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Delay in providing prisoner with initially prescribed orthopedic footwear for painful foot condition was not deliberate indifference when there were disputes about the ultimate source of the prisoner's pain, and the proper treatment to be utilized. The fact that it was ultimately determined that the footwear was appropriate did not alter the result.

     A former prisoner of the Massachusetts prisons sued a company which provided medical services to inmates, along with seven health care professionals, claiming that they acted with deliberate indifference to his serious medical needs, specifically, that they provided inadequate medical care, during more than two years of his incarceration, including denial of initially prescribed orthopedic footwear, for "plantar fasciitis," a painful foot condition. A federal appeals court recently upheld summary judgment for the defendants on these claims.

     The evidence showed that after the prisoner first reported his foot pain, he was repeatedly examined by nurses and once by a physician. Medication for pain was then provided, x-rays were taken, and generic shoe inserts (heel cups) were provided. He was subsequently diagnosed with "acute plantar fasciitis," provided with an anti-inflammatory steroid injection, and advised to continue use of the shoe inserts and pain medication.

     Subsequent treatment included additional testing and x-rays, stretching exercises, ice, and alternative pain medication, as well as the prescribing and providing of different shoe inserts (arch supports). On a subsequent occasion, however, the prisoner would not allow a doctor to examine his feet, claiming that they were too sore to be touched. A dispute arose among several medical personnel concerning the proper footwear to be provided, and custom molded orthotic and walking shoes initially prescribed were withheld.

     While the prisoner met with medical professionals repeatedly during the next year and a half, he did not receive the prescribed orthotics, but he had various diagnostic tests, and a physical therapy consultation, as well as an evaluation by a neurosurgeon at a medical center. Ultimately, he was provided with the orthotic footwear previously prescribed.

     The federal appeals court rejected the argument that the delay in providing the orthopedic footwear after the initial prescription of them was an Eighth Amendment violation. The cancellation of the footwear "for now" was reasonably based, among other things, on the fact that the prisoner then had refused to allow medical personnel to examine his feet, and that a podiatrist has also not yet seen recently taken x-rays. Additionally, the following month, there were indications that perhaps there was a neurological problem rather than plantar fasciitis.

     While the course of treatment over the next 22 months ultimately did lead back to the prescription for the footwear, the court rejected the argument that the delay alone was deliberate indifference, in light of the defendants' ongoing efforts to identify the source of the prisoner's pain. The medical staff responded to the prisoner's complaints, used substantial resources to try to "get to the root of his problem," and adopted various measures to try to "alleviate his discomfort." Even if it could be concluded that failing to provide the footwear earlier was the result of "poor judgment," which the court did not determine, "this was not an omission that could be termed 'deliberate indifference to serious medical needs.'"

     Deliberate indifference, the court commented, can be found where the attention received is "so clearly inadequate as to amount to a refusal to provide essential care," which was not the case here.

     Feeney v. Corr. Med. Servs., No. 05-2224, 464 F.3d 158 (1st Cir. 2006).

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

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Pre-trial detainee failed to show that county sheriff's policies were inadequate to protect him and others at county detention facility against the risk of TB infection. Federal appeals court finds that deliberate indifference is the appropriate standard for claims of inadequate medical care for both pretrial detainees and convicted prisoners.

     A federal appeals court has rejected claims that a St. Paul, Minnesota, Ramsey County sheriff violated a detainee's rights by failing to implement adequate measures to protect him and other prisoners against tuberculosis (TB). The detainee filed a federal civil rights lawsuit asserting a claim for violation of substantive due process under the 14th Amendment against the sheriff after he tested positive for tuberculosis when he was transferred to a prison.

     After the trial court granted the sheriff summary judgment, finding that a reasonable jury could not find that the sheriff acted with deliberate indifference to the serious health risk that TB poses to both inmates and detainees, the plaintiff appealed, arguing that the trial court improperly applied the Eighth Amendment's deliberate indifference standard to the case because he had been a pretrial detainee at the time. He also argued that he had, in any event, shown sufficient evidence to indicate deliberate indifference.

     The sheriff, in support of his summary judgment motion, had submitted affidavits on the nature of the TB health risk at the county detention facility and the policies he implemented to avoid such TB infections. Inmates diagnosed with active TB, according to such policies, should be segregated from the general population for treatment until they are no longer infectious, and TB is diagnosed by testing which identifies an infected individual 48-72 hours after the test is administered, followed by a chest x-ray or sputum test for individuals who test positive on the initial test. The affidavits also made reference to the CDC's recommendations, Center for Disease Control, Prevention and Control of Tuberculosis in Correctional and Detention Facilities: Recommendations from CDC, 55 Morbidity and Mortality Wkly. Rep. RR09, July 7, 2006, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5509a1.htm

     The sheriff's own affidavit stated that he had published a detailed Policy and Procedures Manual governing the custody and treatment of persons detained at the facility, which includes initial medical screening, and a process for TB testing in connection with intake. Additionally, there was evidence that no inmate at the county detention facility at which the plaintiff was incarcerated was known to have an active case of tuberculosis for a number of years.

     The plaintiff claimed, however, that he was not initially screened at the facility, that many persons were not detained at the facility long enough to receive a Mantoux TB test, and that conditions in the overcrowded holding cells were "abhorrent." He argued that the fact that he contracted TB at the facility was "quite frankly, indisputable." He also submitted an affidavit from another former inmate at the facility claiming that the other inmate's cellmate had told him that he had a positive Mantoux test followed by a chest x-ray and had been required to take antibiotics as a result.

     The appeals court rejected the argument that the deliberate indifference standard was improper when applied to pretrial detainees in the context of medial care. "Pretrial detainees and convicted inmates, like all persons in custody, have the same right to these basic human needs. Thus, the same standard of care is appropriate." Such deliberate indifference, the court reasoned, is the appropriate standard of "culpability for all claims that prison officials failed to provide pretrial detainees with adequate food, clothing, shelter, medical care, and reasonable safety."

     While there may have been sufficient evidence that the plaintiff contracted TB at the county detention facility to establish the objective component of a serious problem as required by the deliberate indifference standard, there was no evidence that the sheriff actually knew of and recklessly disregarded a substantial risk of serious harm to detainees at the facility. The policies the sheriff adopted and implemented, rather than disregarding the risk of tuberculosis infection there, specifically acknowledged the risk and spelled out detailed procedures for the diagnosis, segregation and treatment of inmates infected with active TB.

     The plaintiff, of course, asserted, "with virtually no supporting evidence," the court commented, that those screening procedures were not implemented at the facility. Even if that were true, however, that might be evidence that certain facility staff members negligently or deliberately failed to implement the sheriff's proper policies, but would not be evidence that "the policies themselves were unconstitutional."

     Butler v. Fletcher, No. 05-3480, 465 F.3d 340 (8th Cir. 2006).

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

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Alabama prisoner who sued correctional officer who allegedly injured his finger by kicking metal tray door failed to show that he suffered a serious injury or that the officer acted maliciously or sadistically, barring a federal civil rights claim.

     An Alabama state prisoner filed a federal civil rights lawsuit claiming that a correctional officer used excessive force against him.

     The prisoner's claim involved an assertion that the officer kicked a metal tray door so that it closed on his hand, and thereby attempted to break his finger, resulting in him suffering injuries. Another officer allegedly was on the scene and observed this, but failed to intervene. The plaintiff prisoner submitted supporting affidavits from other prisoners supporting his version of the incident.

     The officers, on the other hand, maintained that the prisoner's injury was the result of accident after the prisoner willfully refused to take his arm from the door, through which dinner trays were distributed. They also submitted, in their defense, medical records purporting to show that the prisoner's only real injury amounted to a cut finger, requiring nothing other than ordinary non-prescription pain relief, and a tetanus shot administered just in case of infection.

     The trial court granted summary judgment for the defendant officers. A federal appeals court upheld this result, finding, under the circumstances that the injuries that the prisoner suffered were so minimal as to be insufficient to support a claim for violation of a constitutional rights, as well as that the facts failed to show that the officers acted maliciously or sadistically for the very purpose of inflicting harm.

     The officers' lack of such intent was supported by the fact that they immediately reported the incident, and began to seek medical attention for the prisoner just a few minutes later, and the fact that there was no threatening or abusive language by the officers in connection with the incident.

     Johnson v. Moody, No. 06-12422, 2006 U.S. App. Lexis 26988 (11th Cir.).

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

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Federal appeals court states that prison disciplinary panels "are not courts," and are not entitled to "deference" on their factual findings when a prisoner presents conflicting evidence.

     "Disciplinary panels in state prisons are not courts," a three-judge federal appeals court panel noted. And, "from this it follows that facts found (or assumed) by a prison disciplinary board are not entitled to the presumption of correctness" that the law applies to judicial hearings. This means that when a prisoner challenging a prison disciplinary result provides evidence, such as an affidavit by someone with personal knowledge of the events, contradicting an assertion by the prison disciplinary board on a factual issue pertinent to a constitutional law issue, the federal trial court is required to hold an evidentiary hearing to determine "where the truth lies."

     The panel stated that it was publishing an opinion in "this run-of-the-mine appeal because these established propositions frequently are overlooked in litigation arising from Indiana's prison system."

     In the case at issue, a guard at an Indiana prison charged a prisoner with preventing his cell from being locked at the curfew. A misconduct report indicated that the prisoner heard the warning for the daily lockup, realized that his cellmate was outside, and blocked the door until the cellmate could return. A disciplinary board then credited the report and revoked 30 days of the prisoner's good-time credits, which could extend the prisoner's time in custody.

     Because the state of Indiana does not offer judicial review of prison disciplinary decisions, the panel noted, any review comes in federal court. In such review, there is no "deference" to the disciplinary board's findings. The board stated, by checking a box on a form, that the prisoner did not ask for a delay in the disciplinary hearing, but he asserted that he did. According to him, a continuance would have allowed the board to obtain two additional pieces of evidence--testimony from a guard and a copy of the videotape made by a surveillance camera. He claimed that both this testimony and the videotape would have corroborated his version of events, that the doors were closed without the required warning, and without hindrance on his part.

     The board also stated that the prisoner had not sought to present any evidence at the hearing, while he stated that he did, not only at the hearing, in connection with the request for a continuance, but also by written request made before the hearing.

     Looking at the dispute, the appeals court commented, "one side or the other has the facts wrong." If the board was right, then all constitutional requirements for the disciplinary hearing were observed--adequate notice, an opportunity to present evidence, etc. If, on the other hand, the prisoner was right, then "the Constitution has been violated." While evidence can be excluded for reasons of institutional security, the state of Indiana had not argued, in this case, that there was any such reason which would excuse the testimony of the requested guard. On the issue of the security camera, the court also stated, while it may be prudent to prevent prisoners from learning the capabilities of the video monitors, this would not prevent the board from viewing the videotape recording "in camera" without the prisoner present.

     Because the prisoner swore under oath that he had made timely requests for the evidence, the trial court "could not properly assume" that the state's perspective was the right one.

     While prison disciplinary boards may resolve conflicts in the stories presented to them as long as "some evidence" supports the decision," but they are not entitled to "prevent the prisoner from offering material evidence." In this case, if the prisoner was telling the truth, "that's exactly what this board did," and an evidentiary hearing was not required to determine "what happened."

     Finally, the appeals court panel commented, "If Indiana wants federal courts to treat its decisions with more respect, it has only to provide for review in its own courts as an initial matter."

     Johnson v. Finnan, No. 06-1509 2006 U.S. App. Lexis 27166 (7th Cir.).

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

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Prisoner subjected to disciplinary punishments, some of which extend the duration of his confinement, and some which do not, may pursue federal civil rights lawsuit over those which do not, even though the disciplinary determination has not been set aside. The plaintiff must, however, then forgo any possible future claim as to those sanctions which do extend the duration of his confinement.

     What requirements must a prisoner meet before he can maintain a federal civil rights claim that challenges sanctions imposed following a prison disciplinary hearing? That was the issue recently faced by a federal appeals court, in a case it stated presented a "new twist on a familiar issue." 

The case law is clear that when a prisoner's challenge either to the process or the result of a prison disciplinary proceeding necessarily implies the invalidity of a sanction that affects the duration of his sentence, such as the deprivation of good-time credits, the prisoner may not maintain an action under [42 U.S.C.] § 1983 unless he has shown that the sanction (or the procedures that led to it, if the procedural defect at issue was critical to the imposition of the sanction) have been overturned through administrative channels or by a state or federal court. It is also clear that when a prisoner's challenge involves a sanction that affects only his conditions of confinement, this "favorable termination" requirement does not apply and a prisoner may maintain an action under § 1983 without showing that the sanction (or the procedures that led to it) have been previously invalidated.

     What was not clear, the court found, however, is whether a prisoner who is subject to a single hearing that results in two types of punishments--one that affected the duration of his custody, and the other that only affected the conditions of his confinement can--without needing to satisfy the "favorable termination rule," pursue a federal civil rights lawsuit aimed solely at challenging the second type of sanction.

     The appeals court resolved that "open question," and held that, in cases of "mixed sanctions," a prisoner can, without showing that the challenged disciplinary proceeding or resulting punishments have been set aside, proceed separately with a federal civil rights lawsuit aimed at the punishments that only affect the conditions of his confinement. "But we also hold that he may only bring such an action if he agrees to abandon forever any and all claims he has with respect to the sanctions that affected the length of his imprisonment."

     In the case at issue, a New York prisoner was accused of cutting another inmate several times with a razor-type weapon. After a hearing, he was found guilty, and punished by five years of confinement in a Special Housing Unit (SHU), five years loss of packages, commissary, and telephone privileges, and five years loss of good-time credits. This was modified on administrative appeal to 24 months of SHU confinement, 24 months of loss of packages, commissary, and phone privileges, and 24 months loss of good time credits.

     In his federal civil rights lawsuit, the prisoner claimed that a number of correctional officials denied him "adequate assistance, witnesses, and a fair and impartial hearing officer," and thereby deprived him of due process and protection against cruel and unusual punishment. The prisoner opposed the defendants' attempt to have his lawsuit dismissed on the grounds that he sought damages only for those sanctions affecting his conditions of confinement and not for the loss of his good-time credits, so that he could maintain his claim despite not having demonstrated that the sanctions or hearing had already been invalidated.

     The appeals court's ruling overturned the trial court's grant of dismissal of the complaint. On remand, the appeals court ruled, the trial court must determine whether the plaintiff prisoner has agreed or is then willing to waive all his potential claims on the loss of good time credits arising out of the disciplinary proceeding. If so, he will be allowed to proceed with his federal civil rights claims as to the punishments only affecting the conditions of his confinement.

     Peralta v. Vasquez, No. 04-2822, 2006 U.S. App. Lexis 25697 (2d Cir.).

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

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Despite prior suicide attempt by detainee, jail caseworker/counselor was not liable for 18-year-old's subsequent successful suicide when she returned him to a single person cell in the general population of the jail. She was entitled to qualified immunity, as there was no clearly established law indicating that her actions would violate his constitutional rights, even if she arguably acted with poor judgment.

     An 18-year-old detainee at the Oakland County Jail in Pontiac, Michigan hung himself from a bedsheet tied to a vent in his single cell in the facility, resulting in his death three days later. The detainee's father, as the representative of his estate, filed a federal civil rights lawsuit against the county, the caseworker/counselor at the jail, the county sheriff and several of his deputies, and a jail psychiatrist claiming that they violated his son's Eighth Amendment rights by failing to provide appropriate mental health treatment and suicide monitoring.

     Upholding judgment for the defendants, a federal appeals court found that, while there was a genuine issue of fact as to whether the caseworker/counselor violated the detainee's rights, she was entitled to qualified immunity because her conduct did not violate clearly established rights, but that the plaintiff failed to present a viable claim that the county acted with deliberate indifference by having case workers making housing decisions concerning inmates that sometimes impacted on their medical needs.

     The detainee had, during prior incarceration at a "boot camp" on felony larceny charges told a counselor that he was experiencing hallucinations and hearing voices telling him to "quit or escape." He was subsequently transferred to the county jail, where he was met by the defendant caseworker. He allegedly told her that he had been hearing voices for the past two years telling him to hurt himself, but that he did not "listen" to the voices. He also stated that he had previously attempted to hang himself at the ages of 14 and 17.

     The caseworker ordered a psychiatric evaluation, and the doctor noted the detainee's history of hearing voices and considering suicide, his learning disability, and a prior diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). The doctor diagnosed him with schizoaffective disorder, a personality disorder, and a learning disorder, prescribed psychiatric medication, individual counseling, and substance abuse counseling, and also noted that the detainee should be "watched closely."

     The detainee was housed with a roommate and placed on a 30-minute "active behavior watch (ABW)" based on the assessments of the counselor and doctor. The counselor again met with the detainee when he refused to take his medication, and decided to discontinue the 30-minute ABW after the meeting. He subsequently allegedly indicated that he was considering harming himself, and he was placed then on an "active suicide watch (ASW)."

     When he told the casework the following day that he felt better and had no suicidal thoughts or intentions, she downgraded his status from ASW to ABW, believing that he seemed stable, and approved his reassignment to the main jail. He did later have a fight with another inmate, but otherwise was without incident until his release.

     Upon a subsequent incarceration at the jail, he told a guard that he was hearing voices, asking to speak to a counselor, but stating that he did not feel suicidal. He then attempted suicide unsuccessfully, and stated that he had done so in order to see a counselor and obtain medication sooner. He later was taken off of ASW and transferred to the general population, when the counselor found that he was being cooperative.

     The detainee ultimately hung himself with a bed sheet tied to the vent of his cell and died after placing a sheet over his cell to block the view inside.

     The appeals court noted that the detainee attempted suicide in his cell only a month or so before his successful attempt. It found that, despite this evidence, and other evidence of suicidal thoughts in the past, there were reasons to doubt the conclusion that he posed a strong likelihood of another suicide attempt, including the opinion of a licensed and trained psychiatrist during an evaluation shortly before the final attempt, and the counselor's notes from her counseling sessions with the detainee, during which he denied any suicidal intention. Despite this, the appeals court ruled, there was a question of fact as to whether there was a recognizable significant likelihood of the detainee attempting suicide, as well as on whether the caseworker/counselor knowingly disregarded this risk by moving the detainee to single cell housing without first requesting a medical judgment from the psychiatrist as to whether that placement was appropriate.

     Even if there was an arguable claim that the caseworker/counselor acted with deliberate indifference, the court found, she was still entitled to qualified immunity under the circumstances, because of the absence of a clearly established right that was violated by her actions.

     The appeals court found that "no law exists" that would clearly establish for a person in the caseworker/counselor's position that her actions were violating the detainee's Eighth Amendment rights under the circumstances at issue at the time, in the fall of 2002.

     While she may have demonstrated "poor judgment" in making critical decisions based on her own assessment of the detainee's risk of suicide, and may have underestimated his risk of suicide, making a cell-assignment decision without first consulting the detainee's treating physician or prison psychiatrist, these alleged errors were at most negligent, but the court found no case law to show that any such errors would clearly violate the detainee's Eighth Amendment rights.

     The appeals court also rejected the argument that the county acted with deliberate indifference by allowing case workers to make housing decisions, given the lack of any evidence that the practice had ever previously resulted in a suicide or attempted suicide by another inmate, either at the county jail or in another jail across the county. And the court rejected the argument that it seemed "obvious" that allowing a caseworker "well-trained in mental health needs and suicide to occasionally make housing decisions that affect the mental health of inmates" would result in a suicide.

     One judge on the three-judge appeals panel dissented in part, disagreeing with the conclusion that the case worker/counselor was entitled to qualified immunity.

     Perez v. Oakland County, No. 05-1583, 2006 U.S. App. Lexis 25754 (6th Cir.).

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

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Muslim prisoner stated viable claims for violation of his rights in prison officials' actions requiring Shi'ite and Sunni Muslims to celebrate religious holiday services together, in denying him access to religious worship and holiday meals while in keeplock, and in forcing him to choose between attending religious services and using the law library on religious holidays. Prison officials failed to offer particularized justifications for these alleged deprivations, and were therefore not entitled to summary judgment.

     A New York Muslim prisoner claimed that prison officials violated his First Amendment rights and rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc to practice his religion. Specifically he claimed that the defendants improperly forced Shi'ite and Sunni Muslims to conduct Ramadan services jointly, denied him Islamic holiday meals and the ability to attend Islamic worship services, and refused to provide him with a Muslim chaplain or a free Qur'an.

     The Plaintiff, a Sunni Muslim, objected to being required to pray and fast for Ramadan jointly with Shi'ite Muslims. He also claimed that while in disciplinary keeplock for conspiracy to assault another prisoner, he was improperly denied the ability to attend Islamic holiday services, or, alternatively to eat holiday meals in his cell. He asserts that while the facility would provide him with a Catholic chaplain and a free Bible, it would not provide a Muslim chaplain, and, having no Qur'an in the prison library, required him to buy his own copy. He also claimed that a correctional employee forced him to choose between using the law library and attending Ramadan services on any given day, and also allegedly denied him Ramadan meals on days that he used the law library.

     The federal trial court granted summary judgment for the defendants on all these claims. A federal appeals court disagreed, finding that prison officials failed to present particularized justifications for these alleged denials.

     The appeals court found that the defendants failed to show anything in the record supporting a conclusion that they relied on legitimate penological justifications such as security, fiscal, space, and staffing limitations, etc. to justify the requirement that Sunni and Shi'ite Muslim inmate celebrate Ramadan services together. With nothing in the record on the issue, the appeals court found, it could not find that prison officials were worried that separate services would endanger inmates, or that they were short on space for separate services, or had some other reason for mandating the joint services. Accordingly, the prisoner successfully showed, based on the evidence so far, that his free-exercise rights were "substantially burdened" by a joint-worship policy not justified by a legitimate penological interest or the more stringent compelling governmental interest required by RLUIPA--showing a viable claim for violation of both his RLUIPA and First Amendment rights.

     The appeals court also found that the defendants failed to present any real justification for denying the prisoner religious meals in his cell during keeplock. "We fail to see, and the record does not establish, how denying Salahuddin in-cell meals (as opposed to communal meals) could relate to an interest in avoiding inmate violence." The facts, in the light most favorable to the plaintiff, showed a violation of his free-exercise rights by exclusion from religious services and denial of in-cell religious meals "for no permissible reason." 

     The appeals court further noted that the defendants, in their summary judgment motion, made no mention at all of the prisoner's claims concerning their failure to supply a Muslim chaplain or a copy of the Qur'an, so that summary judgment on those claims was also improper.

     The appeals court also found meritless the defendants' arguments attempting to justify forcing the prisoner to choose between attendance at Ramadan meals and services and use of the prison law library, as no particular justification was presented.

     The defendants argued that the summary judgment on this issue should be upheld because the prisoner did not show that his law library attendance was necessary to avoid prejudicing a particular legal claim. This, the court commented, "misses the point":

Even if the activity triggering the denial of Salahuddin's ability to attend religious services was plainly irrelevant to his constitutional rights -- such as having a second helping of dessert -- our analysis would remain the same because the pertinent question remains unanswered: what penological interest lay behind the policy that excluded this inmate from religious services?

     Accordingly, the prisoner also showed a violation of his free-exercise rights in being excluded from religious services without any reason when he used the law library.

     Salahuddin v. Goord, No. 04-3470, 2006 U.S. App. Lexis 26819 (2d Cir.).

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

     Editor's Note: It is useful to recognize that the federal appeals court decision reported above does not say that any of the policies or actions at issue could not be justified by legitimate or even compelling governmental interests--merely that the defendants in this case failed to present in particular what, if any, their justifications were.

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Federal appeals court rules that, in pro se lawsuit filed by prisoner over denial of access to a controversial religious text, the trial court should have considered whether the prisoner had a claim under the Religious Land Use and Institutionalized Persons Act, a federal law requiring the showing of a compelling governmental interest before infringing on free exercise of religion, even though the plaintiff did not refer to that statute in his complaint. Summary judgment for prison officials is upheld, however, under the less stringent First Amendment legal standard.

     A Pennsylvania prisoner claimed that the prison superintendent and the publication review committee improperly burdened his ability to practice his religion of "Yoruba/Palero/Vodun" by denying him access to a religious text.

     He purchased, by mail, two volumes of a religious text named "El Libro," by Carlos Montenegro, a Palero priest. He later received a form notice from the publication review committee at the facility informing him that it had disapproved "El Libro" under the Pennsylvania Department of Corrections policy. The committee stated that the books fell into the category of publications that "advocate, assist or are evidence of criminal activity or institution misconduct." The superintendent, on initial appeal, stated that the books were "obscene," but on reconsideration stated that, while "El Libro" was not, in fact, obscene, it did "refer to issues of control over other individuals, which is not permissible within a correctional setting," and that he would not overrule the committee.

     When the prisoner continued to appeal, the prison superintendent noted that "El Libro" contained "spells and rituals" and that, "there are individuals within these settings who are capable of believing that such spells are possible," so that "conflict that could arise because of this aspect makes this publication inappropriate." The prisoner was told that he could have the books returned to the publisher, mailed home, or destroyed. While he requested that the books be sent to a family member, he was later told that they had been destroyed because he had not provided postage slips and a mailing request in a timely manner.

     The trial court granted summary judgment on the prisoner's First Amendment claim. On appeal, the prisoner then argued that the trial court should have construed his complaint as also stating a claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). 42 U.S.C. § 2000cc-1(a), which requires that actions substantially burdening a prisoner's religious exercise be supported by a compelling governmental interest, rather than merely have a rational relationship to a legitimate governmental interest, the lower standard of First Amendment free-exercise of religion claims.

     The appeals court agreed that the trial court should have considered a possible RLUIPA claim by the prisoner, while upholding summary judgment on the First Amendment claim. RLUIPA states that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

     The appeals court noted that complaints filed by prisoners who were acting as their own attorneys at the time are to be "liberally" construed, and that the courts should "apply the relevant law, regardless of whether the pro se litigant has identified it by name."

     The appeals court therefore ordered consideration of the prisoner's claim under the RLUIPA standard.

     Smith v. Johnson, No. 03-2014, 2006 U.S. App. Lexis 27178 (3rd Cir.).

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

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Access to Courts/Legal Info

     Prison officials were entitled to summary judgment in lawsuit claiming that inmate was denied access to legal materials needed to pursue lawsuits and criminal appeals when there was evidence that officials had attempted to provide him with access to his materials, but the plaintiff prisoner failed to cooperate, and sometimes would even refuse to accept the property. Ferrell v. Beard, No. 3:CV-01-0924, 2006 U.S. Dist. Lexis 70825 (M.D. Pa.).

     The U.S. government sought to review materials impounded from various foreign detainees at Guantanamo Bay, Cuba, after detainees committed suicide or attacked guards, and the prisoners sought the return of documents seized from their cells. Among the papers seized from all detainees there following the incidents, some handwritten notes were on papers stamped "attorney-client privileged" that appear to relate to suicides and other security issues. A federal trial court upheld the government's review of impounded material containing attorney-client communications between detainees and their lawyers, so long as this was done using a "filter litigation team" of personnel, including translators, who would not be involved in future litigation, and would be prohibiting from disclosing any privileged attorney-client communications to anyone other than the court, with an exception for information concerning national security. Hicks (Rasul) v. Bush, No. 02-0299, 2006 U.S. Dist. Lexis 65973 (D.D.C.).

AIDS Related

     Federal appeals court upholds rejection of prisoner's claim that prison violated his rights by denying his demands that he obtain more extensive HIV testing, including testing of his urine and semen. Blood testing for HIV was the recognized standard, and the failure to test his urine and semen, if it occurred, did not constitute deliberate indifference to the prisoner's serious medical needs. Picquin-George v. Warden, FCI-Schuylkill, No.. 06-2850, 2006 U.S. App. Lexis 25557 (3rd Cir.).

Defenses: Statute of Limitations

     In prisoner's lawsuit claiming that jail officials failed to protect him from a sexual assault, his claim was barred by a two-year statute of limitations, since the alleged assault occurred in July of 1987. While the prisoner claimed that the limitations period should be tolled (extended) because he was mentally disabled, based on a 1998 finding of mental disability for purposes of Social Security, there were no records showing that he was disabled for the entire past 19 years in a manner leaving him entirely without the ability to make or communicate decisions concerning his affairs. Holtz v. Sheahan, No. 06-1785, 2006 U.S. App. Lexis 25514 (7th Cir.).

Diet

     Two prisoners adequately allegedly that they had been harmed by allegedly nutritionally inadequate diets after their previously prescribed medical diets were revoked. Court allows claims for deliberate indifference to continue against prison dietary manager and prison doctor. Orr v. Dawson, No. CV06-53, 2006 U.S. Dist. Lexis 68943 (D. Idaho).

Disability Discrimination: Prisoners

     Blind prisoner had no constitutional right to be placed in a cell with his son, who was also imprisoned on criminal charges arising from the same incident, despite his argument that he was dependent on his son for assistance. Quick v. Mann, No. 05-7102, 170 Fed. Appx. 588 (10th Cir. 2006).

Drug Abuse and Testing

     Substantial evidence adequately supported a determination that a prisoner violated prison rules against the use of controlled substances, including two positive drug test results, a misbehavior report, and other supporting documents. Mullen v. Superintendent of Southport Correctional Facility, 815 N.Y.S.2d 778 (A.D. 3rd Dept. 2006).

First Amendment

     Publisher of periodical with articles about prison legal issues, largely written by prisoners, failed to show that it suffered a constitutional injury from a Florida Department of Corrections regulation barring inmates from receiving pay for their writing to pursue a federal civil rights claim under the First Amendment. It failed to show, for instance, that the regulation had any impact on its ability to continue to publish the periodical. Prison Legal News v. Decker, No. 05-14738, 2006 U.S. App. Lexis 25377 (11th Cir.).

    Prisoner stated a viable claim for violation of his First Amendment rights in alleging that a correctional officer filed a baseless disciplinary charge against him in retaliation for his having supplied an affidavit supporting another inmate's grievance. The fact that the disciplinary report against the plaintiff prisoner was ultimately withdrawn merely showed that he was not subjected to greater harm, and did not eliminate his claim against the officer for initially filing the charge and for refusing to withdraw it. Zarska v. Higgins, No. 05-3204, 171 Fed. Appx. 255 (10th Cir. 2006).

Freedom of Information

     Trial court improperly granted summary judgment for the Bureau of Prisons in a prisoner's lawsuit alleging that it violated his rights under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552(a)(3)(B) by providing him with requested BOP documents in paper form rather than in an electronic format because of prison rules against inmate access to or possession of electronic media. A federal appeals court noted that the statute itself, as amended, requires federal agencies to provide, so far as possible, material in the format requested. At the same time, the issue of whether the BOP could apply its policy barring inmate access to electronic media to materials provided under the FOIA was found to be not properly before the court, leaving that issue to future proceedings. Sample v. Bureau of Prisons, No. 05-5038, 2006 U.S. App. Lexis 27242 (D.C. Cir.).

Mail

     Texas prisoner failed to produce sufficient evidence to pursue a claim that a correctional officer and mailroom supervisor improperly interfered with his outgoing mail complaining about alleged defects in the grievance procedures at the prison. Merely showing that his mail had been opened did not, by itself, state a constitutional claim. Henderson v. Johnson, No. 04-50540, 2006 U.S. App. Lexis 24900 (5th Cir.).

     Disciplinary determination that prisoner violated a disciplinary rule prohibiting sending outgoing mail containing material for persons other than the addressee on the envelope overturned when there was no evidence in the record that the prison superintendent had authorized the opening and reading of his mail. Under a New York administrative regulation, such a mail watch is permitted when the superintendent of a facility reasonably believes that the mail may threaten institutional safety or security or the safety of any person. Keesh v. Smith, No. 99196, 2006 N.Y. App. Div. Lexis 11510 (3rd Dept.).

Medical Care

     Prisoner ultimately determined to be suffering from irritable bowel syndrome failed to show that prison medical personnel acted with deliberate indifference in failing to carry out a particular medical test. There was evidence showing that the test the prisoner thought should have been performed was not justified by the symptoms he exhibited at the time, and the prisoner was provided with treatment for the symptoms he did exhibit. Brown v. Hendershot, No.3:CV-04-1769, 2006 U.S. Dist. Lexis 66933 (M.D. Pa.).

     Cancellation of scheduled liver biopsy after medical personnel disagreed about its necessity for the treatment of a liver condition did not show a violation of the prisoner's right to adequate medical treatment, and was not based on cost, as the plaintiff prisoner claimed. Hemingway v. Falor, No. 05-4680, 2006 U.S. App. Lexis 24464 (3rd Cir.).

     Delay in hip replacement surgery for inmate suffering from a degenerative hip condition did not constitute deliberate indifference to his serious medical needs when the prisoner himself demanded that the surgery be performed at a particular hospital, which would have only been possible after his transfer to another facility, and, during the ensuing delay, another surgeon recommended against the surgery because of possible complications. Additionally, the evidence showed that any other delay in the procedure was, at most negligence, and not deliberate indifference. Williams v. Wright, No. 05-0257, 162 Fed. Appx. 69 (2nd Cir. 2006).

     Psychiatrist did not violate prisoner's rights by reporting that he was a "fairly poor" candidate for treatment of his Hepatitis C with Interferon when the prisoner merely stated his disagreement with that conclusion, and did not present any evidence that the psychiatrist chose a "medically unacceptable" course of treatment for his condition in deliberate indifference to his serious medical needs. Fleming v. LeFevere, No. 03-06199, 423 F. Supp. 2d 1064 (C.D. Cal. 2006).

Medical Care: Mental Health

     Detainee in county jail presented a viable equal protection claim by alleging that the jail had a policy and practice of discrimination and that an officer there discriminated against him in his conditions of confinement because of his mental illness of bi-polar disorder. Glisson v. Sangamon County Sheriff's Department, No. 05-3250, 408 F. Supp. 2d 609 (C.D. Ill. 2006).

Negligent or Inadequate Hiring, Retention, Supervision, & Training

     The possibility that different procedures for addressing emergency medical procedures at a county jail might have resulted in a better response to the plaintiff prisoner's emergency did not suffice to show that the county sheriff provided inadequate training for jail personnel. Additionally, the procedures he did establish relied primarily on medical expertise that a contractual medical service company provided. Williams v. Limestone, No. 06-10957, 2006 U.S. App. Lexis 24738 (11th Cir.).

Prison Litigation Reform Act: Similar State Laws

     Prisoner who sued warden for damages for alleged wrongful denial of early work release failed to exhaust available administrative remedies before filing suit, as required by the Louisiana law. His notes to the warden asking for a "few moments" of his time and complaining about changes in work release screening, and his letter to a state official asking for assistance in relationship to his request for work release did not amount to the required compliance with the procedures available for administrative review of denials of work release under Louisiana law. Coleman v. Thompson, No. 2005-857, 923 So.2d 889 (La. App. 3rd Cir. 2006).

Prisoner Death/Injury

     The fact that a prisoner was forced to remain covered in raw sewage for some time after being required to clean up a sewage water back up in a prison was sufficient, by itself, to show that he suffered an injury as required for liability under Ohio state law. Additionally, there was evidence that he needed numerous treatments for a skin rash. The parties in his lawsuit stipulated that inmates in the clean-up detail were not provided with adequate protective gear and were not allowed to shower until the next day. O'Banion v. Ohio Department of Rehabilitation and Correction, No. 2005-0579, 2006 Ohio Misc. Lexis 159 (Ohio Ct. of Claims).

Prisoner Discipline

     Prisoner found guilty of disciplinary infractions was not improperly denied the right to call witnesses at his hearing when he was not able to accurately identify the other prisoner he wished to call. Folk v. Goord, 814 N.Y.S.2d 811 (A.D. 3rd Dept. 2006).

     Prisoner found guilty of violating prison rules was given adequate assistance by a prison employee at his disciplinary hearing. Even though the employee initially did not give the prisoner all the information he asked for in relation to the hearing, the hearing officer adjourned the hearing to allow the employee to gather the information and provide it to the prisoner, alleviating any problem. James v. Goord, 812 N.Y.S.2d 713 (A.D. 3rd Dept. 2006).

     Refusal of hearing officer to adjourn disciplinary hearing did not violate a prisoner's due process rights. The prisoner argued that such an adjournment was needed because a correctional officer stated during his testimony that the disciplinary report was inaccurate about the time of the incident in question, but that difference only involved 90 minutes, and the prisoner still had adequate notice of the date and details of the alleged misconduct. Wright v. Dixon, No. 05-CV-60521, 409 F. Supp. 2d 210 (W.D.N.Y. 2006).

Search: Body Cavity

     A jury verdict that a county jail did not violate the rights of a man detained for civil contempt by subjecting him to an invasive body cavity search was set aside by a federal trial court as against the manifest weight of the evidence, when the detainee was not charged with any crime, and deputies at the facility did not state that they had any suspicion about the detainee which would justify the type of search conducted. A new trial was therefore granted on the plaintiff's claim. Thompson v. County of Cook, No. 03C7172, 428 F. Supp. 2d 807 (N.D. Ill. 2006).

Sexual Harassment

     While verbal sexual harassment of a prisoner by a correctional officer was "unacceptable," it was insufficient, in the absence of any claim that the officer or anyone else physically assaulted him, to assert a constitutional claim for violation of Eighth Amendment rights. Kirk v. Roan, No. 1:04-CV-1990, 2006 U.S. Dist. Lexis 65676 (M.D. Pa.).

Work/Education Programs

     New York prisoners' work for the state Department of Motor Vehicles was not, in economic reality, an employer-employee relationship entitling them to pursue their claims for federal minimum wages or overtime compensation. The job assignments served correctional purposes by giving the prisoners opportunities for job training and skill development. Kavazanjian v. Naples, No. 06-CV-3390, 2006 U.S. Dist. Lexis 69080 (E.D.N.Y.).

Work Release Programs

     While participation in a New York state temporary work release program was a privilege, rather than a right, a prisoner could pursue her claim that the state Department of Corrections violated its own rules when it allegedly failed to have the superintendent of her facility review her application for participation, Nesbitt v. Goord, 813 N.Y.S.2d 897 (Sup. Albany County 2006).

    •Return to the Contents menu.

     Access to Courts/Legal Info: " 'Power of the Pen': Jailhouse Lawyers, Literacy, and Civic Engagement," by Jessica Feierman, 41 Harvard Civil Rights-Civil Liberties Law Review No. 2, pg. 369 (Summer 2006).

     Female Prisoners: "Custody and Control: Conditions of Confinement in New York's Juvenile Prisons for Girls," Human Rights Watch. 2006.

     Mentally Ill Prisoners: "A Corrections Quandary: Mental Illness and Prison Rules," by Jamie Fellner, 41 Harvard Civil Rights-Civil Liberties Law Review No. 2, pg. 391 (Summer 2006).

     Overcrowding: Alabama Prison Commissions Task Force Report on Prison Crowding. (2005).

     Policies and Procedures: Policies and Procedures of the Alaska state Department of Corrections.

     Policies and Procedures: Religious Service Policy and Procedure. Arkansas Department of Corrections.

     Regulations: Administrative Regulations of the Nebraska Department of Correctional Services.

     Sexual Assault and Prison Rape: "By the Light of Virtue: Prison Rape and the Corruption of Character," 91 Iowa L. Rev. 561 (2006).

     Sexual Assault and Prison Rape: "The Impact of Prisoner Sexual Violence: Challenges of Implementing Public Law 108-79--The Prison Rape Elimination Act of 2003," by Robert W. Dumond, 32 J. Legis. 142 (2006).

     Sexual Assault and Prison Rape: "The Prison Litigation Reform Act: A Proposal For Closing the Loophole For Rapists," by Deborah M. Golden, Am. Constitution Soc'y for Law & Policy (June 2006).

     Sexual Assault and Prison Rape: Sexual Violence in the Texas Prison System, NIJ-Sponsored, September 2006, NCJ 215774. (75 pages). PDF NCJRS Abstract

     Statistics: Drug Use and Dependence, State and Federal Prisoners, 2004. Presents data from the 2004 Survey of Inmates in State and Federal Correctional Facilities on prisoners' prior use, dependence, and abuse of illegal drugs. Tables include trends in the levels of drug use, type of drugs used, and treatment reported by State and Federal prisoners since the last national survey was conducted in 1997. The report also presents measures of dependence and abuse by gender, race, Hispanic origin, and age. It provides data on the levels of prior drug use (with an in-depth look at methamphetamine use), dependence, and abuse by selected characteristics, such as family background, criminal record, type of drug used, and offense. Highlights include the following: Among drug dependent or abusing prisoners, 40% of State and 49% of Federal inmates took part in drug abuse treatment or programs since admission to prison. Among both State and Federal prisoners, white inmates were at least 20 times more likely than black inmates to report recent methamphetamine use. Violent offenders in State prison (50%) were less likely than drug (72%) and property (64%) offenders to have used drugs in the month prior to their offense. 10/06 NCJ 213530  Press release | Acrobat file (147K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: Mental Health Problems of Prison and Jail Inmates Presents estimates of the prevalence of mental health problems among prison and jail inmates using self-reported data on recent history and symptoms of mental disorders. The report compares the characteristics of offenders with a mental health problem to those without, including current offense, criminal record, sentence length, time expected to be served, co-occurring substance dependence or abuse, family background, and facility conduct since current admission. It presents measures of mental health problems by gender, race, Hispanic origin, and age. The report describes mental health problems and mental health treatment among inmates since admission to jail or prison. Findings are based on the Survey of Inmates in State and Federal Correctional Facilities, 2004, and the Survey of Inmates in Local Jails, 2002. Highlights include the following: Nearly a quarter of both State prisoners and jail inmates who had a mental health problem, compared to a fifth of those without, had served 3 or more prior incarcerations. Female inmates had higher rates of mental health problems than male inmates (State prisons: 73% of females and 55% of males; Federal prisons: 61% of females and 44% of males; local jails: 75% of females and 63% of males). Over 1 in 3 State prisoners, 1 in 4 Federal prisoners, and 1 in 6 jail inmates who had a mental health problem had received treatment since admission. 9/06 NCJ 213600 Press release | Acrobat file (288K) | ASCII file (38K) | Spreadsheets (zip format 68K)

Reference:

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

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