FEATURED CASES

WITH LINKS TO THE OPINIONS

Federal appeals court overturns ruling that defendant prison officials waived their defense of qualified immunity to plaintiff prisoner's claim under federal statute concerning religious freedom by failing to raise it in their answer to his complaint. The defense was sufficiently raised in their motion for summary judgment, despite the failure to specifically mention the statute in relationship to qualified immunity.

     A corrections officer and the former warden of Colorado's Sterling Correctional Facility (SCF) appealed from a federal trial court's refusal to decide whether or not they were entitled to qualified immunity on a claim made against them by a Muslim inmate under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.  Rejecting the trial judge's ruling that it need not decide the issue because the defense of qualified immunity was not asserted in the defendants' answer to the complaint, a federal appeals court found that the defendants adequately raised the issue in a motion for summary judgment.

     The plaintiff inmate is an adherent to the "Sunni" branch of Islam. His claims revolved around the prison's policy of refusing to allow prisoners to congregate for prayer outside their assigned cells without prior approval.

     The statute at issue, RLUIPA, forbids a prison from "imposing a substantial burden on the religious exercise" of an inmate without demonstrating that imposing the burden on the prisoner furthers a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest. The defendants argued that they were not personally liable for any alleged RLUIPA violation and were entitled to qualified immunity because the law was not clear, at the time of their actions, that refusing to allow prisoners to gather for prayer without prior approval violates the statute.

     The defendants, in their answer to the complaint, denied violating the RLUIPA and also challenged the constitutionality of the statute. The trial court found that the defendants, in doing so, had failed to properly assert a qualified immunity defense to the RLUIPA claim.

     A federal appeals court agreed that the "best procedure" to plead an "affirmative defense," such as qualified immunity (a defense which must be specifically raised or else it is lost), was to assert it in an answer or amended answer to a plaintiff's complaint. However, the court also held that the failure to do so does not necessarily bar the defendants from attempting to raise a qualified immunity defense in a motion for summary judgment. It found, based on the record, that the defendants had adequately done so. The court acknowledged that the motion requested that "the claims" be dismissed on the basis of qualified immunity, and did not expressly mention the RLUIPA statute in the context of qualified immunity. The complaint in the case had also raised constitutional claims directly under the First Amendment, among others.

     The court noted, however, that the plaintiff prisoner's response to the motion for summary judgment did address the issue of RLUIPA, so that it need "not worry" about whether any ambiguity in the defendants' motion misled the plaintiff into believing that "qualified immunity was being relied upon only to defend against the constitutional claims." The appeals court therefore ruled that the defendants had not waived the qualified immunity defense to claims under the statute, and remanded the case for a determination of whether such qualified immunity should be granted.

     Ahmad v. Furlong, No. 04-1450 2006 U.S. App. Lexis 1098 (10th Cir.).

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U.S. Supreme Court rules that states and state agencies can be sued for damages for disability discrimination under the Americans with Disabilities Act (ADA) to the extent that a disabled prisoner asserts a claim for conduct that actually violates constitutional rights under the 14th Amendment.

     The U.S. Supreme Court, in a lawsuit brought by a disabled inmate in a state prison, has ruled that a state may be sued for money damages for disability discrimination under Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq., at least to the extent that the prisoner asserts a claim for conduct which actually violates constitutional rights under the 14th Amendment. The case under review was Goodman v. Ray, 120 Fed. Appx. 785 (11th Cir. 2004).

     The statute at issue provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." In enacting the ADA, Congress relied, among other things, on its authority to enforce the Fourteenth Amendment and its guarantee of due process and equal protection of law, and specified that a state is not immune, under the Eleventh Amendment to the Constitution, from claims for violation of Title II of the ADA. In doing so, the Court stated, Congress made an "unequivocal" statement of its intent to "abrogate" state sovereign immunity on the issue.

     The plaintiff prisoner is a paraplegic inmate who, at all relevant times, was housed at the Georgia State Prison in Reidsville, Georgia. He sued the state and its Department of Corrections, as well as several individual prison officials, seeking both injunctive relief and damages. He claimed that he was confined for 23 to 24 hours a day in a 12-by-3 foot cell in which he could not turn his wheelchair around, and that the lack of accessible facilities rendered him unable to use the toilet and shower without help, which was often denied. He also claimed that he had injured himself on multiple occasions while trying to transfer himself from his wheelchair to the shower or toilet on his own, and that on some occasions, he had been forced to sit in his own feces and urine while prison officials refused to help him clean up the waste. He also claimed that he had been improperly denied physical therapy and medical treatment, and denied access to almost all prison programs and services because of his disability.

     The federal appeals court ruled that the prisoner's claims for disability discrimination under Title II of the ADA for money damages against the state were barred by sovereign immunity. The appeals court ruled, however, that the prisoner had alleged actual violations of the Eighth Amendment by state agents, and that the same conduct that violated the Eighth Amendment also violated Title II of the ADA.

     The U.S. Supreme Court, in reviewing this, commented:

In fact, it is quite plausible that the alleged deliberate refusal of prison officials to accommodate Goodman's disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted "exclusion from participation in or . . . den[ial of] the benefits of" the prison's "services, programs, or activities." Therefore, Goodman's claims for money damages against the State under Title II were evidently based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment.

     The opinion noted that, while members of the U.S. Supreme Court have disagreed in the past concerning whether the powers of Congress under the enforcement section (Section 5) of the Fourteenth Amendment allow it to enact legislation giving persons rights beyond those specifically guaranteed by the Fourteenth Amendment, "no one doubts" that it has the power to enforce the guarantees of the Fourteenth Amendment, including the right to due process of law and equal protection of law by creating private remedies against states for "actual violations" of those provisions. The Court's opinion was referring to its prior decision in City of Boerne v. Flores, No. 95-2074, 519 U.S. 926 (1996), in which the Court struck down the Religious Freedom Restoration Act, as unconstitutional as applied to the states, since it was an attempt by Congress, under Sec. 5 of the Fourteenth Amendment, to enforce rights to freedom of religious exercise which went beyond what is constitutionally required.

     The Court found that it was not clear, from the "many allegations" in the prisoner's complaint, what specific conduct by prison officials he intended to allege in support of his Title II ADA claims, so that it was also unclear to what extent the conduct underlying his constitutional claims also violated Title II of the ADA. The Court ruled that, to the extent that the prisoner alleged actual violations of his constitutional rights also violated Title II of the ADA, his claims for money damages against the state under the ADA would not be barred by sovereign immunity under the Eleventh Amendment.

     The prisoner was already ordered, by the lower courts to amend his complaint. Once it is amended, the Court stated,

the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

     The Supreme Court's opinion, therefore, did not resolve the issue of whether Congress had also validly abrogated sovereign immunity for conduct which did not violate the Fourteenth Amendment but did, nevertheless, violate the provisions of the ADA. The provisions of Title II of the ADA arguably prohibit conduct broader than that which would violate the constitutional rights of prisoners. The defendants had not challenged the appeals court's ruling that Title II of the ADA is also constitutional in authorizing injunctive relief against a state and its agencies for violations of the statute.

     U.S. v. Georgia, No. 04–1203, 04–1236 126 S. Ct. 877 (2006).

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Diabetic prisoner's foot injuries, burns from participating in Native American religious sweat lodge purification ceremony, only worsened and necessitated amputation after he refused to comply with medical personnel and undertook to provide his own care. He failed to present sufficient evidence, therefore, to support a claim for violation of his constitutional right to adequate medical treatment.

     A diabetic prisoner in the custody of the South Dakota Department of Corrections (DOC) sued state correctional officials and outside medical personnel, claiming that they were deliberately indifferent to his medical needs and that the medical facilities provided were inadequate, in violation of the Eighth and Fourteenth Amendment and state law. The trial court granted summary judgment to the defendants on the prisoner's federal claims and declined to exercise jurisdiction on related state law claims he made. A federal appeals court has upheld this result.

     The prisoner allegedly suffers from "peripheral diabetic neuropathy," a disease causing numbness in the feet and making any injury to his feet a serious health risk. While incarcerated, he allegedly suffered burns to his feet during a Native American religious sweat lodge "purification" ceremony. Medical personnel, two days later, wrote an order requiring a daily medical shower followed by a change of dressing and the application of burn ointment, and restricting the prisoner from further participation in sweat lodge ceremonies until his feet healed.

     The prisoner claimed that the medical personnel had "poor attitudes," and decided, after being frustrated by a 25 minute delay waiting to have his dressings changed, that he would change them himself and assume responsibility for his own care. He therefore signed a "release of responsibility" which stated that he was knowingly acting in non-compliance with the recommendations of prison medical personnel.

     An infection which developed resulted in his transfer to a hospital where doctors determined that it was necessary to amputate portions of his right foot.

     The prisoner asserted claims in his lawsuit for alleged deliberate indifference to his serious medical needs.

     In rejecting these claims, the appeals court noted that the record reflected that his condition worsened after he refused treatment, and that the amputations only became necessary two months after the accident. Under these circumstances, the court stated, expert medical testimony was required to establish that the allegedly deficient treatment plan created by prison medical personnel resulted in the amputation. The prisoner, according to the appeals court, failed to submit sufficient evidence to show that his medical treatment was constitutionally deficient.

     Gibson v. Weber, No. 05-1888 433 F.3d 642 (8th Cir. 2006)

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Doctors' decision to provide only non-surgical treatment for prisoner's inguinal hernia was not deliberate indifference to a serious medical need. Trial judge's decision not to provide plaintiff prisoner with an appointed lawyer was not an abuse of discretion.

     A former Illinois prisoner sued three prison doctors and seven prison officials, claiming that they were deliberately indifferent to his serious medical needs because they treated his hernia through non-surgical means. The trial court denied the prisoner's request to provide him with an appointed attorney, granted summary judgment for some of the defendants, and, after trial, entered a final judgment in favor of the remaining defendants. A federal appeals court has upheld that result.

     The prisoner, who was incarcerated by the Illinois Department of Corrections (IDOC) after a conviction for first degree murder, discovered a "protrusion" in his groin area, and was told, by a prison nurse, that he had a hernia. He was provided with Tylenol for pain and a doctor's appointment was scheduled.

     The doctor diagnosed him with an inguinal hernia that, in his opinion, did not require surgery. Instead, the doctor prescribed a hernia belt/truss to stop the hernia from protruding. The prisoner requested surgery because of the significant pain he was experiencing, and the doctor referred him to the prison's medical director. Upon examination, the medical director, a doctor, found that the hernia was "reducible," meaning that it could be pushed back inside the body without difficulty. The director also determined that the prisoner's vital signs were "all normal," and that he did not display any objective signs of acute distress. There was also no hint of vomiting or other indications of severe sickness. The director concluded that the hernia was not "strangulated," an emergency surgical situation in which the hernia is non-reducible and possibly gangrenous, causing abdominal tissue decay. He further concluded that surgery was not then required, and supplemented the Tylenol and hernia belt, but further prescribing Metamucil to relieve bowel discomfort. He advised the prisoner to avoid heavy lifting and strenuous activity, and the prisoner also received a lower bunk permit. Another doctor the prisoner subsequently saw concurred with these conclusions.

     The prisoner's condition did not appear to worsen during subsequent visits to the medical director, or when he was transferred to another facility. Ultimately, he was released on parole. While still incarcerated, he filed a federal civil rights lawsuit objecting to the failure to provide him with surgery for his hernia, seeking both injunctive relief and damages.

     Summary judgment was granted for all defendants except for the doctors and a health care administrator, who was also a registered nurse. The trial court found that these other prison officials were not deliberately indifferent because they took the prisoner's medical complaints seriously and reasonably relied upon the doctors' recommendations in handling his conditions.

     After trial, the judge also found in favor of the remaining defendants, finding no evidence of deliberate indifference.

     The appeals court upheld the denial of appointment of a lawyer for the plaintiff prisoner, noting that civil litigants have no constitutional or statutory right to counsel in federal court, but may request one under 28 U.S.C. Sec. 1915(e)(1). One may be appointed, in the court's discretion, when the litigant is unable to afford a lawyer. The appeals court found that the judge did not abuse his discretion in determining that the plaintiff was capable of handling the case himself, and that the failure to appoint a lawyer in this case did not violate due process, since the denial did not make it "impossible" for the plaintiff "to obtain any sort of justice."

     The appeals court also upheld the summary judgment the trial court entered for such defendants as a grievance counselor, the warden, an assistant warden, and others who were "non-medical" prison officials or employees. It agreed that they took appropriate steps to see that the prisoner was examined by doctors, and then reasonably relied on medical professionals as to what treatment the prisoner should receive.

     In upholding the final judgment for the remaining defendants, the appeals court noted that, in a federal civil rights lawsuit, the standard for liability is deliberate indifference to a known serious medical need, not medical malpractice, negligence, or even gross negligence. Mere "dissatisfaction or disagreement with a doctor's course of treatment is generally insufficient." The court found that the defendants with medical expertise acted within the scope of professional medical judgment, and did not see any worsening of the prisoner's condition that would make surgery a medical necessity. The appeals court found no evidence to support the prisoner's allegation that the defendants had a policy of denying surgical treatment for hernias as a cost savings measure.

     While the prisoner's condition was serious, and he did experience pain, he also received treatment for the pain, and "rather extensive medical attention" in general. When he was transferred to another facility, the doctors there also declined to operate. Rather than indicating deliberate indifference, the record showed "a rather thorough monitoring" of his condition. Further, after his release from prison, the prisoner still did not have an operation and he had "learned to alleviate the pain."

     A strong dissent by one judge on the three judge appeals court panel argued that approximately 750,000 surgical repairs of such hernias are performed in the U.S. each year, and that while postponement of surgery is possible, in almost all cases, the professionally acceptable procedure is surgical repair to prevent the development of complications. He further argued that the trial court should have appointed the plaintiff prisoner a lawyer, because the case involved complex legal issues, as indicated by the fact that the trial court did approve the appointment of a lawyer to carry out the prisoner's appeal from its judgment.

     Johnson v. Doughty, No. 04-11392006 U.S. App. Lexis 1060 (7th Cir.).

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Schizophrenic prisoner who murdered Jeffrey Dahmer and two other persons failed to show that prison officials at Supermax facility knew that the heat in his cell, the constant illumination there, and the denial of his request for audiotapes to "still the voices" in his head were making his mental illness worse.

     A Wisconsin prisoner filed a federal civil rights lawsuit claiming that the state's Secure Program Facility--nicknamed "Supermax"--violated the prohibition against cruel and unusual punishment. "Supermax" is a generic term for "facilities or units designated for inmates who have been disruptive or violent while incarcerated and whose behavior can be controlled only by separation, restricted movement, and limited direct access to staff and other inmates, thereby excluding routine disciplinary segregation, protective custody, or other routine purposes." See, Leena Kurki & Norval Morris, "The Purposes, Practices, and Problems of Supermax Prisons," 28 Crime & Justice 385, 388 (2001).)

     The trial court held that a jury could reasonably find that the defendants had violated the prisoner's constitutional rights by subjecting him to conditions of confinement that had "significantly aggravated" his mental illness, but granted summary judgment for the defendants on the basis of qualified immunity, since settled law did not establish the unlawfulness of the defendants' behavior. A federal appeals court has upheld this result.

     The plaintiff prisoner is schizophrenic and delusional, as well as extremely dangerous, according to the appeals court. He has previously murdered three people--including two of them in prison, one of which was the "notorious Jeffrey Dahmer--the cannibal murderer of 17 young men." The plaintiff, who allegedly hears voices "constantly," claimed that God had ordered him to commit the murders.

     He spent five years at a federal prison and was "surprisingly well behaved," after being given audiotapes to help "quiet the voices" in his head. He worked and was permitted daily contact with the other inmates in the recreation yard, all without incident. When the new Supermax facility in Boscobel, Wisconsin opened, he was returned to Wisconsin and placed there. After three years at the facility, the trial court in his lawsuit determined at a preliminary injunction hearing that conditions at the Supermax were "so severe and restrictive that they exacerbate the symptoms" that mentally ill inmates exhibit, and that many of the severe conditions there "serve no legitimate penological interest," and could only be considered "punishment for punishment's sake." He was then transferred to a Colorado state prison, where he is being allowed to mingle with other inmates, and is allegedly not regarded as a management problem by the staff.

     A federal appeals court has upheld summary judgment on the basis of qualified immunity for the defendant Wisconsin correctional officials, finding that the plaintiff failed to provide sufficient evidence to overcome the defendants' denials that they knew that conditions at the Supermax were making his mental illness worse.

     Evidence in the case showed that heat in the cells at the facility interacted with the prisoner's anti-psychotic drugs to cause him extreme discomfort, and that the constant illumination of the cells "disturbs psychotics." Without audiotapes or a radio, or some other source of sound, the prisoner allegedly could not "still the voices" in his head, and he attempted suicide twice, once by taking an overdose of his anti-psychotic pills and the other time by swallowing a large number of Tylenol tablets. He also banged his head against his cell wall for protracted periods, intending to "break his head open" so that the "voices could escape," and also cut his head with a razor for a similar purpose, as well as cutting his wrists. His symptoms would worsen when he stopped taking his anti-psychotic medication, which he would do when the heat interacted with it to cause him serious distress.

     The appeals court concluded that it was a fair inference that conditions at the Supermax "aggravated" the symptoms of the prisoner's mental illness, inflicting severe physical and mental suffering. The court also found that the prisoner was "closely watched," so that the defendants were "well aware" of his problems. It further found some of their reactions "bizarre," such as when they denied him promotion to a higher level because of incidents of head banging, telling him that such conduct was "not appropriate" and that he should "cooperate." He was banging his head "because he is crazy," the appeals court state, "not because he was unwilling to cooperate."

    Despite this, however, there was no evidence that the defendants knew, when they brought the prisoner back from the federal prison to Supermax, which was done because they now had a secure enough facility to house him safely, that he would be at risk of severe distress. "Probably they should have known," the court stated, but that would make them guilty merely of negligence and not of deliberate indifference.

     Once he was there, the defendants soon realized that he was in serious distress because of his mental illness, but the court found no indication that they attributed this distress to the heat of the cell, the constant illumination of the cell, or the denial of audiotapes or similar equipment. "No evidence in short that they realized the harm that the conditions of his confinement were inflicting on him." They were not indifferent to his welfare, but instead gave him constant psychiatric attention and anti-psychotic medication, as well as thwarting his two suicide attempts through constant surveillance.

     The treatment of a mentally ill prisoner who had also murdered two other inmates, the appeals court argued, is much more complicated than the treatment of a "harmless lunatic."

Measures reasonably taken to protect inmates and staff from him may unavoidably aggravate his psychosis; in such a situation, the measures would not violate the Constitution. It was when Scarver was permitted to mingle with other inmates at the Columbia Correctional Institution that he killed two of them. Maybe there is some well-known protocol for dealing with the Scarvers of this world, though probably there is not (we have found none, and his lawyer has pointed us to none); fortunately they are few in number. Scarver has presented no evidence concerning the techniques that the two prisons in Colorado use to allow a dangerous prisoner to mingle with other inmates without endangering them or staff. Dahmer, who doubtless would have been executed in any state that retains the death penalty, was a unique target. The other inmate whom Scarver murdered was not; the motive there may have been that the inmate had tried to pin his crime on a black man (Scarver is black). Race may also have played a role in Scarver's decision to murder Dahmer, many of whose victims were black. Other white inmates--at least those whom Scarver perceives to have wronged blacks--might also be at risk of being attacked and perhaps killed by him.

     The appeals court also commented that the "ingenuity" of "murderous inmates," especially in states like Wisconsin, which lack a death penalty, "cannot be overestimated." The plaintiff prisoner was already serving a life sentenced, so that prison authorities must be given "considerable latitude" in taking measures "for controlling homicidal maniacs without exacerbating their manias beyond what is necessary for security."

     Had the defendants realized, the court stated, the risk of serious harm to the prisoner that was created by extreme heat and the denial of audiotape, the decision to disregard that risk "probably" could not have been justified by his "dangerousness," since those conditions of his confinement did nothing to protect other prisoners or prison personnel from him, or the prisoner from himself. But the prisoner failed to cite any evidence to overcome the denial by the defendants that they knew these conditions were making his mental illness worse.

     Scarver v. Litscher, No. 05-2999, 2006 U.S. App. Lexis 1135 (7th Cir.).

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     Editor's Note: The appeals court in the case reported above also noted that there was "extensive literature" on the effect of such conditions, particularly of isolation, on mentally disturbed prisoners, citing Jennifer R. Wynn & Alisa Szatrowski, "The Modern American Penal System: Hidden Prisons: Twenty-Three-Hour Lockdown Units in New York State Correctional Facilities," 24 Pace L. Rev. 497, 512-14 (2004); Craig Haney, "Mental Health Issues in Long-Term Solitary and 'Supermax' Confinement," 49 Crime & Delinquency 124 (2003); Stuart Grassian, "Psychopathological Effects of Solitary Confinement," 140 Am. J. Psychiatry 1450 (1983), and references in Madrid v. Gomez, 889 F. Supp. 1146, 1231 (N.D. Cal. 1995). But this did not show that the defendants knew of this literature, and the plaintiff's lawyer did not argue "that the literature was so widely disseminated in correctional circles that it is a fair inference that despite their denials they did know that."

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Deputies who placed an intoxicated detainee who had made suicidal threats in a cell under video surveillance were not liable for his subsequent successful suicide despite failure to remove the shoelaces he used to hang himself.

     The estate of a Warren County, Virginia jail detainee sued the county and a number of deputies for allegedly acting with deliberate indifference to a substantial risk that he would commit suicide while confined, resulting in his death. The detainee was arrested and jailed for alleged assault and battery of his wife, in violation of a protective order. After his release, he allegedly told his wife and daughter over the phone that he wanted to die. The family members decided to have him arrested again for violating the protective order, because they encountered him drunk and believed that he might actually kill himself. He was again arrested and jailed.

     Personnel at the jail were informed that he had been arrested for violating a protective order, was drunk, and had been threatening to kill himself. The county jail's policy and procedures manual in effect at that time required officers to remove all potential suicide tools such as sheets, blankets, and shoelaces, to make inmate checks at random intervals of at least twice an hour, and to report any "unusual" occurrences. The deputies also received training in treatment of potentially suicidal inmates. They were instructed to remove clothing of suicidal inmates, to place them in a suicide "smock," to call mental health services, and to conduct checks at 15-minute intervals.

     The plaintiff alleged that, despite the knowledge of his suicide threats, the deputies never removed the detainee's clothing and shoelaces or called for a mental health evaluation, although his belt was removed, and he was placed in a "sick cell." Several hours later, banging was heard coming from the sick room, but the prisoner stated that he was all right. The deputy who had this conversation with the detainee allegedly did not inform other deputies of it, or make a report. When the night shift arrived, no one in the departing shift allegedly informed the incoming deputies that the detainee had threatened to kill himself, so the incoming deputies only knew that an intoxicated detainee was in the sick room.

     In the sick room, although on view through a surveillance camera, the detainee removed the laces from his shoes, tied them together, and climbed from his bed to the bars of his cell, tying the shoelaces to the bars and testing their strength. He then tied the laces around his neck, and hung himself. He was allegedly not discovered until almost an hour and a half later, when a deputy escorted a new detainee to the sick room, and he was then dead.

     The trial court denied a motion for summary judgment by the first shift deputies, finding that the evidence permitted a reasonable inference that their conduct could be found to constitute deliberate indifference to a known risk of suicide and a failure to follow jail procedure or even take the simple precaution of warning the next shift of the risk. The court also upheld the denial of summary judgment to another deputy, of whom the evidence would support an inference that he actually witnessed the suicide in progress, understood what was happening, but made no attempt to intervene.

     A federal appeals court found that it was an error to deny summary judgment to the first-shift officers, who were found entitled to qualified immunity, which protects "all but the plainly incompetent or those who knowingly violate the law."

     The appeals court found that the first-shift officers' response to the prisoner's risk of suicide was "objectively reasonable" and sufficient to prevent liability under the Eighth Amendment. They placed the detainee in a cell under video surveillance, and this was sufficient to avoid a claim for deliberate indifference, even if additional precautions "might also have been advisable."

     Additionally, the videotape of the detainee's activities during the first shift did not show him doing anything unusual, except for a couple of times when he banged his shoe against the cell bars or the sink.

     The appeals court did uphold, however, the rejection of summary judgment for a deputy on the evening shift, based on evidence which supported a reasonable inference that he observed the detainee, on the video monitor, removing the laces from his shoes and, over a period of twenty to thirty minutes, climbing on the bars of his cell, tying his shoelaces to the bar, placing a noose around his neck, and testing the weight of the rope. If true, the deputy's failure to make any effort to stop the ongoing suicide attempt would constitute deliberate indifference in violation of the Eighth Amendment.

     A strong dissent by one judge on the three judge appeals panel argued that the first-shift deputies should also be denied summary judgment, because, while they placed him in a cell with a video camera, they did not observe him on the video monitor and "did virtually nothing" to prevent his suicide.

     Short v. Smoot, No. 05-1284, 2006 U.S. App. Lexis 2564 (4th Cir.).

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Individual employees of privately run prison were not subject to a federal civil rights Bivens lawsuit for allegedly providing inadequate medical care to a diabetic federal prisoner.

     A federal appeals court has ruled that individual employees of a privately operated prison can not be sued for violation of prisoner's federally protected constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The case involved alleged inadequate medical care provided to a federal inmate, in violation of the Eighth Amendment. The appeals court stated that it was "declining" to extend the Bivens cause of action to these circumstances both because the actions taken by a private prison employee are not "fairly attributable" to the federal government, and because the prisoner had adequate state law remedies in North Carolina for his injuries. The appeals court therefore overturned the trial court's refusal to dismiss the lawsuit.

     The plaintiff prisoner is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the Bureau of Prisons. The defendants in the lawsuit were the warden and a prison doctor, both of whom are directly employed by GEO.

     The plaintiff is a diabetic and claims that the medical staff at the facility ignored his complaints that his insulin dosage was insufficient, resulting in frequent blackouts.

     Under Bivens, a federal government employee or agent acting under color of his authority can be sued directly under the U.S. Constitution for violation of constitutional rights, such as the Eighth Amendment. Courts have, however, been cautious in extending that remedy "into new contexts," according to the appeals court.

     In this case, the appeals court found, the defendants are private individuals and not government actors. They were employees of a wholly private corporation in which the federal government had "no stake" other than a contractual relationship. In Correctional Services Corp. v. Malesko, No. 00-860, 534 U.S. 61 (2001), the U.S. Supreme Court held that an inmate in a private correctional facility could not bring a Bivens suit against the corporation operating the facility, but did not address whether individual employees of a privately run correctional facility could be sued in that manner.

     The appeals court found that the alleged actions of these defendants were not "of a sufficiently federal character" as to create constitutional liability. The court also rejected the argument that the provision of medical care in a private prison is somehow a "public function."

     Additionally, the plaintiff prisoner was found to have an alternative, and "arguably superior" cause of action against the defendants under the state law of negligence.

     Holly v. Scott, No. 05-6287, 2006 U.S. App. Lexis 685 (4th Cir.).

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     Editor's Note: The only other federal appeals court to consider the same issue reached the same result. See, Peoples v. CCA Detention Ctrs., No. 04-3071, 422 F.3d 1090 (10th Cir. 2005).

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Male prisoner's claim that female guard made him strip naked and masturbate for her enjoyment, if true, was a violation of his privacy rights, but not "cruel and unusual punishment," since he only suffered minimal injury. Prisoner also claimed he was retaliated against for complaining about this treatment, in violation of his First Amendment rights.

     A male Georgia prisoner filed a federal civil rights lawsuit against a female guard at the prison who he claimed made him "strip and masturbate" for her enjoyment. A federal appeals court, overturning judgment for the defendant, found that the prisoner stated a viable claim for violation of his right to privacy and for retaliation in violation of his First Amendment rights.

     The prisoner claimed that for a period of approximately four months, the female guard "repeatedly" approached his cell and demanded that he strip naked and "perform sexual acts of self-gratification." It allegedly began when the prisoner complained that his food was cold and his tray was dirty, and the female guard responded that she would get him a new dinner if he did her a "favor" by showing her his penis while she watched through the flap in the cell door. He allegedly declined, and she allegedly promised retaliation.

     These sorts of incidents allegedly continued for several months, with the male prisoner sometimes disobeying the female guard's commands, and sometimes obeying her. He received two disciplinary reports following one such encounter with the guard in which he did perform for her, being cited for failure to follow instruction and "exposure/exhibition." He was allegedly not given an opportunity to challenge the female guard's statements in these reports in front of a disciplinary hearing officer.

     The female guard allegedly told him that she would not write further false disciplinary reports if he followed her orders "without question." He alleged then agreed to do so, obeying those orders on six separate occasions over three months. He then filed grievances against the guard, which were denied, and finally sued her.

     The appeals court found that a prisoner has a constitutional right to bodily privacy, and against compelled nudity and masturbation. While the scope of such privacy rights must be decided on a case-by-case basis, the court stated, in this case, the prisoner's claims, if true, that a female guard asked him to masturbate for her viewing, states a claim for violation of his privacy rights.

     The appeals court rejected, however, the claim that this constituted cruel and unusual punishment in violation of the Eighth Amendment. While severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment, and sexual abuse, including in this case, has "no legitimate" purpose, in this case the injury suffered was not objectively serious enough to be cruel and unusual punishment. The prisoner suffered only "de minimis" (minimal) injury.

     Finally, the prisoner's claim that he was retaliated against and punished for complaining about the female guard's treatment of him was found to be sufficient to state a civil rights claim for violation of his First Amendment rights.

     Boxer X v. Harris, No. 04-13083, 2006 U.S. App. Lexis 2008 (11th Cir.).

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Prisoner who was held in administrative segregation for three years at three different Colorado prisons asserted several non-frivolous claims, including for unlawful retaliation against him for complaining about his segregation, complete denial of outdoor exercise, and denial of access to "church fellowship," and the prison law library.

     A prisoner incarcerated at the Limon Correctional Facility in Limon, Colorado, had previously, while a pre-trial detainee at a county jail, posed as a visitor and escaped by simply walking out. While he was quickly caught, the escape resulted in embarrassing media coverage of correctional officials, and he was placed in punitive segregation at the jail as punishment for the escape.

     He was then convicted of the original criminal charges made against him, and transferred to a prison, where he claims he was immediately placed in administrative segregation for the embarrassment that his escape caused officials. He allegedly remained in administrative segregation at three different state prisons from September 2000 until August 2003. During that time period, he alleges, he was kept in his cell 23 hours a day for 5 days each week, and 24 hours a day the other 2 days each week, as well as being denied access to the phone, the showers, outdoor exercise, the law library, and other programs provided for general population inmates. His federal civil rights lawsuit claimed that these conditions of confinement violated his constitutional rights.

     The prisoner asserted six claims: (1) retaliation for the earlier jailhouse escape; (2) double jeopardy based on being punished twice for the escape; (3) violation of due process because the panels making his administrative segregation determinations were biased; (4) cruel and unusual punishment, primarily from his denial of outdoor exercise; (5) violation of due process because he was denied the opportunity to earn "good time credits" while in administrative segregation; and (6) violation of equal protection because he was treated differently than other inmates. The federal trial court dismissed all of these claims as "frivolous."

     A federal appeals court disagreed in part.

     The appeals court found that the prisoner's claim that there were due process violations stemming from the allegedly biased administrative segregation placement hearings was not frivolous. To begin with, the prisoner's complaint suggested that he was placed in administrative segregation with no hearing whatsoever, and the appeals court found that, assuming the prisoner established that he had a protected liberty interest at stake, this, if true, would violate his rights.

     The appeals court also rejected that the prisoner's claim arising from his alleged denial of all outdoor exercise for the three years he was in administrative segregation was frivolous.

There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well being of inmates, and some courts have held a denial of fresh air and exercise to be cruel and unusual punishment under certain circumstances.

     The appeals court further stated that it was "clear" that a fact-finder might conclude that the risk of harm from three years of deprivation of any form of outdoor exercise was "obvious," establishing a claim for "deliberate indifference" if correctional officials disregarded that risk by keeping the plaintiff in administrative segregation. The appeals court also found that one of the prisoner's retaliation claims, that he was transferred to a new facility for complaining about his placement in administrative segregation, was not so "indisputably meritless" as to be properly dismissed.

     The appeals court also found that the prisoner should be allowed to further pursue his claims based on denial of access to "church fellowship," denial of access to the prison law library to allow him to prepare for the immediate lawsuit, and whether the conditions the prisoner faced in administrative segregation were "atypical" enough to give him a liberty interest in not being assigned to administrative segregation.

     The appeals court found the remaining claims raised by the prisoner frivolous and properly dismissed.

     Fogle v. Colorado Dep't of Corr., No. 05-1405, 2006 U.S. App. Lexis 2024 (10th Cir.).

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Federal appeals court upholds injunction requiring the provision of both general educational services and special educational services for school age inmates incarcerated in New York City jails, based on the failure to comply with federal law. Portions of the injunction based on alleged violations of state law, the court held, were beyond the power of the federal trial court. City defendants had previously waived a defense of failure to exhaust available administrative remedies by stating that no such remedies were applicable to the claims made in the class action lawsuit.

     Inmates in New York City jails filed a class action lawsuit challenging the alleged failure to provide them with educational services they claimed they were entitled to under state and federal law. The trial judge granted a declaratory judgment to the plaintiffs, concluding that the defendants had indeed failed to provide required services, and ordered them to create a plan for doing so, subsequently adopting the defendants' proposed plan, and appointing a third party to monitor the plan for one year.

     After receiving the monitor's final report, the trial court entered an injunction ordering the defendants to comply with the terms of their educational plan and to provide additional required services to eligible inmate. Further proceedings were subsequently ordered on the issue of whether the plaintiffs were required to exhaust administrative remedies before pursuing their lawsuit, and the injunction, previously vacated, was reinstated after the trial court determined that exhaustion of administrative remedies was not required in this case. The defendant city appealed, claiming that this ruling was erroneous.

     The litigation began with claims that the New York City Department of Education ("DOE") and Department of Corrections ("DOC") failed to provide inmates incarcerated at New York City's vast Rikers Island prison facility with sufficient educational services and facilities to meet standards imposed by federal and state law. The plaintiffs claimed that less than half of school-eligible persons incarcerated there were provided with mandated educational services, including general educational services for all eligible inmates or special education services for school-eligible inmates with disabilities, in violation of the due process and equal protection clauses of the Fourteenth Amendment, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482; 42 U.S.C. § 1983; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"); the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (the "ADA"); and New York State law and regulations.

     The remedial plan presented by the defendants asserted that they would provide full and complete educational services and facilities to all eligible Rikers Island inmates, including both general and special educational services. The monitor's final report stated that, despite the plan, a "substantial number" of school age individuals confined there continued to receive either no educational services or "substandard services." Following that, the trial court issued its injunction requiring that the services be provided.

     Exhaustion of available administrative remedies is required prior to pursuing a lawsuit over prison conditions under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). In Porter v. Nussle, 534 U.S. 516 (2002), the SU.S. Supreme Court held that this requirement "applies to all prisoners seeking redress for prison circumstances or occurrences," irrespective of whether those conditions are general to all prisoners or affect only one prisoner in particular, If no administrative remedies are available, however, then exhaustion is not required.

     The appeals court, upholding the trial court's ruling that exhaustion was not required, found that the defendants had waived the defense of non-exhaustion, which is an "affirmative" defense. In other words, it must be specifically raised, or it is lost. The court noted that the city defendants had opposed a prior motion by a state defendant to dismiss the case on the basis of failure to exhaust available administrative remedies, arguing that there were no relevant available administrative proceedings concerning the issues in the case. By doing so, the appeals court found, the city defendants waived or conceded that the non-exhaustion defense was not applicable.

This is not a purely technical matter. Had the City defendants asserted in 1996 that administrative proceedings were available, the plaintiffs might have sought to exhaust any such proceedings before timely returning to federal court. The plaintiffs were entitled to rely, instead, on the City defendants' assertion that, barring the emergence of new information during discovery, the plaintiffs had no administrative process available to exhaust. The City defendants were not entitled to concede at the beginning of the litigation that prison grievance procedures were not available only to assert the contrary three years later based on information available to them from the outset.

     Accordingly, the appeals court upheld the issuance of the injunction on the basis of the defendants' alleged violations of federal law in failing to provide required educational services. At the same time, the appeals court pointed out that another section of the PLRA, 18 U.S.C. Sec. 3626(a)(1)(A) provides that "prospective relief" such as an injunction in any civil lawsuit about prison conditions "shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." The appeals court agreed with the city that this provision limited the power of the federal trial court to order injunctive relief for violations which were "solely of state law."  The portions of the injunctive order that appeared to be based solely on asserted violations of state law were therefore vacated.

     The appeals court noted that the trial judge had found that the city defendants, by their own admission or by failing to dispute the findings of the monitor, remained out of compliance with applicable state and federal law concerning educational services after "years of litigation," so that injunctive relief was required.

     The appeals court also rejected arguments that the injunctive order was not narrowly drawn as required by the PLRA, and upheld the application of the injunction to all inmates under the age of twenty-one in the custody of the New York City Department of Correction who have not yet received their high school diploma or its equivalent, and provisions designed to ensure that such prisoners with special educational needs based on disabilities were found through screening and provided appropriate special services.

     Handberry v. Thompson, No. 03-0047, 2006 U.S. App. Lexis 1062 (2d Cir.).

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Access to Courts/Legal Info

     Jail's limitations on the supplying of photocopies that a prisoner wanted to use in his habeas corpus case was not a violation of his constitutional right of access to the courts since he did not show that the court rejected his habeas petition because of missing attachments. The prisoner, therefore, failed to prove that he suffered any harm. Additionally, the prisoner had no right to free unlimited photocopies. Logue v. Chatham County Detention Center, No. 05-10983, 152 Fed. Appx. 781 (11th Cir. 2005).

AIDS Related

     New York prisoner could proceed with his claim that he suffered mental, physical, and emotional harm because a hospital employee informed a correctional officer of his HIV positive status. Hospital employee had an obligation under state law to inform officer that unauthorized further disclosure was prohibited, and there was a factual issue as to whether it was foreseeable that the officer would subsequently disclose the prisoner's HIV status to other non-medical personnel at the correctional facility. Melendez v. Strong Memorial Hospital, 804 N.Y.S.2d 626 (Sup. 2005).

Attorneys' Fees

     Mother of youth murdered while in the custody of a contractors for the District of Columbia Youth Services Administration, was awarded $997,161 in compensatory and punitive damages on civil rights and negligence claims. The plaintiff claimed that the defendant's failure to monitor the youth's medication and whereabouts, to connect him with court ordered mental health and substance abuse services, or to properly care for him caused his death. Court rules that plaintiff was also entitled to an award of $398,490.75 in attorneys' fees and $22,528.30 in costs. Court rejected argument that it was unreasonable to spend 96 hours preparing opposition to the defendant's motion for summary judgment, but did rule that a 25% reduction in requested hourly rates was justified when the same evidence was presented on both the civil rights and negligence claims and the requested attorneys' fee award would otherwise have amounted to almost 54% of the damage award. Muldrow v. Re-Direct, Inc., No. CIV. A. 01-2537, 397 F. Supp. 2d 1 (D.D.C. 2005).

Disability Discrimination: Prisoners

     State correctional official sued in her official capacity was immune under the Eleventh Amendment from claims for money damages for alleged violation of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, but the State of Michigan waived any Eleventh Amendment immunity from disability discrimination damage claims under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, when it accepted federal funds for its corrections department. Deaf inmate stated a possible claim for disability discrimination by alleging that he was denied access to a device which would let him communicate by telephone on a basis comparable to the telephone access given to hearing inmates. Tanney v. Boles, No. 04-71260, 400 F. Supp. 2d 1027 (E.D. Mich. 2005).

Employment Issues

     Firing of Mississippi corrections counselor for allegedly engaging in an "improper relationship" with a prisoner was not "arbitrary or capricious." Correspondence from the counselor to an inmate which she signed "Your Mom" violated rules prohibiting counselors from establishing close personal relationships with prisoners. Mississippi Dept. of Corrections v. Maxwell, No. 2004-CC-00637, 913 So. 2d 1013 (Miss. App. 2005).

     Black employee was properly fired for working for the same county department of corrections that his daughter was employed by, in violation of the county's policy against nepotism, and he failed to show that his termination was based on racial discrimination, as he claimed. Anderson v. Sedgwick, No. 05-3118, 150 Fed. Appx. 754 (10th Cir. 2005).

Exercise

     Prison's denial of inmate's request for access to weight training facilities did not violate his Eighth Amendment rights in the absence of any showing that the official making the denial knew that such weight training was allegedly necessary to treat the prisoner's femoral neuropathy and other leg ailments. Reimann v. Frank, No. 05-C-501, 397 F. Supp. 2d 1059 (W.D. Wis. 2005).

First Amendment

     Prisoner failed to show that he was reassigned from a boiler-room job to a "hoe" squad and forced to work in dirty clothes and in cold weather in retaliation for his filing of grievances and complaints. The evidence showed, the court ruled, that he was actually reassigned for legitimate reasons, including the prisoner's connections to white supremacist groups and the risk of escape posed by his prior escape from another facility. Breshears v. Brown, No. 04-41749 150 Fed. Appx. 323 (5th Cir. 2005).

Freedom of Information

     Wisconsin prisoner was not entitled under state law to access to some records he had requested from a prison concerning a disciplinary incident in which he had been involved, and which had previously become the subject of litigation against the state Department of Corrections (DOC). Correctional officials had properly determined that turning over the withheld records could endanger other prisoners or prison staff and could compromise the inmate's rehabilitation. Portions of the withheld records constituted, or reference gang related literature, the officials stated, which was contraband which a prisoner may not possess. State v. Stahowiak, No. 2004AP1755, 706 N.W.2d 161 (Wis. App. 2005).

Medical Care

     Sheriff was not personally liable for alleged denial of medications and medical treatment to jail detainee when there was no evidence that the sheriff knew either about the detainee's need for prescribed medicine or medical treatment, and no evidence which showed that the alleged deprivations occurred because of any policy or procedure established by the sheriff. Tatum v. Simpson, No. CIV A05CV00669, 399 F. Supp. 2d 1159 (D. Colo. 2005).

     In a medical malpractice lawsuit brought against prison medical personnel under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80, a prisoner failed to prove that they were negligent when they failed to diagnose and treat his deep vein thrombosis. The prisoner complained of one of the symptoms of such an illness--shortness of breath--only once before an attack resulted in him being hospitalized, so that there was no violation of applicable medical standards. Goines v. Pugh, No. 04-1394, 152 Fed. Appx. 750 (10th Cir. 2005).

     Despite a detainee's alleged intoxication, jail personnel's failure to either transfer him to the hospital or at least contact an on-call nurse was unreasonable for purposes of a Fourteenth Amendment claim for deliberate indifference to serious medical needs when the detainee insisted that he was suffering from a serious medical condition and needed assistance. His estate could proceed with its claim against individual personnel for the detainee's death from an allegedly untreated heart attack, but there was not proof of an official policy or custom causing the deprivation which could support liability on the part of the city or county. Hollenbaugh v. Maurer, No. 5:05-CV-207, 397 F. Supp. 2d 894 (N.D. Ohio 2005).

Medical Care: Mental Health

     Man detained by the State of Wisconsin as a sexually violent person failed to show that he was provided with constitutionally inadequate mental health treatment. He failed to show that decisions about his treatment were either made by unqualified personnel or that his treatment was "outside the bounds" of acceptable professional judgment. Williams v. Nelson, No. 04-C-774C, 398 F. Supp. 2d 977 (W.D. Wis. 2005).

Prison and Jail Conditions: General

     Inmate failed to prove that he was exposed to unreasonably high levels of contaminated water in his cell. While the water was allegedly discolored, and the prisoner claimed that he fainted after he drank water there, a sample of the water independently tested showed that it "met or exceeded" required health standards. Brown v. Williams, No. Civ. 03-426, 399 F. Supp. 2d 558 (D. Del. 2005).

     Prisoner's claim that "triple-bunking" in a federal prison resulted in "tension, stress, and fear of increased hostility" was insufficient to state a claim for a violation of the Eighth Amendment prohibition on cruel and unusual punishment. He failed to show that there had been a serious deprivation of "basic human needs." North v. White, No. 04-3480, 152 Fed. Appx. 111 (3rd Cir. 2005).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner failed to show that he had exhausted available administrative remedies prior to filing his civil rights lawsuit against his supervisors in the prison sign shop for allegedly failing to provide him with adequate ventilation, training, and equipment. While he asserted that his step three grievance had not been answered by prison officials, he failed to show that prison officials could not still make a timely response to the step three grievance. Blay v. Reilly, No. 04-1347, 152 Fed. Appx. 747 (10th Cir. 2005).

     Requirement, under Prison Litigation Reform Act, 42 U.S.C. Sec. 1997(e)(a) that available administrative remedies be exhausted before a federal civil rights lawsuit over prison conditions is filed did not apply to a lawsuit by relatives of a prisoner who died while incarcerated, as they were not prisoners, and the prisoner, at the time the lawsuit was filed, was no longer "confined." Relatives stated a possible claim for deliberate indifference to the medical and security needs of the deceased prisoner, who they alleged was forcibly intoxicated with morphine by fellow prisoners, with the drug causing his death by overdose. Rivera-Quinones v. Rivera-Gonzalez, No. CIV. 03-2326, 397 F. Supp. 2d 334 (D. Puerto Rico. 2005).

Prisoner Discipline

     Disciplinary hearing's determination that prisoner was guilty of violating prison rules against fighting with other inmates was adequately supported by a misbehavior report and the testimony of the corrections officer who prepared it and witnessed the fight. The prisoner's argument that he was not the person shown on a videotape of the incident, and that the whole thing was a case of mistaken identity was an issue of credibility for the hearing officer to determine. Williams v. Goord, 805 N.Y.S.2d 438 (A.D. 3rd Dept. 2005).

     The fact that there were substantial deletions in the copy of the incident report furnished to the prisoner at a prison disciplinary hearing did not violate his right to receive relevant evidence, since an examination of a more complete copy of the report showed that it did not contain anything which would support his defense or exonerate him of the charges. Determination that prisoner was guilty of assaulting another inmate and making false statements to an officer were supported by substantial evidence. Seymour v. Goord, 804 N.Y.S.2d 498 (A.D. 3rd Dept. 2005).

Prisoner Suicide

     County sheriff was not entitled to summary judgment on claims that he was individually liable for a jail detainee's suicide on the basis of failure to train personnel on the risk of detainee suicide. Gaston v. Ploeger, No. 04-2368, 399 F. Supp. 2d 1211 (D. Kan. 2005).

Privacy

     Connecticut prisoner's allegation that his meetings with mental health staff at the prison were conducted on the cell tier, within the hearing of other inmates, adequately stated a possible claim for violation of his right to privacy concerning his mental health issues under federal and state law. Hunnicutt v. Armstrong, No. 04-1565, 152 Fed. Appx. 34 (2nd Cir. 2005).

Racial Discrimination

     Black federal prison inmate failed to show that a delay in his promotion to the highest pay grade in his prison factory work assignment was due to racial discrimination. The evidence showed that the delay was actually caused by shortcomings in his work. Hill v. Thalacker, No. 04-C-732, 399 F. Supp. 2d 925 (W.D. Wis. 2005).

Sexual Assault

     Correctional officer's alleged conduct of repeatedly groping or caressing a prisoner's chest, genitals and buttocks during a pat search, if true, constituted a sexual assault which would violate the Eighth Amendment, so that he was not entitled to qualified immunity. Further, the officer's alleged retaliation against the prisoner for complaining by planting evidence against him and filing a misbehavior report against him, if true, would violate the prisoner's First Amendment rights. Rodriguez v. McClenning, No. 03 Civ. 5269, 399 F. Supp. 2d 228 (S.D.N.Y. 2005).

Smoking

     Oklahoma prisoner failed to prove that he was exposed to unreasonable levels of second-hand tobacco smoke. Ciempa v. Ward, No. 04-5176, 150 Fed. Appx. 905 (10th Cir. 2005).

Strip Search

     The alleged actions of a New York correctional officer during a strip search of an inmate for drugs in shining a flashlight into the inmate's anus and running his middle finger between the inmate's buttocks in a "wiping" manner which caused the inmate to urinate on himself, as well as allegedly rubbing his genital area up against the inmate's buttocks did not violate the Eighth Amendment. The incident, the court found, was an "isolated" one, did not cause the prisoner any physical injury. The court concluded that, regardless of the officer's motivation, the incident was not "objectively, sufficiently serious" enough to give rise to a constitutional claim. Morrison v. Cortright, No. 04-CV-6209, 397 F. Supp. 2d 424 (W.D.N.Y. 2005).

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     Overcrowding: Michigan Task Force on Jail and Prison Overcrowding: Final Report Published Date: 2005 File Size: 262.1 KB PDF National Institute of Corrections Strategies for resolving jail and prison overcrowding problems are noted. Sections of this report include: executive summary; introduction; mission statement; guiding principles; problem statement and response; the Task Force process; local criminal justice system infrastructure -- issues, best practices, and strategies (e.g., county jail capacity and emergency release, jail population information system, risk and needs assessment, mentally ill offenders, state and local partnerships, and probation violators); decision points in the criminal justice system -- issues, best practices, and strategies (e.g., arrest decisions, county jail intake and release decisions, charging decision and prosecution, and bail and sentencing decisions); and conclusion

     Publications: Corrections News Online (January 2006). Employee newsletter of the Oregon Department of Corrections. Past monthly issues from 2002 through the present are also available on link by clicking here.

     Publications: Multi-Disciplinary Approach to Managing Prison Security Systems [Participant's Manual] Published 2005 File Size: 3.65 MB PDF National Institute of Corrections. The need for a seamless prison security system with fully integrated component parts is addressed by this 36-hour training program. This manual contains the following modules: laying the foundation; shifting paradigms of prison security; introduction to "seamless security"; planning for "seamless security"; identification of individual "security-related" management issues; building "seamless security" management relationships; introduction to action planning; maintaining "seamless security" management; action planning exercise; and preparation and presentation of individual action plans.

     Statistics: Current and past population statistics for Oregon inmates. Includes prison admissions by county, prison population trends, and inmate population profiles by sex, age, race, custody level, time to release, type of crime, etc.

Reference:

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

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