FEATURED CASES

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Blind inmate's disability discrimination damage claims against the State of New Jersey, which did not involve a denial of access to the courts, but rather denial of talking books, a talking watch, and a walking cane, were barred by the Eleventh Amendment.

      A legally blind inmate in New Jersey's South Woods Prison filed a disability discrimination lawsuit against the New Jersey Department of Corrections (DOC) and a number of state officials under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12134. That section of the ADA prohibits barring access to governmental programs on the basis of disability. The plaintiff claimed that while he was an inmate at two different N.J. prisons, he was temporarily denied access to talking books, a talking watch, a useable lock, and his walking cane.

     The trial court granted summary judgment in favor of the defendants, holding that Congress did not validly act within its constitutional authority in abrogating the State's immunity under the Eleventh Amendment for claims brought by individuals against it under Title II of the ADA. A federal appeals court agreed.

     Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity," and also provides that a "State shall not be immune under the Eleventh Amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."

     The U.S. Supreme Court, in Tennessee v. Lane, 541 U.S. 509 (2004), upheld the constitutionality of Title II of the ADA as applied to cases involving the fundamental right of access to the courts, finding that Congress exercised a valid authority under Sec. 5 of the Fourteenth Amendment to enforce that Amendment's guarantees. The federal appeals court found that this prior Supreme Court case did not apply under the facts of the immediate case.

     In Tennessee v. Lane, the U.S. Supreme Court found that Congress "unequivocally expressed" its intent to abrogate Eleventh Amendment immunity in enacting Title II of the ADA. It also found that there has a significant history and pattern of unequal treatment for disabled individuals' access to public services in general, and found that the statute was a proper response, limiting its holding to cases implicating the fundamental right of access to the courts.

     But the appeals court found "most troubling" the question of whether Title II was an "appropriate response" to the history of alleged disability discrimination involving correctional institutions generally. It concluded that, because of the judicial restraint that is usually appropriate in prisoners' rights cases, Title II's remedies are "not congruent and proportional to the specific claims brought here under the Equal Protection Clause" in the context of the blind inmate's allegations against correctional officials.

     While the plaintiff prisoner alleged a violation of his right to equal protection, his claims did not rise to the violation of any fundamental right, the court found, since they did not involve classifications on the basis of race, alienage, or national origin and did not affect one of his fundamental rights, such as access to the courts. Therefore, the DOC's classification should be upheld if it is rationally related to a legitimate state interest.

     The DOC could have rationally regulated the prisoner's access to his walking cane, for instance, the court reasoned, because it was an object that could have been handcrafted into a "shiv" or knife-like weapon, and the material utilized in constructing his talking book and special tape player "could also have been so converted." Sounds coming from the talking watch "could have been disruptive to other inmates." The appeals court failed to find a rational basis for the DOC's denial of the useable lock, but found that this denial, without more, was "de minimus" and did not rise to the level of a violation of the equal protection clause.

We believe that Title II's obligation to include "disabled" prisoners in all "services, programs, or activities" conflicts with the States' right to impose classifications on disabled prisoners as long as these classifications pass muster under the Equal Protection Clause. [...] If a prison official is obligated under Title II to make all "services, programs, or activities" accessible to all disabled individuals, that official would be impeded in his ability to make an individual assessment of what is rational and safe in the prison context. Title II's mandate would also prevent an official from making classifications amongst prisoners that are rationally related to a legitimate government interest.

     Because Title II of the ADA affects far more state prison conduct and prison services, programs, and activities than the equal protection clause protects, the appeals court ruled, upholding the abrogation by Congress of Eleventh Amendment immunity in this specific prison context would allow Congress to "rewrite the Fourteenth Amendment" law as set down by the courts.

Therefore, Title II of the ADA, as applied here, does not validly abrogate the States' sovereign immunity and cannot be enforced against the State of New Jersey or the DOC in a lawsuit for monetary damages.

     Cochran v. Pinchak, No. 02-1047, 401 F.3d 184 (3d Cir. 2005).

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California prison regulation barring inmates from possessing sexually explicit materials does not violate either the U.S. or California Constitutions or a state statute.

     A California inmate filed a lawsuit in state court seeking to require the California Department of Corrections to rescind a regulation prohibiting prisoners from possessing sexually explicit materials. He argued that the regulation violated the U.S. and California constitutions and California Penal Code section 2601, subdivision (c), which provides that prisoners have a right to receive and read "any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office," with legally obscene materials allowed to be excluded, as well as materials which might incite violence.

     The regulation prohibits California prisoners from possessing or receiving materials showing the frontal nudity of either gender, defining frontal nudity as "including either the exposed female breast(s) and/or genitalia of either gender." It allows for sexually explicit material contained in departmentally purchased or acquired educational, medical/scientific, or artistic materials, including books purchased for inclusion in institution libraries or educational areas, or similar materials, such as anatomy medical reference books, National Geographic, or artistic reference materials purchased or possessed by inmates and approved by the institution head or their designee on a case-by-case basis.

     In the notice announcing the regulation, the Department stated that it would aid in the legitimate penological interests of maintaining prison safety and security, rehabilitating inmates, reducing sexual harassment of correctional officers and preventing a hostile work environment.

     A California trial court upheld the regulation against the prisoner's constitutional and statutory challenges, accepting the reasons for the regulation set forth by the correctional officials as legitimate. An intermediate California appeals court agreed, and stated that there was a rational relationship between the regulation and the legitimate penological interests advanced as the rationale for the regulation.

     The appeals court found that there was a "common sense connection" between sexually explicit images and the sexual harassment of female correctional officers and other security problems, so that the Department was not required to present evidence to substantiate the connection. The court also found that prisoners were afforded an "alternative means of expression" as to receiving sexually explicit communications, since the regulation did not ban sexually explicit writings or sexually provocative pictures of clothed persons or even sexually explicit pictures contained in medical texts, art reference books, National Geographic, and books purchased for prison libraries and education areas.

     The appeals court found that the provisions of Penal Code section 2601 allowed prison officials to bar the possession of sexually explicit materials based on the need to prevent intimidation and sexual harassment of female correctional officers by inmates and to prevent violence between inmates based on "anatomical comparisons."

     Snow v. Woodford, No. D043702, 2005 Cal. App. Lexis 565 (Cal. App. 4th Dist. 2005).

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Prisoner's question to work supervisor concerning pay for prisoners laid off from prison sewing shop was not speech on a matter of public concern for which he had First Amendment protection against retaliatory action.

     An Illinois prisoner working in the facility's sewing shop was told that the shop was to close, and that some of the workers would be immediately transferred to an optical glass shop. He asked a correctional officer, who was his supervisor, whether inmates unemployed while waiting to be transferred to another job assignment would receive "lay-in pay." The inquiry allegedly upset the officer, who responded that the prisoner was "trying to be some type of 'trouble-maker'."

     Several days later, the officer issued a memo announcing that no lay-in pay would be granted and initiated an additional hiring criteria precluding inmates losing their sewing jobs from transferring to the optical shop if they did not have four to seven years remaining on their sentences, which excluded the prisoner who asked the question. The prisoner was subsequently late to report for work because the breakfast line was held up and not dismissed in time, and he was instructed by another officer not to report back to work anymore, essentially being fired, although another inmate who was similarly delayed by the late dismissal was allegedly not fired.

     The prisoner subsequently claimed that the officer who he had made the inquiry to had ordered the other officer to fire him, and to write him up in a disciplinary report for "failure to report," as well as other charges. He was found not guilty of the disciplinary charges, and it was recommended that he be allowed to return to work, although he was not reassigned to the optical glass shop, "ostensibly because he did not meet the criteria put in place" by the officer.

     The prisoner, after exhausting his administrative grievances, filed a lawsuit claiming that the two officers had falsely charged him with disciplinary violations, fired him from his job, and refused to assign him to the glass shop in retaliation for his inquiring about lay-in pay, which he claimed violated his First Amendment rights.

     The trial court rejected his claim for failing to state a valid claim for retaliation. A federal appeals court found that the prisoner's complaint included more than enough detail to satisfy the requirements to plead a claim for unlawful retaliation. A plaintiff, the appeals court said, "must allege only enough to put the defendants on notice and enable them to respond," and here the prisoner met this requirement by setting forth the retaliatory conduct (taking away his job) and the allegedly constitutionally protected activity (speaking out about lay-in pay) that motivated the defendants.

     A 2-1 majority of the appeals court panel, however, found that the prisoner's inquiries into lay-in pay were not protected speech as would be necessary to satisfy a retaliation claim's requirement of constitutionally protected activity. Just as in the context of public employee speech, the majority ruled, the prisoner's speech must be related to a public concern and not just a personal matter to receive First Amendment protection. In this case, the court found, the inmate's speech was "not the type of protected activity under the First Amendment that could support a retaliation claim."

     On appeal, the plaintiff prisoner argued that his "inquiries" were preparation for grieving his complaint about pay through the prison administrative process, and therefore constitutionally protected as part of the grievance process. Rejecting this argument, the appeals court noted that the prisoner never presented this argument to the trial court, and had not alleged that the officer was aware that he planned to file a grievance, or even that he actually had filed a grievance. Instead, he merely argued that the retaliatory conduct was in direct reaction to his "unprotected inquiries about lay-in pay."

     A dissent by one judge on the three-judge panel argued that the prisoner's question concerned the interests of a group of prisoners, not just the plaintiff individually, who were left unemployed by the closing of the sewing shop. The plaintiff's question "would surely concern that 'public' and the general public would be concerned with the policy of compensating prisoners for whom there is no work."

     McElroy v. Lopac, No. 03-3257, 2005 U.S. App. Lexis 5611 (7th Cir.).

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Jail's policy of charging pre-trial detainees one dollar a day to help recover the cost of their housing did not violate their rights or constitute punishment before conviction.

     A pretrial detainee at a jail in Virginia claimed that its policy of charging such detainees one dollar a day to help defray the cost of their housing violated the due process clause of the 14th Amendment, as well as the Takings Clause of the Fifth Amendment as incorporated by the Fourteenth Amendment.

     Upholding the dismissal of the lawsuit, a federal appeals court ruled that the imposition of the charge did not amount to punishment, and did not violate either procedural due process or constitute an unlawful taking of property without due process or adequate compensation.

     The jail's practice, which began in November of 2003, was authorized by a state statute, Va. Code Sec. 53.1-131.3.

     The charge is assessed daily from an inmates' account. If an inmate has no funds in his account, the account is debited until funds become available. The fees collected are held in a separate revenue account to be used for general jail purposes. The jail's policy also provides that inmates found "not guilty" on all charges are entitled to a refund of the fee if, within 60 days, they make such a request in writing, but no refunds are provided to detainees found guilty, or whose charges are dropped or dismissed.

     The appeals court noted that the immediate case appeared to be the first one challenging the constitutionality of charging room and board fees to pretrial detainees, although a number of courts had previously upheld the constitutionality of such fees for convicted prisoners.

     The appeals court found that there was no intent or purpose to punish the detainees by imposing the one dollar per day charge, but merely a legitimate governmental purpose to defray the costs associated with the prisoners' keep. The amount of the charge, additionally, was not excessive.

     Further, the fee will only be imposed for a limited period of time, the court stated, because state law provides that a pretrial detainee must be brought to trial within five months of a probable cause hearing. The court rejected the argument that procedural due process required a pre-deprivation hearing before the charge was deducted from a prisoner's account.

     Once a person is detained on the basis of probable cause, the court stated, the imposition of a "modest and non-punitive charge to defray costs cannot be said to transgress the state's constitutional obligations."

     Slade v. Hampton Roads Regional Jail, #04-6481, 2005 U.S. App. Lexis 8070 (4th Cir.).

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County could not be held liable for the alleged actions of a correctional officer in "orchestrating" an attack on a detainee which was unauthorized and not motivated by a purpose of serving the employer. Officer was therefore not entitled to indemnification under Illinois law for $400,000 jury verdict against him.

     An Illinois pre-trial detainee being held in a county jail was awarded $400,000 by a jury on a civil rights claim that he was beaten by other prisoners at the jail after a correctional officer there recruited and encouraged the other inmates to attack him. The detainee then pursued a lawsuit against the county and the sheriff's office, claiming that they were required, under Illinois state law, to indemnify the officer for the judgment against him.

     In granting the detainee's motion for summary judgment, a federal trial court applying Illinois state law ruled that the officer acted within the scope of his employment. A federal appeals court disagree and found that the officer's actions in orchestrating the attack on a pre-trial detainee was not the type of conduct he was authorized to perform and that his conduct was not motivated by a purpose to serve his employer, so that he was not entitled to indemnification.

     The officer allegedly told other prisoners at the jail that the plaintiff detainee had been charged with shaking his infant son, and asked them "how could somebody do that to a baby?" In response to a question from one inmate as to whether the officer wanted him to stomp or physically assault the detainee, the officer allegedly said, "That's the plan." The officer also allegedly agreed with that inmate that other inmates should be recruited to join in the attack and that the officer would open the doors to the cells and then turn his back to allow the attack. The officer later pled guilty to a criminal charge of official misconduct for his actions.

     The detainee's lawsuit against the county and sheriff's office for indemnification of the officer, in order to obtain payment on the judgment, was filed under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102, which provides for payment by a local public entity for any tort judgment or settlement for compensatory damages against an employee acting within the scope of his employment. In granting the detainee's motion for summary judgment, the trial court found that the officer's conduct in arranging for the severe beating of a pre-trial detainee was motivated by an intent to "prevent and punish child abusers," and that the officer was employed not by the county jail, but rather by the county, "and ultimately the citizens of the county," and that he was therefore acting with the intent to "serve his master" when he initiated and facilitated the attack, and therefore acted within the scope of his employment.

     The appeals court rejected this argument, noting that state laws against child abuse do not authorize law enforcement officers to punish individuals suspected of committing child abuse. Additionally, the court noted, it was difficult to believe that the officer's conduct in any way helped to enforce the regulations of the county jail.

The idea that the Macon County Jail would have regulations in place authorizing corrections officers to recruit and assist inmates to attack a pre-trial detainee is ludicrous. Accordingly, this Court rejects the rationale that conduct resulting in multiple people stomping, kicking, and striking the head and body of a pre-trial detainee to the point of unresponsiveness is conduct that enforces the regulations of the Macon County Jail.

     The appeals court rejected the argument that the citizens of the county were the officer's employer because they did not control the details of his work.

Here, the individual citizens of Macon County do not hire corrections officers, do not develop procedures for corrections officers to follow when guarding prisoners, do not supervise corrections officers, and do not have the ability to fire corrections officers. It is the administrators of the Macon County Jail who have the ability to hire, supervise, and fire corrections officers like Gregory. As a result, Gregory's true employer was the Macon County Jail because the administrators of the Macon County Jail, unlike the citizens of Macon County, had the ability to control the details of Gregory's work.

     Additionally, the officer's conduct did not in any way serve a purpose of his employer. The county jail, the court found, was not involved in preventing and punishing child abuse, but rather in protecting the public from criminal offenders through incarceration and supervision that segregates offenders from society. "Courts, and courts alone, are charged with imposing punishments on convicted criminals, jails merely provide the vehicle for doing so." Therefore, the officer could not have been acting with the intent of serving his master, because his particular master, the county jail, is "not responsible for preventing and punishing suspected child abusers."

     Additionally, the court found, even if it were to accept the argument that the citizens of the county would be served by having corrections officers punish child abusers, the officer's conduct would not have served that purpose in this case because the plaintiff was a pre-trial detainee who had not been convicted of any crime, and therefore could not be punished.

     Copeland v. County of Macon, No. 04-1666, 2005 U.S. App. Lexis 6074 (7th Cir.).

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Prison policy that barred prisoners placed in long term security unit based on their past behavior from possessing any newspapers or magazines except for religious or legal publications, and that further barred possession of family photos, was subject to First Amendment challenge. Appeals court panel overturns trial court decision upholding policy without trial.

     A federal appeals court has rejected a trial court decision upholding as constitutionally valid a Pennsylvania Department of Corrections policy banning access to newspapers, magazines, and photographs for "Level 2" inmates in a long term segregation unit. The unit was established as a place to confine a small population of inmates viewed because of their history of past behavior in prison, as "too disruptive, violent or problematic" to house elsewhere. Prisoners placed there must remain a minimum of 90 days and may remain at Level 2 indefinitely, subject to the discretion of prison officials.

     A department policy prohibited Level 2 prisoners from receiving newspapers or magazines directly from the publisher, from the prison library or from any other source for the duration of their confinement at Level 2 status unless the publication is religious or legal in nature. Additionally, individual articles clipped from publications are prohibited unless they relate to the inmate or his family. The policy also prohibits the possession or receipt of photographs of spouses, other family members, or friends.

     The appeals court found that the policy challenged was "unique" in the state prison system, even among other segregated inmates. The defendant officials claimed that the policy serves several penological purposes, including behavior modifications and rehabilitation, based on providing an incentive for the prisoners to comply with prison rules, and thereby be removed to Level 1 and eventually to the general population, and receive restored privileges. Additionally, the less material Level 2 prisoners have in their cells, the defendants argued, the easier it is for correctional officers to detect concealed contraband and provide security.

     The defendants also argued that newspapers and magazines can be rolled up and used as blow guns or spears, can fuel cell fires, or can be used as crude tools to "catapult feces at the guards."

     The plaintiff prisoner contended that the policy had no rational connection to any legitimate penological interest, or was an exaggerated response to such an interest, and therefore violated prisoners' First Amendment rights to free speech.

     The appeals court, while agreeing that deterrence of future infractions of prison rules can be an appropriate justification for temporarily restricting inmate rights, including access to publications, it found that it could not say that the Department had shown how the regulations in this case served that purpose. Level 2 segregation in this facility, the court noted, is not a place where inmates are sent for a discrete period of punishment for a specific infraction, but rather is long term segregation of the "most incorrigible and difficult prisoners" for potentially long periods of time. "Not only is the rehabilitation justification illogical" given the nature of the confinement, the court stated, but this confinement is a "far cry from the disciplinary contexts in which such bans have been deemed constitutional."

     Additionally, unlike instances in which there was evidence that particular materials needed to be withheld for rehabilitative purposes, such as pornographic materials withheld from sex offenders undergoing treatment, there was no such evidence in this case.

     The appeals court also noted a lack of evidence that periodicals or photographs had been misused in any of the ways described by the defendants, such as their use to start fires, especially since matches were not allowed in the unit. There was also no evidence about the use of such materials as weapons.

     The appeals court also reasoned that other materials allowed to be possessed by the prisoners could be used in the same manner as the banned newspapers, magazines, and photographs, including religious newspapers, legal periodicals, Bibles, etc. which are also flammable.

We fail to see how the DOC could have reasonably thought that the challenged policy, which permits an inmate to have in his cell 10 sheets of writing paper and one records center box full of legal or religious periodicals or texts, would meaningfully improve prison security by forbidding him one copy of the Graterfriends prison newsletter.

     The appeals court found that the prohibition was a "blanket" one allowing for no alternative means for Level 2 prisoners to exercise their First Amendment right of access to a reasonable amount of newspapers, magazines, and photographs.

     The appeals court noted that the plaintiff was not proposing that Level 2 inmates be allowed unmitigated and unregulated access to all periodicals, but merely such alternative policies as a specific reading period in which guards could deliver a single newspaper or magazine to an inmate's cell, if requested, and retrieve it at the close of the period, controlling the number of periodicals in the cell at one time, the frequency of the distribution, etc. Similarly, a limit could be imposed on the total number of photographs a Level 2 inmate could have in his cell at one time. Under such a policy, access to periodicals could be entirely withheld from those individual prisoners who, in the judgment of prison officials, would pose a particular risk given their records, or who abused their use of periodicals or photographs.

     The appeals court believed that such policies would not impose a significant additional burden. It also rejected as "unsupported" the notion that prisoners would be more reluctant to use religious periodicals, such as the Watchtower, the Jewish Daily Forward, or the Christian Science Monitor Magazine for "nefarious purposes" than other periodicals.

     In the alternative, the court noted, individual prisoners could be escorted to the secure mini-law library to read a periodical of their choosing.

     The appeals court panel, by a 2-1 vote, found that the policy in question could not be supported as a matter of law on the basis of the record, and therefore ordered further proceedings.

     A strong dissent by one judge on the panel argued that the policy in question was reasonable since it was imposed as a "last resort" on the "most disruptive and dangerous" 1% of the prison population, and that the decision of prison officials to use this "last resort" was entitled to deference by the courts.

     Banks v. Beard, No. 03-1245, 399 F.3d 134 (3d Cir. 2005)

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Prisoner who repeatedly refused to comply with a prison rule concerning storage of his personal property when he left his cell was not subjected to cruel and unusual punishment when he missed 75 showers and between 300-350 meals in an 18-month period as a consequence of his defiance. Appeals court reasoned that the prisoner punished himself, knowing that the consequence of failing to comply with the rule, which he did not challenge the validity of, was being barred from leaving his cell to take showers or go to the cafeteria.

     An Illinois prisoner appealed from a grant of summary judgment to prison officials whom he had sued, claiming that they inflicted cruel and unusual punishment on him by denying him showers and withholding meals from him. The alleged deprivations were imposed for alleged violations of a prison rule, the validity of which he did not challenge, stating that when prisoners are outside of their cell, they must store certain belongings in a storage box in the cell.

     The purpose of the rule was to enhance fire safety, facilitate cell searches and otherwise promote safety and security. When a prisoner fails to comply with the rule, he is forbidden to leave his cell, which means that he can't take showers or even have a meal, because for the class of prisoners to which the plaintiff belongs, meals are served only in the prison cafeteria and not in inmate cells.

     The plaintiff claimed that, because he repeatedly refused to comply with the rule, he missed 75 showers and between 300-350 meals during an 18-month period. Consequences allegedly included a rash, fatigue and the loss of 90 pounds. (The appeals court stated that it was "Not that he needed those 90 pounds, since, before he started skipping meals, he weighed between 250 and 300 pounds and he is only 5 feet 8 inches tall.")

     The appeals court rejected the prisoner's argument that this violated his rights and constituted cruel and unusual punishment.

     Deliberate "non-compliance with a valid rule," the appeals court reasoned, "does not convert the consequences that flow automatically from that noncompliance into punishment." The prisoner, the court stated, "punished himself."

     The sanction for violating the storage-box rule was not intended to starve the violator or even to force him to skip his next meal. As soon as the plaintiff puts his belongings in the storage box, he is allowed to leave his cell and go to the cafeteria. Under the circumstances, the court reasoned, it need not decide whether, or how many, skipped meals constitute a cruel and unusual punishment for violation of a valid rule, as he was not punished, but simply punished himself.

Suppose he'd announced that he would skip dinner every day unless he were served champagne and caviar at least once a month. He, not the prison, would be the author of his being denied dinner. A prisoner cannot force the prison to change its rules by going on a hunger strike and blaming the prison for his resulting loss of weight. He cannot, in short, be permitted to engineer an Eighth Amendment violation. The analogy is to civil contempt. A person who is imprisoned for refusing to sign a deed that he is legally obligated to sign, but who can get out of prison just by signing it, cannot complain that he is being punished.

     At some point, the appeals court noted, "refusal to eat might turn suicidal and then the prison would have to intervene," and likewise "if noncompliance with the rule were a product of insanity," but neither situation was present in this case.

     Rodriguez v. Briley, No. 04-1554, 2005 U.S. App. Lexis 6152 (7th Cir.).

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Jail officers were entitled to qualified immunity in lawsuit claiming that they failed to protect prisoner from assault by other inmates, in the absence of any allegation that they disregarded any known risk of harm. General allegations that the facility was overcrowded were insufficient to show deliberate indifference and, at most, indicated negligence, which could not be the basis for a constitutional claim.

     A prisoner in the Faulkner County Arkansas Detention Center sued various jail administrators and employees, claiming that they violated his federal civil rights by failing to protect him from assault by other inmates.

     A federal trial court rejected the defendants' motions for summary judgment on the basis of qualified immunity. A federal appeals court reversed, finding that the facts alleged by the plaintiff prisoner, even if true, did not show that the defendants disregarded any known risk of harm to him, so that they could not be held liable for his injuries.

     The plaintiff was in the custody of the county on charges of violating his probation. A "nonviolent offender," he expected to be released on bond the next morning. He was placed in a cellblock consisting of a day room and two bedroom cells, following which two inmates in the jail punched him and broke his jaw, resulting in his hospitalization.

     The plaintiff prisoner claimed that the facility was unreasonably dangerous due to chronic overcrowding, and that the defendants knew it. He also alleged that the jail officials exacerbated the already unsafe conditions by operating the jail with insufficient staff who were inadequately trained and supervised, and that the officials acted with deliberate indifference by allowing the overcrowding and failing to take reasonable measures to protect him.

     The appeals court noted that none of the defendants were present or even on duty at the time of the attack. It found that even if the prisoner's incarceration in the cellblock posed a substantial risk of serious harm to him and the officials were aware of the risk, the facts alleged by the prisoner did not establish that the defendants acted with deliberate indifference.

     At most, the appeals court found, the prisoner's allegations showed that facility officials may have acted "unreasonably," or, in other words, negligently, in failing to take particular measures to improve the conditions at the facility, but "that does not rise to the level of deliberate indifference." Negligence alone, the court noted, cannot give rise to an Eighth Amendment failure-to-protect claim.

     The prisoner alleged, at most, "institution-wide deficiencies" which were known to supervisory officials, but over which they had "only partial control." On these facts alone, in the absence of deliberate indifference to a known risk of harm to this particular prisoner, "we refuse to hold supervisory jail officials liable for acts that may or may not have contributed " to the prisoner's injury.

     Crow v. Montgomery, No. 03-3859, 403 F.3d 598 (8th Cir. 2005).

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Conditions that prisoner faced in disciplinary segregation were not severe enough to amount to a deprivation of a liberty interest, so that he could not pursue a federal civil rights claim that he had been placed in such confinement without procedural due process.

     A prisoner in the custody of the Illinois Department of Corrections made several constitutional claims relating to his placement and confinement in disciplinary segregation. Upholding the dismissal of his lawsuit, a federal appeals court found that the prisoner's own allegations "effectively plead him out of court" because the conditions of confinement he complained about did not amount to a "deprivation of a liberty interest," and because he failed to present any arguments before the trial court linking the allegations of retaliation in his complaint to his claim concerning his segregation.

     The prisoner had allegedly cultivated a "friendly terms" relationship with a female prison employee, but was subsequently transferred to another prison, where he filed grievances concerning his allegedly inadequate medical treatment. He subsequently mailed a package containing two ceramic mugs and a personal letter via a third party to the female employee at his prior prison. He was subsequently placed on investigative status for his possible involvement in sending unauthorized correspondence, and transferred to another prison.

     He was subsequently charged with "abuse of privileges" and "dangerous communications." He was found guilty of abuse of privileges and sentenced to three months of segregation, as well as denial of commissary privileges, but was found not guilty of the "dangerous communications" charge. During his 90 days in segregated confinement, he was allegedly unable to participate in prison programs, educational programs, and work programs, losing prison employment, wages, contact visits, telephone privileges, visits from clergy, and access to church. He was also allegedly allowed fewer visits from his family, exercise privileges, commissary privileges, personal possessions, and audio/visual items.

     He claimed that these conditions were "significantly atypical" and that his placement there was carried out in violation of due process.

     The appeals court disagreed, finding that these alleged deprivations were not severe enough to implicate a protected liberty interest, and therefore the prisoner was not entitled to invoke the protections of procedural due process against his placement in such disciplinary segregation.

     Lekas v. Briley, No. 04-1420 2005 U.S. App. Lexis 7528 (7th Cir.).

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Sheriff who allegedly left two female inmates in the custody of the same male employees they alleged had sexually molested them was not entitled to qualified immunity in a lawsuit by one of them for failing to protect her against a known risk of harm.

     A female inmate in a Colorado county jail was escorted to the jail commissary by the jail administrator after she requested a comb. Inside the small room, he allegedly used his knife to open a package of combs and then, with the knife in his hand, told her that "once you're in this room, you belong to me," and sexually assaulted her. On the same afternoon, another female inmate was allegedly summoned to the control room by the senior detention officer, who allegedly sexually assaulted her.

     That evening, both women handed written statements concerning the assaults to two detention officers who called the county sheriff, who allegedly went to the jail and instructed the officers on duty to tell the two inmates that he had been notified and would speak to them the next morning. Instead, the sheriff allegedly transported one of the women to another of her court appearances.

     Shortly after she was returned to the woman's pod at the jail, the jail administrator allegedly summoned her to the control room, there grabbing her arm and stating, "Let's start off where we left off yesterday." He allegedly pressed his body against hers and tried to kiss her, but she pushed him away and went back to the pod.

     Both women were subsequently released based on instructions from the District Attorney, and both the jail administrator and senior detention officer were suspended and later charged with and convicted of the assaults.

     The woman assaulted by the jail administrator filed a federal civil rights lawsuit claiming that there were other incidents of sexual assault at the jail involving the jail administrator and senior detention officer of which the county sheriff was aware, but failed to take steps necessary to prevent further such assaults.

     The trial court granted summary judgment to both the sheriff and county, finding the sheriff had not acted with deliberate indifference. The trial court found that the sheriff, in light of prior incidents of sexual misconduct and violence at the jail, had taken appropriate remedial measures.

     A federal appeals court disagreed. It found that there was evidence of prior incidents of sexual misconduct at the jail, which should have put the sheriff on notice about the need for taking measures to prevent further such incidents.

     Taking the evidence in the light most favorable to the plaintiff, the appeals court found, it could fairly be inferred that the sheriff's purported ignorance of dangerous conditions at the jail was a "direct result of his lackadaisical attitude toward his responsibility to run the institution."

     The appeals court noted that the sheriff explicitly stated that his jail administrator did not want to investigate allegations of problems at the jail, and that there was evidence of the sheriff's "consistent willingness to ignore inmate complaints by attributing them to attitudes" of the complainants, who were characterized as "troublemakers" or as "conjuring up" incidents to "discredit" his deputies.

Finally, and most astonishing, when first advised two visibly "upset" female inmates accused two of his jailers of sexually assaulting them, he not only left the prisoners unprotected in the jail, but also in the custody and control of the very men accused of the assaults. When the women were removed for their protection, the decision to do so was not made by Sheriff Salazar, but by the District Attorney. None of this evidence is controverted, and its significance was seemingly ignored by the district court.

     There was sufficient evidence, the court found, to raise a triable issue of material fact that the sheriff had knowledge of a substantial risk of harm to female detainees at the jail, which he disregarded. Summary judgment and qualified immunity, therefore, were inappropriate, and the case was remanded for further proceedings.

     Gonzales v. Martinez, No. 03-1348, 2005 U.S. App. Lexis 6169 (10th Cir.).

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

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Missouri prisoner failed to show objective proof that he was subjected to an unreasonably high level of second hand tobacco smoke while incarcerated. Trial court abused its discretion in excluding prisoner's expert witness on the harmful effects of second-hand smoke, but this error was harmless in the absence of objective evidence concerning the level of second-hand smoke to which the plaintiff was exposed.

     A federal appeals court has upheld summary judgment for Missouri prison officials in a lawsuit by a prisoner seeking damages for alleged excessive exposure to second hand cigarette smoke while imprisoned, and seeking injunctive relief.

     The prisoner claimed that prison officials did not adequately protect him from exposure to second-hand smoke. The appeals court noted that the prisoner had not been diagnosed with an allergy to environmental tobacco smoke (ETS) or with any current "respiratory illness, disease or defect. He also tested negative for coronary artery disease.

    The prisoner had testified that years ago, he had been diagnosed as suffering from Asperger's Disorder, a form of autism, making him antisocial and necessitating that he be placed in a one-man cell, but the court noted that there was no medical record documentation for that diagnosis and no documentation connecting it with ETS, although the prisoner claimed that there was such a connection.

    The facility in which the prisoner was incarcerated had a policy prohibiting smoking inside any building, including inmates' cells, although records showed that in a two year period, 126 conduct violations for smoking were issued to prisoners. The prisoner was housed, most recently, in a two-man cell with an inmate who does not smoke, although some of his prior cellmates did smoke. The appeals court acknowledged that the evidence indicated that the prohibition on smoking is "not strongly enforced or is often circumvented." 

     The appeals court found, however, that the plaintiff prisoner failed to present objective evidence that he was subjected to unreasonably high levels of ETS. In addition to his failure to show any smoking related disease or illness, "no scientific tests were performed to establish the levels of ETS" in his cell.

     The appeals court also found that the trial court abused its discretion in excluding the testimony of a doctor who the prisoner wished to have testify as an expert, but that this error was harmless.

     The trial court made its decision after determining that the witness had no education or training in any field that would permit him to testify about second-hand smoke. The mere fact that he "may have read what other experts have written on the subject," the trial court stated, "does not qualify him to speak with authority on the subject." 

     The appeals court held that the doctor was, in fact, qualified as an expert to testify regarding the harmful health effects of ETS, since he had over twenty-three years of ETS experience, a Ph.D. in physical chemistry from Harvard University, and was a principal consultant to the Environmental Protection Agency (EPA), and authored the EPA's 1992 report on second-hand smoke and respiratory diseases, including lung cancer.

     The appeals court found, however, that this error was harmless because the prisoner, even with the doctor's testimony, could not have met the objective requirement of showing that he in particular was exposed to unreasonably high levels of ETS and that it posed a risk that "is not one that today's society chooses to tolerate."

     Larson v. Kempker, No. 04-2220, 2005 U.S. App. Lexis 7523 (8th Cir.).

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

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Federal appeals court, en banc, rejects claim that Florida's ban on felons voting was motivated by intent to discriminate against African-Americans.

     Florida state law prohibits ex-felons from voting unless they have their civil rights restored by the state. Six other states have similar laws. The ban is imposed by art. VI, Sec. 4 of the Florida Constitution, enacted in 1968. Eight Florida residents filed a class action lawsuit on behalf of all Florida citizens who have been convicted of a felony and successfully completed all terms of incarceration, probation, or parole, but who are still ineligible to vote. They claimed that the law violated the First, Fourteenth, Fifteenth, and Twenty-Fourth (poll tax) Amendments to the U.S. Constitution and Sections 2 and 10 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq.

     Overturning summary judgment for the State of Florida, a three judge panel of a federal appeals court, by a 2-1 vote, found that there was a genuine issue of material fact as to whether the law was adopted with an intentional discriminatory purpose in violation of the right to equal protection and in violation of the Voting Rights Act. The rejection of the poll tax claim was upheld. The plaintiffs argued that the state adopted a similar law in the 1800s to discriminate against African-Americans, and that the inclusion of the provision in the 1968 constitution was simply the continuation of the former law, incorporating its discriminatory intent. Johnson v. Governor of the State of Florida, #02-14469, 377 F.3d 1163 (11th Cir. 2003). [PDF] A prior article on this case appeared in the Jail & Prisoner Law Bulletin in February of 2004.

     The full federal appeals court granted a rehearing en banc and overturned the panel's decision.

     The appeals court found that the plaintiffs had failed to present adequate evidence that the 1868 Florida constitutional provision disenfranchising felons was based on racial discrimination. It also noted that the U.S. Congress expressly approved the 1868 Constitution in readmitting the state to the Union, and found that the plaintiffs had failed to allege that racial discrimination motivated the adoption of the 1968 felon disenfranchisement law, and further found that the 1968 provision was "markedly different" from the 1868 version, eliminating the reference to "other infamous crime," and certain misdemeanors, such as petty larceny, and limiting disenfranchisement to those convicted of a felony or adjudicated to be mentally incompetent.

     The appeals court also found that the racial effects of the 1968 felon disenfranchisement provision were minor, and according to the plaintiffs' own estimates, disenfranchised 3.13% of voting age African-Americans in 1968, as compared to 1.24% of non African-Americans because of felony convictions.

     The appeals court therefore found that the trial court's initial grant of summary judgment on the equal protection claims was proper, and further rejected the argument that the felon disenfranchisement law violated Section 2 of the Voting Rights Act.

     The appeals court noted that Florida's "discretion to deny the vote to convicted felons" was supported by the text of Sec. 2 of the Fourteenth Amendment, which reduces the representation of states in Congress if the right to vote of male inhabitants is denied or abridged for any reason except for "participation in rebellion, or other crime." Accordingly, the court reasoned, to interpret the Voting Rights Act to deny Florida discretion to disenfranchise felons "raises serious constitutional problems" allowing a congressional statute to override the text of the Constitution. The court found no indication of any Congressional intent to reach such a result in enacting the statute.

     Two judges on the appeals court dissented as to the Voting Rights Act claim, with one of them also dissenting on the equal protection claim.

     Johnson v. Governor of the State of Florida, No. 02-14469, 2005 U.S. App. LEXIS 5945 (11th Cir.).

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

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Defenses: Notice of Claim

     Dead prisoner's estate was entitled to file a late notice of claim of a medical malpractice claim against the county when there was evidence from the inmate's treating physician that the cancer which caused her death rendered her "debilitated" and unable to attend to her needs, confining her to her bed and wheelchair. Olsen v. County of Nassau, 789 N.Y.S.2d 264 (A.D. 2nd Dept. 2005).

Employment Issues

     County did not violate the due process rights of retired sheriff's deputies by requiring them to pay higher health insurance premiums than were paid by currently working deputies. Germano v. Winnebago County, No. 04-3319, 2005 U.S. App. Lexis 6075 (7th Cir.). [PDF]

False Imprisonment

     Florida Department of Corrections did not falsely imprison an inmate when it allegedly disregarded the language of a sentence imposed at trial providing that it was to be concurrent with a sentence imposed against him in an unrelated case. The Florida intermediate appeals court found that this language was a "nullity" because the sentence referred to arising out of the prior conviction had already been fully served, so that the Department was required, by a state statute, to run the new sentence consecutive to the sentence already served. Whipple v. Department of Corrections, No. 3D03-2877, 892 So.2d 554 (Fla. App. 3d Dist. 2005). [PDF]

Federal Tort Claims Act

     Federal prisoner stated a viable claim against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2675(a), for the alleged wrongful confiscation and destruction of his property by a prison employee. The claim that the prison employee did not follow federal prison regulations in destroying the property before the inmate had a chance to establish his ownership of it, however, did not state a constitutional due process claim when the property was seized from the prison's machine shop rather than the prisoner's cell and the government provided adequate post-deprivation remedies. Bigbee v. United States, No. 05-C-66, 359 F. Supp. 2d 806 (W.D. Wis. 2005).

Inmate Funds

     Rhode Island prisoner stated a possible claim for violation of procedural due process based on failure to pay him interest on account funded through deduction from his prison wages, when interest in fact accrued on the money and that interest was retained by state officials rather than being returned to the inmate account as required by a state Department of Corrections policy. Young v. A.T. Wall, No. 03-2208, 359 F. Supp. 2d 84 (D.R.I. 2005).

Mail

     Prisoner's allegation that a prison official violated his constitutional right to send and receive email was "conclusory" and insufficient to support a federal civil rights claim. Al-Hizbullahi v. Nimrod, No. 03-17340, 122 Fed. Appx. 349 (9th Cir. 2005).

     Even if a letter from a legal advocacy group (the "Innocence Project of Minnesota") to a prisoner was protected as "legal mail," the alleged mistaken opening of the letter outside of the presence of the prisoner was not a violation of his First Amendment rights since it was an isolated incident and did not interfere with his right of access to the courts. The prison employee opening it believed that the group who sent the letter did not qualify as a legal advocacy group. Additionally, correspondence from a city police department and the North Dakota Department of Corrections was not constitutionally protected legal mail. Moore v. Schuetzle, No. A4-01-038, 354 F. Supp. 2d 1065 (D.N.D. 2005).

Medical Care

     Prisoner's claim that prison medical personnel failed to diagnose and treat his broken leg and failed to provide him with medication prescribed at hospital demonstrated, at most, claims for negligent medical treatment or a disagreement with the course of treatment received, and was inadequate to show a constitutional claim for which deliberate indifference to a serious medical need is required. Turk v. Thomas, No. 04-20181, 121 Fed. Appx. 24 (5th Cir. 2005). [PDF]

     Prisoner failed to show deliberate indifference by prison medical personnel to either his initial shoulder injury from slipping and falling or his subsequent reinjury. The prisoner himself did not allege that his exhibited symptoms were serious enough to demonstrate a need for hospitalization, and some treatment was provided for the first injury, and the prisoner failed to show that the doctor was aware of his re-injury or requests to see the doctor. Barron v. Pohlman, M.D., #04-1212, 122 Fed. Appx. 416 (10th Cir. 2005).

Medical Care: Dental

     Prisoner could not raise an issue concerning the alleged loss of his tooth for the first time on appeal from the dismissal of his lawsuit claiming deliberate indifference to his alleged tooth injury after he was slapped by a guard. Federal appeals court upholds dismissal of claim for deliberate indifference, finding that there was no evidence that the defendants were aware that his injuries were sufficiently serious to require medical treatment. Hill v. Vannatta, No. 03-3227, 123 Fed. Appx. 723 (7th Cir. 2005).

Prison Litigation Reform Act: Attorneys' Fees

     Prisoner who was awarded $1 in nominal damages in federal civil rights lawsuit against off-duty police officer who allegedly violated his Fourth Amendment rights by using excessive force in smashing the window of his car with a baton during confrontation prior to his incarceration was properly also awarded $9,680 in attorneys' fees and $915.16 in expenses by trial court. Federal appeals court rules that provision of the Prison Litigation Reform Act's which limits attorneys' fee awards in prisoner suits to 150% of the money judgment, 42 U.S.C. Sec. 1997e(d), did not apply to civil rights claims that arose before the prisoner was incarcerated. Robbins v. Chronister, No. 02-3115, 402 F.3d 1047 (10th Cir. 2005).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner failed to exhaust his available administrative remedies, as required by 42 U.S.C. Sec. 1997e, on his claim that a correctional officer confiscated his contact lenses because he is homosexual. While he pursued grievances concerning the contact lenses, he failed to assert in those grievances that he was a homosexual or that his sexual orientation was related to the reason why the officer took the actions against him. Goldsmith v. White, No. 5:04cv72, 357 F. Supp. 2d 1336 (N.D. Fla. 2005).

     Prisoner failed to exhaust his available administrative remedies, as required by 42 U.S.C. Sec. 1997e, on his claim that a correctional officer was engaged in racial discrimination in seizing his property purchased in the prison commissary. While the prisoner prepared a number of statements about the incident he circulated to prison officials, they were never property submitted to the warden or other officials as required by regulations. Additionally, the statements circulated merely summarized the incident without making any claim of racial discrimination. The prisoner's lawsuit was therefore properly dismissed. Smith v. Rudicel, No. 04-3462, 123 Fed. Appx. 906 (10th Cir. 2005).

Prison Litigation Reform Act: Mental Injuries

     Prisoner who claimed that prison guards violated his constitutional rights by confiscating his legal work at gunpoint could not pursue a federal civil rights lawsuit seeking compensatory damages for any mental or emotional injuries resulting from the alleged seizure in the absence of any claimed physical injury, pursuant to the provisions of the Prison Litigation Reform Act, prohibiting claims for mental injury without physical injury, 42 U.S.C. Sec. 1997e. Taylor v. Milton, No. 04-60569, 124 Fed. Appx. 248 (5th Cir. 2005). [PDF]

Prison Litigation Reform Act: Similar State Statutes

     Amendments to Louisiana state statutes, creating administrative remedies which prisoners must exhaust prior to pursuing lawsuits against prison officials did not apply retroactively to lawsuits pending at the time they were enacted. Prisoner could, therefore, continue to pursue his negligence claim for damages against prison officials for injuries suffered from falling off of a trailer-mounted water tank during a prison work assignment. Dailey v. Travis, No. 2004-CC-0744, 892 So. 2d 17 (La. 2005). [PDF]

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner's claim that he was sprayed with a chemical agent that damaged his lungs was insufficient to show an imminent danger of serious physical injury sufficient to allow him to proceed as a pauper with his federal civil rights lawsuit despite his prior failure, as a frequent filer of civil rights lawsuit, to make progress towards the repayment of unpaid filing fees from previously filed lawsuits. The complaint was dismissed on the basis of the three strikes rule, as required by 28 U.S.C. Sec. 1915(g), barring a prisoner from proceeding as a pauper after having three lawsuits dismissed as frivolous, except in cases of a risk of imminent physical harm. Because four months had elapsed between the alleged injury and the filing of the lawsuit, the prisoner could not show a risk of imminent danger. Cosby v. Gray, 124 Fed. Appx. 595 (10th Cir. 2005).

Prisoner Discipline

     Disciplinary hearing's finding that prisoner was guilty of possessing or introducing a weapon into a correctional facility could not be upheld on appeal when the hearing officer failed to explain why he found information provided by a confidential informant, the only evidence linking the prisoner to an assault, credible and reliable. The officer failed to comply with procedural safeguards in the administrative code requiring a written statement summarizing his reasons for relying on confidential information. Johnson v. Department of Corrections, 867 A.2d 1232 (N.J. Super. A.D. 2005).

     Mere fact that a misbehavior report failed to indicate the specific date and time that the prisoner was alleged to have offered to provide stolen Social Security numbers to other inmates did not make it inadequate to provide notice to him of the offense with which he was charged. Disciplinary determination of guilt on the charges upheld, based on the report and on hearing testimony establishing that the incident occurred approximately two weeks before the writing of the report. Fayton v. Goord, 792 N.Y.S.2d 259 (A.D. 3rd Dept. 2005). [PDF]

     Texas prisoner could not pursue a federal civil rights claim alleging that he had been wrongfully convicted in a prison disciplinary hearing, in the absence of first having had that conviction expunged, reversed, or set aside, pursuant to the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Williams v. Cleer, No. 04-20520, 123 Fed. Appx. 591 (5th Cir. 2005). [PDF]

Prisoner Suicide

     Sheriff and jail administrator could not be held liable for detainee's suicide in the absence of any evidence that either of them was aware of a conversation the detainee's spouse had with a correctional officer concerning the risk that he might attempt suicide or another officer's report that the detainee may have been trying to accumulate some of his medications to use at a later time. Court also finds that jail's suicide prevention policy was reasonable and that the county was not deliberately indifferent to training its employees in the prevention of suicide. The fact that the policy had not been "updated" recently, and that jail was not accredited by the American Correctional Association (ACA), did not alter the result when the policy contained a detailed listing of factors for the identification of possibly suicidal prisoners, procedures for screening inmates, and required that personnel receive on-going training in suicide prevention and intervention. Harvey v. County of Ward, No. A1-03-135, 352 F. Supp. 2d 1003 (D.N.D. 2005).

Private Prisons and Entities

     Federal prisoner could not pursue a civil rights claim for inadequate medical care under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against a private hospital or a nurse there because the defendants were not federal entities. Claims under Bivens require that the defendant act under color of federal authority. Holz v. Terre Haute Regional Hospital, No. 03-4279, 123 Fed. Appx. 712 (7th Cir. 2005).

Religion

     Jewish prisoner failed to allege any specific facts to demonstrate that the alleged denial of adequate medical care to him for his asthma, migraine headaches and sleep apnea was based on anti-Semitic motives. Additionally, his equal protection claim was at odds with his use of the alleged mistreatment of other prisoners to show deliberate indifference to serious medical needs. Federal trial court grants dismissal of all claims in the lawsuit. Davis v. County of Nassau, No. 03-CV-4148, 355 F. Supp. 2d 668 (E.D.N.Y. 2005).

Sexual Assault

     Prisoner's claim that prison guard attempted to solicit sexual favors from him in return for special consideration and groped his genitals in front of him, even if true, failed to establish a violation of the Eighth Amendment prohibition on cruel and unusual punishment, when there was no claim of any physical injury. Ornelas v. Giurbino, No. 03 CV 1673, 358 F. Supp. 955 (S.D. Cal. 2005).

Sexual Harassment

     Female correctional officer failed to show that alleged sexual harassment by a co-worker was "severe or pervasive" as required to impose liability on her employer, or that employer ignored her complaint about his conduct. Sheriff's office, in fact, took the incident in question seriously, and suspended the male deputy without pay for thirty days. Hathaway v. Multnomah County Sheriff's Office, No. 03-35571, 123 Fed. Appx. 806 (9th Cir. 2005).

Work/Education Programs

     Environmental conditions at prison print shop and resulting minor health problems prisoners there allegedly experienced, including skin irritation, nausea, and headaches, did not violate the Eighth Amendment when the prisoners were fully aware of the potential health risks and voluntarily chose to continue to work there. Wooten v. Goord, No. 04-2485, 123 Fed. Appx. 441 (2nd Cir. 2005).

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     Budget Information: Federal Bureau of Prisons Annual Financial Statement, Fiscal Year 2004, Audit Report No. 05-11, March 2005 (Commentary and Summary Only)

     Publication: Implementation and Outcome Evaluation of the Intensive Aftercare Program: Final Report (NCJ 206177) March 2005 Report, 110 pages Le, T.N., McNulty, B., Wagner, D., Wang, Y., Wiebush, R.G. Presents the findings from a 5-year, multi-site evaluation of the implementation and outcomes of OJJDP’s (Office of Juvenile Justice and Delinquency Prevention) Intensive Aftercare Program (IAP). The goal of the IAP model is to reduce recidivism among high-risk parolees. The model postulates that effective intervention requires not only intensive supervision and services after institutional release, but also a focus on reintegration during incarceration and a highly structured and gradual transition between institutionalization and aftercare. Available online only. PDF(807 KB)

      Publication: Resource Guide for Jail Administrators by Martin, Mark D.; Rosazza, Thomas A, National Institute of Corrections (300 pgs. 2004). [PDF] A guide "developed to enhance the leadership skills, knowledge, and capabilities of jail administrators on issues of basic jail administration" is presented (p. v). Fourteen chapters comprise this guide: introduction; role, purpose, and characteristics of the jail; administration; facilities; staffing and scheduling; staff recruiting, selection, and retention; staff training; security, safety, and emergency preparedness; inmate behavior management; inmate discipline and grievance; special management; inmate services and programs; jail intake and release; and getting started on the job. Sixteen checklists allow administrators to assess performance and effectiveness of jail operations.

    Publication: Resource Manual for Transition to a New Jail by Elias, Gail; Milosovich, John, National Institute of Corrections (194 pgs. 2005). [PDF] "This resource document will assist agencies starting the process of planning for a successful transition to a new detention facility" Nine chapters comprise this manual: introduction; transitional management; construction; staff/human resources; document development; training and orientation; furniture, fixtures, equipment, and supplies; move logistics; and transition themes of managing change and community relations.

     Publication: Screening and Assessing Mental Health and Substance Use Disorders Among Youth in the Juvenile Justice System: A Resource Guide for Practitioners (NCJ 204956) December 2004 Report, 88 pages Grisso, T., Underwood, L. A. Presents information on instruments that can be used to screen and assess youth for mental health- and substance use-related disorders at various stages of the juvenile justice process. The Guide includes profiles of more than 50 instruments, guidelines for selecting instruments, and best practice recommendations for diverse settings and situations. It is intended as a basic tool for juvenile justice professionals working toward the goal of early, accurate identification of youth with mental disorders. Once identified, these youth can receive the services required to improve their lives, reduce recidivism, and promote community safety. Available online only. [PDF] (1.85 MB).

     Statistics: Correctional Statistics...In Your State (2005) Access to statistics about corrections in the U.S., according to each state, can be found at this website. Statistics (per 100,000) for each state include: crime rates; corrections population; incarceration rate; community corrections--probationers and parolees; cost per inmate; and general information about the state's jails, prisons, and community corrections. Also provided are at-a-glance graphs that compare the state's ranking against other states and the U.S. total.

     Statistics: Prison and Jail Inmates at Midyear 2004. Presents data on prison and jail inmates, collected from National Prisoner Statistics counts and the Annual Survey of Jails in 2004. This annual report provides for each State and the Federal system, the number of inmates and the overall incarceration rate per 100,000 residents. It offers trends since 1995 and percentage changes in prison populations since midyear and yearend 2003. The midyear report presents the number of prison inmates held in private facilities and the number of prisoners under 18 years of age held by State correctional authorities. It includes total numbers for prison and jail inmates by gender, race, and Hispanic origin as well as counts of jail inmates by conviction status and confinement status. The report also provides findings on rated capacity of local jails, percent of capacity occupied, and capacity added. Standard errors for jail estimates are only provided in the appendix tables of the electronic version of this report. Highlights include the following: At midyear 2004-- The Nation's prisons and jails incarcerated over 2.1 million persons. In both jails and prisons, there were 123 female inmates per 100,000 women in the United States, compared to 1,348 male inmates per 100,000 men. A total of 2,477 State prisoners were under age 18. The number of inmates in custody in local jails rose by 22,689; in State prison by 15,375; and in Federal prison by 10,095. 04/05 NCJ 208801 Press release | Acrobat file (189K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Testimony: Statement of Glenn A. Fine, Inspector General, U.S. Department of Justice, before the Commission on Safety and Abuse in America’s Prisons, April 19, 2005 [PDF] [HTML].

     Video: Community-Supervision: Using a Strength-Based, Family-Focused Approach [Satellite/Internet Broadcast] "This 3-hour program, originally broadcast March 16, 2005, will help professionals identify the strengths and resources inherent in the family as a fundamental support system for individuals upon their release from prison or jail. It is designed to stimulate new ways of thinking about the family as a resource to enhance offender reentry and supervision and to increase public safety. Family, broadly defined, includes individuals' blood relatives and friends who play a significant role in a person's life. Family members are essential resources who may ease the transition from confinement to the community or positively enhance the community supervision process. Unfortunately, the family is too often viewed as presenting challenges rather than as a source of shared history and untapped resources. The goal of this broadcast is to encourage participants to think about: enhancing the reentry and supervision processes through contextual thinking about the family; tapping the strengths of families and communities as means of good government to enhance public safety; utilizing family and community resources after government intervention has ended; and addressing the challenge of negotiating multiple services that may be used by the family to enhance positive outcomes." To view this Internet streaming broadcast, you must have a compatible viewer installed on your computer. If you have a high-speed Internet connection use Windows Media Player®. If you have a low-speed connection or are using Windows NT, use Real Player One®. To download a video player click here: Windows Media Player® Real Player One®.

     Websites: International Prisoner Transfer Program. The International Prisoner Transfer Program began in 1977 when the U.S. government negotiated the first in a series of treaties to permit the transfer of prisoners from countries in which they had been convicted of crimes to their home countries. The program is designed to relieve some of the special hardships that fall upon offenders incarcerated far from home, and to facilitate the rehabilitation of these offenders. Prisoners may be transferred to and from those countries with which the United States has a treaty. (Participating countries are listed on the site). While all prisoner transfer treaties are negotiated principally by the United States Department of State, the program itself is administered by the United States Department of Justice.

     Reference:

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

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