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Prisoner stated an adequate claim for denial of access to the courts by alleging that prison officials denied him writing materials and legal materials, and that this resulted in the loss or dismissal of pending litigation.

     A Wisconsin prisoner claimed that correctional officials violated his constitutional right of access to the courts. Specifically, he claimed that he was denied adequate "scribe materials," a desk, a chair, and personal legal property to defend himself in pending litigation in state and federal courts, causing his cases to be lost or dismissed. He also claimed that they refused to allow him access to law books, briefs, transcripts, case law materials and carbon paper.

     His federal civil rights lawsuit against prison officials was dismissed by the trial court because it found that the plaintiff prisoner had failed to show the denial of his right of access to the courts with the required "particularity," he failed to "provide more than general allegations that defendants hindered his ability to pursue these or any other non-frivolous legal actions."

     A federal appeals court, however, reversed, reinstating the prisoner's lawsuit. It noted that a list in Federal Rule of Civil Procedure 9(b) of claims that "must be pleaded with particularity" does not include claims of denial of access to the courts. Instead, the plaintiff prisoner must only plead enough to provide the defendants in the case adequate notice of the basis of his claims.

     It is true, under applicable case law, the court continued, that the prisoner must also allege, in at least minimal detail, the connection between the alleged denial of access to legal materials and an inability to pursue a legitimate challenge to a conviction, sentence, or prison conditions.

     While it would not have been enough for the prisoner merely to claim that the prison did not supply him with writing materials, it was adequate for him to have further asserted that, as a result, he lost a case or suffered some other legal setback.

     In this case, the prisoner claimed that the defendants withheld from him materials that any litigant acting as his own lawyer needs "if he is to have the faintest chance" of prevailing in court, and that as a result he lost court cases. While he did not list the cases he lost, which might have made it difficult for the defendants to prepare their defense, he did, in response to their motion to dismiss the lawsuit, submit filings and other documents relating to his numerous lawsuits, which was sufficient to identify the lawsuits he claimed he lost or which were dismissed.

     At some point in the lawsuit, the appeals court stated, the plaintiff prisoner will be required to prove that the lack of access to legal materials or writing supplies caused the loss of one or more of those cases, but he was not required to prove this in his initially filed complaint--merely to allege that there was such a connection.

     Pratt v. Tarr, No. 05-4470, 2006 U.S. App. Lexis 24298 (7th Cir.).

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

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Prison doctor was entitled to qualified immunity on prisoner's claim that he provided inadequate care for his injured leg, based on the record of repeated examinations, wound cleaning, changing of dressings, and medications over a period of several months. Possible negligence during a one-week lapse in antibiotic treatment was insufficient to show deliberate indifference to a serious medical need.

     A prisoner formerly confined to the Elayn Hunt Correctional Center in St. Gabriel, Louisiana claimed that he received inadequate medical care there after he suffered a severe injury to his leg during work release. Specifically, while working on a garbage collection truck, his right leg was crushed below the knee when the truck collided with another vehicle. He underwent immediate surgery and initial recovery at a hospital, where an external fixator was applied to stabilize his injured leg and he was placed on intravenous antibiotics.

     The hospital discharge instructions indicated that he should continue antibiotic treatment and wound cleansing, and should have periodic visits with an orthopedic specialist. He was then admitted to a 24-hour unit at the prison infirmary due to the risk of infection. He was examined by his primary physician on three occasions during a 2-1/2 month period, who issued orders regarding his care on nine occasions. The prisoner allegedly complained of wound related discomfort or apprehension regarding the care of his leg on five occasions.

     After his release from prison, he sought private medical treatment, and was diagnosed with osteomyelitis (an inflammation of the marrow and hard tissue of the bone, usually caused by a bacterial infection), requiring multiple corrective surgeries.

     The prisoner sued prison doctors for alleged inadequate medical care. A defendant doctor appealed from the trial judge's refusal to dismiss the lawsuit. He argued on appeal that he was entitled to qualified immunity, because the prisoner failed to show that he acted or failed to act with deliberate indifference to a substantial risk of serious harm.

     A federal appeals court agreed:

A prison official acts with deliberate indifference "only if [(A)] he knows that inmates face a substantial risk of serious bodily harm and [(B)] he disregards that risk by failing to take reasonable measures to abate it." Unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor does a prisoner's disagreement with his medical treatment, absent exceptional circumstances. "Furthermore, the decision whether to provide additional treatment 'is a classic example of a matter for medical judgment.'" A showing of deliberate indifference requires the prisoner to submit evidence that prison officials "'refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." "Deliberate indifference 'is an extremely high standard to meet.'"

     The appeals court noted that the doctor examined the prisoner on multiple occasions, and administered medications, and that there was no evidence that prison medical personnel failed to follow the doctor's orders for other care. His leg wound was cleaned, the dressing changed, and the wound examined every day of the prisoner's 73-day stay at the infirmary, with only three possible exceptions. He also received medications every day of his stay at the infirmary, including aspirin, Zoloft, Dolobid, Flexeril, Elavil, Cephalexin, and Cipro. The leg was x-rayed on at least three occasions, and when the prisoner was released from the infirmary, he was given a follow-up appointment at an "Ortho Clinic" off-site. The prisoner was also provided with a wheelchair, and on a number of occasions he stated to medical personnel that he had "no complaints" of pain or discomfort, according to medical records.

     The record also allegedly showed that the prisoner himself failed to comply with medical instructions to keep his leg elevated, or to stay in bed, and once refused to have his vital signs taken.

     The appeals court agreed that the prisoner's open wound posed a substantial risk to his health, and that there was no question that the doctor was aware of this risk. But the prisoner failed to show that the doctor's conduct amounted to deliberate indifference to that risk, given the record of care and treatment provided. The medical records did not show that the prisoner's symptoms indicated any need for additional medical care, particularly as his wound appeared to improve.

     When the doctor subsequently learned of an infection, he prescribed a new antibiotic. While it might have been negligent to have a one-week lapse in antibiotic treatment under the circumstances, during the final two and one half months of the prisoner's incarceration, this was insufficient to show deliberate indifference to a serious medical need.

     Gobert v. Caldwell, No. 05-30820, 2006 U.S. App. Lexis 22216 (5th Cir.).

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Prison nurse was not entitled to qualified immunity on prisoner's claim that she essentially offered him no treatment and returned him to his cell when he reported severe chest pain, despite his history of serious heart problems, including a prior heart attack.

     A Texas prisoner claimed that a prison nurse acted with deliberate indifference to his serious medical needs when he was experiencing severe chest pains. He argued that she essentially offered no treatment options to him, and that this was not objectively reasonable in light of his history of cardiac problems.

     A federal trial court denied the nurse's motion for qualified immunity, and a federal appeals court upheld the rejection of this defense based on the circumstances alleged.

     When the inmate, who has a history of serious heart problems, including a prior heart attack, was initially taken to the prison infirmary for chest pain and vomiting, a doctor prescribed oxygen and nitroglycerin, and approximately 15 minutes after receiving the nitroglycerin, his chest pain ceased, and he was returned to his cell. He returned to the infirmary two days later, and informed the nurse that he had experienced severe chest pain for approximately 20 minutes. She took his blood pressure and sent him to the prison pharmacy to have his nitroglycerin prescription refilled. Because the pharmacy was closed, he returned to the infirmary, and repeated his request that the nurse provide him with nitroglycerin.

     The nurse allegedly accused him of being "argumentative," stated that his blood pressure was normal, and ordered him to leave. He then allegedly reminded her that he was there for chest pain and not blood pressure, and requested an electrocardiogram and nitroglycerin. She refused these requests and had security escort him to his cell. After four hours of severe pain, he contends, he returned to the infirmary and was given nitroglycerin by a different medical professional. He claims that by the time his pain ceased, blood vessels in his left eye had burst, causing it to fill with blood.

     The federal appeals court, taking the prisoner's allegations as true, found that when a nurse knows that a prisoner has a heart condition, had previously suffered a heart attack, was experiencing severe chest pain, and does not have his prescribed heart medication, it can be inferred from the circumstances that she was subjectively aware of a substantial risk of harm to the prisoner's health. The plaintiff prisoner claimed that, despite this subjective awareness, she did nothing more than direct him to the pharmacy, and then merely sent him back to his cell, without any treatment at all.

     The appeals court further noted that there was no indication in the record that the nurse did not have access to nitroglycerin or that she was unable to offer the prisoner any other treatment options. If the prisoner's claim that she "turned a deaf ear to his request for medical treatment" was true, this would constitute deliberate indifference to a serious medical need under the circumstances. The nurse, therefore, was not entitled to qualified immunity, and the case was returned to the trial court for further proceedings.

     Easter v. Powell, No. 04-11332, 2006 U.S. App. Lexis 25025 (5th Cir.).

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Prison rule barring prisoners from talking to each other while in the dining hall did not violate their rights to free speech, due process of law, or constitute cruel and unusual punishment.

     Twenty-three inmates at a Delaware prison claimed that it violated their constitutional rights to prohibit them from speaking during meals in the prison dining hall.

     A federal trial court dismissed the prisoners due process claims and vicarious liability claims against the state's former Attorney General as frivolous under 28 U.S.C. Sec. 1915A(b)(1). The trial court subsequently awarded summary judgment to correctional officials on remaining claims under the First, Eighth, and Fourteenth Amendments.

     A federal appeals court agreed with the trial judge's dismissal of the due process claims and vicarious liability claims against the former Attorney General. It noted that the former Attorney General did not supervise the correctional officers and employees, and could not be held liable in a federal civil rights lawsuit based on a theory of vicarious liability.

     Further, the appeals court found that the plaintiffs failed to show that they had been deprived of a constitutionally protected liberty interest. "Losing privileges, receiving disciplinary action and being re-classified at a certain security level," the court stated, did not amount to "atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of prison life."

     The appeals court found that the appeal lacked "arguable merit" because the "no talking during meals" policy was not shown to have violated the prisoners' constitutional rights. A prison regulation allegedly impinging on a prisoner's constitutional rights, the court stated, is valid as long as the regulation "is reasonably related to legitimate penological interests. The appeals court agreed that the "no talking" policy was rationally related to legitimate interests the prison had in maintaining prison safety.

     The trial court found that prison officials adequately established that the dining hall was a "particularly dangerous" place in the prison, and that talking among the inmates increased that danger by creating noise that could distract the guards on duty in the dining room, and by facilitating group action by inmates who intended to attack the guards. Further, as to any supposed violation of the right to free speech, the rule was "content neutral."

     Additionally, the inmates were found to have "alternative means" for exercising their First Amendment rights, since they are allowed to talk with each other while outside the dining hall, "which is the majority of the day." The court also noted that deference must be given to prison officials in their assessment that attempting to accommodate the prisoners' request to talk during meals would have had a significant impact on fellow inmates, corrections personnel, and the allocation of resources in the prison.

     Hendrickson v. McCreanor, #05-4340, 2006 U.S. App. Lexis 24906 (3rd Cir.).

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Correctional officer to whom prisoner indicated suicidal feelings did not act with deliberate indifference when he immediately passed on the prisoner's request to see a counselor and returned to the cell several times to see if he was ok. Other officers, who knew of the request to see a counselor, but did not know the reason for the request, could not be found to have acted with deliberate indifference to a suicide threat they did not know about.

     A prisoner in the Sheridan Correctional Center in Sheridan, Illinois, committed suicide in his cell. A lawsuit filed by the prisoner's mother and estate claims that correctional officers at the facility were deliberately indifferent to a substantial risk that the prisoner would take his own life.

     The lawsuit claimed that, approximately fifty-five minutes before the suicide was discovered, the prisoner told the correctional officer that he wanted to see a prison crisis counselor because he was "feeling suicidal." The officer apparently relayed this request up the chain of command, but as it was passed along, the information that the prisoner was "feeling suicidal" was evidently dropped, and the message was passed along as a "generic request" to see the counselor.

     In the meantime, however, the officer on duty allegedly returned to the prisoner's cell and told him that the counselor had been called and would respond as soon as she could. The counselor had stated that she was then occupied in escorting a group of 200 inmates from the gym back to their cells. The prisoner allegedly then told the officer that he was all right and could wait until the counselor arrived. Officers, according to the prison, checked on the prisoner twice more in the next 30 minutes, and nothing appeared wrong. At some point before the next cell check, about twenty minutes after the last, the prisoner hanged himself in his cell with the use of a bed sheet.

     A federal trial court rejected the argument that the officers' conduct constituted deliberate indifference, and a federal appeals court upheld this result.

     Three of the defendant officers, the appeals court noted, were not shown to have been aware that the prisoner was at substantial risk for committing suicide. They only knew that he had requested to see the counselor, without knowing the reason for the request. They, accordingly, could not be found to have acted with deliberate indifference to a threat of suicide they did not even know about.

     The officer on duty, to whom the prisoner relayed his suicide threat, on the other hand, immediately notified the control room of the prisoner's request to see the crisis counselor, and then returned to the cell to inform the prisoner that the counselor had been called and would be there as soon as possible. Further, at that time, the prisoner responded that he would be all right until the counselor arrived, so that the officer could believe that the threat had then "substantially abated" fifteen minutes after the initial threat.

     This officer, far from acting recklessly or intentionally disregarding a known risk of suicide, also returned to the prisoner's cell a number of times to make certain that nothing was wrong, and then passed on responsibility for monitoring the prisoner to another officer, who did make a subsequent cell check. Nothing in the record supported an inference that the officer to whom the prisoner had expressed his suicidal feelings intentionally disregarded a known, imminent suicide risk.

     Collins v. Seeman, No. 05-1309, 2006 U.S. App. Lexis 23092 (7th Cir.).

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Prisoner transferred to Supermax facility received all due process required in hearing even though the findings were eventually overturned and he was transferred out again. Prisoner himself failed to pursue claim that the hearing should have been held before his transfer.

     A Wisconsin prisoner claimed that his constitutional rights were violated when he was transferred to a "Supermax" facility allegedly without due process, and when he was allegedly retained there as punishment for a "fabricated" disciplinary charge. Upon screening the complaint under 28 U.S.C. Sec. 1915A, the trial court dismissed all claims except those related to the initial transfer.

     Strangely enough, the appeals court noted, the prisoner decided not to dismiss that claim, so that the trial court then dismissed the entire lawsuit. The prisoner then appealed the dismissal of his other claims, specifically concerning his retention at the Supermax in alleged retaliation for engaging in constitutionally protected activity.

     The prisoner, then in the general population at the Columbia Correctional Institution (CCI) at Portage, Wisconsin, was allegedly transferred without warning to the Wisconsin Secure Program Facility (WSPP) in Boscobel, the "harshest and most restrictive" prison in the state. He was only told that his transfer was based on "security concerns." He subsequently received a conduct report, written by a CCI guard, charging him with "possession of intoxicants." This report was allegedly "short on details," but also said that four anonymous inmates said that they had seen him with marijuana.

     The prisoner requested that the guard and the four confidential informants attend his disciplinary hearing so that he could question them, and requested copies of the evidence against him, including the statements of the confidential informants, and submitted a written statement in his defense, asserting that he had been seen only with loose tobacco from the prison canteen, not marijuana.

     He was denied the request to have the witnesses present, and the only evidence presented against him at the hearing was the conduct report and the informants' statements. He was never provided with copies of the statements, was found guilty of possessing intoxicants, and was sentenced to 8 days' adjustment segregation and 360 days' programs segregation. Direct appeals and attempts to challenge the disciplinary procedures through the inmate grievance system were both unsuccessful.

     A state court later reversed the disciplinary conviction and ordered the prisoner's release from program segregation and the expungement from his record of the charge and finding of guilt, finding that the hearing officers had provided the court with a record that was "neither complete nor persuasive." The court also found that the prisoner had only been provided with "notice" of the substance of the confidential informants' statements, including mere "approximations" of the statements, which left out or "significantly altered critical factual details." After 396 days in the Supermax facility, he was sent to another prison and placed in the general population there.

     The prisoner then filed his federal civil rights lawsuit. The trial court found that the prisoner had a liberty interest in avoiding transfer to the "Supermax" facility, based on the drastic change in his conditions of confinement in his transfer from a facility where he had far better conditions. This was not a case, the court noted, where the prisoner was already confined in segregation before his transfer. The prisoner's transfer allegedly occurred without any due process at all, and when he finally did receive a hearing, there was no indication that it addressed at all the issue of his initial transfer to the "Supermax" facility.

     The trial court rejected the prisoner's claims that the correctional officer who filed the disciplinary report against him violated his due process rights, finding that a prison official's use of false evidence is not a per se violation of procedural due process, as long as the prisoner was given the necessary procedural safeguards that his hearing, the process in itself, is a constitutionally adequate safeguard against the arbitrary actions of individual prison officials.

     A federal appeals court ruled that the dismissal was proper. Assuming that the prisoner had a protectable liberty interest in not being retained in the supermax facility, the consequence would only be that he would be entitled to due process. In the context presented, the court found due process merely requires that he receive advance written notice of the charges, the chance to present testimony and documentary evidence to an impartial decision-maker, and a written explanation, supported by at least 'some evidence' in the record, for any disciplinary action taken.

     The appeals court found that all of these conditions were met, and that the fact that the outcome was eventually overturned, did not mean that the initial hearing failed to satisfy minimal procedural call. Additionally, the fact, if it were true, that evidence against the prisoner had been made up would "similarly not cast doubt on the basic procedures that were followed." The court noted that the "system has direct remedies for perjured testimony," and that, in this case, the prisoner received "all the process he was due."

     The prisoner failed to allege that there had been any retaliation against him for exercise of a constitutionally protected right, and decided, "despite the best efforts of the district court to persuade him otherwise," to drop his "strongest claim that he was transferred from the general population" of one prison to the Supermax facility without due process of law. His remaining claims, the appeals court found, were dropped or dismissed.

     Lagerstrom v. Kingston, No. 06-1521, 2006 U.S. App. Lexis 22741 (7th Cir.).

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California state Department of Corrections could be held liable for failure to remedy hostile work environment caused by male prisoners' sexual harassment of female correctional officers. Further proceedings ordered on jury's finding that three prison administrators violated female correctional officer's First Amendment rights in allegedly retaliating against her for complaining about the harassment.

     The question before a federal appeals court was "May a state department of corrections be held liable for prison officials' failure to correct a hostile work environment that is the result of male prisoners' sexual harassment of female guards?" The U.S. Court of Appeals for the Ninth Circuit, in a case brought by a female former correctional officer against the California Department of Corrections and Rehabilitation (CDCR) and three Pelican Bay State Prison administrators, answered that question, "Yes."

     The female former officer claimed that she encountered a sexually hostile environment created by male prison inmates at the facility. In particular, she asserted, she confronted a pervasive practice at the prison of inmate exhibitionist masturbation directed at female officers. She also claimed that she was retaliated against and ultimately fired due to her repeated complaints concerning this problem.

     A jury in her federal lawsuit agreed, finding that the CDCR maintained a hostile work environment and retaliated against the officer in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and that the three administrators also retaliated against her for engaging in constitutionally protected speech (complaining about the sexual harassment" in violation of 42 U.S.C. Sec. 1983. The jury awarded the plaintiff $500,000 in economic damages, and $100,000 in non-economic damages, as well as $100 in punitive damages against each of the three prison administrators.

     The trial judge also granted injunctive relief against the Department taking any actions for the purpose or with the effect of maintaining a sexually hostile work environment at the prison or for the purpose or with the effect of retaliating against any prison employee for complaining about or otherwise opposing such practices.

     A federal appeals court upheld this result on the sexual harassment claim, but ordered reconsideration of the First Amendment claim in light of the U.S. Supreme Court's decision in Garcetti v. Ceballos, No. 04-473, 126 S. Ct. 1951 (2006), also ordering reconsideration of the amount of the jury's damage award for the same reason, but upholding the trial court's grant of injunctive relief. In Garcetti, the Court ruled that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The issue on remand, therefore, on the First Amendment, was whether the plaintiff officer, in reporting her complaints about the alleged sexual misconduct of inmates, was making statements within the context of her official duties. The appeals court found that some of her complaints, to elected officials and a state agency, were clearly outside her job duties, were on matters of public concern, and were therefore protected speech, but that other internal forms she filed were part of her job duties.

     Evidence in the case showed that male inmates masturbated in front of the plaintiff female officer, ejaculated on a tray she was clearing during a meal shift, screamed obscenities at her, and threatened to kill or harm her. Inmates masturbated while shouting her name and making crude remarks, such as one prisoner's proclamation that he was "coming inside" her. The plaintiff officer indicated that she was, at times, discouraged from writing up inmates for such behalf, or that her written forms reporting such behavior were even, at times, discarded or altered to charge lesser offenses, such as "willful delay of a peace officer."

     She also made complaints to her superiors concerning this sexual harassment, but alleged that they failed to take effective steps to remedy the problem. She was also allegedly threatened with retaliation including termination and temporarily relieved of duty in a special housing unit. She further claimed that other female correctional officers in the facility were also regularly subjected to sexually abusive behavior in the special housing unit.

    The officer was subsequently terminated, based on allegations of falsifying facts in a report or making false accusations against a fellow officer. The State Inspector General, subsequently, reporting on its investigation of the officer's claims, found that:

(1) inmates in the SHU "regularly subject female correctional officers to lewd exhibitionism and exhibitionist masturbation"; (2) "supervisors and top administrative staff at Pelican Bay have not responded appropriately to complaints about inmates directing exhibitionist masturbation toward female staff members and have made little effort to take advantage of the options available to control exhibitionist masturbation behavior"; (3) "the security housing unit is not effectively using the prison disciplinary process and available legal sanctions in handling exhibitionist masturbation cases"; (4) Pelican Bay had "stopped referring exhibitionist masturbation cases to the district attorney"; and (5) Warden Ayers had taken "no definitive actions . . . to address exhibitionist masturbation directed at female correctional officers by male inmates." The IG also reported that [one prison employee] ... informed one state investigator that "[t]he reason the inmates hit on [the female correctional officers] is that they're a bunch of lesbians."

     An employer, such as the CDCR, the appeals court noted, may be liable for harassing conduct of employees by non-employees, such as the male prisoners, when the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective action when it knew or should have known of the conduct. The appeals court found that the evidence of this was sufficient to support the jury's finding of liability on the hostile work environment claim.

     The appeals court rejected the defendants' argument that an exception to Title VII be carved out for prisons, due to their "inherently hostile environment," as immune from lawsuits by correctional officers arising from sexual harassment by inmates.

Nothing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates. As the district court found, "even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible." The CDCR is not, by simple virtue of its status as a correctional institution, immune under Title VII from a legal obligation to take such measures and to protect its employees to the extent possible from inmate sexual abuse.

     On the First Amendment issue, on which the jury found that the three prison administrators had unlawfully retaliated against the plaintiff for her constitutionally protected speech on issues of public concern, the appeals court found that some of her speech, such as complaining to elected officials and state agencies, was clearly not part of her job duties, and was clearly protected by the First Amendment. The appeals court also found that the issue of inmate sexual harassment of female officers was a matter of public concern.

     In arriving at its verdict on the First Amendment retaliation issue, however, the jury may have also considered internal forms prepared by the officer within the prison, which, when presented as part of her official job duties, under the cited U.S. Supreme Court case is not constitutionally protected under the First Amendment. Because the jury instructions permitted the jury to consider, along with protected speech, at least some unprotected speech as well, the appeals court ordered further proceedings on the Sec. 1983 First Amendment claim.

     Further, because the jury was not asked to separate out the compensatory damages being awarded on each claim, the reconsideration of the First Amendment claim also required the reconsideration of the damage award. The three $100 punitive damage awards against the three prison administrators, were based on the First Amendment claim, and therefore also must be reconsidered upon remand of the case.

     Freitag v. Ayers, No. 03-16702, 2006 U.S. App. Lexis 23383 (9th Cir.).

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

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Ordering a prisoner to continue working with a defective printing press, which subsequently tore off his thumb could be a violation of the Eighth Amendment, despite the fact that the prisoner originally obtained the specific prison work assignment by voluntarily applying for it.

     A Washington state prisoner was injured by a defective printing press while working at his prison job. He claimed that he had previously told his supervisor about the problem with the press, but that he had been ordered to keep working. The job was one which the prisoner had voluntarily applied for. The injured prisoner filed a federal civil rights lawsuit claiming that the requirement to keep working under the circumstances of the case violated his Eighth and Fourteenth Amendment rights.

     The defendant supervisor was denied qualified immunity by the trial court. A federal appeals court upheld this result.

     The appeals court ruled that, under certain circumstances, dangerous prison working conditions can lead to a viable Eighth Amendment claim, even when the prisoner initially obtained the specific job through a voluntary application process within the prison. The court also held that a prison official is not entitled to qualified immunity when he allegedly orders a prisoner to continue operating equipment that the official has been warned and has reason to believe is unreasonably dangerous.

     The Plaintiff was incarcerated in the Monroe Correction Complex in Washington, and employed in the prison print shop, which produces goods for sale to public agencies or nonprofit organizations. Such employment, according to the court, is desirable because it both requires specialized skill and pays more than ordinary prison labor.

     Prisoners therefore must apply for such jobs, but if they do not secure them, they are instead assigned to work elsewhere, in less favorable job assignments. At the job, the prisoner operated a printing press, and allegedly noticed that the press was dangerously defective. Loose chains caused it to buck and shake. The plaintiff claims that, at one point, the press bucked and almost tore off two of his fingers while he was operating it. He further claims that he told his supervisor about this, and requested that the press be fixed. The supervisor allegedly told the prisoner that they had an urgent printing project, and that there was therefore no time to stop the press for repairs. He was allegedly told to continue working and to "just be very careful."

     He was later injured when the press caught his hand and tore off his right thumb.

     The work assignment, the federal appeals court found, was a "condition of confinement," because the prisoner had no choice but to work in some capacity within the prison. For an Eighth Amendment violation, the court noted, the prisoner must show that the injury suffered was "objectively, sufficiently serious," and that prison officials were deliberately indifferent to his safety in allowing the deprivation to take place.

     The appeals court rejected the argument that the prisoner was not "compelled" to perform work that endangered his life and limb because he had voluntarily applied for the job. That he work at some prison work assignment was required by state law. The appeals court found that, regardless of how a prisoner obtains his work assignment, once he is employed, he is not in a position to direct his own labor, so that his supervisors are not free "to visit cruel and unusual punishment upon him." The prisoner "did not apply" to work with a dangerously defective printing press, the appeals court reasoned.

     The appeals court further found that there was prior clearly established law that forcing a prison inmate employee to work with defective equipment could constitute a violation of constitutional rights.

     If it is true, the appeals court concluded, that the supervisor ordered the prisoner to keep working with the press after he knew that it was malfunctioning and defective, this would constitute an Eighth Amendment violation.

     Morgan v. Morgensen, No. 04-35608, 2006 U.S. App. Lexis 25028 (9th Cir.).

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Access to Courts/Legal Info

     North Dakota prisoner was not entitled to apply directly to the state Supreme Court for a writ barring a prison from requiring him, an allegedly indigent prisoner, to, among other things, pay postage and copying costs for legal documents. Such direct petitions to the state Supreme Court may not be based on the enforcement of the rights of a private person. Wheeler v. Schuetzle, No. 20060074, 714 N.W.2d 829 (N.D. 2006).

Defenses: Statute of Limitations

     While an Indiana state statute sometimes allows the "resuscitation" of refiled lawsuits that otherwise would be barred under the statute of limitations, it did not apply in a prisoner's lawsuit concerning his medical treatment and the alleged use of force against him, when his earlier lawsuit was properly dismissed based on his failure to exhaust his available administrative remedies, which constituted negligence in the prosecution of the first lawsuit. He was therefore barred from pursuing his refiled lawsuit. Thomas v. Timko, No. 3:06-CV-184, 428 F. Supp. 2d 855 (N.D. Ind. 2006).

Disability Discrimination: Employees

     A correctional officer terminated during her probationary period after she exhibited "hysterical behavior" resulting in a psychiatric exam after undergoing training in the use of the baton and disturbance control failed to show that she was subjected to disability discrimination under either federal or New York state law. She failed to establish that the employer's action was taken on the basis of a perception that she was either a drug addict or mentally ill. Almond v. Westchester County Department of Corrections, No. 04 CIV.8222, 425 F. Supp. 2d 394 (S.D.N.Y. 2006).

Disability Discrimination: Prisoners

     Mother of youthful incarcerated son with alleged disabilities, including emotional problems, and auditory and visual hallucinations, as well as other mental health concerns, could not pursue claims for money damages under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sec. 1400 et seq. regarding educational services required to be provided to him, when she failed to show that she provided any educational expenses for her son. Court also rules that neither the Alabama Department of Youth Services (ADYS) nor its employees could be held liable for allegedly not providing the juvenile with services to which he was allegedly entitled under the Americans with Disabilities Ac (ADA), 42 U.S.C. Sec. 12112(a), as the Department and the individual defendants sued in their official capacities were entitled to Eleventh Amendment immunity, and the individuals could not be sued in their individual capacities under ADA. McReynolds v. Alabama Department of Youth Services, No. 2:04-CV-850, 426 F. Supp. 2d 1247 (M.D. Ala. 2006).

Drugs and Drug Screening

     New York prisoner was properly found guilty of refusing a direct order and refusing to comply with urinalysis testing procedures. He claimed to be unable to provide a requested urine sample, and then disregarded a direct order to go to a shower room until he was ready to provide such a sample, despite being told that such disobedience could result in the same punishment as a positive drug test. Medina v. Selsky, 814 N.Y.S.2d 828 (A.D. 3rd Dept. 2006).

Employment Issues

     Former correctional officers who had been charged with drug trafficking failed to assert valid claims for malicious prosecution, false imprisonment, or wrongful termination. There had been probable cause to arrest them, and, while state criminal charges against them were dropped, this was not done in a manner indicating their innocence, but rather was based on a decision to instead pursue possible federal charges. Additionally, on the wrongful termination claim, the officers failed to exhaust their available administrative appeals, and instead decided to voluntarily resign, so that they were not properly "terminated" at all. Law v. South Carolina Dept. of Corrections, No. 26134, 629 .E.2d 642 (S.C. 2006).

     Female former correctional officer failed to show that her firing for entering into a romantic relationship with an inmate, and later marrying him, was based on racial discrimination. While she claimed that she was discriminated against because of her African-American race, as certain white correctional officers who had romantic relationships with prisoners were not fired, those white officers had begun their relationships before their romantic partners were incarcerated, while the plaintiff knowingly entered into a prohibited relationship with a known incarcerated prisoner, serving a life sentence for murder, and who had previously been under her supervision. Burke-Fowler v. Orange County, Florida, No. 05-14899, 447 F.3d 1319 (11th Cir. 2006).

First Amendment

     Prisoner's allegation that a federal correctional officer retaliated against him for his intention to file a grievance against him by taking actions leading to the prisoner's administrative segregation stated a viable claim for violation of the First Amendment. Johnson v. Sadzewicz, No. 05-71083, 426 F. Supp. 2d 635 (E.D. Mich. 2006).

Insurance

     Insurance policy issued to county sheriff's office, in its provisions covering "bodily injury" and "personal injury," did not provide coverage for claims of false imprisonment and malicious prosecution against the office and several of its officers brought by former inmates concerning incidents which occurred over 20 years earlier. The claims accrued at the time of the arrest and incarceration, so that the claims did not occur during the time period of the coverage. North River Insurance Company v. Broward County Sheriff's Office, No. 05-60747 CIV, 428 F. Supp. 2d 1284 (S.D. Fla. 2006).

Mail

     Prisoner's claim that prison officials negligently mishandled or destroyed his legal mail was insufficient to state a federal civil rights claim for violation of his right of access to the courts. The prisoner failed to show that any actual harm to pending litigation resulted from these actions or that officials' actions were anything more than negligence. Strong v. Woodford, No. CV-04-8596, 428 F. Supp. 2d 1082 (C.D. Cal. 2006).

     Prison officials were entitled to qualified immunity in former prisoner's lawsuit claiming that they improperly restricted his ability to subscribe to certain newspaper, magazine, and newsletter publications based on his classification status, which was based on his behavior, as their actions did not violate any clearly established right. Calia v. Weholtz, No. 05-3201, 426 F. Supp. 2d 1210 (D. Kan. 2006).

Medical Care

     Prison officials did not act with deliberate indifference to inmate's need for treatment of his Hepatitis C condition when they provided for ongoing monitoring, and when they took steps to guarantee further treatment through the established administrative process when his high enzyme levels warranted further tests and a liver biopsy. The court finds that the prisoner's own reluctance to participate in a drug treatment program may have been "partially responsible" for delays in his treatment for Hepatitis C. Thomas v. Bruce, No. 04-3274, 428 F. Supp. 2d 1161 (D. Kan. 2006).

     Prisoner was required, under New York state law, to submit notarized affidavits verifying his medical malpractice claims against prison staff for alleged failure to have his injured hand X-rayed on a timely basis. His failure to do so deprived the New York Court of Claims of jurisdiction over his lawsuit. Spirles v. State, 814 N.Y.S.2d 327 (A.D. 3rd Dept. 2006).

     Minnesota prisoner, in his lawsuit against correctional doctor and other medical personnel, alleging medical malpractice, failed to comply with state law requirements of an affidavit from an appropriate medical expert, and the prisoner did not show any valid excuse for the failure to satisfy this requirement. Both this and statute of limitations issues supported the dismissal of all claims against the doctor, and of some claims against the other defendants. Mercer v. Andersen, No. A05-1103, 715 N.W.2d 114 (Minn. App. 2006).

Prisoner Assault: By Inmates

     In prisoner's lawsuit claiming that prison officials improperly failed to protect him from assault by other inmates, factual issues as to whether the defendants were aware of the significant risk of harm certain other prisoners posed to him, but still gave him a housing assignment exposing him to these risks, precluded dismissal of his claims. Smith v. Freil, No. 05-4252, 170 Fed. Appx. 580 (10th Cir. 2006).

     Despite prisoner's statement that he and another inmate he was being housed with had had "problems," prison officials were not liable for cellmate's subsequent assault on prisoner, when the plaintiff had failed to identify a specific prior incident from which it could be inferred that there was a substantial risk of harm in housing the two prisoners together. Prisoner also failed to show that correctional officers used excessive force against him while restraining him following a fight with another prisoner. McBride v. Rivers, No. 05-13328, 170 Fed. Appx. 648 (11th Cir. 2006).

Prisoner Discipline

     Polygraph testing of confidential informants is not required by due process in prison disciplinary hearings. Torres v. Walker, No. 4-05-0813, 848 N.E.2d 156 (Ill. App. 4th Dist. 2006).

     Accusations against prisoner of providing unauthorized legal assistance and possessing unauthorized information about fellow inmate's crimes were not supported by the evidence when legal documents in his possession predated his removal from his job as a prison law library clerk or related to information about his co-defendant which he was permitted to possess. The evidence did, however, support a finding that he had refused a direct order to delete unauthorized material from his computer disks when ordered to do so. Deoleo v. Selsky, 814 N.Y.S.2d 798 (A.D. 3rd Dept. 2006).

     Determination that prisoner engaged in unauthorized organizational activities in violation of prison rules was supported by evidence of misbehavior report and testimony of correctional sergeant as well as testimony of another inmate who stated that the prisoner was a gang member. Hines v. Goord, 814 N.Y.S.2d 807 (A.D. 3rd Dept. 2006).

     Prisoner could not pursue federal civil rights claim arguing that his due process rights were violated in a disciplinary proceeding because he was not provided with copies of reports or statements made against him, since he failed to show that his disciplinary conviction had previously been invalidated. Harper v. Clarke, No. A-04-461, 713 N.W.2d 502 (Neb. App. 2006).

Prisoner Classification

     Prisoner in Colorado correctional facility failed to show that either local or state law required that the Department of Corrections hold a hearing concerning whether a prisoner could be referred for a placement in a community corrections program, and court rules that it could not review the issue of whether the Department improperly included immigration detainers, such as the one the prisoner had, as an exclusionary factor for community corrections placement. The prisoner was also not entitled to a hearing on the question of whether the Department had properly determined that he was a flight risk. Rivera-Bottzeck v. Ortiz, No. 04CA1628, 134 P.3d 517 (Colo. App. 2006).

Prisoner Transfer

     Prisoner stated a valid claim for retaliation in violation of his First Amendment rights by alleging that he was intentionally transferred to a facility lacking rehabilitation programs as punishment for his having filed a lawsuit challenging the failure of correctional officials to provide him with rehabilitation programs ordered by a court for treatment of psychological and psychiatric problems. The claim did not challenge the defendants' right, in general, to transfer the prisoner, but rather asserted that they did so, in this instance, for an improper motive. Price v. Wall, No. Civ. A. 05-3898, 428 F. Supp. 2d 52 (D.R.I. 2006).

Procedural: Discovery

     Investigative reports prepared by Alabama Department of Youth Services regarding allegations of physical and sexual abuse and sexual exploitation of detainees by department employees were "work product" written in anticipation of future litigation, and were initially entitled to "work-product" privilege from discovery, but the detainees, in their lawsuit against the department employees, were entitled to a hearing to determine whether they could overcome that privilege by showing a "substantial need" for the reports because they were unable, without "undue hardship" to otherwise obtain the equivalent of the information contained in the reports. Ex Parte Alabama Dept. of Youth Services v. Zeigler, No. 1040649, 927 So. 2d 805 (Ala. 2005).

Segregation: Administrative

     Prisoner's placement in administrative segregation rather than protective custody in correctional facility was supported by substantial evidence, including information that he was suspected of a homicide at another prison, and had a history of extortion against other prisoners. If the information on which his placement was based was incorrect, New York state law provided a mechanism to seek removal of the erroneous information from his record. Mauleon v. Goord, 816 N.Y.S.2d 218 (A.D. 3rd Dept. 2006).

Strip Searches: Prisoners

     Federal trial court finds that actions taken by the county in response to an unconstitutional practice which developed at the county jail of strip searching all misdemeanor detainees without requiring reasonable suspicion of possession of contraband amounted to the county's "acquiescence" in the practice for purposes of municipal liability. Tardiff v. Knox County, No. CIV.02-251, 425 F. Supp. 2d 159 (D. Me. 2006).

Work/Education Programs

     In Alabama prisoner's lawsuit seeking back pay and damages and challenging the power of correctional officials to force prisoners to perform work on a private contract job with an outside vendor of sports equipment, the state agencies and Department of Corrections, and prison warden were all entitled to sovereign immunity under state law. Latham v. Department of Corrections, No. 1031810, 927 So. 2d 815 (Ala. 2005).

     County jail was not liable for inmate's burn injuries suffered during kitchen work assignment. While the prisoner claimed that the jail failed to provide him with reasonably safe equipment and adequate training for the job, the prisoner admitted that he failed to use a funnel, gloves, and other equipment provided for him to perform the task of transferring boiling water from one container to another. He also admitted that the task was "pretty basic" and that he had successfully completed the job previously, refuting the argument that further training was required. Spiratos v. County of Chenago, 815 N.Y.S. 2d 288 (A.D. 3rd Dept. 2006).

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     Report: The Federal Bureau of Prisons' Monitoring of Mail for High-Risk Inmates, Evaluations and Inspections Report I-2006-009, U.S. Department of Justice, Office of the Inspector General. September 2006.

     Military Prisoners: New military detainee and terror suspect treatment guidelines are issued by the U.S. Department of Defense. (September 5, 2006).

     Census Enumeration of Prisoners: Why the Census Bureau can and must start collecting the home addresses of incarcerated people Submitted by Peter Wagner, Eric Lotke and Andrew Beveridge to the U.S. Census Bureau on February 10, 2006 in advance of the Bureau's report to the Appropriations Committee on using prisoners' homes of record in the Census. Subsequent report by national panel of experts recommended that in 2010 the Census Bureau study whether prison inmates should be counted as residents of the urban neighborhoods where they last lived rather than as residents of the rural districts where they are incarcerated.

Reference:

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

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