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Access to Courts/Legal Info

     Prison librarian's refusal to allow an inmate access to a comb-binding machine interfered with his ability to file, in a timely manner, his petition with the U.S. Supreme Court asking review of a state criminal conviction, causing actual damage to his right of access to the courts, and the librarian was not entitled to qualified immunity when he failed to offer any justification for restricting the prisoner's access to the machine on this occasion. Further proceedings ordered solely on the question of damages to be awarded. Phillips v. Hust, No. 04-36021, 2007 U.S. App. Lexis 3268 (9th Cir.).

     Prisoner failed to show that he was denied access to the courts in the absence of any demonstrable injury to any non-frivolous lawsuit he filed. The prisoner failed to provide evidence of any court orders showing that his lawsuits had been dismissed or otherwise impeded due to prison limitations on his access to writing and mailing materials. Additionally, the history of the prisoner's litigation was itself sufficient to show that any claim that he was provided with inadequate materials with which to file and pursue lawsuits was frivolous. Lynn v. Anderson-Varella, No. 06-3172, 2007 U.S. Dist. Lexis 6314 (D. Kan.).

     Pennsylvania prisoner could not pursue federal civil rights claim over alleged denial of access to the courts because his claim was ultimately one questioning the validity of a criminal conviction that had not previously been set aside Additionally, his claims against the Secretary of the Pennsylvania Department of Corrections in his official capacity were barred by Eleventh Amendment immunity. Carabello v. Beard, No. 06-336, 2006 U.S. Dist. Lexis 94076 (E.D. Pa.).

Diet

     Prisoner could not pursue his federal civil rights lawsuit complaining that he was improperly served meals without the main course when he also stated that he went on hunger strikes. The prisoner's lawsuit was properly dismissed as frivolous. Ibarra-Villalva v. USP-Allenwood, No. 06-2723, 2007 U.S. App. Lexis 487 (3rd Cir.).

Disability Discrimination: Prisoners

     Paraplegic prisoner failed to show that he was subjected to cruel and unusual punishment because prison officials failed to provide him with an appropriate shower chair and shoes. The record showed that he was, in fact, provided with a shower chair, but not the specific type he argued was appropriate. The court also rejected the argument that the prisoner had been forced to use his wheelchair in the prison shower, finding that he had chosen to do so because of his belief that it was safer than the chair provided by the prison. Further, when he fell out of the chair once, that only resulted in minor scratches, which was insufficient to violate his rights. Foreman v. Bureau of Prisons, No. 06-1274, 2007 U.S. App. Lexis 879 (3rd Cir.).

DNA Tests and Issues

     Prisoner serving a life sentence for murder was entitled to pursue a federal civil rights claim concerning an opportunity to test DNA evidence in the state's possession concerning the crime. This claim, on its own, did not necessarily imply the invalidity of his underlying conviction, since the DNA testing could be inconclusive or even inculpatory, so that his lawsuit was not barred by the principles in Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, if the DNA test results were exculpatory, he would still be required to challenge his conviction in a separate proceeding in state court. Breest v. New Hampshire Attorney General, Civil No. 06-cv-361, 2007 U.S. Dist. Lexis 317 (D.N.H.).

False Imprisonment

     An Ohio prisoner who was not released until five days after he was entitled to be free could not seek damages for false imprisonment from the state correctional agency when there was no proof that the Department had knowledge of a court order granting him additional credit for time previously served before he was released. Hess v. Dept. of Rehabilitation and Correction, Case No. 2004-09576, 2006 Ohio Misc. Lexis 194 (Ohio Ct. of Claims).

Freedom of Information

     Despite a prisoner's claim that more than 500 documents he had previously supplied to the Bureau of Prisons were omitted from the documents released in response to his Freedom of Information Act, 5 U.S.C. Sec. 552, request, a federal trial court ruled that the Bureau, which had then released an additional 123 pages of records, and found no additional responsive materials, satisfied the court that it had conducted a reasonable search for the purpose of finding all available records. The Defendant agency was therefore entitled to summary judgment in the prisoner's lawsuit. Toolasprashad v. Bureau of Prisons, Civil Action No. 06-1187, 2007 U.S. Dist. Lexis 6542 (D.D.C.).

Governmental Liability: Policy/Custom

     Prisoner who claimed that he was beaten by unknown prison guards failed to present evidence of inadequate training or hiring policies which could support a claim for liability on the part of the county. Aguirre v. Nueces County, Texas, No. 06-40317, 2007 U.S. App. Lexis 3028 (5th Cir.).

Incarceration Cost Recovery

     Four prisoners whose pension benefits were seized by the state of Michigan under a state statute to partially reimburse the state for the cost of their incarceration did not show that they did not have a full and fair opportunity to challenge the seizure in state courts which had issued orders for the seizures. The prisoners, therefore, could not challenge in federal court the constitutionality of the seizures under the due process clause of the 14th Amendment or its legality under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001 et seq. Abbott v. State of Michigan, No. 06-1434, 2007 U.S. App. Lexis 1313 (6th Cir.).

Inmate Funds

     Florida appeals court rules that prisoner was entitled to an order for the reimbursement of funds withdrawn from his inmate trust account to satisfy an unauthorized lien, rejecting trial court's ruling that the issue was moot because the funds had been used to fully satisfy the lien. Turner v. McDonough, No. 1D06-3090, 2007 Fla. App. Lexis 1799 (Fla. App. 1st Dist.).

Inmate Property

     Ohio correctional employees properly seized a prisoner's television set as contraband because his name and inmate number were not etched on it as required by the prison's policy, and because the set's top was sanded down. Will v. Dept. of Rehabilitation and Correction, Case No. 2005-06813, 2007 Ohio Misc. Lexis 3 (Ohio Ct. of Claims).

Medical Care

     Prisoner who reported brief periods of vision loss failed to show that prison doctor acted with deliberate indifference. The record showed that the prisoner was examined promptly after complaining about the problem, and that the prisoner's mere difference of opinion concerning what treatment he should have received was insufficient to establish a constitutional violation. The doctor's actions, if wrongful at all, were at most negligence, and did not violate the Eighth Amendment. Williams v. Ayers, No. 04-15576, 2007 U.S. App. Lexis 805 (9th Cir.).

     A delay in treatment of an ear infection over a weekend when sick call was not available was not shown to have resulted in any actual hearing loss, and did not constitute an unconstitutional act of deliberate indifference to a serious medical need. Freeman v. Frimpong, No. 3:04cv1546, 2007 U.S. Dist. Lexis 10475 (M.D. Pa.).

     Federal trial court acted erroneously in dismissing a prisoner's claim that his Eighth Amendment rights were violated when he allegedly did not receive any medication for hepatitis C, resulting in the development of cirrhosis of the liver. The prisoner claimed that he was first denied treatment because of a policy to only provide treatment to prisoners already incarcerated for twelve months, and subsequently based on a policy of providing treatment only if a prisoner would not be discharged within 12 months. Trigo v. Texas Dept. of Criminal Justice, No. 06-20131, 2007 U.S. App. Lexis 3576 (5th Cir.).

Medical Care: Mental Health

     While a prisoner suffering from a bipolar disorder and severe depression showed that he had serious medical needs, he failed to show that a mental health counselor acted with deliberate indifference to these needs by denying him medication after learning from a psychiatrist that he had been self-medicating himself. The counselor made a good-faith effort to determine whether the inmate's symptoms justified medication and allegedly determined that they did not. Goodrich v. Clinton County Prison, No. 04-3741, 2007 U.S. App. Lexis 1148 (3rd Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A federal trial court acted erroneously in dismissing all of a prisoner's claims after it determined that he had exhausted available administrative remedies as to only one of them. Appeals court rules, however, that the claim on which the prisoner exhausted the grievance procedure, denial of his right of access to the courts, was frivolous, since his constitutional right of access to the courts did not include a requirement that he be provided with the capacity to pursue a lawsuit for wrongful discharge. Stephens v. Guilfoyle, No. 06-6149, 2007 U.S. App. Lexis 3388 (10th Cir.).

     Prisoner who did not specify in his grievance a particular person allegedly responsible for his grievances, and did not file his grievance against any defendant later named in his federal civil rights lawsuit failed to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a), so that the lawsuit should be dismissed. Additionally, the grievance filed only raised one of the 8 claims that he later asserted in his lawsuit. Myers v. Metro Sheriff's Office, No. 3:07-cv-00015, 2007 U.S. Dist. Lexis 626 (M.D. Tenn.).

Prison Litigation Reform Act: "Three Strikes" Rule

     While a prisoner had previously had more than three lawsuits dismissed as frivolous, malicious, or failing to state a claim for which relief had been granted, he was not barred under 28 U.S.C. Sec. 1915(g) from proceeding as a pauper with his federal civil rights lawsuit, when his complaint and attached materials claimed that he was facing an imminent danger of serious physical harm. Claiborne v. Director of Corrections, No. 06-15996, 2007 U.S. App. Lexis 1534 (9th Cir.).

Prisoner Assault: By Inmates

     Prison employees were entitled to summary judgment from inmate's claim that they failed to protect him from assault by other prisoners. One of them offered to place him in protective custody when first notified of an alleged threat against him, and he refused this offer, and then failed to tell her of any further threats. Three other employees were also found not to have acted with deliberate indifference to a known substantial risk of harm. Belcher v. U.S., No. 06-3009, 2007 U.S. App. Lexis 3799 (10th Cir.).

     Prisoner could not pursue a claim for unconstitutional failure to protect him from injuries in a jail fight when he failed to identify the officials he claimed were responsible for that failure, and the one officer he did specifically name was so far removed from the events that occurred to be held responsible for his injuries. Finally, his claim against the county failed, in the absence of any viable claim against any individual. Petty v. County of Franklin, No. 06-3552, 2007 U.S. App. Lexis 3377 (6th Cir.).

     Prison warden was entitled to qualified immunity in prisoner's lawsuit claiming that he acted with deliberate indifference to the risk that the prisoner would be attacked by another inmate. The evidence failed to show that the warden had knowledge of the risk to the inmate, and even the plaintiff prisoner himself stated that, while he spoke to the warden about the need for more security, he did not inform her that he believed his life was endangered by gang activities. Mathis v. Warden Stevenson, No.C-05-523, 2007 U.S. Dist. Lexis 7373 (S.D. Tex.).

Prisoner Assault: By Officers

     Deputy used reasonable force against inmate in light of prisoner's history of violence and his violent response to requests to step outside, including his scuffle with deputies. McBride v. Hilton, No. 06-30146, 2007 U.S. App. Lexis 2505 (5th Cir.).

     Prisoner's own actions, including the use of "disparaging" language during argument with officer who allegedly denied request to use telephone, created a confrontation resulting in the use of force to remove him from the cell tier. Officer's actions were reasonable under the circumstances. Any injuries were minor and occurred only after the prisoner allegedly engaged in the destruction of a chair. Brown v. Terry, No. 05-343, 2007 U.S. Dist. Lexis 3085 (D. Del.).

Prisoner Classification

     Placement of a prisoner into a "level IV" rather than a "level III" prison in California did not violate a 14th Amendment due process liberty interest or violate the Eighth Amendment prohibition against cruel and unusual punishment when the prisoner did not suffer an "atypical and significant hardship" by reason of the classification. Myron v. Terhune, No. 04-15770, 2007 U.S. App. Lexis 2818 (9th Cir.).

Prisoner Discipline

     Disciplinary proceeding properly imposed loss of good-time credits on prisoner after being presented "some evidence" sufficient to find that he had set fire to his prison cell. Tucker v. Wiley, No. 06-1415, 2007 U.S. App. Lexis 3063 (10th Cir.).

     Prisoner was properly found guilty of violating a prison rule after a law library clerk who retrieved a book from the prisoner's cell found a folder inside the book containing legal work from another inmate and a letter to the plaintiff prisoner describing the documents found in the folder. A two-week delay in writing up a misbehavior report for disciplinary purposes was not a violation of the prisoner's rights when the report's author had to first determine that the conduct complained of had not already been charged in prior proceedings concerning giving unauthorized legal assistance. Chaney v. Selsky, No. 500465, 2007 N.Y. App. Div. Lexis 1964 (3rd Dept.).

     Disciplinary conviction of prisoner for violating prison rules by writing a sexually explicit letter to a corrections counselor was supported by substantial evidence, including the letter itself, other samples of the prisoner's handwriting, a misbehavior report, and the testimony of the corrections officer who wrote the report. Expert witness testimony was not required to conclude that the handwriting on the letter was that of the prisoner, as this could be assessed by the hearing officers. Matter of Hood v. Goord, #98720, 2007 N.Y. App. Div. Lexis 247 (3rd Dept.).

Prisoner Restraint

     Officers who placed prisoner in restraints during suicide watch did not use excessive force or place him there with the intent of harming him. Additionally, verbal insults by two officers after his suicide attempt did not amount to cruel and unusual punishment. Martinez v. Zadroga, No. 06-1410, 2007 U.S. App. Lexis 1769 (10th Cir.).

Prisoner Suicide

     City and police officer were not entitled to summary judgment in lawsuit concerning prisoner's successful suicide. Judge at arraignment had ordered that the prisoner be placed on suicide watch, and officer had been present at the hearing, but allegedly failed to notify anyone concerning the suicide watch, resulting in the prisoner hanging himself when he was left alone in his cell for an hour. Cooper v. County of Washtenaw, No. 06-1013, 2007 U.S. App. Lexis 3630 (6th Cir.).

Prisoner Transfers

     Bureau of prisons regulations barring a prisoner's transfer to a Community Correctional Center (CCC) until only 10% of his sentence remained to be served were a violation of the intent of Congress in 18 U.S.C. Sec. 3621(b) that all decisions regarding placement and transfers of inmates be made on an individual basis. Wedelstedt v. Wiley, No. 06-1461, 2007 U.S. App. Lexis 3701 (10th Cir.).

Religion

     Federal prison authorities did not violate the Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb, by requiring Muslim prisoners to wear kufis rather than turbans. Court rules that this was the least restrictive means of achieving the prison's security needs, and the plaintiff failed to indicate any less restrictive accommodation that the prison might have adopted. Appeals court rejects challenge to Bureau of Prison's Program Statement 5360.09. Jefferson v. Lappin, No. 06-5219, 2006 U.S. App. Lexis 31931 (D.C. Cir.).

     Prisoner who claimed that he was improperly suspended from attending all chapel functions, preventing him from participating in congregational prayers through the Muslim holy month of Ramadan presented a valid claim for violation of his rights to religious freedom under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc-1(a). While the suspension was imposed by the chaplain based on the prisoner's alleged involvement in posting unauthorized flyers, the suspension allegedly improperly continued even after an investigation had been completed and cleared the prisoner of any involvement. Parks-El v. Fleming, No. 06-7151, 2007 U.S. App. Lexis 534 (4th Cir.).

Segregation: Administrative

***Editor's Case Alert***

     Placement of transsexual inmate, who lived life as a female but had male genitalia, into administrative segregation for 14 months without an adversarial hearing or right to appeal did not violate her due process rights. While the placement isolated the prisoner, it did not extend the period of their confinement and did not impose an "atypical and significant hardship" sufficient to violate due process, since the prisoner was provided with the "ordinary essentials" of prison life. DiMarco v. Wyoming Depart. of Corrections, No. 04-8024, 2007 U.S. App. Lexis 1497 (10th Cir.).

Sexual Assault

     Deputy who served as supervisor at county jail was not entitled to summary judgment in female detainee's lawsuit claiming that he had been deliberately indifferent to the risk that a correctional officer would sexually assault her. The deputy himself stated that no officer was authorized to go into a detainee's cell after lockdown, but that he knew that a trainee officer went into the plaintiff detainee's cell three times within an hour after lockdown. The detainee's right to be protected against sexual assault was clearly established, so that the supervisor was not entitled to qualified immunity. Kahle v. Leonard, No. 06-2485, 2007 U.S. App. Lexis 3107 (8th Cir.).

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     Juvenile Corrections Officers: Juvenile Corrections Officer Core Course Physical Tasks Training Manual, by Montgomery, Shelley; Parker, Daryl S.; California Board of Corrections. Standards and Training for Corrections Program (Sacramento, CA) Published 2007, 129 pages. This manual sets forth "the core curriculum and design specifications for the portions of the Juvenile Corrections Officer Core Course that pertain to the performance of physically demanding tasks" (p. 1) Sections comprising this manual include: introduction; testing procedures; research findings; instructional guidelines; instructional objectives; charts and diagrams; and explanation of plyometric exercises.

     Mentally Ill Prisoners: "Assessing the Effectiveness of Jail Diversion Programs for Persons with Serious Mental Illness and Co-Occurring Substance Use Disorders," by Steadman, Henry J.; Naples, Michelle; Source(s): Policy Research Associates (Delmar, NY) Published 2005, 8 pages. Results from an assessment of federally-funded jail diversion programs for offenders with serious mental illness and co-occurring substance use disorders are presented. This article is comprised of these sections: abstract; background; methodology; major findings regarding participants; 12-month outcomes; and cost data; and conclusion. Time spent in jail was reduced by an average of two months for diverted participants.

     Report: Public Safety, Public Spending, a report released by the Public Safety Performance Project of The Pew Charitable Trusts, and written by the JFA Institute, a Washington-based, nonprofit research and consulting firm. Released on February 14, 2007, the report predicts that, by 2011: Without policy changes by the states, the nation’s incarceration rate will reach 562 per 100,000, or one of every 178 Americans. If you put them all together in one place, the incarcerated population in just five years will outnumber the residents of Atlanta, Baltimore and Denver combined. The new inmates will cost states an additional $15 billion for prison operations over the five-year period. Construction of new prison beds will cost as much as $12.5 billion. Unless Montana, Arizona, Alaska, Idaho and Vermont change their sentencing or release practices, they can expect to see their prison systems grow by one third or more. Similarly, barring reforms, Colorado, Washington, Wyoming, Nevada, Utah and South Dakota can expect their inmate populations to grow by about 25 percent. Connecticut, Delaware and New York are projected to see no change in their prison populations. Maryland will see a 1 percent increase in prison population. The number of women prisoners is projected to grow by 16 percent, while the male population will increase 12 percent.

Reference:

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

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