FEATURED CASES

WITH LINKS TO THE OPINIONS

U.S. Supreme Court holds that the alleged denial of access to a law library to an incarcerated criminal defendant acting as his own defense attorney is not a basis for federal habeas relief, because the right of such a defendant to access is not clearly established.

     A California criminal defendant who decided to act as his own lawyer was convicted of carjacking and other crimes. While in jail before trial, he claimed, he received no law library access, despite his repeated request and court orders to the contrary. During the trial, he allegedly received only four hours of access to a law library--just before closing arguments.

     In reviewing his appeal of his denial of federal habeas corpus relief on the basis of this denial of law library access, the U.S. Supreme Court noted that the prisoner had declined, "as was his right," the opportunity to be represented by a lawyer who would have had unlimited access to legal materials.

     California state courts rejected his argument that his restricted access to the law library violated his Sixth Amendment rights. He subsequently asked a federal trial court for a writ of habeas corpus, and was denied relief, but the U.S. Court of Appeals for the Ninth Circuit reversed in Espitia v. Ortiz, 113 Fed. Appx 802 (9th Cir. 2004), stating that "the lack of any pretrial access to law books violated Espitia's constitutional right to represent himself as established by the Supreme Court in Faretta v. California, No. 73-5772., 422 U.S. 806 (1975)" The U.S. Supreme Court granted review after the prison warden filed a petition with the Court, and reversed.

     The decision pointed out that federal habeas relief could only be granted if the state court's decision was "contrary to, or involve an unreasonable application of, clearly established federal law," as determined by the Supreme Court. The decision below, and all the cases it cited, the Court stated, exclusively relief on Faretta for the right of access to a law library. The Supreme Court found that it was clear that Faretta does not clearly establish the right to law library access by a criminal defendant acting as his own lawyer. The federal appeals court, the Supreme Court said, was therefore in error in holding, based on Faretta, that a violation of a right of access to a law library can be a basis for federal habeas relief.

     Kane v. Espitia, No. 04-1538, 126 S. Ct. 407 (2005).

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

     Editor's Note: The U.S. Courts of Appeals have split on whether Faretta, which establishes a Sixth Amendment right to self-representation in a criminal trial, implies a right of a defendant acting as their own lawyer to have access to a law library. See Milton v. Morris, 767 F. 2d 1443, 1446 (9th Cir. 1985) (finding a right of access), , United States v. Smith, 907 F.2d 42, 45 (6th Cir. 1990) ("By knowingly and intelligently waiving his right to counsel, the appellant also relinquished his access to a law library"); and United States ex rel. George v. Lane, 718 F.2d 226, 231 (7th Cir. 1983) (in accord with the Sixth Circuit). It should be noted that the U.S. Supreme Court, in the decision reported above, does not ultimately decide this issue, which it says "cannot be resolved here," but merely determines that past case law does not "clearly establish" this law library access right under these circumstances.

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Gay, HIV-positive, former cook in California youth correctional facility was properly awarded $1,917,104 in damages on state law claim that he was subjected, during five years of employment, to pervasive sexual orientation harassment and retaliation. Plaintiff claimed that his complaints to management were ignored.

     A gay man in California had worked as a cook or chef in various restaurants and other establishments for approximately 18 years, and then decided that he wanted something more permanent--a lifetime job with retirement and a pension, so he applied for a cook position with the State of California. Based on his test scores and interviews, he was notified of openings at two correctional facilities, and took a job as a Cook at the Fred C. Nelles Youth Correctional Facility in Whittier, California. (The facility was closed in June of 2004).

     While there, he was allegedly subjected to derogatory remarks based on his sexual orientation, including statements by his immediate supervisor calling him a "motherfuckin' faggot," and a "homo." A security officer assigned to the kitchen allegedly dd the same--allegedly using derogatory terms against him around 150 times. The security officer also allegedly disliked him because the cook had once reported him for allegedly giving an unknown substance to one of the facility's youthful offenders, which was a violation of the employee rules.

     The derogatory names were allegedly used in front of management, the kitchen staff, and the offenders, as well as directly to the cook. The security officer also allegedly told offenders assigned to the kitchen not to help the cook anymore, while other cooks did receive such assistance. The security officer also allegedly engaged in other harassment such as throwing trash all over the cook's area, including in areas the cook had just cleaned. His complaints to his immediate supervisor allegedly were not reported to the supervisor's superiors. The food manager told the cook that other people thought he had AIDS because he was "always sick," and everyone "thinks you are gay." The cook was, in fact, HIV positive, but this allegedly did not affect his performance, and he had an excellent attendance and work record.

     Some of the youthful offenders then accused the cook of sexually assaulting them or making sexual advances, but two investigations found these accusations to be unsubstantiated. He applied for a promotion to "Cook II" and was promoted, but his promotion was "revoked" approximately four days later. He began missing work, and calling in sick, occasionally blaming job stress from his mistreatment for his absence. He subsequently revealed his HIV positive status to a supervisor, and this information, which she allegedly promised to keep confidential, was subsequently revealed by her to others.

     He was then encouraged to work part-time instead of full time. During five years of employment, he allegedly complained to six different supervisors or managers about sexual orientation harassment, including at least 20 conversations with one of them about the subject, but no corrective action was taken. He was denied a "merit salary adjustment" in part because of his working relationship with other staff members. He was ultimately placed on a medical leave of absence, and did not return to work.

     He filed a sexual orientation discrimination lawsuit against the California Youth Authority (CYA) (now the Division of Juvenile Justice of the California Department of Corrections and Rehabilitation) for discrimination, harassment, retaliation and failure to prevent harassment, as well as asserting claims for wrongful termination. He claimed he had been mistreated both because of his sexual orientation and his HIV status. Under California state law, Gov. Code Sec. 12940, it is unlawful to discriminate against an employee on the basis of sexual orientation.

     A jury found in favor of the plaintiff on both the harassment and retaliation claims, awarding him $917,104 in economic damages and $1 million in non-economic damages. He was subsequently also awarded attorneys' fees, pre-judgment interest, and costs.

     On appeal, an intermediate California appeals court found that the jury's verdict was supported by substantial evidence that the harassment was severe or pervasive, that the cook's superiors knew or should have known of it, and that no corrective action was taken to stop the harassment, which created a hostile work environment. It rejected the defendants' argument that the cook should have told them of his sexual orientation, finding that they had knowledge of it.

     The appeals court also ruled that a jury could have properly found that any performance problems that the plaintiff cook had in his job, and excessive absences later during his employment, were attributable to unlawful harassment.

     The appeals court also rejected arguments that the damages awarded were excessive or that the plaintiff was not entitled to an award of attorneys' fees.

     Hope v. Cal. Youth Auth., No. B171593, 2005 Cal. App. Lexis 1853 (Cal. App. 2nd Dist. 2005)

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

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Prisoner who claimed that his treatment for symptoms of a heart attack was delayed failed to show that the delay had any detrimental effect on him, and therefore could not pursue a federal civil rights claim against prison officials and employees.

     A prisoner at the Cross Roads Correctional Center in Cameron, Missouri sued correctional officials and employees for alleged indifference to his serious medical needs. He claimed that he experienced physical symptoms one morning which he believed indicated a heart attack, and that he pressed a call button in his cell at least twice until a correctional officer responded more than an hour later.

     After he told the officer about his symptoms, it allegedly took another twenty minutes before another prison employee came to his cell, and another fifteen minutes before medical assistance arrived. He was then allegedly taken to a medical unit, examined by a doctor, given an over-the-counter antacid, and then returned to his cell. Almost five hours later, medical assistance again responded to his cell, and the prisoner was taken to the medical unit and then admitted to the infirmary. The next day, he was taken to a hospital, where he was diagnosed as having suffered a small acute myocardial infarction, and subsequently received angioplasty treatment there.

    A federal appeals court upheld summary judgment for the defendants. To win on a federal civil rights lawsuit for inadequate medical care, the court noted, the plaintiff needed to show both that the deprivation suffered was "objectively serious," and that the defendant prison official was "deliberately indifferent" to his health or safety.

     The "objective seriousness," the court said, must be measured by the effect of a delay in treatment. While the plaintiff prisoner presented evidence of his diagnosis and treatment, he failed to offer any evidence showing that the alleged delay in treatment had a detrimental effect on him, and therefore failed to create a genuine issue of material fact on an "essential element" of his lawsuit. Summary judgment in favor of the defendants was therefore proper.

     Laughlin v. Schriro, No. 04-2101, 2005 U.S. App. Lexis 26648 (8th Cir.).

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

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Prison medical director was entitled to dismissal of inmate's federal civil rights lawsuit concerning treatment for old bullet wounds which resulted in four bullets lodged in his body, based on prisoner's failure to exhaust administrative remedies before pursuing litigation.

     A federal appeals court has upheld dismissal of claims against the medical director of the Tamms Correctional Center in Illinois in a lawsuit by an inmate alleging that he was deliberately indifferent to his need for treatment of old bullet wounds. This result, the court found, was mandated by the plaintiff prisoner's failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e.

     The plaintiff prisoner suffered five near-fatal gunshot wounds before his incarceration, and only one of the five bullets that entered his body could be removed. Doctors allegedly told him that the bullets could safely remain in his body, but that he should under periodic X-rays to monitor their location, since they were lodged close to vital organs, so that their movement within his body could seriously jeopardize his health. After serving 14 years in other prisons, he was transferred to Tamms Correctional Center, where the defendant is medical director.

     The plaintiff claimed that he submitted several request forms for X-ray monitoring of the bullets lodged in his body, as well as for treatment of a severe skin condition and a sharp pain in his left foot. While he received some treatment for the skin condition and foot pain, he claims that he was never treated for his bullet wounds and that prison officials refused to take X-rays to monitor the locations of the lodged bullets.

     While he did file a grievance concerning his allegedly inadequate medical care, after it was denied by the warden on the recommendation of a grievance officer, he failed to further appeal it through the Illinois Department of Corrections' three-step grievance procedure. Accordingly, he failed to comply with the PLRA before filing his lawsuit, the appeals court found. The appeals court did find, however, that the dismissal should be without prejudice to the prisoner refiling the lawsuit should he subsequently exhaust available administrative remedies, modifying the ruling of the trial court, which had converted the motion to dismiss to a motion for summary judgment, and granted summary judgment for the prison medical director.

     Burrell v. Powers, No. 04-3745, 2005 U.S. App. Lexis 26902  (7th Cir.).

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Trial court properly reduced jury's award of $75,000 in "nominal" damages to $1 in pre-trial detainee's lawsuit, when jury specifically found that jailer used excessive force against the detainee but did not cause any substantial injury.

     A motorist stopped for speeding was found to be the suspect sought under an outstanding warrant, and was arrested and transported to a county jail. During the booking process, while a jailer inventoried his possessions, he allegedly exchanged words with the jailer. The jailer then allegedly reached over a desk and hit the detainee on the top of his head. The detainee responded by throwing a heavy set of keys at the jailer, and a brief fight followed during which the jailer allegedly pushed the detainee into a wall, and both men fell to the floor. The jailer then completed the booking process and apologized for losing his temper. A physical examination found no serious injury to the detainee as a result of the incident.

     The detainee filed a lawsuit against the jailer claiming excessive use of force in violation of his Fourth Amendment constitutional rights as a pre-trial detainee. A jury found for the plaintiff and said that it was awarding him $75,000 in "nominal" damages. The trial judge reduced the nominal damages award to $1. A federal appeals court has now upheld that result.

     A jury instruction stated that:

If you find that plaintiff is entitled to a verdict in accordance with these instructions, but do not find that the plaintiff has sustained substantial damages, then you may return a verdict for plaintiff in some nominal sum such as one dollar.

     The jury was also provided with a special verdict form, which asked them to determine whether the jailer used excessive force, whether that force was the direct cause of injuries, and if the excessive force was "not a direct cause of substantial injuries" to the plaintiff, "what nominal sum of money will fairly and adequately" compensate the plaintiff for the deprivation of his constitutional rights. In the event that the jury found that the excessive force caused substantial injuries, the jury was instructed to name the amount to be awarded for such elements of damages as past and future pain, disability, emotional distress, medical expenses and lost wages.

     The jury found that excessive force was used, and that it did not cause injuries. It then awarded $75,000 as the "nominal" sum of damages to be awarded. The trial judge reduced that amount to $1, and denied the plaintiff's motion for a new trial. The plaintiff, on appeal, argued that the jury's finding of no injury was contrary to the evidence and that the trial judge acted erroneously in reducing the $75,000 award and in not offering him a choice between a new trial on damages or a reduced damages award.

     The appeals court found that the jury unambiguously found that the plaintiff suffered no compensable injuries at the hands of the jailer, and, by utilizing the nominal damages question, also found that the excessive force did not cause any "substantial" injuries, and that only a "nominal" sum should be awarded.

     Despite an instruction that any nominal damages should be awarded in a sum "such as one dollar," the jury decided that, in the absence of actual damages, $75,000 would be appropriate to vindicate the plaintiff's constitutional rights. The trial judge had a "duty," the appeals court ruled, to make the nominal damages award conform to the law, as the amount awarded was unconstitutionally excessive as a "nominal" damage award.

     The appeals court further found that the trial court was not required to offer the plaintiff a choice between a new trial on damages or a reduced damages award, as the jury's specific findings on the facts did not permit an award of damages other than a nominal one. The trial court did not substitute its own evaluation of the evidence for the jury's factual findings, but instead made a determination that the law did not permit the award of damages made based on the factual findings of the jury, and reduced the award to comply with the law. Therefore, the court concluded, the plaintiff's Seventh Amendment right to a jury trial on his claim was not involved, and the trial court was not required to offer him the option of a new trial on damages.

     Corpus v. Bennett, No. 04-2603, 2005 U.S. App. Lexis 26650 (8th Cir.).

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Prisoner's rights were violated when a disciplinary misconduct conviction, found to be supported by "no evidence," caused him to be demoted to a status in which he could not earn credits towards early release.

     An Oklahoma state inmate claimed that his due process rights were violated when a disciplinary misconduct convicted caused him to be demoted from a credit-earning prisoner to a non-credit-earning prisoner. He argued that there was no evidence to support the misconduct conviction. A federal appeals court agreed with the prisoner.

     The prisoner attempted to use his mandatory savings account to pay for the costs of copying court documents he needed to pursue a post-conviction proceeding in his criminal case. Because of this, he was accused of violating Oklahoma state law, subjected to prison disciplinary proceedings, and convicted of Class X misconduct, which triggers two automatic and mandatory consequences in that state.

     He was demoted from the status of a prisoner who earned 44 credits each month toward early release to the status of a prisoner ineligible to earn any credits. It also made him ineligible for promotion beyond a level where he could earn only 22 credits each month, for a period of two years.

     Oklahoma prisoners are required to keep a mandatory savings account in which they must deposit 20% of their prison employment wages. They are only allowed to access the account to pay fees or costs in filing a civil or criminal action, such as fees, costs, or fines imposed by a court. The federal appeals court noted that it had recently concluded that this included the use of the funds to pay photocopy charges imposed by a court clerk for obtaining official records and transcripts.

     Despite this, when the prisoner followed the usual procedures and requested the release of $170 from his mandatory savings account to pay for copies of proceedings in his criminal conviction for use in his post-conviction appeal, the prison officials charged him with a Class X misconduct, claiming that this constituted obtaining money under false pretenses. The only evidence for the charge was the written form he had submitted to prison officials, requesting payment from his account "to attain transcripts and court documents" for the county court clerk. He was convicted of the offense after a hearing, and punished by the revoking of 180 of his earned credits and 30 days of disciplinary segregation.

     He was also reclassified to the status of a non-credit-earning prisoner, ineligible to earn any credits, and remained there for thirty days, after which he was promoted to level two, earning 22 credits a month, where he remained for one year until he received another misconduct conviction.

     The appeals court found that the misconduct conviction infringed a liberty interest when it inevitably reduced the prisoner's credit earning class in a manner that affected the duration of his confinement. And it further found that the misconduct conviction was not supported by "any evidence" in the record, since the prisoner did not attempt to obtain the money by a trick, deception or false representation.

Due process in a prison setting is very limited, but some safeguards remain to ensure that the few rights prisoners do retain are not violated by prison officials' arbitrary exercise of their power. Among these safeguards is the requirement that disciplinary convictions that mandatorily affect time served be supported by some evidence, which is a minimal but nonetheless important standard.

     In this case, the misconduct conviction was arrived at "without any evidence" to support it, and violated the prisoner's due process rights. The court ordered that the misconduct conviction be reversed and expunged from the prisoner's record, and that his former status in earning credits be restored.

     Wilson v. Jones, No. 02-6384, 2005 U.S. App. Lexis 26655 (10th Cir.).

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Federal appeals court overturns order upholding requirement that all pre-trial detainees be shackled while making their first appearance in criminal cases before magistrate judges. Federal district court, in issuing its order, provided no explanation or justification for the policy based on past safety problems or existing circumstances.

     A number of federal criminal defendants in California challenged a requirement that pre-trial detainees making their first appearance before a federal magistrate judge wear leg shackles in court. This shackling policy was implement by the U.S. Marshals Service for the Central District of California after consulting with local magistrate judges. In the cases of each of the 17 prisoners, the magistrate judge denied motions for the defendants to appear without shackles at their initial appearance in court. The federal district court reviewed these decisions by the magistrate judges in a consolidated appeal and upheld the shackling decisions, citing general safety concerns.

     A federal appeals court panel, by a 2-1 vote, has reversed the order upholding the shackling requirement, finding that the record contained no documentation or explanation of "specific problems" that led up to the enactment of the shackling policy, or justification for the necessity of the restraints.

    The court panel's majority found it "undisputed" that the policy involves a "diminution" of the liberty of pre-trial detainees, and "distracts" from the dignity and the decorum of a "critical stage" of criminal prosecutions, and therefore "requires adequate justification of its necessity." The panel majority did not preclude that, on remand, the same or a similar policy might be reinstated, based on a "reasoned determination" that it was justified either on the basis of past experiences or present circumstances in the federal trial court's district.

      Most past litigation concerning shackled defendants in the 9th Circuit, the court noted, arose in the context of proceedings in front of a jury, with concerns expressed about the fear that the jury will be prejudiced by seeing a defendant in shackles. "Before a defendant can be shackled in front of a jury, the court must be persuaded by compelling circumstances that some measure is needed to maintain security, and that no less restrictive alternatives are available." The court found that "fear of prejudice" is not at issue with a judge at a pretrial hearing, however, since a judge presumably "will not be prejudiced" by seeing a shackled defendant.

     Still, it stated, shackling a defendant "in any judicial proceeding can have negative effects," including possibly reducing the ability of a defendant to communicate with their counsel, or confusing and embarrassing a defendant, impairing their mental faculties or causing them physical and emotional pain. The appeals court did not determine whether due process requires that there be no restraining whatsoever before a judge without an individualized determination of necessity, but found that the problem here was the absence in the record of any justification or circumstances that would support the general rule requiring such restraint of incarcerated defendants.

     "There may well be good reasons for the policy," the appeals court majority concluded, "but we don't yet know what they are." It therefore ordered further proceedings in the case.

     US v. Howard, No. 03-50524, 2005 U.S. App. Lexis 24527 (9th Cir.).

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Shakedown search of jail cells, and confiscation as contraband from prisoner of state's pretrial discovery answers and police reports in his criminal case which were in his possession was not improper. An Illinois Supreme Court rule barred lawyers in criminal cases from sharing such materials with their clients or others, and neither the jail officials nor the State's Attorney who informed the jail of the rule acted improperly.

     An Illinois prisoner convicted of a drug offense and sentenced to 25 years imprisonment and a $96,070 fine, claimed that while he was incarcerated and awaiting trial, there was prosecutorial misconduct where the sheriff of the facility in which he was confined conducted a "shakedown" of the jail and confiscated pre-trial discovery documents which had been produced by the state and were in his possession. The shakedown was allegedly conducted with the intention of confiscating police reports in the possession of inmates.

     The searches were carried out after the Macon County, Illinois State's Attorney's office informed the sheriff and jail officials that Illinois Supreme Court Rule 415(c) (134 Ill. 2d R. 415(c), requires that a lawyer keep pre-trial discovery materials in his or her exclusive possession. The trial court in the prisoner's case denied his prosecutorial misconduct motion, prior to his conviction and sentencing.

     An intermediate Illinois appeals court rejected the prisoner's argument on appeal that the search of inmate cells and the confiscation of the pre-trial discovery answers and police reports was improper and impaired his ability to be effectively represented by his lawyer, as well as constituting interference with the attorney-client relationship. He claimed that the Illinois Supreme Court rule at issue did not bar defense lawyers from transferring custody of the state's answers to discovery requests to a client, and that the county prosecutor had no authority to direct or request that the jail conduct the shakedown and confiscate the documents. He also claimed that documents containing notes, attorney correspondence, legal research and other private papers were also improperly confiscated during the shakedown.

     In upholding the search and seizure, the appeals court noted that authorities had allegedly become aware of instances of witness intimidation that they suspected were based on information contained in police reports in the possession of jail inmates. Approximately 40 of the 250-260 inmates in the county jail were found to have such documents. The confiscated documents were held in the county prosecutor's office in sealed envelopes only opened at the request and in the presence of defense attorneys who wanted to inspect their contends. Attorneys were also told that they could obtain possession of these materials by signing a statement acknowledging the requirements of the Illinois Supreme Court Rule, and agreeing not to return the documents to the inmates.

     The appeals court found that the Illinois Supreme Court Rule at issue did appear to require attorneys to maintain exclusive possession of discovery materials received in discovery in criminal cases, in case dissemination of such materials should prejudice the criminal justice system. Further the Illinois Administrative Code provides for "random, unannounced, irregularly scheduled shakedowns of [county jail] detainees and their quarters [...] to detect the presence of weapons and other contraband." 20 Ill. Adm. Code 701.140(c)(12)

     The court found that the actions of the prosecutor's officer were not inappropriate, and instead constituted a "fulfillment of his official duties" as a legal advisor to county officials, including the sheriff and jail officials. The ultimate decision to confiscate the materials at issue as contraband was made by jail officials.

     The prisoner in this case did not claim that any privileged communications were taken from him personally during the shakedown, but rather only the state's pretrial-discovery answers, including police reports. These documents do not constitute privileged attorney-client communications, the court found.

     The court also rejected the prisoner's equal protection argument that there was no rational basis for treating prisoners like him, represented by lawyers, differently from prisoners serving as their own defense attorneys, who may possess discovery materials, as well as the fact that the action of confiscating such documents was only taken against incarcerated defendants and not against those defendants who were able to post bond and get out of jail. Because the Illinois Supreme Court Rule at issue did not involve any fundamental right or suspect classification, the court found, it could be justified by a rational relationship to legitimate governmental interests. The court found that the rule, and its application in this case, were justified by a purpose of preventing public dissemination of pretrial discovery.

     Prisoners and other defendants serving as their own attorneys, the court noted, have a need to possess the state's pre-trial discovery answers and are subject to the same rules as attorneys serving as defense counsel for other prisoners, including the requirement that they not disseminate such discovery materials to others.

     The appeals court noted, in passing, that it "recognizes the impossibility of enforcing Supreme Court Rule 415(c) as well as defense counsel's need to share discovery materials with defendant in order to prepare an adequate defense. However, changes in supreme court rules are subject to a committee review and supreme court passage, not to this court."

     People v. Savage, No. 4-03-1065, 2005 Ill. App. Lexis 1091(Ill. App. 4th Dist.).

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Prison officials did not violate prisoner's rights by putting him in a highly-restricted cell tier with no contact with other inmates without a hearing and keeping him there for forty days after he killed another prisoner who attacked him.

     A Massachusetts prisoner serving a life sentence for murder was transferred to the New Hampshire State Prison, after being involved in a series of violent incidents. He was classified as a high-security prisoner and housed in a Special Housing Unit. Shortly after arriving at his new facility, he was involved in a fight started by another inmate, which resulted in the other prisoner's death. He was then immediately transferred to another tier of the prison, a restricted area reserved for "special circumstances."

     While confined there for forty days, he was isolated from other inmates, and his only human contact occurred when prison staff members opened the door for checks on him or to deliver food. He claimed that the staff intentionally slammed his metal cell door during their hourly checks, depriving him of sleep, and that the lights were kept on at all times. Nothing was in the cell except clothes and bedding and he was allowed out of the cell only to shower.

     He was subsequently charged with disciplinary violations for the incident leading to the other inmate's death, but the hearing was suspended because the state intended to charge him with murder. He was returned to normal confinement, and because he was acquitted of the murder charges during a jury trial, the disciplinary proceeding was never conducted. He was subsequently transferred back to Massachusetts.

     He filed a federal civil rights lawsuit against New Hampshire prison officials, which included claims that they had violated his rights by exposing him to an attack by the other inmate, who was a white supremacist (the plaintiff is black), that his right to due process had been violated by confining him to the restricted tier for forty days without a hearing, and that he was subjected to cruel and unusual punishment by abusive treatment during three forcible "cell extractions" and by other acts of alleged harassment.

     A jury held for the defendants on the failure to protect against assault claim, and the trial court granted summary judgment for the defendants on the other claims.

     Upholding this result, a federal appeals court found that defendants' actions in moving the plaintiff immediately to the restricted cell area after the other inmate's death without a hearing or any other process whatsoever did not violate his due process rights. It noted that he had just killed another prisoner, and whoever might have been at fault, prison officials were entitled to isolate him "on a summary basis"--both for his own sake and for the protection of others, while investigating the incident.

     The prison officials were faced with "exigent" circumstances when one prisoner killed another, and the immediate transfer of the plaintiff was therefore justified. The appeals court found that a possibly more viable due process claim was that the prisoner was kept in the restricted tier for forty days while his disciplinary hearing was indefinitely deferred. Even there, the appeals court concluded, the fact that the state was investigating the incident with the intention of pursuing a murder charge was a " perfectly good reason for avoiding a duplicative inquiry."

     The appeals court further found that the conditions faced by the prisoner did not constitute an "atypical and significant hardship" departing from the ordinary conditions faced in prison. The appeals court found that the prisoner's segregation was "rational," that its duration was not excessive, and that its main condition, isolation from other prisoners, was essential to its purposes. Indeed, had the prisoner, who had just killed another inmate, been immediately returned to the general population and then attacked another prisoner or himself been attacked, "a different and far more plausible suit against the authorities would likely have followed." The prison was waiting on the murder investigation, and the court found that six weeks "is hardly an excessive time" to investigate a possible murder.

     While the court acknowledged that it may have been "needless" to have denied the prisoner amenities such as television or books, these deprivations were "largely incidental" to his main complaint, and were short-term. The prisoner's segregation without a formal hearing was therefore not unconstitutional either in its "essential character" or in its duration.

     The appeals court also rejected the prisoner's claims concerning the actions of prison employees during the forcible cell extractions, noting that on each occasion, the prisoner physically resisted removal and that correctional officers had to struggle to subdue him and remove him from his cell. Under these circumstances, the prisoner did not present an Eighth Amendment violation.

     Skinner v. Cunningham, No. 05-1046, 2005 U.S. App. Lexis 25223 (1st Cir.).

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Texas prison system did not violate transsexual prisoner's constitutional right to adequate medical treatment by denying a request for hormone therapy.

     A Texas prisoner appealed the denial of his civil rights complaint against officials of the Texas Department of Criminal Justice (TDCJ) and other entities involved in inmate health care. He argued that the defendants' denial of his request for hormone therapy to treat his transsexualism was cruel and unusual punishment in violation of the Eighth Amendment. He sought injunctive relief requiring that he provided with hormone therapy and brassieres.

     The trial court dismissed the lawsuit for failure to state a claim. A federal appeals court upheld this dismissal.

     The appeals court acknowledged that the Eighth Amendment protects a prisoner from inadequate medical care, but only if that care is "sufficiently harmful to evidence deliberate indifference to serious medical needs."

     The court noted that other federal appeals courts that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need.

     The immediate court assumed for the purposes of appeal, without deciding, that transsexualism involves a serious medical need, but held, on the evidence presented, that the refusal to provide the plaintiff with hormone therapy did not constitute deliberate indifference.

     In the plaintiff's case, the court noted, the evidence showed that he did not request any other form of medical treatment besides hormone therapy. Testimony from the Texas correctional department's medical director indicated that Texas prisons have a policy of treating transsexuals, but that the plaintiff did not qualify for hormone therapy because of the length of his term and the prison's inability to perform a sex change operation, as well as the evaluation that there was no medical necessity for the hormone, and the possibility of disruption at the all-male prison.

     Further, the evidence indicated that the plaintiff had been evaluated on two separate occasions, and was found ineligible for hormone therapy, and that he was provided with mental health screening as part of its process foe evaluating transsexuals. Under these circumstances, the court could not find that the denial of his request for hormone therapy was deliberate indifference to his condition, and he was not entitled to an injunction requiring it.

     Praylor v. Tx. Dep't of Criminal Justice, No. 04-50854, 2005 U.S. App. Lexis 25043 (5th Cir.).

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

     Editor's Note: Other cases addressing the same or similar issues include: White v. Farrier, 849 F.2d 322 (8th Cir. 1988) (acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding transsexual prisoner has no constitutional right to "any particular type of treatment, such as estrogen therapy"); and Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Also see Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997) (Transsexual prisoner has no constitutional right to prison-provided hormonal and surgical treatment; denial of such treatment is not "cruel and unusual" when its expense would make it unavailable to the person of "average wealth" even if not in prison). For additional cases and articles on this topic, see the topic Transsexual Prisoners in the Jail Bulletin's Case Law Digest.

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Access to Courts/Legal Info

     Federal prisoner preparing a motion challenging his conviction was not unconstitutionally denied access to the courts by prison officials, even though he was placed in a facility without a law library, when he only remained there for twenty-two days during a one-year period he had to file the motion in question, and after his transfer out of there, he once again had access to a law library. Additionally, he also admitted that he himself had delayed writing the motion. Mathison v. Swenson, No. 04-2626, 143 Fed. Appx. 730 (8th Cir. 2005).

Administrative Liability

     New York prisoner's complaint adequately claimed personal involvement of the Commissioner of the state's Department of Correctional Services in failing to act on information that unconstitutional practices were occurring in the handling of appeals prisoner disciplinary determinations to pursue federal civil rights claim against him personally. The prisoner claimed that the department had a policy or custom of upholding constitutionally defective disciplinary determinations, and then reversing those affirmances if the prisoner filed a state court lawsuit. He also contended that the Commissioner and his deputy created this policy, and failed to provide adequate training and supervision for employees of the Department who were in charge of disciplinary hearings. James v. Aidala, No. 04-CV-62101, 389 F. Supp. 2d 451 (W.D.N.Y. 2005).

Chemical Agents

     Correctional officer's alleged action of making an inmate wait from five to ten minutes before he could wash pepper spray from his face and eyes was not a violation of the Eighth Amendment when the prisoner had failed to comply with an order to enter his cell before being subjected to the spray. Kervin v. Barnes, No. 05-1443, 144 Fed. Appx. 551 (7th Cir. 2005).

Defenses: Qualified Immunity

     Federal trial court abused its discretion in denying defendant prison officials' motion for summary judgment on the basis of qualified immunity as untimely in prisoner's lawsuit claiming that they were deliberately indifferent to threats of physical violence against prisoners. This motion, filed within three weeks of the court's motion ruling on a motion to dismiss, and one week before trial, was not clearly untimely because no local rule or court order clearly provided the officials with a specific deadline for filing the motion, and the officials therefore did not have adequate notice that their motion would be untimely if filed when it was. Further proceedings ordered on defendant officials' motion. Moore v. Cockrell, No. 04-40474, 144 Fed. Appx. 397 (5th Cir. 2005).

Employment Issues

     If, as former Illinois prison warden claimed, she had no policymaking function and no discretionary authority, then her alleged termination based on her Republican political affiliation would demonstrate the violation of her clearly established First Amendment rights. Appeals court rejects, however, plaintiff's due process claim as she had no constitutionally protected property interest in continued employment as a state prison warden. Kiddy-Brown v. Blagojevich, No. 04-2283, 408 F.3d 346 (7th Cir. 2005).

Expert Witnesses

     Expert witness testimony that a federal prison staff had deviated from the accepted standards of medical care and that this deviation had caused a prisoner's death was necessary in order to hold the U.S. government liable for the death of a prisoner from a respiratory illness. In the absence of such evidence, the trial court properly dismissed a medical malpractice lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b). Davis v. U.S., No. 04-5782, 143 Fed. Appx. 371 (2nd Cir. 2005).

Escape

     Hospital employee taken hostage by inmate was properly awarded $500,000 in damages against private security company that took the prisoner to the hospital for medical treatment under contract with the state of Tennessee. Company employees were negligent in failing to both stay in hospital room with inmate and in allowing prisoner access to a weapon which he used to escape and kidnap employee and drive away with her in her car. Willis v. Settle, 162 S.W.3d 169 (Tenn. App. 2004), review denied, Tennessee Supreme Court (2005).

Freedom of Information

     Under Freedom of Information Act, 5 U.S.C. Sec. 552, federal Bureau of Prisons (BOP) records concerning an investigation into a prisoner's contacts with security agencies while falsely claiming to be a prison staff member were exempt from disclosure, as was information regarding sexual assaults at the prison, but no exemptions applied to a list of staff names and titles for all staff at the prison, or to information about housing units in which prisoners were housed. Maydak v. U.S. Dept. of Justice, No. CIV.A. 00-0562, 362 F. Supp. 2d 316 (D.D.C. 2005).

Inmate Funds

     Kansas prisoner who had uncollected disciplinary restitution from prior incarceration was subject to amended statute allowing prison officials to collect remaining amount from his inmate account upon his subsequent reincarceration on other offenses. Application of statute to prisoner did not amount to an unconstitutional retroactive enhancement of his punishment under the "ex post facto" clause of the Constitution. Tonge v. Werholtz, No. 93,329, 109 P.3d 1140 (Kan. 2005).

Jail and Prison Conditions: General

     Pre-trial detainee's claim that he was deprived of a toothbrush, clean clothes, and shower shoes when he arrived at a county jail, and was forced to sleep on the floor as the third person in a two person cell, was insufficient to show a violation of his constitutional rights. Calhoun v. Thomas, No. 2:02cv1157, 360 F. Supp. 2d 1264 (M.D. Ala. 2005).

Mail

     Federal government was entitled to sovereign immunity in prisoner's lawsuit claiming that his books and manuscript, mailed to his home by prison officials, were lost. While he claimed that this was due to negligence by the federal Bureau of Prisons (BOP) and post office, an exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), 2680(b) for "loss, miscarriage, or negligent transmission of letters or postal matters" barred liability. Georgacarakos v. U.S., No. 04-1363, 420 F.3d 1185 (10th Cir. 2005).

Marriage/Procreation

     New York prisoner's application to participate in family reunion program was properly denied based on the heinous nature of his crimes (involving the brutal murder of his sister-in-law and a violent assault on her three-year-old daughter), along with his life sentence, which eliminated the need to preserve his family structure to promote future integration into society. Denial of a request for participation in such a program will be upheld if based on a rational reasons, since participation is a privilege rather than a right. Williamson v. Department of Correctional Services, 792 N.Y.S. 2d 719 (A.D. 3rd Dist. 2005).

Medical Care

     Prisoner on furlough from county jail was still in the county's custody, so that the county was liable for his reasonable medical expenses if he was indigent. North Brevard County Hospital District v. Brevard County Board of County Commissioners, #5D04-2178, 899 So. 2d 1200 (Fla. App. 5th Dist. 2005).

     Complaint about medical care that amounted only to a disagreement about the manner of treatment received was insufficient to state a constitutional claim for deliberate indifference against a prison doctor. Shell v. Brzezniak, No. 00-CV-61521, 365 F. Supp. 2d 362 (W.D.N.Y. 2005).

     Prisoner who allegedly told medical staff at prison that he could not work because of a prior gunshot injury failed to show that they responded with deliberate indifference to his serious medical needs. Prison medical staff used a medical team to evaluate the prisoner, and conducted a physical examination, and once he complained of a spasm, they provided prompt attention, including pain medications and adjustment of his work status. Randle v. Webster, No. 04-2239, 124 Fed. Appx. 439 (7th Cir. 2005).

Medical Care: Mental Health

     In lawsuit claiming that county failed to provide adequate medical care to mentally ill prisoners, a report by a consulting expert retained by the county to evaluate health services and programs at the county's jails was not protected from discovery under the work products doctrine protecting materials prepared in anticipation of litigation. The expert was not asked to investigate any particular claims but rather to help the county develop long range planning and analysis of its health care needs. There was no evidence that the county's outside litigation attorney ws involved in or directed the preparation of the report. Mims v. Dallas County, No. 3-04-CV-2754, 230 F.R.D. 479 (N.D. Tex. 2005).

Parole

     Prisoner could pursue constitutional due process claim that his rights were violated by parole officials conducting a parole hearing via "techno screen" rather than in person, if success on this claim would not necessarily require his speedier or immediate release. Yourdon v. Johnson, No 02-0003, 128 Fed. Appx. 833 (2nd Cir. 2005).

     A parole violator who was confined at a New York state drug treatment campus was a "prisoner" subject to the requirement in the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, requiring him to exhaust available administrative remedies before pursuing a federal civil rights lawsuit against the county, sheriff, and correctional officers. Summary judgment was therefore properly granted to the defendants based on his failure to comply with this requirement before pursuing his lawsuit. Ruggiero v. County of Orange, No. 03 CIV. 1396, 386 F. Supp. 2d 434 (S.D.N.Y. 2005).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit, claiming that he contracted histoplasmosis, a fungal disease affecting the lungs, from pigeon and bat droppings at prison, was properly dismissed without prejudice when he failed to specify the claims he asserted in prior administrative hearings, based on the requirement, in the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before pursuing litigation. Clayton v. U.S. Depart. of Justice, No. 04-5536, 136 Fed. Appx. 840 (6th Cir. 2005).

Prisoner Assault: By Officers

     Federal trial judge overturns jury's award of $1 in nominal damages and $45,000 in punitive damages to prisoner who claimed that correctional officers used excessive force against him while escorting him to a location in the prison when he resisted going where he was told to go. The trial judge found that there was absolutely no evidence introduced at the trial indicating physical injury of any kind, not even a bruise or swelling, and that the prisoner did not even file a medical complaint arising from the incident. Under these circumstances, the court concluded, no reasonable jury could have concluded that the prisoner suffered any injuries in the incident that were more than "de minimus" (minimal). Willis v. Youngblood, No. CIV. RDB-02-2853, 384 F. Supp. 2d 883 (D. Md. 2005).

Prisoner Classification

     Connecticut prisoner had no constitutionally protected due process liberty interest in retaining a particular security classification or placement in a less restrictive half-way house or work-release setting, and therefore had no right to any particular procedures before being designated a "Security Risk Group Threat Member." Harris v. Meulemans, No. 3:02 CV 1580, 389 F. Supp. 2d 438 (D. Conn. 2005).

Prisoner Discipline

     Discovery of seven-inch shank in inmate's cell under mattress provided some evidence, which was sufficient to comply with due process required to support disciplinary conviction for possession of dangerous contraband. Quintanilla v. O'Brien, No. 04-3031, 127 Fed. Appx. 887 (7th Cir. 2005).

     Prisoner's disciplinary conviction of harassing a prison employee and committing a sexual offense in violation of prison rules was supported by substantial evidence, including a misbehavior rule, the testimony of the correctional officer who wrote it, and the testimony of the prison employee the prisoner harassed, as well as a videotape of the incident at issue. Porter v. Goord, 801 N.Y.S.2d 634 (A.D. 3rd Dept. 2005).

Prisoner Restraint

     Placement of leg irons on prisoner during escorted medical trip did not violate prisoner's clearly established constitutional rights. Prison officials used their best judgment in applying such restraints to this prisoner during the transport, and the officers did not deliberately inflict pain on the prisoner in the manner in which the restraints were placed. Perez Olivo v. Gonzalez, No. CIV.01-1515, 384 F. Supp. 2d 536 (D. Puerto Rico, 2005).

Segregation: Administrative

     Hearing officer needed to make an independent determination of whether a prisoner's conduct showed him to be a danger to himself or others before placing him in 23-hour-a-day cell lock-in status. Grand jury indictment of prisoner for allegedly assaulting another prisoner, standing alone, was insufficient to justify the decision. People ex rel. Santiago v. Warden, Rikers Island Correctional Facility, 793 N.Y.S. 2d 722 (Sup. Ct. Bronx County 2005).

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     Death Penalty: Capital Punishment, 2004 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Presents characteristics of persons under sentence of death on December 31, 2004, and of persons executed in 2004. Preliminary data on executions by States during 2005 are included, and the report summarizes the movement of prisoners into and out of death sentence status during 2004. Numerical tables present data on offenders' sex, race, Hispanic origin, education, marital status, age at time of arrest for capital offense, legal status at time of capital offense, methods of execution, trends, and time between imposition of death sentence and execution. Highlights include the following: At yearend 2004, 36 States and the Federal prison system held 3,315 prisoners under sentence of death, 63 fewer than at yearend 2003. Of those under sentence of death, 56% were white, 42% were black, and 2% were of other races. Fifty-two women were under sentence of death in 2004, up from 43 in 1994. 11/05 NCJ 211349 Press release | Acrobat file (161K) | ASCII file (27K) | Spreadsheets (zip format 22K)

     Inmate Communications: "Intercepting Inmate Communications," pages 15-20, Point of View, published by the Alameda County, California, District Attorney's Office (Winter 2005).

     Inmate Property: "Taking a Second Look at Prisoners' Property," pages 1-8, Point of View, published by the Alameda County, California, District Attorney's Office (Fall 2005).

     Juvenile Prisoners: Illinois became the 40th state to create a separate correctional department for juvenile offenders on November 17, 2005 when Gov. Rod R. Blagojevich signed into law Senate Bill 92 as Public Act Public Act 094-0696, which creates a new Illinois Department of Juvenile Justice as of July 1, 2006. Chicago Daily Law Bulletin, p. 3 (November 18, 2005). Click here to read the Governor's press release on the new law.

Reference:

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

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