FEATURED CASES

WITH LINKS TO THE OPINIONS

Detainee kept for six days at county detention facility after a judge ordered his release without bail failed to show that a county policy caused his prolonged incarceration or that there was a widespread pattern of such problems that the county knew about.

     A man formerly incarcerated at the Hennepin County, Minnesota Adult Detention Center claimed that he was improperly subject to continued detention for six days after a judge told him that he would be conditionally released without bail while awaiting imposition of a sentence on his guilty plea on a charge of a felony offense of making "terroristic threats." The judge, following his guilty plea, allegedly told him that he should cooperate with the probation department in the creation of its presentence investigation report, and then told him that "you will be out," and that he would most likely receive a stay of imposition of his sentence. This conditional release was also recorded in the court records.

     After the hearing, however, neither the prisoner's tracking sheet nor his a "Subject in Process" record indicated that he was to be released immediately. When he returned to the detention center, he was kept in custody. He repeatedly asked, he claimed, why he was not yet released, submitting requests both orally and in writing. Ultimately, he was released three hours after receiving a faxed order from the judge. But this was six days later.

     He filed a federal civil rights lawsuit against the county, claiming that this prolonged detention violated his Fourth and Fourteenth Amendment rights and was false imprisonment under Minnesota state law.

     A federal appeals court upheld summary judgment for the defendant county, finding that the plaintiff had failed to show that the county detention center's policy on the monitoring of detainees subject to conditional release constituted deliberate indifference to their constitutional rights. He also allegedly failed to show that any such policy caused his additional six days of detention.

     His continued incarceration, the court found, did not result from the detention center's policies, but rather from the alleged failure to personnel to follow that policy.

     Rejecting another alternate possible ground for county liability, the appeals court also found that the plaintiff failed to show any widespread pattern at the detention facility of failing to "check daily" on the status of detainees subject to conditional release, or any knowledge by the county of such a problem.

     Russell v. Hennepin County, No. 04-3922, 420 F.3d 841 (8th Cir. 2005).

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Utah prisoner's lawsuit claiming that prison officials failed to provide surgery for problems with his testicles was improperly dismissed, as the facts he alleged, if true, could support an inference of deliberate indifference to a serious medical problem.

     A Utah prisoner claims that he was not provided adequate medical treatment for a cyst on his left testicle and "epididymis" of his right testicle (an inflammation or infection of the epididymis, a convoluted duct that lies on the posterior surface of the testicle). In a lawsuit brought against prison personnel, he stated that these conditions were diagnosed by a doctor in June of 2002, and that he was told that if his symptoms did not "resolve themselves" within a month, he would need surgery. He further claimed that his condition never improved and that the prison failed to provide the required surgery at either the prison or an outside medical facility, resulting in him experiencing ongoing "constant pain."

     Prison officials allegedly told him that there was nothing they could do for his condition because he has missed medical appointments, but he denied being informed of such appointments, and argued that he was dependent on prison personnel to "arrange transportation" for any appointment.

     The trial court dismissed his civil rights lawsuit for failure to state a claim on which relief could be granted. A federal appeals court has reversed, rejecting the trial court's conclusion that the evidence did not support a possible conclusion that the defendants had been deliberately indifferent to the prisoner's medical needs.

     The trial court had found that the alleged deprivation of medical care for the condition of the prisoner's testicles was sufficient to show inadequate care for a serious medical condition, satisfying the "objective" component of deliberate indifference, but concluded that the only factual claim of subjective deliberate indifference to this condition was the alleged statement about being unable to provide care because the prisoner missed appointments. The trial court attributed the lack of treatment, therefore, to "inadvertence or negligence" on the part of prison personnel, which is inadequate for a constitutional claim.

     Rejecting this reasoning, the appeals court found that the prisoner's complaint could also be read as alleging that the defendants knew of his serious medical condition, and despite that knowledge, failed to ensure that he received medical treatment. This failure, whether based on failure to inform him of medical appointments, or to arrange transportation to them, could support a conclusion that the defendants acted with deliberate indifference. Additionally, because the prisoner also claimed that he was never informed of the medical appointments, " the court stated, "one could infer that defendants did not make the appointments, thus also potentially establishing deliberate indifference."

     The appeals court, therefore, found that the trial judge's "summary conclusion" that the defendants had attempted to provide needed treatment to the prisoner was not supported by any evidence in the record.

     Martinez v. Garden, No. 05-4019, 2005 U.S. App. Lexis 27179 (10th Cir.).

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Parole Board members were entitled to absolute immunity on female prisoner's claim that she was unlawfully incarcerated on her previously suspended sentence after they revoked her parole. Warden of prison was also entitled to absolute immunity when her reincarceration was based on facially valid orders of the trial court and Parole Board.

     A woman who at first received a suspended sentence when pleading guilty of forgery in South Dakota, was sentenced to five years' incarceration when she admittedly violated the terms of her suspended sentence, but the court still suspended three of the five years. She subsequently was released on parole, and was later accused of violating that parole. At her parole hearing, she allegedly was not informed that she was facing reinstatement of the suspended portion of her sentence. The Parole Board subsequently revoked her parole and reinstated the suspended part of her sentence and she was incarcerated in the South Dakota Women's Prison.

     She sought habeas corpus relief in state court, and at first was granted it, on the basis of one parole agreement she had signed, which did not include notice of the possibility that violation of parole could result in reincarceration. She had, however, also signed a subsequent parole agreement, a month later, which did include such notice. By the time this came to the attention of the state court, her term of parole supervision had ended, and the state no longer had authority to reincarcerate her. But the state court found that her "lack of candor" to the court in failing to indicate her knowledge of the second parole agreement constituted grounds of fraud, misrepresentation and misconduct sufficient to vacate the earlier issued writ of habeas corpus.

     In a federal civil rights lawsuit she filed against parole officials, the federal trial court found that her attempt to collect damages for her purported wrongful reincarceration was barred because she could not show, as required by Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994), that her underlying sentence had been "reversed, expunged, invalidate, or impugned by the grant of a writ of habeas corpus."

     A federal appeals court found that, regarding of the Heck analysis, the defendants were absolutely immune to the prisoner's claims in any event. Members of the Parole Board, the court noted, are entitled to absolute immunity for making decisions regarding the revocation of her parole and regarded the reinstatement of her suspended sentence. They acted within their quasi-judicial powers in making their determination.

     The warden of the South Dakota Women's Prison, who was also named as a defendant, was also entitled to absolute immunity. The plaintiff's claims against him stemmed solely from the fact of her confinement. Jailers and wardens, the court found, are absolutely immune from damages flowing from the fact of a prisoner's incarceration, when it occurs because of a "facially valid order of confinement," which was present in this case. During the 416 days that the plaintiff claimed she was confined "illegally," the state habeas court had not yet issued her writ, and the warden was therefore acting under facially valid orders from the state trial court and the Parole Board.

     Additionally, the court found that the only function of a parole officer named as a defendant was associated with the functioning of the Parole Board, so that he too was entitled to absolute immunity. "His actions were so connected to the quasi-judicial role the Parole Board performed in granting parole in the first place, that they were but an extension of that function."

     Figg v. Russell, No. 05-1249, 2006 U.S. App. Lexis 131 (8th Cir.).

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Diabetic prisoners who allegedly suffered amputations because of failure to receive adequate medical care for their illness were barred from pursuing federal civil rights claims when they failed to use a prison's formal grievance procedure to complain about their treatment. Their contention that medical personnel had encouraged them to instead pursue any complaints directly with them was no excuse when no one prevented them from using the grievance procedure.

     Three diabetic inmates in the custody of the South Dakota Department of Corrections claimed that state correctional officials and outside medical personnel providing treatment to prisoners acted with deliberate indifference to their medical needs, and that inadequate medical facilities were provided. This, they claimed, caused them to develop infections related to their diabetes, resulting in amputations of portions of their lower extremities. Two of the prisoners lost portions of their feet, and the third lost the bottom of his left leg and a portion of his right foot.

     A federal appeals court has upheld summary judgment for the defendants, ruling that the prisoners failed to show that they exhausted the available administrative remedies before filing suit, and that there was no evidence that the defendants had interfered with the grievance process in any way to prevent them from doing so.

     The prisoners admitted that they received copies of the "Inmate Living Guide" when they were imprisoned, which describes the administrative remedies available to prisoners through a grievance procedure. The prisoners further admitted that they did not complain about their medical care through this administrative remedy procedure, claiming that medical personnel had always made it "clear" that any healthcare complaints were to be made informally to doctors, nurses, and physician's assistants, and not to the prison administration under its grievance procedures.

     Under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a), prisoners must exhaust available administrative remedies before proceeding with lawsuits over prison conditions. Prisoners may only be excused from this requirement, the appeals court stated, when prison officials have "prevented" prisoners from utilizing the procedures or when officials themselves "have failed to comply with the grievance procedures." Such an excuse was not available in this case, as there was no allegation that the prisoners were prevented, in any way, from using the administrative remedies procedures which they received notice of.

     Gibson v. Weber, No. 04-3932, 431 F.3d 339 (8th Cir. 2005).

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A prisoner's participation in an internal affairs investigation concerning his alleged beating by correctional officers did not substitute for the requirement that the prisoner exhaust available administrative remedies before pursuing a lawsuit for damages.

     Under the Prison Litigation Reform Act, (PLRA), 42 U.S.C. Sec. 1997e(a), a prisoner wishing to pursue a federal civil rights lawsuit over their conditions of confinement must first show that they have already exhausted available administrative remedies. In one recent case, a plaintiff prisoner argued that he had "constructively" exhausted his administrative remedies by participating in an internal affairs investigation of his claim that correctional officers beat him, despite his failing to take advantage of the facility's internal grievance procedures.

     A federal appeals court has held that the prisoner's participation in the internal affairs investigation was not sufficient to satisfy the exhaustion requirement of the PLRA.

     The plaintiff prisoner was a pre-trial detainee at the North Las Vegas, Nevada, Detention Center. He was allegedly denied a fresh towel by a prison trustee, and believed that the trustee, and an officer accompanying him, did in fact have fresh towels available, but that the African-American officer was discriminating against him because he is an Italian-American. When he asked for a grievance form, the officer allegedly responded with "vulgarities," and that in response to his third request for one, this officer, and another officer, with three officers looking on, entered his cell and beat him, injuring his neck, and aggravating a prior skull fracture. He was then allegedly handcuffed and removed from his cell, after which he was ordered to get down on his knees. At that time, the first officer allegedly stuffed several grievance forms down the detainee's shirt, but they fell out before he was placed in a cell next door to his original cell.

     The prisoner was disciplined for his role in the fight with the officers, after a hearing, and was informed of his right to appeal the decision of the hearing officer by means of the grievance procedure, but he did not do so. Additionally, he never filed a grievance form concerning the original incident. He did, however, participate in an internal affairs investigation against the first officer by submitting to a recorded interview, and this officer was subsequently disciplined for his role in the incident.

    Despite this officer's initial refusal to give him a grievance form, there was nothing in the record showing that the grievance process was "systematically unavailable to him," and indeed, he was told of his right to file a grievance at his disciplinary hearing. He never did so, and the appeals court found that the participation in an internal affairs investigation was insufficient to substitute for doing so.

     Panaro v. City of N. Las Vegas, No. 04-15750, 2005 U.S. App. Lexis 28080 (9th Cir.).

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     Editor's Note: Another federal appeals court, addressing the same issue, reached the same conclusion. See, Thomas v. Woolum, No. 01-3227, 337 F.3d 720 (6th Cir. 2003),

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Detainee's claim that sheriff and two officers used excessive force against him in entering his cell, physically restraining him, and using pepper spray against him reinstated by federal appeals court. Trial judge improperly decided credibility of witnesses in granting summary judgment for defendants, when there were disputed factual issues about whether the detainee was combatively resisting orders at the time of the incident.

      A detainee incarcerated in the Love County jail in Marietta, Oklahoma, claimed that the sheriff and officers physically assaulted him without justification for doing so.

     The sheriff and two Marietta police officers entered the prisoner's cell, restrained him, handcuffed him to a backboard, and sprayed him with pepper spray, but all the other facts relating to this "backboard incident" were in dispute. The defendants in the lawsuit claim that the incident began with an argument between the detainee and a sheriff's deputy, over how many vitamins the detainee would receive that day, after which the detainee became upset and started kicking his cell door, prompting other prisoners to do likewise.

     The deputy allegedly ordered the detainee to stop the kicking, and when he refused to do so, summoned the sheriff, who brought the two police officers with him. The sheriff and two officers entered the cell with a backboard, a device used to restrain inmates, and ordered him to get on the backboard. When he refused, they claimed, and then resisted being physically put on it, he was sprayed with pepper spray and ceased resisting. The defendants claimed that their actions were required to restrain him and restore discipline. They also contended that the detainee's actions, in inciting the other inmates to begin kicking, yelling, and screaming, resulted in the situation becoming riotous.

     The detainee denied being combative, or that the situation was "riotous," and argued that the force used and the pepper spray were unnecessary. He presented an affidavit from a fellow inmate stating that the detainee sat down on the backboard when ordered to, but told the officers that he did not want to lay down. This other prisoner claimed that the sheriff "sat on" the detainee's lower body while the other officers held his arm, and that the detainee resisted "out of instinct," but did not become combative. The plaintiff claimed that the pepper spray was used for 5-7 seconds from about two inches from his eyes.

     The trial court, in granting summary judgment for the defendants, found that their intent was to restrain the detainee until he was willing to comply with jailhouse rules, and not to injure him. It also found that the detainee had created the necessity for the use of force. Given the "dearth of evidence" in the record, the appeals court stated, the trial court could not have reached these conclusions unless it chose to believe the defendants over the plaintiff, but a judge is not to evaluate the "credibility" of witnesses in deciding a motion for summary judgment.

     The appeals court, finding genuine issues of material fact to exist surrounding the use of the pepper spray, reversed the trial court's grant of summary judgment on federal constitutional claims of excessive force against the sheriff and the two officers, as well as reversing the trial court's dismissal of state law claims for assault and battery against them.

     The appeals court did, however, uphold summary judgment for the City of Marietta and its police chief. There was no evidence of any official municipal policy or custom causing the alleged misconduct, or any evidence that the police chief personally participated in any way in the incident. It also upheld summary judgment for sheriff's deputies who the detainee conceded at his deposition had not assaulted him, and for two deputies involved in another incident which the court found did not really allege an excessive use of force.

     Norton v. City of Marietta, No. 04-7133, 2005 U.S. App. Lexis 28093 (10th Cir.).

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Federal prison regulations limiting prisoners' placements in community confinement ruled invalid by federal appeals court.

     A federal prisoner filed a habeas corpus petition challenging recently adopted Bureau of Prisons (BOP) regulations that limit a prisoner's placement in community confinement to the lesser of ten percent of the prisoner's total sentence or six months.

     A federal appeals court, overturning a trial court decision, found that these regulations "run afoul" of the BOP's governing law and the intent of Congress.

The governing statute at issue here, 18 U.S.C. § 3621(b), lists five factors that the BOP must consider in making placement and transfer determinations. The 2005 regulations, which categorically limit the amount of time an inmate may be placed in a Community Corrections Center ("CCC"), do not allow the BOP to consider these factors in full.

     The petitioning prisoner was incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey, after being convicted of alien smuggling and sentenced to 37 months of imprisonment followed by three years of supervised release. After pleading guilty to a charge of escape, he was sentenced to another six months of imprisonment, followed by three years of supervised release. After his release, he was arrested for possession of a controlled substance, his supervised release was revoked, and he was sentenced to another twelve months in prison.

     On this twelve-month sentence, the trial judge recommended to the Bureau of Prisons that he spend the last six months of his sentence in a halfway house. When he got to Fort Dix, however, he was informed that because of the BOP policy change at issue, he could be placed in a CCC for no more than 10 percent of his total sentence, and would therefore be entitled to no more than eleven weeks of CCC placement.

     Under 18 U.S.C. Sec. 3621(b), the BOP has authority to determine the location of an inmate's imprisonment and lists the following factors to be considered:

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence-

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.

     Prior to December of 2002, the BOP regularly considered prisoners for CCC placement for up to six months at the end of a sentence, regardless of the total sentence length. On December 13, 2002, however, the Department of Justice Office of Legal Counsel issued a memorandum concluding that the BOP's practice of placing some prisoners in CCCs for all or significant parts of their sentences was contrary to the BOP's statutory authority, and found that Sec. 3624 of the statute, specifically addressing community confinement, limited residence at a CCC to the lesser of ten percent of the total sentence or six months. The BOP followed this advice.

     Two federal appeals courts found this 2002 policy unlawful because it did not recognize the BOP's discretion to transfer an inmate to a CCC at any time, and therefore contrary to the plain meaning of § 3621. See Elwood v. Jeter, No. 04-2253, 386 F.3d 842 (8th Cir. 2004); Goldings v. Winn, No. 03-2633, 383 F.3d 17 (1st Cir. 2004). The rationale of these decisions was that the time constraints of § 3624(c) limited only the affirmative obligation of the BOP to place prisoners in community corrections, not its discretion to place a prisoner in a CCC for a longer time period.

     In response, the BOP proposed and ultimately adopted new regulations announcing that it was exercising its discretion for designating inmates to community corrections while serving terms of imprisonment and limiting such placements to the lesser of ten percent of a prisoner's total sentence or six months. 69 Fed. Reg. 51,213 (Aug. 18, 2004).

     Noting that no other federal appeals court had, as of yet, addressed the validity of these regulations, finally adopted in 2005, and that federal trial courts were divided on the issue, the appeals court found that the regulations were improper because they do not allow the BOP to consider the nature and circumstances of an inmate's offense, "his or her history and pertinent characteristics, or most importantly, any statement by the sentencing court concerning a placement recommendation and the purposes for the sentence," but that Sec. 3621 of the statute requires that these factors be taken into account. The regulations are therefore, "invalid because the BOP may not categorically remove its ability to consider the explicit factors set forth by Congress in § 3621(b) for making placement and transfer determinations."

     This did not mean, the court concluded, that the BOP must assign a prisoner to a CCC prior to the last six months or ten percent of his sentence, but rather that it must consider, in good faith, whether it should do so.

     Woodall v. Fed. Bureau of Prisons, No. 05-3657, 2005 U.S. App. Lexis 27413 (3d Cir.).

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Correctional officers were not entitled to qualified immunity on claim that they continued to use force against detainee after they had subdued him, resulting in his death from positional asphyxia. They were also not entitled to qualified immunity on the claim that they waited fourteen minutes after he became unconscious and stopped breathing, to summon medical assistance.

     A pre-trial detainee in the Montgomery County Detention Facility in Alabama died as a result of a struggle with correctional officers. His estate brought a federal civil rights lawsuit against correctional officers claiming excessive force and deliberate indifference to serious medical needs.

      The detainee, who was 17-years-old, had a history of mental illness and was being held pending trial on a charge of escape from a state youth facility. He appeared to have a mental breakdown in his cell, stripping off his clothes, and flooding the area by stopping up the commode. He also started shouting phrases like "the blood of Jesus is on me," "Jesus come get me," and dipped his face and head in the water in the commode. He also tied a string around his neck in an apparent "though futile" attempt to strangle himself, as the string was not strong enough to support his weight.

    Officers responding to the disturbance were unsuccessfully in trying to calm him down, and made a decision to enter the cell. A prisoner in an adjacent cell later said that the officers told the detainee that if they had to come in the cell, they were going to "kick his ass." During the subsequent fight, the officers were able to subdue him on his bunk and handcuff and shackle him, and to remove him from his cell.

     He was allegedly carried out, face-down and covered by a sheet, by four officers, using batons passed through the shackles and handcuffs, which made his weight bear down on his upper body and chest, restricting his ability to breath. The detainee was subsequently found to be not breathing, and all attempts to resuscitate him were unsuccessful. He was pronounced dead, and an autopsy indicated that the cause of death was asphyxia.

     A federal appeals court ruled that the officers were not entitled to qualified immunity on an excessive force claim, because their alleged continuation of the use of force after the detainee gave up struggling, holding him face-down on the bunk while his head pushed into the mattress, resulting in him becoming unconscious, if true, was an excessive use of force for the very purpose of causing harm, and the law on the subject was clearly established.

     The appeals court also found that the officers were not entitled to qualified immunity on the estate's claim that they acted with deliberate indifference to the detainee's serious medical needs by allegedly waiting 14 minutes before calling for medical assistance after taking him from his cell while he was unconscious and not breathing. The court found that this, if true, constituted conduct which should have been known, by any objectively reasonable correctional officer to be a violation of the detainee's due process rights.

     Bozeman v. Orum, No. 04-11073, 422 F.3d 1265 (11th Cir. 2005).

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Disciplinary conviction of prisoner for assault on an officer with a "non-serious injury" resulting, causing him to lose 180 days of good time credits, was constitutionally invalid in violation of due process where there was no evidence that the officer suffered any injury at all during the incident.

     A Texas prisoner challenged the constitutionality of a prison disciplinary proceeding finding him guilty of assaulting an officer with a non-serious injury resulting. Reversing a federal trial court decision denying relief, a federal appeals court has found that there was insufficient evidence to support the disciplinary action, and that the trial court was erroneous in its interpretation of the disciplinary code utilized.

     A corrections officer stopped the prisoner for inspection of an envelope he was carrying. During the inspection, the officer took the envelope from him, and ordered him to submit to a strip search. While the prisoner initially refused to comply, he ultimately did so. After the strip search, the prisoner repeatedly demanded that his envelope be returned, and when it was not, the prisoner allegedly charged the officer and hit his left shoulder with his own. The officer filed an offense report, accusing him of an offense that included as an element assault resulting in a non-serious injury. The report, however, indicated that the assault had resulted in no injury. The hearing officer found the prisoner guilty of the charged offense and imposed punishment of 45 days of recreation and commissary restrictions, 42 hours of extra duty, 15 days of solitary confinement, a reduction in the prisoner's status, and the forfeiture of 180 days of earned good time credits.

     The appeals court found that the trial court was clearly erroneous in finding sufficient evidence to support this result. There was no evidence, the appeals court stated, to show that the officer the prisoner assaulted was injured. Additionally, the trial court acted erroneously in interpreting the facility's offender handbook.

     Due process, the appeals court stated, requires that there is at least "some evidence" in the record to support the particular disciplinary determination reached. The Texas prison disciplinary rules stated, at the time of the incident in question, that a prisoner assaulting an officer without a weapon, which results in a non-serious injury was a Code 3.3 offense, which could result in penalties of the type imposed. While there was evidence to support that the prisoner assaulted the officer, there was no evidence of any injury, and therefore the disciplinary determination that the prisoner committed this particular offense was improper, just as the evidence would have been insufficient to support a finding that he committed an assault with a weapon or attempted escape.

     The trial court had also argued that the Texas prison disciplinary rules did not include a specific offense of assault against an officer where no injury results, and upheld the discipline imposed because "there is no question that a prison should be able to impose severe disciplinary sanctions on a prisoner who assaults an officer, even with no injury resulting." It therefore interpreted Code 3.3 to include an assault that results in "no injury."

     But the federal appeals court found that an offense of "assaulting an officer with no injury resulting" was a creation of the trial court, and "has no basis in the disciplinary rules" in effect at the time. The hearing officer lacked authority to punish the prisoner under Code 3.3 for a "nonexistent offense," the appeals court concluded.

     The appeals court therefore instructed the trial court to order that the prison officials either provide the prisoner with a new, constitutionally adequate hearing within 90 days of its order or else vacate the disciplinary conviction and reinstate the prisoner's good time credits.

     Morgan v. Dretke, No. 04-20254, 2005 U.S. App. Lexis 27758 (5th Cir.).

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Nebraska Supreme Court holds that state correctional agencies were entitled to sovereign immunity in lawsuit by female inmate claiming that a correctional employee sexually assaulted her, whether her claims were based either on the mere fact that he was an employee or on the defendants' alleged own negligence in hiring and supervising him.

     A female prisoner incarcerated at the Omaha Correctional Center claimed that she was sexually assaulted by an employee of the Nebraska Department of Correctional Services assigned to work there. She further claimed that his actions were taken while he was acting in the scope and course of his employment. She filed a lawsuit under the State Tort Claims Act, Neb. Rev. Stat. Sec. 81-8,209 to 81-8,235 against the Department of Corrections and the correctional center.

     Her complaint alleges that the Defendants were negligent in violating the "Nebraska Jail Standards" with respect to the housing of female inmates, in failing to properly supervise its employees, in failing to properly hire employees, in failing to properly maintain the facility, and in failing to discipline the employee who allegedly sexually assaulted her. She also claimed that the employee's actions were outrageous and extreme as to "go beyond all possible bounds of decency," and were in reckless disregard of the fear and emotional suffering he was inflicting on her.

     The defendants denied the plaintiff prisoner's allegations, but they also argued that they were immune from suit under Se.81-8,219(4) of the statute.

     Addressing the issue for the first time in the state, the Supreme Court of Nebraska ruled that an exception to the Tort Claims Act's waiver of sovereign immunity for intentional misconduct applied, so that the defendants were immune from liability. The court also, as a matter of first impression, ruled that when a liability claim is based either on the mere fact of governmental employment or an employment relationship between a person committing an intentional wrong and the government, the intentional tort exception applies.

     The section of the statute cited by the defendants excludes claims "arising out of" such intentional misconduct as assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights from the statute's waiver of sovereign immunity.

     This barred any liability on the mere basis of the fact that the person who allegedly sexually assaulted her was a government employee. And despite the fact that the plaintiff prisoner's claims were worded, in part, to be based on the defendants' purported own negligence in hiring and supervising the employee, the court found that this did not alter the fact that her claims still arose out of sexual assault, which is intentional misconduct, and therefore the defendants were entitled to sovereign immunity from liability.

     Johnson v. State of Nebraska, No. S-03-1362, 700 N.W.2d 620 (Neb. 2005).

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Access to Legal Info/Courts

     Prisoner was not denied adequate legal assistance at prison disciplinary hearing which found him guilty of rule violations arising out of a urine sample that tested positive for opiates. The prisoner was allowed the assistance of a prison teacher at the hearing, and prisoner made an explicit statement at the hearing that he was satisfied with this assistance. The determination of the hearing was adequately supported by some evidence of the prisoner's guilt. Alicea v. Howell, No. 03-CV-65071, 387 F. Supp. 2d 227 (W.D.N.Y. 2005).

Defamation

     New Jersey inmate could not pursue a federal civil rights claim against prison personnel for defamation on the basis of an allegedly false statement in his medical file that he was suicidal. Damage to reputation alone is insufficient for a constitutional claim. Dubois v. Vargas, No. 05-1647, 148 Fed. Appx. 111 (3rd Cir. 2005).

Diet

     Prisoner who stated that he was lactose intolerant and allergic to eggs alleged sufficient facts to present a viable claim that his Eighth Amendment rights were violated by the failure to provide him with a "therapeutic diet," and that the meals provided to him were nutritionally inadequate. Jackson v. Gordon, No. 04-2005, 145 Fed. Appx. 774 (3rd Cir. 2005).

Inmate Funds

     Deduction from prison account of Kansas inmate to pay fees incurred for supervision while he was on parole was not cruel and unusual punishment, a violation of due process, a violation of equal protection, or an unconstitutional retroactive enhancement of the prisoner's punishment. Owens v. Sebelius, No. CIV.A. 04-3178, 357 F. Supp. 2d 1281 (D. Kan. 2005).

Medical Care

     Jail staff members did not act with deliberate indifference to the medical needs of a pretrial detainee who died while suffering from acute drug withdrawal with excessive vomiting. Detainee was provided with immediate medical attention when his symptoms occurred. Sylvester v. City of Newark, No. 03-4872, 120 Fed. Appx. 419 (3rd Cir. 2005).

     Detention officers' alleged actions of ignoring prisoner's requests for medical care for two full days after he experienced pain, vomiting, and nausea would be adequate to state an Eighth Amendment claim for liability for prisoner's subsequent ruptured appendix. Boyd v. Robeson County, No. COA03-1222, 621 S.E.2d 1 (N.C. App. 2005).

     Estate of pretrial detainee who died from heart attack while incarcerated failed to show that city failed to provide him with adequate medical care. Record showed that detainee was taken to the hospital after he complained of chest pains. Estate of Harbin v. City of Detroit, No. 03-2486, 147 Fed. Appx. 566 (6th Cir. 2005).

     Inmate's disagreement with the reasonableness of a physician-assistant's diagnosis and treatment of him prior to his suffering a stroke was insufficient to show deliberate indifference to his serious medical needs. Prisoner could, however, pursue claims against facility nurse who allegedly denied him medical treatment altogether, based on disputed material issues of fact as to her state of mind at the time. Marcotte v. Monroe Corrections Complex, No. C04-1925, 394 F. Supp. 2d 1289 (W.D. Wash. 2005).

     Mere delay in vaccinating inmate suffering from Hepatitis C with Hepatitis A and B vaccines was not a violation of the Eighth Amendment. Inmate did not get Hepatitis A or B before he was vaccinated, and his alleged "worry" and "distress" from the fear that he would was insufficient for a constitutional violation. Wood v. Idaho Department of Corrections, No. CV04-99 391 F. Supp. 2d 852 (D. Idaho 2005).

Prison & Jail Conditions: General

     Pretrial detainee failed to show that county sheriff was deliberately indifferent to detention officers' alleged refusal to supply him with disinfectants or cleaning supplies to remove feces from his toilet and the floor of his cell. In fact, he did not even claim that the sheriff was aware of these actions. Galloway v. Whetsel, No. 03-6239, 124 Fed. Appx. 617 (10th Cir. 2005).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner failed to exhaust available administrative remedies, as required by 42 U.S.C. Sec. 1997e, before filing his federal civil rights lawsuit claiming that his rights were violated because he was ordered to clean a prison dumpster of caustic chemicals without adequate protective clothing. Because he only exhausted his remedies concerning alleged inadequate medical care for his injuries arising after the incident, his Eighth Amendment claim concerning the order itself was properly dismissed. Mathews v. Colorado Dept. of Corrections, No. 05-1010, 146 Fed. Appx. 988 (10th Cir. 2005).

     Prisoner's lawsuit concerning alleged inadequate medical care was not barred by failure to exhaust available administrative remedies when court found that he had no remedies available to exhaust. Prisoner's complaint was that prison medical personnel failed to arrange, in a timely manner, for him to be treated by specialists at a hospital where he was ultimately diagnosed as suffering from throat cancer. Appealing the denial of his administrative grievance, the court found, would not have provided him with any relief, since by the time the right to appeal existed, he had already been transferred, and had already suffered the harm. Gabby v. Meyer, #04-C0476, 390 F. Supp. 2d 801 (E.D. Wis. 2005).

     While prisoner filed an administrative grievance concerning an alleged assault on him by correctional officers, he failed to follow prison procedures for appealing the denial of that grievance, requiring dismissal of his lawsuit under 42 U.S.C. Sec. 1997e(a). Jacobs v. Pennsylvania Department of Corrections, No. 05-1455, 148 Fed. Appx. 107 (3rd Cir. 2005).

Prisoner Assault: By Inmates

     Intermediate New York appellate court reinstates jury's verdict in favor of city in lawsuit seeking to impose liability for injuries inmate suffered from attack by fellow prisoners at Riker's Island, overturning grant of new trial. Trial judge's alleged mistakes in reading the jury instructions on how to address an issue of missing documents would not have misled the jury and did not justify setting the jury's verdict aside. Genco v. City of New York, 794 N.Y.S.2d 558 (Sup. App. Term 2005).

     New Jersey prisoner failed to show that prison officials were liable for an alleged physical attack against him in the prison carpentry shop and for later threats of physical and sexual assault by another prisoner. Plaintiff prisoner did not claim that any of the defendant officials had any awareness of his fears for his safety. Stringer v. Bureau of Prisons, No. 04-1510, 145 Fed. Appx. 751 (3rd Cir. 2005).

     Prisoner who was attacked by other inmates failed to show that county jail officials knew of a risk of such an attack when they moved him to another unit in the jail. He failed to inform anyone, prior to the move, of his safety concerns based on his claimed gang affiliation with the Crips, a black gang. He failed to tell anyone that he believed that he should not be housed with Hispanic inmates as a result of this affiliation. Collins v. County of Kern, No. CVF03-6424, 390 F. Supp. 2d 964 (E.D. Cal. 2005).

Prisoner Assault: By Officers

     Delaware prisoner's claim that correctional officers assaulted him on two occasions while he was handcuffed him, and hit him in order to "provoke a response," if true, established violations of his Eighth Amendment rights. Davis v. Carroll, No. CIV.A. 03-131, 390 F. Supp. 2d 415 (D. Del. 2005).

Prisoner Death/Injury

     Genuine issues existed as to whether warden was deliberately indifferent to alleged widespread abuse of prisoners by officers, making him liable for a prisoner's death after an alleged beating of officers. Warden was not entitled to qualified immunity against supervisory liability claim by prisoner's estate. Valdes v. Crosby, No. 301CV799, 390 F. Supp. 2d 1084 (M.D. Fla. 2005).

Prisoner Discipline

     Alleged procedural defects in prison disciplinary process which resulted in prisoner's loss of commissary privileges could not be the basis for the a constitutional due process claim. Prisoner did not have a protected liberty interest against the loss of such privileges. Bridges v. Lee, No. 04-60508, 124 Fed. Appx. 225 (5th Cir. 2005).

     Prisoner was not denied the right to call witnesses at his disciplinary hearing when he "acquiesced" in one witness's refusal to testify and when attempts to contact his wife, who he had requested as a witness, were unsuccessful. Otero v. Goord, 792 N.Y.S.2d 728 (A.D. 3rd Dept. 2005).

     Hearing officer was justified in carrying out a disciplinary hearing without the charged prisoner when he was informed that the prisoner refused to either attend or sign a written waiver, and had been told of the possible consequences of his actions. Abbas v. Selsky, 802 N.Y.S.2d 798 (A.D. 3rd Dept. 2005).

     Prisoner's compliance with an officer's second order to give him some paper towels did not alter evidence showing that he was guilty of violating prison rules by refusing the officer's first direct order. Discipline imposed on prisoner was supported by substantial evidence, including a misbehavior report and the testimony of the officer. Salahuddin v. Selsky, 802 N.Y.S.2d 262 (A.D. 3rd Dept. 2005).

Release Agreements

     New York state inmate did not enter into a valid release and settlement agreement on his claim that a correctional officer told another prisoner that he was an informer, subjecting him to subsequent harassment and risk of physical attack. While the prisoner did receive a 18-week decrease in his confinement in a special housing unit, as proposed in the settlement agreement, the settlement agreement was not the cause of the reduction, and the prisoner never actually signed the settlement agreement. The release and settlement agreement were therefore not enforceable, and the prisoner could proceed with his lawsuit. Burgess v. Morse, No. 03-CV-63451, 387 F. Supp. 2d 246 (W.D.N.Y. 2005).

Religion

     Muslim inmate could proceed with his claim that he suffered severe emotional and psychological injuries from the alleged denial of "Halal" meals required by his religion. His claims were not barred by the provisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e) requiring that he show a physical injury before being able to recover damages for mental and emotional injuries because his alleged loss of 30 pounds of weight while eating vegetarian meals which he asserted lacked adequate nutrition was sufficient to show a physical injury. Further, his lawsuit was not rendered moot because of his transfer to another facility when it was run by the same private company as operates the first facility. Pratt v. Corrections Corporation of America, No. 04-2413, 124 Fed. Appx. 465 (8th Cir. 2005).

     Refusal to allow prisoner who was a member of the Nation of Islam to receive books concerning his religion gave him a valid claim for denial of his right to exercise his religion. Prison rules allowed inmates at the prisoner's "incentive-level" to keep only religious "texts," such as a Bible or Koran, and not books "about religion." Prison officials were, however, entitled to qualified immunity from damages on his claims, as the law on the subject was not clearly established. No claim was stated for violation of equal protection, however, because of the absence of evidence that prisoners of other faiths were treated differently. Roddy v. Banks, No. 03-3735, 124 Fed. Appx. 469 (8th Cir. 2005).

Search and Seizure: Prisoner/Cell

     Even if, as inmate claimed, corrections officer touched his penis during a pat frisk carried out before he entered the exercise yard, this conduct was not a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Carrying out a pat frisk under such circumstances was proper and such frisks can involve the area of the genitals. Davis v. Castleberry, No. 03-CV-65011, 364 F. Supp. 2d 319 (W.D.N.Y. 2005).

     •Return to the Contents menu.

     AIDS and HIV Related: "Dilemmas in the Care of the HIV-Infected Incarcerated Individual," by David Alain Wohl, MD* Associate Professor of Medicine, Division of Infectious Diseases, University of North Carolina, Co-Director of HIV Services for the North Carolina Department of Corrections, Infectious Diseases in Corrections Report (formerly HEPP Report), sponsored by the Brown Medical School, Rhode Island, Office of Continuing Medical Education. (November/December 2005).

     Disabled Inmates: Helping Inmates Obtain Federal Disability Benefits: Serious Medical and Mental Illness, Incarceration, and Federal Disability Entitlement Programs, NIJ-sponsored. NCJ 211989. (74 pgs). Abstract. Full Document.

     Disciplinary Rules and Procedures: Texas Department of Criminal Justice Disciplinary Rules and Procedures for Offenders, Rev. January 2005 (43 pgs.). Rulebook of disciplinary rules and procedures for offenders housed in secure correctional facilities operated by or under contract with the Texas Department of Criminal Justice. Also available in Spanish.

     Medical Care: Texas Correctional Office on Offenders with Medical or Mental Impairment (TCOOMMI) Biennial Report (58 pgs., 2005).

     Medical Care: Audit of the Federal Bureau of Prisons Pharmacy Services, Audit Report 06-03, November 2005. U.S. Department of Justice, Office of the Inspector General.

     Private Prisons and Entities: Contracting for Imprisonment in the Federal Prison System: Cost and Performance of the Privately Operated Taft Correctional Institution, NIJ-Sponsored, 11/2005, NCJ 211990. (173 pages). Abstract Full Document

     Safety and Security: Prison Emergencies: Self-Audit Checklists, National Survey Results, Resource Materials, and Case Studies. Information regarding prison emergency preparedness is presented. This guide is comprised of the following sections: introduction; conducting an audit; self-audit checklists--emergency preparedness, natural disaster/HAZMAT/fire, and counterterrorism; Report on the National Survey of Emergency Readiness in Prisons; resource materials--leadership issues during crises, prevention of prison emergencies, emergency teams, and prisons and counterterrorism; and case studies. National Institute of Corrections, (318 pgs. 2005).

     Websites: U.S. Department of Justice, Office of the Federal Detention Trustee. This office was established in September 2001 by directive of Congress in Pub. L. 106-553, Sec. 166, 114 Stat. 2762, in response to growing concerns regarding federal detention. It is intended to provide for the safe, secure, and humane confinement of persons in federal custody awaiting trial or immigration proceedings, by ensuring the appropriate operations and cost effectiveness of secure non-federal detention facilities utilized by federal law enforcement agencies. On March 1, 2004, the Office of the Federal Detention Trustee launched the National Repository for Detention Space Availability, an Internet-based tool to assist the U.S. Marshals Service, the federal Bureau of Prisons, and the Bureau of Immigration and Customs Enforcement with locating non-federal detention space available for federal use. For a chart showing "Compliance with Department of Justice Core Detention Standards: A review of 40 non-federal detention facilities," click here.

     Websites: New York Correction Historical Society. Website contains historical information about individual facilities and the history of corrections in general in New York State and New York City.

     Websites: International Centre for Prison Studies. A website maintained by the School of Law at King's College of the University of London. Provides access to statistics on prison systems and incarceration rates in over 200 countries, as well as a variety of other materials available either online or in print format.

Reference:

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

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