FEATURED CASES

WITH LINKS TO THE OPINIONS

Update: federal appeals court, in light of recent Supreme Court decision allowing states and state agencies to be sued for damages for disability discrimination also violating constitutional rights, orders further proceedings on paraplegic inmate's disability discrimination damage claims.

     In a prior decision, Miller v. King, #02-13348, 384 F.3d 1248 (11th Cir. 2004), the court found that a prison warden was not entitled to summary judgment on claims that he was deliberately indifferent to a paraplegic prisoner's medical needs and "inhuman housing conditions," or on disability discrimination claims seeking injunctive relief. The court also ruled, however, that the prisoner could not pursue disability discrimination claims seeking money damages under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165. The court held that individuals are not subject to personal liability under Sec. 12132 for violations of Title II of the ADA, as that Title addresses the providing of services by a "public entity."

     The U.S. Supreme Court subsequently decided, in United States v. Georgia, 126 S. Ct. 877 (2006), that states and state agencies can be sued for damages for disability discrimination under the ADA to the extent that a disabled prisoner asserts a claim for conduct that actually violates constitutional rights under the 14th Amendment. In light of that, the federal appeals court has vacated its prior decision in the Miller case, and substituted a new one.

     The appeals court ordered that the case be remanded to the trial court to allow the plaintiff prisoner, who previously had acted as his own attorney and is now represented by a lawyer, to amend his complaint so that a proper claim-by-claim analysis can be made in light of the Supreme Court's decision.

     The prisoner was instructed to specify the conduct that he claims violates the Eighth Amendment and constitutes claims under 42 U.S.C. Sec. 1983, as well as to what extent the conduct underlying his constitutional claims also allegedly violates Title II of the ADA, prohibiting disability discrimination in programs by public entities. He was further told to specify what conduct allegedly violates Title II of the ADA, but does not violate the Eighth Amendment, and as to his Eighth Amendment claims whether the claim is brought against the warden in his official or individual capacity or both. Finally, on the ADA claims, he was told to specify whether they are brought against the warden in his official capacity, the State of Georgia, and/or the Georgia Department of Corrections.

     Miller v. King, No. 02-13348, 2006 U.S. App. Lexis 12109 (11th Cir.).

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Prisoner's allegation that he was transferred to a less desirable job assignment in retaliation for filing grievances was insufficient to show a violation of his First Amendment rights, but his assertion, if true, that he was transferred to an inferior and more dangerous prison for retaliatory reasons did state a claim.

     A Texas inmate claimed that he suffered a violation of his First Amendment rights because he suffered retaliation for using the prison grievance system. He filed grievances to prison authorities concerning the way that an employee ran the unit's commissary, where he was assigned to work. He was subsequently moved from the commissary to the kitchen, and later to a butcher shop and months later transferred to another prison. The prisoner claimed that prison officials assigned him to a "more taxing" job in the kitchen in retaliation for his exercise of the constitutional right to file complaints through the grievance system, and further claims that his transfer to an allegedly less desirable and more dangerous prison was a further act of retaliation.

     The trial court held that a prisoner must allege more than a minimal (de minimis) retaliatory act to proceed with a First Amendment claim for retaliation, and also ruled, without discussion, that the retaliation alleged by the prisoner was de minimis, so that the lawsuit should be dismissed.

     The federal appeals court, as an issue of first impression, agreed with the trial court that a retaliation claim alleging only "inconsequential" retaliatory acts by prison officials cannot support a First Amendment claim. "When confronted with more serious allegations of retaliation, however, we have not hesitated to recognize the legitimacy of an inmate's claim."

     The court noted that other federal appeals courts have adopted a standard that a prisoner's retaliation claim must show averse actions that "would chill or silence a person of ordinary firmness from future First Amendment activities." The court found that this legal standard upholds the proper balance "between the need to recognize valid retaliation claims and the danger of 'federal courts embroiling themselves in every disciplinary act that occurs in state penal institutions'."

     The appeals court found that the trial judge had correctly found that the prisoner's claim that he was moved to a less desirable job within the prison for retaliatory reasons did not rise to that level. The court noted that the prisoner was actually only made to work in the supposedly less desirable kitchen for only a week a most, spending only one day in the "pot room," which "is evidently an unpleasant work station," before being moved to a butcher job, a job about which he raised no complaints.

     Nothing in that sequence of events, the court found, could support a finding that these job transfers would have deterred the prisoner from the exercise of the right to file grievances, even if they did have a retaliatory motive, since they could only have inflicted "discomfort" for a few days.

     But the appeals court noted that the prisoner also claimed that he was transferred to an inferior prison in retaliation for filing grievances. The trial judge did not address that claim in granting summary judgment. The appeals court, assuming, for the purposes of the appeal, that this claim was true, found that transfer to a "more dangerous prison" is a much more serious retaliatory act, and was more than minimal.

     "There is no doubt that transfer to a more dangerous prison as a penalty for the exercise of constitutional rights has the potential to deter the inmate from the future exercise of those rights," the court stated, so that summary judgment should not have been granted on that claim.

     Morris v. Powell, No. 05-40578, 2006 U.S. App. Lexis 12033 (5th Cir.).

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Prison officials, in preventing inmate from mailing out a copy of an internal investigation report concerning his escape attempt, violated his First Amendment rights, when the report had been properly obtained through discovery in a criminal case, and was available to the public in the court files of both the criminal prosecution and the prisoner's civil rights lawsuit.

     An inmate at the Tamms Correctional Center in Illinois claimed that a number of prison employees violated his First Amendment rights of free speech by refusing to allow him to mail an internal investigation report out of the facility.

     The plaintiff inmate and two other prisoners had attempted to escape from Tamms, a closed, maximum-security prison, using hacksaw and jigsaw blades to try to cut through the bars on their cell windows. When correctional officials discovered this, they suggested to the press that the saw blades might have been hidden in the binding of a hardcover book delivered as legal mail to an inmate, that legal mail typically comes from attorneys, and that the law prohibits them from searching legal mail.

     An investigation by the Illinois Department of Corrections (DOC) internal investigations department resulted in a report which indicated that a sister of one of the other inmates involved in the attempted escape had successfully mailed the saw blades into the prison on two separate occasions by disguising the envelopes as legal mail. The report also described where the prisoners had hidden the blades within the facility, and how they had used them. The report also included statements to the investigator from inmates, guards, and confidential sources.

     The plaintiff prisoner was later criminally charged with possession of contraband in a prison and attempted escape. A DOC investigator gave the prosecutor a copy of the investigation report, and the prosecutor gave the prisoner and his lawyer copies of the report during discovery in the prosecution, and filed a copy of the report with the court.

     When prison officials learned that the prisoner had a copy of the report, which included guards' home addresses, they removed it from his cell and removed the guards' addresses from it. At that time, they also discovered that he had a "schematic drawing" of a cell window, which they confiscated. They later return the report to him with the guards' addresses removed. A protective order was later entered in the criminal case barring public access to the guards' home addresses and the schematic drawing.

     The criminal case later ended when the prisoner pled guilty. He then tried to mail the report, along with a brief cover letter, to an activist in several community organizations, for the purpose of trying to show that the DOC's statements to the press about how the saw blades had been smuggled into the prisoner were false. Mailroom personnel did not mail this envelope, but instead provided them to a captain in charge of internal affairs at the facility for review.

     The captain subsequently determined that mailing the report presented a threat to prison safety and security, because of the potential identification of confidential sources, a detailed account of how saw blades had been successfully smuggled into the prison, a detailed account of how the blades had been successfully hidden within the prison, and the confirmation and identification of another inmate's involvement in providing information to investigators, along with the home addresses of that inmate's family members. The prisoner was therefore told that he could not mail the report out.

     On the prisoner's claim that this violated his First Amendment rights, an intermediate Illinois appeals court found that the trial judge, in rejecting this claim, improperly relied on the legal standard in Turner v. Safley, 482 U.S. 78 (1987), instead of Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).

     Under Turner, the court noted, a court should uphold regulations or actions restricting incoming mail or mail within the prison system if they are "reasonably related to legitimate penological interests." Less deference, however, is given to prison officials in reviewing the censorship of outgoing prisoner mail under Procunier and Thornburgh:

"First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression." "Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved."

     The defendants in the case, however, argued on appeal that even under the less deferential Martinez standard, refusing to allow the prisoner to mail the report out did not violate his First Amendment right to free speech because the report implicated safety and security concerns under a constitutionally valid regulation.

     That regulation allows employees to "spot check and read outgoing non-privileged mail," and to withhold it from delivery if it presents a threat to safety or security. The appeals court agreed that, on its face, the regulation was not invalid, but stated that the prisoner was not arguing that it was invalid on its face, but rather was invalid as applied to the particular facts in his case.

     The appeals court found that preventing the prisoner from mailing the report did not further any important or substantial governmental interest because the report was already freely available to the public in both the criminal and civil case files in the courthouse. The DOC investigator intentionally gave a report to the county prosecutor without putting any restrictions on its use, and the prosecutor then intentionally provided it to the prisoner and his attorney, and filed it together with other discovery documents, in the criminal case file in the court. The prosecutor did not attempt to file the report under seal.

     Further, even when a protective order was later sought from the criminal court, it only protected against distribution of the guards' home addresses and the schematic drawing, and the prosecutor did not seek to bar public access to the entire report.

     Under these circumstances, the defendants could not constitutionally prevent a newspaper from publishing the entire contents of the report in the court files. The person to whom the prisoner sought to mail the report could also legally go to the courthouse, request to see either the criminal case file or the civil case file in the civil rights lawsuit, and get a copy of the report.

     Under these circumstances, the court held, the defendants' refusal to allow the prisoner to mail the report failed the first prong of the Martinez test--that any restriction on a prisoner's First Amendment rights to send outgoing mail must further "an important or substantial governmental interest unrelated to the suppression of expression."

     The appeals court therefore found that the refusal to allow the prisoner to mail out the report violated his First Amendment right to free speech, and it ordered that an injunction be granted allowing him to mail it.

     Arnett v. Markel, No. 5-04-0082, 845 N.E.2d 752 (Ill. App. 2006).

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Pre-trial detainee presented a viable claim against two officers for deliberate indifference to inadequate shelter in his cell, which was allegedly cold and wet, with rain or snow leaking from the ceiling onto the mattress on the floor where he slept.

     A Michigan detainee claimed that several officers with the Oakland County Sheriff's Office violated his constitutional rights by failing to provide him with adequate shelter. While claims against some defendants were properly rejected because the plaintiff prisoner failed to properly exhaust available administrative remedies available against them, a federal appeals court found that there was sufficient evidence to create a genuine issue of material fact as to whether two defendant officers violated the plaintiff's rights by providing him inadequate shelter. These two defendants had been named in a grievance the prisoner filed concerning his inadequate shelter claim.

     The detainee, who was formerly incarcerated at the Oakland County Jail in Pontiac, Michigan, claimed that the shelter provided was not adequately warm and dry. The appeals court noted that, as a pre-trial detainee, the plaintiff's rights were provided by the Fourteenth Amendment's due process clause, rather than the Eighth Amendment's prohibition on cruel and unusual punishment, but stated that the Fourteenth Amendment provides "similar if not greater protections" than the Eighth Amendment.

     The appeals court found that shelter is a "basic need," and that the plaintiff had a right to adequate shelter. He was detained in a cell during the fall and winter, and for more than 90 days had to sleep on a mattress on the floor due to overcrowding. There was evidence that the cellblock was "very cold," and that other inmates complained about it, and that it was particularly cold at the end of the cellblock where the plaintiff's cell was located. While it was allegedly cold enough for the officers to wear their winter coats indoors there, the plaintiff and other inmates there were only dressed in their "standard jumpsuits."

     The plaintiff also alleged that whenever it rained or snowed, water leaked "real bad" through the ceiling above the plaintiff's mattress, and caused the area where he slept to be flooded. The appeals court found that there was sufficient evidence to satisfy the "objective" component of the plaintiff's Eighth Amendment claim, i.e., whether the conditions were sufficiently harsh to violate constitutional rights.

     The appeals court further found that the plaintiff presented "much" evidence in support of his claim that the two remaining defendant officers knew of the harsh conditions he suffered and acted with deliberate indifference to them. These defendants were among the officers seen wearing their winter coats indoors, according to the plaintiff, and received complaints about the cold and wet conditions from him and from other inmates, but failed to take any measures to remedy the conditions, such as by providing adequate clothing and blankets, fixing the leaks, bringing in heaters, or moving the inmates to other quarters.

     Further, the plaintiff claimed, these two officers "actively interfered" with inmates' own attempts to "abate the risk," by allegedly responding to complaints about the cold by conducting "shake downs" and confiscating extra blankets that any inmates had obtained on their own, and by tearing down "awnings" made out of garbage bags that the detainee and his cellmates had placed on the ceiling to try to divert the leaking water away from his bed. One of them also allegedly told the plaintiff, while tearing down such an "awning," that "It's your own damn fault you in here so deal with it!"

     These allegations, if true, were sufficient to show subjective deliberate indifference to unconstitutional conditions of confinement.

     Spencer v. Bouchard, No. 05-2562, 2006 U.S. App. Lexis 13846 (6th Cir.).

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A prisoner must exhaust prison grievance procedures before "submitting any papers" to a federal court, and even if he subsequently exhausted administrative remedies by the time the court approved his application to proceed as a pauper, a complaint sent to the court before exhaustion should be dismissed, federal appeals court rules.

     A California state prisoner sent a complaint to a federal district court before he had exhausted his available administrative remedies within the state prison system as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). By the time the trial court granted him permission to file his complaint as a pauper under 28 U.S.C. Sec. 1915, however, he had exhausted those administrative remedies. The trial court, rejecting an argument that it should still dismiss the lawsuit, found that the prisoner satisfied the PLRA's exhaustion requirements under these circumstances.

     A federal appeals court has disagreed, finding that the PLRA requires that a prisoner exhaust administrative remedies, such as a grievance procedure and its various administrative appeals stages, before "submitting any papers to the federal courts." Because the prisoner in this case did not do this, the appeals court ruled, the lawsuit "must be dismissed without prejudice."

     The California Department of Corrections has a four-step grievance process for prisoners seeking review of an administrative decision or perceived mistreatment--an informal level, two formal levels, and an appeal to the Director. The plaintiff prisoner submitted an appeal form alleging misconduct by three prison employees, bypassing the informal level of review, and ultimately his claims were denied by the Director. He sent his federal civil rights lawsuit to the federal trial court while his grievance was still pending before the Director, as well as seeking permission to proceed in the case as a pauper. Four months later, when his petition to proceed as a pauper was granted, the Director's denial had also occurred, and his complaint was then formally filed by the court.

     The prisoner argued, in the appeals court, that the PLRA's requirement that available administrative remedies be exhausted before a lawsuit is "brought" concerning prison conditions merely prohibited him from having his complaint formally filed with the court until that time, and that he therefore did not violate the exact provisions of the statute.

     The appeals court disagreed. It noted that in most civil lawsuits, the submission and filing of a complaint are "simultaneous events." In prisoner lawsuits, however, when a prisoner submits a complaint with an application to proceed as a pauper, there is normally a gap between the submission of the complaint and its filing, because the court needs time to review the application and to screen the substance of the complaint to determine if it is frivolous and should be dismissed.

     A prisoner's lawsuit, the court ruled, is therefore "brought" when papers are submitted to the court clerk, not when it is subsequently formally filed, agreeing with the rule previously adopted by another federal appeals court in Ford v. Johnson, #01-3709, 362 F.3d 395 (7th Cir. 2004).

     Congress, the court reasoned, intended for the administrative remedies exhaustion requirement to "reduce the quantity and improve the quality of prisoner lawsuits," and to ensure that the litigation process did not start until the administrative process has ended.

The bottom line is that a prisoner must pursue the prison administrative process as the first and primary forum for redress of grievances. He may initiate litigation in federal court only after the administrative process ends and leaves his grievances unredressed. It would be inconsistent with the objectives of the statute to let him submit his complaint any earlier than that.

     Vaden v. Summerhill, No. 05-15650, 2006 U.S. App. Lexis 13921 (9th Cir.).

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Prison employees did not act with deliberate indifference by failing to remove prisoner's cellmate, who he complained was "nuts" and had tried to assault him. They promptly had the cellmate evaluated by a psychiatrist and took other steps to assess the situation, and were therefore not liable for the cellmate's subsequent attack on the prisoner approximately a week later.

     An Illinois prisoner sued prison employees for allegedly violating his Eighth Amendment rights by failing to protect him from his cellmate. The trial court denied summary judgment for the defendants, but a federal appeals court reversed, finding that they were entitled to qualified immunity.

     The plaintiff prisoner had told at least one of the defendants, a prison nurse, that he wanted to be assigned to a different cell because his cellmate was "nuts." Another prisoner also expressed concern to a department captain, the nurse, and a casework supervisor about the plaintiff and his cellmate being in the same cell.

     The cellmate allegedly started behaving in a "particularly strange manner," acting confused, pacing in the cell, and repeatedly striking his head against his arms, with this behavior continuing for at least four days. He also attempted to strike the plaintiff prisoner with his fist, but the plaintiff stopped the blow before it landed, after which the cellmate "settled down." The plaintiff prisoner did not report this incident, however, believing that the conflict had been "defused."

     Then one morning, the cellmate woke up the plaintiff prisoner and said that he was "going home," and began packing. A corrections officer observed this and asked for an explanation. When he said he was packing to go home, the officer called the nurse and asked her to take the cellmate to "see a psychiatrist." She came to the cell, at which point the cellmate said he was leaving and that his family was waiting in the parking lot, which was not true, as he had a long time left on his sentence. The plaintiff prisoner then reported the prior assault attempt to the nurse.

     The cellmate was taken to a psychiatrist and examined but returned 15 minutes later. The plaintiff prisoner again asked to be placed in another cell, but this request was denied, although he was offered the alternative of being placed in segregation, and instead chose to remain in his cell. One week later, the cellmate hit the plaintiff prisoner on the side of the face with a radio, causing serious injury to his left eye.

     The federal appeals court noted that the defendants themselves admitted that there were facts indicating that they had knowledge that the plaintiff prisoner faced a risk of serious harm. Rather than acting with deliberate indifference, however, they took the cellmate to see a psychiatrist as soon as they learned about the prior assault attempt, and the psychiatrist determined that he was fit to return to his cell. The appeals court found that, as a matter of law, the evidence was insufficient to find that the defendants responded unreasonably to the risk of harm faced by the prisoner.

     The plaintiff prisoner had not presented any explanation for why he believed it was unreasonable for the defendants to rely on the psychiatrist's medical opinion. Further, the defendants also interviewed the two cellmates to further assess the situation, and believed that the tension between the two had lessened. Further, there was no further trouble between the two cellmates until a week later, and no evidence of any further complaints by the plaintiff about his cellmate during that week.

     While the defendants may have been "negligent" in not moving the plaintiff to another cell, that was insufficient for a constitutional claim under the Eighth Amendment. The defendants were therefore entitled to qualified immunity, because the plaintiff prisoner had not shown that they violated his right to be protected against foreseeable assault.

     Borello v. Allison, No. 05-3515 446 F.3d 742 (7th Cir. 2006)

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Former warden was not entitled to qualified immunity in lawsuit over death of death-row prisoner allegedly beaten to death by prison guards. Evidence presented was sufficient to create a factual issue as to whether there was a widespread history of abuse by guards, whether the warden knew of the violent propensities of certain guards involved in the beating, and whether he acted with deliberate indifference to a known risk of harm.

     The father of inmate at the Florida State Prison sued the former warden and several other prison employees, claiming that they violated his son's rights by subjecting him to an excessive and unjustified use of force which led to his death. The warden appealed from the trial court's denial of his motion for qualified immunity. A federal appeals court upheld the denial, however, finding that the plaintiff had sufficiently stated a claim that the guards violated his son's constitutional rights, that there was a history of "widespread abuse" by guards at the facility, and that the former warden had knowledge that certain guards had a "propensity" for violence against prisoners.

     The inmate was on death row, in a wing where the inmates with the most serious disciplinary problems were assigned, and had been transferred to the facility after killing a guard at another prison. He died after suffering extensive beating wounds all over his body, and the plaintiff claimed that prison guards beat him to death, that the warden knew of the propensity for violence of certain guards involved in the beating, and that the warden was deliberately indifferent to the risk of abuse.

     There was testimony that one correctional officer stated that he was told, while being instructed to assist in extracting the prisoner from his cell, that the prisoner "has had this coming to him," and that, based on his past experience, he took this to mean that officers were going to go to his cell and "teach" him that he "can't be threatening officers," and that "some physical punishment" was going to be inflicted. There was also evidence that officers entering the cell began punching, striking, and kicking the prisoner almost right away, even though he was "curled up on the floor in a fetal position," was not resisting or acting aggressively, and no weapons were visible. The prisoner allegedly remained on the ground, not resisting, was turned onto his stomach, and an officer allegedly stood on his legs to prevent him from kicking anyone while the other officers kept punching him. The officer who stood on the prisoner's legs then left the cell because he was having difficulty breathing due to gas fumes that were released in the cell.

     When he returned to the cell, he saw a sergeant violently kicking the prisoner in the midsection while saying, "who you gonna kill now?" A hand-held electronic restraint device was then placed on the prisoner's forehead, and the trigger was released, shocking him with an electrical charge. The prisoner, then handcuffed, was allegedly dragged out of the cell and placed on the ground, and slapped across the face when he refused to stand, after which he was put on a cart and wheeled to the medical clinic. He was later returned to his cell, fell off his bunk several times, and went into cardiac arrest, subsequently dying.

     The appeals court found that there was no difficulty in ruling that if these allegations were true, the guards at the prison violated the prisoner's constitutional rights. There was also evidence that the former warden had conversations with the warden who preceded him, in which he was specifically warned about certain guards that his predecessor believed were abusive towards inmates, and needed to be kept out of high profile areas, such as the area on death row where the deceased prisoner was housed, because the predecessor believed that they were "out of hand" and was afraid that they "would kill an inmate." The predecessor had taped a list of these guards to the center drawer of the warden's desk at the facility.

     There was also evidence that the warden had been specifically warned about one of the defendant officers by a fellow officer, and told about a prior incident where a prisoner was extracted from his cell in death row and beaten so severely that he had to be airlifted by helicopter to a hospital where he remained for nine days, suffering multiple rib fractures, a back injury, and a large number of other injuries.

     These alleged facts, and evidence concerning other incidents and complaints, the appeals court found, if true, were sufficient to present a valid claim entitling the plaintiff to proceed to trial and to show that inmate abuse at the hands of guards at the prison was "not an isolated occurrence, but rather occurred with sufficient regularity as to demonstrate a history of widespread abuse" there. Whether the former warden "actually drew the inference of widespread abuse and was therefore 'on notice of the need to correct or to stop' abuse by officers then becomes a factual question for the jury."

     Evidence presented, the appeals court found, was sufficient to allow a jury to consider whether the former warden had established "customs and policies" that resulted in "deliberate indifference to constitutional violations" and whether he failed to take reasonable measures to correct the problem. The appeals court found that the law on this issue was clearly established, so that the former warden was not entitled to qualified immunity.

     Valdes v. Crosby, No. 05-13065, 2006 U.S. App. Lexis 13401 (11th Cir.).

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Update: Full federal appeals court evenly divided on whether a prisoner in a privately-run prison operated under a contract with the U.S. Marshals Service could pursue a civil rights claim for money damages against individual employees of the private corporation operating the facility.

      A federal prisoner held at a privately run prison as a pre-trial detainee under a contract with the U.S. Marshals Service sued prison employees for alleged violation of his Eighth Amendment right to be free from cruel and unusual punishment and for alleged violation of his Fifth Amendment right to due process. The claims were asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which allows direct lawsuits against federal employees for violations of constitutional rights. The claims were asserted in two separate lawsuits, which were subsequently consolidated for appeal. While a three-judge panel of the appeals court found that the prisoner could not pursue federal civil rights claims for money damages against individual employees of the private corporation operating the facility, initially establishing precedent for that rule of law, a rehearing by the full federal appeals court was evenly divided on that issue.

     While this had the effect of upholding the result that the prisoner could not pursue those damage claims, it also means that the prior three-judge panel decision is no longer a valid precedent, leaving the issue itself still undecided by that federal appeals court.

     The trial court addressing the Eighth Amendment claim dismissed the case for lack of subject matter jurisdiction, while the trial court addressing the Fifth Amendment claims dismissed the lawsuit for failure to state a claim upon which relief may be granted. A three-judge panel of a federal appeals court upheld the dismissal of both lawsuits. Peoples v. CCA Detention Ctr., No. 04-3071, 422 F.3d 1090 (10th Cir. 2005).

       The Eighth Amendment claims involved the alleged wrongful failure to prevent an attack on the plaintiff prisoner by members of a prison gang known as the Mexican Mafia. Following the first attack, he was allegedly not transferred to a new housing pod, and was attacked by members of the same gang a second time later that day. The court addressing those claims held that because "other remedies are available," including state law negligence actions, the U.S. Supreme Court would not extend Bivens to private employees of government contractors, and dismissed the claims for lack of jurisdiction.

     The Fifth Amendment due process claims involved the prisoner's assignment to administrative segregation for thirteen months as an escape risk, the failure to provide him with written notice of the reasons for his segregation immediately upon his placement in segregation, the failure to provide a hearing on his segregation status for five months, and various conditions of confinement during the time he was in segregation, including denial of access to a law library, and alleged unconstitutional monitoring of his phone calls with his attorneys. In this instance, the trial court rejected the individual defendants' jurisdictional arguments because the U.S. Court of Appeals had not addressed the issue of whether a Bivens claim could be asserted against the individual employees of a federal contractor, but found that the facts alleged did not state a due process claim.

     In upholding this result in both cases, the three-judge federal appeals court panel noted that the U.S. Supreme Court, in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), held that there is no private right of action for damages against private entities that engage in alleged constitutional deprivation. The Supreme Court, however, did not indicate that the federal courts "lack jurisdiction" to hear such claims, but rather focused, as did Bivens, "on the existence of a remedy for the alleged violation of federal rights." The appeals court panel found that both trial courts had jurisdiction to hear all of the plaintiff's constitutional claims, but also held that in both cases, he failed to state a claim upon which relief could be granted.

     In Malesko, the U.S. Supreme Court found that no Bivens action could be brought against a private entity such as Correctional Services Corp. (CSC), a private corporation under contract with the federal Bureau of Prisons to operate a halfway house. But the decision did not directly address whether a Bivens claim could be brought against an individual guard. In holding that there was no Bivens claim against CSC, the Court focused on the "core premise" of Bivens, which is concerned "solely with deterring the unconstitutional acts of individual officers, which would not be accomplished by bringing claims against a corporation. It further noted that the plaintiff in that case did not lack an alternative remedy because of the existence of a state law claim for negligence.

     The appeals court panel ruled that there is no implied private right of action for damages under Bivens against employees of a private prison for alleged constitutional deprivations when "alternative state or federal causes of action for damages are available to the plaintiff." In this case, the appeals court found that the plaintiff prisoner could pursue a negligence claim under Kansas law for the injury he asserted that he suffered from the alleged Eighth Amendment violation based on the existence of a special relationship which exists between prison employees and prisoners in their care.

     As for the Fifth Amendment due process claims concerning placement in segregation without a hearing and denial of access to a law library, the federal appeals court panel found that the allegations, even if true, did not rise to the level of a constitutional violation, and therefore should be dismissed in any event. The conditions that the plaintiff faced in segregation, the court found, were not improper, as he was first placed there because bed space was lacking in the general population, and he subsequently remained there due to his plot to escape from his previous pretrial detention facility. "A substantiated escape threat, as is found here, is a legitimate non-punitive rationale" for the prisoner's continued segregation.

     While the prisoner was denied access to a law library, he did not suffer any actual injury or inability to pursue legal claims, so that there was no violation of his due process right of access to the courts.

     On the claim that the prisoner's phone calls to his attorney were monitored, the court noted, Kansas law contains criminal prohibitions against third parties unlawfully monitoring phone calls without the permission of at least one of the parties to the conversation. Monitoring a phone call between an inmate and his lawyer in violation of the Fifth Amendment could give to civil liability for "intrusion upon seclusion" under state law, so an alternative remedy is available.

     The full federal appeals court granted a rehearing en banc.

     The full appeals court found that it was "evenly divided" on the question of whether a Bivens action is available against employees of a privately operated prison. Because there was no majority on the full court, the decision of one of the federal trial courts below, ruling that no such claim could be made, was affirmed. This also had the effect, the court noted, of making the previous decision by the three-judge panel no long valid as precedent.

     Peoples v. CCA Detention Ctrs., No. 04-3071 & 04-3124, 2006 U.S. App. Lexis 12113 (10th Cir.).

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Prisoner allegedly sexually assaulted in another prisoner's cell after being brought there by a prison guard failed to show that other prison officials violated his constitutional rights in failing to protect him. Rather than acting with deliberate indifference, prison officials promptly acted to transfer him to another facility for his protection after learning that he felt unsafe, even in protective custody. Prisoner is awarded $6,000 in damages in default judgment against prison guard. Further proceedings ordered on whether Florida prisoner incarcerated in Kansas for protective reasons was still a citizen of Florida, entitled to federal court jurisdiction over his Kansas state-law claims against Kansas prison officials.

     A Florida prisoner serving a life sentence carried out a contract killing on a fellow inmate, and was subsequently transferred to the custody of the Kansas Department of Corrections for his own protection. In the Kansas facility, he claimed, a prison guard entered his cell and directed him to another inmate's cell. That inmate, he asserts, forced him to engage in homosexual acts in retaliation for his earlier murder of a fellow inmate in Florida who was a member of the "Folk Nation," a national alliance of gangs.

     The incident allegedly was repeated two nights later. The guard's employment at the facility ended days later, and the prisoner then reported the sexual assaults and asked to be placed in protective custody. Once in such custody, he also reported the guard's alleged involvement in the assaults. He later told prison officials that he was not safe even in protective custody because of the hostility of other inmates. He complained that he and other inmates in protective custody were forced to pass through the general inmate population when going to medical appointments and other required events. He was later transferred to another facility.

     He filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983, as well as asserting state law claims under the Kansas Tort Claims Act. A federal appeals court has upheld summary judgment for the defendant prison officials on the federal civil rights claims, but overturned the dismissal of the state law claims, granted by the trial court on the basis of lack of jurisdiction. A default judgment was entered by the trial court against the former prison guard accused of facilitating the sexual assaults.

     The prisoner's federal civil rights claims against prison officials were based on the alleged failure to protect him from the sexual assaults. In addition to damages, he sought his removal from the Kansas Department of Corrections and return to Florida. His state-law claims were also based on the alleged failure to adequately protect him, and he argued that the federal trial court had jurisdiction of those claims under "diversity of citizenship," because he is a citizen of Florida, although incarcerated in Kansas, and the defendants were citizens of Kansas. The federal trial court found that the prisoner was a citizen of Kansas for purposes of diversity jurisdiction, so that he and the defendants were not citizens of different states, as required for such jurisdiction in federal court.

     On appeal, the federal appeals court found that the plaintiff prisoner had failed to show that his Eighth Amendment rights were violated by the failure of a prison official to ensure that general population inmates were not in the area when he was being escorted to and from the protective custody unit. The court found that the alleged conduct, even if true, could at most be "mere negligence," and did not constitute deliberate indifference, which is "equivalent to recklessness in this context."

     The appeals court found that the prisoner

has not shown that he was incarcerated under conditions posing a serious risk of harm. He was never assaulted while he was being escorted out of the protective housing unit. Nor did he present evidence that any inmate had ever been assaulted in such circumstances. Moreover, prison officials took precautions to minimize the risk of harm when prisoners were escorted out of the protective housing unit. These precautions included clearing the area of general-population inmates when large groups of protective-custody inmates were escorted out of the unit. And when individual inmates were brought out of protective custody, they were escorted by at least one prison guard. In light of the lack of evidence that any prisoner was ever harmed on these occasions, and the evidence of the precautions taken by prison officials, summary judgment was appropriate on the ground that there was no substantial risk of harm. Nor has Mr. Smith presented evidence that prison officials were deliberately indifferent to his safety.

     To the contrary, the court noted, once prison officials knew that he was concerned about his safety, they immediately took steps to protect him. The plaintiff himself agreed that the prison officials did not know about his concerns until he filed a grievance, and he was transferred to another facility for his safety on the same day that he filed that grievance.

     The appeals court also rejected the argument that the trial court should have awarded the plaintiff prisoner $12 million in damages against the former guard for allegedly facilitating his sexual assault, upholding an award of $6,000. The court explained that the amount of damages asked for by the plaintiff merely placed a "ceiling" on the amount that could be awarded on a default judgment, and did not somehow automatically entitle the plaintiff to that amount. It also rejected the argument that the state Department of Corrections was liable for that award of damages, since the Department was not even a party to the lawsuit.

     The appeals court found that the trial court acted improperly, however, in ruling that it had no jurisdiction over the prisoner's state law claims because he was a citizen of Kansas. It noted that for purposes of diversity jurisdiction, a prisoner is presumed to be a citizen of the state of which he was a citizen before his incarceration, even if he is subsequently transferred to another state. That presumption could be rebutted, however, if the prisoner indicated his intentions to live in another state upon his release. The trial court, the appeals court found, failed to give the prisoner an opportunity to rebut the challenge to the claim of Florida citizenship in his complaint, and the defendant prison officials themselves never challenged his claim of Florida citizenship, with the trial judge acting on his own in making his decision without notice to the plaintiff. Further proceedings were therefore ordered on that issue.

     Smith v. Cummings, No. 05-3180. 445 F.3d 1254 (10th Cir. 2006).

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Federal appeals court allows class action challenging conditions of confinement for civilly committed "Sexually Violent Predators" in California to proceed on most claims, including claims involving procedural and substantive due process, privacy, excessive force, access to courts, unlawful retaliation for grievances or lawsuits, and forced medication in non-emergency situations.

     A class action lawsuit was filed in federal court on behalf of approximately 600 civilly committed persons and those awaiting such commitment at Atascadero State Hospital under California's Sexually Violent Predators (SVP) Act. They claimed that the conditions of their confinement violate their constitutional rights, and sought money damages, as well as injunctive relief. The defendant correctional and mental health officials sought dismissal of the lawsuit based mostly on qualified immunity, which was denied by the trial court. A federal appeals court upheld the denial of qualified immunity on the plaintiffs' claims, except on their double jeopardy, Eighth Amendment, and "ex post facto" (retroactive enhancement of punishment) claims.

     The law in question allows the evaluation of a sexual offender by the Department of Corrections and Department of Mental Health six months before they are to complete their criminal sentence to determine whether they have a diagnosed mental disorder that makes them a danger to the health and safety of others and are likely to engage in sexually violent criminal behavior. If both Departments agree that the offender is a "Sexually Violent Predator," then a petition for commitment may be filed, and a jury determines whether to uphold the determination. If it does so, the offender is civilly committed for an indefinite period which begins after their criminal sentence is completed.

     Those committed undergo a five-phase treatment program, including a first phase of group treatment sessions. Those who do not participate have their access level and corresponding privileges reduced, and they are not allowed to advance to later phases of the program. Participation includes the signing of a statement in which the person acknowledges that he has an "illness" that requires treatment. Phases 2 through 5 of the treatment plan involves "cognitive" treatment, including the viewing of videos that depict violent or other inappropriate sexual activities while a repugnant odor or other unpleasant sensation is applied to elicit a "negative association."

     Hearings are held on an annual basis to determine whether the commitment should be continued. At those hearings, an additional two years of commitment are imposed if the person is found to continue to be a danger. The commitment can be continued indefinitely or until the committed person completes all five phases of the treatment successfully. If they do so, they are conditionally released under the supervision of the California Mental Health Department. The lawsuit claims that only a "handful" of SVPs have been allowed into phase four of the treatment program, and that no one has so far progressed to phase five of the program. Allegedly only three of the over 700 people committed under the Sexually Violent Predators Act have been released.

     The lawsuit claimed that the defendants violated the plaintiffs' rights by force medicating them in non-emergency situations, reducing their access levels and privileges as a form of punishment for refusing to participate in treatment sessions or as retaliation for filing lawsuits, placing them in restraints for non-threatening or non-disruptive conduct, including refusal to participate in treatment or therapy, subjecting them to public strip-searches, sometimes while in four-point restraints, failing to protect them from abuse by other patients or hospital employees, failing to provide them with satisfactory conditions of confinement, forcing them to participate in treatment, and denying them adequate treatment, and in this manner converting their civil confinement to essentially an extension of their prison sentences.

     The federal appeals court rejected the defendant officials' claim that money damages claims against them were barred by the Eleventh Amendment. While that Amendment does bar claims for money damages in federal court against states or state employees sued in their official capacities, it does not apply to state officials sued in their individual capacity.

     The plaintiffs claimed that the defendants created policies and procedures that violated their rights and were also "willfully blind" to constitutional violations committed by their subordinates. Since the defendants were "directors and policy-makers" for Atascadero State Hospital, the appeals court found, the plaintiffs had sufficiently alleged that the rights violations they allegedly suffered were "set in motion" by the defendants' decisions, or at the very least, that the defendants knew of these alleged abuses and showed "deliberate indifference" to them.

     The appeals court rejected the argument that, "as a broad proposition," the defendants were simply entitled to qualified immunity from all damage claims in the case since the law applicable to SVPs is "still evolving," and was not clearly established. While it agreed that the immediate case is "one of the first widespread class actions" to challenge the conditions of detention for civilly confined SVPs, civilly detained persons must be given "more considerate treatment and conditions of confinement" than those being punished for crimes. Therefore, the court reasoned, the rights given to prisoners "set a floor for those that must be" given to SVPs. Accordingly, if the defendants violate a standard that is "clearly established" in the context of prisoners, the violation is also clearly established for civilly committed SVPs. Additionally, the court stated, where there is a clearly established body of law applicable to all civilly committed persons, there is no reason for it not to apply to SVPs as well, although their rights might also be limited in some ways because their civil commitments are subsequent to criminal convictions, and they have been found to be a danger to the health and safety of other people.

     The appeals court found that the defendants were not entitled to qualified immunity on the plaintiffs' claims that they were subject to unlawful retaliation, including denial of access to the library, loss of other privileges, cell searches, and harassment because they filed lawsuits or grievances, in violation of their First and Fourteenth Amendment rights.

     The appeals court found, however, that the requirement that the SVPs sign statements and participate in treatment or else be denied the possibility of release did not violate clearly established First Amendment rights to refuse treatment, so that the defendants were entitled to qualified immunity on that aspect of the plaintiffs' First Amendment claims.

     The appeals court ruled that if the plaintiffs, as they claimed, were subject to abusive strip searches, forced medication for punishment or the convenience of the staff, and other claimed Fourth Amendment violations, they may be able to show a "clearly established" violation of their rights, so that the defendants were not entitled to qualified immunity on those claims, particularly at a stage in the lawsuit in which the defendants have not yet "had a chance to explain their justification for the alleged searches or seizures."

     The appeals court rejected the plaintiffs' claims that the SVP scheme constituted either double jeopardy or a constitutionally impermissible retroactive enhancement of their criminal punishment (under the "ex post facto clause" of the Constitution), and also ruled that the trial court should have dismissed the Eighth Amendment claim against the defendants that the "restrictive and denigrating" conditions at the hospital were "cruel and unusual punishment." The court noted that the state's power to punish the plaintiffs ended at the end of their sentence, and that they are currently detained only for the purpose of treatment, so that the Eighth Amendment is "not the proper vehicle to challenge the conditions of civil commitment."

     The correct legal issue for civilly committed persons is whether the conditions of their confinement are inhumane in violation of the due process clause of the Fourteenth Amendment.

     The appeals court found that the plaintiffs, in their complaint, raised possibly viable issues about whether their procedural due process rights were violated by the defendants forcing them to participate in the treatment program, forcing them to take medication in non-emergency situations, and subjecting them to privilege reductions, access level reductions, and reclassifications, allegedly without adequate notice or an opportunity to respond to accusations of sanctionable conduct.

     Such claims, if true, the court found, are based on clearly established law. Individuals civilly committed under the SVP Act have a right to procedural due process before being force-medicated in non-emergency situations, and the reduction of an SVP's access level is similar to the transfer of prisoners from the general prison population to administrative segregation. The plaintiffs, the court stated, "may have a liberty interest in their access levels and classifications that affect their privileges."

     The appeals court also found that the plaintiffs stated possibly viable claims for violation of their substantive due process rights concerning the defendants' alleged failure to protect them from abuse from other detainees and employees, failure to provide constitutionally adequate conditions of detention, and use of excessive force against them.  The plaintiffs claimed that they were intentionally exposed to feces, urine, vomit, spit, and blood in the hospital's courtyards, bathrooms, hallways, dining rooms, and gym, and that other detainees contaminate their food. They also claimed that they suffered verbal harassment, physical abuse, and sexual assaults by other patients, and that they are targeted because they are sex offenders. The plaintiffs' "right to be protected and confined in a safe institution are clearly established," as is the right not to have excessive force used against them, the court found, so that the defendants are not entitled to qualified immunity on those claims.

     The appeals court also found that the defendants were not entitled to qualified immunity on the plaintiffs' equal protection claims. The plaintiffs argued that they are being treated more restrictively than other civilly committed patients, and that their conditions are more punitive than those other civilly committed persons face. For example, they claim, other civilly committed persons are given "priority" for hiring in "remunerative positions." The court stated:

Even under the rational basis standard, we cannot dismiss Plaintiffs' equal protection claims at this stage. Plaintiffs' pleadings raise several questionable classifications. For example, it seems arbitrary that SVPs should be treated more harshly that other civilly committed persons in job placement and privileges. Based on the pleadings, we believe that Plaintiffs may be able to prove a violation of clearly established law congruent with the facts alleged. Admittedly, at this stage, Defendants have not fully developed and presented the rationale for their actions and there may be differences between SVPs and other civilly committed persons that warrant differential treatment. But we leave it to the district court, on a more full factual record, to consider whether the classifications Plaintiffs present are irrational and arbitrary.

     The appeals court further found that the plaintiffs were entitled to proceed with their claims that their Sixth Amendment right to counsel and 14th Amendment right of access to the courts were violated because they allegedly cannot privately correspond with or have telephone conversations with their lawyers and are otherwise hindered in their ability to prepare for their probable cause and commitment hearings, and that their right to privacy under the Fourteenth Amendment is violated because the defendants' policies do not allow for privacy when showering, sleeping, using the toilets, or participating in therapy sessions.

     In summing up, the appeals court noted that whether the defendants acted in a reasonable manner required a "factual analysis" of the particular circumstances, and whether a reasonable official would have been aware that their actions violated the law, "an inquiry difficult to conduct at this stage," without detailed evidence. The court stated its rejection of the defendants' argument that the "volatile nature of the law" on SVPs entitled them to "escape liability entirely."

We do not adhere to the theory that "every dog is entitled to one bite." Defendants could not have been so completely in the dark about the standards that would apply to their conduct as it related to SVPs. [...] SVPs are not entirely dissimilar from other groups of civilly committed persons. Moreover, Plaintiffs' complaint alleges practices that would be unconstitutional if directed at any prisoner. Accordingly, Defendants cannot escape liability based on a "reasonable but mistaken" belief about the constitutionality of their conduct.

     A strong dissent by one judge on the three-judge panel would have granted the individual defendants qualified immunity on the money damage claims on the basis that the law concerning the rights of SVP is not "clearly established" at this point.

     Hydrick v. Hunter, No. 03-56712, 2006 U.S. App. Lexis 13497 (9th Cir.).

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Access to Courts/Legal Info

     Louisiana prisoner stated a viable claim for denial of access to the courts based on allegations that his law books were confiscated when he was transferred to a new facility, and that he was also denied access to a law library or legal assistance, making him unable to adequately prepare for pending legal proceedings. Gray v. State of Louisiana, No. 2005-617, 923 So. 2d 812 (La. App. 2006).

False Imprisonment

     City Department of Corrections was not liable for damages for having kept an inmate in custody beyond the maximum length of his sentence. There was no showing that the extended detention was the result of an official city policy or custom. Dupree v. City of New York, No. 04CV0992, 418 F. Supp. 2d 555 (S.D.N.Y. 2006).

Federal Tort Claims Act

     A correctional officer employed by the federal Bureau of Prisons (BOP) is not a "law enforcement officer" within the meaning of the Federal Tort Claims Act (FTCA) section, 28 U.S.C. 2680(c) which excludes from the Act's waiver of sovereign immunity claims for the "detention of goods" by any officer of customs or excise "or any other law enforcement officer." As a result, the trial court improperly dismissed a FTCA lawsuit by a prisoner for the loss of his property which he claimed was caused by the negligence of a BOP officer. Andrews v. U.S., No. 04-7269, 441 F.3d 220 (4th Cir. 2006).

First Amendment

     Designation of prisoner as someone associated with a gang, which kept him in a secure unit, did not violate his First Amendment rights of freedom of association nor his procedural due process rights under the Fourteenth Amendment. Adequate due process was provided by notice of his impending "gang validation," together with an interview. Photographs of prisoner posing with other inmates, some of whom were already validated gang associates and one of whom was a validated gang member provided sufficient evidence for his designation. Stewart v. Alameida, No. C-03-4021, 418 F. Supp. 2d 1154 (N.D. Cal. 2006).

     Prisoner failed to show that a search of his cell and the confiscation of legal papers he possessed which belonged to other prisoners was unlawful retaliation for his exercise of his First Amendment rights in issuing a subpoena to the prison warden in a pending case. Peterson v. Lucero, No. 04-2318, 165 Fed. Appx. 657 (10th Cir. 2006).

Insurance

     A Mississippi county's purchase of liability insurance did not constitute a waiver of the governmental immunity the county was entitled to under state law in a wrongful death lawsuit brought by the estate of an inmate who died when he fell off of the back of a county garbage truck after he volunteered to help with a garbage collection detail. Supreme Court of Mississippi upholds summary judgment for county. Powell v. Clay County Bard of Supervisors, No. 2005-CA-00018-SCT, 924 So. 2d 523 (Miss. 2006).

Marriage/Procreation

     Female prisoner's claim that delayed labor, caused by improper medical care, caused the stillbirth of her viable fetus was sufficient to constitute a "physical injury" to her satisfying the physical injury requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e). That statutory provision, barring the pursuit of a federal civil rights claim for mental distress unaccompanied by physical injury, did not bar the prisoner's Eighth and Fourteenth Amendment claims in these circumstances. Clifton v. Eubank, No. 00-CV-2555, 418 F. Supp. 2d 1243 (D. Colo. 2006).

Medical Care

     Under Kentucky state law, a county jail, rather than the state, had the financial responsibility of providing indigent prisoners with psychotropic medications. Osborne v. Commonwealth, No. 2004-SC-000566, 185 S.W.2d 645 (Ky. 2006).

     If, as prisoner alleged, a nurse supervisor instructed other prison nurses not to provide him with his prescribed pain medication following a tooth extraction because of his attempted escape effort, this could constitute deliberate indifference to a serious medical need. Cook v. Pueppke, No. 1:05CV0105, 421 F. Supp. 2d 1201 (E.D. Mo. 2006).

     Evidence was sufficient to show that prison officials acted with deliberate indifference in denying prisoner needed medical treatment for a degenerative back condition. Faraday v. Commissioner of Correction, No. 26340, 894 A.2d 1048 (Conn. App. 2006).

     Prisoner did not show deliberate indifference to his knee injury by prison medical personnel, and his complaint amounted to nothing more than mere disagreement with the particular treatment medical personnel decided to provide, which is insufficient for a constitutional claim. Burgos v. Alves, No. 04-CV-65131, 418 F. Supp. 2d 263 (W.D.N.Y. 2006).

     Prisoner's claim that a delay in providing him with surgery a medical specialist recommended for his shoulder injury caused him extreme pain, loss of grip, and a loss of feeling was sufficient, if true, to constitute a violation of his Eighth Amendment rights against cruel and unusual punishment. Sparks v. Rittenhouse, No. 04-1086, 164 Fed. Appx. 712 (10th Cir. 2006).

Medical Records

     Nebraska prisoner did not have a clear right under state law to access to his mental health records, nor a federally protected constitutional right to such access, and therefore was not entitled to a court order requiring correctional officials to provide him with a copy of the records. State ex rel. Jacob v. Bohn, No. S-04-1410, 711 N.W.2d 884 (Neb. 2006).

Prison Litigation Reform Act: Exhaustion of Remedies

     Legally blind prisoner failed to show that he exhausted his available administrative remedies before filing suit, as required under 42 U.S.C. Sec. 1997e(a). Plaintiff, therefore, could not proceed with his lawsuit claiming that correctional officers acted with deliberate indifference in failing to place him in a single-occupancy cell after a cellmate allegedly assaulted him, resulting in his subsequent poisoning. Fry v. Al-Abduljalil, No. 05-1179, 164 Fed. Appx. 788 (10th Cir. 2006).

     Prisoner's lawsuit claiming that his civil rights were violated by requiring him to work for less than minimum wage and that he was unlawfully retaliated against for filing grievances was properly dismissed based on his failure to plead, in his complaint, that he had exhausted his available administrative remedies. Davis v. Simmons, No. 05-3233, 165 Fed. Appx. 687 (10th Cir. 2006).

Prisoner Assault: By Officer

     Correctional officer was not entitled to summary judgment in prisoner's state law assault and battery lawsuit when there was a genuine issue of fact as to whether he continued to strike the prisoner after he was handcuffed. The prisoner initially became belligerent when he refused an order to submit to a haircut. Quinlan v. Jones, No. 2030621, 922 So. 2d 899 (Ala. Civ. App. 2004).

Prisoner Discipline

     New prison disciplinary rules, which reclassified some previously minor violations to now result in a loss of good time, did not constitute an unconstitutional retroactive enhancement of punishment under the "ex post facto" clauses of either the U.S. Constitution or North Carolina state Constitution, and the application of the new rules did not violate a prisoner's due process rights. Smith v. Beck, No. COA05-561, 627 S.E.2d 284 (N.C. App. 2006).

     Prisoner's disciplinary conviction for grabbing the breast of a female nurse was supported by sufficient evidence, and the rule prohibiting such conduct was clear enough to give him notice that such conduct was prohibited. Snider v. Fox, No. 32767, 627 S.E.2d 353 (W. Va. 2006).

     Disciplinary hearing officer did not violate rights of Spanish-speaking prisoner by failing to provide him with an interpreter, when it was previously determined that he was also fluent in English. Prisoner's insistence on conversing in Spanish at hearing, after being warned not to do so, was a legitimate reason to remove him from the hearing, and there was sufficient evidence to find him guilty of refusing to obey a direct order by failing to comply with nurse's instruction to lift his tongue to confirm that he had swallowed his medication. Encarnacion v. Goord, 811 N.Y.S.2d 809 (A.D. 3rd Dept. 2006).

Religion

     Prison's confiscation of Jewish prisoner's prayer shawl did not violate his First Amendment rights to practice his religion when he was left in possession of three other prayer shawls, and failed to show that he needed multiple prayer shawls to practice his religion. Buckley v. Presley, No. 04-16576, 163 Fed. Appx. 550 (9th Cir. 2006).

     Prison officials did not violate the religious freedom rights of a Native American prisoner by prohibiting him from having multi-colored headbands, confiscated a purported quartz crystal, denying his access to a "sacred pipe," enforcing regulations limiting hair length, denying him access to communal services while in administrative segregation, or failing to recognize "Native American" as a racial category. Further, even if a policy of designating holy days for Native American prisoners was "oriented toward" Plains Indian culture rather than toward Algonquin Indians, because officials could not reasonably be expected to know the holy days for all varieties of Native American religion. Additionally, while the prisoner was in administrative segregation, he was not working, and therefore did not need relief from work assignments on his holy days. Thunderhorse v. Pierce, No. Civ.A. 9:04CV222, 418 F. Supp. 2d 875 (E.D. Tex. 2006).

     Muslim prisoner's right to religious freedom under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42. U.S.C. Sec. 2000cc-1, were not violated by prison regulations and policies allowing him the use of only a prayer towel rather than a prayer rug, and limiting the quantities of prayer oil he could possess. Court also upholds a policy permitting the purchase of religious items only from prescreened vendors. Prison officials were entitled to qualified immunity on prisoner's claim that providing him with pork-free or vegetarian meals, rather than a "halal" meat diet was inadequate to satisfy his religious requirements, because a reasonable official could have believed that the prisoner did not have an established right to halal meat. Ahmad v. Department of Correction, 845 N.E.2d 289 (Mass. 2006).

Sexual Assault

     Wisconsin inmate stated a viable claim for sexual assault based on officer's alleged grabbing of his buttocks and fondling of his penis during a pat down search, as well as a viable civil rights claim against a second officer who allegedly held him and laughed during the encounter. Turner v. Huibregtse, No. 05-C-508, 421 F. Supp. 2d 1149 (W.D. Wis. 2006).

Telephone Access

     Prisoner's unauthorized use of a cell phone violated prison regulations barring actions which circumvented telephone call monitoring procedures in place at the facility, and the loss of visitation privileges imposed on him was an appropriate sanction when he had obtained the unauthorized cell phone from a visitor. Rutledge v. Attorney General of the U.S., No. 05-3160, 163 Fed. Appx. 120 (3rd Cir. 2006).

Visitation

     Prisoner lacked standing to challenge the use of an ion scanner to conduct searches of visitors for drugs, and could not proceed with his lawsuit objecting to the prison's denial of his mother's entry to the facility to visit him when the ion scanner indicated that she tested positive for contact with cocaine. Grigger v. Goord, 811 N.Y.S.2d 161 (A.D. 3rd Dept. 2006).

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     Mentally Ill Prisoners: Medicaid Benefits and Recidivism of Mentally Ill Persons Released from Jail, NIJ-Sponsored, May 2006, NCJ 214169. PDF

     Mentally Ill Prisoners: Psychiatric Disorders of Youth in Detention, OJJDP, April 2006, NCJ 210331. (16 pages). PDF NCJRS Abstract

     Statistics: Prison and Jail Inmates at Midyear 2005 Presents data on prison and jail inmates, collected from National Prisoner Statistics counts and the Census of Jail Inmates 2005. This annual report provides the number of inmates and the overall incarceration rate per 100,000 residents for each State and the Federal system. It offers trends since 1995 and percentage changes in prison populations since midyear and yearend 2004. The midyear report presents the number of prison inmates held in private facilities and the number of prisoners under 18 years of age held by State correctional authorities. It includes total numbers for prison and jail inmates by gender, race, and Hispanic origin as well as counts of jail inmates by conviction status and confinement status. The report also provides findings on rated capacity of local jails, percent of capacity occupied, and capacity added. Highlights include the following: From midyear 2004 to midyear 2005, the number of inmates in custody in local jails rose by 33,539; in State prison by 15,858; and Federal prison by 6,584. On June 30, 2005, a total of 2,266 State prisoners were under age 18. Adult jails held a total of 6,759 persons under age 18. An estimated 12% of black males, 3.7% of Hispanic males, and 1.7% of white males in their late twenties were in prison or jail (05/06) NCJ 213133 Press release | Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Youthful Prisoners: Settlement Agreement of United States v. State of Indiana, the Logansport Intake/Diagnostic Facility and the South Bend Juvenile Correctional Facility. (PDF) (02/08/06)

     Youthful Prisoners: Settlement Agreement in United States v. State of Hawai'i, the Hawai'i Youth Correctional Facility (Memorandum of Agreement) (PDF)(02/07/06)

Reference:

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

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