FEATURED CASES

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Federal appeals court reinstates lawsuit in which prisoner claimed jail personnel were deliberately indifferent to his suffering the effects of his withdrawal from methadone.

      After two days in a county jail, a prisoner serving a sentence for driving under the influence of an intoxicant was allegedly "confused and disoriented," and, despite having defecated in his cell and on himself, he was also "unaware of the mess that he created." While his condition, which resulted from his forced withdrawal from methadone, continued to deteriorate, he was not taken to the hospital for two more days. The delay in taking him to the hospital, along with his inability to obtain methadone while he was incarcerated formed the basis for the prisoner's appeal from the dismissal of his federal civil rights lawsuit.

     By a 2-1 vote, a federal appeals court panel reinstated the prisoner's lawsuit.

     The prisoner had been on a methadone maintenance treatment program, designed to wean people off of their narcotics addiction, for about five weeks when he reported to the jail to begin serving his sentence. He allegedly told the nurse who examined him that he needed to receive a dose of methadone to avoid going into withdrawal. He was subsequently told by the jail's nursing coordinator that he would not receive methadone during his incarceration because he had been off the drug for three days.

      When he was eventually sent to the hospital, he was diagnosed with acute delirium, secondary to drug withdrawal, and spent four days there before being sent back to the jail.

      The appeals court majority found that the fact that the prisoner was not in extreme distress "does not necessarily mean that he did not have a serious medical need." Indeed, in this case, it reasoned, the "opposite is true." The prisoner was not distressed because he believed he was at a "wedding hotel" rather than the jail. The fact that he was not distressed despite defecating on the floor of his cell and on himself was "strong evidence of a severe medical need."

     The appeals court also rejected the argument that the prisoner must not have had a serious medical need because jail medical personnel examined him and did not send him to the hospital. That only showed, the court stated, that the "defendants took no action to treat him, which is exactly" what he claimed "was the problem."

      The appeals court found that there was sufficient evidence of deliberate indifference to the prisoner's serious medical needs, as opposed to mere negligence, from which a jury could find that the defendants knew that the prisoner had not received methadone and was exhibiting signs of withdrawal, and nevertheless recklessly or maliciously allowed the situation "to fester," intentionally allowing the prisoner to suffer from a the effects of his withdrawal. Summary judgment for the defendants was therefore inappropriate.

      A strong dissent by one judge on the three-judge panel argued that the defendants were, at most, negligent in their treatment of the prisoner's drug withdrawal problem. The dissenting judge noted that the defendants did provide the prisoner with medical monitoring and treatment, and that he was examined several times.

     Foelker v. Outagamie County, No. 04-1430, 2005 U.S. App. Lexis 255 (7th Cir. 2005).

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Notifying only the prisoner, and not the publisher, when a periodical was not delivered to a prisoner, was inadequate to protect the publisher's First Amendment rights. Federal appeals court also orders further proceedings on constitutionality of policies limiting inmates' monthly spending on publications to $30 and prohibiting gift subscriptions.

     A publication called Prison Legal News (PLN) and two Kansas Department of Corrections inmates appealed from a trial court's summary judgment in favor of the Department in their lawsuit challenging regulations and policies concerning inmates use of various publications.

      The challenged regulations and policies provide a $30 per month limit on outgoing inmate funds for books, newspapers, and periodicals, subject to exceeding the limit once every three months for a newspaper subscription, and required that all inmate purchases of books, newspapers and periodicals be made by special purchase order through the institution, thereby prohibiting gift subscriptions. Additionally, the Department provides that books, newspapers and periodicals otherwise received be censored, with notice only to the inmate, but not the sender.

     The trial court upheld these regulations and policies against First and Fourteenth Amendment challenges, ruling that they were reasonably related to legitimate penological interests and did not infringe on PLN's due process rights. A federal appeals court reversed the grant of summary judgment, ordering further proceedings in the case.

     The plaintiff Prison Legal News, Inc. is a non-profit publisher of Prison Legal News, a monthly magazine that focuses on prison issues. Although friends and family of inmates have paid for subscriptions to Prison Legal News for certain inmates, corrections officials have refused to deliver the publications. In addition, corrections officials do not notify PLN when a publication is not delivered. PLN argued that the refusal to allow inmates to receive publications unless purchased from a facility bank account, the $30.00 limit, the limit on the number of subscriptions, and the complete ban on publications for certain inmates violates its First Amendment right to communicate with inmates. PLN also complained that the prison policies deprive it of due process because it is never notified of non-delivery, given a reason for the non-delivery, and/or given an opportunity to contest it.

     Correctional officials argued that the policies served legitimate interests in security and behavior management. They asserted that the ban on gift publications allowed them to monitor and regulate all inmate financial transactions, and control the property entering the facility, as well as allowing them to be better able to detect financial transactions that violate prison rules and regulations or state law, such as theft, drug dealing, debt adjustment, as well as entering into contracts without authorization and obtaining property by false pretenses. They contended that they sought to prevent the practice of "strong-arming," in which one prisoner coerces another to arrange for a gift subscription to be purchased by someone on the outside.

      The defendants also argued that the policies provide incentives for good behavior and better citizenship by inmates, including encouraging the payment of child support, court filing fees, restitution and other financial obligations.

      The federal appeals court found that the trial court had improperly upheld the policies solely on the basis that they were rationally related to legitimate governmental interests, without considering whether the policies were narrowly tailored to serve the asserted interests, the availability of alternative means for prisoners to exercise their First Amendment rights, and whether there were readily available alternatives to the policies.

      The appeals court questioned how the complete denial of access to constitutionally protected materials on the basis of classification, regardless of behavior, furthered behavior management or rehabilitation. The appeals court also found that the evidence in the record did not make an adequate link between the $30 monthly limitation on expenditures for publications and the increased payment of restitution, child support or court filing fees by prisoners. "Stated another way, if inmates are required to meet such obligations before discretionary expenditures, the $30 limitation would not appear to be a factor."

      A limit on the number of subscriptions might be justified due to space limitations, safety concerns, or processing constraints, the court stated, but in this case, that was not how the regulations had been defended, "and such concerns may be handled through more precise regulation."

      As for the availability of other alternative means for prisoners to exercise their First Amendment rights, the appeals court agreed with the plaintiffs that the ability to listen to the radio or watch television is not an adequate substitute for reading newspapers and magazines. The court also noted that the cost of subscriptions, many of which exceed $30, might foreclose inmate access to many publications.

      The defendants argued that only by allowing purchases of publications only through the facility banking system could they adequately prevent strong-arming of inmates and circumvention of property restrictions related to behavior modification programs. The plaintiffs argued, however, that a special purchase order could be developed for subscriptions whereby a donor to a prisoner would state the cost of the publication, the source and manner of payment, and any other necessary information. The appeals court noted that the prisons already spend significant time and effort determining whether publications received are truly "free," and stated that on remand, the trial court should consider ready alternatives on the issue of whether alternatives such as those proposed by the plaintiffs would be viable.

      The appeals court further found that the Defendants' practice of only notifying a prisoner that a publication was not being delivered was inadequate to protect the rights of the publisher of the material. It found that providing adequate individualized notice to the publisher "would appear to impose a minimal burden."

     Jacklovich v. Simmons, #03-3227, 2004 U.S. App. Lexis 26550 (10th Cir. 2004).

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Prisoner who alleged he was denied medical treatment for two days in county jail while suffering from appendicitis adequately asserted a claim for violation of his constitutional rights even absent a showing that the delay resulted in a specific detriment to his ultimate treatment.

      A prisoner claimed that employees and officials of Kalamazoo County, Michigan were deliberately indifferent to his serious medical condition of appendicitis and failed to provide prompt medical treatment for this condition for over two days while he was detained in the county jail.

      The trial court granted summary judgment for the defendants, concluding that the prisoner failed to present "verifying medical evidence" to prove the detrimental effect of the delay in providing him with medical treatment. The federal appeals court reversed.

      The appeals court found that the trial court properly concluded that there was a material issue of fact as to whether the defendants knew the nature and duration of the prisoner's abdominal pain, whether they had reason to believe that he required medical attention, and what the length of the delay was between such knowledge and his evaluation by a nurse. The prisoner allegedly complained of stomach pain within an hour of his arrival at the jail, and an officer's log entries shortly thereafter describe the prisoner as having "sharp abdominal pain." It was also undisputed that the prisoner was given antacids by non-medical prison employees, that he vomited, that he was placed in an observation cell, and that he did not receive any medical attention until over 50 hours after his arrest.

Viewing these facts in a light most favorable to the Plaintiff, we conclude that a reasonable jury could conclude that Defendants were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and the Defendants ignored that risk." Thus, we agree with the district court that a material factual dispute exists on whether Defendants had a "sufficiently culpable state of mind" under the subjective prong of the "deliberate indifference" test.

      The trial court, however, granted summary judgment to the defendants based on the "objective" component of a deliberate indifference claim--i.e., whether there was a serious need for medical care. Most courts, the appeals court noted, hold that a medical need is objectively serious if it is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." A requirement that there be "verifying medical evidence" as to the detrimental effects of a delay in medical treatment, the court ruled, is only relevant to "those claims involving minor maladies or non-obvious complaints of a serious need for medical care."

      In this case, in dismissing the complaint, the trial court noted that the prisoner's appendix did not burst, and that there was "no evidence of any medical complications or consequences arising from the delay of treatment . . . [or] that the delay contributed to the size or appearance of his surgical scar. There simply is no medical verification that his condition worsened as a result of the delay."

     The appeals court disagreed that this was a sufficient basis for summary judgment for the defendants. A determination that the prisoner's appendix ruptured, the court reasoned, is not a prerequisite for his Eighth Amendment right to "avoid the pain from the officers' deliberate indifference to his obvious need for medical care."

     Under the circumstances of the case, the appeals court ruled, a reasonable jury could find that the prisoner had a serious need for medical care that was "so obvious that even a lay-person would easily recognize the necessity for a doctor's attention." A finding of deliberate indifference can be based on whether there is an existing "substantial risk of serious harm," and it is not required that it be shown that a delay in treatment causes an actual "detrimental effect," but rather that the delay alone in providing medical care "creates a substantial risk of serious harm."

When prison officials are aware of a prisoner's obvious and serious need for medical treatment and delay medical treatment of that condition for non-medical reasons, their conduct in causing the delay creates the constitutional infirmity. In such cases, the effect of the delay goes to the extent of the injury, not the existence of a serious medical condition.

     The appeals court found that the evidence in the record had sufficient allegations of unconstitutional conduct by both individual defendants and the county to require further proceedings and render summary judgment inappropriate.

     The prisoner presented evidence that the defendant county did not have a formal written policy on how to deal with prisoner illnesses, and that the jail's practice was not to provide a substitute nurse if the on-duty nurse calls in sick, resulting in times when a nurse is not on duty. This, together with the other circumstances of the case, presented a possible viable claim against the county for the delay in the prisoner's treatment.

     Blackmore v. Kalamazoo County, No. 03-2222, 390 F.3d 890 (6th Cir. 2004)

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Pre-trial detainees who asserted that they were forced to breathe air filled with fiberglass while in county jail adequately stated a claim for deliberate indifference to their health or safety against the county sheriff. Denial of toothpaste for an extended period of time could also violate a detainee's rights because of the possible consequences of poor dental hygiene.

      A federal appeals court has ruled that two brothers who were incarcerated in an Illinois county jail for 126 days while awaiting trial for murder can pursue their claims that they were subjected to inhumane conditions by being forced to breath air filled with fiberglass, and being denied proper dental and medical care.

      The appeals court noted that ''pursuant to constitutional requirements, a pretrial detainee 'may not be punished prior to an adjudication of guilt in accordance with due process of law,' '' Accordingly, in assessing the constitutionality of the conditions or restrictions faced by pretrial detainees like the plaintiffs, " we must determine whether the conditions allegedly encountered by the detainee amounted to punishment.''

      A detainee's due process rights are violated if jailers consciously ignore a known danger of harm to the detainee, and the harm faced is objectively serious enough to threaten the detainee's health or safety.

      Based on the plaintiff's assertions that the jail's heating and air-flow system released black fiberglass dust into their cells, aggravating one brother's asthma, and causing both plaintiffs to suffer nosebleeds, the appeals court found that the plaintiffs had adequately made the required showings in their lawsuit against the county sheriff named as a defendant in their lawsuit. The sheriff was alleged to have ignored a heating contractor's report indicating that the jail might be suffering from "sick building syndrome," along with the contractor's recommendation that the entire ductwork system, at a minimum, be cleaned.

      The prisoners' alleged direct physical manifestation of the resulting harm caused by the poor ventilation "as well as the quite likely possibility for future health problems" adequately satisfied the objective prong of the test for an Eighth Amendment violation. The sheriff's alleged decision to remedy the ventilation problem with a ''flimsy, non-productive Band-Aid procedure of merely vacuuming the grates'' was enough to satisfy an allegation of the subjective prong of the test.

     The appeals court also found that the plaintiffs stated a claim against the sheriff with their assertion that he repeatedly ignored their requests for toothpaste for a period of the time they were incarcerated at the jail. The court pointed out that a lack of proper dental hygiene can result in periodontal disease, followed by tooth loss and can also be related to life-threatening problems, including sepsis and heart complications. Because of these possible consequences, the denial of toothpaste for a long period of time can constitute a constitutional violation.

     ''The Eighth Amendment protects a detainee not only from deliberate indifference to his or her current serious health problems, but also from deliberate indifference to conditions posing an unreasonable risk of serious damage to future health.''

     The three-judge panel also found that one of the brothers, who currently suffers from asthma, had also asserted a valid claim against two jailers with his allegation that they denied him the use of his prescribed inhaler on several occasions.

     Board v. Farnham, No. 03-2628, 2005 U.S. App. Lexis 101 (7th Cir. 2005).

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California prisoner who had completed his criminal sentence and was a civil detainee awaiting proceedings to commit him as a sexually violent predator was entitled to non-punitive conditions of confinement under the due process clause of the Fourteenth Amendment. Summary judgment for correctional officials in his lawsuit challenging his conditions of confinement was therefore improper.

     A California prisoner completed his sentence but was kept in a county correctional facility as a civil detainee while awaiting proceedings under the state's Sexually Violent Predator Act (SVPA). That statute authorizes the state to seek the involuntary commitment of any person who has been convicted of certain specified violent sex offenses against at least two victims, and who has a diagnosed mental disorder that makes the person a dangerous likely recidivist. After the person in custody is identified by the Department of Corrections as a candidate for such a commitment, the statute allows his continued detention for 45 days before his scheduled release date for an evaluation by the state Department of Mental Health.

      If a judge then determines that there is probable cause to believe the individual is likely to commit sexually violent offenses upon release, the judge must order a trial to determine whether the individual is a sexually violent predator, with the detainee to remain in "custody in a secure facility" until the completion of the trial. If the court or a jury concludes beyond a reasonable doubt that the individual is a sexually violent predator, the individual is to be civilly committed for two years "for appropriate treatment and confinement in a secure facility."

       Detainees being confined awaiting such hearings are currently held in administrative segregation, which is supposed to not involve "any deprivation of privileges other than what is necessary to protect the inmates and staff."

      The detainee was ultimately found to be a sexually violent predator and committed to a hospital, but prior to that he was incarcerated at a county jail for a period of over two years. For the first year, he was confined among criminal detainees. For most of the second year, he was housed in an administrative segregation unit in which was subject to far more restrictive conditions than those afforded to the general jail population.

      His recreational activities were completely taken away, and he was allowed only one hour or exercise every other day. The time he was allowed out of his cell was reduced more than ten-fold and he was denied access to religious services or physical access to the law library, only being allowed to request, by citation, copies of cases no more than twenty pages long. In his federal civil rights lawsuit challenging his conditions of confinement, he also stated that his phone calls and visiting privileges were considerably more limited than those of others in the facility, and he was subjected to numerous strip searches.

      The detainee claimed that on at least three occasions, he was led to the outside recreation area; forced at gun-point to remove all clothing within the sight of many deputies (including female deputies); forced to lift his penis and testicles for inspection, run his fingers through his hair, then run his fingers inside his mouth; and forced to bend over, spread his buttocks apart with his hands, and cough three times.

      The trial court granted summary judgment to the defendants.

      The detainee claimed that the defendants violated his substantive due process rights by confining him for a year among the general criminal inmate population of the county jail and for another year in the administrative segregation unit.

      In overturning the trial court's decision, the appeals court noted, first, that the applicable legal standard was not that of the Eighth Amendment prohibition against cruel and unusual punishment, under which a plaintiff is required to establish that the defendants "deprived [him] of the 'minimal civilized measure of life's necessities'," but instead the due process clause of the Fourteenth Amendment, which is a more protective standard applying to the conditions of confinement of detainees who have not been convicted of a crime.

The Fourteenth Amendment requires the government to do more than provide the "minimal civilized measure of life's necessities," for non-convicted detainees. Rather, "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."

      A person detained awaiting civil commitment proceedings, the court reasoned, is entitled to protections at least as great as those afforded to a civilly committed individual and at least as great as those given to an individual accused of, but not convicted of, a crime.

      Such a person may not be subjected to conditions that "amount to punishment." They are entitled, the court said, to "more considerate treatment" than their criminally detained counterparts. Therefore, when they are detained in conditions identical to, similar to, or more restrictive than those in which their "criminal counterparts" are held, the court would presume that the detainee is being subjected to "punishment."

      Further, if pre-trial detainees cannot be punished because they have not yet been convicted, it then follows that civil detainees cannot be subjected to conditions of confinement substantially worse than they would face upon commitment.

Or, to put it more colorfully, purgatory cannot be worse than hell. Therefore when an individual awaiting SVPA adjudication is detained under conditions more restrictive than those the individual would face following SVPA commitment, we presume the treatment is punitive.

      In this case, therefore, summary judgment was inappropriate. The plaintiff, while in the general population, was subject to precisely the same conditions as criminal inmates, and the defendants would be required on remand to explain "what legitimate, non-punitive purpose justified" his detention under those conditions. The appeals court also found that the defendants would have to "offer legitimate, non-punitive justifications" for the detainee's one year of confinement in administrative segregation with its accompanying restrictions on his activities.

      The appeals court also ordered further proceedings on the prisoner's religious freedom claims, but upheld summary judgment on his claim for denial of access to the courts, noting that he failed to allege any injury to the ability to pursue a particular legal claim.

     Jones v. Blanas, No. 02-17148, 2004 U.S. App. Lexis 26814 (9th Cir. 2004).

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Placing prisoner with a known violent history in an "open-spaced" dormitory, and allowing him to remain there after a conviction for possessing a weapon while incarcerated was sufficient to uphold a jury's award of damages against responsible prison employees after the prisoner brutally attacked another prisoner, crushing his left testicle. Federal appeals court reinstates jury award of $100,000 in damages.

     An Indiana state prison inmate was assaulted by a fellow inmate while he slept. The assailant beat him with brass locks stuffed in a sock, gashing his head and knees and crushing his left testicle. The attack required surgical removal of his damaged testicle and kept him in the prison hospital for a month.

     The injured prisoner sued correctional officers and officials for violation of his federal civil rights, claiming that they knew of and ignored a serious risk to his safety. A jury found for the plaintiff against two of the officers and awarded damages of $50,000 each against them, but the trial court vacated the jury's verdict and entered judgment as a matter of law for the defendants.

      A federal appeals court reversed, reinstating the jury's verdict.

     At the time of the attack, the prisoners were living in a dormitory which was considered a "meritorious assignment." Unlike traditional cellblock units which house the general prison population at the prison, this dormitory is an "open-spaced" setting allowing unrestricted movement within the unit. Eligibility for placement there required that a prisoner had spent at least a year in the general prison population and have been free from convictions or conduct violations that would be considered a serious security threat for at least ten years.

     The assailant had spent the prior six months at a county jail where his time was allegedly marked by a "history of violent conduct," including concealing a nightstick and extension cord in his cell and wresting a toilet from a wall. When the county sheriff transferred him to the prison, he sent along a letter detailing this and describing him as an "escape and assault risk."

      Despite this, the assailant was placed directly in the unrestricted dormitory. Five months later, he was convicted in the prison disciplinary system of possessing a weapon, which ordinarily would have resulted in his removal to more restrictive housing assignment, but he was allowed to remain. Several months later, the attack on the plaintiff prisoner occurred.

      The appeals court found that there was sufficient evidence to find that the two defendants found liable knew that the assailant posed a substantial risk to the other inmates. There was evidence that they reviewed the sheriff's letter which warned of the assailant's "aberrant behavior" and advising that he was an escape and assault risk. There was also evidence that they knew of the assailant's weapons conviction. The jury could conclude that they were deliberately indifferent to the risk that the assailant posed to other prisoners by staying in the unrestricted dorm environment. The plaintiff was not required to show that the assailant was known to pose a particular risk of harm to him--it was sufficient that he posed a risk to all of the other inmates in the dormitory.

     The jury could have found, the appeals court ruled, that the defendants, knowing that the assailant posed a substantial risk of harm, disregarded that risk, first by assigning him to the dorm, and then by allowing him to remain following his weapons conviction.

Such inaction in the face of a substantial risk is sufficient to demonstrate deliberate indifference under the Eighth Amendment.

     Pierson v. Hartley, No. 02-3491, 2004 U.S. App. Lexis 25775 (7th Cir. 2004).

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Correctional officer accused of kicking a handcuffed prisoner's genitals was not entitled to qualified immunity on prisoner's claim that this constituted cruel and unusual punishment.

      A prisoner claimed that he was threatened by a correctional officer following an interrogation in which he denied knowing of any officers bringing in drugs or knives into the prison. The threats allegedly were made against both the prisoner and his family, and the correctional officer, the prisoner asserted, immediately escorted him into a holding cell, and without warning slammed his face into the wall causing a nosebleed and swollen eye. He then allegedly kicked the prisoner in his penis and several times in his back while he was lying on the cell floor with cuffs on and with his hands behind his back. The prisoner claimed that, during these events, he did not resist or threaten the officer in any fashion or break any prison rules.

      In light of these claims, a federal trial court refused to grant the defendant correctional officer qualified immunity, finding that there was a triable issue of fact as to whether the officer had applied force "maliciously and sadistically to cause harm" in violation of the Eighth Amendment. It found that, if the facts were as the prisoner claimed, the officer violated a clearly established constitutional right of which a reasonable person would have known.

      The correctional officer, represented by the California attorney general, appealed, arguing that the prisoner's declaration of facts if accepted as true, stated no Eighth Amendment violation of the prohibition against cruel and unusual punishment, and that a reasonable officer in the defendant's position would not necessarily have believed that his conduct--described by the defendant as a kick in "groin"--was unlawful.

     Strongly rejecting this argument, the appeals court stated that a lawyer "must be zealous on behalf of his client," but "zeal needs to be tempered by common sense." The law prohibits the use of force against prisoners for the "malicious and sadistic purpose of causing harm." The prisoner's declaration "describing the vengeful acts of a frustrated investigator," if true, "identifies the unconstitutional purpose and deeds."

To suppose that any reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner's genitals was cruel and unusual conduct is beyond belief. The Supreme Court did not need to create a catalogue of all the acts by which cruel and sadistic purpose to harm another would be manifest; but if it had, such act would be near the top of the list. The case must go to trial.

     Watts v. McKinney, No. 03-16665 2005 U.S. App. Lexis 337 (9th Cir. 2005).

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U.S. Supreme Court to examine what due process is required before placing prisoners in a "super-maximum security" facility.

      As previously reported, Austin v. Wilkinson, #02-3429, 372 F.3d 346(6th Cir. 2004), Jail & Prisoner Law Bulletin, July 2004, a federal appeals court held that Ohio prisoners had a protected liberty interest in not being placed in a "super-maximum" high-security facility without due process, and also upheld a trial judge's injunctive orders concerning procedures to be followed prior to placement, including specific notice of grounds for placement and evidence to be relied on. It also found, however, that the trial court went too far in modifying substantive state regulations, such as specifying the amount of drug possession or level of gang involvement required before placement in the "supermax" facility.

      The U.S. Supreme Court has now granted review of the case, to answer the question: "When state prison officials decide to place prisoner in 'super-maximum security' facility based on predictive assessment of security risk that prisoner presents, but prison regulations create liberty interest for prisoner in avoiding such placement, do procedures meeting requirements specified in Hewitt v. Helms, No. 81-638, 459 U.S. 460 (1983) satisfy prisoner's due process rights?"

     In Hewitt, the U.S. Supreme Court held that an informal, nonadversarial evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine him to administrative segregation pending completion of an investigation into misconduct charges against him. In either situation, the Court stated, an inmate must merely receive notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.

     A report on the Court's decision in this important case will appear in a future issue of this publication.

     Austin v. Wilkinson, #02-3429, 372 F.3d 346(6th Cir. 2004), cert. granted, Wilkinson v. Austin, 04-495, 2004 U.S. Lexis 8174.

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Federal appeals court rules that Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers to the lesser of six months or ten percent of the prisoner' sentence is based on an incorrect interpretation of the applicable statutes.

      A federal prisoner had been sentenced to forty-eight months in prison, followed by three years of supervised release after he pled guilty to a charge of wire fraud. Upon entering prisoner, he learned that he would not be eligible for transfer to a Community Corrections Center (CCC) until November 28, 2005, which would be, with the application of good time credits, four months from the end of his sentenced. The prisoner filed suit alleging that the Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers ("CCC") to the lesser of six months or ten percent of the prisoner's sentence is illegal.

      The trial court denied the prisoner's petition for a writ of habeas corpus. A federal appeals court reversed, holding that the Bureau of Prison's (BOP's) interpretation of 18 U.S.C. Sec. 3621(b) and 3624(c) as limiting its discretion to place prisoners in CCCs is invalid and erroneous.

     At the time the prisoner pled guilty, the BOP had a policy of allowing prisoners to serve their last six months of incarceration in a CCC regardless of what percent of the sentence the six months comprised. On December 13, 2002, however, the Office of Legal Counsel of the U.S. Department of Justice issued a Memorandum that found that the BOP's CCC placement policy was illegal because it was inconsistent with the BOP's statutory grant of authority.

      The BOP is granted authority to designate the place of an inmate's imprisonment in 18 U.S.C. § 3621(b):

(b) Place of imprisonment.--The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable . . . . The Bureau may at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another.

      However, this grant of authority must be read in conjunction with 18 U.S.C. § 3624(c):

(c) Pre-release custody.--The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's reentry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.

     The Memorandum concluded that the BOP's policy of placing prisoners in CCCs for six months at the end of their terms was inconsistent with § 3621(b) and § 3624(c), and stated that "community confinement does not constitute imprisonment." The memo concluded therefore, that § 3621(b), which gives the BOP the power to decide a prisoners "place of imprisonment" in "any available penal or correctional facility" did not apply to placement in CCCs.

     The memo reasoned that the authority to transfer a prisoner to a CCC came solely from § 3624(c). This section limited the stay in "conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community" to "a reasonable part, not to exceed six months, of the last 10 per centum of the term." The Memorandum finally concluded the BOP had no authority to transfer a prisoner to a CCC, except for the lesser of the last ten percent of the sentence or the last six months of the sentence.

     This resulted in the prisoner being eligible for placement in a CCC for only the last four months of his sentence, rather than the last six months.

     The federal appeals court ruled that Section 3624(c) clearly states that the BOP "shall" "assure" that each prisoner spends a reasonable part of the last ten percent of his or her term "under conditions that afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community" to the extent that this is practicable. This, the court reasoned, imposes an "affirmative obligation" on the BOP to take steps to facilitate a smooth re-entry for prisoners into the outside world. While it does not require placement in a CCC prior to release, the BOP must ensure placement under pre-release conditions "except where no such placement is practicable."

Under § 3621(b), the BOP may place a prisoner in a CCC for six months, or more. Under § 3624(c) the BOP must formulate a plan of pre-release conditions. This plan may include CCC placement, home confinement, drug or alcohol treatment, or any other plan that meets the obligation of a plan that addresses the prisoner's re-entry into the community. Likewise, the obligation is qualified by the phrase "to the extent practicable." Security concerns or space limitations in a CCC near the prisoner's home are among the factors that may make it impractical to transfer a prisoner to a CCC for all or even part of the transition period.

     Both parties in the immediate case agreed that CCCs are placements of imprisonment for the purposes of 18 U.S.C. Sec. 3621, and the court held that Sec. 3621(b) gives the BOP the discretion to transfer prisoners to CCCs at any time during their incarceration.

Further, the BOP is required to place prisoners in "conditions that will afford [them] a reasonable opportunity to adjust to and prepare for the prisoner's reentry into the community" during a reasonable part of the last ten percent of the prisoner's term, to the extent practicable. This duty shall not extend beyond the last six months of the prisoner's sentence.

      The decision was by a 2-1 vote of a three-judge appeals panel. A strong dissent by one judge agreed with the analysis of the challenged policy concerning the interpretation of the statutes at issue:

Practical application of the majority's decision would permit inmates being assigned to CCCs for years or for the entire term of imprisonment. May the BOP decide a federal inmate serving a twenty-year or even fifty-year sentence will be placed in a CCC for ten years or for the entire imprisonment term? According to the majority, such a decision would rationally implement sections 3621(b) and 3624(c), notwithstanding section 3624(c)'s express six-month limitation. The majority's interpretation eviscerates section 3624(c) in a judicial effort to expand the possible CCC time. I prefer to follow the language of Congress in its entirety.

     Elwood v. Jeter, No. 04-2253, 386 F.3d 842 (8th Cir. 2004).

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Federal appeals court reinstates Buddhist prisoner's claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA) that it violated his rights to deny him a special religious diet without meat, dairy products, or "pungent vegetables." Exhaustion of remedies under Religious Freedom Restoration Act was sufficient to support claim under RLUIPA, since the legal standards under both statutes were identical.

     An inmate at SCI-Greene, a Pennsylvania state correctional facility, sued correctional officials claiming that his Free Exercise and Equal Protection rights under the First and Fourteenth Amendments were violated by the prison's refusal to provide him with a diet allegedly required by his Buddhist beliefs. He also brought a claim pursuant to the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq.("RLUIPA").

      A federal appeals court upheld summary judgment on the prisoner's constitutional claims, but reversed the trial court's dismissal of his claims under the RLUIPA. The trial court had dismissed the RLUIPA claims because of the prisoner's alleged failure to exhaust available administrative remedies prior to filing suit, as required by 42 U.S.C. § 1997e of the Prison Litigation Reform Act (PLRA).

     The prisoner claimed that under his self-taught understanding of Buddhist religious texts, he is not permitted to eat any meat or dairy products, and cannot have foods containing "pungent vegetables" such as onions, garlic, leeks, shallots and chives. As a result, he became a vegetarian, and began declining food trays containing meat. When he does accept food trays, he eats only fruit, certain cereals, salads served without dressing, and vegetables served with margarine. He supplements his meals with items purchased from the commissary, including peanut butter, peanuts, pretzels, potato chips, caramel popcorn, and trail mix. He demanded that the prison provide him with a diet free of meat, dairy products and pungent vegetables, and sued after the request was denied.

     The trial court rejected the prison's argument that the prisoner's beliefs were not sincere and religious in nature. It also found, however, that the dietary accommodation proposed by the plaintiff prisoner was "much more burdensome" than what was being provided to Jewish and Muslim inmates because his diet would require individualized preparation of meals and special ordering of food items not on the master menu. The trial court found no violation of the prisoner's First Amendment or equal protection rights, therefore.

      The prisoner's lawsuit, as initially filed, also claimed that his right to freely exercise his religious beliefs had been impaired in violation of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. ("RFRA"). In City of Boerne v. Flores, 521 U.S. 507 (1997), however, the Supreme Court declared RFRA unconstitutional as applied to the states, and prisoner's claim was extinguished. Congress then enacted the RLUIPA as a replacement for the RFRA, and the new statute, like the old one, mandates that a substantial burden may not be put on a prisoner's exercise of his sincere religious beliefs in the absence of a showing of a "compelling" governmental interest, and even then that the policy restricting such exercise must use the least restrictive means of furthering that interest.

     The prisoner amended his complaint to assert a claim under the RLUIPA, but the trial court dismissed that claim, reasoning that the prisoner had failed to exhaust available administrative remedies, since his previously adjudicated grievances had asserted claims under the RFRA, but not the RLUIPA, which had not previously been enacted. The court ruled that his claim was no longer exhausted now that it was based on RLUIPA.

     The appeals court was satisfied that, using standard First Amendment analysis, the trial court properly assessed the impact on other inmates, guards and the prison administration of providing of religious diets for adherents of faiths other than Jews and Muslims, and agreed that the trial court properly found that furnishing the diet requested by the prisoner would be overly burdensome, and therefore was not required under the First Amendment.

     The appeals court rejected, however, the argument that the prisoner failed to exhaust available administrative remedies on his RLUIPA claim. The court found that the RLUIPA did not enact a new substantive standard of review for prisoner religious claims, but merely restated the standard previously found in the RFRA, the prisoner had adequately satisfied the exhaustion requirement of Sec. 1997e(a) by pursuing his prior grievance under the RFRA. Both statutes state that a substantial burden may only be placed on prisoner religious practices if the restrictions are in furtherance of a compelling governmental interest and are the least restrictive means of furthering that compelling governmental interest.

The statutory language is nearly identical, and statements by RLUIPA's sponsors in the Congressional Record indicate that the legislative intent was to reenact RFRA in constitutional form.

     Since the trial court improperly dismissed the prisoner's RLUIPA claim, the appeals court ordered further proceedings on whether he was entitled to the requested religious diet under the standard set forth in that statute.

     Dehart v. Horn, #03-4250, 390 F.3d 262 (3d Cir. 2004).

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State could not constitutionally impose sex offender registration and therapy as conditions to the release on mandatory supervision of a prisoner never convicted of a sexual offense without first providing due process.

      A federal appeals court agreed with a prisoner that the state of Texas was required to provide due process before imposing sex offender registration and therapy as conditions to his release on mandatory supervision when he had never been convicted of a sex crime.

     The prisoner was sentenced to thirty years on a burglary charge, but was subsequently paroled. While on parole, he was indicted for aggravated sexual assault of a child and indecency with a child by contact. He pled guilty to and was convicted of only misdemeanor assault, following which he was reincarcerated when his parole was revoked.

     He was later released on mandatory supervision on the condition that he reside in a halfway house until employed. The parole panel later imposed two additional conditions on his release, requiring him to register as a sex offender and attend sex offender therapy. He was not given advance notice or a hearing to contest the imposition of these conditions. After he registered, but failed to enroll or participate in therapy, his parole was revoked again.

      The prisoner asserted that this violated the due process clause of the U.S. Constitution.

       The federal appeals court agreed, noting that the prisoner, not having been convicted of a sex offense, has "never had an opportunity to contest his sex offender status."  Under these circumstances, the prisoner had a liberty interest created by the due process clause of the Fourteenth Amendment in freedom from sex offender classification and conditions.

      The appeals court found that only procedural due process was involved, requiring notice and a hearing prior to the imposition of the conditions.

      It rejected the prisoner's argument that the state's imposition of sex offender registration and therapy absent a sex offense conviction constituted arbitrary state action that "shocks the conscience" and thus violates his substantive due process rights. The appeals court acknowledged that the therapeutic measures that might be used in the therapy program were "certainly intrusive." The prisoner stated that such treatment could include "interventions with psychopharmacological agents," polygraph exams to determine sexual history, and use of penile plethysmographs to "modify deviant sexual arousal and enhance appropriate sexual arousal."

      But the appeals court pointed out that "only the most egregious official conduct" is arbitrary in the constitutional sense. Conduct most likely to "shock the conscience" and therefore support a substantive due process claim is "conduct intended to injure in some way unjustifiable by any government interest."

      In this case, the sex offender treatment was intended to serve a government interest in protecting the community from future sex offenses, and, as invasive as the therapy appears, the appeals court expressed doubt that the parole panel "imposed the therapy condition with the intent to injure" the plaintiff prisoner.

The Texas Department of Criminal Justice is authorized by Texas law to impose reasonable conditions on parole to serve the interests of protecting the community and rehabilitating the parolee. When those conditions impact a liberty interest of the parolee, they may be imposed only with justification. The Department may condition Coleman's parole on sex offender registration and therapy only if he is determined to constitute a threat to society by reason of his lack of sexual control. Absent a conviction of a sex offense, the Department must afford him an appropriate hearing and find that he possesses this offensive characteristic before imposing such conditions. This court was told at oral argument that evidence of Coleman's lack of sexual control exists. None appears in the record, however, and no contention is made that Coleman has been afforded a hearing meeting the requirements of due process.

     The appeals court therefore held that the sex offender conditions placed on the prisoner's parole were invalid. But it did not preclude the state from further efforts to impose the same conditions on the prisoner's parole "upon proper notice and consistent with this opinion."

     Coleman v. Dretke, No. 03-50743, 2004 U.S. App. Lexis 26660 (5th Cir. 2004).

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Female prisoner's claim that male jailer walked by and saw her bare breasts while female officers were searching her in a shower room did not establish a violation of her constitutional rights.

      A Kentucky woman was arrested on allegations of selling a marijuana cigarette to a teenager, although charges against her were subsequently dismissed for insufficient evidence. After her arrest, she was searched for contraband at the county jail. While the search was conducted by female jailers, she claimed that at one point during the search, a male jailer passed by and saw her bare breasts.

      She sued Knox County, Kentucky and the Knox County Jail, claiming that this violated her constitutional rights.

      A federal appeals court upheld the trial court's determination that the facts in the record did not create a dispute of material fact giving rise to a constitutional violation regarding the search at the jail.

      The prisoner was searched in a shower area or room by female jail employees, on which there allegedly was no door. While the parties to the case disputed whether the search should be called a "strip-search," the appeals court found that at one point the jailers did instruct the prisoner to raise her shirt and pull her bra up and out from her body so that any contraband hidden in her bra would fall out. She was not compelled to remove her pants or to take her shirt or bra completely off. The jailers stated that they did not search everyone taken into custody in this manner, it was routine for an inmate arrested on a drug charge in order to search for contraband.

      The prisoner claimed that while she was standing with her shirt and bra up and bare chest exposed, a male jailer walked by the room, saw her exposed chest, and stopped and "stared" before continuing down the hall. She did not say anything to either him or to the women jailers searching her, but claimed that she burst into tears, was distraught, and suffered mental injury from the experience.

      It was disputed by the defendants in the case whether this happened, and even whether the male jailer was at the facility at the time of the search, but for purposes of the appeal, the court assumed that he was present at the jail and saw the prisoner's bare breasts during the search.

      The appeals court noted that the prisoner had been arrested on a drug charge and that even she conceded that it was reasonable to search her for contraband under the circumstances. Her objection appeared to be the location where she was searched, a show area or room without a door, which she argued did not provide sufficient privacy to keep others, particularly members of the opposite gender, from seeing her.

      The court pointed out that for security reasons, jails do not have many places that provide "complete privacy from others," particularly from jail employees. The plaintiff prisoner, the court stated, had not offered any evidence that there was a more private location in the jail that would have been a more appropriate place to search a detainee.

      This was not a case, the court stated, in which the institution's policy forced prisoners to be searched by members of the opposite sex, or to be exposed to regular surveillance by officers of the opposite sex while naked, for example while in the shower or using a toilet in a cell. In this case, instead, female jailers took the prisoner to a separate room where two female officers searched her. There was no proof that it was standard policy for inmates to be searched in such a manner that guards of the opposite sex or other persons would "routinely view them." Instead, the female officers followed routine procedures to secure her privacy.

      The court found no evidence suggesting that the female officers knowingly violated the prisoner's constitutional rights or conspired with the male jailer for him to have an opportunity to see her during the search. The fact that he may have seen her accidentally as he was walking by "cannot be a constitutional violation in the absence of any evidence that either the normal search policy was unconstitutional or that it was carried out in an unconstitutional manner." Further, there was insufficient evidence to show that the male jailer intentionally sought out the prisoner during her search in order to invade her privacy. There was no showing that it was "anything other than an accidental encounter." The appeals court also found no basis for claims against the county.

     A dissent by one member of the three judge appeals court panel argued that a claim was stated against the male jailer, based on the prisoner's assertion that he stood in an open doorway and looked at her for as long as the search took, and stopped and stared at her. This judge contended that the prisoner's testimony that he stopped and stared at her rather than averting his eyes, raised a factual issue as to whether his behavior was the sort of invasion of bodily privacy that would violate her constitutional rights.

     Mills v. City of Barbourville, No. 02-6404, 2004 U.S. App. Lexis 23753 (6th Cir. 2004).

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Access to Courts/Legal Info

     Prisoner's claim that the refusal of jail officials to provide him with large envelopes that he owned in order to mail documents concerning pending court cases denied him access to the courts failed because he failed to allege that this caused any actual prejudice in those cases. He did not claim that this had resulted in the dismissal of a case or the missing of any court deadline, or that the courts failed to receive his submissions. Jackson v. Gill, No. 03-5045, 92 Fed. Appx. 171 (6th Cir. 2004).

     Prisoner did not have an absolute right to be physically present at the trial of his small claims action against two state employees for alleged damages to a television set which was his property. While he had a constitutional right to bring the action, this did not include any entitlement to be transported to the court or have the trial conducted at the prison, since he could choose to submit the case to the court through documentary evidence, obtain someone else to represent him at the trial, participate in the trial by telephone conference call, or postpone the trial until he was released from confinement. Niksich v. Cotton, No. 48802-0402-CV-80, 810 N.E.2d 1003 (Ind. 2004).

     Illinois prisoner was not entitled to a judicial order requiring prison employees to provide him with photocopying in connection with litigation. The prisoner failed to specify which non-frivolous legal actions had been adversely affected by the alleged refusal to copy the requested documents. Turner-El v. West, No. 5-03-0406, 811 N.E.2d 728 (Ill. App. 5th Dist. 2004).

Chemical Agents

     Officer did not violate prisoner's right to be free of cruel and unusual punishment in spraying him with a chemical agent when the facts showed the officer acted in a good faith effort to maintain or restore discipline and not malicious or sadistically to cause him harm. Davis v. Cannon, #02-41596, 91 Fed. Appx. 327 (5th Cir. 2004). [PDF]

First Amendment

     Iowa prisoner's claim that a correctional officer wrote a false misconduct report concerning his behavior in retaliation for his announced intention to file a grievance against him, and did so for the purpose of preventing the processing of the grievance, stated a claim for violation of First Amendment rights, so that dismissal of the claim was not warranted under 28 U.S.C. Sec. 1915(e)(2)(B). Hartsfield v. Department of Corrections, No. 04-1311, 107 Fed. Appx. 695 (8th Cir. 2004). [PDF]

      Factual issues existed as to whether prison officials who transferred prisoner to administrative segregation after a behavior modification unit program was discontinued were motivated by a desire to retaliate against him for filing grievances, in violation of his First Amendment rights. Summary judgment was therefore properly denied to the defendants in the prisoner's lawsuit. Lodatao v. Ortiz, No. CIV.A. 02-2803, 314 F. Supp. 2d 379 (D.N.J. 2004).

Home Detention/Home Release

     County could not be held liable for death of murder victim allegedly killed by detainee who removed an electronic home monitoring restraint and escaped home detention before committing the crime. The county and its agencies had no "special duty" to protect the victim from the crime, and an exception to statutory immunity for injury and death that occurs within the grounds of buildings used in performance of public functions did not apply. Kennerly v. Montgomery Cty. Bd. of Commissioners, 814 N.E.2d 1252 (Ohio App. 2d Dist. 2004). [PDF]

Medical Care

     Factual issue as to whether prison medical personnel acted with deliberate indifference in delaying the dispensing of prescribed antibiotic medication to a prisoner, thereby causing him "hours of needless suffering" without any reason for doing so precluded summary judgment for the defendants. A factual issue was also presented on whether a doctor was deliberately indifferent in prescribing a medication that a specialist had warned against on three occasions, causing severe constipation for more than a week following the prisoner's rectal prolapse surgery. Gil v. Reed, No. 02-1823, 381 F.3d 649 (7th Cir. 2004). [PDF]

     A genuine issue of material fact existed as to whether a prison doctor was deliberately indifferent to a prisoner's serious medical needs in delaying a recommendation to transfer him to another prison where he could obtain physical therapy for his arthritis. Trial court improperly granted summary judgment to defendant doctor. Jordan v. Smith, No. 02-16152, 90 Fed. Appx. 228 (9th Cir. 2004).

     Pretrial detainee failed to show that jail personnel were deliberately indifferent to his serious medical needs by allegedly denying him prescribed medication and causing him to miss chemotherapy appointments while he was confined. A hospital confirmed that there was no medication prescribed for him at the time of his detention and that he was no longer scheduled for chemotherapy treatment. Additionally, the detainee declined to provide consent for jail personnel to enter his home to pick up any prescribed medications allegedly located there. Scott v. Archey, No. 03-1837, 99 Fed. Appx. 62 (7th Cir. 2004).

     Federal prisoner's claims concerning alleged inadequate medical care provided after he experienced a head injury following a fall, which subsequently resulted in seizures and strokes really only amounted to a disagreement with medical personnel as to the proper course of treatment to be followed, and was insufficient to state a claim for violation of his constitutional rights, which requires a showing of deliberate indifference to serious medical needs. Smith v. Tharp, No. 03-1293, 97 Fed. Appx. 815 (10th Cir. 2004).

     Inmate who claimed that medical personnel were deliberately indifferent to a wrist condition he described as paralytic and his self-diagnosis of carpel tunnel syndrome could not be awarded damages when medical records contained no indication of any diagnosed wrist condition and a doctor's diagnosis showed that the inmate's complaints of pain were the result of "psychosomatic delusion." Green v. Senkowski, No. 03-0250, 100 Fed. Appx. 45 (2nd Cir. 2004). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     A New York prisoner's failure to file a timely appeal to the highest administrative level of his grievance against a correctional officer concerning his removal from his porter work assignment barred his federal civil rights lawsuit under 42 U.S.C. Sec. 1997e for failure to exhaust available administrative remedies. His failure to do so was not excused by his transfer to another correctional facility. Soto v. Belcher, No. 01 Civ. 7520, 339 F. Supp. 2d 592 (S.D.N.Y. 2004).

     Prisoner ruled to have adequately exhausted available administrative remedies even when he had not "technically exhausted" procedures prescribed by state law for inmate grievances because he had pursued both formal and informal avenues to present his grievances and did not receive any formal response to his grievance until five months after it was filed. Defendant correctional officers were therefore not entitled to summary judgment in the prisoner's lawsuit claiming that they had assaulted him. Jenkins v. Raub, No. 01-CV-64221, 310 F. Supp. 2d 502 (W.D.N.Y. 2004).

Prisoner Assault: By Inmates

     Prisoner showed an adequate connection between the alleged attack on him by other inmates and a D.C. alleged policy or custom of transferring prisoners without informing the transferee correctional facility about active orders requiring their separation from other prisoners to state a federal civil rights claim against the District. Ashford v. District of Columbia, No. Civ.A. 02-1955, 306 F. Supp. 2d 8 (D.D.C. 2004).

Prisoner Assault: By Officers

     Evidence in prisoner's excessive force lawsuit against a correctional officer supported the officer's contention that he only used a reasonable amount of force to restrain him after the prisoner banged his own head against the wall of a prison infirmary. Under these circumstances, no excessive use of force was shown. Jones v. Cornutt, No. 03-10302, 100 Fed. Appx. 251 (5th Cir. 2004). [PDF]

Prisoner Classification

     Mississippi prisoner failed to show that the state Department of Corrections acted in an arbitrary and capricious manner in reclassifying his custody status. Prisoners do not have a property or liberty interest, under either the U.S. Constitution or Mississippi state law, in a particular custodial classification or housing assignment. Further, the prisoner himself admitted that he had received an administrative hearing, that an investigation was conducted, and that relevant evidence was presented at the hearing concerning his alleged activities as a leader of a gang called the "Gangster Disciples" prior to the change in his classification. Hurns v. Mississippi Department of Corrections, No. 2002-CP-01895-COA, 878 So. 2nd 223 (Miss. App. 2004). [PDF]

Prisoner Death/Injury

     Prisoner's failure to claim personal involvement of the sheriff in connection with his slip and fall on wet floor outside shower area in county correctional facility barred a federal civil rights claim against him. Sheriff was not involved in the incident itself and the prisoner failed to allege any conduct in the sheriff's supervisory role which would have imposed liability. Davis v. Reilly, No. 03-CV-3954, 324 F. Supp. 2d 361 (E.D.N.Y. 2004).

Prisoner Discipline

     Disciplinary hearing finding that a prisoner was guilty of violating rules against violent conduct, smuggling, refusing a direct order and failure to comply with frisk procedures when he attempted to flee officer who observed him with what appeared to be a marijuana cigarette was supported by substantial evidence, including a detailed misbehavior report and testimony at the hearing. Roman v. Goord, 783 N.Y.S.2d 150 (A.D. 3d Dept. 2004). [PDF]

     Prisoner formally charged in disciplinary proceeding of attempted intimidation did not have a due process right to a separate notice of lesser included disciplinary charges of profanity, vulgarity, or insolence to a prison staff member before being found guilty and punished for these lesser included offenses. The notice received adequately informed the prisoner of the facts underlying the alleged incident. Federal appeals court also holds that the use of evidence of past rule violations committed by the prisoner to support a charge of being a habitual rule violator, did not violate the Fifth Amendment prohibition against double jeopardy. (The finding that he was a habitual rule violator, however, was overturned on appeal on the basis of an untimely filing of that particular charge). Portee v. Vannatta, No. 04-1080, 105 Fed. Appx. 855 (7th Cir. 2004).

     Prisoner's vague statement that other unidentified inmates would be willing to testify on his behalf if what had already been presented in the testimony of three inmates "wasn't enough" was insufficient to constitute a request to call additional witnesses. The prisoner therefore waived his right to call additional witnesses in his prison disciplinary hearing, and there was no basis for overturning the determination of guilt. Vigliotti v. Duncan, 781 N.Y.S.2d 800 (A.D. 3rd Dept. 2004). [PDF]

     Evidence of ink stains on prisoner's fingers supported the conclusion in a disciplinary hearing that he had pulled a fire alarm coated with anti-theft detection powder, so that his claim that the discipline imposed violated his due process rights was properly dismissed. Sarmiento v. Hemingway, No. 03-1809, 93 Fed. Appx. 65 (6th Cir. 2004).

Procedural: Discovery

     Prisoner was entitled to discovery of personnel files and related records of five defendant prison employees he claimed had been deliberately indifferent to his serious medical needs, along with other documents concerning their training and job performance. Any intrusion into their privacy could be addressed by an appropriate protective order by the court. Smith v. Goord, No. Civ.A. 9:03-CV-294, 222 F.R.D. 238 (N.D.N.Y. 2004).

Religion

     A prison regulation banning both group prayer and "individual demonstrative prayer" in open areas of the facility had a rational relationship to legitimate prison security concerns, and therefore did not violate a prisoner's right to practice his religion under the First Amendment. Further, the regulation was equally applied to all religions, and allowed alternative means of prayer, including praying in cells, and weekly group prayer services in designed areas. Court rules, however, that the defendant prison officials were not entitled to qualified immunity on the prisoner's claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc, which requires a "compelling" governmental interest and the use of the least restrictive alternative in order to impose a substantial burden on prisoner religious practices, because the defendants failed to assert a qualified immunity defense in their answer to the complaint. Ahmad v. Ehrmann, No. CIV.A.01-F-1164, 339 F. Supp. 2d 1134 (D. Colo. 2004).

Search: Body Cavity

     Strip search, including a digital rectal search, of a prisoner who allegedly refused to cooperate and injured a guard in resisting was reasonable and justified by a legitimate interest in maintaining order and security. The prisoner's "conclusory" assertion that the glove used to conduct the search was "dirty" was insufficient to show that the search was conducted in an unsanitary manner in violation of the Eighth Amendment. Green v. Hallam, No. 03-2562, 105 Fed. Appx. 858 (7th Cir. 2004).

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

     Indian Prisons: Testimony of the Honorable Earl E. Devaney, Inspector General for the Department of the Interior Before the Committee on Indian Affairs, United States Senate, June 23, 2004, concerning the "state of detention facilities in Indian Country." [PDF] In the testimony, Devaney indicated that an investigation found a "disturbing" number of suicides and unreported escapes in some of the facilities. U.S. Department of Justice statistics show that there are "74 detention facilities in Indian County," with eight of them run by Indian tribes, twenty run by the Bureau of Indian Affairs (BIA) and 46 receiving BIA funds under contract agreements. Half of these facilities operated at full capacity in 2002, and nineteen were reportedly operating at 150% of capacity. Devaney stated that "BIA's detention program is riddled with problems and, in our opinion, is a national disgrace, with many facilities having conditions...[similar] to Third World Countries." A more detailed report is expected from the Inspector General's office in the summer of 2005.

     Legal Memorandum: "Memorandum for James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. Secs. 2340-2340A" Concerns interpretation of federal criminal prohibitions against the use of torture in the context of recent controversies concerning the treatment of prisoners at U.S. military prisons in other countries. U.S. Department of Justice, Office of Legal Counsel, December 30, 2004. [PDF]

     Legal Memorandum: "Constitutionality of 18 U.S.C. Sec. 1120," U.S. Department of Justice, Office of Legal Counsel, written August 31, 2000, made available on the DOJ website 12/23/04. "Congress has clear constitutional authority to proscribe killings committed by escaped federal inmates serving life sentences, as provided in 18 U.S.C. § 1120, where the killings facilitate the escape or the avoidance of recapture. Congress's penological and custodial interests in ensuring the incapacitation of life-sentenced federal inmates provide compelling support for the constitutionality of 18 U.S.C. § 1120 even when it is applied with respect to a post-escape killing that is not related to the escape or subsequent efforts to avoid recapture."

     Legal Memorandum: "Regulation of an Inmate's Access to the Media," U.S. Department of Justice, Office of Legal Counsel, written April 13, 2001, made available on the DOJ website 12/23/04. "So long as the Bureau of Prisons' decision to regulate an inmate's access to the media is reasonably related to the legitimate penological interests articulated in the applicable regulations, the Bureau of Prisons may bar face-to-face interviews or videotaped interviews with an inmate, or place other reasonable conditions and restrictions on such interviews."

     Publications: Legal Resource Guide to the Federal Bureau of Prisons, 2004. 64 pgs. [PDF]

     Statistics: "American Indians and Crime: A BJS Statistical Profile, 1992-2002." Summarizes data on American Indians in the criminal justice system and reports the rates and characteristics of violent crimes experienced by American Indians. This report updates a previous BJS report, American Indians and Crime, published in 1999. The findings include the involvement of alcohol, drugs, and weapons in violence against Indians. The report describes victim-offender relationships, the race of those involved in violence against Indians, and the rate of reporting to police by victims. It discusses the rates of arrest, suspect investigations and charges filed, and incarceration of Indians for violent crimes. Highlights include the following: * From 1976 to 2001 an estimated 3,738 American Indians were murdered. * Among American Indians age 25 to 34, the rate of violent crime victimizations was more than 2½ times the rate for all persons the same age. * Rates of violent victimization for both males and females were higher for American Indians than for all races. 12/04 NCJ 203097 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: "HIV in Prisons and Jails, 2002". Provides the number of HIV-positive and active AIDS cases among State and Federal prisoners at yearend 2002. This annual bulletin reports the number of AIDS-related deaths in prisons, a profile of those inmates who died, the number of female and male prisoners with AIDS, and a comparison of AIDS rates for the general and prisoner populations. Based on the 2002 Survey of Inmates in Local Jails, the report provides estimates of HIV infection among jail inmates by age, gender, race, Hispanic origin, education, marital status, and by current offense and selected risk factors such as prior drug use. Also included is information on AIDS-related deaths among jail inmates. Highlights include the following: * Between 1998 and 2002 the number of HIV-positive prisoners decreased about 7%, while the overall prison population grew almost 11%. * At yearend 2002, 3.0% of all female State prison inmates were HIV positive, compared to 1.9% of males. * In 2002 the overall rate of confirmed AIDS in the prison population (0.48%) was nearly 3½ times the rate in the U.S. general population (0.14%). 12/04 NCJ 205333 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: "Felony Sentences in State Courts, 2002." Presents statistics for adults who were convicted of a felony and sentenced in State courts. The data were collected through a nationally representative survey of 300 counties in 2002. Within the 12 offense categories reported are the number and characteristics (age, sex, race) of offenders who were sentenced to prison, jail, or probation. Trends from 1994 to 2002 highlight the number and characteristics of adults convicted of felonies and the types and lengths of sentences imposed. This periodic report is published every two years. Highlights include the following: * Drug offenders were 32% of felons convicted in State courts in 2002. * State courts sentenced 41% of convicted felons to a State prison, 28% to a local jail, and 31% to straight probation with no jail or prison time to serve. * Guilty pleas accounted for 95% of felony convictions in State courts in 2002. 12/04 NCJ 206916 Acrobat file (557K) | ASCII file (25K) | Spreadsheets (zip format 28K)

     Reference:

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

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