FEATURED CASES

WITH LINKS TO THE OPINIONS

Denial of food to prisoner, causing him to lose 45 pounds during a 2-1/2 year period, was the result of his own refusal to obey prison rules concerning receipt of meals, and was not cruel and unusual punishment.

      A jury in a civil rights lawsuit filed by a Wisconsin prisoner found that prison officials at the state's maximum-security prison (nicknamed the "Supermax") had inflicted cruel and unusual punishment on him by denying him meals. The jury awarded $50,000 in compensatory damages, along with punitive damages totaling $1.2 million. The trial judge set this aside, granting judgment as a matter of law for the prison officials. A federal appeals court upheld this result, and also commented that the amount of the punitive damages award was "incomprehensible in light of the evidence."

     The prisoner is serving a 58-year sentence for a number of violent crimes. Prisoners in the "Supermax" are given their three meals a day in their cells, and the prison's feeding rule requires that prisoners stand in the middle of their cell with the lights on, when meals are delivered, and that the prisoner then be wearing trousers or gym shorts. If a prisoner does not comply with these requirements, he does not receive his meal.

     The plaintiff prisoner wanted to eat in his underwear, so on a number of occasions over a 2-1/2 year period, he refused to put on his pants or gym shorts, and therefore was not served. Because he skipped so many meals, he allegedly lost 45 pounds. The prison also refused to serve him when he had a sock on his head, which could possibly be used as a weapon, depending on what was it in, when he was asleep, or when his cell walls were smeared with blood and feces that he refused to clean up.

     The appeals court found that "his behavior was disgusting." Still, denial of food as a punishment for violation of a prison rule is "certainly an unusual form of punishment nowadays," and if it inflicts serious harm on a prisoner, it can also be cruel.

     The appeals court found, however, that there is a difference between using food deprivation as a punishment and "establishing a reasonable condition to the receipt of food. If, for example, when an officer delivered a food tray to the prisoner, the prisoner hurled it at him. The prisoner would have missed a meal, the court stated, but it would be a result not of punishment but of a "reasonable condition of being fed--that you do not throw the food in the server's face."

     The same was true here, the appeals court reasoned. The pants requirement was reasonable, both because of the presence of female officers and because of security issues. The pants requirement, further, which was the major cause of the prisoner missing meals, was one which he could have easily complied with, and he offered no excuse for his noncompliance.

He missed some meals not because of the pants rule but because of the sock on the head, the blood and feces on the wall, or his being asleep. The refusal to serve him in the first of these cases, whether or not authorized or directed by any rule, cannot be thought unreasonable; the sock posed a potential threat to the guards. The possibility of contamination of the food by blood or feces might justify refusal to serve a meal in the second case, but this is not argued. Unless the guards had difficulty waking him or were fearful as to how he might react to being wakened, his being asleep at mealtime would not be a good reason for not feeding him. But Freeman failed to show how many of his missed meals were missed for reasons that cannot be easily related to the refusal to comply with a reasonable condition on the receipt of food, except that he testified that he received only one meal a day for two weeks because he refused to keep his cell clean (at the end of that time prison employees cleaned it). That deprivation by itself would not in the circumstances of this case rise to the level of cruel and unusual punishment.

     The appeals court cautioned that a prison cannot allow a prisoner to starve himself to death or even to the point where he seriously impairs his health. "The prison cannot be forced by such tactics to change an otherwise reasonable rule, but at some point it may have to force-feed the prisoner to prevent him from seriously endangering his health." If a prisoner is insane and his insanity causes him to refuse food, the court state, a prison is constitutionally obligated to treat his mental illness, if necessary, by force-feeding him. If a prisoner is sane, but either wants to commit suicide or is prepared to risk death from a hunger strike to make a "political point," the court reasoned, the prison may still force-feed him. "Free people who are sane have a liberty interest in refusing life-saving medical treatment, and likewise in refusing to eat, " but prisoners, the court found, either don't have such an interest, "or it is easily overridden."

The reasons are practical. (No longer does one hear that prisoners must not be allowed to evade punishment by killing themselves and thus "cheating the gallows.") If prisoners were allowed to kill themselves, prisons would find it even more difficult than they do to maintain discipline, because of the effect of a suicide in agitating the prisoners. Prison officials who let prisoners starve themselves to death would also expose themselves to lawsuits by the prisoners' estates. The idea behind liability in such cases is that incarceration can place a person under unusual psychological strain and the jail or prison under a commensurate duty to prevent the prisoner from giving way to the strain. The analysis is applicable when suicide takes the form of starving oneself to death.

     In this case, the appeals court found, there was no indication that the prisoner's life or safety was jeopardized. He lost 45 pounds over 31 months, but he weighed 195 pounds at the beginning and is only 5 foot 6 inches tall, so he actually ended up "closer to the normal weight for a person of his height" than at the beginning. He was visited by nurses who confirmed that he was taking water and checked his appearance and he was visited by a doctor as well.

     The prisoner's food deprivation, the court concluded, to an "overwhelming degree" was "self-inflicted," and there was no evidence that he experienced "real suffering, extreme discomfort, or any lasting detrimental health consequences."

     Freeman v. Berge, No. 05-2820, 2006 U.S. App. Lexis 7194 (7th Cir.).

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Federal appeals court finds a triable issue of fact on whether a county had inadequate policies regarding the training of jail medical personnel as to how to respond to the fall of a medically unstable prisoner, a prisoner's refusal of needed medical treatment, or the need to conduct a prompt assessment on whether such a prisoner should be transferred to another facility with more medical resources. Civil rights claim against county reinstated in lawsuit over death of 71-year-old prisoner from cardiac arrest.

     A 71-year-old man reported to the Los Angeles County Jail in California to serve a 120-day jail sentence. He suffered from congestive heart failure and other ailments. During the following eighteen days, his medical condition deteriorated, and he was seen several times by nurses, but allegedly was not seen by a doctor until the early morning of the last day, hours before he died of cardiac arrest.

     His wife filed a federal civil rights lawsuit, and the trial court dismissal all claims excepts those against the county, against whom the plaintiff sought municipal liability for allegedly failing to adequately train jail medical staff and failing to implement necessary medical policies, leading to the prisoner's death. The trial court subsequently also granted summary judgment for the county on the inadequate training claim, finding that the plaintiff had failed to create a triable issue as to whether the county had a policy of deliberate indifference to prisoners' medical needs, even though there was a triable issue of fact as to whether jail medical personnel had deprived the prisoner of constitutionally adequate medical care.

     A federal appeals court reversed, finding that the plaintiff in fact presented sufficient evidence to create a triable issue as to whether the county was liable for the prisoner's death.

     A policy, the appeals court noted, can be "one of action or inaction." The mere fact that trained professional doctors and nurses were utilized, the court stated, did not foreclose a claim for municipal liability on the basis of a municipality's failure to train its employees. Any other rule, the court stated, would absolve government agencies of any responsibility for providing licensed or certified teachers, nurses, police officers or other professionals "with the necessary additional training required to perform their particular assignments or to implement the agency's specific policies."

     The plaintiff claimed that the county failed to adequately train jail medical staff to document patients' conditions and to monitor and assess the need for patients to be transferred to a facility with a higher level of medical care. In this case, the appeals court noted, it was undisputed that the county knew of the prisoner's medical condition and that the jail was not equipped to care for acutely ill patients. The court found that there was a triable issue of fact as to whether the medical staff was provided with training necessary to cope with this situation, and specifically "whether the county's policy of relying on medical professionals without training them how to implement proper procedures for documenting, monitoring and assessing patients for medical instability" within the confines of the jail amounted to deliberate indifference.

     The plaintiff further argued that the county was also liable for its failure to develop and implement necessary policies including a fall policy, a transfer policy, and a policy requiring prompt medical assessment in the event that an inmate refuses an essential medical treatment, such as oxygen. The trial court had rejected this argument, reasoning that the plaintiff's "insistence" that the county have specific guidelines on how a jail doctor was to treat each of the prisoner's symptoms, from crackles on bilateral lung fields to dark urine to swelling to incontinence would require the county to create a policy to address every medical emergency a doctor might encounter.

     In this case, the plaintiff presented experts with the opinion that the county lacked adequate policies requiring medical staff to transfer patients in the event of signs of medical instability, and to notify a doctor promptly when an inmate falls, and when an inmate refuses essential medical treatment, such as when this prisoner fell and refused oxygen. These experts concluded that these inadequacies reflected deliberate indifference to the prisoner's medical care and resulted in his death.

     While the county contended that there were only isolated instances of improper treatment, the appeals court found that there was a triable issue of fact as to whether the county's failure to implement a policy for responding to the fall of a medically unstable patient, a policy providing for prompt medical assessment if a patient refuses necessary treatment, and a policy directing the transfer of a patient who is no longer medically stable, amounted to deliberate indifference to the prisoner's constitutional rights.

     Long v. County of Los Angeles, No. 04-55463, 2006 U.S. App. Lexis 7552 (9th Cir.).

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If jailers significantly delayed summoning an ambulance for prisoner exhibiting "obvious" symptoms of heart attack, who had previously told them he was a heart patient, they violated his clearly established constitutional rights.

     A former prisoner at a Missouri county jail sued the sheriff, county, and two jailers for alleged indifference to his serious medical needs. He argued that the jailers "inexcusably delayed" summoning an ambulance even though he had told them that he had a history of heart trouble, and then began exhibiting "obvious" heart attack symptoms. He also contended that the jail failed to properly train the jailers to respond to such emergencies, and that the delay in calling an ambulance was influenced by the sheriff's policy requiring his personal authorization for ambulance transfer.

     A federal appeals court upheld the denial of summary judgment on the basis of qualified immunity to the individual defendants.

     The court found that, if the facts were as alleged by the prisoner, a reasonable fact finder could decide that the defendants violated his clearly established constitutional rights by disregarding his need for immediate medical attention, and further, that no reasonable prison official or employee could have thought that the failure to summon immediate medical assistance for a prisoner appearing to have a heart attack was a lawful action.

     In this case, the prisoner stated that he told the booking officer he was a heart patient, and that approximately six hours later he began experiencing "classic heart attack symptoms," including profuse sweating, nausea, and arm and chest pain. These symptoms were corroborated by his cellmate, and the appeals court concluded, while viewing the facts in the light most favorable to the prisoner, that the evidence established a genuine factual dispute as to whether he suffered objectively serious medical needs.

     The prisoner also claimed that the jailers initially ignored a call box call when he became ill, and that when a jailer finally appeared, he dismissed the symptoms as an "anxiety attack," and left. He further claimed that the two jailers returned twenty-five minutes later, and that when he requested an ambulance and stated that he was having a heart attack, he was taken to a booking area and left to wait for another ten to fifteen minutes before an ambulance was summoned, a delay he claimed was caused, in part, by a policy implemented by the sheriff requiring that all ambulance transfers be personally approved by him. While the defendants disputed many of these claims, if they were true, they also created a genuine issue of whether the defendants knew of the prisoner's serious medical needs but were deliberately indifferent towards them.

      Plemmons v. Roberts, No. 05-3110, 439 F.3d 818 (8th Cir. 2006).

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Prison medical personnel who denied prisoner suffering from arthritis soft-soled shoes for his aching feet and delayed renewal of his prescribed pain medication did not violate his rights. Evidence showed, at most, a difference of opinion concerning the proper treatment, and not deliberate indifference.

     An inmate at a federal prison in Milan, Michigan was provided treatments for his arthritis, including Naprosyn and soft-soled shoes for his "aching feet." When he was transferred to the federal prison at Terre Haute, Indiana, he claimed, prison medical authorities were "not as sympathetic" to his arthritic joint problems, and a doctor there concluded that the soft-soled shoes and other treatments were unnecessary. Under the prison's policies, the drugs he had been taking for his pain were also curtailed, and he was required to wait ten days for a refill of his prescription.

     The prisoner sued for alleged deliberate indifference to his serious medical needs. The trial court denied summary judgment to a doctor who served as clinical director at the prison, in charge of the medical care and treatment of all prisoners, and a physician assistant whose duties included scheduling appointments for prisoners to receive their prescribed drugs. A federal appeals court reversed, finding that there was no evidence that the doctor or physician's assistant acted with a "culpable state of mind" required for a finding of deliberate indifference.

     The appeals court found that the evidence showed nothing more than a "difference of opinion" concerning the seriousness of the prisoner's arthritis, "which at the very most amounts to medical malpractice." It was undisputed that the prison doctor reviewed the prisoner's medical history in making the determination that the prisoner did not need soft-soled shoes, and this treatment decision was not "such a substantial departure" from accepted professional judgment or standards as to show a "complete abandonment of medical judgment."

     Medical records, including x-rays, indeed showed an improvement in the prisoner's arthritis years after medical authorities had prescribed soft-soled shoes at the prior facility, and the opinion of a different doctor that the prisoner would "benefit" from soft-soled shoes. The defendant doctor, therefore, was presented with two differing medical opinions made within the seven months prior to his review. His decision to side with one of these opinions could not be found to constitute deliberate indifference to a known serious medical need.

     The appeals court further found that the record in the case did not support a finding of deliberate indifference on the part of the physician's assistant, who it characterized as a "low-level prison employee." Deliberate indifference, it noted, "indicates a culpable state of mind, something akin to criminal recklessness, which requires that the defendant be aware of and disregard an excessive risk of serious harm to the inmate."

     All that the physician's assistant did in this case was to follow the prison's policy of requiring prisoners to wait at least ten days before getting a refill of the pain reliever Naprosyn, a policy that was implemented to protect prisoners from harmful side effects. There was no indication that he acted on any basis other than that policy. The employee's "adherence to the prison policy regarding pain relievers cannot support an inference of deliberate indifference."

     Norfleet v. Gehrke, No. 05-1237, 439 F.3d 392 (7th Cir. 2006).

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Prisoner failed to show either that correctional officers caused his injuries from assault by another prisoner by failing to adequately protect him or were deliberately indifferent to his injuries following the assault.

     An Indiana prisoner claimed that two correctional officers at the Indiana Department of Corrections Maximum Control Complex in Westville, Indiana violated his Eighth Amendment rights when they allegedly allowed another prisoner to assault him, and then allegedly refused to assist him in receiving adequate medical care.

     The prisoner allegedly had a number of "acrimonious and brutal run-ins" with corrections officers and fellow inmates, and there was animosity between him and a corrections officer. He asserted that this officer allegedly spoke to him, with an inmate in an adjacent cell within earshot, indicating that he was going to unlock the doors of the two inmates cells so that he and the other inmate could "fight it out." The officer then walked away, after which the doors to the cells allegedly opened. The two inmates allegedly engaged in a fist fight, with the plaintiff prisoner receiving a punch in the face which injured his lip and drew blood.

     The prisoner claimed that this officer and another officer watched the fight from a control room. When the first officer came to the cell area, the plaintiff prisoner asked to see the nurse and the officer allegedly "responded flippantly" and returned to the control room when he was finished cleaning up. The second officer subsequently came to the cell with some band-aids, tape, and ice from the nurse's station and proceeded to treat his lip with a bandage and an alcohol pad, but no nurse was called.

     The prisoner submitted a formal medical request four days later, and was subsequently seen by a behavioral clinician and a nurse. The prisoner was allegedly uncooperative with the nurse and refused to answer certain questions about what happened.

     The trial court in the prisoner's lawsuit found that the plaintiff had failed to prove his case and that the defendants were entitled to summary judgment on the failure to protect claim. It found that second correctional officer was not present in the cellblock during the time the fight took place, and therefore could not be responsible for it. It also found that the first correctional officer was not shown to have opened the cell doors since he would not have been able to open the cell doors from the control room without the assistance of another officer in a different area of the cellblock. The trial court also pointed to the prisoner's failure to report the supposedly serious injuries he had incurred from the fight until five days later, and the lack of evidence corroborating the prisoner's version of events, except for the "vague testimony" of a fellow inmate who stated that he did not see the fight, only overheard it, and could not state what took place prior to or during the fight with any specificity.

     The federal appeals court found nothing clearly erroneous about these conclusions.

     It ruled that the prisoner, at an evidentiary hearing, failed to establish that either correctional officer failed to protect him from a situation in which there was a "strong likelihood" that violence would occur. Evidence concerning the locking mechanism for the cells established that two officers are required to do so, and that there was no evidence that there was another officer at the time in a position to assist in doing so.

     The appeals court also found that the injuries alleged, a split lip and swollen cheek, did not rise to the level of an objectively serious medical need. Further, even if they were serious, the prisoner failed to show that the officers were deliberately indifferent, given the first aid provided. It also commented that if anyone was "indifferent" to the prisoner's injuries, it was the prisoner himself, as he failed to formally request medical attention until approximately four days after the fight took place. Additionally, there were repeated instances of the prisoner being "most uncooperative" with the medical staff and refusing medical assistance when it was offered to him, including refusing doctor-ordered x-rays to assist in determining whether or not any bones in his face had been broken.

     Pinkston v. Madry, No. 03-2973 2006 U.S. App. Lexis 6108 (7th Cir.).

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Correctional officials and employees did not act with deliberate indifference in placing white supremacist prisoner in two cells with black cellmates who were members of a prison gang that he had a dispute with. No liability for two subsequent attacks on him by cellmates when his expressed reason for requesting a transfer was his desire not to be housed with blacks, a request he had no right to have granted.

     A Wisconsin prisoner who is a practitioner of Wotanism (a.k.a. Odinism or Asatru), a pagan religion often associated with a white-supremacist philosophy, filed a federal civil rights lawsuit, claiming that Wisconsin's prison policy of randomly assigning cellmates placed him in the way of harm in the form of an assault by other prisoners.

     At one point, he was ordered to share a cell at Waupun Correctional Institute with a black prisoner that he did not get along with. The plaintiff was an outspoken white supremacist and his cellmate was a member of a black gang, the Gangster Disciples. There was also "word around the prison" that the plaintiff had recently assaulted another member of that gang. His request to be moved to another cell was denied, and a few days later, his cellmate allegedly attacked him, punching him in the face, after a dispute over some music that the black inmate was playing. The plaintiff prisoner was then "written up" for his involvement in the fight, which eventually led to a period of time in segregation.

     Subsequently, despite his ongoing pleas to prison officials not to house him with nonwhite inmates and other prisoners with whom he did not "get along," the plaintiff was assigned to a cell with another black inmate who also was a member of the Gangster Disciples. The plaintiff told a correctional officer that he was "not supposed to be" in a two man cell and that he "didn't get along" with black prisoners. The officer, finding no documentation of any single-cell restriction, ordered him to go to his assigned cell or be returned to segregation. He went to the cell, and within ten minutes, the plaintiff claimed, his cellmate attacked him, injuring his face and biting off his thumbnail. Discipline was initially imposed on the plaintiff prisoner but subsequently thrown out by a state court.

     The prisoner's complaint named more than 40 prison officials and employees as defendants, and "weighed in" at 55 pages, making many allegations but focusing on the two alleged attacks on him by cellmates. He claimed that double-celling him with the two black gang members was deliberately indifferent to a serious risk of harm.

     The appeals court upheld summary judgment for the defendants. There was insufficient evidence of an Eighth Amendment violation, the court found. Prisoners do not have a right to be celled with an inmate of a particular race or even one with whom they "get along." There was no evidence that the cellmates had threatened the plaintiff prisoner before the attack or that the plaintiff prisoner had made the particular officers who directed him to his cells aware of his alleged past disputes with the Gangster Disciples gang.

     Further, even if an officer were informed of the prisoner's fear of that gang, "prison guards are not required to believe every profession of fear by an inmate."

     A prisoner, the appeals court noted, might object to potential cellmates in order to "manipulate assignments, or out of ignorance," so that the claim that there is a risk of harm does not necessarily show that there is one. One of the officers, in particular, could reasonably have been skeptical of the plaintiff prisoner's claims both because of his professed distaste for being housed with black prisoners and his claim that he was "not supposed" to be in a two-man cell despite the absence of any such restriction in his cell-placement documentation.

     As for the second attack, there was approximately 18 months since the prior alleged attack by a member of the Gangster Disciples, which was too remote to show a risk of immediate harm, the court commented. Further, as to the first attack, the prisoner himself had not informed anyone of a dispute with the gang, but merely expressed a desire to be moved for racial or cultural conflict reasons. Since there is no constitutional right to be housed with members of one's own race, culture, or temperament, the denial of his request did not violate his rights.

     Lindell v. Houser, No. 04-2020, 2006 U.S. App. Lexis 8066 (7th Cir.).

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     Editor's Note: On the issue of adoption of pagan religions by white supremacist groups, See "Developments in the Law--In the Belly of the Whale: Religious Practice in Prison," 115 Harv. L. Rev. 1891, 1903-04 (2002).

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New Mexico prisoner incarcerated in California prison failed to state a claim against New Mexico correctional authorities for alleged violations of his rights in connection with prisoner classification hearings and alleged denial of adequate recreation.

     A New Mexico prisoner incarcerated in California filed a federal civil rights lawsuit against New Mexico Corrections Department defendants for alleged unconstitutional classification and denial of recreation. The prisoner is serving a sentence for the murder of a correctional officer in New Mexico, and has been housed in various prisons in New Mexico, Illinois, Minnesota, and California during his incarceration. Since 1994, he has been confined at the Pelican Bay State Prison in California, under the Interstate Corrections Compact (ICC), which permits inmates to be transferred between states for confinement. N.M. Stat. § 31-5-17; Cal. Penal Code § 11189.

     His lawsuit, filed in a New Mexico federal trial court in 2003 against several New Mexico officials, claimed that the defendants violated his Eighth and Fourteenth Amendment rights by unlawfully confining him in administrative segregation for 17 years, denying him a classification hearing in accordance with New Mexico law for the last nine years during his incarceration in California, and in failing to comply with the ICC and classify him under New Mexico laws. He also claimed that he was denied recreation in California and that California officials improperly failed to conduct classification hearings in accordance with New Mexico Department of Corrections policies and procedures.

     Most of his claims were dismissed, leaving only an Eighth Amendment claim for denial of adequate recreation and a 14th Amendment claim for alleged denial of due process regarding classification. The trial court ultimately dismissed these claims also, finding that the prisoner was not in administrative segregation, but rather in a high security unit due to past violent behavior, that his classification in California is "no different" than it would be in New Mexico, that his classification cannot be grieved in New Mexico, and that his provided recreation met the accreditation standards of the American Correctional Association. It also found that the prisoner had no due process right to a particular classification in prison.

     A federal appeals court upheld this result, although on other grounds. It noted that his claims concern his incarceration in California and actions taken by prison officials there who are responsible for his classification and conditions of confinement. The New Mexico corrections officials, the court pointed out, have "no say" in his classification in California and they can't taken "any affirmative action" on his conditions of confinement. In essence, the plaintiff prisoner brought his claims in the wrong federal court and named the wrong defendants, the court concluded.

     The prisoner admitted that he received classification hearings under California law and procedures. While he cited a provision in the ICC stating that such classification hearings should be governed by the law of the sending rather than the receiving state, the appeals court found that this provision did not support a federal civil rights claim "unless it creates a liberty interest protected by the due process clause of the Fourteenth Amendment." The court concluded that no such liberty interest was created. Additionally, New Mexico Corrections Department policies state that inmates transferred to another state prison system will observe the receiving state's policies, rules, and procedures related to classification, case management, and discipline. Under this policy, the court found, it was clear that New Mexico had not retained authority over classification or recreation decisions.

     The court found that the "ICC does not command California to administer the classification and recreation rules of the various states from which its prisoners have been transferred."

     Garcia v. LeMaster, No. 04-2280, 439 F.3d 1215 (10th Cir. 2006).

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Federal appeals court finds that Bureau of Prisons regulation limiting prisoners' placement in halfway houses to a maximum of ten percent of their sentences violates a statute requiring a determination of eligibility for such placement based on consideration of specific criteria.

     The Federal Bureau of Prisons (BOP) passed a regulation that limits the portion of an inmate's sentence which can be served in a Community Corrections Center (CCC), commonly called a halfway house. The plaintiff prisoner, who wished to be transferred to a halfway house, filed a petition for a writ of habeas corpus, arguing that the regulation adopted was invalid. The trial court struck down the regulation, ruling that it conflicted with statutory requirements in 18 U.S.C. Sec. 3621(b). A federal appeals court has upheld that result.

     The prisoner sought to be transferred to a CCC for 180 days, but under the BOP regulation put into place on February 14, 2005, 28 C.F.R. § 570.20-21, his time in a halfway house was limited to ten percent of his sentence, or 47 days of his 18-month period of imprisonment. The trial court, and the appeals court, found that the regulation misinterpreted the discretion granted to the BOP by 18 U.S.C. Sec. 3621(b), and ordered the BOP to consider "in good faith" whether to transfer the prisoner to a halfway house to serve the final 180 days of his sentence.

     The statute in question provides that

The Bureau shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering--

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence-- (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and

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

     The appeals court found that there was no question that the statute provided the BOP with "broad discretion" to choose the location of an inmate's imprisonment. But it noted that the statute also stated criteria that must be considered by the BOP in making placement determinations. These factors, the court found, must be taken into account, and the regulation was invalid because the BOP cannot "categorically remove" its ability to consider the "explicit factors" set forth by Congress for making placement and transfer determinations.

     Fults v. Sanders, No. 05-3490, 2006 U.S. App. Lexis 8289 (8th Cir.).

     Editor's Note: See also, Woodall v. Fed. Bureau of Prisons, No. 05-3657, 2005 U.S. App. Lexis 27413 (3d Cir.) (Federal prison regulations limiting prisoners' placements in community confinement ruled invalid by federal appeals court).

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Pennsylvania probation officials and employees could not be held liable for a probationer's murder of the 8-year-old sister of his 12-year-old victim based on the failure to act more promptly in seeking to revoke his probation after he violated its conditions by attempting to continue a relationship with the 12-year-old whose morals he had previously been convicted of "corrupting." Mere inaction or failure to act swiftly did not constitute a "state-created danger."

     A Pennsylvania man pled guilty to "corrupting the morals" of a 12-year-old girl, and was sentenced to 23 months of probation, with conditions including no contact with his victim and no unsupervised contact with any other minor. He was under the supervision of the Westmoreland County Adult Probation Department, and three of its employees. During his probation, he allegedly continuously violated his probation by attempting to carry on a relationship with his 12-year-old victim. Probation officers observed this, and took various actions in response to these violations, including the filing of reports and a request to a city police officer to arrest the probationer. No arrest took place, and before the date for the scheduled probation revocation hearing, the man shot and killed the 8-year-old sister of his 12-year-old victim, allegedly to retaliate against the family for its efforts to prevent him from seeing the 12-year-old victim.

     The family filed a federal civil rights lawsuit allegedly that the "inexplicable delay" of nearly ten weeks in processing the revocation petition and/or the failure to initiate an arrest or detention of the probationer in the face of known probation violations constituted a "state-created danger" which caused the murder of the 8-year-old girl.

     The trial court dismissed the federal civil rights claim, ruling that the state officials or employees did not "use their authority to create an opportunity for harm that would not otherwise have existed," and therefore did not "create" the danger. State law claims for wrongful death were also dismissed on the grounds of immunity under a state statute.

     A federal appeals court upheld this result. Under  DeShaney v. Winnebago Cty. Soc. Servs. Dept., No. 87-154., 489 U.S. 189 (1989), the due process clause of the Fourteenth Amendment does not impose an "affirmative obligation" to protect individuals against private violence by third parties, except in instances where a person is in custody and must be protected. Subsequent case law created an exception to this when state action "creates" a danger to an individual. The elements of such a "state-created danger" claim, the court stated, are:

(1) "the harm ultimately caused was foreseeable and fairly direct;" (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that "the plaintiff was a foreseeable victim of the defendant's acts," or a "member of a discrete class of persons subjected to the potential harm brought about by the state's actions," as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

     The appeals court noted that it had never found a "state-created" danger claim to have merit without the fourth element of the affirmative exercise of state authority, as opposed to simple inaction.

     In this case, the appeals court found, all of the plaintiff's claims were based on failure to act. It concluded that a state cannot "create danger" giving rise to liability for violation of substantive due process by "failing to more expeditiously seek someone's detention, by expressing an intention to seek such detention without doing so, or by taking note of a probation violation without taking steps to promptly secure the revocation of the probationer's probation."

     Bright v. Westmoreland County, No. 05-2005, 2006 U.S. App. Lexis 8074 (3d Cir.).

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

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Federal Religious Freedom Restoration Act did not subject the federal government to lawsuits for damages. Claims for injunctive relief by Jewish prisoners claiming religious discrimination were also moot because of their release from confinement.

     Two former inmates of the Federal Bureau of Prisons (BOP) sued the Bureau and several of its personnel, claiming religious discrimination in violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Secs. 2000bb to 2000bb-4, seeking damages, as well as injunctive relief.. Upholding the trial court's dismissal of the damage claims as barred by sovereign immunity, a federal appeals court found that the RFRA does not contain the kind of "clear and unequivocal waiver" of sovereign immunity required to bring a claim for damages against a federal agency or its employees. (Claims for injunctive relief were found to be moot as to one of the plaintiffs, who was already out of prison, and became moot as to the second prisoner when he was also released from prison while the case was pending).

     The case involved two Jewish prisoners who claimed that they suffered various religion-based discrimination, including denial of access to rabbis, the serving of non-kosher meals to them, refusal to allow them an opportunity to pray regularly, etc.

     The RFRA provides that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government can demonstrate that the application of the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." The U.S. Supreme Court held in City of Boerne v. Flores, No. 95-2074, 519 U.S. 926 (1996), that Congress lacked the constitutional authority to enforce RFRA against the states, but subsequent case law has assumed that it can be enforced against the federal government, including against federal prisons.

     The section providing for relief for a RFRA states that a person whose religious exercise has been burdened may "obtain appropriate relief against a government." It is clear, the appeals court noted, that the United States government may not be sued without its consent, and that it is immune, as a sovereign, from lawsuits except to the extent that waives that immunity. Such waivers "may not be implied," and to state a claim that the U.S. government is liable for awards of money damages, the waiver of sovereign immunity must "extend unambiguously to such monetary claims."

     While the RFRA makes it clear that its references to "government" include the U.S. government, that it authorizes "appropriate relief" against a government, it does not contain an "unequivocal waiver" of the U.S. government's sovereign immunity as to money damages for a violation of the Act. While it is clear that the BOP may be sued for various forms of relief, such as injunctive relief, in particular circumstances, the court found that a "plausible reading" of the "appropriate relief" provision is that it covers equitable relief but not money damages. This was the case, the court found, given Congress's awareness of the importance of sovereign immunity and the silence of the statute on the subject of damages.

     The court held, therefore, that the RFRA did not waive the federal government's sovereign immunity for damages.

     Webman v. Fed. Bureau of Prisons, No. 05-5031, 2006 U.S. App. Lexis 7540 (D.C. Cir.).

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

     Editor's Note: While no other federal court of appeals, other than the case reported above, has evidently addressed this precise issue, at least five district courts have concluded that RFRA's reference to "appropriate relief" is not an unequivocal waiver of sovereign immunity for damages. See Lepp v. Gonzales, 2005 WL 1867723, at *8 (N.D. Cal. Aug. 2, 2005); Pineda-Morales v. De Rosa, #03-4297, 2005 U.S. Dist. Lexis 37179, 2005 WL 1607276, at *13 (D.N.J. July 6, 2005); Jama v. INS, #97-3093, 343 F. Supp. 2d 338, 372-73 (D.N.J. 2004); Tinsley v. Pittari, 4:95-CV-907, 952 F. Supp. 384, 389 (N.D. Tex. 1996); Meyer v. Fed. Bureau of Prisons, #95-02263, 929 F. Supp. 10, 13-14 (D.D.C. 1996); cf. Commack Self-Serv. Kosher Meats Inc. v. New York, #96CV2313, 954 F. Supp. 65, 68-70 (E.D.N.Y. 1997); Rust v. Clarke, 4:CV92-3107, 851 F. Supp. 377, 380-81 (D. Neb. 1994); see also Mack v. O'Leary, #95-1331, 80 F.3d 1175, 1177 (7th Cir. 1996)(dictum) (referencing the "appropriate relief" language and mentioning that "there is no indication of congressional intent to abrogate the states' Eleventh Amendment immunity from suit"), vacated sub nom. O'Leary v. Mack, #96-1680, 522 U.S. 801, 118 S. Ct. 36, 139 L. Ed. 2d 5 (1997).

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Administrative Liability

     Prison superintendents could not be held vicariously liable for alleged violations of inmate's constitutional rights. No personal involvement was shown in any action which allegedly resulted in the prisoner's placement in a restricted housing unit without due process. Ford v. Wolfe, No. 05-2136, 156 Fed. Appx. 499 (3rd Cir. 2005).

AIDS Related

     HIV positive prisoner could not pursue claim for damages for alleged violation of Privacy Act, 5 U.S.C. Sec. 552a, based on alleged disclosure of his medical records by dental hygienist to another inmate, in the absence of a showing that his alleged mistreatment by other prisoners and prison staff members was caused by the disclosure. In this case, there was evidence that other prisoners knew about his HIV status already and that his HIV-positive status could have been discovered by anyone observing the medications he took, which he did not attempt to conceal. Clark v. Bureau of Prisons, No. Civ.A. 03-0859, 407 F. Supp. 2d 127 (D.D.C. 2005).

Diet

     State prison officials did not violate diabetic prisoner's rights by requiring a prison to serve a "heart healthy" diet to all inmates. The prisoner did not show that the diet was medically improper for a diabetic or that the diet was the cause of diabetic complications he allegedly suffered. Baird v. Alameida, No. CV 02-06887, 407 F. Supp. 2d 1134 (C.D. Cal. 2005).

DNA

     New York statute mandating that certain categories of convicted felons provide DNA samples for inclusion in a state database did not violate prohibitions on unreasonable search and seizure or improperly retroactively enhance the punishment of the felons' crimes. Grant v. Goord, No. 04-3809, 155 Fed. Appx. 551 (2nd Cir. 2005).

Employment Issues

     Termination of female correctional employee after she married a former inmate did not violate her right to freedom of association or to maintain intimate relationships. The "anti-fraternization" rule applied had a reasonable relationship to legitimate interests in maintaining institutional security in correctional facilities. Lape v. Pennsylvania, No. 05-1094, 157 Fed. Appx. 491 (3rd. Cir. 2005).

Federal Tort Claims Act

     A federal prisoner's lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80, alleging that he was injured as a result of a negligent failure to train him to use machinery safely during his prison employment was barred by the provisions of the Federal Prison Industries' Inmate Accident Compensation (IAC) system under 18 U.S.C. Sec. 4126. Cordoba v. Morrison, No. 04-3642, 155 Fed. Appx. 933 (8th Cir. 2005).

Inmate Funds

     Under North Dakota law correctional officials had statutory authority to charge a prisoner's account for the full cost of dental services he received, including an "after hours" fee of $78 billed by the dentist. Wheeler v. Gardner, No. 20050166, 708 N.W.2d 908 (N.D. 2006).

Mail

     A single instance of opening a letter from a prisoner's mother outside of his presence was not sufficient to violate his right of access to the courts, even if it was legal mail, properly marked, with the envelope stating "P.O.A." (power of attorney) and that it contained legal documents from court records. There was no indication of any pattern of censorship of such mail or any other actions that would impede the prisoner in accessing the courts. Additionally, a power of attorney does not confer any right to represent a person in court, so there was no issue of attorney-client confidentiality, and court documents, if enclosed, were court documents also not entitled to any confidentiality. Bloom v. Muckenthaler, No. 93,574, 127 P.3d 342 (Kan. App. 2005).

Medical Care

     Failure by jail nurse to be "more persistent" when pretrial detainee did not respond when she called his name twice to receive his seizure medication, and alleged failure to do anything else to make sure that he received his medicine did not show that she acted with deliberate indifference to his serious medical needs. It was, at most, negligence, which could not be the basis for a federal civil rights claim over his subsequent death from a seizure. County of El Paso v. Dorado, No. 08-03-00421-CV, 180 S.W.3d 854 (Tex. App. El Paso 2005).

     Prisoner with an allergy to elastic who suffered a "minimal" skin irritation from contact with elastic contained in his underwear did not show that prison officials and medical personnel acted with deliberate indifference to a serious medical need. Evidence showed that he was provided medical attention and treatment, and the mere fact that he disagreed with the treatment provided did not alter the attempt to provide for his needs. Martin v. Donaghue, No. 3:06CV007, 407 F. Supp. 2d 984 (N.D. Ind. 2006).

     Diabetic prisoner failed to show that prison doctors were deliberately indifferent to his medical needs when there was evidence that they had prescribed insulin for him, adjusted his insulin levels, and provided him with necessary instruments to perform self-monitoring of his blood sugar levels. Boomer v. Deperio, No. 03-CV-6348, 405 F. Supp. 2d 259 (W.D.N.Y. 2005).

Medical Care: Dental

     Incident in which prisoner broke two front teeth was not a dental injury requiring emergency care, so that a delay in treatment did not amount to deliberate indifference to a serious medical need by the private prison-management company managing the facility. Further, the evidence showed that he did not initially ask for emergency care, and that he did not suffer pain which required anything more than over-the-counter medications. Olivas v. Corrections Corporation of America, No. Civ.A.4:04-CV-511, 408 F. Supp. 2d 251 (N.D. Tex. 2006).

Prison and Jail Conditions: General

     Constant illumination in prisoner's cell in a security housing unit was not cruel and unusual punishment. While the prisoner claimed that it prevented him from sleeping, it was merely a single low-watt bulb which even the plaintiff agreed was not bright enough to read or write by. Wills v. Terhune, No. 1:CVF986052, 404 F. Supp. 2d 1226 (E.D. Cal. 2005).

     Detainee's claim that toilet paper had been withheld from him was insufficient to state a due process claim under the Fourteenth Amendment when he merely had been made to wait over one hour for toilet paper and he presented no evidence concerning how frequently such incidents occurred. Beltran v. O'Mara, No. 04-cv-071, 405 F. Supp. 2d 140 (D.N.H. 2005).

Prisoner Assault: By Inmates

     Prisoner failed to show that an assault on him by another inmate was foreseeably caused by any failure of correctional employees or officials to comply with his requests for protective custody or failure to address the presence of gangs at the facility. His request for protective custody was based on an incident at another facility, and the assault in question occurred more than a year after that request was denied. Further, there was no evidence showing any link between the unknown prisoner who assaulted the plaintiff and any prison gang. Donato v. State of New York, 807 N.Y.S.2nd 456 (A.D. 3rd Dept. 2006).

Prisoner Discipline

     Disciplinary hearing determinations that prisoner was guilty of violating prison rules against possession of a weapon and failing to comply with a frisk search were supported by substantial evidence, including a written misbehavior report and testimony at the hearing. Hemphill v. Selsky, 808 N.Y.S.2d 503 (A.D. 3d Dept. 2006).

Prisoner Suicide

     Correctional officers were not liable for failing to prevent pre-trial detainee's suicide. They had no reason to know that she was likely to kill herself, since she had not previously threatened or attempted to do so, and the mere fact of her intoxication, standing alone, was insufficient to put them on notice of the risk of suicide, particularly when she had been detained on previous occasions for public intoxication without incident. Cruise v. Marino, No. 3:01-2310, 404 F. Supp. 2d 656 (M.D. Pa. 2005).

     County sheriff was entitled to qualified immunity from personal liability for failing to prevent pretrial detainee suicides at the jail, given that there was no evidence indicating that he was personally aware that detainees previously had considered suicide, and there was also no evidence that he personally directed any actions concerning the detainees during their detention. Mann v. Lopez, No. Civ.A. SA05CA0527, 404 F. Supp. 2d 932 (W.D. Tex. 2005).

     County and sheriff were not liable for detainee's suicide when the jail had procedures in place to screen detainees for suicidal tendencies and the detainee showed no signs of any suicidal intentions during three weeks of detention prior to killing himself. Keehner v. Dunn, No. 05-2136, 409 F. Supp. 2d 1266 (D. Kan. 2005).

Prisoner Transportation

     An Alaska state statute which required that a prisoner, upon release be returned to the place of his arrest was satisfied by returning him to the nearest community to his actual home where he was arrested when his home was 3.5 miles by footpath or skiff from the nearest community. Wilson v. Department of Corrections, No. S-11120, 127 P.3d 826 (Alaska 2006).

Religion

     Prison's refusal to allow a Muslim inmate to perform a "Khutba sermon" during a weekly "Jumu'a" prayer meeting was not a violation of his right to exercise his religion under either the First Amendment or the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc. Prison officials allowed the use of a video-recorded Khutba sermon by a qualified individual each Friday when there was no qualified person to perform the sermon live. Prison officials had a compelling governmental interest in avoiding the "elevation" of one inmate to a position of religious leadership over others, and allowing a tape recorded presentation of the sermon was the least restrictive means of furthering that interest. Shabazz v. Arkansas Department of Correction, No. 04-3852, 157 Fed. Appx. 944 (8th Cir. 2005).

     While a prisoner stated a claim under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc, for money damages and injunctive relief based on refusal to allow him to use his Islamic religious name to send or receive mail, trial court declined to issue a preliminary injunction requiring that he be allowed to use that religious name on his mail because the merits of his claims were "tenuous," and he could obtain damages if he prevailed. Further, any harm he suffered was not "irreparable," since he could still receive mail under his incarceration name, and could use his religious name inside the mail. Shidler v. Moore, No. 3:05-CV-804, 409 F. Supp. 2d 1060 (N.D. Ind. 2006).

     Texas state prison policy prohibiting a Muslim prisoner from having a beard did not violate his right to religious freedom under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc, because of the need for accurate pictures of inmates for security purposes. Additionally, he was not denied equal protection by the fact that inmates with certain skin conditions were allowed to have quarter-inch beards, since the policy prohibiting beards for other reasons was equally applied to all religious groups and was adopted for security purposes. Gooden v. Crain, No. 6:04cv127, 405 F. Supp. 2d 714 (E.D. Tex. 2005).

Smoking

     Prisoner suffering from asthma failed to show that prison officials acted with deliberate indifference to either his request for non-smoking housing or to his asthma itself. Court notes that prisoner was provided with the option of residing in special or segregated housing, and was moved to non-smoking housing after being housed with smokers for a period of 17 weeks. This was not unreasonable, given crowding problems at the facility and the fact that safety issues had to take precedence over a prisoner's smoking preferences. Bartlett v. Pearson, No. 1:04CV1293, 406 F. Supp. 2d 626 (E.D. Va. 2005).

Strip Searches: Prisoners

     A county jail's policy of strip searching all arrestees detained on warrants for failure to appear in court on misdemeanor or traffic charges violated the Fourth Amendment, as did its policy of strip searching all such arrestees when they were sent back to the jail for processing after being ordered released by a court. Calvin v. Sheriff of Will County, No. 03C3086, 405 F. Supp. 2d 933 (N.D. Ill. 2005).

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     Medical Care: Clinical Practice Guidelines (CPGs) of the Federal Bureau of Prisons. These provide guidelines for infectious disease prevention and detection, and treatment of inmates and correctional employees who face exposure to infectious diseases in correctional facilities. The clinical guidelines referenced are being made available to the public for informational purposes only. The Bureau does not make any promise or warrant these guidelines for any other purpose, and assumes no responsibility for any injury or damage resulting from the reliance thereof. Proper medical practice necessitates that all cases be evaluated on an individual basis and that treatment decisions be patient-specific. Topics covered (and the year they were issued or revised) include: Asthma (2000) Coronary Artery Disease (2001) Depression (2001) Detoxification of Chemically Dependent Inmates (2000) Diabetes (2002) Gastroesophageal Reflux Disease (GERD) Dyspepsia & Peptic Ulcer Disease (2001) Headache (2003) Hepatitis - Viral (2005) Hypertension (2004) Lipid Disorders (2006) Methicillin-Resistant Staphylococcus Aureus (MRSA) Infections (2005) Preventive Health Care (2005) Tuberculosis (2004) Varicella Zoster Virus Infections (2002). Also of possible interest is the BOP's July of 2005 Health Services National Formulary, an 82-page document listing medications that are considered by the organization's professional staff to ensure high quality, cost-effective drug therapy for the prison population served, and the BOP's Report on Infectious Disease Management.

     Sentence Computation: "Interaction of Federal and State Sentences When the Federal Defendant is under State Primary Jurisdiction," by Henry J. Sadowski, Regional Counsel, Northeast Region, Federal Bureau of Prisons. (November 25, 2005). This memo details how the Federal Bureau of Prisons computes federal sentences imposed when a defendant is under the primary custodial jurisdiction of state authorities.

     "Supermax" Prisons: 2005 Annual Report, State of Wisconsin Department of Corrections Wisconsin Secure Program Facility. 25 pgs.

     Terrorism and Homeland Security: Federal Bureau of Prisons proposes new regulations to limit communications by prisoners suspected of involvement in terrorist activity. 71 Federal Register No. 63, pgs. 16520–16525 [E6–4766]  (April 3, 2006). [TEXT] [PDF]

Reference:

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

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