FEATURED CASES

WITH LINKS TO THE OPINIONS

Illinois statute requiring convicted felons to submit blood samples for inclusion in a DNA database did not violate their rights, since the privacy expectations of convicted felons are reduced, and the governmental interest in maintaining the database outweighed their privacy interest. The result was not altered by the fact that the statute targeted all felons rather than only sex offenders.

     An Illinois man convicted of armed robbery without a firearm (using a knife), and vehicular invasion was sentenced to eight years in prison. He challenged the constitutionality of a section of the Illinois Unified Code of Corrections, 730 ILCS 5/5-4-3(a-5), which requires convicted felons to submit blood specimens to the Illinois Department of State Police for inclusion in both state and national DNA databases.

     The felon argued that this requirement violated his Fourth Amendment right to be free from unreasonable searches and seizures. An intermediate Illinois appeals court rejected this argument, and found that the governmental interest in creating and maintaining a DNA database to identify criminals outweighed any privacy interest.

     The prisoner claimed that "warrantless and suspicionless extraction" of his blood for the DNA database was fundamentally different from fingerprinting because it is more intrusive, and that prisoners do not forfeit all of their privacy rights. He also argued that his DNA was unlikely to be used to help solve any past or future crimes because he is a "non-violent and non-sexual" offender.

     The appeals court disagreed, concluding that the state's interest in a DNA database outweighed his interests in privacy, and that the statute therefore did not violate the Fourth Amendment. The court noted that DNA testing can more accurately identify a person's identity than fingerprinting and is a highly conclusive method of identification, "even for felons who try to disguise their identity through other means," giving the state a strong interest in obtaining reliable DNA identification evidence.

     Convicted felons, the court noted, have a lower expectation of personal privacy than is otherwise protected for other persons. "Once a person is convicted of a felony, the person's identity becomes a matter of state interest such that the person loses any legitimate expectation of privacy in the identifying information taken from him."

     The court further found that the physical intrusion of drawing blood was minimal, presenting no threat to the health or safety of the individual being tested, particular when, as in the case of the Illinois statute, the blood extraction is done by medical personnel.

     Even if blood tests are a greater intrusion than fingerprinting, blood tests are now "commonplace," the court commented. Indeed, prisons have a constitutional duty to attend to an inmate's medical needs, "which likely entail the drawing of blood," and such blood extracted for medical purposes can be put to multiple uses, thus lessening the intrusion on the inmate.

     The fact that the current statute applies to felons as opposed to a prior more narrowly defined group of convicted sex offenders did not alter the result.

[E]ven if defendant is unlikely to leave his DNA at a crime scene, the DNA can be used to properly identify him if he disguises his appearance. [...] the State has an interest in preventing recidivism, accurately determining guilt or innocence and conclusively identifying felons.

     The state's maintenance of a database of the DNA of sex offenders, as well as of all convicted felons, can be used to both identify felons and compare samples taken from crime scenes to convict or exonerate individuals. DNA alone, the court noted, does not confirm the commission of a crime, but rather confirms an individual's identity, so that the DNA database statutes "serves a special need beyond the ordinary needs of law enforcement."

     People v. Edwards, No. 1-03-1629, 2004 Ill. App. Lexis 1250 (Ill. App. 1st Dist. 2004).

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Michigan Department of Corrections' decision to designate certain jobs in housing units at female prisons as "female only," was valid. Gender is found to be a "bona fide occupational qualification" for such jobs, in light of a past history of alleged sexual abuse of female prisoners by male personnel.

     Following separate lawsuits by female prisoners in Michigan and by the Civil Rights Division of the U.S. Department of Justice, both of which claimed that there was rampant sexual abuse of female prisoners in the state, the Michigan Department of Corrections (MDOC) decided to ban male employees from working in certain positions at its female prisons. It designated approximately 250 correctional officer and residential unit officer jobs in housing units at female prisons as "female only." 

     A group of correctional employees, both male and female, sued the Department, claiming that this violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a) and similar provisions of state civil rights laws.

     A trial court, following a bench trial, ruled in the plaintiffs' favor, finding that gender was not a bona fide occupational qualification (BFOQ) for the jobs.

     A federal appeals court reversed this decision, ruling that gender was, in fact, a bona fide occupational qualification for the positions.

     The appeals court noted that a prior sexual abuse federal civil rights lawsuit by female inmates resulted in a settlement of a little less than $4 million, and that in a settlement of the prisoners' claim for injunctive relief, the Department pledged, among other things, to restrict pat-down searches of female inmates by male staff, to require male staff to announce their presence upon entering a female housing unit, and to maintain areas where female inmates could dress, shower, and use the toilet without being observed by male staff, as well as make a "good faith effort" to accomplish the objective of limiting the assignment of staff in facility housing units to female officers.

     In a subsequent settlement of a lawsuit by the Civil Rights Division of the U.S. Department of Justice, the Department entered into an agreement to minimize access to secluded areas and one-on-one contact between male staff and female inmates, to implement a "knock and announce" policy under which male officers would announce their presence prior to entering areas where female inmates could be in a state of undress, and to restrict pat-down searches of female prisoners by male staff.

     The Department subsequently decided to restrict certain positions in the female housing units, segregation units, and intake units at its women's facilities as "female only," in order to enhance the privacy of female prisoners and reduce the likelihood of sexual misconduct, as well as enhance security due to "much less reluctance" by female staff to perform observation duties.

     The appeals court found that the Department was entitled to the deference "normally afforded prison administrators" in making decisions designed to achieve legitimate correctional goals.

     The court found that the Department made a "considered decision" that a bona fide occupational qualification for the jobs in question was necessary to address "the grave problem of sexual abuse of female inmates," which was allegedly widespread. It made a determination that only this action could "ensure safe and humane conditions of confinement and the professional operation" of its female facilities. The use of male officers in the housing unit could "imperil" security in a number of ways:

First, the presence of males in the housing units necessitates the use of "artificial barriers to security" such as covers for cell windows, doors on the toilet stalls, shower curtains, the moratorium on pat-down searches by male officers, and the "knock and announce" policy. Second, allegations of sexual abuse, whether true or not, create a "poisoned atmosphere" that breeds misconduct on the part of inmates and guards. Third, many male officers, afraid of false accusations of sexual abuse, become "gun-shy" and fail to monitor and discipline inmates in a proactive fashion.

     The appeals court agreed that the planned restrictions would "significantly enhance security" at the female facilities, as well as enhancing the privacy rights of female inmates. It rejected the argument that "pre-employment screening" was a reasonable alternative to a female BFOQ, since psychological testing may not measure an applicants' proclivity for sexual abuse specifically, and that some of the tests proposed were "speculative" in value and of "limited applicability."

      The appeals court emphasized the "limited nature" of its holding:

We do not hold that gender constitutes a BFOQ for corrections officers in female prisons outside of Michigan. Nor do we hold that gender constitutes a BFOQ for positions in Michigan's female prisons beyond the approximately 250 positions we have discussed. Nor do we have occasion to address whether the male gender can ever be a BFOQ for a corrections officer position at a male prison. Rather, we simply conclude that, given the endemic problem of sexual abuse in Michigan's female facilities, given the constellation of issues addressed by the MDOC's plan (security, safety, and privacy), and given the deference accorded the MDOC's judgment, the MDOC's plan is reasonably necessary to the normal operation of its female prisons.

     The court's decision was by a 2-1 vote of a three-judge panel, with a strong dissent by one judge arguing that "gender-sensitive task assignment" is a "preferred alternative" to the "wholesale exclusion of males" from the jobs in question.

     Everson v. Michigan Dep't. of Corrections, No. 02-2028, 2004 U.S. App. Lexis 24905 (6th Cir. 2004).

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Prisoner stated a viable First Amendment claim when "New Afrikan" political literature confiscated from him was not subjected to established procedures for individualized review of reading materials, and he was instead punished on the basis that the literature originated from a group not "approved" by correctional officials.

     A New York prisoner claimed that his rights of free speech were violated by the confiscation of his "New Afrikan" political literature. While the trial court dismissed the claims in their entirety, including due process and equal protection claims, a federal appeals court reinstated the free speech claim.

     The prisoner claimed that while he was confined in a Special Housing Unit (SHU) as the subject of an investigation, a correctional officer searched his property and discovered and then confiscated 26 books and pamphlets of "New Afrikan political literature," which he characterized as "Nubian gang materials." He was subsequently written up in an inmate misbehavior report charging him with possession of "gang materials," in violation of a rule providing that inmates may not possess or use "unauthorized organizational insignia or materials." Under the applicable rules, an "unauthorized" organization is "any gang or any organization which has not been approved by the deputy commissioner for program services."

     At a disciplinary hearing, the officer testified that the confiscated materials were "anti-establishment and anti-democracy." The prisoner argued that they were simply "political tracts" and were not "gang-related." The hearing officer found that the materials referred to a "revolutionary" organization designed to create and mobilize "a well-armed war movement," and found the organization was not authorized and the prisoner guilty of a rule violation, imposing a penalty of 18 months in the SHU, which was reduced on administrative appeal to 12 months. During the hearing, the prisoner had requested that the hearing officer forward the confiscated materials to the facility's "Facility Media Review Committee," which reviews inmate literature under established guidelines. New York prison regulations encourage inmates to read "publications from varied sources," but provide that publications believed in good faith to violate the media review guidelines should be confiscated and referred to the review committee. Neither the officer who confiscated the materials nor the hearing officer referred the materials to the committee.

     Two years later, another correctional officer at another facility searched the prisoner and found and confiscated materials characterized as a "New Afrikan Self Development Program." Again, the prisoner requested that the materials be sent to the Facility Media Review Committee, but instead he was charged again with a rule violation, found guilty of possession of materials "from a group that is not authorized," and had a penalty of 30 days in keeplock imposed on him. On the prisoner's administrative appeal, and appeal to a New York intermediate appeals court, his arguments that the disposition should be reversed because of the failure to send the materials to the Media Review Committee, that the rule did not apply to his literature, and that the rule in question was unconstitutionally vague were all rejected. See Matter of Shakur v. Goord, 306 A.D.2d 958, 760 N.Y.S.2d 377 (4th Dep't 2003).

     Similar results came from a third confiscation of "New Afrikan" materials from the prisoners cell. Again, requests for review of the literature by the Media Review Committee were denied, and the prisoner was penalized by 60 days in keeplock because the "New Afrikan Program" literature talks about "overthrowing and 'liberating' parts of the U.S. for the group's own country," and because the group was an "unauthorized group." 

     A fourth confiscation, however, resulted in the sending of the confiscated materials to the Media Review Committee, which found that three pages contained drawings that would "incite disobedience and violence," but approved the remainder of the literature, so that the materials were returned to the prisoner with the objectionable portions rejected.

      The federal appeals court, overturning the dismissal of the prisoner's First Amendment free speech claims, stated that the complaint alleged that the rule in question was unconstitutional, or, in the alternative did not authorize the literature confiscations, so that the confiscations were improperly made for "reasons of personal prejudice as opposed to legitimate penological interests." The court found that this was a legally sufficient First Amendment claim.

     Prison inmates retain First Amendment rights "that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system," and a prison regulation that impinges' on such rights is valid if it is reasonably related to legitimate penological interests.

     On its face, the appeals court noted, the rule appeared to ban all literature from outside organizations, unless those organizations have been approved by correctional officials. "An across-the-board exclusion of materials of 'unauthorized organizations' may not be rationally related to any governmental objective." Even assuming that the rule is targeted at a legitimate goal of prison security, the appeals court stated that it was not sure " how a complete ban on the materials of 'unauthorized organizations' is rationally related to that goal."

     The rule in question, the court noted, provided no standards by which correctional officials would conduct an individualized review of the publication in question. The rule, rather than providing for such review, seems to ban "all the publications of unlisted organizations, "and allow only a discrete set of enumerated organizational materials," greatly limiting the "universe of reading materials accessible to inmates."

     The appeals court also noted that there was an "obvious alternative" to the actions taken, as the Department itself had established a Facility Media Review Committee in every correctional institution whose very purpose was to review inmates' reading materials, which might allow correctional officials to accommodate the prisoner's rights at minimal cost. The court pointed to the fact that the final confiscation of materials was indeed subjected to such review, "with no obvious harm to penological interests."

     While the appeals court acknowledged that forcing an individualized review of materials might put a strain on prison resources, the "nature of those costs is an issue of fact." In the absence of a determination that the costs are "prohibitive," a determination that the court found "somewhat unlikely" since the review procedures were already in place, the availability of such review weighed in favor of the prisoner.

      The court also found that the defendants' failure to adhere to established procedures for review of the literature could provide evidence that they were not acting "pursuant to a proper penological objective." In the absence of the rule concerning "unauthorized" organizations' literature, the challenged confiscations would have been subject to committee review. The decision to bypass such review suggested that the confiscations "were not made pursuant to legitimate and neutral penological objectives." This conclusion was supported by the fact that an eventual review of some of the materials ended in the approval of the vast majority of them.

     Shakur v. Selsky, No. 03-0050, 2004 U.S. App. Lexis 24999 (2nd Cir. 2004).

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Prisoner's complaint adequately alleged deliberate indifference to his condition of Hepatitis C in asserting that he was denied treatment because of a possibility that he might be paroled in less than 12 months, which did not come to pass. Defendants failed to meet their burden, in a motion to dismiss for failure to state a claim, asserting qualified immunity, that there was no way that the prisoner could prove his case.

     A New York prisoner has Hepatitis C Virus (HCV), a treatable chronic blood-borne virus that seriously affects the functioning of the liver. He claimed that he was repeatedly denied treatment for this condition. He contended that he had previously informed prison officials that he is a Vietnam veteran, has used intravenous drugs, has been incarcerated before, and has been diagnosed with a sexually transmitted disease. All of the circumstances are indications of potential HCV disease, and in 1994, tests indicated "some symptoms of HCV.

     When he was transferred to a new facility in 1998, he was allegedly not tested for HCV, even though it was the policy of the correctional department to test all prisoners entering a new facility for HCV. He was tested the following year, and found to have HCV. In September of 1999, a prison doctor allegedly denied him treatment for HCV because of a departmental guideline prohibiting treatment for those who would not remain incarcerated for at least 12 months after treatment began. At the time, the prisoner had four more years to serve, but had a Parole Board appearance scheduled in just under a year, which "might have resulted" in his release.

     In 2000, after being denied parole, he again requested treatment, but this time a doctor declined because he was not enrolled in an Alcohol and Substance Abuse Treatment ("ASAT") program. He had previously been found ineligible for ASAT because of his medical condition. He underwent a number of tests and procedures at a medical center, but was denied follow-up visits ordered by the doctors there.

     In 2001, a prison doctor told him that his infection had "progressed to cirrhosis of the liver" and allegedly denied him treatment because his cirrhosis was decompensated, i.e., accompanied by various complications such as jaundice, ascites, and hemorrhaging. The prisoner's request for a liver transplant, however, was turned down by the correctional department's Chief Medical Officer "because the cirrhosis was probably compensated."

     The prisoner claims that he was again denied HCV treatment in October of 2002 because he was not enrolled in ASAT. He enrolled in the ASAT program in December of 2002, but was allegedly still denied treatment until January 2003. Because of the delay in receiving treatment, his disease was allegedly so advanced that the side effects of the treatment rendered him too weak to continue.

      The prisoner sued a number of correctional officials and medical personnel for alleged violation of his right to adequate medical care under the Eighth Amendment. Claims against the Commissioner of the Department of Corrections were dismissed for lack of personal involvement. The trial court rejected a motion for qualified immunity for the remaining defendants, which was presented as a motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted.

      A federal appeals court found nothing improper with the raising of a defense of qualified immunity in a 12(b)(6) motion. But the court noted that a defendant presenting an immunity defense in this manner instead of in a motion for summary judgment under Rule 56 "must accept the more stringent standard applicable to this procedural route."

      A motion for summary judgment must be supported by affidavits concerning the factual evidence. With a Rule 12(b)(6) motion, the facts supporting the defense must "appear on the face of the complaint," and the motion may only be granted when it " appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."

      When a court is ruling on a 12(b)(6) motion to dismiss, therefore, the plaintiff is entitled to all reasonable inferences from the facts alleged, including those that support his claim and those that defeat an immunity defense. In a motion for summary judgment, on the other hand, if it is adequately supported by affidavits, the party opposing the motion has to counter the affidavits with specific facts showing the existence of genuine issues justifying a trial, instead of just relying on factual assertions in the complaint itself.

       On this basis, the appeals court found dismissal of the complaint inappropriate. The defendants claimed that they did not act with deliberate indifference to the prisoner's serious medical needs, but that his condition was instead "continuously assessed and monitored" by medical personnel and that any denial of treatment resulted from his failure to meet applicable treatment guidelines.

     The prisoner's "detailed" 29-page complaint, however, alleged a series of failures to test for his condition despite known danger signs of his disease, failure to initiate treatment when the need for treatment was apparent, failure to send him for follow-up visits ordered by doctors at a medical center, and denial of treatment on the basis of inapplicable or flawed policies. He claimed that he was denied treatment under one policy for lack of enrollment in the ASAT program even though he was told that he was ineligible for the program because of his medical condition, and that he was denied treatment pursuant to another policy because it was not certain that he would remain incarcerated for twelve months.

      The defendants argued that this twelve-month rule was sound because the consequences of interrupting treatment (by the prisoner's release) include a risk of "the development and spread of untreatable HCV." While that theory might be able to be supported on a motion for summary judgment "by affidavits of sufficient plausibility to demonstrate the defendants' objectively reasonable reliance on the policy," the prisoner's claim that he was denied urgently needed treatment for a serious disease on this basis was a sufficient basis to deny as Rule 12(b)(6) motion.

     The appeals court found that the four medical defendants had sufficient personal involvement in the alleged denials of treatment to justify their possible liability. As for the three non-medical defendants, two of them were superintendents of the facility adequately claimed to have had responsibility for enforcing or allowing the continuation of the policies that resulted in the denial of treatment. The third such defendant, the Deputy Superintendent for Administration at the prison, was alleged to have denied treatment for the prisoner by rejecting his grievance concerning the denial. The court commented:

Although it is questionable whether an adjudicator's rejection of an administrative grievance would make him liable for the conduct complained of, [he] was properly retained in the lawsuit at this stage, not simply because he rejected the grievance, but because he is alleged, as Deputy Superintendent for Administration[...], to have been responsible for the prison's medical program. When allegations of improperly denied medical treatment come to the attention of a supervisor of a medical program, his adjudicating role concerning a grievance cannot insulate him from responsibility for allowing the continuation of allegedly unlawful policies within his supervisory responsibility.

     McKenna v. Wright, No. 04-0492, 386 F.3d 432 (2nd Cir. 2004).

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Federal trial court applied the wrong legal standard in denying certification of a class action lawsuit challenging the alleged denial of access to mental health care at a county jail.

      A federal appeals court found that a trial judge applied the wrong legal standard in denying certification of a class action lawsuit by four former Colorado jail prisoners challenging their alleged lack of access to mental health care while confined there.

      Each of the plaintiffs was incarcerated in the county jail either as a pretrial detainee or as a convicted prisoner. They filed a class action federal civil rights complaint seeking injunctive and declaratory relief against the county board and sheriff, and sought to certify a class of "all persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail."

     They claimed that the defendants violated prisoners' constitutional rights by acting with deliberate indifference to their mental health needs in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's prohibition against punishment of pretrial detainees.

      This allegedly included inadequate housing and overcrowding, inadequate inpatient care, inadequate mental health facilities for women, improper treatment through the use of special detention cells, restraints, and pepper spray, inadequate supervision to prevent self-harm or suicide, inadequate methods of distributing medication, and inadequate mental health staffing.

     The four plaintiffs included a prisoner who had been receiving psychiatric care since childhood for his condition of Asperger's Syndrome (a form of autism) and bipolar disorder, who was allegedly denied his regular anti-psychotic medications because they were not on the jail's list of approved medications, a bipolar male prisoner suffering from depression and anxiety who stated that he had considered suicide and complained that he was denied adequate medication to control his symptoms, a bipolar female prisoner suffering from anxiety, depression, and suicidal thoughts, who claimed that she was improperly placed in special detention cells and "belittled" by jail staff members, and was able to attempt suicide three times while in the jail, allegedly due to inadequate supervision, and a bipolar male inmate who asserted that he had inadequate access to psychiatrist while a pre-trial detainee.

     The prisoners claimed that the deliberate indifference of the jail to mental health needs had led to the deaths of at least four prisoners and injuries to others.

     The defendants sought to dismiss the lawsuit, arguing that each member of the proposed class was required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, to fully exhaust his or her administrative remedies before suing. Since only the named class representatives had done so, the county argued, the class could not be certified.

      The trial court denied the motion to dismiss, finding that each plaintiff had alleged facts sufficient to show possible deliberate indifference to their mental health needs, but concluded that the PLRA barred class certification because the scope of relief sought made the proposed class action "not manageable" within the court's "limited jurisdiction."

     The plaintiffs were given time to file an amendment complaint or complaints stating their individual claims only, but they were subsequently all released and the case was dismissed as moot.

     The trial court found that the prisoners' complaint was really an attempt to "reform jail practices rather than to redress past constitutional tort and prevent their reoccurrence. The court reasoned that the PLRA limited its ability to address such a complaint because under that statute it could neither "prescribe jail practices for humane treatment of prisoners" nor interfere with the executive and legislative branches' ability to structure prisons as they saw fit, so that the relief sought was "beyond the competence and the jurisdiction" of the court.

     The federal appeals court disagreed. It concluded, first, that the PLRA did not alter the rules for certification of a class action, and that trial court was erroneous in assuming otherwise. A class action can be certified under Federal Rule of Civil Procedure 23 if the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class.

     Once these "threshold" requirements are met, the court must examine whether the lawsuit falls within categories of claims set forth in Rule 23(b). In this case, the plaintiff prisoners sought to certify the class action under 23(b)(2), providing that a class action is appropriate when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief" or declaratory relief concerning the class as a whole.

      The appeals court found that it agreed, at this stage of the litigation, with the prisoners that the trial court erred by not specifically addressing the Rule 23 factors in denying class certification, and instead "prematurely" focusing on whether the court could ultimately fashion an appropriate remedy that complied with the restrictions of the PLRA.

     The appeals court ordered further proceedings, finding that the trial court applied the wrong legal standard in denying class certification, without expressing any opinion on the ultimate decision to be reached applying the Rule 23 factors.

     Shook v. El Paso County, No. 03-1397, 386 F.3d 963 (10th Cir. 2004).

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Federal appeals court orders further proceedings concerning whether prisoner was justified in failing to file a grievance concerning correctional officers' alleged assault on him by their threats of retaliation if he did so.

     A New York inmate filed a federal civil rights lawsuit claiming that correctional employees used excessive force against him and denied him adequate medical attention.

     After the U.S. Supreme Court held in Porter v. Nussle, 534 U.S. 516 (2002), that the Prison Litigation Reform Act's exhaustion requirement, 42 U.S.C. § 1997e(a), applies to excessive force claims, the defendants moved for summary judgment on the excessive force claim. The trial court granted this motion because the prisoner had failed to file a formal grievance complaining of the alleged excessive force. (The court had earlier, and on the same ground, dismissed the medical indifference claim).

     A federal appeals court vacated the dismissal and ordered further proceedings, finding that it was possible that "threats" prison employees allegedly made could be sufficient to bar the defendants from asserting an affirmative defense of non-exhaustion of remedies.

     The prisoner claimed that as he was returning to his cell from a medical appointment, he was stopped by a correctional officer who said he wished to speak with him. Three officers then allegedly escorted him to a room where a fourth officer was waiting. The prisoner was allegedly grabbed, slammed into a chair, slapped, had a knee placed in his groin by one officer, and had another officer press his elbow into his neck. One of the officers then allegedly said, "you know what you did, admit it, you better drop it." Further physical violence by the officers allegedly followed.

      The prisoner had filed a notice of intention to file a claim upon the state's attorney general, and asked if that was why he was being beaten, but was only told, "you know what you did, you better drop it." He was told he would be placed in keeplock and that a request to go to the medical clinic was denied.

      When he was subsequently being taken to the medical clinic by another officer, he was allegedly diverted back to the room where he initially had been assaulted, and was punched in the stomach and accused of having "sexually harassed" a female correctional officer by asking her for a kiss. He was then allegedly beaten down to the ground. The officer told him that if he wanted to "write this up you do it from Special Housing Unit," and that he had given him a "break by not bringing charges against him." He allegedly threatened that if the prisoner "pursued this any further," he would bring criminal charges against him for assaulting an officer and that there were would others who would testify to that effect.

       A female officer then entered the room and said, "That's him. He asked me for a kiss." The male officer then allegedly said "you better make up your mind right now, drop it or got to the box and face criminal charges. You don't go to the clinic, you don't do nothing but drop it; if you're lying, I will have all my night officers watching your every move. If you go to the clinic, I will know about it and then I'll make your life a living hell throughout the penal system because I have friends all over."

     The prisoner subsequently asserted in his lawsuit that he agreed to these threats because of his fear of being assaulted and tortured. He contended on appeal that he failed to pursue a grievance because of the threats.

      The appeals court found that a three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter the defendants' contention that he has failed to exhaust available administrative remedies:

Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact "available" to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether "special circumstances" have been plausibly alleged that justify "the prisoner's failure to comply with administrative procedural requirements."

     In the immediate case, administrative remedies were "available" to the prisoner--the prison provided grievance procedures that inmates claiming excessive force could use.

      The court found, however, that a remand back to the trial court was appropriate to determine whether some "seemingly available remedies" were rendered unavailable by the threats the prisoner allegedly received.

      The appeals court rejected the defendants' argument that the fact that the prisoner later sent a letter of complaint to a prison superintendent and filed the immediate lawsuit meant that he "was not -- as a matter of law -- sufficiently frightened as to render normal grievance procedures unavailable." The appeals court stated that the test for deciding whether the ordinary grievance procedures were available must be an objective one--would a "similarly situated individual of ordinary firmness" have deemed them available.

Moreover it should be pointed out that threats or other intimidation by prison officials may well deter a prisoner of "ordinary firmness" from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts. This may be so, if for no other reason, because seeking a criminal investigation or filing a civil rights complaint may enable an inmate to draw outside attention to his complaints, thereby neutralizing threatened retaliatory conduct from prison employees.

     On remand, the trial court must determine to what extent were the remedies the prisoner failed to pursue in fact available; whether, if they were available, some or all of the defendants were barred by their own conduct from raising the failure to pursue them, and whether, if remedies not pursued were available and some of the defendants were not estopped from raising the failure to exhaust, the prisoner was nonetheless justified, at the time, in not pursuing the available remedies because of special circumstances, including the threats.

     Hemphill v. State of New York, #02-0164, 380 F.3d 680 (2d Cir. 2004).

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Jail personnel were not liable for placing a pregnant female detainee in a visiting room with a male prisoner and his attorney when they had no knowledge of a no-contact court order or the male prisoner's prior alleged conspiracy to murder her.

     A female detainee had a long and stormy history with a male prisoner. When she was only 15, she entered into a romantic relationship with the then 27-year-old man, and bore him a child three years later. Several years after that, the relationship "soured," and the man, while incarcerated in a county jail, allegedly attempted to convince a friend to murder her, and he was charged with conspiracy to commit homicide.

     A judge in the case issued an order prohibiting the man from having any contact with the woman, and a copy of the order was placed in his county jail file. The woman was subsequently brought to the same county jail where the man was incarcerated, based on a probation hold issued by her probation agent. She allegedly told jail personnel that she had a high-risk pregnancy and that the man was a "known enemy," but she did not request protective custody or inform officers that there was an outstanding court order prohibiting contact between them.

     She was subsequently told that she had an "attorney visit," but was not told that it was the attorney for the male prisoner who had requested to see her. A correctional officer with no knowledge of the no-contact order escorted her to the visiting area of the jail. She went into a visiting room where the male prisoner and his attorney were present.

     The officer subsequently contended that the female detainee did not complain about this or then inform him of the no-contact order. The attorney, who "undeniably" knew of the order, also did not inform the officer, and allegedly appeared to have "intentionally orchestrated the face-to-face" meeting in clear violation of the order.

     During a forty-five minute exchange that followed, the male prisoner allegedly attempted to convince the female detainee to change her testimony regarding certain charges against her, and also allegedly "touched" her on the leg numerous times.

     When she refused to agree to change her testimony, the male prisoner allegedly began to threaten her, becoming increasingly agitation, grinding his teeth and raising his arms and fists in "strong, threatening gestures," even shouting at one point that "you and I are going to box!"

     When the officer returned, the female detainee left with him, and then informed him of the no-contact order. She was later removed from the county jail, pending completion of the investigation into her probation hold, which had actually been initiated by the male prisoner, who claimed that she had been attempting to hire him to kill her current fiance. The investigation resulted in no charges against her.

     The female detainee filed a federal civil rights lawsuit claiming that the encounter caused her extreme stress and anxiety, requiring medical treatment, and also led her to develop a high-risk pregnancy plagued by various complications, which ended in a premature delivery. (The court subsequently noted that the detainee had told jail personnel when she arrived that she was already experiencing a high-risk pregnancy). She also claimed that her son, since his birth, suffered from significant health problems caused by her stress during the pregnancy.

     A federal appeals court upheld summary judgment for the defendants in the lawsuit. It found that jail personnel who had no knowledge of the no-contact order could not be found to be deliberately indifferent to a substantial risk of serious harm to the plaintiff detainee when she was placed into a interview room with the male prisoner and his attorney.

     The appeals court noted that the plaintiff did not sue the classification officer or intake officer, who allegedly did have knowledge of the fact that the male prisoner was an enemy of hers, which it found "a riddle." The court rejected the argument that the knowledge of these officers could be imputed to the county sheriff or jail administrator, who did not have personal knowledge of either the no-contact order or the risk that the male prisoner posed to the female detainee.

     Whiting v. Marathon County Sheriff's Department, No. 03-3515, 382 F.3d 700 (7th Cir. 2004).

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

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Claim against a private corporation for alleged inadequate medical care resulting in female prisoner's death from acute renal failure did not have to satisfy a "heightened pleading standard" providing detailed facts, since corporation was the "functional equivalent" of a municipality and could not assert a qualified immunity defense.

     A private corporation contracted with the county and/or county sheriff to provide medical care to inmates at the county detention center. A female prisoner at the facility repeatedly reported to employees of the corporation that she had not urinated in several days, but was allegedly not given a urine test until some time had passed. The employees subsequently received the results of a test acknowledging that she had an infection, but the prisoner was allegedly still not treated. The next day, she became disoriented and was sent to a medical center emergency room. She subsequently went into a coma and died of acute renal failure.

     The prisoner's estate filed a federal civil rights lawsuit naming the corporation as a defendant. The complaint claimed that corporation was deliberately indifferent to the decedent's serious medical needs, violating her constitutional rights. The trial court dismissed the complaint and entered judgment for the defendant corporation. It found that the plaintiff failed to comply with a "heightened pleading standard" applicable to federal civil rights cases filed within the states governed by the Eleventh Circuit Court of Appeals under the ruling in Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992).

     Under Federal Rule of Civil Procedure 8, a complaint only need contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and need not provide further factual detail. In Oladeinde, the court ruled that in pleading a federal civil rights case under 42 U.S.C. Sec. 1983, some factual detail is necessary.

      On appeal, the prisoner's estate argued that the U.S. Supreme Court's decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993), prohibited the use of such a "heightened pleading standard" in federal civil rights claims against private entities like the defendant, who cannot raise qualified immunity as a defense.

      In Leatherman, the Court held that a court may not apply a heightened pleading standard more stringent than the usual pleading requirements of Rule 8 in civil rights cases alleging municipal liability under § 1983. Leatherman made it clear, the appeals court found, that any heightened pleading requirements in § 1983 actions against entities that cannot raise qualified immunity as a defense are improper. While municipalities are protected from liability to some extent, they enjoy no immunity from suit. The same reasoning is applicable in § 1983 suits against non-governmental entities not entitled to qualified immunity.

     In this case, the private corporation, in contracting with the county to provide medical services to inmates, was performing a function "traditionally within the exclusive prerogative of the state," was therefore the "functional equivalent of the municipality." In that capacity, it is not entitled to assert a qualified immunity defense, which is a defense ordinarily available to individual defendants, so that the plaintiff was also not required to satisfy any "heightened pleading requirements" in asserting civil rights claims against it.

      The appeals court therefore ordered further proceedings on the adequacy of the plaintiff's complaint under the ordinary Rule 8 legal standards, requiring only a "short and plain statement of the claim."

     Swann v. Southern Health Partners, Inc., No. 03-14387, 388 F.3d 834 (11th Cir. 2004).

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

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Federal appeals court finds that statute requiring state correctional facilities that receive federal funds to refrain from burdening prisoners' religious exercise was a valid exercise of Congressional authority under the Spending Clause, and not a violation of either the Tenth Amendment or the Establishment of Religion Clause of the First Amendment.

     A federal appeals court ruled that Congress properly exercised its spending power by unambiguously conditioning the use of federal funds for state prisons on the related accommodation of the religious exercise of prisoners in enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. section 2000cc-1, which requires state prisons that receive federal funds to refrain from burdening the religious exercise of prisoners. It found that such an accommodation does not endorse a religious viewpoint, and therefore that the statute "was validly enacted under the Spending Clause and does not violate either the Establishment Clause of the First Amendment or the Tenth Amendment."

     The case involved a Georgia inmate who asserted that he is a "Torah observant Jew" and is "compelled by [his] system of religious belief to eat only kosher food," "wear a yarmulke at all times," "to observe specific holy days," and "perform specific rituals." He allegedly asked a number of state and prison officials to provide him with a kosher diet and permit him to wear a yarmulke, and he requests were denied. He also failed to receive this relief through the filing of an administrative grievance.

     He then sued the state of Georgia, the Georgia Department of Corrections, and several officials. The defendants argued that the complaint should be dismissed because the RLUIPA exceeds the authority of Congress. The federal government intervened to defend the constitutionality of the statute.

      The statute provides that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.... This section applies in any case in which (1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2) the substantial burden affects, or removal [*6] of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. 42 U.S.C. § 2000cc-1.

     The appeals court found that Congress validly placed restrictions on the receipt of federal funds in enacting the statute, in that the conditions were unambiguous and did not violate other provisions of the Constitution, and is aimed at prohibiting discrimination against religion. The federal government has "every right to ensure that the state prisons that accept federal funds respect the religious freedom of prisoners and promote their rehabilitation."

      The appeals court rejected as erroneous the defendants' argument that the statute violates the Tenth Amendment by interfering with a "core state function of administering prisons." The court noted that if the enactment of the statute is "within an enumerated power of Congress," the Tenth Amendment does not apply. Given the conclusion that Congress validly acted under its spending authority, the Tenth Amendment had no relevance.

      The appeals court also found that the statute did not violate the Establishment Clause of the First Amendment since it had a secular purpose of protecting the free exercise of religion from unnecessary government interference, and encouraging the rehabilitation of prisoners, it did not impermissibly advance or inhibit religion by giving unique advantages to prisoners solely on account of their religion, and did not unduly impose burdens on the defendants. The court also noted that the statute did not impose costs on states without their consent, based on their receipt of federal funds, and allows states to satisfy "compelling interests," such as prison safety.

      The appeals court did not reach the merits of the plaintiff prisoner's requests for a kosher diet or to constantly wear a yarmulke.

     Benning v. State of Georgia, No. 04-10979, 2004 U.S. App. Lexis 24842 (11th Cir. 2004).

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

     Editor's Note:   Four other federal circuits have considered the constitutionality of this section of the statute, and three have upheld it. The Seventh and Ninth Circuits have concluded that section 3 of RLUIPA is a valid exercise of the spending power of Congress and does not violate the Establishment Clause or the Tenth Amendment. Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) [PDF]; Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) [PDF]. The Fourth Circuit has also upheld section 3 under the Establishment Clause. Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) [PDF]. Only the Sixth Circuit has held that section 3 violates the Establishment Clause. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).

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Prison employees were entitled to qualified immunity from liability for strip search of prisoners conducted in an outside area, which may have inadvertently been viewed by prison visitors leaving the facility.

     A male prison inmate claimed that he and numerous other male inmates were strip searched in groups of three in an outside alcove before returning to their housing units from the recreation yard. The area where the search was conducted was walled on three sides with the fourth bounded by a chain link fence. Each of the three to five minute searches required the inmate to lift his tongue, wiggle his toes and fingers, spread his buttocks, and handle his genitals. The prisoner claimed that a few women and children leaving the prison saw the inmates.

     The prisoner conceded that the search was justified by suspicion that the prisoners had contraband, but argued in a civil rights lawsuit that it was "unduly invasive" and violated the tenets of his religion for strict cross-gender modesty. Defendant prison officials argued that the only available alternate location for the search, an interior corridor leading to the housing unit, was not suitable as its dimensions would have allowed only one search at a time, greatly delaying the process, and would have provided an insufficient area to safely conduct the search. The prisoner claimed that the search could have been moved to a nearby health services unit.

     An intermediate Massachusetts appeals court upheld summary judgment for the prison officials.

     It first found that the prisoner's claim for damages under a state civil rights statute failed because he could not show "threats, intimidation, or coercion" associated with the search, and even if the manner of conducting the search was unreasonable, there was no evidence that it was conducted for an "illegitimate or vindictive purpose."

     On a federal civil rights claim, the court acknowledged that strip searches conducted in non-private areas, viewed by nonessential persons, particularly of the opposite sex, can violate prisoners' rights unless justified by legitimate penological interests. This would be true in this case, the court stated, if the viewing by visitors was predictable and if alternate locations or measures would have accommodated the prisoner's rights at "minimal cost to institutional security" and would not have negated the search's purpose (such as if relocating to a more private area might allow inmates to pass off contraband).

     The court found that there were factual disputes as to whether the defendants unreasonably failed to secure the search against viewing by the visitors, including the view from the pedestrian entrance, the likelihood that visitors would pass by, the feasibility of alternate locations, etc.

     Despite this, the court found that the defendants were entitled to qualified immunity, as they were not on "fair notice" that the search violated prisoners' rights. Past cases allowed "inadvertent, occasional, casual, and/or restricted" viewing of naked inmates by opposite sex guards, as an accommodation to equal opportunity employment. The defendants could have characterized any potential view of the searches by visitors as no more than "inadvertent, occasional, casual and/or restricted," the court stated, and could have further found the "small risk" of such incidental viewing "to be outweighed by the need for expediency."

     The court expressed its reluctance to critique the defendants' actions, necessarily "made in haste," in hindsight in view of the "central objective of ensuring prison security." The court therefore found the defendants entitled to qualified immunity from liability, and found the prisoner's claims for injunctive and declaratory relief moot as he is no longer a prisoner at the same facility and the recreation yard search appeared to have been an isolated incident.

     Sabree v. Conley, No. 02-P-1267, 815 N.E.2d 280 (Mass. App. 2004).

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

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Juvenile court had no authority to invalidate a California prison regulation preventing visitation between certain sexual offenders and all minors, including minors who were not the victims of their crimes. California appeals court overturns order invalidating regulation and allowing an inmate convicted of sexual offenses involving children to receive visits from his two minor sons.

     The California Department of Corrections appealed from an order of a juvenile court which declared section 3173.1 of title 15 of the California Code of Regulations invalid, and enjoining it from enforcing it to prevent visitation between an inmate and his two minor sons. The regulation prohibits inmates who have been incarcerated for committing certain sexual offenses from participating in visits with minor children.

      An intermediate California appeals court held that the court below acted beyond the scope of its authority in addressing the validity of the regulation, and did not have authority under the circumstances of the case to order the Department to allow visitation between the inmate and his sons.

      The prisoner was sentenced to prison as a result of a conviction for attempting lewd acts on a child, an attempted forcible lewd act upon a child, and twenty counts of distributing/bringing child pornography into the state. He had also previously been convicted of three counts of lewd acts on a child. His sons' mother petitioned a juvenile court to permit the two minors to visit their incarcerated father. They were not the victims of the father's crimes, and there was no evidence of his misconduct with either child. They were allowed to visit their father at one prior facility every six weeks without incident until October of 2003.

     At that time, prison officials elected to stop the visitation, relying on the regulation, which became effective on March 20, 2003. The regulation prohibits inmates who have been incarcerated for committing certain sexual offenses from receiving visits from minors, regardless of whether or not the children were victims of the offenses. The regulation does state an exception for child victim permitted to visit by order of a juvenile court.

     The juvenile court declared the regulation invalid and enjoined the department from enforcing the regulation at all facilities throughout the state, and ordered that visits by the sons with their father could resume.

     The appeals court found that the juvenile court acted beyond the scope of its authority in reaching the merits of the validity of Regulation 3173.1 on a petition brought under Welfare and Institutions Code section 362.6, and in ordering visitation on that basis. Under Welfare and Institutions Code section 362.6, the appeals court noted, the ordering of visitation is authorized only when a sentencing court has previously prohibited the visitation, and the juvenile court finds that the visitation is now in the best interest of the minor.

     In this case, there was no prior order by a sentencing court prohibiting visitation by these specific minors. Correctional officials instead relied on the new state regulation, and based the denial of visitation on the nature of the prisoner's crimes.

     The juvenile court acknowledged that it was not proceeding under Sec. 362.6, and had not made a finding that the best interest of the children were served by the visitation "because we haven't done that whole process." Instead, the judge said that he was entering his order based on "the fact that it appears to me that the statute is, in fact, invalid and that there seems to be a pattern of an attempt to deny visitation under this invalid statute, and it, I think, needs to be addressed." Under Sec. 362.6, the juvenile court had no jurisdiction over a denial of visitation to a minor, unless the denial was the result of a prior order of a sentencing court.

      The California Department of Corrections' suggestion to the mother that she seek an order from the juvenile court concerning such visitation did not, the appeals court found, confer jurisdiction on the case to juvenile court.

     The appeals court also rejected the argument that the Department of Corrections had exceeded its authority by enacting a regulation prohibiting visits to sexual offenders by all minors, rather than just minors who were the victims of their crimes. The court noted that it is "widely accepted that the CDC has the authority to enact reasonable rules and regulations regarding visits between inmates and their families," and that a regulation limiting visitation between inmates and their families falls within the scope of powers granted to the CDC. The regulation was written in a manner that did not interfere with or conflict with the authority of the juvenile courts to determine, in the best interest of a child victim, that they be allowed to visit with the sexual offender after a sentencing court has previously barred visitation.

     Commenting on the entire situation, the appeals court stated:

We recognize that the combined effect of [the applicable statutes and regulations] is that the only children who may be allowed to visit with inmates convicted of certain sexual offenses are those children who were the victims of the sexual crimes. This result is counterintuitive, at best, since it permits inmates access to their former victims while denying them access to juvenile family members who were not their victims. However, although the combined effect of [these provisions] challenges the bounds of common sense, this effect alone does not mean that the regulation is in conflict with either Penal Code section 1202.05 or Welfare and Institutions Code section 362.6. In fact, the regulation carefully carves out an exception for orders arising out of Welfare and Institutions Code section 362.6 so that it does not conflict with these statutes.

     The juvenile court would have jurisdiction to consider the best interests of a child in a proper proceeding attempting to set aside a prior sentencing court's prohibition on visitation by a minor, but had no jurisdiction to consider the merits of whether the regulation in question was reasonably related to a legitimate penological interest.

     The appeals court, however, expressed its own serious doubts as to whether the regulation in question "bears any rations relationship" to the stated penological interest of "protecting children in prison visiting rooms," in light of the "seeming absurdity of prohibiting non-victim children from visiting with their incarcerated parents while allowing the children who were the victims of certain inmates to visit with those who victimized them." But the procedural path followed in the immediate case was not the proper one for addressing this issue.

     Robin J. v. Superior Court of San Diego County, No. D044131, 2004 Cal. App. Lexis 1987 (Cal. App. 4th Dist. 2004).

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

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California enters into consent decree concerning improvement of numerous conditions in its youth correctional facilities.

      California Governor Arnold Schwarzenegger on November 16, 2004 approved the filing of a consent decree agreement concerning conditions in California Youth Authority (CYA) facilities. The agreement came in the case of Farrell v. Allen, No. RG 03079344 (Superior Court of California, Alameda County), a lawsuit claiming that the CYA was improperly spending money on unlawful policies, procedures and practices in virtually all areas of its institutional operations. The lawsuit was previously filed in federal court in 2002, and then voluntarily dismissed and re-filed in state court in 2003 as a taxpayer suit.

     During the litigation, experts were brought in to review CYA's operations, and they issued public reports early in 2004 that found numerous alleged systemic problems throughout the CYA, including in mental health and substance abuse treatment services, health care services, education programs, sex offender programs, and disability access. A further 350-page report entitled "Reforming California's Youth and Adult Correctional System" issued on July 1, 2004 by a 40-member Independent Review Panel headed by former California Gov. George Deukmejian contained 239 recommendations concerning the operations, policies, and procedures of youth and adult correctional systems in the state.

     The provisions of the consent decree require the state to work with a court-appointed master and various experts to develop remedial plans to improve CYA operation. The consent decree states that the parties agree that the facts and opinions contained in specified reports generated in the course of the litigation "are substantially correct."

      The consent decree states that the State will develop and implement "detailed remedial plans to provide all wards in the CYA with adequate and effective care, treatment and rehabilitative services," and to address the deficiencies identified in the relevant expert reports.

      Topics being addressed include classification systems, physical safety of wards (including chemical and physical restraints and use of force), restrictive programs, grievance systems, religious services, gang-related violence issues, verbal abuse, repairing or closing unsafe or unusable housing units, access to courts, mental health issues, sex offender programs, medical care, substance abuse treatment, psychotropic medication, and special education for those with cognitive or learning disabilities.

      The consent decree specifies that the Director of the CYA has the ability to temporarily suspend compliance with "all or any part" of it "during a state of riot or other genuine emergency." It also provides for binding arbitration if the parties are unable to resolve any dispute informally. In the alternative to such arbitration, either party may request a decision by the court by giving the other party ten days notice, but "it is the intent of the parties that disputes shall normally be determined by binding arbitration."

      The consent decree also provides that the plaintiff is the prevailing party for purposes of attorneys' fees and that an award of reasonable attorneys fees and costs will subsequently be made, with the parties attempting to negotiate the amount within 60 days, and the court making an award if the parties are unable to agree.

     Farrell v. Allen, No. RG 03079344 (Superior Court of California, Alameda County 2004).

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

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AIDS Related

     Prisoner failed to show that correctional employees were deliberately indifferent to his serious need for treatment for his HIV/AIDS condition and Hodgkin's disease as he did not demonstrate that any alleged lapses in his treatment resulted in any injuries. Jackson v. Fauver, No. CIV.98-2890 WGB, 334 F. Supp. 2d 697 (D.N.J. 2004).

Criminal Conduct

     Prison guard was properly convicted of separate counts of unlawful sexual activity with an inmate on the basis of two incidents occurring on different days. The trial court's decision not to group the two incidents together in one count for sentencing purposes was proper. U.S. v. Vasquez, No. 03-1763, 2004 U.S. App. Lexis 23480 (2nd Cir. 2004). [PDF]

Defenses: Absolute Immunity

     Psychologist was entitled to absolute immunity from liability for performing an evaluation of a prisoner for the purpose of assisting a parole board in making its parole determination. His assessment was an "adjudicative act." Williams v. Consovoy, No. 01-1809 (MLC), 333 F. Supp. 2d 297 (D.N.J. 2004).

Defenses: Governmental Immunity

     Under California statutory law, both the State and the Department of Corrections were immune from liability on a prisoner's claims arising out of alleged medical malpractice and intentional infliction of emotional distress. Prisoner was also required, under both federal and state law, to exhaust available administrative remedies before pursuing his claims in court, and failed to do so. Wright v. State of Cal., No. C044302, 19 Cal. Rptr. 3d 92 (Cal. App. 3d Dist. 2004). [PDF]

Defenses: Statute of Limitations

     A prisoner who suffered a loss of sight in one eye knew of the delay in his medical treatment when three months intervened between hospital visits for his eye injury after a fistfight. Accordingly, the statute of limitations began to run after the second hospital visit. While the prisoner sued the county sheriff within the one-year statute of limitations period, he failed to add a doctor as a defendant until more than a year had passed, so that his claim against the doctor and his insurer was barred. McCafferty v. Jefferson Parish Sheriff's Office, No. 04-CA-205, 880 So.2d 84 (La. App. 5th Cir. 2004). [PDF]

First Amendment

     Indiana prisoner stated a possible claim for violation of his First Amendment rights based on claimed confiscation of anarchist pamphlets from him by correctional officers, but failed to present a claim for a violation of the Fourth Amendment prohibition against unreasonable searches and seizures or the Eighth Amendment prohibition of cruel and unusual punishment. The prisoner also asserted a viable equal protection claim on the basis of the alleged different treatment of other prisoners with similar political materials in their possession. Smith v. Carrasco, No. 3:04-CV-0010 AS, 334 F. Supp. 2d 1094 (N.D. Ind. 2004).

Frivolous Lawsuits

     Prisoner's past "flooding" of court with frivolous complaints and his current "outrageous" allegations that there was a "vast conspiracy" among defendant correctional employees to "kill him" supported a trial court's decision not to grant his request for injunctive relief and a finding that he did not show a "probability of success" on the merits of his claims about alleged inadequate medical care. Federal appeals court urges the trial court "not to entertain any further complaints" by the prisoner which would require allowing him to proceed as a pauper at either the trial court or appeals court level. "The only complaint that the district court must seriously entertain and review is one of imminent danger of serious physical injury," the appeals court stated, citing 28 U.S.C. Sec. 1915(g). Pellegrino v. Janklow, No. 03-3565, 107 Fed. Appx. 704 (8th Cir. 2004).

Inmate Funds

     California prisoner did not state a claim against the Director of the Department of Corrections for taking his property without due process of law based on deductions of funds from his prison account to pay court-ordered restitution. Abney v. Alameida, No. CIV.02CV2136-BEN PCL, 334 F. Supp. 2d 1221 (S.D. Cal. 2004).

Medical Care

     Estate of pretrial detainee who died after an asthma attack stated a viable claim for deliberate indifference to the detainee's serious medical needs, based on allegations that he had experienced a prior asthma attack requiring medical attention and that deputies were aware of his condition and were told that he was experiencing another attack, but failed to take necessary action. Cooper v. Office of the Sheriff of Will County, No. 03C5064, 333 F. Supp. 2d 728 (N.D. Ill. 2004).

     Prisoner's claim that medical personnel threatened to withhold medical treatment for his back condition if he did not drop his prior complaint about their conduct was sufficient to state a claim for cruel and unusual punishment regardless of whether his spinal condition worsened as a result. The alleged conduct served no legitimate penological purpose and resulted in pain and suffering. Wesley v. Davis, No. CV 01-4310-WJR(RCX), 333 F. Supp. 2d 888 (C.D. Cal. 2004).

     Daughter of prisoner who died in county jail, allegedly because of the failure to provide medical care for an unspecified illness, could pursue claim against county commission for alleged breach of its duty to provide adequate funding for medical treatment of jail prisoners, including funds for medicine. Shaw v. Coosa County Commission, No. 03-F-1034-N, 330 F. Supp. 2d 1285 (M.D. Ala. 2004).

Parole

     The failure of the Parole Board to revoke an offender's parole after he pled guilty to burglary was not a violation of his civil rights or an abuse of discretion. The offender argued that the failure to revoke his parole resulted in him being free and subsequently committing another crime for which he was sentenced to 30 years imprisonment, and he argued that he would not have committed that crime or received that sentence if the Parole Board had previously revoked his parole. The appeals court noted that the prisoner "received a benefit" when his parole was not revoked, and did not complain about it at the time, so that he could not complain about it now. Marshall v. Ruth, No. 2003-CP-00084-COA, 882 So. 2d 252 (Miss. App. 2004). [PDF]

Prisoner Discipline

     Determination in disciplinary proceeding that prisoner violated rules prohibiting gang activity was adequately supported by his two outgoing letters making reference to gang issues and activities, along with testimony at the hearing and the content of a misbehavior report. Knight v. McGinnis, 781 N.Y.S.2d 716 (A.D. 3d Dept. 2004). [PDF]

     Prisoner's guilty plea to disciplinary charges of possessing contraband and smuggling barred his lawsuit arguing that the hearing's guilty determination was not supported by substantial evidence. Prisoner's admission that he knew he was not authorized to possess certain items, but was "too lazy" to throw them away, together with misconduct report, constituted substantial evidence to support the determination. Nelson v. Goord, 781 N.Y.S.2d 790 (A.D. 3d Dept. 2004). [PDF]

Private Prisons & Entities

     A private corporation that ran a prison under a contract with a state entity was not a federal agent simply because a pretrial detainee was incarcerated there while awaiting trial on federal charges. Accordingly, the prisoner could not pursue federal civil rights claims against the corporation and its employees under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which created a remedy for the violation of constitutional rights by federal agents. The prisoner could, however, pursue federal civil rights claims against the corporation and its employees under 42 U.S.C. Sec. 1983, which creates a remedy for violations of constitutional rights under color of state law, as the corporation and its employees derived their authority over the prisoner from their contract with the state. Federal trial court dismisses his claim that male prisoner's right to privacy while he showered and performed bodily functions was violated by female employees at the facility for procedural reasons. Lacedra v. Donald W. Wyatt Detention Facility, C.A. No. 99-458L, 334 F. Supp. 2d 114 (D.R.I. 2004).

Procedural: Discovery

     Prisoner was not entitled to sanctions against prison officials and their attorneys for alleged failure to fully respond to his discovery requests when he failed to show that they acted in bad faith, vexatiously or unreasonably. Federal trial court finds that defendants' responses to the prisoner's immediate document requests were adequate. Avent v. Solfaro, No. 02Civ.0914(RCC)(RLE), 223 F.R.D. 184 (S.D.N.Y. 2004).

Religion

     Prisoner who is an adherent of the Hebrew Israelite/Nazarite religious group and wears "dreadlocks" as a result, stated a claim for violation of his right to practice his religion in challenging prison policy which limits "Afro style" hair to four inches in length. Trial court finds that there was a viable claim that the prisoner was entitled to a religious exemption from this grooming policy based on his sincerely held religious beliefs. Meggett v. Pa. Dept. of Corrections, 856 A.2d 277 (Pa. Cmwlth. 2004). [PDF]

Segregation: Administrative

     Placement and retention of prisoner in administrative segregation did not violate his due process rights when he had previously threatened others and then refused to submit to interviews with the warden and prison administrative segregation committee, which were required as part of the procedure for review of his continuing administrative segregation. Kunze v. Rauser, No. A1-04-005, 332 F. Supp. 2d 1269 (D.N.D. 2004).

Segregation: Disciplinary

     Prisoner was not barred from pursuing his claim that his disciplinary segregation was the result of him improperly being denied the right to present witnesses at disciplinary hearing merely because his disciplinary segregation lasted only 77 days. The question of whether his conditions of confinement in disciplinary segregation were "atypical" was unknown, based on the record presented. Withrow v. Donnelly, No. 03-CV-6283L, 333 F. Supp. 2d 108 (W.D.N.Y. 2004).

Sexual Assault

     Female prisoners who claimed that they were sexually assaulted by a jailer stated a viable claim against the city for alleged failure to adequately train or supervise its jailers. "We are unwilling to say, at this point, that it is not obvious that male jailers who receive no training and who are left virtually unsupervised might abuse female detainees." Drake v. City of Haltom, 106 Fed. Appx. 897 (5th Cir. 2004). [PDF]

Sexual Offender Programs & Notification

     Colorado prisoner had a protected property interest in being retained in a sexual offenders program when completion was required in order to be eligible for parole under his indeterminate sentence. He stated a possible procedural due process claim based on his alleged expulsion from the program without advance notice or an opportunity to be heard. Court also finds a possible substantive due process claim, ruling that the alleged conduct of expelling him from the program without notice or hearing could be viewed as an indifference to the prisoner's rights sufficient to "shock the conscience." Beebe v. Heil, No. CIV.A.02-D-1993(BNB), 333 F. Supp. 2d 1011 (D. Colo. 2004).

     Requirement that prisoners participating in sex offender program fully disclose their past sexual behavior, including potentially prosecutable conduct, did not violate their Fifth Amendment right against compelled self-incrimination, even though the inmate's failure to participate in the program resulted in her receiving a negative parole recommendation. Participation in the program was voluntary, not compelled, and the failure to participate did not automatically deprive the prisoner of consideration for parole. Wolfe v. Pennsylvania Dept. of Corrections, No. Civ. A. 02-2687, 334 F. Supp. 2d 762 (E.D. Pa. 2004).

Strip Searches: Prisoners

     Even if female prisoner's constitutional rights were violated when she was allegedly strip searched by male guards at city jail "without good cause," she did not claim that the city had a policy or custom of allowing "baseless cross-gender strip searches," so that the city could not be held liable. Further, the Constitution does not require jails that house female detainees either to staff more than one jailer at a time or to staff a female jailer. The appeals court also found that even if the prisoner alleged a constitutional violation arising out of the misuse of the jail's video system, she failed to show any basis for holding the city liable on the basis of any of its customs or policies. Soto v. City of Haltom, No. 03-10650, 106 Fed. Appx. 903 (5th Cir. 2004). [PDF]

Telephone Access

     Prisoner adequately asserted a claim for consumer fraud against a company that provided telephone services to prisoners based on assertions that it fraudulently collected multiple initial calling fees and surcharges by engaging in a practice of deliberating terminating collect telephone calls for the purpose of charging such fees. Flurnoy v. Ameritech, No. 3-03-0516, 814 N.E.2d 585 (Ill. App. 3d Dist. 2004).

Work/Education Programs

     South Carolina statute allegedly requiring state Department of Corrections to pay prevailing wages to inmates employed by prison industry did not provide a private right of action in the courts to inmates to pursue claims for alleged violations. Prisoners could, however, seek a remedy for violations by pursuing an inmate grievance. Adkins v. S.C. Depart. of Corrections, #25860, 602 S.E.2d 51 (S.C. 2004).

     South Carolina inmate was entitled to payment of "prevailing wage" for his work in prison industry under state statute. Court upholds decision by administrative law judge in inmate's grievance requiring correctional officials to pay such wages to prisoner. Wicker v. S.C. Dept. of Corrections, No. 25859, 602 S.E.2d 56 (S.C. 2004).

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

     History: Florida Corrections: Centuries of Progress. Florida Department of Corrections.

     History: Historical Summary of Sentencing and Punishment in Florida. Provides an overview of sentencing changes affecting Florida prisoners from 1972 through 2000. Florida Department of Corrections.

     History: Pennsylvania Department of Corrections: Past & Present. 13 pgs. [PDF]

     Policies and Procedures: Employee-Inmate Relations. South Carolina Department of Corrections. (July 1, 2004). See also Staff Sexual Misconduct with Inmates (July 1, 2004).

     Policies and Procedures: Reasonable Accommodations for Inmates with Disabilities. Pennsylvania Department of Corrections. 9 pgs. [PDF]

     Policies and Procedures: Religious Programs and Services [PDF] (525k) Policy Number: 26.01-2 Rhode Island Department of Corrections.

     Prison Gangs: Basic information about six major nationwide prison gangs--Neta, Aryan Brotherhood, Black Guerrilla Family, Mexican Mafia, La Nuestra Familia, and Texas Syndicate--prepared by the Florida Department of Corrections.

     Publications: DOCS/TODAY (Autumn 2004). [PDF] Publication of the New York Department of Correctional Services. This issue features a story on the Department's highly-rated Shock Incarceration program for certain first-time, nonviolent offenders. Inmates completing the grueling six-month program return to prison at rates significantly lower than comparable non-participants, who spend an average of at least a year longer in prison, according to the article. The program has now saved taxpayers a whopping $1 billion, by reducing terms of incarceration and the need to build new prison beds, the Department states.

     Publication: Handbook for the Families and Friends of Pennsylvania Department of Corrections Prison Inmates. Pennsylvania Department of Corrections. (October 2004). 67 pgs. [PDF].

     Publication: Inmate Handbook. Pennsylvania Department of Corrections. (2003). 78 pgs. [PDF]

     Reports: Florida Department of Corrections Long-Range Program Plan, FY 2005-06 through 2009-10 (August 2004) [Available in both .PDF and .Doc formats].

     Statistics: Capital Punishment, 2003 Presents characteristics of persons under sentence of death on December 31, 2003, and of persons executed in 2003. Preliminary data on executions by States during 2004 are included, and the report summarizes the movement of prisoners into and out of death sentence status during 2003. Numerical tables present data on offenders' sex, race, Hispanic origin, education, marital status, age at time of arrest for capital offense, legal status at time of capital offense, methods of execution, trends, and time between imposition of death sentence and execution. Highlights include the following: At yearend 2003, 37 States and the Federal prison system held 3,374 prisoners under sentence of death, 188 fewer than at yearend 2002. Of those under sentence of death, 56% were white 42% were black, and 2% were of other races. Forty-seven women were under sentence of death in 2003, up from 38 in 1993. (November 2004). NCJ 206627. Press release | Acrobat file (539K) | ASCII file (26K) | Spreadsheets (zip format 39K)

     Reference:

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

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