FEATURED CASES

WITH LINKS TO THE OPINIONS

Requiring prisoner who had filed numerous frivolous grievances to have his grievances screened by a grievance coordinator for frivolousness before allowing them to be filed did not violate his First Amendment rights or deny him access to the courts. No constitutional right to "unfettered access" to prison grievance process.

     A Michigan prisoner who had filed numerous frivolous grievances at the facility was placed on "modified access status," meaning that he could only file a grievance by first contacting the "First Step Grievance Coordinator" for the proper grievance form. Only if the coordinator determined that he had a viable claim, would he be given the form, and the grievance would then proceed through the normal grievance process.

     If the coordinator did not agree that the prisoner had a viable claim, or if he filed a grievance without first having it screened by the coordinator, his claim would not be heard, and his period of modified access status would be extended. The day after his most recent modified access status was to expire, he allegedly filed 59 grievances with the facility's grievance coordinator. Each of these was allegedly returned to him stamped with: "This grievance is being returned to you unprocessed for violation of modified access status. A request for a 30 day extension of your status has been submitted for this violation."

     The warden subsequently extended the modified access for a period of one year, based on his having submitted 59 grievances within a three-day period. The prisoner filed a federal civil rights lawsuit claiming that these actions violated his First Amendment rights, deprived him of access to the court system, since he would be unable to exhaust administrative remedies before filing a lawsuit, and that the extension of his modified access status was arbitrary.

     A federal appeals court upheld the dismissal of that lawsuit.

     The court held that the prisoner had no constitutionally protected right that was violated by the requirement that his grievances be screened by the coordinator. There is no First Amendment right to "unfettered access" to a prison's grievance procedures. This procedure did not mean that he was unable to file non-frivolous grievances or that they would not be properly heard. The court rejected the argument that the procedure would "chill" a person of reasonable firmness from filing legitimate grievances and it noted that the plaintiff was certainly not "chilled" as he did attempt to file many grievances during the time when he was on modified access status.

     The court also rejected the argument that the screening process prevented the prisoner from exhausting available administrative remedies as required prior to filing suit, since if the coordinator improperly dismissed a non-frivolous grievance as frivolous, that would be the end of the available administrative remedies on that grievances, so that a court would have had jurisdiction to hear a related federal lawsuit.

     Finally, the court held that the prisoner had no constitutional right to a detailed opinion from the grievance coordinator as to why each of his particular grievances was deemed to be frivolous.

     Walker v. Michigan Department of Corrections, #04-1347, 128 Fed. Appx. 441 (6th Cir. 2005).

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California health care manager was not entitled to qualified immunity in lawsuit by prisoner with Hepatitis C claiming that a one year delay in providing a liver biopsy after it was approved constituted deliberate indifference to his serious medical needs. If the facts were as the prisoner claimed, this action would violate clearly established law.

     The health care manager of a California prison appealed from a trial court's denial of his motion for summary judgment on the basis of qualified immunity in a lawsuit by a prisoner claiming deliberate indifference to his serious medical needs in denying and delaying his treatment for Hepatitis C (HCV).

     The defendant had renewed his motion for qualified immunity, claiming that new controlling law entitled him to it, specifically Saucier v. Katz, 533 U.S. 194 (2001). In that case, the U.S. Supreme Court clarified the legal analysis of qualified immunity as a defense from suit.

     When a defendant claims qualified immunity, a trial court is required to make two separate determinations--the first being the "constitutional inquiry," asking whether the facts alleged show that the conduct violated a constitutional right when taken in the light most favorable to the plaintiff. If that question is answered positively, then the court must turn to the "qualified immunity inquiry," asking whether the right was clearly established. If it was not, qualified immunity should be granted. The appeals court noted that, while Saucier considered qualified immunity in the context of the Fourth Amendment, its analysis also applies in Eighth Amendment cases.

     After performing that analysis, the appeals court stated, it found that the trial judge did not err in finding that the disputed facts, viewed in the light most favorable to the plaintiff prisoner, created a trial issue of fact as to whether the defendant was deliberately indifferent to his serious medical needs in denying and delaying his treatment for Hepatitis C.

     In this case, while the defendant "approved" a liver biopsy, this treatment was delayed for over a year. While the last half of that delay was not directly attributable to the defendant, since the prisoner was then transferred from the facility, the court found that prior case law suggested that such a delay established a constitutional violation. It cited Broughton v. Cutter Labs, 622 F.2d 458 (9th Cir. 1980), acknowledging the possibility that a delay of only six days in treating hepatitis could be enough to support a claim of deliberate indifference to a prisoner's medical needs, as well as Hunt v. Dental Dept., 865 F.2d 198 (9th Cir. 1989) (finding a three-month delay of treatment to be deliberately indifferent in light of serious dental problems and repeated complaints from a prisoner).

     The issue of whether long liver biopsy waiting lists made it necessary for the defendant to violate the terms of guidelines in a prior case, Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), which mandated a biopsy within six weeks of a request, the court found, is a triable issue of fact. Assuming that the prisoner's version of the facts is correct, the court found, the defendant violated established law by failing to ensure that he received a liver biopsy in a timely manner.

     There were other genuine issues of fact in the case in dispute, including whether the defendant or his "proxy," another doctor, was responsible for certain actions, and whether the prisoner met the criteria for treatment, including whether the prisoner complied with other treatment regimens, a possible ground for exclusion from Alpha-Interferon treatment the prisoner contended that he should have received.

     As for the issue of the second inquiry, the "qualified immunity" inquiry, the court found that the defendant had every reason to believe that violating the guidelines set forth in the prior Madrid case constituted a violation of clearly established law.

     The defendant, therefore, was not entitled to qualified immunity.

     Tatum v. Winslow, #04-15557, 122 Fed. Appx. 309 (9th Cir. 2005).

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Cost alone, federal trial court holds, could not be a basis for denying a California prisoner evaluation for a possible liver transplant when state medical programs did provide such care for non-incarcerated indigent citizens.

     A California prisoner claimed that prison officials acted with deliberate indifference by failing to take action to put his name on a liver transplant waiting list and provide other purportedly necessary care for what he stated was a life-threatening liver condition.

     In analyzing the case, the federal trial court noted that the prisoner had to show more than a difference of medical opinion as to the need to pursue a particular course of treatment rather than other available options in order to prove a federal civil rights violation in connection with the providing of medical care. Instead, he had to show that the course of treatment provided or chosen was "medically unacceptable" under the circumstances, and that this treatment was chosen in "conscious disregard" of an excessive risk to his health.

     In this case, the prisoner established that he was likely to succeed on the merits of his case, however, based on evidence that a delay in his treatment for advanced stage cirrhosis of the liver could be expected to cause him to die. He also presented evidence that the liver transplant he sought was medically necessary, that he would be medically eligible for such treatment, that there were no particular security concerns which would prevent him from being considered for the operation, and that the transplant would not be overly costly.

     Prison officials had argued that, given the prevalence of Hepatitis C among the prison population, requiring prisons to pay for inmate liver transplants as a matter of policy would result in exorbitant health care expenses. They presented evidence that the costs associated with performing a single liver transplant were between $125,000 and $500,000.

     The trial court noted, however, that the plaintiff prisoner pointed to a prior case, Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), providing that the denial of treatment solely due to budget constraints could be evidence of deliberate indifference. Further, he argued that inmates should receive at least the same level of care provided by the state to non-incarcerated indigent citizens. He submitted evidence showing that Medi-Cal, the state's health care program for low-income residents, covers the costs of liver transplants despite the high costs associated with them. "Plaintiff has made a fairly strong showing that costs alone should not impede his ability to receive necessary medical care."

     The court ordered that the defendants contact all liver transplant centers in California to determine whether they would accept a prisoner as a transplant candidate, and then choose two of the institutions willing to do so, and arrange to have the prisoner receive complete transplant evaluations there, providing all transportation, drug screening, and security necessary to facilitate evaluation and potential transplant list placement.

     Rosado v. Alameida, No. 03CV1110, 349 F. Supp. 2d 1340 (S.D. Cal. 2004).

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Lawsuit challenging the conditions of inmate's confinement at two federal facilities was properly dismissed because he failed to exhaust available administrative remedies.

     A prisoner in a federal correctional facility in Oklahoma who was subsequently transferred to a federal transfer center elsewhere in the state filed a federal civil rights lawsuit concerning the alleged conditions of his confinement at the two facilities, including complaining about alleged inadequate medical care for a pinched nerve in his neck and unreasonable exposure to secondhand smoke by housing him in a smoking unit and in a cell with a chain-smoker despite his request for non-smoking housing.

     A federal appeals court upheld the dismissal of this lawsuit for failure to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e prior to filing suit.

     In order to exhaust administrative remedies in federal prison, an inmate must complete a four-step process before filing suit, the court held. This process is laid out, according to the decision, in both 28 C.F.R. Sec. 542 and BOP Program Statement 1330.13. Inmates who do not comply with time limits laid out in the process, the court stated, "may not successfully argue that he has exhausted his available administrative remedies by, in essence, failing to employ them."

     In this case, the court found, the plaintiff failed to exhaust his administrative remedies by failing to submit a written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred. While noting that prison officials had the flexibility to accept a late request, such flexibility is not required.

     The appeals court rejected the argument that the plaintiff did not file his Request earlier because he was "earnestly" attempting to resolve his concerns informally and did not want to "rock the boat." An inmate, the court commented, cannot unilaterally extend the 20-day time limit for making a formal finding based on a desire to resolve his or her claims informally. In this case, no official granted him an extension.

     Patel v. Fleming, No. 04-6266, 2005 U.S. App. Lexis 14654 (10th Cir.)

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Prisoner did not fail to properly exhaust available administrative remedies on religious freedom claim. While the issue of the alleged untimeliness of his grievance was raised in the administrative process, correctional officials principally rejected his grievance on its merits.

     An Illinois prisoner sued Wisconsin prison officials for allegedly violating his rights when he was incarcerated in that state. His complaints included a number of searches. During the first search, guards confiscated gang-related photos he allegedly had on his person, resulting in him being punished, but the disciplinary conviction was later expunged after a successful administrative appeal. Guards next frisked him as he was leaving the prison chapel. That search revealed no contraband, but he received a disciplinary ticket for allegedly behaving disruptively during the search, and was found guilty at a hearing, unsuccessfully appealing that conviction. In a third search, guards confiscated more prohibited photos and other materials from his cell, and he was sentenced to 90 days in segregation.

     The prisoner also complained about missing a deadline to be provided with late bagged dinners during the fast of Ramadan, when Muslims abstain from eating between dawn and dusk, which occurred because he was not furnished information about the deadline while he was in segregation.

     He subsequently filed a federal civil rights lawsuit concerning these incidents, and claims concerning the frisk search and the alleged violation of his religious freedom rights survived an initial screening by the court. Prison officials argued that he failed to exhaust his available administrative remedies because his filed no grievance concerning the frisk and his grievance about the Fast of Ramadan was deemed untimely.

     The trial court granted dismissal for the prisoner's alleged failure to exhaust available remedies as required by 42 U.S.C. Sec. 1997e.

     An appeals court easily upheld the dismissal of the claims arising out of the frisk search, since the prisoner himself admitted that he did not even try to file a grievance concerning the search. The appeals court rejected the argument that his administrative appeals from the resulting disciplinary conviction should be deemed an adequate substitute. Additionally, it found that any Fourth Amendment claim here would be frivolous because there was a legitimate security interest in frisking inmates as they left the prison chapel, because it was a "hotbed of contraband exchange."

     The claim concerning the Fast of Ramadan, the court found, however, was "significantly different." While prison administrators dismissed the prisoner's grievance on this as untimely, the appeals court found that this was not supported by the record. At a number of the levels of review, prison officials rejected the merits of the grievance, while "also considering" the untimeliness of the complaint.

We have held that a prison grievance rejected solely on the basis of untimeliness will not fulfill the exhaustion requirement. We have also explained, however, that if prison administrators choose to consider the merits of an untimely grievance, then the claim has been exhausted.

     The record therefore revealed that the grievance was principally rejected "on the merits with an ambiguous secondary observation that it was untimely." The court concluded that the prisoner had exhausted his administrative remedies on his Fast of Ramadan claim.

     Conyers v. Abitz, No. 04-1630 2005 U.S. App. Lexis 15130 (7th Cir.).

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Prison regulation limiting inmates to a total of 15 books in their cells did not violate the religious freedom rights of a Shiite Muslim, and applied equally to prisoners of all religions.

     A Shiite Muslim prisoner incarcerated in a Kansas correctional facility claimed that prison officials interfered with his religious observances in violation of the First and Fourteenth Amendments. The state correctional department established a privileges and incentives level program involving earnable privileges and designed to manage the offender population and reinforce constructive behavior. It required that all books, newspapers or periodicals be purchased through special purchase orders, and that inmates utilize special purchase orders for "zero dollars" to obtain free books.

     The facility allowed the prisoners to keep in their cell a dictionary, a thesaurus, the primary religious text of their faith, and twelve other books chosen by the prisoner. The plaintiff was found to be in violation of this rule, because he had more than twelve books in his cell. He was told that he could have the books sent outside the prison, donated to the prison, or donated to the facility's chaplain. Both of the latter options would have allowed his continued access to the donated books. He refused to select an option and the prison later destroyed the books more than 15 months after they were removed from his cell.

     In his lawsuit, he claimed that this violated his right to practice his religion and receive religious materials and denied him due process by failing to provide him with a hearing before the seizure and destruction of his books.

     An appeals court upheld a determination that the defendants did not violate the First Amendment rights of the prisoner simply by enforcing a regulation limiting the number of books he could keep in his cell. Nothing prevented him from stocking his cell with twelve religious texts in addition to the Qur'an. Accordingly, he was provided with a reasonable opportunity to pursue his religion in light of the prison's legitimate administrative and penological objectives, including fire safety, institutional security, control of the source and flow of property within the prison, and the effective establishment of a behavior-incentive program, the court reasoned.

     There was also no due process violation. The defendants gave the prisoner several different ways to comply but he refused to choose any of the options available to him, so that he could not legitimately complain about a lack of process arising from the prison's destruction of the books fifteen months after giving him legitimate choices, the court stated. The court also found no equal protection violation, since all prisoners had the same right to fifteen total books in their cells, regardless of what religion, if any, they believed in.

     Neal v. Lewis, No. 04-3324, 2005 U.S. App. Lexis 14105 (10th Cir.).

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Native American inmate was improperly denied an injunction against California hair grooming policy which failed to provide a religious exemption to short hair requirement. Correctional officials failed to adequately show that this was the least restrictive means of achieving compelling interests in prison security.

     A Native American prisoner in California sought and was denied, an injunction against a California Department of Corrections (CDC) hair grooming policy requiring that all male inmates maintain their hair no longer than three inches. He claimed that he refused to adhere to the grooming policy because of a sincere religious belief that he may cut his hair only upon the death of a loved one. He claimed that the policy, and the CDC's refusal to permit a religious exception, violated his right to religious freedom.

     A federal appeals court found that the prisoner was entitled to a preliminary injunction against the policy.

     The plaintiff's religious faith teaches that hair symbolizes and embodies the knowledge that a person acquires during a lifetime and may be cut only upon the death of a close relative. Except upon his father's death in 1980, he had not cut his hair since 1971. He refused to comply with the prison grooming policy, and was repeatedly found guilty of disciplinary rules for this refusal, and lost a number of privileges, including work assignments, phone call rights, and removal from a position as a member of an Inmate Advisory Council.

     The appeals court noted that under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Sec. 2000cc, a substantial burden may not be placed on a prisoner's exercise of his religious beliefs unless it is both in "furtherance of a compelling governmental interest" and the lest restrictive means is used.

     The appeals court found that the grooming policy, by putting "significant pressure" on inmates such as the plaintiff to abandon their religious beliefs by cutting their hair, or else face punishment, imposed a substantial burden on the plaintiff's religious practice, even though his hair was not forcibly cut.

     The correctional department claimed that three compelling interests were served by the hair grooming policy, including facilitating security by allowing the quick and accurate identification of inmates and preventing the hiding of contraband or weapons in their hair. Second, short hair, because it is easier to keep clean, reduces the spread of head-borne parasites such as lice within the prison, and reduces the risk of injury during the inmate's use of heavy machinery. Finally, requiring short hair prevents prisoners from easily disguising themselves by cutting their hair after their escape.

     The appeals court acknowledged that prison security is a compelling governmental interest. The relevant question, however, the court found, was whether the grooming policy was the least restrictive alternative available to reach that compelling interest. The appeals court found that correctional officials had failed to show this.

     The defendants failed to show why "all other modes of regulation" would either overly burden the inmate or the penal institution or fail to meet the compelling interests achieved by the grooming standards, but instead only presented conclusory statements that this was the case, the court said. The defendants did not elaborate on what "other modes of regulation" they considered and rejected.

     The appeals court noted that, unlike some other cases in which similar grooming regulations had been upheld in maximum-security prisons, the plaintiff here was in a minimum-security prison where inmates pose fewer security risks.

      The appeals court also noted that other prison systems, including federal prisons, do not have such hair length policies, or, if they do, provide religious exemptions. "Prisons run by the federal government, Oregon, Colorado, and Nevada all meet the same penological goals without such a policy."

Surely these other state and federal prison systems have the same compelling interest in maintaining prison security, ensuring public safety, and protecting inmate health as CDC. Nevertheless, CDC offers no explanation why these prison systems are able to meet their indistinguishable interests without infringing on their inmates' right to freely exercise their religious beliefs. Instead, CDC argues that its prisons should not be hindered in addressing its compelling interests just because other jurisdictions have adopted policies that do not substantially burden inmates' religious practices.

     The appeals court further reasoned that the CDC had failed to explain why its women's prisons do not adhere to an equally strict grooming policy even in maximum-security facilities. The plaintiff prisoner argued that the government's interest in inmate health and security is " no less compelling when the inmate is female rather than male, " and that concerns about inmate identification, lice infestation, and the ease with which an escaped inmate may alter her or his appearance are the same regardless of the sex of the offender.

     The appeals court concluded that this suggested that there was actually no particular health or security concern justifying the policy, and "more importantly, that the hair length restriction is not the least restrictive means to achieve the same compelling interests."

     While the CDC argues that this difference in treatment was justified by male inmates being "much more likely" to commit violent crimes than female inmates, the appeals court found that the evidence cited did not clearly establish this. Female inmates, according to CDC data, commit assaults and/or batteries at a rate of 3.2 per 100 inmates, while male inmates commit 4.7 assaults and/or batteries per 100 inmates. It reasoned that a difference of 1.5 percent "hardly suggests" that female inmates are "much less likely" to commit assaults, and noted that the data did not indicate whether it was based on minimum or maximum-security facilities.

     In conclusion, the court found that the plaintiff had demonstrated a likelihood that he would prevail on the merits of his challenge to the policy, and therefore was entitled to a preliminary injunction.

     Warsoldier v. Woodford, No. 04-55879, 2005 U.S. App. Lexis 15599 (9th Cir.).

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Placement of pre-trial detainee in solitary confinement for two days without a prior hearing did not violate due process.

      A pre-trial detainee at Cook County Jail in Chicago, Illinois filed a federal civil rights lawsuit against correctional officers who allegedly placed him in segregation (solitary confinement) for two days without a prior hearing. He claimed that doing this without a pre-deprivation hearing deprived him of liberty without due process of law.

     A federal appeals court commented that it was unclear "what damages" the plaintiff could prove for being confined to a cell in the jail for two days rather than being "free to roam the dangerous general-population area of the jail." But it acknowledged that "negligible" as the damages "undoubtedly are," there is no required minimum amount in controversy in federal civil rights cases.

     While being placed in segregation is ordinarily too trivial an "incremental deprivation" of a convicted prisoner's liberty to trigger the duty of due process, the appeals court stated, citing Sandin v. Conner, 515 U.S. 472 (1995), some prior cases have considered "any nontrivial punishment of a person not yet convicted a sufficient deprivation of liberty to entitled him to due process of law."

     The appeals court found that the prisoner's claim was "not frivolous," but also found that it lacked merit, under the circumstances.

     Guards in this "huge, unruly jail," the court explained, are required to do headcounts three times a day. According to an incident report, the plaintiff was placed in segregation because he disrupted one such headcount by standing in the doorway of his cell, preventing the guard who was conducting the headcount from determining whether his cellmate was in the cell.

     When the guard asked the prisoner to step to one side, he allegedly refused, and told the guard to "go fuck" himself. After two days in segregation, the detainee was given a hearing and then released back into the general population of the jail, apparently having been found not guilty of disrupting the headcount.

     Due process, the court stated, does not confer a right to a pre-deprivation hearing in every case in which a public officer deprives an individual of liberty or property.

A pertinent example is that a person who has been arrested, even though no warrant for his arrest had been issued, may generally be jailed for up to 48 hours before being brought before a judicial officer for the probable-cause determination. What happened here was a compelling analogy to an arrest. There was probable cause to believe that Holly was disrupting jail discipline. So he was removed from the general population, corresponding to the free population outside the jail, and placed in isolation, corresponding to the jailing of an arrested person, and he got his hearing in 48 hours, just as he would have had he been arrested "on the street" rather than within the jail.

     It is dangerous, the court noted, to allow a prisoner who the guards have probable cause to believe has violated a disciplinary rule to roam at large in the general jail population. The plaintiff was "separated from the general jail population much as arrest separates a free person from the free population, and the hearing he received 48 hours later was all the process that was due him."

     Holly v. Woolfolk, No. 03-2448, 2005 U.S. App. Lexis 14427 (7th Cir).

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Prison administrators were not shown to have acted with deliberate indifference to the risk of sexual assaults by male guards on female prisoners when they investigated six prior incidents occurring in a four year period, and this resulted in the firing and prosecution of five guards.

     Two female prisoners at a New Jersey women's prison sued prison administrators and guards, claiming that one of the guards sexually assaulted them, a second defendant guard acted to cover up those assaults, and that administrators were deliberately indifferent to the risks of such assaults taking place in the facility.

     The trial court granted summary judgment to the defendant administrators.

     This result was upheld on appeal. The appeals court found that evidence that the plaintiffs presented of prison officials alleged knowledge of approximately ten prior incidents during the ten years before the alleged assault was insufficient to show that administrators acted with deliberate indifference to the risk that a male guard would sexually assault two female prisoners.

     Many of the prior incidents only involved inappropriate "familiarity" or "contact" between a male guard and a female prisoner, the court noted. Only three of the incidents even approached the level of serious harm alleged by the plaintiffs, and none of the prior incidents involved the guard who the plaintiffs claimed assaulted them.

     Further, in response to prior incidents which occurred, defendant administrators had conducted investigations which resulted in the firing and prosecuting of at least five of the six guards involved in prior incidents occurring in the most immediate four year periods, which indicated an attack far from "deliberate indifference" towards such misconduct. The prison administrators, to the contrary, showed that they vigorously enforced the prison's "no contact" rules, and themselves established policies that forbid sexual activities between guards and prisoners.

     The policies in question were included in the training received by all officers.

     The fact that there was an existing consent decree which covered all prisons in the state, under which issues of guard assignments and privacy accommodations for inmates of both genders were covered did not suffice to show the existence of an unreasonable risk of such sexual assaults for purposes of establishing supervisory liability, the court stated.

     Heggenmiller v. Edna Mahan Correctional Institution for Women, #04-1786, 128 Fed. Appx. 240 (3rd Cir. 2005).

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Female prison employees' claim that male warden gave favorable treatment to other female employees with whom he was having sexual affairs, while they were retaliated against when they complained, was sufficient, under California law, to create a viable case of sexual harassment.

     Two female former employees of the Valley State Prison for Women in California claimed that the warden gave unwarranted favorable treatment to female employees with whom he was allegedly having sexual affairs, and that this conduct constituted sexual harassment in violation of a state civil rights statute. The trial court granted summary judgment in favor of the defendants, finding that the conduct in question did not support a sexual harassment claim, and an intermediate state appeals court upheld this result.

     The California Supreme Court reinstated the lawsuit, finding that, while an "isolated instance of favoritism" on the part of a supervisor toward a female employee with whom the supervisor was conducting a consensual sexual affair "ordinarily would not constitute" sexual harassment, when such "sexual favoritism" in a workplace is "sufficiently widespread" it can create:

an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as "sexual playthings" or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.

     The Court further found, based on evidence in the record, that there was a sufficient showing in this case to establish a prima facie case of sexual harassment under this legal standard, so that summary judgment was improperly granted for the defendants.

     The plaintiffs in the case claimed that, over a period of several years, the warden engaged concurrently in sexual affairs with three subordinate employees, and that when the warden was transferred to a new facility, he caused his sexual partners to be transferred to the new institution to join him. They also claimed that the warden promised and granted unwarranted and unfair employment benefits to the three women, including power granted to one of them to "abuse other employees who complained concerning the affairs." When the plaintiffs complained, they allegedly suffered retaliation and they stated that they believed two other employees were similarly targeted. They also presented evidence that advancement for women at the prison was "based upon sexual favors, not merit."

     The court concluded that there was at least a triable issue of fact on the question of whether the warden's conduct constituted "sexual favoritism" widespread enough to constitute a hostile work environment.

     Miller v. Dept. of Corrections, No. S114097, 2005 Cal. Lexis 7606 (2005).

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Mere negligence at times in enforcing county correctional facility's no-smoking policies, even if true, was insufficient to impose liability on warden and assistant warden for deliberate indifference to prisoner's alleged excessive exposure to second-hand tobacco smoke.

     A former prisoner at a Tennessee county correctional facility appealed from summary judgment in favor of a warden and assistant warden there who he claimed were deliberately indifferent to his "future health" by allowing him to be exposed to harmful levels of environmental tobacco smoke.

     He had alleged that there was not a designated smoking area for inmates who smoke, that the defendants did not indicate where the smoking areas were, that there were inadequate smoking breaks, that cigarette lighters were not mounted in the outside smoking areas, that "no smoking" signs were not posted, that there were no smoking cages for inmates in the event that it rained, that there was inadequate ventilation, and that the commissary, for a time, sold matches to inmates in violation of state Department of Corrections policies.

     The appeals court stated that to prove that a prison official acted with deliberate indifference, a plaintiff prisoner must show both that they had "subjective knowledge" of the risk of a serious harm to the prisoner's safety or health, and disregard of that risk by some conduct that was beyond mere negligence.

     In this case, despite the prisoner's allegations, there was evidence that the facility did have a no-smoking policy in effect, and that prisoners caught smoking inside the facility were disciplined.

     The plaintiff failed to produce any evidence, other than his own "self-serving" opinion, that there was anything insufficient about indoor ventilation, and further failed to produce any evidence that his purported headaches were linked to his exposure to tobacco smoke.

     In conclusion, the appeals court found, the prisoner had merely succeeded in alleging, at most, that there was some negligence at times in enforcing the no-smoking policy, which was not enough to impose liability on the defendants for deliberate indifference.

     Kelley v. Hicks, #04-14276, 400 F.3d 1282 (11th Cir. 2005).

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Prisoner's lawsuit against federal prison warden reinstated on claims that his rights were violated by prohibition on him calling his stockbroker to order that stock be sold if the price started falling. Prisoner also stated a viable First Amendment claim based on refusal to allow him to buy a book on computer programming.

     An inmate at a federal prison in Illinois sued both the warden and the Bureau of Prisons, arguing that they had violated his federal constitutional rights when he was forbidden to phone his stockbroker and forbidden to buy a book on computer programming.

     The trial judge dismissed the lawsuit as frivolous under 28 U.S.C. Sec. 1915A(a). A federal appeals court found that the naming of the Bureau of Prisons was "indeed frivolous." Under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) a plaintiff may file a constitutional claim against federal officers in much the same way that 42 U.S.C. Sec. 1983 authorizes such lawsuits against state officers, the court noted, it does not permit lawsuits for constitutional violations against federal agencies themselves. The appeals court found, however, that the dismissal of the lawsuit against the warden was "premature."

     The plaintiff prisoner is the owner of certain stocks that he wanted to instruct his broker to sell if their prices fell below specified levels. The prison told him that he was forbidden to call the broker. A Bureau of Prisons regulations allows prisoners to submit a list of thirty telephone numbers that they want to call. The prison may remove a number from the list if it determines that allowing the prisoner to call the number would endanger the welfare of the prison or the public.

     In this case, however, the procedure provided to remove such a number, as specified in 28 C.F.R. Sec. 540.101(a)(3) was allegedly not followed. Instead, the prisoner was evidently allowed to make one call to his stockbroker and then issued a disciplinary citation for misusing his telephone privileges, "which has discouraged him from repeating the attempt."

     The prison argued that calling a stockbroker was improper because a prisoner is not allowed "to conduct a business," pursuant to 28 C.F.R. Sec. 541.13, so that this was a permissible restriction on the prisoner's phone privileges. But the appeals court rejected this, finding that this was not a justification for the prison's policy, since the prison denied that it has tried to prevent the prisoner from communicating by mail the same information that, communicated by phone, it calls the conduct of business.

     The appeals court also commented that, "unless one is engaged in a financial business," ordering a broker to sell stock is "no more the conduct of a business than asking a real estate broker to sell one's house is." Millions of people, the court noted, own stock despite not being engaged in the securities business. The "no business" regulation itself states that it does not prohibit correspondence necessary to enable a prisoner to protect property and funds that were legitimately the prisoner's at the time of their commitment. Under this rationale, a prisoner can correspond about refinancing an existing mortgage or sign insurance papers, but may not operate a mortgage or insurance business while incarcerated.

     The appeals court further found, however, that even if the prison acted arbitrarily, "which so far as appears it is," the prisoner had no constitutional claim unless the action deprived him of a constitutional right. It rejected the prisoner's argument that not letting him talk to his broker on the phone violated his freedom of speech, reasoning that an order to sell, "like a threat intended to intimidate," is not the kind of verbal act that the First Amendment protects. "It has no connection to the marketplace of ideas and opinions, whether political, scientific, aesthetic, or even commercial."

     The prisoner also argued, however, that by preventing prompt communication with his broker, the prison deprived him of his property. He wanted to be able to sell some of his stocks promptly if their price fell, "lest the price continue falling." The court stated that if the prison is allowing the prisoner to correspond by mail with his broker, the inability to phone the broker might impair his ability to protect his property by delaying his transactions, "but it is not destroying that ability."

How grave the impairment is we cannot say on this limited record; it is conceivable, however, that forbidding King to telephone his broker could be an actionable deprivation of property, and his claim was therefore prematurely dismissed. We add that the impairment is not so grave that it could not readily be justified by security or other concerns, but, to repeat, these have not been argued.

     On remand, the appeals court also found, it also needed to be clarified whether the prison was also forbidding the plaintiff to contact his broker by mail or whether, as the prison claimed, he was free to do so.

     The appeals court found that the refusal to allow the prisoner to obtain a book on computer programming presented a "substantial First Amendment issue," since freedom of speech is "not merely freedom to speak, it is also freedom to read."

     A prison could, of course, prohibit the reading of a book on how to plan an escape, and if the prisoner were in prison for computer hacking or other computer-related crimes, the court commented, the prison could, in the interest of rehabilitation and preventing recidivism forbid him to buy a book that would enable him to increase his ability as a hacker when he's released. In this case, however, the prisoner claimed to want the book "precisely for purposes of rehabilitation--to equip him to work as a programmer when he is released." The court found that this was a "proper goal," and that the record did not enable it to determine whether it was the prisoner's actual goal.

     The prison's stated reason for not wanting the prisoner to have the book ordered was that it teaches C++, a standard language in which computer programs are written. It argued that he might then write programs that would disrupt the prison's computer system. The court noted that the computers which prisoners were allowed to use were not connected to the prison network or any other network, however.

     The appeals court found that the prisoner had made a prima facie claim of infringement of his freedom of speech, and that the government was not required to present some evidence to show that the restriction was justified by the need to protect the prison's computer system.

     King v. Fed. Bureau of Prisons, No. 03-2431, 2005 U.S. App. Lexis 14092 (7th Cir.).

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

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Access to Courts/Legal Info

     Trial court did not abuse its discretion in refusing to provide plaintiff inmate with an appointed lawyer in his lawsuit claiming excessive use of force against him, since the prisoner was able to articulate the issues in his case on his own and the case did not require the use of expert testimony. Shabazz v. Felsnik, No. 04-2367, 129 Fed. Appx. 726 (3rd Cir. 2005). [PDF]

AIDS Related

     Prisoner who failed to allege any actual injury or pervasive risk of injury was not entitled to an injunction against a prison policy allowing inmates infected with HIV, Hepatitis B or Hepatitis C to work in the prison food services. The inmate had sought to change the policy or to require mental screening of infected inmates to prevent acts of "intentional food contamination," as well as seeking damages for the cost of purchasing food from the prison canteen since he stopped eating food from the kitchen when the policy was announced. Jacob v. Clarke, No. 04-2559, 129 Fed. Appx. 326 (8th Cir. 2005). [PDF]

Defenses: Statute of Limitations

     Inmate's lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b) was properly dismissed as untimely when he failed to file it within six months of the Bureau of Prisons' rejection of his application for compensation for prison guards' alleged negligence in failing to protect him from a beating by other inmates. Myles v. US , #02-3944, 2005 U.S. App. LEXIS 14646 (7th Cir.). [PDF].

Drugs and Drug Screening

     Prisoner was entitled to a judicial review of a disciplinary report concerning his alleged drug use after asserting that his urine sample was switched with that provided by his cell mate for purpose of the drug test, and providing affidavits concerning the alleged violation of the specimen collection and drug testing procedures. Henderson v. Crosby, No.2D04-1761, 891 So. 2nd 1180 (Fla. App. 2nd Dist. 2005). [PDF]

Filing Fees

     Idaho state statute requiring prisoners to pay civil lawsuit filing fees when they have funds to do so is not an unconstitutional denial of access to the courts. Trial court, however, should not have dismissed prisoner's lawsuit for failure to pay a filing fee, as his inmate account statement showed a negative balance, which, if true, meant he should not be required to pay the fee until he had funds to do so. Madison v. Craven, No. 30605, 105 P.3d 705 (Idaho App. 2005).

Inmate Funds

     Prisoner could not pursue federal civil rights lawsuit challenging the county jail's deduction of a subsistence fee from his prisoner account when his claim did not challenge the constitutionality of the state regulation allowing such a deduction, but merely the application of the regulation to him, which was an issue of state law. Cruz v. Aladro, No. 04-14671, 129 Fed. Appx. 549 (11th Cir. 2005). [PDF]

     Iowa statute allowing county sheriff to charge a convicted prisoner for room and board while in custody was not a violation of due process, equal protection, or the constitutional separation of powers, and courts had "inherent discretionary powers" to review whether an order for such charges was appropriate, despite the lack of an express provision in the statute providing for judicial scrutiny. State v. Abrahamson, No. 03-1907, 696 N.W.2d 589 (Iowa 2005).

Medical Care

     Doctor's alleged failure to follow an orthopedists recommendation that a prisoner be referred to a physical therapist in order to prevent his osteoporosis from progressing could only have, at most, amounted to negligence, and could not be the basis for a federal civil rights lawsuit for deliberate indifference to a serious medical need. Faison v. Rosado, No. 04-14315, 129 Fed. Appx. 490 (11th Cir. 2005). [PDF]

     The mere claim that the prisoner suffered "excruciating pain" from an ankle injury was not sufficient to show deliberate indifference to a serious medical need, when the record showed that the injury was not one requiring immediate medical attention, and that he was treated for foot and ankle problems at least once a week for a month before and after the alleged injury, and provided with housing and work restrictions accommodating his condition. Day v. Massingill, No. 04-40500, 129 Fed. Apx. 124 (5th Cir. 2005).

     Prisoner's claim that there was a four-day delay in providing him with treatment for an injury after he fell in a jail's shower, at most, showed negligence, and not a basis for a federal constitutional claim. Any negligence claims were barred by sovereign immunity under South Dakota state law. Dowty v. Tarrell, No. CIV.04-5028, 368 F. Supp. 2d 1024 (D.S.D. 2005).

     Prison officials did not show deliberate indifference to prisoner's health based on a one and one-half day delay between his first complaining of "flue-like" symptoms and his diagnosis of and treatment for pneumonia. Wynn v. Mundo, No. 1:04CV365, 367 F. Supp. 2d 832 (M.D.N.C. 2005).

     Thirteen-day alleged delay in providing inmate with aspirin for his headache, standing alone, did not constitute deliberate indifference to a serious medical need sufficient for a federal civil rights claim. Negron v. Gillespie, No. 03CA1977, 111 P.3d 556 (Colo. App. 2005). [PDF]

Prison and Jail Conditions: General

     Inmate's allegation that his cell was constantly illumination could constitute a valid Eighth Amendment claim, depending on how bright the light was. Constant illuminate may be a civil rights violation if it "causes sleep deprivation or leads to other serious physical or mental health problems." King v. Frank, No. 04-C-338, 328 F. Supp. 2d 940 (W.D. Wis. 2004). See also a prior unpublished decision, Pozo v. Hompe, 02-C-12-C, 2003 WL 23185882 (W.D. Wis. 2003), holding that the illumination of a cell by a 5-watt bulb did not rise to the level of an Eighth Amendment violation.

Prison Litigation Reform Act: Exhaustion of Remedies

     Trial court improperly failed to assess whether prisoner's letters of complaint and appeals of misbehavior reports filed against him were adequate to put prison on notice for purposes of determining whether he exhausted administrative remedies as required by 42 U.S.C. Sec. 1997e prior to filing lawsuit, or whether special circumstances justified his failure to file a formal grievance. Boddie v. Bradley, No. 02-0135, 129 Fed. Appx. 658 (2nd Cir. 2005). [PDF]

Prison Litigation Reform Act: "Three Strikes Rule"

     Civilly committed Illinois sex offender is subject to the "three strikes rule" of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(g), barring him from filing further civil rights lawsuits as a pauper after three such lawsuits have been found to be frivolous. Additionally, he could not sue for damages for his allegedly unconstitutional confinement when his commitment had not been previously invalidated. Ring v. Knecht, No. 04-1487, 130 Fed. Appx. 51 (7th Cir. 2005). [PDF]

Prisoner Assault: By Inmates

     County jail detainee beaten and raped by fellow prisoners showed genuine factual issues as to whether county sheriff had acted with deliberate indifference to the risk of such assaults by housing him with detainees with records of prior violence. Merriweather v. Marion County Sheriff, No. 02 CV 01881, 368 F. Supp. 2d 875 (S.D. Ind. 2005).

Prisoner Assault: By Officers

     Claim that prison guards "verbally abused" prisoner by cursing at him was insufficient to support a federal civil rights claim. Perry v. Kramer, No. 03-15833, 121 Fed. Appx. 191 (9th Cir. 2005).

Prisoner Death/Injury

     New York Court of Claims upholds award of $350,000 for conscious pain and suffering to estate of deceased inmate who died of a prescription drug overdose in case where prison officials were found to have been negligent in allowing him to have more than one pill at a time in his cell. Prisoner's death after overdose took thirteen days to occur, and he underwent numerous invasive medical procedures during that interval. Court also upholds, however, the failure to award any economic damages, when the decedent had a "limited work history," and had never earned enough money in any year to require him to file a tax return. $25,000 also awarded to inmate's mother for her suffering based on correctional officials' failure to notify her, as the inmate's chosen relative, when her son was admitted to a hospital outside of the prison during a weekend, as required by the correctional department's policy. Arias v. State of New York, No. 97942, 795 N.Y.S.2d 855 (Ct. Cl. 2005).

Prisoner Discipline

     Prisoner did not have a due process right to have a chemical analysis done of the tobacco seized from his cell prior to a disciplinary proceeding for possessing contraband. Prison officials did not require the assistance of "a chemist," the court rules, in order to help decide whether what the guards found in the cell was tobacco. Burks-Bey v. Vannatta, #04-4025, 130 Fed. Appx. 46 (7th Cir. 2005). [PDF]

     Disciplinary conviction of prisoner for alleged attempted assault on prison staff member was supported by "some evidence." Hearing officer's refusal to view a surveillance videotape taken during the incident did not violate the prisoner's due process rights when there was no indication that any portion of the videotape showed what happened inside the prisoner's cell, where the offense allegedly took place. Neal v. Casterline, No. 04-30909, 129 Fed. Appx. 113 (5th Cir. 2005).

     Prisoner stated a possible procedural due process claim by alleging that he was ousted from and denied assistance during one disciplinary hearing, denied a request to call expert witnesses in a second disciplinary hearing, and denied the opportunity to be present and to call two witnesses at a third disciplinary hearing. Chavis v. Zodlow, No. 04-0447, 128 Fed. Appx. 800 (2nd Cir. 2005). [PDF]

Religion

     Prison's failure to appoint or hire an individual that met an Indian chief's requirements for conducting "sacred sweat lodge ceremonies" was not a violation of Native American inmates' civil rights. There is no constitutional requirement that a religious advisor be provided for every sect in a facility, or that a prisoner has a right to insist on a religious advisor whose beliefs are completely identical with his own. Trial judge also finds that the First Amendment prohibited the state prison from adopting requested policies preventing non-Native Americans from attending sweat lodge ceremonies, as non-Native Americans had a right to practice that religion despite their ethnic background. Brown v. Schuetzle, No. A1-03-127, 368 F. Supp. 2d 1009 (D.N.D. 2005).

     Prisoner's allegation that facility improperly excluded the Philadelphia Church of God from an authorized religious vendor list from which he could obtain religious publication stated a claim for violation of the First Amendment when there was nothing to show that the organization was not a legitimate church or religious organization. Figel v. Overton, No. 04-1038, 121 Fed. Appx. 642 (6th Cir. 2005). [PDF]

Sexual Assault

     Lawsuit against Texas county by female prisoners who claimed that guards subjected them to sexual assault and harassment was improperly dismissed by lower court. Prisoners' claims that the county knew or should have known that security cameras in the facility were non-functioning and improperly placed, and that aspects of the layout of the facility permitted guards to have unlimited, unmonitored access to prisoners to facilitate such assaults and harassment was sufficient to come within a statutory waiver of governmental immunity based on premises defects. Campos v. Nueces County, No. 13-03-724, 162 S.W.3d 778 (Tex. App. 2005).

Therapeutic Programs

     State prison's requirement that inmate participate in anger management class did not violate his due process or equal protection rights, or constitute an impermissible retroactive enhancement of his punishment. Stewart v. Lehman, No. 04-35342, 129 Fed. Appx. 357 (9th Cir. 2005).

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     Report: The 2005 National Gang Threat Assessment provides a national and regional picture of the threat posed by gangs. This document will help federal, state, and local policymakers and law enforcement administrators to better understand the dimensions of the gang problem and assist them in formulating policy and allocating resources most wisely. The National Alliance of Gang Investigators Associations (NAGIA), with funding and guidance from the Bureau of Justice Assistance and its partner agencies within the Department of Justice including the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Federal Bureau of Investigation, and the National Drug Intelligence Center, conducted this threat assessment and prepared this report. [74 pgs. PDF]

     Statistics: Sexual Violence Reported by Correctional Authorities, 2004. Presents data from the Survey on Sexual Violence, 2004, an administrative records collection of incidents of inmate-on-inmate and staff-on-inmate sexual violence reported to correctional authorities. The report provides counts of sexual violence by type and includes tables on reporting capabilities, how investigations are handled, and characteristics of victims and perpetrators of sexual violence. The appendix tables include counts of sexual violence, by type, for the 2,730 facilities included in the survey. This report also includes an update on BJS activities related to implementation of the data collections required under the Prison Rape Elimination Act of 2003 (Public Law 108-79). Highlights include the following: In 2004, correctional authorities reported 3.15 allegations of sexual violence per 1,000 inmates. Males comprised 90% of victims and perpetrators of inmate-on-inmate nonconsensual acts in prison and jail. In State prisons 69% of victims of staff sexual misconduct were male, while 67% of perpetrators were female. 07/05 NCJ 210333 Press release | Acrobat file (322K) | ASCII file (39K) | Spreadsheets (zip format 40K)

     Statistics: Substance Dependence, Abuse, and Treatment of Jail Inmates, 2002. Presents data from the 2002 Survey of Inmates in Local Jails on inmates’ prior use, dependence, and abuse of alcohol and illegal drugs. The report also provides data on types of substance abuse treatment or other programs reported by jail inmates. It presents measures of dependence and abuse by gender, race, Hispanic origin, age, and most serious offense. The report compares the levels of prior substance use, dependence, abuse, and treatment by selected characteristics, such as family background, criminal record, type of substance, and offense. Tables include trends in the levels of substance use and treatment reported by jail inmates since the last national survey was conducted in 1996. Highlights include the following: In 2002 -- 68% of jail inmates reported symptoms in the year before their admission to jail that met substance dependence or abuse criteria. 16% of convicted jail inmates said that they committed their offense to get money for drugs. 63% of inmates who met substance dependence or abuse criteria had participated in substance treatment or other programs. 7/05 NCJ 209588 Acrobat file (211K) | ASCII file (35K) | Spreadsheets (zip format 19K)

     Reference:

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

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