, the use of a "some evidence" standard was inappropriate and the disciplinary hearing was required to establish facts constituting a disciplinary offense by a "preponderance of the evidence." Carrillo v. Fabrian, No. A03-1663, 701 N.W.2d 763 (Minn. 2005).

     Oklahoma prisoner failed to show that he had been disciplined without due process of law, as he was provided with written notice of the charges against him, an opportunity to present witness and a defense, and a written statement of the evidence relied on and the reasons for the disciplinary action. The discipline imposed on him was supported by "some evidence," which was constitutionally adequate. Davis v. Corrections Corporation of America, No. 04-7048, 131 Fed. Appx. 127 (10th Cir. 2005).

Sexual Offender Programs and Notification

     New York corrections officials were required to remove information from inmate's guidance file which was derived from a pre-sentence investigation report, which described an inmate as a sexual offender and contained references to rape and sodomy charges, when the only basis for that information were allegations related to charges on which the prisoner had been acquitted. Brown v. Goord, 796 N.Y.S.2d 439 (A.D. 3rd Dept. 2005).

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     Publications: A Summary of Research, Practice, and Guiding Principles for Women Offenders: The Gender-Responsive Strategies Project: Approach and Findings by Bloom, Barbara; Owen, Barbara; Covington, Stephanie, National Institute of Corrections (205 Washington, DC) [PDF] Reviews information on gender-specific policies, programs, and services in corrections. Topics covered by this bulletin include: the Gender-Responsive Strategies Project -- approach and findings; defining gender responsiveness; national profile of women offenders; the foundation for the principles a new vision -- six guiding principles for a gender-responsive criminal justice system; general strategies for implementing guiding principles; gender-responsive policy elements; and conclusion -- addressing the realities of women's lives is the key to improved outcomes.

     Statistics: Prisoners in 2004. U.S. Department of Justice, Bureau of Justice Statistics. Reports the number of persons in State and Federal prisons at yearend, compares the increase in the prison population during 2004 with that of the previous year, and gives the prison growth rates since 1995. The report also provides the number of male and female prisoners on December 31, 2004. It includes incarceration rates for the States and the 5 highest and 5 lowest jurisdictions for selected characteristics, such as the growth rate, number of prisoners held, and incarceration rates. Tables present data on prison capacities and the use of local jails and privately operated prisons. Estimates are provided on the number of sentenced prisoners by age, gender, race, and Hispanic origin. Highlights include the following: The Nation's prison population grew 1.9% in 2004, reaching 1.5 million inmates. Ten States had increases of at least 5%, led by Minnesota (up 11.4%), Idaho (up 11.1%), and Georgia (up 8.3%). Eleven States experienced prison population decreases, led by Alabama (down 7.3%), Rhode Island (down 2.8%), New York (down 2.2%), Local jails housed 74,378 State and Federal inmates (5.0% of all prisoners). 10/05 NCJ 210677 Press release | Acrobat file (193K) | ASCII file (43K) | Spreadsheets (zip format 23K)

     Statistics: Compendium of Federal Justice Statistics, 2003 U.S. Department of Justice, Bureau of Justice Statistics. Presents national-level statistics describing characteristics of persons processed and the distribution of case processing outcomes at each major stage of the Federal criminal justice system. This annual report includes investigations by U.S. attorneys, prosecutions and declinations, pretrial release and detention, convictions and acquittals, sentencing, appeals, and correctional populations. New this year are statistics on fugitive investigations by the U.S. Marshals Service. This is an electronic only document. Highlights include the following: During 2003, 126,878 suspects were arrested by Federal law enforcement agencies for violations of Federal law. During 2003, U.S. Attorneys initiated criminal investigations involving 130,078 suspects, and they concluded their investigations of 128,518. During 1990 and 2003, the number of offenders on community supervision increased by 29%, from 84,801 during 1990 to 108,976 during 2003. 10/05 NCJ 210299 Full report: Acrobat file (2M) ASCII file (185K) | Spreadsheets (zip format) (119K)

Reference:

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

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