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Los Angeles County Sheriff, in establishing policies concerning the assignment of detainees at the jail was carrying out state law enforcement functions rather than acting as a county policymaker, and the county therefore could not be held liable for injuries a detainee allegedly suffered because he was placed in close proximity to other prisoners who threatened and assaulted him. The sheriff was entitled to Eleventh Amendment immunity.

     A California man, while incarcerated at a county jail, received threats against his life by other inmates, allegedly because of his national ancestry, ethnicity, origin, and race. Despite his repeated requests to be moved to another facility, jail employees allegedly refused to move him, and he was ultimately assaulted and injured by other prisoners. He sued the county for his injuries in state court, claiming that he was subjected to unreasonable and unnecessary punishment and cruelty by being placed in close proximity to known inmates who had threatened his life and ultimately injured him, asserting a federal civil rights claim.

     The county argued that it was immune from liability under federal civil rights law because the policies pertaining to the county jail were set by the sheriff, who acts as a California state official in operating the jail. The trial court agreed, and the inmate appealed.

     On appeal, the question was whether the Los Angeles County Sheriff acts on behalf of the State of California or the County of Los Angeles in setting policies pertaining to the assignment of inmates within the jail. The answer to this question depends on whether the sheriff's action in this regard can be characterized as a law enforcement function, in which case the sheriff acts as a state official and is therefore immune from liability under 42 U.S.C. Sec. 1983, or whether it should be characterized as merely a custodial function, making the sheriff a local policymaker subject to suit under section 1983.

     A California appeals court noted that there was a split of authority on that issue between the U.S. Court of Appeals for the Ninth Circuit, which found that such action is only a custodial function in Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001) and Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir. 2002), and a more recent decision by the California Supreme Court, Venegas v. County of Los Angeles, 32 Cal. 4th 820, 87 P.3d 1 (2004), which characterized similar activity as a law enforcement function.

     The California appeals court followed the reasoning in Venegas, concluding that the sheriff was carrying out a law enforcement function in setting policies about the placement of inmates at the county jail and therefore was acting as a state official immune from section 1983 liability, and entitled to Eleventh Amendment immunity. It therefore upheld a dismissal of the lawsuit in favor of the county.

It is well established that states and state officers sued in their official capacity are not considered "persons" for purposes of section 1983 and are immune from liability under that statute by virtue of the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity.

     The appeals court noted that the Venegas court reviewed and criticized the two federal cases which reached seemingly contrary results.

     The court reasoned that the sheriff's duties of preserving the peace are law enforcement functions, and do not lose this status simply because they are carried out within the confines of a jail which the sheriff is required to operate.

Inmates at the county jail typically consist of those persons who have been arrested for committing state crimes and are awaiting trial, persons who have already been sentenced, and those detained as witnesses or under civil process or contempt orders. We cannot find that a sheriff's policies relating to the safekeeping of such persons is merely an "administrative function arguably unrelated to the prosecution of state criminal law violations."

     Therefore, the court found, in setting and implementing policies and procedures concerning the assignment of inmates in the county jail, the sheriff acts as a state officer performing state law enforcement duties, and not as a policymaker acting on behalf of the county.

     Bougere v. County of Los Angeles, No. B183930, 2006 Cal. App. Lexis 1065, 141 Cal. App. 4th 237 (Cal. 2d App. Dist. 2006)

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

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Officers at jail were not entitled to qualified immunity in lawsuit brought concerning death of prisoner with a heart condition when they allegedly knew of his serious medical condition, were aware of his complaints of difficulty breathing and chest pain, but failed to take steps to provide immediate medical assistance.

     A Washington County, Minnesota man was arrested and sentenced to ten days in jail for driving without a license. He was released to a hospital to treat heart problems. After treatment, however, he did not return to the jail, and the county issued a warrant for him to serve his five remaining days. A year later, he returned to a hospital complaining of pain. He left the emergency room without treatment, but called police for a ride home. When officers found the outstanding warrant for his arrest, they turned him over to a county deputy. He told the deputy that he had congestive heart failure and pneumonia.

     When he arrived at the county jail, he immediately complained of pain, and informed the staff that he had pneumonia, congestive heart failure, high blood pressure, and diabetes, presenting his hospital discharge form, including a list of prescribed drugs. The jail nurse who examined him concluded that he was stable, but placed him on "high observation" for 24 hours, and arranged for medications to be administered the next day.

     Officers allegedly declined to provide the prisoner with requested assistance in climbing stairs. Later that evening, he rang the officers' intercom three times, and both officers on duty answered the calls. The prisoner requested medication, and a blood pressure test, saying that he could not breathe and was in extreme pain. He was allegedly told that he "had been seen," that there were no orders to provide him with medicine then, and that he could see the medical staff in the morning. The officers also allegedly threatened to place him in lockdown if he continued to buzz them for "non-emergency issues."

     Early the next morning, the prisoner was found laying partially propped against the wall, blood flowing from his mouth, eyes open, and no sign of breathing. No pulse was found. He died of hypertensive and arteriosclerotic heart disease. His wife sued a number of defendants, claiming deliberate indifference to his serious medical needs.

     Upholding the denial of qualified immunity to the individual defendant officers, a federal appeals court found that there was evidence from which it could be found that they knew he was at a high risk of heart failure and disregarded it. There was information indicating that the prisoner had medical issues placing him on "high observation," and that he had been released a year before for heart problems. The prisoner stated that he could not breathe, was in pain, and wanted a blood pressure check, but no medical attention was provided.

     A reasonable officer, the appeals court found, "would consider chest pain and difficulty breathing to be symptoms that require medical attention in anyone who claims to have heart disease. The intentional delay by these officers shows deliberate disregard sufficient to reject qualified immunity." A reasonable officer, the court continued, would also be aware that it is unlawful to delay medical treatment for a prisoner who exhibits obvious signs of medical distress, "especially one who communicates this distress directly to officers."

     The appeals court rejected the argument that the officers made a reasonable mistake by disregarding the prisoner's complaints because he was able to yell over the intercom. The officers knew that the prisoner was on "high observation" based on a medical assessment by the jail's nurse. Under these circumstances, it was unreasonable for them to ignore his shortness of breath and chest pain "because they were responsible for responding to medical emergencies."

     Viewing the facts in the light most favorable to the plaintiff, the court concluded, the officers knew of the prisoner's "high risk," and disregarded it, violating his Eighth Amendment rights.

     The appeals court further found that the officers and county were not entitled to official immunity from liability under state law. Their duty to take immediate steps when a prisoner is ill, the court found, is "ministerial."

     Gordon v. Frank, No. 05-3981, 2006 U.S. App. Lexis 18299 (8th Cir.).

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

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Prison nurse did not act with deliberate indifference in making a prisoner take psychotropic medications actually prescribed for another prisoner, since that was at most a negligent mistake, but a jury could find that she acted with deliberate indifference in leaving him in his cell without immediate medical attention for three hours after she realized her mistake.

     A Missouri inmate claimed that a prison nurse acted with deliberate indifference to his serious medical needs when she mistakenly required him to take certain psychotropic medications--approximately 7 to 10 pills--that had been prescribed for another prisoner. When she realized her mistaken, she ordered him to return the pills, but by then he had already swallowed them.

     The nurse allegedly did not immediately take the prisoner for medical attention or tell her supervisors of the mistake. Minutes after taking the pills, the prisoner allegedly felt his legs collapse and the room spin. He pushed the emergency button in his cell, hit his head on the toilet, and fainted, waking in pain in another room with a sore throat and dried blood on the back of his head. A doctor informed him that he had been lying unconscious in his cell for three hours. He subsequently suffered from cold sweats, severe headaches, vision problems and shaking.

     A federal appeals court upheld a trial court decision that the nurse did not act with deliberate indifference by forcing the prisoner to take another inmate's medication, as it was not disputed that this was merely a mistake, constituting at most negligence. It found, however, that a jury could reach the conclusion that the nurse was deliberately indifferent to the prisoner's serious medical needs when she left him in his cell for three hours after she was aware that he had taken a large dose of mental health medications prescribed for another inmate.

     A jury could also find that the three-hour delay allowed the medication to fully enter the prisoner's system, when immediate medical attention would have enabled medical personnel to pump his stomach or take other action to remove the medication from his body before it was totally absorbed.

     Spann v. Roper, No. 05-2721, 2006 U.S. App. Lexis 17480 (8th Cir.).

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

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Bipolar prisoner who saw mental health staff, counselors, and doctors 38 times in a 13 month period failed to show that prison authorities acted with deliberate indifference to his serious medical needs, or retaliated against him for filing a grievance by pursuing misconduct charges against him or transferring him to another facility.

     A prisoner at the Missouri Eastern Correctional Center (MECC) claimed that prison officials were deliberately indifferent to his serious mental health medical needs, and retaliated against him for filing a grievance. The grievance claimed that the staff was forcing him to take a particular job assignment and denied him privileges based on his "psychiatric disability."

     The prisoner suffers from bipolar disorder and a severe social anxiety disorder related to a history of childhood sexual abuse, and was treated for these disorders and prescribed medication. He claimed that prison personnel failed to make sure that his prescription medication was promptly provided when he was sent to solitary confinement, and that he suffered severe deterioration of his mental and physical health because he was not housed in accordance with a recommendation by the Institutional Chief of Mental Health Services that he should be placed with cellmates of his choosing if doing so would not "break any custody or classification rules or criteria."

     He also claimed that his transfer to another facility was retaliatory, and that various misconduct charges were brought against him for retaliatory purposes.

     A federal appeals court upheld summary judgment for the defendant officials, finding that the plaintiff could not prove that the defendants were deliberately indifferent to his serious medical need for mental health treatment.

     The court noted that during a thirteen-month period, the plaintiff saw mental health staff, counselors, and medical doctors at least 38 times, and was prescribed numerous medications. He himself did not claim that he was ever denied treatment or that the treatment he received was inadequate, the court stated, but instead argued that his Eighth Amendment rights were violated by failing to house him with specific cellmates, and, on one occasion, failing to promptly provide his medication.

     The court agreed that there were ample reasons for the defendants to make the housing choices they did, including security concerns, and there was no evidence that they had any reason to know that their housing choices would have a serious negative impact on his mental health. The mere fact that one staff member recommended certain housing arrangements if possible did not imply that medical harm would result if that recommendation was not followed.

     Additionally, although the plaintiff claimed to have suffered as a result of being housed with "violent, sexually abusive inmates," his testimony on the matter was "vague," and he never complained about a specific inmate or voiced any concerns about a specific threat to his safety, and never requested protective custody.

     As for the one occasion where he claimed there was a temporary delay in providing him with his prescription medications when he was transferred to solitary confinement, he failed to show that he suffered any harm as a result of the delay.

     The appeals court further found that the plaintiff's claims of retaliation were not meritorious, since "conduct violations cannot be deemed retaliatory when they were issued for actual violations of prison rules." The prisoner himself acknowledged the conduct that led to many of the violations at issue, and the only violation he seriously disputed on appeal was one issued for fighting, which was later expunged, and for which there was "some evidence" that supported the violation for fighting, including bruises around the prisoner's eye. It was his classification score, based on the conduct violations, which made him ineligible to remain at the facility, making his retaliatory transfer claim non-meritorious.

     Moots v. Lombardi, No. 05-1594, 2006 U.S. App. Lexis 17479 (8th Cir.).

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

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The "routine" dismissal of a lawsuit over prison conditions because of the failure to exhaust available administrative remedies is not a "strike" for purposes of the Prison Litigation Reform Act's "three strikes" rule.

     The Prison Litigation Reform Act (PLRA), passed by Congress in 1996 with the aim of reducing frivolous and meritless prisoner lawsuits, among other things, includes both the requirement that prisoners exhaust available administrative remedies before filing a civil lawsuit over prison conditions, 42 U.S.C. Sec. 1997e(a), and the "three strikes" provision, which prohibits a prisoner who has filed three previous lawsuits that were dismissed on specified grounds (such as frivolousness maliciousness, or failure to state a claim on which relief could be granted) from proceeding as a pauper in subsequent lawsuits, 28 U.S.C. Sec. 1915(g), unless they are in imminent danger of serious physical injury.

     In a recent case, a federal appeals court addressed the question of whether a "routine dismissal" for failure to exhaust available administrative remedies before filing suit counts as a "strike" for purposes of the "three strikes" rule. It decided that it does not.

     The plaintiff prisoner filed a federal civil rights lawsuit against a number of Virginia prison officials, claiming that they were deliberately indifferent to his serious medical needs. The trial court permitted the prisoner to proceed as a pauper without prepaying filing fees, but later dismissed his complaint on the merits. The plaintiff then filed an appeal and filed with the appeals court a motion to proceed as a pauper without prepayment of filing fees. There was no dispute that the dismissal of two of the plaintiff prisoner's prior lawsuits were properly counted as "strikes" under 28 U.S.C. Sec. 1915(g), but a third lawsuit previously filed by the prisoner had been dismissed for failure to exhaust available administrative remedies. If that dismissal counted as a "strike," the prisoner would have had three strikes and would not be entitled to pay the filing fees associated with his appeal in installments, i.e., to proceed as a pauper.

     The appeals court found that Congress intentionally did not list dismissal for failure to exhaust available administrative remedies in the language of the "three strikes" provision. The three-strikes rule, the court stated, applies by its terms only if a prisoner has had three prior actions dismissed as "frivolous, malicious, or [for] fail[ure] to state a claim upon which relief may be granted." It ruled that because a dismissal for failure to exhaust is not listed in Sec. 1915(g), it would be improper for a court to "read it into the statute."

     The appeals court noted, however, that this conclusion was limited to "routine" dismissals for failure to exhaust available administrative remedies, which are typically dismissals in cases where the prisoner's claims are presented to a court for the first time.

Nothing in this opinion should be understood as limiting a district court's discretion in non-routine cases, where evidence of frivolousness or malice exists beyond the mere fact that exhaustion has not been obtained. For example, if a district court dismisses a complaint on exhaustion grounds and the prisoner, without exhausting his remedies, files another complaint seeking relief for the same conduct alleged in the original complaint, the district court could conclude that the second complaint was frivolous or malicious and thus qualifies as a strike under § 1915(g). This is but one example, and there may well be other situations where the circumstances would warrant treating as a strike a dismissal of an action filed by a prisoner who did not first exhaust his administrative remedies. Routine dismissals based solely on the fact that exhaustion has not occurred, however, do not qualify as strikes under § 1915(g).

     In the immediate case, the appeals court allowed the plaintiff prisoner to proceed without prepayment of filing fees, since he did not have "three strikes."

     Green v. Young, No. 04-7252, 2006 U.S. App. Lexis 18685 (4th Cir.).

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

     Editor's Note: Several other courts have disagreed, holding that a dismissal on exhaustion grounds is a strike under § 1915(g), sometimes by determining that a failure to exhaust was the equivalent of a failure to state a claim. See, e.g., Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003) (concluding that a PLRA action that does not allege exhaustion does not state a claim and concluding without additional explanation that dismissal for failure to exhaust counts as a strike); and Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) ("A claim that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted."). The Fourth Circuit, which decided the case reported above, does not require that a plaintiff's complaint recite the exhaustion of remedies.

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New York Commissioner of Corrections and deputy prison superintendent were not entitled to qualified immunity on prisoner's claim that they conspired to violate his civil rights in a lawsuit brought by a prisoner over the alleged failure to protect him from attacks by other prisoners. Jury awarded a total of $150,000 in compensatory damages and $7.5 million in punitive damages, but a new trial was ordered on the punitive damages issue.

     An inmate at the Sing Sing Correctional Facility in Ossining, New York, filed a federal civil rights lawsuit against a number of New York State Department of Correctional Services and prison officials, claiming a violation of his Eighth Amendment rights based on the failure to protect him from assaults by other prisoners. A jury found the state's Commissioner of Corrections, and the deputy superintendent of the prison liable for conspiracy to violate his civil rights and for negligence under state law, awarding both compensatory and punitive damages. It awarded $100,000 in compensatory damages and $5 million in punitive damages against the Commissioner, and $50,000 in compensatory and $2.5 million in punitive damages against the deputy superintendent.

     The trial judge granted post-trial motions to dismiss the negligence claim, as well as ordering a new trial on the issue of punitive damages, but denied the defendants' renewed motion for judgment as a matter of law, rejecting their qualified immunity defense and their argument that the evidence at trial was insufficient for the jury to find them liable. The trial court found that punitive damages in the case should not exceed $200,000 in the case of the Commissioner and $100,000 in the case of the deputy superintendent.

     A federal appeals court has upheld the denial of qualified immunity, finding that defense to be "without merit" under the facts of the case. It ruled that it did not have jurisdiction on appeal to consider other aspects of the case until after the conclusion of the new trial on the issue of punitive damages.

     The plaintiff prisoner had been assaulted by another inmate who slashed his head, neck and back, and he was taken to a hospital where he received multiple stitches. Upon his return to the prison, he was placed in protective custody, but was allegedly attacked at least once more by another inmate. Subsequently, his prison cell was allegedly set on fire by an unknown person or persons.

     The jury in the case, replying to several questions on the verdict form, found that the defendants had not violated the plaintiff's constitutional rights with respect to one of the assaults and with respect to the cell fire, but that they had conspired to violate the plaintiff's rights. The defendants argued on appeal that this showed that the jury found that there were no damages or injuries resulting from the alleged conspiracy, so that they were entitled to qualified immunity.

     The appeals court, however, found that the jury was properly instructed that, in order to find the defendants liability under 42 U.S.C. Sec. 1985(3) for conspiracy to violate the plaintiff prisoner's civil rights, it must be proven that, as a result of the purported conspiracy, the plaintiff was either injured in his person or property or deprived a right of a citizen of the U.S.

We therefore presume that in finding the appellants liable to Britt under section 1985(3), the jury found that the evidence presented at trial demonstrated not only the existence of a conspiracy, but also that "as a result of the conspiracy, the plaintiff was either injured . . . or deprived of any right of a citizen of the United States.". Thus, the appellants' argument that the jury's answers to the first three questions on the verdict sheet establish that the jury concluded that there was only a conspiracy -- and no more -- is incorrect. We therefore reject the appellants' argument that they enjoy qualified immunity as a matter of law.

     The defendants would be free to raise other issues, including the sufficiency of the evidence, on further appeal after the conclusion of the new trial on the issue of punitive damages.

     Britt v. Garcia, No. 05-0641, 2006 U.S. App. Lexis 18795 (2d Cir.).

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

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Director of Colorado prisons, in authorizing use of special operations team to remove a prisoner from his cell to search for a loaded gun, was not liable for the officers' alleged excessive use of force, causing injuries to his jaw and testicles. No evidence showed that he either authorized or knew of any excessive force, or had any duty to personally supervise the team.

     A prisoner at the Colorado Territorial Corrections Facility, a high security prison in Canon City, Colorado, was forcibly removed from his cell by a prison special operations after it was reported that a prisoner, who was possibly his cellmate, had a loaded gun. He claimed that he was injured during the incident due to excessive force, and he sued the members of the team, a nurse and doctor who treated his injuries, the prison warden, and the statewide director of prisons for Colorado. The claims against the statewide director were based on his alleged supervision and control of the team that removed the prisoner from his cell.

     A federal appeals court has held, based on the record in the trial court, that the statewide director was not liable for the prisoner's injuries on the basis of supervisory liability, did not violate clearly established law, and was entitled to summary judgment on the basis of qualified immunity.

     Under the facts of the case, the court found, officials at the prison initiated a lockdown of the entire prison and sought authorization to use the special operations response team (SORT), a SWAT-type unit, to remove three suspects and their cell mates from their cells, after learning of the presence of the loaded gun somewhere in the facility. Once the suspects were removed from their cells, guards intended to search the cells for the weapon.

     Before the SORT team could be activated, the court acknowledged, it had to be authorized by the statewide Director of Prisons. At the time, he was not at the prison, but in his office fifty miles away. While he had the authority to activate SORT, the court found, he was not in charge of the officers who would enter the cells. Those officers acted under the direction of a SORT Commander at the prison, who reported to the Deputy Director of Prisons, who in turn reported to the Director.

     The plaintiff prisoner claimed that the SORT team used excessive force and "crushed" his jaw and testicles despite his full compliance with their orders, stepping on his hand, kneeling on his back, pushing his face into the floor, and dragging him, face down, by his feet for about 30-40 feet. The prisoner claimed that the officers thought he was the target inmate, rather than merely his cellmate, and that once they realized their mistake, treated him less harshly.

     In a prior decision, Serna v. Colo. Dep't of Corr., No. 04-1241, 108 Fed. Appx. 570 (10th Cir., 2004), the appeals court found that the prisoner failed to show that warden ordered the SORT team to act in an unconstitutional manner, or that she knew they would act in such a manner when activated or acquiesced in such conduct.

     In the immediate appeal, by the statewide Director of Prisons, the appeals court noted that under federal civil rights law, government officials are not vicariously liable for the misconduct of their subordinates, but only for their "own culpable involvement in the violation of a person's constitutional rights."

     The mere fact that the statewide Director authorized the use of the SORT team did not show that he was responsible for their alleged use of excessive force. Instead, the prisoner had the burden of showing that the officers applied excessive force, and that there was an "affirmative link" between the Director and the alleged violation of the prisoner's rights, namely that the Director actively participated or acquiesced in the SORT team's application of excessive force and was deliberately indifferent to its application.

     The prisoner did show disputed facts sufficient to base a finding of excessive force on, but the Director's mere agreement to activate the SORT team, and the fact that he received periodic reports during the operation, was not sufficient to show a link between his actions and that use of force.

     There was no evidence that the Director ordered the SORT team to apply excessive force, that he directly supervised their on-site conduct from 50 miles away, or that he participated in the planning or execution of the operation. The Director, further, on the basis of the reports he received, believed that the cell removal occurred without incident and according to policy, and his receipt of those reports did not show his approval of the alleged excessive use of force.

     In the alternative, the prisoner argued that the Director was liable for the officers' purported excessive use of force because of his failure to adequately supervise or control them. The appeals court found that there was no expectation that the Director supervise them, either directly or indirectly, as he had no duty to do so. The on-site commander of the team had that duty.

     The prisoner also failed to show that the Director knew or should have known that he was, in activating the SORT team, creating a situation causing a substantial risk of constitutional harm, but acted with deliberate indifference to it. There was also no showing of a pattern or practice of constitutional abuses by his subordinates on prior occasions. The evidence only showed that the Director, "as a high-level supervisor," authorized the use of the SORT team to respond to a dangerous situation at a warden's request. There was nothing to show that he wanted to harm the plaintiff prisoner or to ignore harm done by his subordinates.

     Serna v. Colorado Dep't of Corr., No. 04-1241, 2006 U.S. App. Lexis 18687 (10th Cir.).

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

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Sheriff and arresting officer were not liable for death of detainee who died from self-mutilation in county jail after an arrest for intoxicated driving. Jailers were also entitled to qualified immunity for their decision to admit the detainee to the jail rather than sending him to a hospital, as he appeared calm and they did not know the amount of drugs he had ingested or that he had a need for immediate medical treatment. They were not entitled, however, to qualified immunity on the claim that they failed to adequately monitor him following his intake.

     An Arkansas motorist was arrested for driving under the influence and being combative towards an officer at the scene of an accident. He subsequently died, following self-mutilation, while incarcerated in the Crawford County Detention Center. His estate sued the county sheriff and two jailers in their official and individual capacity.

     The trial court granted summary judgment to the sheriff, finding that the individual capacity claim against him failed since it was undisputed that the sheriff was not even aware that the decedent was in the jail until he had already seriously injured himself. The trial court further granted summary judgment to the sheriff and jailers in their official capacities, finding no evidence of an official policy or custom resulting in the detainee's death. It also found that the jailers were entitled to qualified immunity for their decision to accept the detainee into the jail, but not for their subsequent actions or the timeliness of summoning medical attention. A jury then returned a verdict in favor of the two jailers. The trial court also granted qualified immunity to an arresting officer who took the detainee to the jail rather than to a hospital.

     The arresting officer had told the jailers that he was "pretty sure" that the detainee was under the influence of some narcotic. The detainee, during intake, however, appeared normal, was responsive and attentive, and did not display any signs that he was having hallucinations. In response to a question about whether he was doing drugs, he stated that he had "lost his straw." While the jailers debated whether to book him into the jail or take him to the hospital, they decided to book him. He was placed into an observation cell used for intoxicated prisoners.

     After the detainee had been incarcerated for a while, he began to scream, was observed with his shirt off, screaming and rubbing his eyes with the palms of his hand. He stopped, however, after a jailer called him by his first name, and agreed to "relax and calm down." He was then placed on a fifteen-minute watch.

    A jailer later noticed that the detainee had taken off his clothes and was again screaming, as well as a small pool of blood on the cell floor. Various personnel came to the cell, and the prisoner was then naked and covered in blood and sweat. He had succeeded in mutilating himself and was trying to further harm himself, and he was restrained during a struggle in which a jailer's arm was broken and his shoulder dislocated. An ambulance was summoned, but by the time he arrived at the hospital, he died of excited delirium as a result of acute methamphetamine intoxication and physical struggle, with "idiopathic cardiomyopathy" (a heart disorder) as a contributing condition.

     A federal appeals court ruled that, even if the arresting officer, by taking the detainee to the jail rather than to a hospital, was deliberately indifferent to the possibility that he was under the influence of methamphetamine, the evidence did not show that he knew that he was hallucinating or needed medical treatment. It would not be clear to a reasonable officer, the court found, that his conduct was unlawful, because the detainee's medical needs were not known to be "objectively serious." He had not been diagnosed by a physician, nor did he exhibit symptoms that would make it obvious to a layperson that he had serious medical needs.

     The decision to accept the detainee into the jail, similarly, involved the intake of a "calm, non-combative person sitting on a bench answering questions," which would not lead a layperson to the conclusion that he required immediate medical attention, even if it was known that he had taken methamphetamine. It was not known what quantity of drugs was taken, as the detainee would not answer questions about it or consent to a blood draw. His behavior, however, did not suggest a high degree of intoxication.

     The federal appeals court also upheld a trial court evidentiary ruling excluding the Arkansas State Jail Standards from introduction into evidence, noting that such standards, although helpful and relevant in some cases, do not represent minimum constitutional standards, and therefore that it was not an abuse of discretion to exclude them from evidence on the federal civil rights claims.

     The appeals court questioned, however, whether the Arkansas state Constitution, under which the plaintiff also brought constitutional claims, might require a different standard of protection for pre-trial detainees than the federal Constitution's Eighth and Fourteenth Amendment standards prohibiting deliberate indifference to serious medical needs. The appeals court therefore certified to the Supreme Court of Arkansas the question: "Does the conscious indifference standard announced in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (Ark. 1998), afford greater protection to pre-trial detainees than the federal deliberate indifference standard?"

     The appeals court's rulings left untouched the trial court's denial of qualified immunity to the two jailers on federal civil rights claims that they acted improperly in failing to more adequately monitor the detainee in his cell following his intake to the jail.

     Grayson v. Ross, No. 04-3577, 2006 U.S. App. Lexis 18061 (8th Cir.).

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

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Firing of Muslim inmate cook from prison kitchen job after he refused to prepare a meal using pork, if true, violated his clearly established First Amendment rights to religious freedom. Prior cases from other federal appeals courts provided prison officials a fair warning that their actions were unconstitutional.

     A Muslim prisoner in Pennsylvania assigned to work as a cook in the prison kitchen at the State Correctional Institution at Rockview was ordered to help prepare a meal that included pork. He refused to do so, on the basis that his religious beliefs prohibited him from handling pork. This refusal resulted in him being fired from his kitchen job, cited for misconduct, and punished.

     The prisoner sued correctional officials, claiming violations of his First and Fourteenth Amendment rights. The trial court dismissed the prisoner's 14th Amendment claim, but refused to grant qualified immunity to the defendants on the remaining claims. Finding that the alleged conduct by correctional officials, if true, violated the prisoner's clearly established rights, a federal appeals court upheld the denial of qualified immunity on his First Amendment claim.

     The prisoner believes that the Koran forbids Muslims from consuming pork and commands them to refrain from aiding others to consume pork in any circumstances, citing the Koran, Part II, 70:173 n. 210, which states, "He has forbidden you . . . the flesh of swine." He also argued that Islamic scholars endorse Chapter Eleven of Leviticus in the Old Testament, which prohibits the handling of swine. The correctional officials did not challenge the sincerity of the prisoner's religious beliefs.

     The Pennsylvania Department of Corrections (DOC) requires that able-bodied inmates work when assigned to a job, and the prisoner was assigned, at his prison, to work in the kitchen, despite the fact that he did not apply for or want that job. When he started to work there, he told the "head" inmate-cooks, who coordinated other inmates' daily responsibilities there that, as a practicing Muslim, he could not handle pork or assist in its preparation. For a while, they accommodated this by transferring him to another assignment when pork was served for a meal, and the appeals court found that it was unclear from the record in the case whether this accommodation was recognized by prison officials.

     On one Saturday, however, while lunch preparations were underway, one of the prison's food service instructors noticed that there was a shortage of available inmate-cooks to prepare roast pork for lunch, and he directed the Muslim prisoner to act as a cook, and to help divide that day's pork rations. The prisoner refused to do so, citing his religious beliefs. He also refused to do so after being offered the accommodation of wearing gloves, which some other Muslim prisoners had previously found acceptable. He was fired from his prison job and cited for misconduct, and subsequently found guilty of refusing to obey an order. He was placed on cell restriction for thirty days, during which he could only leave his cell for meals and to attend weekly religious services.

     At the end of his punishment, he was reassigned to a job as a janitor in the kitchen, a position that paid half the compensation of his prior job as a cook. His security classification was also raised from low to medium.

     The federal appeals court agreed that neither the U.S. Supreme Court nor itself (the U.S. Court of Appeals for the Third Circuit) had previously directly addressed the issue of whether requiring a Muslim prisoner to handle pork violates his First Amendment rights. However, it noted that the few courts that had previously considered that precise question had "uniformly held that prison officials must respect and accommodate, when practicable, a Muslim inmate's religious beliefs regarding prohibitions on the handling of pork."

     Based on this, the appeals court found, the unlawfulness of the alleged conduct would have been "apparent to a reasonable official based on the current state of the law," even without binding prior precedent from the Third Circuit or U.S. Supreme Court.

     The appeals court rejected the argument that the fact that the prisoner was offered gloves to wear while preparing the pork showed that they did not violate his clearly established rights. The prisoner claimed that his religious beliefs prohibited him from handling pork regardless of whether or not he wears gloves, and the prison officials had not disputed the sincerity of his beliefs, so that the offer of the gloves did not diminish any infringement on his right to religious freedom under the First Amendment.

     Williams v. Bitner, No. 05-1930, 2006 U.S. App. Lexis 18583 (3d Cir.).

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     Editor's Note: The appeals court decision above relies on prior decisions by the Fifth, Seventh, and Eighth Circuits, as well as a district court in the Eighth Circuit. See Hayes v. Long, 72 F.3d 70, 72-74 (8th Cir. 1995) (denying qualified immunity because Muslim inmates had a clearly established right not to be forced to handle pork); Kenner v. Phelps, 605 F.2d 850, 851 (5th Cir. 1979) (per curiam) (finding that Muslim inmates' claim that they were forced to handle pork stated a cause of action); Chapman v. Kleindienst, 507 F.2d 1246, 1251-52 (7th Cir. 1974) (finding that Muslim inmate's claim that he was forced to handle pork made out a prima facie First Amendment claim); Finney v. Hutto, 410 F. Supp. 251, 270 (E.D. Ark. 1976) (enjoining prison officials from exposing Muslim inmates to food contaminated by pork), aff'd on other grounds, 548 F.2d 740 (8th Cir. 1977), aff'd, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). The Third Circuit's opinion also rejected the defendant's characterization of other appeals courts' rulings on the issue as a "split" at the time of the incident. While there had been a prior Sixth Circuit rejection of a similar claim in Robinson v. Jordan, 900 F.2d 260 (table), 1990 WL 47551 (6th Cir. 1990) (unpublished opinion), the Third Circuit found that this unpublished opinion has little or no precedential value in the Sixth Circuit, and therefore, could not be used to bar a finding that the right asserted by the plaintiff prisoner was clearly established.

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Removal of New York prisoner from work release program for use of cocaine without providing him with notice and a hearing violated his due process rights. Conviction of drug use in separate disciplinary hearing did not automatically result in removal, and committee still had discretion to continue his participation. Individual defendants, however, were entitled to qualified immunity from liability, as they could have reasonably believed that the disciplinary conviction was sufficient and that no separate hearing on the removal was required.

     A New York state prisoner claimed that his removal from a temporary work release program without notice and a hearing was a violation of his right to due process of law under the Fourteenth Amendment. He sued various correctional officials and employees allegedly involved in his removal.

     The removal occurred after he was accused of engaging in the use of cocaine. The prisoner faced disciplinary charges regarding his drug use for which he had been found guilty during a separate disciplinary proceeding. A federal appeals court, however, found that the prisoner had a liberty interest in continuing his participation in the work release program, and was therefore entitled to procedural due process before his removal.

     This was the case because, under the applicable rules, the disciplinary conviction and any factual determinations that it made concerning the prisoner's drug use did not deprive the committee in charge of temporary work release program of the use of its discretion to continue his participation in the program, so that his removal from the program was not automatic.

     The defendants, therefore, in allegedly not giving him notice and a hearing at which he could be heard prior to removing him from the program for the use of cocaine, violated his due process rights.

     The court found that the defendants were entitled to qualified immunity from liability, however, because reasonable persons could have believed that they had no discretion to continue his participation in the program after the drug use charges which formed the basis for his removal were sustained at the disciplinary hearing, and after he was confined to the prison for 30 days as a result of the disciplinary hearing. Under these circumstances, they could have reasonably believed that no further hearing was required.

     Anderson v. Goorde, No. 05-4096, 446 F.3d 324 (2nd Cir. 2006).

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Access to Courts/Legal Info

     Alien engaged in fighting against proceedings aimed at removing him from the country failed to show that Connecticut prison officials unconstitutionally violated his right of access to the courts by not providing him with adequate time in the law library to properly litigate a habeas corpus petition. The record showed that he was allowed to visit the library every other day for about an hour, as well as on 63 additional occasions during a three month period, and that he managed to file numerous motions in court, and that his habeas petition remained pending. Accordingly, he could not show that the alleged deprivation caused him any actual injury. Auguste v. Department of Corrections, No. 3:03CV2052, 424 F. Supp.2d 363 (D. Conn. 2006).

Disability Discrimination: Prisoners

     Court rejects deaf inmate's claim that he was subject to disability discrimination in violation of federal statutes and a consent decree because prison officials provided him with unqualified sign language interpreters. The consent decree allowed the use of inmate interpreters, and that is what the prisoner was provided with for educational and vocational programming offered. Additionally, the facility had staff interpreters who were available for both disciplinary hearings and medical appointments. The court found that the occasional use of inmate interpreters in emergency medical circumstances did not put the prisoner's safety or security at risk. DuQuin v. Dean, No. 99 Civ. 12458, 423 F. Supp. 2d 411 (S.D.N.Y. 2006).

Drug Abuse and Screening

     A parolee's right to confront witnesses against him in his parole revocation hearing was not violated by the admission into evidence of two urinalysis lab reports concerning possible drug use, when the reports were certified, which ensured that they were reliable. At the hearing, his parole was revoked and then restored upon the condition that he complete a mandatory drug treatment program. Nieblas v. New York State Bd. of Parole, 813 N.Y.S.2d 271 (A.D. 3rd Dept. 2006).

Employment Issues

     Female correctional officer's claims that female officers were not given identical locker room facilities as the male officers had and that the city's department of corrections failed to conduct a proper investigation of her discrimination complaint were insufficient to show "adverse employment actions" amounting to sex discrimination under federal employment law. Hayes v. Kerik, No. CV-99-5725, 414 F. Supp. 2d 193 (E.D.N.Y. 2006).

     While employees of community correctional facilities in Ohio were entitled to due process on any demotion, suspension or termination of employment, there was no available cause of action for money damages. Disputed issues of fact, however, remained on terminated female African-American employee's claims of disparate treatment, disparate pay, and unlawful retaliation. McClain v. Northwest Community Corrections Center Judicial Corrections Bd., No. 05-3154, 440 F.3d 320 (6th Cir. 2006).

First Amendment

     Pennsylvania prisoner failed to present evidence from which a reasonable jury could conclude that he was fired from his prison kitchen job in retaliation for having filed grievances against his supervisor. The evidence showed that complaints about his work performance were present before he filed any grievances. Williams v. Meyers, No. 03-3938, 165 Fed. Appx. 201 (3rd Cir. 2006).

Incarceration Cost Recovery

     Illinois correctional officials could properly recover, under a state statute, $124,191.22 as reimbursement for the cost of a prisoner's incarceration from the value of an annuity he bought with the proceeds of an insurance policy on the life of his mother, less a $2,000 statutory exemption. The fact that the annuity was bought with the proceeds of a life insurance policy did not make the annuity exempt from collection efforts. The court further found that because the inmate was not a dependent of his mother when she died, an exemption under state law for insurance proceeds paid to a dependent also did not apply. The fact that the prisoner himself had dependents also did not alter the state's ability to seize the annuity. People Ex. Rel. Director of Corrections v. Ruckman, No. 5-05-0132, 843 N.E.2d 882 (Ill. App. 5th Dist. 2006).

Medical Care

     Prisoner's claim that she reported symptoms of stroke to medical personnel, including severe head pain, slurred words, and inability to grasp with her right hand, but was told that her only problem was that she was overweight and directed to return to her work assignment, would, if true, satisfy both objective and subjective components of a claim for deliberate indifference to serious medical needs. Pimentel v. Deboo, No. 3:04CV821, 411 F. Supp. 2d 118 (D. Conn. 2006).

     Federal prisoner's claim that, after he injured his shoulder, he was not referred to a specialist or given prescription pain medication were insufficient to state a federal civil rights claim for inadequate medical care, and amounted, at most, to negligence in diagnosing his condition or a disagreement over the proper treatment for his condition. Sereika v. Patel, No. 04 Civ. 8854, 411 F. Supp. 2d 397 (S.D.N.Y. 2006).

     State Commissioner of Department of Corrections was not deliberately indifferent to prison inmate's serious medical needs and was not liable for his death from a brain infection. The Commissioner had not personally been involved in the decisions concerning the inmate's care, and the doctor's conduct, at most, constituted negligent medical malpractice, not a violation of constitutional rights. King v. Correctional Medical Services, Inc., No. 2030903, 919 So. 2d 1186 (Ala. Civ. App. 2005).

     Prison officials and employees were not deliberately indifferent to the serious medical needs of a prisoner with an amputated leg, when the record showed that each of the defendants responded to his grievances and suggested or approved of a remedy. The fact that certain requested accommodations, such as a concrete bench or railing, were not provided for him before he was transferred to another facility was "unfortunate," but did not show the kind of "criminal recklessness" or "gross negligence" required to meet the standard of "deliberate indifference" for a federal civil rights claim. Johnson v. Snyder, No. 04-3620, 444 F.3d 579 (7th Cir. 2006).

Prison Litigation Reform Act: Exhaustion of Remedies

     The fact that the plaintiff prisoner could not have obtained money damages through the administrative grievance procedure on his claim that prison officials provided him with inadequate medical care did not excuse his failure to exhaust available administrative remedies prior to filing a federal civil rights lawsuit as required by 42 U.S.C. Sec. 1997e(a). Additionally, when there was no evidence that prison officials interfered with his access to the administrative appeals process, he was not excused from pursuing administrative appeals from his initial grievance, even if he was confused about what to do after being transferred to another facility. Hill v. Chalanor, No. 9:01CV0018, 419 F. Supp. 2d 255 (N.D.N.Y. 2006).

     Prisoner failed to properly exhaust available administrative remedies before filing a lawsuit concerning an alleged assault on him by several correctional officers. The prisoner allegedly knew that the grievance procedure was the proper place to complain about this, and filed an initial grievance but failed to appeal its denial. He raised the issue also in an appeal of a disciplinary action against him, but was told that disciplinary proceedings and their appeals were not the proper place to pursue that claim. Reynoso v. Swezey, No. 99-CV-6368, 423 F. Supp. 2d 73 (W.D.N.Y. 2006).

Prisoner Assault: By Officers

     Prison superintendent was not entitled to dismissal of prisoner's claim that he was aware of, but deliberately ignored a correctional officer's repeated "malicious acts" against him, which resulted in the officer striking him. Locicero v. O'Connell, No. 04 Civ. 07708, 419 F. Supp. 2d 521 (S.D.N.Y. 2006).

Prisoner Death/Injury

     Sheriff and parish government were entitled, under Louisiana statute, to immunity from liability for alleged negligence of deputy in driving vehicle in which a prisoner was a passenger while being transported to work assignment as part of litter abatement program. The fact that the injured prisoner had been released from custody after the injury occurred did not alter the immunity under the statute, which was based on his status as a prisoner at the time of the accident. Ceasar v. Herbert, No. 05-1195, 926 So. 2d 139 (La. App. 2006).

Prisoner Discipline

     Mere fact that a prisoner obtained the reversal of a prior disciplinary sanction imposed on him by a hearing officer was insufficient, standing alone, to show that the hearing officer acted for retaliatory purposes in imposing discipline on him again four months later, particularly when the officer acquitted him of two of the three charges against him, and the prisoner himself admitted he was guilty of the third charge. Mitchell v. Senkowski, #04-1792, 158 Fed. Appx. 346 (2nd Cir. 2005).

     A prisoner did not suffer any violation of due process due to the alleged denial of his request to call witnesses at his disciplinary hearing when his conviction was subsequently overturned during the appeals process and his good time credits were restored, so that any deprivation of procedural rights was remedied by the appeals process. Baker v. Rexroad, No. 04-16594, 159 Fed. Appx. 61 (11th Cir. 2005).

     Disciplinary hearing's determination that a prisoner had lied about a correctional officer assaulting him, in violation of prison rules, was supported by substantial evidence, including medical records showing no indication that the inmate had been assaulted, or suffered the injuries he claimed. Royster v. Goord, 810 N.Y.S.2d 212 (A.D. 2nd Dept. 2006).

     Prisoner was properly found guilty of disciplinary charges of being in possession of a weapon, a gun, while out on temporary work release program. Charges were supported by substantial evidence, and hearing officer made an adequate assessment of the reliability of a confidential source who provided information about the incident. Johnson v. Goord, 810 N.Y.S.2d 255 (A.D. 3rd Dept. 2006).

Privacy

     Federal Bureau of Prisons' Inmate Central Record System is exempt from the provisions of the Privacy Act, 5 U.S.C. Sec. 552, under which the plaintiff prisoner sought injunctive relief and money damages based on the alleged failure to maintain accurate records and remove false information. Scaff-Martinez v. Federal Bureau of Prisons, No. 05-11119, 160 Fed. Appx. 955 (11th Cir. 2005).

Private Prisons and Entities

     A prisoner suffering from a hernia stated a viable federal civil rights claim against a private company providing medical services at the prison by alleging that it was the company's policy to classify any and all umbilical hernias as elective surgery, which it routinely denied to prisoners, in deliberate indifference to serious medical needs. Williams v. Prison Health Services, Inc., No. 05-2400, 167 Fed. Appx. 555 (7th Cir. 2006).

Procedural: Discovery

     Documents prepared by a member of a county jail mental health services division quality assurance committee were entitled to protection against discovery in a lawsuit brought by survivors of an arrestee who hung himself in the county jail. The committee constituted a "peer review body" covered by a California statutory privilege against discovery of records of such bodies. The fact that the document had been prepared by only one member of the committee did not alter the result. County of Los Angeles v. Superior Court, No. B188909, 42 Cal. Rptr. 3d 390 (Cal. App. 2nd Dist. 2006).

Procedural: Sanctions

     Dismissal of a prisoner's federal civil rights lawsuit was a proper sanction for his submission of a falsified document he created which contained information that he could not possibly have known at the time he represented it was prepared. The prisoner submitted the document to try to show that he had properly exhausted available administrative remedies. Campos v. Correction Officer Smith, No. 04-CV-60541, 418 F. Supp. 2d 277 (W.D.N.Y. 2006).

Religion

     Muslim prisoner's case manager was not liable for alleged violations of his religious freedom rights based on the alleged serving of pork to him, and the refusal to provide him with his meals after sundown during Ramadan, when there was no showing that the case manager was personally involved in those actions. Additionally, prisoner failed to show that he could distinguish between pork and pork substitute, as he claimed, or that prison official's alleged mocking of his religion was anything more than a "de minimis" (minimal) violation of his rights, insufficient to support liability. Omar v. Casterline, No. Civ. A. No. 02-1933, 414 F. Supp. 2d 582 (W.D. La. 2006).

     Muslim prisoner sufficiently stated federal civil rights claims against one prison cook and one food service manager for allegedly violating his right to free exercise of his religion by intentionally misleading him into consuming food (turkey ham) containing pork. Lewis v. Mitchell, No. 04CV2468, 416 F. Supp. 2d 935 (S.D. Cal. 2005).

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     Statistics: Sexual Violence Reported by Correctional Authorities, 2005. Presents data from the Survey on Sexual Violence, 2005, an administrative records collection of incidents of inmate-on-inmate and staff-on-inmate sexual violence reported to correctional authorities. The report provides counts of sexual violence, by type, for adult prisons, jails, and other adult correctional facilities. The report provides an in-depth analysis of substantiated incidents, including where the incidents occur, time of day, number and characteristics of victims and perpetrators, nature of the injuries, impact on the victims and sanctions imposed on the perpetrators. The appendix tables include counts of sexual violence, by type, for all State systems, the Federal Bureau of Prisons, and all sampled jail jurisdictions. The report also includes an update on BJS activities related to implementation of the data collections required under the Prison Rape Elimination Act of 2003 (Public Law 108-79). Highlights include the following: Correctional authorities substantiated 885 incidents of sexual violence in 2005, 15% of completed investigations. 38% of allegations involved staff sexual misconduct; 35% inmate-on-inmate nonconsensual sexual acts; 17%, staff sexual harassment; and 10% inmate-on-inmate abusive sexual contact. Half of inmate-on-inmate sexual violence involved physical force or threat of force. 7/06 NCJ 214646 Press release | Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: Violent Felons in Large Urban Counties Presents data collected from a representative sample of felony cases that resulted in a felony conviction for a violent offense in 40 of the Nation's 75 largest counties. The study tracks cases for up to 1 year from the date of filing through final disposition. Defendants convicted of murder, rape, robbery, assault or other violent felonies are described in terms of demographic characteristics (gender, race, Hispanic origin, age), prior arrests and convictions, criminal justice status at time of arrest, type of pretrial release or detention, type of adjudication, and sentence received. Highlights include the following: Thirty-six percent of violent felons had an active criminal justice status at the time of their arrest. This included 18% on probation, 12% on release pending disposition of a prior case, and 75% of parole. A majority (56%) of violent felons had a prior conviction record. Thirty-eight percent had prior felony conviction and 15% had a previous conviction for a violent felony. Eighty-one percent of violent felons were sentenced to incarceration with 50% going to prison and 31% to jail. Nineteen percent received a probation term without incarceration. 8/06 NCJ 205289 Press release | Acrobat file (253K) | ASCII file (22K) | Spreadsheets (zip format 18K)

Reference:

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

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