FEATURED CASES

WITH LINKS TO THE OPINIONS

Female prisoner could not pursue lawsuit over her alleged gang rape by male prisoners over thirty years earlier. Her claims were barred by the applicable statute of limitations, and it could not reasonably be concluded that she was mentally ill from 1971 until 1996, thereby extending the statute.

     A female former prisoner brought a federal civil rights and state law negligence lawsuit claiming that she was gang raped by male prisoners in the fall of 1971 while spending ten days in the York County Jail in York, Maine, after an arrest for traffic violations. She claimed that a trustee prisoner used his key to enter her cell and rape her, and then let in three other inmates to rape her as well, with the rapes continuing for three or four days. She became pregnant as a result of the rape, and aborted the pregnancy. Her lawsuit was filed in May of 2002, over thirty years later, and would ordinarily be time barred by the applicable Maine statute of limitations.

     She argued, however, that at the time of the attack, and during a nearly twenty-five year period after that, she was mentally ill, and that the statute of limitations was therefore tolled (extended). The Maine statute of limitations for the negligence claim was four years, and the applicable statute of limitations for the federal claim was six years. Accordingly, in order for her lawsuit to be properly filed, and for her to proceed with it, she would have to be found to have been mentally ill from 1971 until at least 1996 for the federal claim, and until at least 1998 for the state law claim.

     The trial court granted the defendants in the lawsuit summary judgment, finding that no reasonable fact finder could conclude that the plaintiff was mentally ill at all points before 1996.

     There was undisputed evidence that the plaintiff mentioned the rapes to others when she was in prison on subsequent charges from 1973 to 1978, and had told her family about the rapes soon after they occurred. Additionally, she obtained training as a licensed dental assistant and practiced that calling for about five years in the mid- to late 1980s, and had no trouble performing her job. There was also evidence that she had hired attorneys on two previous occasions to pursue claims over workplace issues.

     The appeals court agreed with the trial court and a magistrate judge that "no reasonable fact finder" could find that the plaintiff was incapacitated by mental illness from bringing her rape claims before 1996 or 1998. While it might be acceptable to credit psychiatric testimony that she lacked the emotional and psychological "strength" to proceed in a lawsuit to address the rapes previously, this was not enough to establish a mental illness disability.

     The plaintiff had been able to "function in society to protect herself and her legal rights" at various points during the twenty-five year period at issue, and she was "reasonably self-sufficient" throughout that period, keeping jobs, paying rent, and hiring lawyers. She also took various steps to improve her situation, such as attending AA meetings for a decade, and completing two courses of study. Indeed, the court commented, given her history "the story of her redeeming her life and becoming responsible is independently praiseworthy."

     Statutes of limitations have important purposes, the court stated, including fairness. The allowance for fairness to mentally ill persons in Maine's tolling provisions, the court concluded, "simply cannot be stretched so far" as to allow the plaintiff to pursue her claims at this late date.

     Douglas v. York County, No. 05-1940, 433 F.3d 143 (1st Cir. 2005).

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Prison rules prohibiting inmates from calling drug testing lab technicians as witnesses at disciplinary hearings were not a violation of procedural due process. Federal appeals court upholds constitutionality of Nebraska prison's urine sample collection and testing procedures.

     Prisoners and former prisoners of the Nebraska Department of Correctional Services (DCS) claimed that its method of collecting and testing urine samples for drug use violated their constitutional right to procedural due process. They claimed, among other things, that policies under which they were disciplined for allegedly positive drug tests prevented them from calling drug testing technicians as witnesses at their disciplinary hearings.

     A federal appeals court rejected these claims.

     Under the drug-testing program, inmates at the Nebraska State Penitentiary (NSP) are required to provide urine samples to be tested for drug use. Correctional officers or caseworkers collect the samples, which are them submitted to a laboratory which is adjacent to the prison hospital.

     The collector takes a sealed cup, shows it to the inmate, breaks the seal, and labels the cup with the inmate's name and number. The prisoner then urinates in the cup in the presence of the collector and returns it. The collector places a form reflecting the receipt of the sample in an evidence box and takes the sample cup and its corresponding evidence card, which is used to record the chain of custody, to the hospital, where the sample is refrigerated pending lab testing.

     Trained lab technicians use the fluorescence polarization immunoassay (FPIA) testing method, which an expert witness for the defendant correctional officials testified is approximately 95% accurate. If that test is positive for drug metabolites, the technician reruns it. When a second test is positive, and the inmate's medical records do not reflect the use of prescribed medications that could provide a false positive, the technician sends the specimen report and evidence card to the prison disciplinary board.

     State law also allows an accused inmate to request an independent test of the urine sample in a private lab using gas chromatography/mass spectrometry (GC/MS) testing, which is more accurate and more expensive than the FPA, and has a typical cost of $30, although the cost can be as much as $90, depending on the drug at issue. The inmate pays the cost of the confirmatory GC/MS test if the sample tests positive for drugs.

    The inmate accused of drug use can call witnesses at his disciplinary hearing but not the lab technician, who provides a written statement of the procedures used in the lab.

     The appeals court agreed that the prisoners had a protected liberty interest in not being arbitrarily deprived of their good-time credits, a punishment for drug violations, and were therefore entitled to due process in the drug testing and disciplinary proceedings.

     The appeals court found nothing wrong with the current urine sample collection procedure and rejected the argument that due process required that the inmate himself sign and seal the specimen. There was no evidence that the current collection procedure had resulted in erroneous deprivations of good-time credits, and the procedures used conform to practices used in private employer workplace drug testing. They were found to be "adequate to ensure reasonably reliable results."

     The appeals court also found nothing wrong with the testing procedures, or the fact that prisoners who wanted a confirmatory GC/MS test were made to pay for it if that test was also positive for drugs.

     Finally, it found that the refusal to permit prisoners to call lab technicians as witnesses at disciplinary hearings was justified by the "need to manage the environment of a prison and to maximize the productivity" of the technicians employed. The written statements by the technicians provided to inmates concerning the testing procedures and the qualifications of the lab supervisor, along with reports of the drug tests themselves, were found to be adequate.

     Louis v. Dep't of Corr. Servs. of Nebraska, No. 05-1211, 2006 U.S. App. Lexis 2648 (8th Cir.).

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Jail prisoner who fell from a top bunk and injured himself after a possible seizure presented a genuine issue of fact as to whether jail employees were deliberately indifferent in failing to properly administer his prescribed anti-seizure medication and to accommodate his illness by assigning him to a bottom bunk.

     A prisoner at the Jasper County, Missouri jail fell from the top bunk of his cell, and suffered injuries, after a possible seizure. He filed a federal civil rights lawsuit claiming that a number of jail employees and a jail doctor violated his constitutional rights and caused his injuries by failing to properly administer his anti-seizure medicine and by assigning him to the top bunk despite his known seizure disorder.

     The trial court granted summary judgment to all employees. While a federal appeals court upheld this as to a prison doctor, it reversed as to the jail employees, finding that there were genuine issues of material fact as to whether they had acted with deliberate indifference to his serious medical needs.

     The prisoner had taken anti-seizure medication prior to his incarceration, following an earlier head injury. He was prescribed 1000 milligrams a day of the drug Tegretol, when he was booked into the jail, in order to control his seizures. He was moved, for a time, to at state prison, and while there, stopped taking the medications. After his release from the prison, he was again booked into the county jail. He was then prescribed twice-daily 250-milligram doses of Depakote, another anti-seizure medication. He also requested that he be assigned to a bottom bunk because of his seizures. Despite that, he was sleeping on the top bunk in his cell when he fell.

     The appeals court found that any claims against the jail doctor who issued the changed prescription to the prisoner, and allegedly failed to properly monitor his condition, amounted, at most, to negligence (medical malpractice) and did not show a violation of constitutional rights. The prisoner also failed to present any evidence that the doctor was responsible for administering his daily dose of medication, and in fact, evidence showed that it was other jail employees who were responsible for doing so.

     As for the defendant jail employees, the appeals court noted that the knowing failure to administer prescribed medicine can "itself constitute deliberate indifference," and the prisoner claimed that both before and after his seizure, he was not given the prescribed dosage of his medication. These statements were enough to create a genuine issue of material fact as to whether jail employees were deliberately indifferent.

     The appeals court also found that there was a genuine issue as to whether the prisoner had experienced a seizure prior to falling from the top bank, rejecting the defendant employees' argument that there was no evidence of a seizure at that time.

     Finally, the appeals court noted that the prisoner testified that he was assigned a top bunk despite repeated requests to a number of jail employees that he be placed in a lower bunk. There was no question, the court found, that he was, in fact, in the top bunk when he fell. An affidavit by a jail employee stating that the jail's record indicated that the prisoner was assigned to a bottom bunk was inadmissible at trial, where the production of the record itself would be required, and should not have been relied on in granting summary judgment. Even if it was taken into account, however, it was contradicted by the prisoner's testimony, and at most created an issue of fact.

     Further proceedings were therefore ordered on the claims against the jail employees.

     Phillips v. Jasper, No. 04-2524, 2006 U.S. App. Lexis 3442 (8th Cir.).

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Sheriff was not liable for death of jail detainee who had a heart attack. Medical intake forms did not reveal any prior heart problems, and there was no evidence that the sheriff was personally aware of any serious medical needs of the detainee, disregarded them, or inadequately trained or supervised his employees in a manner which caused the detainee's death.

     The sister of a detainee who died while in custody at the Greene County, Arkansas jail sued the sheriff and ten officers and employees at the jail for alleged deliberate indifference to the detainee's serious medical needs, resulting in his death.

     The trial court denied a motion by the sheriff for qualified immunity. A federal appeals court reversed, finding that the plaintiff failed to demonstrate that the sheriff either actually knew of any serious medical needs of the detainee, deliberately disregarded those needs, or failed to properly supervise or train jail employees.

     The detainee was incarcerated at the jail on a sexual assault charge, and during the intake procedure indicated on a medical intake form that he had a history of mental illness, headaches, epilepsy/seizures, ulcers, and kidney/bladder problems. He also indicated that he did not have a history of heart problems or low blood pressure. His mother subsequently brought his medications, including an anti-depressant, to the jail. He received the anti-depressant for approximately a week, when the jail ran out of it. A new prescription arrived two days later, but could not be administered until the following day, during the morning shift.

     The following day, the detainee was found pacing in his cell, repeatedly drinking water, and throwing up. Thirty minutes later, when an employee arrived at the cell to give him his morning medication, the detainee was found naked on the floor, and unresponsive. CPR was given and an ambulance was called to take him to the hospital where he was pronounced dead. An autopsy showed that he died of natural causes: arteriosclerotic cardiovascular disease, causing a heart attack.

     The appeals court noted that the sheriff did not have any personal interaction with the detainee, and that he denied receiving notice of any complaints, concerns, or letters from the detainee's family members before his death.

     The appeals court further found that there was no evidence that the sheriff personally knew of any serious medical needs of the detainee and deliberately disregarded them, including the fact that the detainee had been vomiting and had not received his anti-depressant medication for two to three days preceding his death. He also had no knowledge of any heart problems putting the detainee at risk for a heart attack.

     The appeals court also found no evidence sufficient to show that any policies, training procedures, or supervision by the sheriff were inadequate or likely to result in a constitutional violation. He was therefore entitled to qualified immunity, the appeals court concluded, reversing the trial court's decision.

     Vaughn v. Greene County, No. 04-3916, 2006 U.S. App. Lexis 3801 (8th Cir.).

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Prisoner presented sufficient evidence from which a jury could find that a prison doctor and a warden were deliberately indifferent to his need to have his fractured right thumb placed in a permanent cast by an orthopedic specialist, as instructed by a hospital emergency room doctor.

     A prisoner who fractured his right thumb while confined in California State Prison-Sacramento filed a lawsuit asserting both federal and state law claims against two prison doctors and the warden, claiming that they violated his civil rights by being deliberately indifferent to his serious medical needs, and also violated California state law by failing to ensure that he timely saw an orthopedist to set and cast his facture as was allegedly directed by the initial doctor's aftercare instructions.

     The trial court granted summary judgment for the defendants. Reversing, a federal appeals court found that the prisoner had presented sufficient evidence to create a genuine issue of material fact as to whether the actions of one of the doctors and the prison warden were deliberately indifferent to the prisoner's need to have his fractured thumb set and placed in a permanent cast, and whether their actions violated a state statute under which medical care is required to be summoned for an inmate who needs immediate medical care to have a fractured bone set and cast.

     The prisoner suffered the injury to his thumb when he fell from the top bunk to the floor of his cell, and he was diagnosed with a fractured thumb by a doctor at a private hospital emergency room. That doctor placed the thumb in a temporary splint, prescribed pain medication, and provided written instructions to see an orthopedic doctor "early this week." These instructions were given to prison medical personnel.

     A prison doctor continued the pain medication, and found that the hand was still too swollen to place in a permanent cast. The prisoner was then not seen again by a doctor throughout the month of November and most of December, and was in pain, complaining of his need to be seen by an orthopedist to set and cast his fractured thumb.

     Almost two months after the injury, he was seen by another prison doctor. He was not sent to an orthopedist, despite continuing to submit requests for this. He allegedly wrote a letter to the warden, complaining about the situation. No response was received.

     He did see an orthopedic specialist, at one point, who recommended that he be referred to a hand specialist. He was transferred to another prison, and ultimately, in May of 2003, more than nineteen months after the injury and more than a year after the recommendation of a hand specialist, he was seen again by a doctor, who discussed with him the need to repair the "quite bad" fracture.

     Under these circumstances, the court found, there was sufficient evidence from which it could be found that a prison doctor, by failing to send the patient to have the thumb placed in a permanent cast, acted with deliberate indifference as did the warden, if he received the prisoner's letter.

     While the failure to immediately place the thumb in a more permanent cast could be excused on the basis of the need to allow the swelling to subside, the need for immediate treatment arose as soon as the swelling was gone.

     Jett v. Penner, No. 04-15882, 2006 U.S. App. Lexis 5891 (9th Cir.).

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Requirement that prisoner's exhaust available administrative remedies before filing a lawsuit over prison conditions applies to a claim by a prisoner in a privately run prisoner over the alleged confiscation of several magazines by a prison employee.

     A prisoner was serving time in the Idaho Correctional Center, a prison operated by a private corporation, the Corrections Corporation of America, Inc. (CCA) under a contract with the Idaho Department of Corrections. He filed a federal civil rights lawsuit claiming that a CCA employee confiscated eight magazines from his cell because he had kept them for more than six months, in violation of his First and Fourteenth Amendment rights.

     The trial court dismissed the claim, based on the plaintiff prisoner's failure to exhaust available administrative remedies prior to filing his lawsuit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. sec. 1997e(a), which bars lawsuits over prison conditions without such exhaustion.

     On appeal, the prisoner acknowledged that he had not exhausted the prison's internal grievance procedures to try to resolve his complaint, but argued that the exhaustion of remedies rule did not apply because he is being held in a private, rather than state-owned, prison, and that, in any event, confiscation of magazines is not a "prison condition."

     The federal appeals court rejected these arguments, and held that the PLRA's exhaustion requirement "applies with equal force to prisoners held in private prisons," based on the language of the statute, and the purpose of the exhaustion requirement. The court also held that the confiscation of magazines constitutes a prison condition to which the exhaustion requirement applies.

     The statute applies to lawsuits by prisoners confined in "any jail, prison, or other correctional facility," which would include privately run prisons.

     The purposes of the exhaustion requirement, including the conservation of judicial resources through alternative dispute resolution mechanisms, the court found, were also served by this result. The requirement was intended by Congress to "reduce the quantity and improve the quality" of prisoner suits, and give correctional officials the time and opportunity to address complaints internally before allowing a federal lawsuit.

     Finally, while the PLRA does not define lawsuits over "prison conditions," it has been interpreted as including all inmate lawsuits about prison life, whether involving general circumstances or particular incidents. The court found that the prisoner's lawsuit over the alleged confiscation of his magazines fell within the meaning of lawsuits over prison conditions.

     Roles v. Maddox, No. 04-35280, 2006 U.S. App. Lexis 5037 (9th Cir.).

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     Editor's Note: Several other federal courts which have addressed the issue have also found that the exhaustion of remedies provision of the PLRA applies to privately-run facilities. See Pri-Har v. Corr. Corp. of Am., Inc., 154 Fed. Appx. 886 (11th Cir. 2005) ("By its terms, § 1997e(a) applies to prisoners confined in 'any' prison. Accordingly, § 1997e(a) applies to federal criminal prisoners in any prison, regardless of whether it is a federal prison or a privately operated facility."); Boyd v. Corr. Corp. of Am., 380 F.3d 989 (6th Cir. 2004) ("We are persuaded that the PLRA's exhaustion requirement applies to prisoners held in private facilities."); and Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004) ("Nothing in the language or policy of the PLRA excuses prisoners in privately operated institutions from exhausting available administrative remedies.").

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Nebraska correctional officer was not liable for failure to prevent attack on prisoner in his cell when he had no knowledge that the prisoner had been transferred to the facility to avoid retaliation against him by a motorcycle gang for having exposed their plot to kill a correctional officer in Virginia.

     A Virginia prisoner was transferred first to Minnesota and then to Nebraska, to protect him from possible retaliation after he had exposed a plot by the "Pagan Motorcycle Gang" to kill a Virginia corrections officer. One morning, in the Nebraska facility, the prisoner woke up in his cell, and found another prisoner stabbing him in the back with a sharpened screwdriver and telling him, "Nothing personal. Just a message from Pagan." The attacker, who was masked, turned him over and attempted to slash his throat, but he managed to fight off the attacker, who then ran away and was never identified. The attacked prisoner suffered injuries to his arm and shoulder, cracked teeth, puncture wounds to his back and left arm, and cuts under his chin.

     The prisoner filed a federal civil rights lawsuit claiming that a correctional officer who controlled access to his cell at the time of the attack had violated his Eighth Amendment rights by failing to protect him against the attack.

    Upholding qualified immunity for the officer, a federal appeals court found that there was insufficient evidence that the officer recklessly disregarded a known risk of serious harm. The officer did not know that the prisoner had been transferred from the Virginia prisons for safety reasons, or that he was an enemy of the Pagan gang, and had, in fact, never even heard of the Pagans.

     The attacker may have gained entrance to the plaintiff's cell after the defendant officer activated controls opening the cell doors for breakfast. The court found that the evidence, including a daily log for that day, did not support an argument that the officer must have intentionally opened the cell door early to assist the attacker. The appeals court ruled that a reasonable jury could only find that the cell doors were open for regular breakfast during the period recorded in the daily log.

     Fender v. Bull, No. 04-3898, 2006 U.S. App. Lexis 3236 (8th Cir.).

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In lawsuit over prisoner's death from dehydration in his cell, where water was frequently turned off during a "heat alert," eleven prison employees were not entitled to qualified immunity, since there was evidence from which it could be found that they knew of his need for water and psychological treatment, but did little or nothing to assist him. Appeals court also finds that four other defendants were entitled to qualified immunity.

       In a lawsuit brought against fifteen Michigan correctional employees on duty at various times during the isolation, dehydration, and eventual death of a prisoner, a federal appeals court found that eleven of the employees were not entitled to qualified immunity from liability, but that four of them were.

     At the prison, Bellamy Creek Correctional Facility, located in Ionia, Michigan, the facility was placed on heat alert in the summer of 2002, a warning issued whenever the outdoor temperature exceeds 85 degrees. That afternoon, the prisoner collapsed outside while waiting in line to enter the mess hall. One of the officers who came to his assistance observed that he was crying, talking about his father, and talking "about dying," and did not "make sense." She did not perceive any physical problems, but believed he might have mental problems. He was taken to an observation cell.

     The prisoner started "barking like a dog," and loudly screaming. While a psychiatric referral form was filled out, the prisoner "stiffened up" when they tried to move him to his regular cell. Based on this and other actions, some officers believed that he was "faking" and was a "manipulator." He was returned to the observation cell.

     At one point, an officer found that the water to the cell had been turned off. The prisoner again was observed walking back and forth, barking and yelling. And some officers reported that he was not drinking. A psychologist observed the prisoner and found that he was "acting somewhat strangely." He asked the psychologist to have the water turned back on. The prisoner was subsequently observed drinking from his toilet.

     The prisoner was ultimately discovered dead in his cell, naked on the floor, in full rigor mortis, with eyes open and vomit encrusted on his mouth. The water to his cell was turned off and the toilet was dry. An autopsy showed that he had died of dehydration.

     Examining the circumstances of the death, the federal appeals court found that something "obviously went wrong" during the last six days of the prisoner's life. Further, it found "little room for debate" about the "objective component" of a claim for violation of Eighth Amendment rights since there was no argument that the deprivation of water and medical care, including psychological services would be sufficiently serious. The key issue as to the individual defendants' possible liability, therefore, was their subjective knowledge of the risk to the prisoner.

     The appeals court divided the defendant officers into two groups--those involved only in treating his collapse outside the mess hall on the day he was taken to the observation cell, and those involved in his treatment from that day forward.

     The two officers who assisted the prisoner outside of the mess hall had involvement with his case that ended after they transferred him to the observation cell. While they perceived that he needed psychological care, they had no reason to expect, the court found, that the officers charged with his care in the observation cell would fail to secure that help. They also had no reason to think that the prisoner was dehydrated at that point in time. They were therefore entitled to qualified immunity.

     The other 13 defendants all had some involvement with the prisoner after his transfer to the observation cell, and each of them learned at one time or another, the court found, about his serious psychological needs or his potential for dehydration. The appeals court found that the plaintiff presented sufficient evidence from which eleven of the remaining defendants could have inferred that there was a substantial risk of serious harm to the prisoner's health and safety from the deprivation of water or psychological treatment, or both.

     Each of these eleven, the court found, appeared to have repeatedly received or perceived sufficient facts to indicate that the prisoner needed water and/or psychological treatment, but did little or nothing to assist him. There was evidence that the water was repeatedly off during many of these defendants' shifts, and other inmates heard the prisoner asking for water throughout the week, while the prison was on heat alert. The prisoner apparently "languished" in his cell for five days without the door being opened, and with the officers apparently being unable to readily see into his cell for part of the time.

     While this did not necessarily establish that each of these defendants showed deliberate indifference to the prisoner, the court stated, it did establish facts from which a factfinder could find that they had, so that they were not entitled to qualified immunity. In contrast, the remaining two defendants, a correctional sergeant and a nurse, worked only one 8 hour shift between the prisoner's collapse and his death, and neither of them had sufficient exposure to him to create a triable issue of deliberate indifference on their part.

     Clark-Murphy v. Foreback, No. 05-1323, 05-1394, 2006 U.S. App. Lexis 2817 (6th Cir.)

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Jailers did not act with deliberate indifference in failing to prevent detainee's suicide attempt when they based their actions on the opinion of a psychiatric doctor that the prisoner, in previously stabbing himself in the wrist and drinking cleaning solution, was not suicidal, but merely "acting out" and "malingering."

     A Minnesota man arrested on a domestic assault charge attempted suicide while being held at the McLeod County jail. He suffered serious brain injuries as a result of the unsuccessful attempt, and his guardian filed a lawsuit asserting federal and state claims based on the failure to prevent the attempt.

     When first arrested, the detainee denied any suicidal tendencies or past suicide attempts. Two days later, it was discovered that he had stabbed himself in the wrist approximately twelve times with a pencil and had written "I Love Adrian" on the cell wall in blood. He later also admitted drinking cleaning solution. He was taken to a hospital where he confessed suicidal intentions to a doctor, and taken to a psychiatric hospital for an evaluation. The doctor there determined that he was not suicidal but merely experiencing "anxiety" and "acting out." Close supervision was suggested, and he was returned to the jail, where no further incidents occurred for over two weeks.

    He then again stabbed himself in the wrist with a pencil and consumed more cleaning solution. He was again taken to the local hospital and then to the psychiatric facility. Again, close monitoring was recommended, as well as withholding sharp objects and cleaning solution. Anxiety medication was also prescribed, but he was again returned to the jail. Once there, the jailers were unable to fill the prescription for the medication, because the pharmacy was closed.

     The jail's administrator decided that 30-minute well-being checks would be sufficient, and these were conducted. Between two of the checks, the prisoner hung himself by a bed sheet from a ceiling vent in the cell. When found, he was not breathing, and was taken to a hospital. While he survived, he suffered serious brain injuries.

     Claims against one of the doctors at the psychiatric facility was settled, but the county and the jailers asked for and were granted summary judgment on both federal civil rights and state law negligence claims.

     The appeals court upheld summary judgment for the county and jailers. The plaintiff argued that three specific decisions by the jailers showed deliberate indifference to a known risk of suicide: "conducting well-being checks only every 30 minutes, failing to remove bedding and clothing, and failing to fill" the prisoner's prescription for the anxiety medication in a timely manner. The courts court found that those decisions were "not unreasonable" on the basis of the information known to the jailers at the time.

     The jailers' view of the risk of suicide was based on the diagnosis and recommendations of the doctor at the psychiatric facility, who stated that the prisoner was not suicidal, but instead "simply manipulative" and engaged in "malingering." In light of that, the jailers' actions did not constitute deliberate indifference as required for a federal civil rights claim.

     The appeals court further found that, under Minnesota state law, the defendants were entitled to official immunity based on their having taken discretionary acts in the course of their official duties.

     Drake v. Koss, No. 05-1464, 2006 U.S. App. Lexis 5396 (8th Cir.).

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Wisconsin prison properly barred inmate from possessing books he claimed were essential for the practice of his "Odinist" religion, when they were found to advocate white supremacist violence.

     A Wisconsin prisoner claimed that prison officials violated his rights to religious freedom under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, by prohibiting him from possessing the books, Creed of Iron, Temple of Wotan, and The NPKA Book of Blotar, which he argued were necessary to practice his religion of Odinism (or Odinic Rite), which like Asatru and Wotanism involves the worship of Norse gods. The prisoner claimed that the withheld books are religious texts, while the prison officials found that the books were non-religious and promoted "white-supremacist violence."

     Examining the issues in the case, a federal appeals court noted that the prisoner's best argument was based on the RLUIPA, which prohibits prisons that receive federal funding from substantially burdening an inmate's religious exercise unless the particular action is the least restrictive way to advance a compelling state interest. Under the First Amendment, prisons may enforce neutral rules based on a reasonable relationship to a legitimate governmental interest.

     The prison officials conceded that Odinism is a religion, and the trial court assumed that denying the prisoner the books in question "substantially burdened" the exercise of that religion. The trial court, nevertheless, ruled that the prison's interest in preserving security is compelling because the books advocated violence, and banning the books was the lease restrictive means to advance that interest. As a result, the prisoner did not have a winning claim under the strict rules of the RLUIPA, much less under the First Amendment.

     The federal appeals court expressed its doubt that keeping these particular books out of the prison "substantially burdens anyone's religious exercise," and noted that the only evidence of that presented by the prisoner was his own "unreasoned say-so, plus equivalent declarations by other inmates." An expert report by a UCLA professor with expertise in folklore and Old Norse language and literature, presented by the defendants, concluded that Temple of Wotan and Creed of Iron are not Odinic or even religious but are secular works promoting racism. As for The NPKA Book of Blotar: even the author of the book states that it is not an "authoritative text" on Odinic religion and that its description of rituals is "by nature fictitious." The court found that a book "about fictitious rituals, rather than actual ones, is not vital to any religious practice."

     The appeals court also agreed that the ban on the books in question was the least restrictive means of promoting a compelling interest in safety. The prisoner did not "seriously contest," the appeals court noted, the conclusion that the books advocate violence. While the prisoner claimed that the warden of the prison had "exaggerated" the security concerns raised by the books, "a prisoner's view of what promotes prison security is hardly objective."

     The appeals court rejected the argument that the books had been excluded merely because they endorse white supremacist views, finding that the principal reason was the prison officials' finding that the books promote violence to "exalt the status of whites and demean other races." The books were banned not because of their underlying racist view, but rather because of the "means" advocated to advance that view--violence, a sufficient basis to forbid the books as a prisoner's reading matter.

     The appeals court also rejected the prisoner's argument that the prison officials could remove passages in the books that advocate violence. The court found this unrealistic since the books ranged from 175 to over 400 pages, and promoted violence throughout their contents.

     Borzych v. Frank, No. 05-3907, 2006 U.S. App. Lexis 5278 (7th Cir.).

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Chemical Weapons

     Sheriff and officers were not entitled to summary judgment in prisoner's lawsuit challenging their use of pepper spray against him at county jail. Factual issues existed as to how long he was sprayed, and whether he was "adequately irrigated" afterwards or allowed to suffer unnecessarily. Court also holds that the plaintiff was not required to exhaust available administrative remedies prior to pursuing his excessive force lawsuit, pursuant to 42 U.S.C. Sec. 1997e, since he was now a former prisoner. The requirement to exhaust such remedies only applies to current prisoners. Norton v. City of Marrietta, Ok, No. 04-7133, 432 F.3d 1145 (10th Cir. 2005).

Defenses: Notice of Claim

     A prisoner who alleged that he was bitten by a dog under the control of a correctional officer while in a California youth detention facility could file a late notice of claim against the defendant government entities and employees when the failure to do so was based on "excusable neglect," specifically a legal secretary's mistaken removal of the claim filing deadline from an office calendar. Renteria v. Juvenile Justice Dept. of Corrections, No. C049717, 37 Cal. Rptr. 3d 777 (Cal. App. 3d Dist. 2006).

DNA

     Texas statute providing for compulsory seizure of prison inmate's DNA for use in a database did not violate his right against compulsory self-incrimination under the state Constitution, and also was not a violation of the prohibition in the state Constitution of unreasonable searches and seizures. Johnson v. Davis, No. 14-04-00206-CV, 178 S.W.3d 230 (Tex. App. 14th Dist. Houson 2005).

Federal Tort Claims Act

     Even if alleged confiscation of federal prisoner's art supplies violated a Bureau of Prisons' regulation, this was insufficient to state a claim for damages under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a), since the discretionary function exception to the statute applied. The regulation itself made discretionary decisions regarding the removal and disposal of art and hobbycraft items. Terrell v. Hawk, No. 05-2642, 154 Fed. Appx. 280 (3rd Cir. 2005).

First Amendment

     First Amendment right of prisoners to receive gift publications was not "clearly established" in the middle of 2000, when a Kansas state prison rule barred such receipt, so that prison officials were entitled to qualified immunity from damages in lawsuit filed by inmates and the non-profit publisher of a periodical focusing on legal issues of interest to prisoners. Prison Legal News, Inc. v. Simmons, No. 02-4054, 401 F. Supp. 1181 (D. Kan. 2005).

     Texas prisoner stated a viable claim of unlawful retaliation against correctional officer who allegedly repeatedly harassed and threatened him with physical abuse for refusal to work as a prison informant, and for failing to supply the names of prison employees allegedly involved in drug trafficking. David v. Hill, No. C.A.C-04-673, 401 F. Supp. 2d 749 (S.D. Tex. 2005).

Frivolous Lawsuits

     Prisoner's claim that his 8th Amendment rights had been violated by an electronics instructor's instructions to go to a restroom to clear his nasal passages and to cease bothering the class with his "frequent" throat clearing was frivolous. The instructor did not act in an "egregious" manner, and the prisoner had no constitutional right to receive an education while incarcerated. Flanyak v. Ross, No. 05-2868, 153 Fed. Appx. 810 (3rd Cir. 2005).

Inmate Funds

     Department of Corrections' collection of prisoner's debt to it from his inmate savings account at the time of his release did not violate a statute requiring a mandatory savings of a portion of his funds so that he would not be released in a totally indigent condition. In re Smith, No. 31426-6-II, 125 P.3d 233 (Wash. App. Div. 2 2005).

Mail

     A prison's complete ban on all mail between a prisoner and his attorney-friend, based on the prisoner being suspected of engaging in a prohibited paralegal business with the friend was overbroad and risked chilling the prisoner's access to the courts and counsel. A preliminary injunction against the ban was therefore granted. Evans v. Vare, No. 3:05-CV-3CR, 402 F. Supp. 2d 1188 (D. Nev. 2005).

     Censorship of a prisoner's outgoing mail under a Wisconsin regulation on the basis that it was believed to contain "encoded" references to gang activities did not violate his free speech rights. Koutnik v. Brown, No. 04-C-911, 396 F. Supp. 2d 978 (W.D. Wis. 2005).

Medical Care

     Prisoner stated a viable 8th Amendment claim by alleging that a prison doctor gave him an "unapproved" drug with potentially serious side effects, which caused him to vomit whenever he ate. The prisoner also allegedly suffered from priapism as a result, a persistent painful erection of the penis without sexual desire or arousal. Adams v. Durai, #05-2175, 153 Fed. Appx. 972 (7th Cir. 2005).

     Prisoner's estate, by asserting that prison medical personnel were deliberately indifferent for months to his medical condition, including persistent sinus problems, while his weight dropped from 190 to 138 lbs. stated a claim for violation of his 8th Amendment rights and could be the basis of liability for his subsequent death from an intracerebral abscess caused by bacterial sinusitis. Billops v. Sandoval, No. Civ.A. H-05-0530, 401 S. Supp. 2d 766 (S.D. Tex. 2005).

     Claim that county jail provided inadequate medical care to pre-trial detainee who subsequently died of meningitis was sufficient to support a lawsuit for violation of his Eighth Amendment rights. His estate had standing to sue on behalf of his surviving next of kin, including his spouse, and an affidavit by a medical professional as to the merits of the case, required under Illinois law in medical malpractice cases, was not required in the estate's federal civil rights lawsuit. Thomas v. Cook County Sheriff, No. 04C3563, 401 F. Supp. 2d 867 (N.D. Ill. 2005).

Prison & Jail Conditions: General

     Being forced to sleep on the floor of a prison cell, without a mattress, next to a toilet, was not intended as punishment, and did not violate a pre-trial detainee's due process rights. Brokins v. Williams, No. CIV. 04-1250, 402 F. Supp. 2d 508 (D. Del. 2005).

Prison Litigation Reform Act: Exhaustion of Remedies

     A federal prisoner's failure to exhaust available administrative remedies, as required by 42 U.S.C. Sec. 1997(e) prior to filing a lawsuit was excused because of the prison's failure to inform him of a new appeals procedure. His lawsuit seeking $113.40 in damages for personal property allegedly lost during a transfer to a new facility, therefore, rather than being dismissed, would merely be stayed while the prisoner continued with the administrative appeals process. Campbell v. Chaves, #04-78, 402 F. Supp. 2d 1101 (D. Ariz. 2005).

     While prisoner filed grievances concerning his claim that he was illegally terminated from his kitchen work assignment on the basis of his race, he failed to show that he appealed his grievance to the Secretary of the Florida Department of Corrections, and therefore did not exhaust his available administrative remedies prior to filing suit, as required by 42 U.S.C. Sec. 1997e. Lyons v. Trinity Services Group, Inc., No. 02-23142, 601 F. Supp. 2d 1290 (S.D. Fla. 2005).

Prison Litigation Reform Act: Mental Injuries

     A prisoner was barred, under 42 U.S.C. Sec. 1997e(e), from pursuing claims for mental injuries or stress when he failed to assert that he had suffered any physical injury. His assertion that an officer "yelled" at him, and that officers came to his cell with stun guns and pepper mace, asking him to come out of his cell, as well as writing conduct reports against him when he was facing criminal charges and hernia surgery was insufficient, since verbal abuse and harassment does not establish a civil rights violation. Shorter v. Lawson, No. 3:05-CV-0458, 403 F. Supp. 2d 703 (N.D. Ind. 2005).

Prisoner Assault: By Inmates

     Prisoner could not pursue a federal civil rights claim based on a jail employee's alleged incitement of other inmates to attack him, when he did not assert that any such attack actually occurred. Henslee v. Lewis, 153 Fed. Appx. 178 (4th Cir. 2005).

Prisoner Death/Injury

     State of New York had no duty to provide an inmate with instructions on the use of or warnings concerning the dangerous of using an angle grinder in his work assignment, and therefore was not liable for injuries he suffered when he set the grinder down on a workbench while it was still operating. Coming into contact with the spinning disk of the grinder was an "obvious danger" and the prisoner, who had worked in the construction industry for twenty years, was familiar with power tools and angle grinders in particular. Manganaro v. State of New York, 805 N.Y.S.2d 710 (A.D. 3rd Dept. 2005).

Religion

     Warden was not entitled to summary judgment on prisoner's claim that he violated his right to religious freedom by prohibiting him from wearing religious garments as an Orthodox Jew while being transported outside the facility for eye surgery. Factual issues existed as to whether the warden's action was reasonable in light of security requirements. There were also factual issues as to whether the prisoner suffered damages because of the resulting delay in the eye surgery. Boles v. Neet, No. CIV03CV00557, 402 F. Supp. 2d 1237 (D. Colo. 2005).

     Prison officials were entitled to qualified immunity on prisoner's claims concerning their alleged wrongful denial of his request for accommodation of his religious need to possess a crystal as part of his practice of Odinism, since his right to possess such a crystal was not clearly established at the date of the incidents at question. Smith v. Haley, No. 2:01cv1430, 401 F. Supp. 2d 1240 (M.D. Ala. 2005).

Sexual Offenders

     A prisoner convicted of sodomy on his nephew, a child less than twelve years-old, could not be granted a requested name change he wanted to assume his deceased mother's maiden name to honor her. Despite the fact that he would be required, following his sentence, to register as a sex offender, people who knew him by the name used prior to his incarceration might not get alerted to his presence and sex offender status unless his name remained the same. In Matter of Application of Guttkaiss, 806 N.Y.S.2d 402 (Sup. Ct. Columbia County, 2005).

Smoking

     Oklahoma inmate failed to show that exposure to second-hand tobacco smoke violated his Eighth Amendment rights. The prison showed that it complied with contemporary standards of the American Corrections Association concerning prison air quality, quantity, and ventilation, and the prisoner also failed to provide evidence that he suffered exposure to unreasonably high levels of smoke. Day v. Snider, No. 101,374, 125 P.3d 1229 (Okla. Civ. App. Div. 3 2005).

     Even if exposure of a civilly committed sex offender to environmental tobacco smoke in a treatment facility caused respiratory distress and aggravated his tuberculosis, he did not show a violation of his Eight Amendment rights, because he admitted that he was able to escape from the smoke by going to his room. Rivera v. Marcoantonio, No. 04-2030, 153 Fed. Appx. 857 (3rd Cir. 2005).

Work/Education Programs

     Arkansas prisoner had no constitutional right to being assigned to a particular prison job, and therefore could not pursue a civil rights claim over his alleged loss of his prison job based on a disciplinary conviction for violating correctional drug policies which was later reversed on appeal. Sanders v. Norris, No. 05-2398, 153 Fed. Appx. 403 (8th Cir. 2005).

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     Sexual Assault: California has enacted a statute, the Sexual Abuse in Detention Elimination Act, seeking to protect inmates from sexual assault while held in California detention facilities. The statute requires correctional officials to develop guidelines for the provision of resources and counseling from outside organizations to inmates and wards, provide inmates and wards with informational handbooks regarding sexual abuse in detention; adopt specified policies, practices, and protocols related to the housing of inmates, physical and mental health care of survivors, and investigation of sexual abuse; and ensure accurate data collection concerning sexual abuse across all institutions. The bill also establishes an Office of the Sexual Abuse in Detention Elimination Ombudsperson to monitor the prevention of and response to sexual abuse that occurs in California facilities.

     "Situation of detainees at Guantánamo Bay, " U.N. Commission on Human Rights (Feb. 2006).

     Testimony: On February 8 and 9, 2006, the Commission on Safety and Abuse in America's Prisons convened in Los Angeles, California, to hear testimony about gang violence from veteran corrections professionals and prison monitors, former prisoners and gang members, and other national experts. Over thirty witnesses testified including: Roderick Hickman, California Corrections Secretary Gwendolyn Chunn, President of the American Correctional Association Harley Lappin, Director of the Federal Bureau of Prisons Matthew Cate, California Inspector General Scott Harshbarger, former Massachusetts Attorney General Judge Myron Thompson, U.S. District Court for the Middle District of Alabama and Anne Owers, Chief Inspector of Prisons of the United Kingdom. A transcript of the proceedings, in whole and by witness panel, is available on the Commission's web site, http://www.prisoncommission.org/  The Commission has announced that it will issue its Final Report and Recommendations in May of 2006. The Commission on Safety and Abuse in America's Prisons says it is a diverse, 21-member, non-partisan panel co-chaired by former United States Attorney General Nicholas de B. Katzenbach and the Honorable John J. Gibbons, former Chief Judge of the Third Circuit Court of Appeals. The Commission formed in March 2005 to work for one year to explore the most serious problems inside U.S. correctional facilities and their impact on the incarcerated, the men and women who staff facilities, and society at large. The Commission is staffed by and funded through the Vera Institute of Justice.

Reference:

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

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