FEATURED CASES

WITH LINKS TO THE OPINIONS

Prison officials could not punish an inmate for writing a letter to a private company informing them of what he believed to be an illegal program planned at the prison which would damage its business as a supplier to the facility. The statements, while critical or unflattering, did not damage institutional security, and punishing him for their content would violate the First Amendment.

     While incarcerated in the custody of the Colorado Department of Corrections (DOC), a prisoner wrote a letter which he attempted to send to a commercial supplier, Home Depot, to inform the company of what he believed to be an illegal program being instituted at the prison that would impinge on the business of the supplier. Prison officials confiscated the letter after it was returned to the prisoner as non-deliverable because of an incorrect address. Based on the letter, the prisoner was then charged and found guilty of attempting to create a "facility disruption" in violation of applicable prison disciplinary rules.

     He was sanctioned with ten days of punitive segregation, suspended from his paid work assigned, and, he asserted, further sanctioned with an increase in his security classification and transfer to a higher-security facility, which resulted in the loss of some of his personal property.

     He filed a federal civil rights lawsuit claiming that these actions constituted unlawful retaliation for his exercise of his First Amendment rights to free speech, and a denial of due process. The trial court dismissed the complaint as legally frivolous.

     A federal appeals court disagreed, at least as to the First Amendment claim. It noted that restrictions on ongoing inmate mail can be justified if they are reasonably related to an important government interest. Where good cause is shown, a prisoner's ongoing mail can be read without violating a prisoner's rights. And a challenged prison regulation or practice concerning such mail is constitutional if it promotes "one or more of the substantial government interests of security, order and rehabilitation."

     Mail can also be censored or rejected when based on legitimate facility interests of order and security. Accordingly, censorship of personal correspondence is justified when it includes threats, blackmail, contraband, plots to escape, discusses criminal activities, or circumvents prison regulations. But prisoner officials may not punish inmates "for statements made in letters to outsiders that do not impinge on these important governmental interests.

     In particular, they may not censor inmate correspondence, the court stated, merely to eliminate unflattering or unwelcome opinions or factually inaccurate statements. If they cannot censor unflattering statements made in letters to outsiders, they also may not punish a prisoner for the content of such letters.

     The prisoner, therefore, has stated a claim that the conduct which led to the alleged retaliation was constitutionally protected, and that the disciplinary action taken against him violated his clearly established constitutional rights. The appeals court also ruled, however, that the prisoner's due process claim failed to "raise an issue of constitutional magnitude."

     The imposition of disciplinary segregation by itself or the transfer to a more restrictive prison "does not implicate a liberty interest entitled to procedural due process protection."  The prisoner therefore could not utilize his lawsuit to challenge his reclassification or placement in segregation under the due process clause.

       Gandy v. Ortiz, No. 04-1225, 122 Fed. Appx. 421 (10th Cir. 2005).

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

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Prison guard was not entitled to summary judgment when he failed to deny that he knew of prisoner's medical problems but failed to take action to obtain medical care for him.

     A prisoner was injured by a blow to the head in a prison riot, and received medical attention at a regional hospital, but was left with head pain, convulsions, and one side of his body paralyzed. CT scans showed no brain damage and he was returned to his cell. During the subsequent six week period, his surviving family subsequently claimed, the prisoner was in considerable pain, was seriously disabled, and half-paralyzed so that he could not get about, and he "cried and screamed" in pain. The family, which filed a wrongful death lawsuit, claimed that a prison guard lieutenant in contact with the prisoner during that time period was aware of his medical problems, but did nothing to obtain medical care for him.

     After his family visited and pled with prison staff, he was provided with a wheelchair, and a local court ordered that he be provided with further medical evaluation and treatment. He was transferred to an infirmary at a prison hospital, where he was diagnosed with AIDS and toxoplasmosis, which is a parasitic infection. He subsequently died, with an autopsy finding that his cause of death was brain inflammation associated with AIDS.

     A federal trial court granted summary judgment for the defendants in the family's lawsuit, which asserted both civil rights claims and state law wrongful death claims.

     The appeals court upheld the ruling as to two of the defendant officials, given the lack of evidence that they had known of the prisoner's suffering yet failed to act to alleviate it. The appeals court also found that there was no evidence that these two defendants knew that there was an alleged continuing patterns of conduct by guards--specifically, of failures to report inmate medical needs--from which they then "averted their eyes."

     As to the prison guard lieutenant, however, "the story is different," the appeals court pointed out. He filed no separate statement of uncontested facts, but merely adopted the factual statements of the other defendants, which contained no denial of knowledge on his part. Since the plaintiff asserted that he did have knowledge of the decedent's medical condition, but did nothing to alleviate it, and the defendant did not deny such knowledge, there was, at least, an issue of fact precluding summary judgment.

     The argument that the guard was not a health care professional and therefore should not be expected to "parse symptoms," was rejected, since if he knew of "prolonged, manifest, and agonizing pain" being suffered by the prisoner and did nothing to advise others of this, the court could "hardly say it would be impossible to find deliberate indifference." The claims against the prison guard lieutenant, therefore, were reinstated for further proceedings.

     Alsina-Ortiz v. Laboy, No. 03-2611, 400 F.3d 77 (1st Cir. 2005).

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

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Federal statute and regulations on privacy of medical records -- requirements and exemptions from certain requirements for correctional facilities.

     Correctional facilities, whether housing convicted prisoners, pre-trial detainees, or some combination of the two, because they provide medical care and treatment to those incarcerated, and necessarily handle and access medical records and information, must be concerned with compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191.

       The U.S. Department of Health and Human Services has created a website containing information about compliance with medical records privacy standards imposed by federal statutes and regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The website contains fact sheets, training materials including PowerPoint presentations, a list of HIPAA-Related links, educational materials, and a list of answers to frequently asked questions about the rules and their applicability.

     The regulations implementing HIPAA are found at: http://www.hhs.gov/ocr/hipaa/finalreg.html and the full text of the statute is found at: http://aspe.hhs.gov/admnsimp/pl104191.htm

     HIPAA's regulations directly cover three basic groups of individual or corporate entities: health plans, health care providers, and health care clearinghouses. All correctional facilities most probably qualify as a covered "health care provider," which means a provider of medical or health services, and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business. Any organization that routinely handles protected health information in any capacity is in all probability a covered entity. In turn, the behavior of anyone in the covered entity's workforce is covered. Protected health information includes anything that "relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual."

     While the primary privacy concern of HIPAA was health information transmitted by or maintained in electronic media, the Privacy Rule also reaches data "transmitted or maintained in any other form or medium" by covered entities. That includes paper records, fax documents and all oral communications.

     A specific provision of HIPAA, Section 164.520(a)(3) however, exempts correctional facilities from providing prisoners with the notice of "privacy practices" otherwise required for patients under HIPPA: It says: "Exception for inmates. An inmate does not have a right to notice under this section, and the requirements of this section do not apply to a correctional institution that is a covered entity." Also of interest are: Section 164.512(f), of the regulations, Disclosures for Law Enforcement Purposes, which lists the situations where disclosures by covered entities to law enforcement is allowed without patient consent, and Section 164.528, Accounting of Disclosures of Protected Health Information, includes more exceptions that allow access to medical information by law enforcement.

     If your facility is a covered entity, however, while the privacy notice to inmates is not required, you still must comply with the requirements in the statute and its regulations concerning the disclosure to protected health care information to third parties, and may also be covered by some of the other HIPAA requirements, such as privacy training for personnel who may handle protected health care information, and the use of appropriate forms for the gathering and transmission of information. Failure to comply can result in significant fines.

     An article in Sheriff magazine recommended the following:

     "Sheriffs who are 'Covered Entities' under HIPAA are required to conduct covered transactions in standard HIPAA form by October 15, 2003 if they submitted a compliance plan by October 15 of 2002. The intent of the October requirement is for Covered Entities to communicate medical information securely via electronic transactions, similar to the way transactions are handled today in the banking industry."

     The article recommended that correctional facilities review their business operations to determine which HIPAA electronic transactions they need to use, assign a specific employee to have the responsibility and authority for HIPAA compliance, identify the health plans, clearinghouses and covered entities they deal with, and find out how they will be complying with HIPAA and what effects that will have on the correctional facility, as well as documenting their responses and commitments. It further recommended that a correctional facilities agreements with such plans, clearinghouses and entities be viewed by counsel so that the facility or agency fully understands its rights and responsibilities. Following that, facilities should "test your transactions. In addition to testing with Medicare, Medicaid and commercial payers, test your internal office systems."

     The article further recommended that an outside HIPAA assessment be considered, which could help ensure that the right data is being used and that the data is being formatted properly.

     Many agencies undoubtedly have already carried out all or most of these steps. Those who have not, for whatever reason, should consider doing so.

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Further proceedings ordered on pre-trial detainees' lawsuit claiming unconstitutional conditions of confinement because trial court improperly used Eighth Amendment cruel and unusual punishment rather than Fourteenth Amendment due process analysis in dismissing claims.

     Pre-trial detainees in a Delaware correctional facility appealed from summary judgment in favor of prison officials in their lawsuit claiming that the conditions of their confinement deprived them of liberty without due process of law in violation of the Fourteenth Amendment. A federal appeals court reversed the summary judgment, finding that the trial court improperly analyzed the plaintiffs' claims under the Eighth Amendment prohibition on cruel and unusual punishment, rather than under the due process of the Fourteenth Amendment.

     The challenged conditions included a practice of housing three detainees in cells intended and designed for one person (triple-celling), requiring some detainees to sleep on a mattress that must be placed on the cell floor adjacent to an open toilet.

     The appeals court noted that, under the due process clause of the Fourteenth Amendment, which creates the applicable legal standard for analyzing conditions of confinement claims of pre-trial detainees, pre-trial detainees should not be subject to "punishment," as they have not been convicted of any offense.

     To determine whether the challenged condition is punishment, a court must decide whether it is imposed for the purpose of punishment, or whether it is merely an "incident" of some other legitimate governmental purpose. If a restriction or condition is not reasonably related to a legitimate goal but instead is "arbitrary or purposeless," then a court can permissibly infer that the purpose is punishment, which may not be constitutionally inflicted upon detainees.

     Under some circumstances, serious overcrowding can result in conditions of confinement that amount to punishment of pre-trial detainees in violation of the due process clause of the Fourteenth Amendment, the court stated.

     In this case, however, the trial court stated that "In order to prevail on their claim that they are being punished, [the pre-trial detainees] must show that sleeping on mattresses on the floor deprived them of the 'minimal civilized measures of life's necessities'," relying on an Eighth Amendment analysis, and rejected that claim based on prior caselaw finding that having to sleep on a mattress on the floor does not constitute cruel and unusual punishment. While sleeping on the floor, the trial court stated, was not "ideal," since "prison overcrowding is now a fact of life," sleeping on the floor "is not a violation of the Eighth Amendment" as long as the plaintiffs were getting adequate food, shelter, and clothing.

     The appeals court found this analysis inapplicable, since it was aimed at determining whether punishment inflicted was "cruel and unusual," rather than whether the condition imposed was "punishment" at all, which is impermissible for pre-trial detainees.

     Hubbard v. Taylor, No. 03-2372, 399 F.3d 150 (3d Cir. 2005).

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

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Prisoner's federal civil rights lawsuit challenging his discipline as a violation of his First Amendment rights should not have been dismissed for failure to exhaust available administrative remedies. Federal appeals court rules that he did exhaust his administrative remedies when his appeal of his denied grievance was rejected as untimely. The Prison Litigation Reform Act's exhaustion requirement, the court holds, does not bar consideration of a prisoner's claims when his administrative appeal was denied on state law procedural grounds.

     A federal appeals court has held that a trial court erred in dismissing a prisoner's lawsuit for failure to exhaust all available administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e when the prisoner's administrative appeal was deemed time-barred and no further level of appeal remained in the state prison's internal appeals process. The court found that the denial of the administrative appeal on state procedural grounds did not bar the trial court from considering the prisoner's claims.

     The prisoner was placed in administrative segregation as punishment for alleged "inappropriate activity" with volunteer Catholic priests. As a condition of his release from administrative segregation, he was restricted from participating in certain "special programs," such as evening fellowship and Bible study sessions, as well as being prohibited from corresponding with a former prison chapel volunteer. He appealed the disciplinary action, but the appeal was rejected as time-barred because he had not filed it within fifteen working days. Six days later, he filed a second grievance contending that his appeal was in fact timely because he was appealing the continuing nature of his punishment, which was a series of continuing violations. This appeal was also rejected as untimely.

     The prisoner then filed a federal civil rights lawsuit claiming that the restrictions on his participation in the "special programs" violated his First Amendment free speech and free exercise of religion rights. He also claimed that the restrictions lessened the possibility of his eligibility for parole, and that prison officials had defamed him by alleging that he had "engaged in sexual relationships with Catholic volunteer priests."

     The trial court dismissed the lawsuit for failure to exhaust all of his available administrative remedies. Under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act, prisoners are barred from bringing lawsuits without first exhausting their administrative remedies.

     The federal appeals court held that, under the circumstances, the plaintiff prisoner did in fact exhaust all available administrative remedies, so that his lawsuit should not have been dismissed. As required under California law, the prisoner filed a grievance, and then filed an appeal with the Appeals Coordinator. The Appeals Coordinator exercised his discretion to screen out the appeal because it was not filed within 15 days of the disciplinary action, as required under the first step of the state's prison administrative appeals. The prisoner challenged that ruling with another appeal, asserting that the ongoing nature of his injury preserved the timeliness of his appeal, but this was also rejected.

     At that point, the appeals court found, the prisoner had exhausted his appeals because he could go no further in the prison's administrative system, so no remedies remained "available" to him. The failure to exhaust, the appeals court stated, bars a remedy in federal court if one is still "available" in the state's administrative system.

His administrative appeal was deemed time-barred and no further level of appeal remained in the state prison's internal appeals process. We also hold that the PLRA's exhaustion requirement does not bar subsequent judicial consideration of an exhausted administrative appeal that was denied on state procedural grounds.

     Ngo v. Woodford, No. 03-16042, 2005 U.S. App. Lexis 4809 (9th Cir. 2005).

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

     Editor's Note: Four other federal appeals court circuits have ruled on whether an untimely administrative appeal satisfies the PLRA's exhaustion requirements. The Sixth Circuit, in Thomas v. Woolum, No. 01-3227, 337 F.3d 720 (6th Cir. 2003), held that it does; the Third, Seventh, and Tenth held that it does not, in Spruill v. Gillis, #02-2659, 372 F.3d 218 (3d Cir. 2004) {PDF], Pozo v. McCaughtry, #01-3623, 286 F.3d 1022 (7th Cir. 2002), cert. denied, 537 U.S. 949 (2002), and Ross v. County of Bernalillo, No. 02-2337, 365 F.3d 1181 (10th Cir. 2004), respectively.

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Mere fact that twenty-two prior actions filed by prisoner had been dismissed did not suffice to show that he had suffered "three strikes" under the Prison Litigation Reform Act barring him from filing further lawsuits as a pauper unless he was in imminent danger of physical harm. Burden was on the defendants to show that at least three of these cases had been dismissed as frivolous, malicious, or for failure to state an assertable claim. Dismissed habeas petitions and actions filed while the plaintiff was in the custody of immigration authorities without facing criminal charges did not count as "strikes" under the rule.

     A California prisoner, acting as his own lawyer, and proceeding as a pauper, filed a federal civil rights lawsuit challenging the way in which prison officials managed the process of resolving inmate grievances.

     The trial court dismissed the lawsuit, ruling that the plaintiff prisoner, who had filed at least 22 prior lawsuits that were dismissed, had failed to show that he did not have three prior cases dismissed as frivolous, malicious or failing to state claims on which relief may be granted. Under the so-called "Three Strikes" rule of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(g). That rule provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

     A federal appeals court reversed, holding that when a defendant in a federal lawsuit challenges the right of a prisoner to proceed as a pauper under this "three strikes" rule, the defendant, rather than the plaintiff, is the party that bears the burden of producing evidence sufficient on the issue. Once the defendant produces such evidence, the burden then shifts to the plaintiff to show that the rule in question does not apply.

     The appeals court found that the mere fact that the prisoner had at least twenty-two prior lawsuits dismissed was insufficient, standing on its own, to shift the burden to the prisoner to show that the "three strikes" rule was inapplicable. The court noted that not all "unsuccessful" cases qualify as a "strike" under the rule. Rather, it must be shown that the basis for the dismissal was that the lawsuit was frivolous, or malicious, or failed to state a claim on which relief may be granted.

     The appeals court found that only one case reviewed by the magistrate judge plainly qualified as a strike because the docket record showed that it was dismissed for failure to state a claim. The magistrate judge, however, determined that four other cases counted as strikes without considering the underlying court orders or making an independent assessment of whether the prior cases were frivolous or otherwise met the requirements of the rule.

     Further proceedings were therefore required to make the necessary determination on the basis of a "more complete factual record."

     The appeals court also held that dismissals of actions brought while the plaintiff was in the custody of the Immigration and Naturalization Service (INS), now renamed the U.S. Citizenship and Immigration Services (USCIS), did not count as "strikes" within the meaning of the statute, so long as the detainee did not also then face criminal charges. A civil detainee, the court reasoned, is not a "prisoner" within the meaning of the PLRA.

     The appeals court also held, agreeing with the trial court, that dismissed habeas petitions do not count as "strikes" under the statute. Finally, it rejected the prisoner's argument that 28 U.S.C. Sec. 1915(g) was unconstitutional either on its face or as applied to him.

     Andrews v. King, No. 02-17440, 398 F.3d 1113 (9th Cir. 2005).

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

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Federal appeals court upholds dismissal of eight defendants from prisoners' excessive force lawsuit when the evidence showed that they did not come into physical contact with the plaintiffs during their extraction from their cells following disturbance and their subsequent transport to segregation unit. Jury's finding that excessive force was not used by remaining defendants also precluded a claim against the dismissed defendants for failure to intervene.

     Two prisoners in the Menard Correctional Facility in Illinois filed a federal civil rights lawsuit claiming that twelve prison guards and two supervisors, who are members of what is known as the "Orange Crush" tactical team at the facility, violated their Eighth Amendment right to be free from cruel and unusual punishment when the guards allegedly battered them during a cell transfer procedure.

     At the conclusion of the presentation of the prisoners' case to the jury, the trial judge granted judgment as a matter of law as to eight of the fourteen named defendants. The jury ruled in favor of the remaining defendants, finding that they had not used excessive force. A federal appeals court has upheld the trial judge's ruling as to the judgment on the eight defendants. The jury's ruling on the remaining defendants was not challenged on appeal.

      The case involved an incident occurring in one cellhouse where inmates started throwing cans, burning rags, light bulbs, bodily fluids and other liquids at officers, in apparent retaliation for the "strip out," or complete search, of a cell on the block. The violence continued throughout the day, escalating to near-riot proportions and resulting in an injury to an officer.

     When the two prisoners were informed that they would be removed from their cell and placed in segregation since the thrown can which injured the officer was allegedly thrown from their cell, one of them threw scalding water at the officers, hitting one of them.

     Officers on the scene used mace and called for backup, specifically the prison's tactical unit, known by its nickname, the "Orange Crush," because of the orange jumpsuits they wear while performing their duties. This team of corrections officers has undergone specialized training and is used to control unruly or violent inmates, including extracting violent or non-cooperative inmates from their cells and relocating them to other areas of the prison, such as the segregation unit.

     This team of twelve tactical team members was assembled in full riot gear, and assigned to transport the two prisoners. They encountered shouting, whistling, hollering and taunts, as well as a barrage of fluid and other objects being thrown at them. Two supervisory lieutenants were present to direct the team. The two prisoners were ordered to "cuff up," or to back up to the bars of the cell and place their hands behind their backs and through the bars so that officers could handcuff them.

     The prisoners claimed that they were "brutally beaten" by the officers while being transported to the segregation unit, while the defendants claimed that the force used was necessary to safely convey and transfer the prisoners.

     On the basis of the evidence presented at trial, the magistrate judge concluded that only five of the named defendants had actually been in physical contact with the plaintiffs, and that, therefore, the other eight defendants should be dismissed.

     Each of the remaining defendants testified that at no time did they kick, hit, knee, or in any way injure the plaintiffs, and did not see any other officer engage in actions that were not necessary to safely restrain and transport the prisoners. A nurse testified that one prisoner had some swelling on his face and shoulders following the transfer and had received stitches for a laceration on his head, and that the other prisoner had bruising and some minor abrasions on his back.

     The jury, after deliberating for less than 30 minutes, found in favor of the remaining defendants on both inmates' excessive force claims, answering special interrogatories that none of the force used was cruel and unusual punishment, while not covering the time period from when one of the prisoners was removed from a strip search room to his segregation cell. That plaintiff prisoner, however, failed to identify any particular officer who he claimed used excessive force against him during that time period.

     Upholding the dismissal of the eight defendants, the appeals court noted that the plaintiffs failed to establish that any of them violated either of their rights, or even that each and every one of them ever touched the plaintiffs. They also failed to prove that the defendants who did touch them used excessive force against them. Accordingly, the appeals court rejected the argument that the case should have been presented to the jury against the eight dismissed defendants on a theory of joint and several liability. Based on the evidence presented it " would not have been possible for a reasonable jury to find that all" defendants used excessive force against both prisoners. Some of the defendants, indeed, were not even present during some of the time frames when the prisoners claimed excessive force was used.

      The appeals court further rejected the plaintiffs' attempt to raise the argument that, although not all of the defendants used excessive force, the remainder of them were nonetheless liable for failure to intervene. And it found that even if such an argument were allowed, the jury's verdict on the issue of the force actually used foreclosed liability on that basis.

In order for there to be a failure to intervene, it logically follows that there must exist an underlying constitutional violation.

     In this case, the plaintiffs failed to establish an underlying constitutional violation that would allow them to prevail on a failure to intervene claim. As for the time period not covered by the jury's answers to the special interrogatories, the plaintiff prisoner "failed to identify any particular officer who harmed him as he was being transferred from the strip-search area to the segregation unit," preventing a finding of excessive force, and also barring "bystander" liability for failure to intervene.

     Harper v. Albert, No. 00-2758, 400 F.3d 1052 (7th Cir. 2005).

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

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Correctional officials acted properly in imposing discipline on prisoner who refused to obey order to take TB test on religious grounds. Detecting latent TB to prevent its spread was a legitimate penological interest and the discipline imposed was reasonably related to serving that interest.

     An Illinois prisoner claimed that his right to religious freedom was violated when he was disciplined for refusing, on purported religious grounds, to take a tuberculosis (TB test). An intermediate Illinois appeals court has upheld the dismissal of this claim.

     The prisoner refused to take an annual skin test for TB, known as a PPD test. In this test, a liquid is injected under the skin on the lower part of the arm, and a person who has a latent TB infection will probably have a positive reaction to the tuberculin. When he refused the PPD test, a discipline report was filed against him for disobeying a direct order. At the disciplinary hearing, he argued that the objected to the PPD test for religious reasons and offered to take an X-ray examination or sputum test instead. He was found guilty of the disciplinary violation and punished with three months change of status, three months of segregation, and three months loss of commissary and audio/visual privileges.

     The prisoner argued, in his lawsuit, that a state statute allowed him to refuse a TB examination if he objected to it on religious grounds, and that his right to religious freedom under the U.S. and Illinois State Constitutions were violated.

     The appeals court found that the statute the prisoner cited only applied to sanitarium districts, and not to the Department of Corrections. "The statutes do not prevent DOC from enacting more stringent rules for its inmates."

     The DOC had adopted an administrative directive, No. 04.03.101.II G, which provides that "Any offender refusing tuberculin skin testing shall be counseled by the facility medical staff as to the importance of the testing procedure. Any asymptomatic offender who persists in refusing shall be placed in segregation until such time as he or she submits to the testing procedure in accordance with Department Rule 504." DOC disciplinary rules include a disciplinary offense for failure to submit to medical or forensic tests, including refusal to submit to annual TB testing, but the prisoner was disciplined for disobeying a direct order instead, a separate offense.

     For purposes of the appeal, the appeals court assumed the sincerity of the plaintiff's religious objection to the TB PPD test.

      It noted that, under the rule in Turner v. Safley, 482 U.S. 78 (1987), when a prison rule arguably "impinges" on constitutional rights, it is valid if it is reasonably related to legitimate penological interests.

      Four factors are relevant to that determination:

(1) whether there is a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) whether there are "alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives."

     In this case, correctional officials asserted a legitimate penological interest in detecting latent TB, as it may become contagious at any time. While x-rays and sputum cultures will reveal active TB, but only the PPD test will indicate latent TB, according to the court. Further, if a prisoner is found to have latent TB, that prisoner may be monitored and given prophylactic medication, "but this medication has potential side effects and cannot be given to every inmate who refuses to take a PPD test."

     The appeals court noted that a majority of courts previously addressing the issue had found a rational relationship between this penological interest in preventing the spread of TB and either the forced administration of the test or the segregation of inmates who refuse to submit to it.

We agree that there is a rational relationship between the interest and DOC's coercive sanction of segregating an inmate until that inmate submits to the test. Segregating the inmate would allow DOC to monitor the inmate's health, possibly prevent the spread of TB, and coerce the inmate into taking the PPD test. We also agree that allowing prisoners to refuse a PPD test would present serious risks to the health of the prison population and that there are no alternatives to the PPD test for detecting latent TB.

     The appeals court noted that the prisoner was not charged with failure to submit to a medical test, and that his punishment was not to be segregated until he submitted to the test, but rather, he was punished for violating a direct order to take the test, and it was not clear that a PPD test would be administered after his three months of punishment ended.

That the punishment was administered to coerce plaintiff into taking the test or to monitor his health is also not clear. Latent TB can become active at any time but is mostly likely to become active in the first year, so the three months' segregation does not appear to reduce the risk of spreading TB.

    The appeals court found, however, that the punishment for violating the direct order was rationally connected to the interest of detecting latent TB. The problem of TB in prisons is "so great and potentially dangerous," the court reasoned, that the DOC "should be given wide latitude in enforcing the mandatory testing procedures."

      Prisoners only retain rights to religious freedom, the court stated, to the degree that they are not inconsistent with the legitimate penological objectives of the corrections system.

While DOC's coercive technique in this case is not in line with its stated policy, the punishment is still rationally related to the legitimate interest of detecting latent TB, as it may encourage plaintiff and others to submit to the PPD test. Thus, despite the fact that the punishment veered from the stated coercive techniques for dealing with a refusal to submit to TB testing, the DOC action in this case does meet the Turner standards.

     Cannon v. Mote, No. 4-04-0222, 2005 Ill. App. Lexis 212 (Ill. App. 4th Dist. 2005).

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Federal trial court properly granted judgment as a matter of law on federal civil rights claims and negligent training and supervision claims against Florida sheriff arising out of detainee's suicide after his requests to see a psychiatrist failed to be granted. Appeals court finds, however, that the trial court erred in also granting judgment for the sheriff on a state law vicarious liability negligence claim. Trial court acted within its discretion in excluding evidence of other suicides at detention facility, and testimony of plaintiff's suicide expert witness.

     A detainee at the Monroe County Detention Center in Florida committed suicide, and his estate sues the county sheriff, claiming that he was deliberately indifferent to the detainee's medical needs, that he was liable under Florida state law for negligent supervision, training and management of the facility's employees, and that he was vicariously liable under state law for the negligent failure of employees to prevent the suicide.

     The federal trial court granted judgment as a matter of law for the sheriff on all claims after the plaintiff presented its case at trial. The plaintiff appealed from that ruling, as well as from the trial judge's rulings excluding evidence of other suicides occurring in the detention center, and the testimony of a suicide expert retained by the plaintiff.

     The appeals court upheld the rulings on the federal civil rights and negligent training and supervision claims, as well as finding that the trial court acted within its discretion in excluding both evidence of other suicides at the detention center and the testimony of the plaintiff's expert. But it also concluded that the trial court erred in granting judgment as a matter of law on the vicarious liability negligence claim.

     The detainee was arrested for auto theft and was placed into the general population at the detention center. The next morning, he submitted a written request to see a psychiatrist. A deputy observed that the detainee seemed nervous and appeared to be having an anxiety attack. He was taken to medical personnel the next day when he complained of chest pains, but the deputy allegedly did not inform them of the detainee's apparent anxiety or request to see a psychiatrist. He was placed on sick call and returned to his unit, where he was instructed to lie down.

     The prisoner was subsequently transferred to a disciplinary unit for allegedly making harassing phone calls to witnesses. Personnel there were allegedly not told about his request to see a psychiatrist He was again observed to be nervous and anxious, and was returned to medical personnel when he was found bent over on his knees on the floor of his cell, apparently having trouble breathing. When he was returned to his cell, he made a second written request to see a psychiatrist, but allegedly told a deputy that "the next scheduled time would be fine," in response to a question as to whether this was something that "needs to be done now."

     The following morning, the detainee was discovered in his cell, having hanged himself from a bedsheet a few minutes after an hourly check on him. Attempts to revive him failed, and he died two days later in the hospital, when his family decided to discontinue life support.

     The trial court ruled that evidence of five other suicides occurring in the facility within a 23-month period--three prior to the detainee's suicide, and two occurring afterwards, were not relevant to the defendant sheriff's ability to foresee the suicide of the decedent or to the issue of whether the sheriff acted with complete indifference to the decedent's medical needs.

     The appeals court noted that under controlling case precedents, federal civil rights liability requires that the defendant have notice of the "suicidal tendency of the individual whose rights are at issue in order to be held liable for the suicide of that individual. The other suicides that occurred in the facility "are in no way probative" of the sheriff's knowledge of the decedent's suicidal tendencies, and therefore were not relevant to the civil rights claim.

Whether the occurrence of five other suicides within a twenty-three month span is relevant to [the prisoner's] negligence claims is a closer question. However, we reiterate that we review a trial court's evidentiary rulings only for abuse of discretion, and "a district court enjoys considerable leeway in making these determinations."

     The plaintiff did not establish that six suicides in 23 months was an unusually high rate for a facility like the MCDC, based on such factors as the "proportion of mentally and emotionally unstable inmates." The failure to account for the factors "pertinent" to a facility's suicide rate, the court found "substantially diminishes, if not eviscerates" the probative value of the evidence of the other suicides. Further, the two suicides occurring after the detainees "surely could not" have put the sheriff on notice of any deficiencies in the facility's procedures for detecting or addressing suicide risks prior to the suicide at issue.

     The appeals court also upheld the exclusion of the offered expert witness testimony. The offered expert, who was described as an expert in suicide prevention in correctional facilities was going to testify after what procedures facilities should enact for suicide prevention as well as how they should follow those procedures, along with "what was wrong" with the procedures and policies of the MCDC and the "fact with a relatively small population that is a lot of suicides in a two year period and something is intrinsically wrong with the system." The trial court responded that that was "telling the jury how to rule," which "may be invading the province of the jury."

     The trial court's concerns were whether the expert possessed any specialized knowledge not within the general understanding of the jury and whether his opinions were anything that the plaintiffs could not just argue to the jury themselves.

     The appeals court found that some of the opinions expressed in the expert's report concerned matters that "arguably lie within the understanding of the average lay person, making expert testimony unnecessary," while "others are unsubstantiated by any factual basis," so there was no showing that they would be "helpful to the jury."

     As for the federal civil rights claim against the sheriff in his official capacity, there was no showing that the sheriff had any subjective knowledge of a risk of serious harm to the decedent. There was no evidence of a previous suicide attempt or that the prisoner had ever been considered a suicide risk. Whether the failure of correctional employees to identify the detainee as a suicide risk amounted to negligence on their part, the court noted, was a totally different question.

Deliberate indifference, in the jail suicide context, is not a question of the defendant's indifference to suicidal inmates or suicide indicators generally, but rather it "is a question of whether a defendant was deliberately indifferent to an individual's mental condition and the likely consequences of that condition." For this reason, "absent knowledge of a detainee's suicidal tendencies, [our] cases have consistently held that failure to prevent suicide has never been held to constitute deliberate indifference." Thus, even if [the prisoner] had established the Sheriff's deliberate indifference toward suicidal inmates in general -- and, on this record, precious little evidence points to such a conclusion -- this would not suffice to demonstrate the foreseeability of [the] suicide and to hold the Sheriff liable under § 1983.

     The appeals court found that the claim that the suicide was a foreseeable consequence of the sheriff's alleged negligent failure to train and supervise detention center employees was barred by sovereign immunity under Florida state law, because such supervision and training was a "discretionary function," including the selection of what subject matter to include in training.

     The evidence in the case, however, the appeals court found, was sufficient, under Florida law, to support a jury verdict in the plaintiff's favor on the claim that the sheriff was vicariously liable for the negligence of employees in failing to take appropriate steps to prevent the suicide. The court noted that the parties did not dispute that, under Florida law, the sheriff could be held vicariously liable if employees were found to have acted negligence, and that sovereign immunity did not bar such a claim. A county's treatment of an individual inmate in its custody is an "operational function," rather than a discretionary function, for which Florida has waived governmental immunity.

     Under Florida law, correctional officers owe persons in their custody a duty to use reasonable care for their safety.

     The plaintiff's vicarious liability claim challenges the manner in which the facility's procedures were implemented through individual corrections officers, rather than challenging the procedures themselves, the selection of which was a discretionary matter.

     In a suicide case, the issue is whether the prisoner's self-inflicted harm was reasonably foreseeable, which is an issue of fact for the jury. The appeals court disagreed with the trial court's assessment that there was insufficient evidence to support a possible jury finding of foreseeability in this case.

     While the detainee never threatened or mentioned suicide, there was evidence of two written requests to see a psychiatrist, one on each of the two days immediately preceding his suicide, and in the second note, the detainee stated that he was "mentally sick" and asked to see a psychiatrist "as soon as possible," but he was never seen by any mental health professional, despite these requests and deputies' observations of him as being nervous and anxious.

     These facts were sufficient so that reasonable people could reach differing conclusions as to the foreseeability of the suicide and the negligence of employees in failing to prevent it. Accordingly, the issue should have been submitted to the jury.

     Cook v. Sheriff of Monroe County, No. 03-14784, 2005 U.S. App. Lexis 4014 (11th Cir. 2005).

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Alleged county jail policy of keeping all pretrial detainees housed in administrative segregation completely naked violated their due process and Fourth Amendment rights, and was not justified by concerns about suicide and guard safety. Federal court was also troubled by the use of guards of the opposite gender to remove clothing from such detainees. Sheriff was, however, entitled to qualified immunity from liability, as the law on the subject was not clearly established at the time the alleged policy was implemented.

     After a county jail experienced an incident in which a detainee in administrative segregation committed suicide, hanging himself with a standard-issue orange jail jumpsuit he was wearing, the facility instituted a policy under which uncooperative and disruptive detainees were placed in administrative segregation and have all their clothing removed before entering the cells. The suicide had involved the detainee wedging his jail uniform into the tiny space between the cell door and the doorframe, and using it to hang himself.

     Twenty-three individuals subjected to this policy claimed that it violated their Fourth Amendment and due process rights to keep them completely naked during the entire time they were in administrative segregation.

     A federal trial court has agreed with the plaintiff prisoners, but found that individual defendants, including the county sheriff, were entitled to qualified immunity from liability on federal civil rights claims, since the law on the subject was not clearly established in 1999-2001, the years the policy was allegedly implemented. It further found that the sheriff was absolutely immune from state claims concerning the policy under Michigan law.

     The policy of removing all clothing from pretrial detainees placed into administrative segregation violated due process because it was an "exaggerated" response to the county's concerns about detainee suicide and the safety of guards, and was carried out without a requirement of any articulable suspicion that a particular detainee might be suicidal or possess weapons or contraband.

     The court also found that it constituted an unreasonable seizure because the "scope" of the intrusion was substantial, and the use of guards of the opposite gender, in some instances, to forcibly remove the detainees' clothing, was not justified by the jail's security and safety concerns.

     The trial court also declined to issue an injunction against the practice. The county asserted, before the court, that the policy was no longer followed, and that it was now offering paper "suicide" gowns to detainees in administrative segregation. Even if the practice of placing some detainees into the cells naked still continued, however, the court found that the individual plaintiffs were no longer confined, and there was no showing that they anticipated that they would engage in conduct that would subject them to arrest and subject them to placement in administrative segregation in the jail again.

     Rose v. Saginaw County, #01-10337, 353 F. Supp. 2d 900 (E.D. Mich. 2005).

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Inmate alleged facts sufficient to assert a claim for a violation of his Eighth Amendment rights by excessive exposure to second hand tobacco smoke in prison, so trial court improperly dismissed his civil rights lawsuit.

     A Tennessee prisoner claimed that his Eighth Amendment rights had been violated by correctional officials' deliberate indifference to his exposure to high levels of environmental tobacco smoke (ETS) at two facilities where he had been incarcerated.

     He is currently an in the Turney Center Industrial Prison (TCIP) in Only, Tennessee, and asserted that he is allergic to tobacco smoke and is housed in a non-smoking unit. He also spent time at the Middle Tennessee Reception Center (MTRC) in Nashville, Tennessee (subsequently renamed the Charles Bass Correctional Complex). His federal civil rights lawsuit against the Tennessee Department of Corrections and more than forty individual officials claimed that the defendants violated the Eighth Amendment by smoking in the non-smoking inmate housing areas at TCIP and MTRC; allowing inmates to smoke in the non-smoking areas and providing them with tobacco; placing smoking and non-smoking prisoners in the same cells; and permitting smoking in the general areas of the prisons. He also alleged that a corrections officer retaliated against him in violation of the First and Fourteenth Amendments by refusing to enforce the prison's no-smoking policy and deliberately exposing him to high levels of smoke.

     Defendants at the MTRC were dismissed because the prisoner failed to demonstrate that he had exhausted available administrative remedies as to them. The trial court also dismissed the other Eighth Amendment claims, finding that the prisoner had failed to state a claim upon which relief could be granted. It did not address the retaliation claims.

     The trial court reasoned that the prisoner failed to allege specific facts showing deliberate indifference by the individual defendants, and that the fact that the facilities have "non-smoking pods" reflected a no-smoking policy which is inconsistent with "deliberate indifference."

     A federal appeals court disagreed. It noted that the prisoner alleged that he had been subjected to excessive levels of smoke "at the hands of" both staff and other inmates, and that the TCIP ventilation system "merely re-circulates smoke-filled air." He also "substantiated" that he suffers from ETS allergy with medical documentation showing that and establishing that smoke causes him sinus problems and dizziness. In fact, on several occasions, medical staff recommended that he had a non-smoking cell partner, and on at least one occasion recommended that he be placed in a non-smoking unit. These facts, the court found, alleged a medical condition sufficient to satisfy the "objective component" of the legal test for an Eighth Amendment violation via exposure to ETS.

     As for the "subjective component" of deliberate indifference to a serious medical condition, the court found that there were indications in the complaint and its attached exhibits that prison officials were aware of the prisoner's allergy, and that officers at TCIP smoked and allowed prisoners to smoke in the non-smoking units. Indeed, the complaint was "replete with specific examples of such disregard."

     While the plaintiff filed grievances concerning ETS, "apparently, none of the grievances yielded any affirmative responses" from correctional officials. One such grievance, for instance, requesting a cell change in order to obtain a non-smoking cellmate was allegedly denied on the basis that the prisoner was entitled to "only one cell change each year." The appeals court rejected the trial court's opinion that seemed to suggest that the "mere existence" of non-smoking pods would "insulate a penal institution from Eighth Amendment liability where, as here, a prisoner alleges and demonstrates deliberate indifference to his current medical needs and future health."

     The dismissal of the Eighth Amendment claims, therefore, was erroneous, the appeals court concluded. Because the trial court did not address the retaliation claim in its orders, the appeals court found that it had "no decision to review" on that issue, and merely remanded that claim to the trial court. In the prisoner's retaliation claim, he asserted that a corrections officer responded to the prisoner's comment on her alleged failure to enforce the no-smoking policy by ordering him to gather his belongings because she was having him "locked up and moved out of her pod," commenting that she was tired of hearing him complain about smoke. He subsequently spent a day in segregation and was then placed in a cell with a "chain smoker."

     The appeals court also granted the prisoner's request for an appointed lawyer, and ordered that, upon remand, the trial court also address the retaliation claim as well as the reinstated Eighth Amendment claims.

     Talal v. White, No. 03-6584 2005 U.S. App. Lexis 5127 (6th Cir. 2005).

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Corrections officer did not violate male prisoner's constitutional right to privacy in his genitals by carrying out a "routine" strip search during the intake process, even with the presence of two female nurses. Medical personnel routinely examine patients of the opposite sex and this practice does not violate their rights.

     When a male prisoner first arrived at a Virginia state prison he was being transferred to, he was directed by a corrections officer to strip out of his clothes during a routine search. Two female nurses were allegedly present in the room when he was stripped and searched, having already been present there for the purpose of carrying out a routine medical examination of the prisoner.

     He filed a federal civil rights lawsuit, asserting, among other claims, that this strip search was "abusive" and violated his right to privacy in his genitals.

     The federal trial court rejected these claims. It noted that "most courts" have "condemned" strip searches which are conducted by prison personnel of the opposite sex, except in the "most extreme of circumstances," but that courts "do not" find strip searches conducted by medical personnel of the opposite sex to be similarly "reprehensible."

     The court cited a prior decision, Skurstenis v. Jones, #00-10122, 236 F.3d 678 (11th Cir. 2000), holding that it was not inappropriate for medical personnel to conduct strip searches on inmates of the opposite sex. Additionally, while other courts had not directly addressed the issue of whether strip searches, including rectal searches, performed on inmates by medical personnel of the opposite sex are constitutional, they failed to raise a privacy concern in such cases. See, for instance, Laughter v. Kay, 96-C-579, 986 F. Supp. 1362 (D.Utah 1997) (describing that a male doctor performed a rectal search on a female inmate, but not raising an issue as to whether the inmate's right to privacy had been violated).

     The court surmised that the "dearth of cases" on the issue of strip search by medical personnel of the opposite sex, "suggests that strip searches conducted on inmates by medical personnel of the opposite sex do not violate prisoners' constitutional rights."

     During the search in question, the prisoner claims that he was made to "squat and cough," and that he then "informed" the corrections officer that the two nurses were present, to which the officer responded that it would be "nothing that they never seen."

     Some prior cases had found the involuntary exposure of a female prisoner's genitalia to male guards violated privacy rights, see Forts v. Ward, 77 Civ. 1560, 471 F. Supp. 1095 (S.D.N.Y. 1978) (presence of male guards was unnecessary when female prisoner undressed for a medical examination), and Lee v. Downs, 79-6641, 641 F.2d 1117 (4th Cir. 1981) (female prisoner had a "special right of privacy" in her genitalia which was violated by their involuntary exposure to male guards).

     In this case, though, the court pointed out, there was no claim that female guards or other female prison personnel were present, but only two qualified female nurses. Indeed, rectal searches are often distinguished from regular strip searches and are required to be conducted by trained medical professionals, so that the presence of nurses during a routine anal search is "common, if not necessary."

     Male and female medical personnel, the court found, customarily examine individuals of the opposite sex, and behavior of that nature has not been found to be a constitutional violation. Ultimately, the prisoner failed to notify either the nurses or the officer that he did not want to be examined by or searched in the presence of the female nurses, and if he had a "special sensitivity" to this, it was "his duty" to notify them. Under the circumstances, no violation of his rights took place.

     Jackson v. Wiley, 352 F. Supp.2d 666 (E.D. Va. 2004, affirmed per curiam, 103 Fed. Appx. 505, 2004 U.S. App. Lexis 15198 (4th Cir).

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Defenses: Eleventh Amendment Immunity

     Muslim prisoner's federal civil rights lawsuit against state correctional authorities in their official capacity, claiming that they violated his right to religious freedom and equal protection of law by failing to provide him with ritually slaughtered meat while providing kosher meals to Jewish inmates was barred by Eleventh Amendment immunity. His lawsuit against the defendants in their official capacity was, in essence, a lawsuit against the State itself, and the State of Kansas had not waived its Eleventh Amendment immunity. The prisoner failed to sue the defendants, the Secretary of the state Department of Corrections, and the warden, in their individual capacities. Johnson v. Simmons, No. CIV.A.02-3020, 338 F. Supp. 2d 1241 (D. Kan. 2004).

DNA Tests and Databases

     Georgia Department of Corrections did not violate either the U.S. or Georgia state constitutions by compelling incarcerated prisoners convicted of felony to submit saliva samples for purposes of a DNA database. Padgett v. Donald, No. 03-16527, 2005 U.S. App. Lexis 3647 (11th Cir. 2005). [PDF]

Drugs and Drug Screening

     Disciplinary conviction of prisoner for the unauthorized use of controlled substances was sufficiently supported by correctional officer's testimony that he collected prisoner's urine sample and kept the sample secured and in his possession, preserving the chain of custody prior to testing. Saif'Ul'Bait v. Goord, 788 N.Y.S.2d 712 (A.D. 3d Dept. 2005). [PDF]

     A policy of random drug testing, when applied to an employee of the Florida Department of Juvenile Justice who worked in "long-range" planning, was unconstitutional since there was no special need for sobriety on his part, such as protection of juveniles or public safety. Wenzel v. Bankhead, No. 4:03 CV 403, 351 F. Supp. 2d 1316 (N.D. Fla. 2004).

Inmate Funds

     Kansas state regulation imposing a $25 monthly supervision fee on parolees and prison officials' deduction of that amount from prisoner's inmate account did not violate due process rights under the Fifth or Fourteenth Amendment. Taylor v. Sebelius, No. CIV.A. 04-3063, 350 F. Supp. 2d 888 (D. Kan. 2004).

Inmate Property

     A Washington state Department of Corrections rule which imposed a charge on prisoners for the shipping of their personal property when they were transferred to a new facility violated a state statute requiring that an inmate's personal property be delivered to the facility in which they were incarcerated. Burton v. Lehman, No. 74731-8, 103 P.3d 1230 (Wash. 2005).

Mail

     State prison's policy of opening and inspecting prisoners' legal mail outside their presence in order to detect presence of contraband, particularly anthrax, was a violation of their First Amendment rights, but defendant officials were entitled to qualified immunity. Because of the "uncertainties" created by terrorist attacks on September 11, 2001, reasonable prison officials could have been unclear about the fact that their conduct violated the prisoners' rights. Allah v. Brown, No. CIV. 02-5298, 351 F. Supp. 2d 278 (D.N.J. 2004).

Medical Care

     County sheriff could not be held personally liable for alleged deliberate indifference to denial of medical care to pre-trial detainee for lithium poisoning when there was no evidence that he was personally involved in the denial or that he did anything in his supervisory capacity that resulted in or caused the denial. Quint v. Cox, No. 03-3227, 348 F. Supp. 2d 1243 (D. Kan. 2004).

     Maine prisoner was not required to show compliance with a state Health Security Act, 24 M.R.S.A. Secs. 2853, 2903, requiring that claims of medical malpractice be submitted to a pre-litigation medical screening panel prior to being filed with a court when he was not asserting any state law malpractice claim, but only a federal civil rights claim for alleged deliberate indifference to his serious medical needs under the Eighth Amendment. Faulkingham v. Penobscot County Jail, No. CIV. 04-48, 350 F. Supp. 2d 285 (D. Me. 2004).

     A prison doctor's decision to have a pre-trial detainee taper off from the use of one prescription drug (Xanax) and start to take another (Imipramine) instead was not deliberate indifference to the detainee's serious medical needs. The risk of serious side effects from doing this was "statistically slight," and the doctor was not on duty on the night that the detainee experienced withdrawal symptoms prior to having a seizure and falling while in the pill call line, suffering resulting head injuries. Burdette v. Butte County, No. 03-15840, 121 Fed. Appx. 701 (9th Cir. 2005).

Parole

     Inmate of halfway house had no due process right to a disciplinary hearing before a facility employee reported his alleged violations of the conditions of his parole to parole authorities. Malena v. Richard, No. 04-10663, 117 Fed. Appx. 355 (5th Cir. 2004). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     Despite a prisoner's "poor English" and "limited education," his failure to comply in a timely manner with the requirements of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e that he exhaust available administrative remedies would not be waived, since his previous federal civil rights lawsuit had been dismissed for the same reason, and his access to the grievance appeals process had not been obstructed. A prisoner, the court ruled, cannot attempt to circumvent the requirement in the Act that they exhaust available administrative remedies before filing a lawsuit by simply waiting to bring their lawsuit until their administrative remedies are time-barred. Martinez v. Williams, No. 04 CIV.1938, 349 F. Supp. 2d 677 (S.D.N.Y. 2004).

Prison Rules and Regulations

     A disciplinary rule which prohibits prisoners from leading or participating in work-stoppages, sit-ins, or other actions deemed detrimental to institutional order was not improperly vague when used to punish prisoner who orchestrated a protest over some inmates being prevented from going to a religious service. Garrett v. Goord, 788 N.Y.S.2d 461 (A.D. 3rd Dept. 2005). [PDF]

Prisoner Assault: By Inmates

     State prison officials were not liable for failure to protect a prisoner against an attack by another inmate, despite knowledge of past confrontations between the two, when the attacked prisoner failed to report assailant's alleged recent statements about him. Defendant officials had no reason to anticipate this particular assault. Hewes v. Magnusson, No. CIV.03-106, 350 F. Supp. 2d 222 (D. Me. 2004).

Prisoner Assault: By Officers

     When a prisoner admitted that he refused to comply with an officer's requests, the officer's pushing against the prisoner's face with his hand for the purpose of forcing him into his cell was not an excessive use of force. Cain v. Ambriz, No. 04-40632, 114 Fed. Appx. 600 (5th Cir. 2004). [PDF]

     Prisoner's federal civil rights lawsuit against prison guards, claiming that they used excessive force against him, was barred by his prior disciplinary conviction of assault and resisting the guards arising out of the same incident. An award of damages in the prisoner's lawsuit, which was based on the assertion that he had not physically resisted the guards, would necessarily call into question his disciplinary conviction, which had not been set aside, so his lawsuit was barred under the rule stated in Heck v. Humphrey, 512 U.S. 477 (1994). Wooten v. Law, No. 04-1159, 118 Fed. Appx. 66 (7th Cir. 2004).

Prisoner Discipline

     Prisoner's due process rights were not violated by refusal to allow testimony, at his disciplinary hearing, about why another prisoner sent money to the prisoner's accomplice, when this would be irrelevant to the charge that he attempted to "traffic" with prison staff members by offering a guard $250 to bring him tobacco, alcohol, and other contraband. Thomas v. McBride, No. 04-1810, 118 Fed. Appx. 977 (7th Cir. 2004).

     Misbehavior report concerning inmate's statements was insufficient to constitute substantial evidence of his violation of a rule prohibiting making threats, because whether the inmate said that there would be "serious bloodshed," or merely "serious problems" if his cellmate was not removed, this was not specific enough to constitute a threat. There was no evidence to refute the prisoner's assertion that he merely intended his statement as a plea for assistance, and that the statement did not indicate that he would be the one causing any harm. Allen v. Goord, 788 N.Y.S.2d 511 (A.D. 3d Dept. 2005). [PDF]

     Wisconsin statute which limits review by that state's courts of disciplinary proceedings against Wisconsin inmates confined in other states did not violate equal protection of law. Wisconsin court therefore properly refused to review disciplinary proceeding against Wisconsin prisoner confined in Minnesota when he failed to seek judicial review in Minnesota or to show that judicial review was unavailable in Minnesota. State ex rel. Myers v. Swenson, No. 03-2406, 691 N.W.2d 357 (Wis. App. 2004). [PDF]

Prisoner Transfer

     Michigan prisoner had no protected liberty interest concerning not being transferred to another facility when the transfer would not cause any atypical and significant hardship to him. The plaintiff prisoner also failed to show that his transfer was based on race or religious discrimination. White v. Phillips, No. 03-2442, 118 Fed. Appx. 1 (6th Cir. 2004).

Prisoner Restraint

     Correctional officer did not use excessive force in using restraints to keep prisoner seated in wheelchair while escorting him to optometrist when prisoner was repeatedly moving himself between the wheelchair and another seat in the doctor's waiting room. Munera v. Metro West Detention Center, No. 02-23612-CIV, 351 F. Supp. 2d 1353 (S.D. Fla. 2004).

Religion

     The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Sec. 2000cc-1, does not create a cause of action against the federal government or its agencies, so the plaintiff prisoner had no claim against federal prison authorities for allegedly depriving him of kosher meals in alleged violation of his right to practice his religion. Additionally, there is no such entity as the "U.S. Department of Corrections," but even if the prisoner meant to sue the federal Bureau of Prisons, he had no viable claim under the statute he cited. Yerushalayim v. U.S. Dep't of Corrections, No. 03-0076, 374 F.3d 89 (2d Cir. 2004). [PDF]

     Correctional facility did not violate a Catholic prisoner's freedom of religion by failing to provide him with "religious meals" of fish and unleavened bread on Ash Wednesday, Good Friday, and all Fridays during Lent. Evidence showed that Catholic Church only required that he refrain from eating meat on those days, and did not necessitate the eating of fish and unleavened bread. The facility offered the prisoner meatless meal options for those days, which adequately met the requirements of his religion. Cape v. Crossroads Correctional Center, No. 03-172, 99 P.3d 171 (Mont. 2004).

Visitation

     New York prisoner incarcerated for the murder of his first wife, who married his current wife prior to his incarceration, was entitled to further proceedings on his request to participate in a "family reunion" program with his wife and daughter, when no reason or factual basis was provided for the denial of his request. Bierenbaum v. Goord, 787 N.Y.S.2d 438 (A.D. 3d Dept. 2004). [PDF]

     City of New York and its Department of Corrections had no special duty of care to protect visitors to the city jail against the risk of assault by inmates, mandating dismissal of visitor's personal injury lawsuit against city. Santana v. City of New York, 787 N.Y.S.2d 651 (N.Y. City Civ. Ct. 2004).

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     Annual Reports: 2005 Corrections Briefing Report. Kansas Department of Corrections (January 2005, 166 pgs). [PDF].

     Publications: 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 the Office of Juvenile Justice and Delinquency Prevention's (OJJDP) 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)

     Statistics: Illinois Department of Corrections Year 2004 Statistical Data. [PDF]

     Website: National commission to examine U.S. prison conditions. The Commission on Safety and Abuse in America's Prisons, at the website, solicits the submission of "accounts from people who have been incarcerated or who have worked in prisons or jails." It also has a registration form enabling persons to receive emailed updates on the work of the Commission and its findings. The Commission's website states that it is "a national effort to clarify the nature and extent of violence, sexual abuse, degradation, and other serious abuses and safety failures in prisons and jails throughout the United States, and also the consequences for prisoners, corrections officers, and the public at large. The Commission formed in February 2005. After a year of inquiry and open hearings, it will offer recommendations for operating safer and more humane correctional institutions." The Commission is co-chaired by former United States Attorney General Nicholas de B. Katzenbach, who was appointed by President Johnson; and the Honorable John J. Gibbons, former Chief Judge of the Third Circuit Court of Appeals, who was appointed by President Nixon.

     Reference:

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

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