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Prisoner had no legitimate property right in receiving a money order of funds from the mother of another inmate, when money sent from the family members of another inmate was considered contraband under prison rules. Failing to provide him with a pre-deprivation hearing before confiscating the money order did not violate his due process rights.

     An Oklahoma state prisoner claimed that prison officials deprived him of his property in violation of his constitutional due process rights when they confiscated a money order sent to him. A federal appeals court has upheld summary judgment for the defendant officials.

     Prison rules prohibited an inmate from receiving money from family members of any other prisoner, and permit the facility to confiscate any money sent to an inmate in violation of that rule. The mother of another prisoner sent the plaintiff inmate a fifty-dollar money order, and prison officials confiscated the money order when it arrived. The funds were never deposited into the inmate's account, nor were they returned to the other prisoner's mother.

     The trial court, after rejecting claims against various other defendant officials, ruled that the prison official who confiscated the funds was entitled to qualified immunity because his actions did not violate the inmate's constitutional rights. It was undisputed that the funds came from the mother of another prisoner, and therefore violated the rule at issue.

     Since the funds became contraband upon their receipt at the prison, the court reasoned, the inmate never acquired any property interest in the money order, and had no right to any pre-deprivation due process hearing on their confiscation.

     The appeals court agreed that the inmate had no constitutionally protected property right to receive a contraband money order while in prison, so that his rights were not violated by the failure to provide him with a pre-deprivation hearing.

     The appeals court further stated that prison officials had a legitimate interest in controlling both the amount and source of funds received by inmates, in order to prevent prisoners from using their family members to pay off their drug, gambling, or other debts to fellow inmates, or from extorting money from an inmate's family with threats of harm.

     Steffey v. Orman, No. 05-7064, 2006 U.S. App. Lexis 22237 (10th Cir.).

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New Jersey failed to show that it had a reasonable basis, related to prison safety and security, in opening prisoners' legal mail outside of their presence. Inmates have a First Amendment interest in being present when incoming legal mail is opened by prison employees. Terrorist attacks of 9/11/2001, and incidents that fall of transmission of anthrax through the mail were not sufficient, years later, to support the continuation of a policy adopted as an emergency procedure.

     In two separate cases, federal trial courts in New Jersey reached differing conclusions on the constitutionality of a state prison regulation concerning the processing of incoming inmate legal mail. The cases were consolidated on appeal, and a federal appeals court ruled that prisoners have a First Amendment interest in being present when their incoming legal mail is opened for purposes of inspection by prison employees.

     While the state claimed that its policy of allowing such mail to be opened outside of the prisoners' presence was necessary, the appeals court found that the state had not shown that this policy was reasonably related to its interest in protecting prison safety and security. The appeals court therefore concluded that enforcement of the policy should properly be enjoined.

     Prior to October 19, 2001, state regulations in New Jersey required that prisoners' incoming legal correspondence be opened and inspected in front of the inmate. On September 11, 2001, in response to the terrorist attacks occurring that day, the acting Governor of New Jersey declared a state of emergency in the state, and issued an executive order allowing the heads of any agency of state government, subject to his approval, waive, suspend or modify any existing rule, the enforcement of which would be detrimental to the public welfare during the emergency.

     After one or more individuals in September and October of 2001 mailed a string of letters containing anthrax through the mail, at least four of which were processed in a New Jersey mail processing center, and at least five people died as a result, the Acting Commissioner of the New Jersey Department of Corrections, acting under the authority of the Acting Governor's order, issued an amendment to the legal mail policy, suspending the requirement that legal mail be opened in the prisoner's presence.

     The appeals court found that opening legal mail outside of a prisoner's presence interferes with protected communications between attorney and client, "strips those protected communications of their confidentiality," and impinges upon the inmate's right of free speech. The court reasoned that such practices would chill the inmates' protected expression, regardless of the state's good-faith "protestations" that it does not, and will not, read the content of the letters, but merely inspect them for contraband.

     Such rights could be outweighed, the appeals court conceded, if prison officials could show that the regulation had a reasonable relationship to a legitimate penological interest, such as prison safety and security. The appeals court found no such reasonable relationship here.

     The prison officials failed to offer any evidence that there was an elevated risk of anthrax contamination in prisons resulting from the events of September 11, 2001 or any evidence of attempts to expose prisoners to anthrax in the three years since the incident in the New Jersey postal facility. The court stated that investigations by the Center for Disease Control and Prevention (CDC) have found that the "actual risk" of anthrax contamination in the U.S. is "quite small," and that guidelines from the CDC and the State of New Jersey provide a "sensible approach to dealing with suspicious packages."

     While a prison administrator compelled to act immediately after September 11th and October of 2001 "might reasonably" have concluded that the risk of an anthrax terrorism attack on a prison at that time was sufficiently serious to justify a "temporary, emergency measure" mandating the opening of a prisoner's legal mail in his absence, the court found that no such compulsion existed after the passage of several years, despite the fact that the risk of a terrorist attack on prisons using the mails remained "conceivable." A constitutional right, the court found, should not be eliminated in the absence of "some rational basis for believing there was a non-negligible risk of such an attack."

     While the appeals court found that the policy in question should properly be enjoined, it also ruled that prison officials were entitled to qualified immunity from liability, since there was no clearly established case law regarding the parameters of a prisoner's rights not to have their legal mail opened outside of their presence in the context of the "special circumstances" encountered in the Fall of 2001.

     Jones v. Brown, No. 03-3823, 04-4426, 2006 U.S. App. Lexis 21601 (3d Cir.).

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Failure to present expert testimony to support claim that deliberate indifference to prisoner's need for medical treatment for a rare autoimmune disease caused his death was "fatal," as a matter of law, to that claim.

     The mother of an Arkansas inmate, who died from complications arising from Goodpasture Syndrome, a rare autoimmune disease, while in custody, claimed that correctional officials and employees acted with deliberate indifference to his serious medical needs, violating his constitutional right to adequate medical care. A federal appeals court rejected these claims.

     The prisoner was serving a twelve-month sentence for driving while intoxicated. He began suffering from earaches before arriving at the prison and filed numerous requests for medical services after he arrived. His mother claimed that she called the warden of the prison unit where her son was incarcerated approximately 30 times to demand medical treatment for him, but that the warden repeatedly told her that there was nothing wrong with her son, who was a "faker and an actor."

     The court noted, however, that the prisoner received treatment by a doctor at the unit's infirmary on six separate occasions between August 21, 2003 and October 29, 2003. This treatment included a two-night stay in the infirmary, multiple rounds of antibiotics, and other treatments for ear infections, acid reflux, edema of the legs, bilateral knee pain, erythema and purpuric rash, and hypersensitivity vasculitis.

     In November of 2003, when the prisoner returned to the infirmary with complaints of joint pain, shortness of breath, and a sore throat, a doctor made a preliminary diagnosis of streptococcus infection, prescribed new antibiotics and ordered additional diagnostic tests, as well as conducting an additional examination subsequently.

     When his condition failed to improve, he was given a different antibiotic and again admitted to the infirmary. The doctor then suspected pneumonia, and transferred the prisoner to a nearby hospital. Once there, he lapsed into a vegetative state and died, with an autopsy finding the cause of death to be pulmonary hemorrhage and renal failure resulting from Goodpasture Syndrome. That is a rare autoimmune disease, the court noted, that is difficult to diagnose because its symptoms present a "confusing clinical picture," with patients who survive the initial pulmonary hemorrhage usually progressing to end-stage renal failure. Additionally, "no definitive therapy" for that disease exists.

     Under these circumstances, the court found, because Goodpasture Syndrome qualifies as a "sophisticated medical condition," the plaintiff's failure to produce expert testimony to prove that a lack of proper medical treatment caused the prisoner's death was "fatal" to her deliberate indifference claim as a matter of law. The fact that some prison officials may have expressed "skepticism" about her son's illness, "while troubling," did not eliminate the need for expert proof that something the defendants did or failed to do actually caused his death.

     Alberson v. Norris, No. 06-1534, 2006 U.S. App. Lexis 20784 (8th Cir.).

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Evidence presented would not be sufficient to allow a reasonable jury to concluded that jail personnel were deliberately indifferent to the serious medical needs of a prisoner who died as the result of an acute asthma attack.

     A detainee at the Lawrence County Jail in Deadwood, South Dakota died following a severe asthma attack. His widow filed a federal civil rights lawsuit claiming that the county, and four county officials, including the chief deputy sheriff, the jail administrator, the head jailer, and a jailer were deliberately indifferent to her husband's serious medical needs, delaying his medical treatment and denying him prescribed medications.

     A federal appeals court has upheld summary judgment for the defendants, finding that the evidence presented was insufficient for reasonable jurors to concluded that the defendants acted with deliberate indifference.

     When the decedent, as a pre-trial detainee, arrived at the jail, jail personnel received information that he suffered from a severe asthma condition, and was taking a "bunch" of medications, although he had only brought an Albuterol inhaler with him. He allegedly failed to tell the jail employee conducting his intake screening that he had, just eight days before, been sent to the Colorado prison's emergency clinic suffering from a severe asthma attack.

     The detainee allegedly did not exhibit any wheezing, difficulty breathing, or coughing during the intake interview. Based on this, inquiries were made as to whether a hospital emergency room would fill prescriptions without seeing the detainee, a request which was denied. While statements were made about taking the detainee to the hospital emergency room the following morning to get the prescriptions filled, this did not occur, and his prescriptions remained unfilled.

     Jail personnel allegedly decided on the next day, a Sunday, that the matter could wait until Monday, because the detainee was not in any apparent distress. Medical records received failed to reveal the prior severe asthma attack, and jail personnel believed that use of the inhaler would be adequate for the weekend.

     The detainee's condition allegedly deteriorated over the weekend, and he repeatedly asked for his medications. He ultimately received his prescribed medications the following Tuesday, but a nebulizer provided lacked a mouthpiece and could not function.

     The detainee was then wheezing and in asthmatic arrest, but personnel at the jail did not know how to mix the prescribed Albuterol solution. A pre-mixed bottle of Albuterol solution in the nebulizer left by its previous user, allegedly did not work, and the detainee was then taken to a hospital, where he died of an acute bronchial asthma attack.

     A forensic pathologist subsequently testified that the proper treatment as a "rescue drug" for the acute attack would be Prednisone, but that was not listed as one of the detainee's current medications on a medical summary transfer report that had accompanied the detainee to the jail.

     The appeals court found that the evidence did not show that the defendants acted with deliberate indifference, and that at least one of the defendants actually went to "great lengths" to have the detainees prescriptions filled. When the detainee suffered his fatal attack, this defendant "could not be faulted" for bringing a nebulizer without a mouthpiece, for not knowing how to prepare the nebulizer solution, and for allowing the detainee to inhale a prior user's solution. All this was done, the court noted, for the purpose of trying to treat the attack, not to ignore it.

     Such actions, the court reasoned, might be evidence of negligence, but could not be pointed to as evidence of deliberate indifference. The defendants did not know of the detainee's most recent prior severe asthma attack or of the medication prescribed to address it.

     While the detainee's death was a tragedy, and arguably due to the "unintentional negligence" of correctional officials at the Colorado prison system, from which he had been transferred, and at the jail, that was not enough to support a federal civil rights claim.

     Pietrafeso v. Lawrence County, No. 05-1038, 05-1096, 452 F.3d 978, rehearing and rehearing en banc denied, 2006 U.S. App. Lexis 17225 (8th Cir.).

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Prisoner's failure, in suing over alleged prison overcrowding, understaffing, and "oppressive cell conditions," to allege physical injuries did not entirely bar his claims under Prison Litigation Reform Act, but rather, merely limited remedies available. Federal appeals court overturns dismissal of lawsuit.

     A California prisoner's lawsuit complained about prison conditions, including alleged overcrowding and understaffing, and "oppressive cell conditions," and the trial court found that these claims were barred by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(3) because they failed to allege physical injury. A federal appeals court, however, found that the cited section of the statute only bars certain kinds of relief, such as compensatory money damages, in some instances, while leaving viable seeking nominal and punitive damages, so that the claims in question were not barred entirely, requiring reversal.

     The trial court had also dismissed a claim by the prisoner alleging various deficiencies in the prison grievance system, and the appeals court upheld that dismissal, noting that there is no constitutional right to an effective prison grievance system.

     The appeals court also ordered, however, further proceedings on the plaintiffs claims for violation of his First and Fourteenth Amendment rights by prison officials' actions in preventing him from forming a political action committee and denying him access to newspapers and magazines. Because the trial court dismissed these claims on its own motion, and the defendant prison officials had offered no justification for either of these alleged actions, the appeals court overturned the dismissal of those claims.

     Myron v. Terhune, No. 04-15770, 2006 U.S. App. Lexis 20404 (9th Cir.).

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Prisoner failed to assert viable federal civil rights claim for denial of due process in his loss of good time credits based on recommendation of a single hearing officer rather than a disciplinary committee.

     An Oklahoma inmate at a medium security prison sued prison officials, claiming that his due process rights were violated when they subtracted good-time credits from him based upon the recommendation of a single hearing officer, rather than a disciplinary committee, segregated him from the general prison population, required that he secure two 30-day work evaluations in order to be eligible for good-time credits, failed to assign him work, and allegedly provided inadequate legal materials and violated his "right to assist other inmates" in challenging their confinement.

     The trial court dismissed the prisoner's claims against the defendants in their official capacities, seeking injunctive relief, ruling that the Eleventh Amendment barred such claims against state officials, and also found that the plaintiff failed to state a claim against the defendants in their individual capacities.

     A federal appeals court found that the trial judge acted erroneously in dismissing all official capacity claims on the basis of the Eleventh Amendment.

The Eleventh Amendment provides that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." Immunity is available when suits seeking damages are brought directly against a State, or when a state official is sued in his or her official capacity. But suits seeking damages from state officials in their individual capacities, or suits seeking prospective injunctive or declaratory relief against state officers, are not barred by the Eleventh Amendment,

     Accordingly, the trial court should have applied the 11th Amendment immunity only to money damage claims against the defendants in their official capacities. Reversal, however, the court noted, was not required if the prisoner also failed to assert a viable claim for equitable relief.

     Regarding the revocation of good-time credits, the appeals court stated, a federal civil rights claim is barred when the relief sought, whether damages or equitable relief such as an injunction, if granted, would necessarily demonstrate the invalidity of the confinement or its duration. Because the plaintiff prisoner was seeking the restoration of good-time credits on the grounds of past allegedly invalid procedures, his claim was not valid unless the discipline against him had already been set aside.

     The claim based on the prisoner's segregation away from the general prison population was also invalid under Sandin v. Conner, #93-1911, 515 U.S. 472 (1995), when he failed to show how this subjected him to an "atypical and significant" hardship in relation to the "ordinary incidents of prison life." The prisoner merely claimed that, during his 120 days of segregation, inmates in the general population had greater access to the leisure and law libraries, may immediately go on sick call, have greater job opportunities, and "are not given ice cream for not being violent."

     The court concluded that these "disparities" were "not so onerous" as to involve violations of due process or be atypical and significant hardships.

     The court found the prisoner's other claims similarly meritless, and noted that the prisoner had no constitutional right to provide legal aid to other inmates. It also rejected claims for purported violations of equal protection of law, and violations of the plaintiff's right to petition for redress of grievances.

     Hornsby v. Jones, No. 05-5201,  2006 U.S. App. Lexis 16275  (10th Cir.).

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Former pre-trial detainee asserted possibly viable claims as to whether his rights were violated when he was placed in four-point restraints, chained to a wall in a rubber room, and denied hearings before being punished. Claims for injunctive relief were properly rejected, however, when he was no longer confined at the jail where these incidents took place.

     A former Minnesota inmate claimed that his constitutional rights were violated when he was placed in four-point restraints, chained to a wall in a "rubber room," forced to shower in waist chains and shackles, and allegedly denied hearings before being punished while he was a pre-trial detainee. He further asserted that he pled guilty to then pending criminal charges only to "escape the abuse." His lawsuit sought both injunctive relief, and damages against a number of county jail staff members, including the county jail administrator.

     A federal appeals court found that the trial court was correct in rejecting the plaintiff's requests for injunctive relief, since he was no longer incarcerated at the jail, but it also ruled that summary judgment was improperly granted to the defendants on the plaintiff's money damage claims.

     The record, the court found, including jail records supporting many of his complaints, created a genuine issue as to whether the defendants punished the plaintiff by using one- to four-point restraints for "long intervals" while he was also locked down, and by periodically confining him in a padded cell. Pretrial detainees may be subject to restrictions so long as they do not amount to punishment, but such restrictions may not be excessive in relationship to the purpose for which they are imposed.

     Alleged instances of property destruction, the court stated, could arguably be constitutionally valid reasons for restraining the detainee for short period when he was already locked down, to prevent further damage.

(But) long periods of in-cell restraints would not be justified by such property destruction, by the staff's fears of Hanks [the detainee] due to his mere threats, or by Hanks's improper and excessive phone calls.

     Factual issues therefore existed as to whether the restrictions imposed on the plaintiff violated his rights, barring summary judgment on the money damages claims.

     Hanks v. Prachar, No. 05-2410, 2006 U.S. App. Lexis 19821 (8th Cir.).

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Requiring a female juvenile to remove her outer clothing when entering a juvenile detention facility after arrest for a curfew violation did not constitute a full strip search and was not unreasonable, given the state's role as a "substitute parent" for such juveniles in its custody. Further, in 1999, at the time of the search, the case law on the subject was not "clearly established.

     A class action lawsuit was filed challenging an alleged policy of the Minnehaha, South Dakota, County Juvenile Detention Center  ("JDC") to strip search minors confined there without probable cause. After the trial court certified the lawsuit as a class action, it denied the defendants' motions for summary judgment on the unlawful search claims, and granted the plaintiff's motion for partial summary judgment on those claims.

    The named plaintiff's complaint asserted that, when she was 16-years-old, she and three other minor friends were arrested by police for violating local curfew laws, and then transported to the JDC, where, as part of the admission process, each of them were allegedly taken into a bathroom and strip searched by facility personnel. She claimed that this violated her right against unreasonable search and seizure under the Fourth and Fourteenth Amendments, and the rights of other juveniles strip searched after they were charged with minor offenses, such as petty theft, liquor violations, being a runaway, and curfew violations, or other "non-felony offenses" or "non-violent offenses," such as truancy, tobacco use, contempt of court, school disturbance, and property damage.

     The facility's policy allegedly required juveniles to take a shower, during which time a detention officer would conduct a visual inspection of the person's body and a manual search of their clothes, including pockets and linings. These searches were conducted by members of the same sex, and the juvenile, according to the policy, was not to be touched during the inspection.

     Overturning denials of qualified immunity and summary judgment for the defendant officials, a federal appeals court ruled that the search of the named plaintiff was reasonable, and that, even if it were not, in August of 1999, the date of the incident at issue, the law on the subject of such searches was not clearly established.

     The appeals court found it undisputed that, when the named plaintiff was admitted to the facility, she was not required to take a shower or to completely remove her clothing. She was only required to remove her outer clothing so it could be searched, and remained in a private room with a female staff member. Additionally, the policy was subsequently revised, allowing juveniles arrested on minor charges or detained as children in need of supervision, to avoid the search if their parent picks them up within two hours. Further, when South Dakota, in 2000, passed a state law providing that no person under the age of eighteen detained solely for a curfew violation may be strip searched, the facility also modified its policy to disallow strip searches of such juveniles unless a detention officer fills out a "probable cause" form justifying why the search should be conducted.

     The appeals court concluded that the search of the named plaintiff was reasonable under the Fourth Amendment. While the search was somewhat intrusive, it was less than a full strip search, even if it might be a "stressful and disturbing" experience. Given the state's legitimate responsibility to act in place of a parent with respect to juveniles in lawful state custody, the court found, the "balance tips in favor of reasonableness," so that the defendants did not violate the named plaintiff's rights.

     However, the appeals court also ruled, even, assuming for the sake of argument that the trial court was correct that there is "no constitutional distinction between searches of juveniles in undergarments and searches of juveniles stripped of all clothing, and assuming the district court's conclusion that all such searches without probable cause are unreasonable," the defendants were entitled to qualified immunity from damage claims arising from the search of the named plaintiff in 1999.

     At that time, the court argued, there was no appeals decision from the U.S. Supreme Court of any federal appeals court on the reasonableness of strip searches of juveniles in lawful state custody. There were decisions concluding that a strip search of adult offenders without individualized suspicion was unreasonable, but those cases, according to the decision, did not consider the different interests involved when the state has the responsibility to act as a parent. Accordingly, the law on the subject was not "clearly established," and the individual defendants were entitled to qualified immunity.

     The appeals court stated that the trial court should examine whether the class should be decertified, based on the fact that the named plaintiff had been found not to have a viable claim.

     Smook v. Minnehaha County, No. 05-1363, 2006 U.S. App. Lexis 20382 (8th Cir.).

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Criminal Conduct

     In a criminal prosecution of correctional officers for alleged conspiracy and deprivation of prisoner's constitutional rights, the prosecution was not required to show that any individual prisoner suffered a certain level of, or type of, injury to show excessive use of force in violation of the Eighth Amendment and 18 U.S.C. Sec. 242. Convictions of officers upheld. U.S. v. Lavallee, No. 03-1515, 439 F.3d 670 (10th Cir. 2006)

Death Penalty

     Death row inmate could proceed on his federal civil rights lawsuit claiming that Florida's procedures for execution by lethal injection violate the Eighth and Fourteenth Amendments because the initial drug administered during it could allow him to suffer severe pain while still conscious, a second drug results in paralysis of the lungs, and a third drug essentially causes a fatal heart attack. Hill v. Crosby, No. 06-10621, 2006 U.S. App. Lexis 22082 (11th Cir.).  Previously in this case, the U.S. Supreme Court ruled that the prisoner's constitutional challenge to the procedure could be brought under 42 U.S.C. Sec. 1983, and did not have to be pursued as an action seeking a writ of habeas corpus. Hill v. McDonough, No. 05–8794, 126 S. Ct. 2096 (2006).

Defenses: Eleventh Amendment Immunity

     State of Wisconsin was entitled to Eleventh Amendment immunity in federal court against a lawsuit by a county seeking to recover expenses that occurred while jailing a fugitive awaiting extradition. The state never made an express waiver of its immunity to suit in federal suit which would apply in these circumstances. Charles County v. State of Wisconsin, No. 05-2808, 447 F.3d 1055 (8th Cir. 2006)

Defenses: Governmental Immunity

     Michigan court finds that the cause of a prisoner's death was his suicide, and not anything that city or county personnel did, so that they were entitled to governmental immunity from liability under state law. Cooper v. Washtenaw County, No. 262141, 713 N.W.2d 908 (Mich. App. 2006).

Drugs and Drug Screening

     Substantial evidence supported discipline of prisoner for refusing to comply with a urinalysis testing program. His claim that his medication and medical problems prevented him from providing a urine sample adequate for the test was refuted by testimony from a doctor familiar with his medication and medical history. Moreno v. Goord, 817 N.Y.S.2d 173 (A.D. 3d Dept. 2006).

Employment Issues

     Jail guard's speech on alleged abuse of inmates was on a matter of public concern, protected by the First Amendment, and there were factual issues as to whether he was subjected to harassment in retaliation for exercising that First Amendment right. Fairley v. Andrews, No. 03C5207, 430 F. Supp. 2d 786 (N.D. Ill. 2006).

     Jail commander did not have a constitutionally protected property interest in his job under Oregon law on the basis of the county's personnel rules and ordinance, given disclaimers in a personnel manual stating that the rules and ordinance did not create any contract rights. Brunick v. Clatsop County, #A122339, 129 P.3d 738 (Or. App. 2006).

Exercise

     Denial of outdoor exercise to a prisoner for thirty-five weeks did not constitute cruel and unusual punishment when it was not done as a result of deliberate indifference to his rights and was not motivated by a malicious intent to harm him. Evidence showed, instead, that the action was motivated by the intent to protect staff and inmate safety and security during a period of racial violence at the facility which included the murder of an inmate. Jones v. Garcia, No. CIV. 03CV2441, 430 F. Supp. 2d 1095 (S.D. Cal. 2006).

Federal Tort Claims Act

     Prisoner's lawsuit against Bureau of Prisons officer claiming that his negligence caused the loss of his property was improperly dismissed by the trial court. The actions of the officer were not covered, under these circumstances, by an exception, 28 U.S.C. Sec. 2680(c), to the Federal Tort Claims Act, 28 U.S.C. Secs. 1346 and 2671-2680, waiver of sovereign immunity. Bureau of Prison officers are not "law enforcement officers" for purposes of Sec. 2680(c)'s exception to the waiver of sovereign immunity, the court ruled.  U.S. v. Andrews, No. 04-7269, 441 F.3d 220 (4th Cir. January 25, 2006)

First Amendment

     Muslim prisoner who claimed he suffered retaliation from prison officials for complaining about alleged religious discrimination failed to show that the alleged "retaliation" resulted in any harm, barring his claim. Court further finds that the prisoner's employment by the California Prison Industry Authority did not make him an "employee" for purposes of a Title VII claim under the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. Wade v. Cal. Dept. of Corrections, No. 05-15653, 171 Fed. Appx. 601 (9th Cir. 2006).

Freedom of Information

     Prisoner's lawsuit asserting claims under the Freedom of Information Act, the Privacy Act, and the Fifth Amendment's due process clause over Bureau of Prisons records concerning him was properly dismissed. The prisoner objected to the Bureau maintaining, in his files, three pre-sentence reports prepared by the U.S. Probation Office, which he claimed were used to his detriment in making prisoner security and programmatic decisions and in determining his eligibility for parole. The BOP, under 28 C.F.R. Sec. 16.97(j) exempted its inmate Central Record System from the accuracy provisions of the Privacy Act, and the Bureau also provided a reasonable explanation for its refusal to make the corrections that the prisoner requested, on the basis that information showed that the information was accurate. Martinez v. Bureau of Prisons, No. 04-5343, 444 F.3d 620 (D.C. Cir. 2006).

Medical Care

     The fact that a prisoner's injured knee allegedly continued to swell and cause him pain did not show that prison medical personnel acted with deliberate indifference to his needs. The records showed that a medical test, an MRI, showed that his knee was within "normal range," and the inmate received treatment, including medication and injections, as well as a referral to an orthopedic surgeon. Brandner v. First Correctional Medical, No. 05-3920, 167 Fed. Appx. 328 (3rd Cir. 2006).

     Former prisoner's claim that she received inadequate medical care while in custody at the U.S. Disciplinary Barracks in Kansas was properly dismissed, since she had no private right of action, as she sought, for alleged violation of the U.N. Convention Against Torture or under any federal law relating to the U.S. government's obligations under that Convention. Renkel v. U.S., No. 05-3420, 2006 U.S. App. Lexis 19604 (6th Cir.).

Medical Care: Dental

     Prison dentist who saw a prisoner on nine occasions, and provided tooth extraction, salt rinses, and medication, did not act with deliberate indifference. Court finds that any delays in treatment were caused, in part, by the prisoner's own refusal to show up for five scheduled appointments. Yoon v. Hickman, No. 05-55338, 171 Fed. Appx. 541 (9th Cir. 2006).

Medical Records

     A review of a prisoner's medical records during disciplinary proceedings did not violate his privacy rights when the prisoner put his diabetic medical condition at issue in presenting his defense to a charge that his urinalysis had come back positive for alcohol use. Stephens v. Chairman Pa. Bd. of Probation and Parole, No. 04-4344, 173 Fed. Appx. 964 (3rd Cir. 2006).

Parole

    Members of Missouri parole board were entitled to absolute immunity in lawsuit by former inmate claiming that they violated his due process and equal protection rights in imposing conditions of parole, including participation in a treatment program for sex offenders, despite his claim that he had been improperly classified as a sex offender. Mayorga v. Missouri, No. 05-2762, 442 F.3d 1128 (8th Cir. 2006).

     A prisoner serving a life sentence has no constitutionally protected liberty or property interest in a chance to be granted parole, so that a state does not violate his rights by failing to grant him a hearing on any of the factual issues involved in parole. Grennier v. Frank, No. 05-3964, 453 F.3d 442 (7th Cir. 2006)

Prison Litigation Reform Act: Exhaustion of Remedies

     When an inmate's federal civil rights lawsuit contained both claims on which he had exhausted available administrative remedies, and claim on which he had not, the U.S. Court of Appeals for the Sixth Circuit holds that the lawsuit should be dismissed in its entirety. Rinard v. Luoma, No. 05-1150, 440 F.3d 361 (6th Cir. 2006).

     In a prisoner's federal lawsuit seeking to put forth several claims against prison officials based on multiple prison grievances, the plaintiff was required to have exhausted each claim against each of the named defendants during the processing of at least one of the grievances. Abdul-Muhammad v. Kempker, No. 05-1872, 2006 U.S. App. Lexis 20455 (8th Cir.).

Prison Litigation Reform Act: Similar State Laws

     Prisoner's lawsuit, seeking court review of decision disciplining him for destruction of property (for allegedly depositing feces on cafeteria food trays), was properly dismissed for failing to comply with Texas state statute concerning procedural requirements for inmate lawsuits. Prisoner failed to show that he exhausted available administrative remedies by filing an affidavit concerning the date he filed a grievance and when the decision on his grievance was received. Comeaux v. Texas Dept. of Criminal Justice, No. 01-04-01184-CV, 193 S.W.3rd 83 (Tex. App. 1st Dist. 2006).

Prisoner Assault: By Officers

     Prisoner failed to show that correctional officers used excessive force in placing him in and later extracting him from a holding cell. Young v. Ogle, No. 05-35581, 171 Fed. Appx. 651 (9th Cir. 2006).

Prisoner Classification

     Bureau of Prisons, in deciding whether to transfer an inmate to a community corrections center must consider the factors spelled out in 18 U.S.C. Sec. 3621(b). Federal appeals court upholds challenge to BOP regulation limiting a prisoner's placement in a CCC to the lesser of six months or ten percent of his sentence of imprisonment. Levine v. Apker, No. 05-2590, 455 F.3d 71(2d Cir. 2006).

Prisoner Discipline

     Disciplinary determination that prisoner violated rules against smuggling and providing unauthorized legal assistance to other prisoners was supported by substantial evidence when examination of an outgoing letter to his father revealed material concerning the legal proceeding of another inmate at a different facility. Hynes v. Goord, 817 N.Y.S.2d 168 (A.D. 3d Dept. 2006).

     Prisoner could be disciplined for possessing contraband and a tattoo machine despite his lack of exclusive access to the area where these items were found. When the items were found behind his locker and under his bed, there was a reasonable inference that he had access to them, and that they were in his control. Lopez v. Selsky, 813 N.Y.S.2d 814 (A.D. 3rd Dept. 2006).

Prisoner Suicide

     Estate of pre-trial detainee who committed suicide failed to show that jail nurse, social worker, psychologist, medical services contractor, or director of correctional services for jail acted with deliberate indifference in failure to prevent his death, but there were genuine issues of fact barring summary judgment for a jail classification officer and a supervisory correctional officer in the lawsuit. It was disputed whether these latter defendants were aware of the decedent's prior suicide attempts and suicide threats, and acted with deliberate indifference to these problems. Linden v. Washtenaw County, No. 04-1964, 167 Fed. Appx. 410 (6th Cir. 2006).

Strip Searches: Prisoners

     City was not liable for alleged violation of a female arrestee's Fourth Amendment rights in allegedly subjecting her to a strip search when its official policy required that there be reasonable suspicion that an arrestee was a threat to jail security before such a search was conducted. Beasley v. City of Sugar Land, #05-0579, 410 F. Supp. 2d 524 (S.D. Tex. 2006).

Terrorism, Enemy Combatants, & Military Prisoners

     The U.S. Supreme Court, by a 5-3 vote (with the Chief Justice not participating), holds that the President did not have authority to conduct military tribunal trials for detainees at the detention facility at Guantanamo Bay in Cuba, and that the military commission convened had a structure and procedures violating the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. Hamdan v. Rumsfeld, No. 05–184, 126 S. Ct. 2749 (2006).

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     Annual Report: State of the Bureau (2005). Bureau of Prisons (BOP). Reports on the federal prison system, including information about facilities and statistics.

     Article: "Civil Right of Prisoners: The Seventh Circuit and Exhaustion of Remedies Under the Prison Litigation Reform Act," by Devin McComb 1 Seventh Circuit Rev. 46 (2006).

     Article: Macher A, Kibble D, Wheeler D. HIV transmission in correctional facility. Emerg Infect Dis April 2006. "Acute retroviral syndrome developed in an inmate in a detention center after he had intercourse with 2 HIV-infected inmates. Correctional facilities house a disproportionate number of HIV-infected persons, and most do not provide inmates with condoms. Correctional healthcare providers should be familiar with primary HIV infection and acute retroviral syndrome."

     Report: "HIV Transmission Among Male Inmates in a State Prison System --- Georgia, 1992--2005" Centers for Disease Control (CDC) Morbidity and Mortality Weekly Report April 21, 2006. This study, which documented the cases of 88 men who became HIV positive while incarcerated in Georgia state prisons, resulted in a recommendation that states investigate the possibility of distributing condoms in prisons. As a result, the California state legislature, in August of 2006, passed a bill, AB 1677, which would allow public health agencies to distribute condoms or dental dams to inmates who request them. California Governor Schwarzenegger has not yet announced whether he will sign it.

     Report: "Ethical considerations for research involving prisoners," Institute of Medicine (IOM). (July 12, 2006). This panel report recommends that government restrictions on the use of prisoners in pharmaceutical research be loosened. Prior to the passage of new regulations in 1978, approximately 90% of all pharmaceutical products were tested on prisoners. Following allegations of past abuses, regulations now bar the use of prisoners in federally funded studies of drugs unless those studies pose no more than "minimal risks" to the prisoner. The report proposes changing this to allow prisoners to participate in experiments with larger risks if the research has the potential to benefit prisoners. The study was requested by a U.S. Department of Health and Human Services committee.

Reference:

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

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