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Access to Courts/Legal Info

     Correctional officer was entitled to summary judgment in prisoner's lawsuit accusing him of violating his right of access to the courts. The prisoner failed to show that the officer's alleged interference with his prison mail caused him to suffer any actual injury to his ability to pursue litigation. Tuzon v. Miller, No. 05-16234, 2007 U.S. App. Lexis 14212 (9th Cir.).

     A prisoner who alleged a denial of access to a law library for only a short time failed to show that this denied him a constitutionally protected right of access to the courts, since he did not show how this hindered his litigation efforts. Further, his claim that he was denied access to an inmate grievance procedure did not state a claim for violation of due process, since he had no constitutionally protected right of access to such a grievance procedure. The appeals court also rejected the prisoner's claim that he was subjected to cruel and unusual punishment because he was fed "nutra-loaf" while placed in isolation for twenty days. Thomas v. Warner, No. 06-10883, 2007 U.S. App. Lexis 13265 (11th Cir.).

     A prisoner who failed to show how alleged denial of access to a law library prevented him from pursuing a meritorious claim to the courts could not pursue a federal civil rights claim. The record showed, in fact, that despite the alleged denial of access, he had managed to submit state appeals, state habeas petitions, and federal petitions that were either still under review by the courts on the merits, or which were, in some cases, denied. He only showed that one such denial was based on procedural grounds, and that denial was based on multiple reasons, only one of which was a delay in filing the petition, which he failed to explain. Noble v. Adams, No. 1:03-cv-05407, 2007 U.S. Dist. Lexis 36494 (E.D. Cal.).

Defenses: Statute of Limitations

     A Florida prisoner's dental malpractice claim accrued in 1999 for purposes of a two-year state statute of limitations, since he then knew that several root canals had failed, even if he did not learn the exact reason for the failure until later. His malpractice claim, filed in 2002, was therefore time-barred. The prisoner's Eighth Amendment claim alleging cruel and unusual punishment could not be pursued against a federal agency under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-80, and accordingly was properly also dismissed. Trupei v. U.S. Dept. of Justice, No. 06-15005, 2007 U.S. App. Lexis 14641 (11th Cir.).

     A Pennsylvania prisoner's claims that a correctional officer violated his Eighth Amendment rights by arbitrarily denying him access to his cell and preventing him from using toilet facilities were time barred when he filed them months after the expiration of a two-year statute of limitations. Bagley v. Bourne, No. 06-3459, 2007 U.S. App. Lexis 13081 (3rd Cir.).

Diet

     A New York prisoner failed to show that correctional officials violated his due process rights by putting him on a restrictive diet that he claimed aggravated his existing mental health condition, resulting in him suffering a mental breakdown. There was no violation of due process, based on the fact that a medical clearance was given before the diet was implemented. A federal appeals court, however, reinstated the prisoner's Eighth Amendment claim, finding that the trial court used too high a standard, requiring the prisoner to show that correctional officials acted in a sadistic and malicious manner, rather than with deliberate indifference to his health or safety. The prisoner adequately alleged that correctional officials knew about the seriousness of his mental condition, and intentionally used a false charge to impose the restricted diet which caused his breakdown, requiring further proceedings. Guilbert v. Sennet, No. 05-6594, 2007 U.S. App. Lexis 13401 (2nd Cir.).

DNA

     Provisions of the DNA Analysis Backlog Elimination Act, 42 U.S.C.S. §14135, allowing required DNA testing of certain offenders convicted of non-violent felonies who were on probation, supervised release, or parole, did not violate the Fourth Amendment. The fact that the statute does not require individualized suspicion that the offenders have been involved in additional crimes did not alter the result. The interests of the government in obtaining the DNA samples from the offenders, including fighting recidivism, solving crimes, and providing accurate identifications of the offenders, outweighed any intrusion on their privacy rights. The plaintiff offenders' argument that their DNA samples might be misused did not alter the result when they did not point to any specific alleged misuse. Banks v. US, No. 06-5068, 2007 U.S. App. Lexis 14341 (10th Cir.).

First Amendment

     A Florida prisoner failed to show that prison officials altered his work assignment in retaliation for his pursuit of grievances, in violation of his First Amendment rights. Brown v. Mache, No. 07-10034, 2007 U.S. App. Lexis 12326 (11th Cir.).

Frivolous Lawsuits

     Prisoner's lawsuit claiming that a city and county, and a number of jail employees planted a "homing device" in his body during an appendix operation and threatened sexual assaults against his friends and family was properly dismissed as frivolous. He named both the city and county as Defendants, but did not show that the alleged actions were caused by an official policy or custom, and also failed to identify the jail employees by either their names or their jobs. Hodges v. Denver, No. 07-1011, 2007 U.S. App. Lexis 12318 (10th Cir.).

Governmental Liability: Policy/Custom

     California prisoner failed to show that a sheriff was personally involved in or had knowledge of the alleged verbal threats, unsanitary conditions, denial of a needed special diet, or denial of use of the library. The county could not be held liable for such deprivations, even if true, when no claim was made that they were the result of an official county policy or custom. Apollo v. County of Sacramento, No. 05-16774, 2007 U.S. App. Lexis 14209 (9th Cir.).

Inmate Property

     Based on the items listed on a property inventory form signed by the plaintiff prisoner when he was placed in isolation, he failed to show that any property listed there was not later returned to him as he claimed. The prisoner failed to show that the items he claimed were lost or stolen when he was transferred to isolation were delivered to the defendant department. Eubank v. Ohio Dept. of Rehab. and Correction, Case No. 2006-07210-AD, 2007 Ohio Misc. Lexis 169 (Ct. of Claims).

Medical Care

     Prison officials were not shown to have acted with deliberate indifference in denying a prisoner's request for a replacement prosthetic leg, based on his claim that it fit poorly and caused him pain. The prisoner was offered alternatives of using crutches, a cane, or a wheelchair instead of getting a replacement prosthetic leg, and his mere disagreement with his treating doctors about these alternatives for his serious medical condition, an amputated leg, was insufficient to show deliberate indifference. Gillen v. D'Amico, No. 06-15733, 2007 U.S. App. Lexis 13846 (9th Cir.).

     A doctor's actions in failing to provide a prisoner with a walking stick, cane, or knee brace for a period of time, if true, was, at most, a difference of opinion or negligence (medical malpractice), and was insufficient to state a claim for violation of the prisoner's constitutional rights. The prisoner also failed to show that he suffered injuries because he was placed on the second floor of a building, or assigned to a hoe squad work detail, which he claimed violated his medical restrictions. The prisoner was denied the right to proceed with his appeal as a pauper, and his appeal was dismissed. The dismissal constituted a "third strike" against the prisoner, pursuant to 28 U.S.C. Sec. 1915(g), including the trial court's dismissal of the immediate lawsuit, and an appeals court's dismissal of a prior civil rights case by the prisoner as frivolous. Johnson v. Talley, No. 05-50947, 2007 U.S. App. Lexis 13879 (5th Cir.).

Medical Care: Dental

     Federal appeals court upholds summary judgment against a prisoner who claimed that a jail's medical personnel were deliberately indifferent to his serious dental needs, and retaliated against him for refusing to visit the county dentist, as well as that the county had an improper policy under which teeth were only pulled out, rather than treated. The defendant produced medical evidence that the treatment provided or offered was adequate, and the prisoner's bare claim that the treatment was inadequate did not create a genuine issue of fact. The prisoner did not prove that there had been any retaliation against him. Further, while the prisoner claimed, on the basis of a conversation with a guard, that the county had a "pull teeth only" policy, his transfer to another facility prior to filing his lawsuit deprived him of standing to pursue any challenge to the alleged policy. Meuir v. Greene County Jail Employees, No. 05-3394 2007 U.S. App. Lexis 13006 (8th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A federal trial judge acted erroneously in dismissing all claims against all defendants when only one defendant had asserted that the prisoner had failed to exhaust administrative remedies on the claims against him. Hobbs v. Foreman, No. 06-3427, 2007 U.S. App. Lexis 13568 (8th Cir.).

     Federal appeals court reverses dismissal of prisoner's claims against certain prison officials who allegedly interfered with his receipt of medications prescribed for his mental illness and diabetes. Based on the U.S. Supreme Court's decision in Jones v. Bock, #05-7058, 127 S. Ct. 910 (2007), the prisoner was not required to "plead and prove" that he had exhausted all available administrative remedies, so the dismissal of the lawsuit on that basis was improper. The appeals court did, however, uphold the dismissal of claims against one official whose involvement merely amounted to denying the prisoner's grievances over the alleged interference with receipt of the medication, as this did not show participation in the alleged violation of the prisoner's rights. Larson v. Meek, No. 04-1169, 2007 U.S. App. Lexis 14144 (10th Cir.).

Prison Litigation Reform Act: "Three Strikes Rule"

     Federal court rejects prisoner's argument that he did not have three strikes against him under the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), based on the claim that at the time he filed one of his prior civil lawsuits against a county jail, he was released overnight and then rearrested the following day. Even if he was briefly released, this did not change the fact that he was in custody at the time the lawsuit in question was filed, so that it could properly be counted as one of his three strikes. Buford v. Mounts, No. CV-F-02-6187, 2007 U.S. Dist. Lexis 41648 (E.D. Cal.).

Prisoner Assault: By Inmates

     Trial court properly entered a judgment in favor of prison officials on inmate's claim that they failed take proper action to protect him from assault by other prisoners when he failed to provide them with the names of those making threats against him. The trial court's decision to exclude from evidence a settlement agreement between the U.S. government and the Montana Department of Corrections that barred prison officials from requiring prisoners, as a precondition for being moved to protective custody, to identify the persons threatening him was upheld. The prisoner failed to show that a defendant prison official had known about the document and its contents at the time at issue, and the prisoner's lawyer could still have asked the defendant questions about the document. Hummel v. Hurlbert, No. 04-35386, 2007 U.S. App. Lexis 13939 (9th Cir.).

     Prisoner who was allegedly placed in a cell with a cousin of the man he was accused of murdering failed to state a claim against the warden, the jail, the sheriff, and the parish for failure to protect him from the assault. The appeals court rejected the prisoner's argument that he should have been allowed to amend his complaint and add, as a defendant, a correctional officer who was allegedly also a cousin to the murder victim, and who supposedly was involved in his placement in the cell where he was assaulted. The plaintiff's initial complaint was detailed, and the court found that it was apparent that he had asserted his best case, and that his consistent complaints were not about the officer's alleged actions, but about security at the jail. Clark v. Herbert, No. 05-30957, 2007 U.S. App. Lexis 12548 (5th Cir.).

Prisoner Assault: By Officers

     Prisoner failed to show that a warden had the knowledge required to have acted with deliberate indifference to a purported substantial risk that prison guards would use excessive force against him. He claimed that the guards beat him in a room without cameras where they took him, and subsequently denied him access to immediate medical care for his injuries. The employment records of the officers failed to show that they were an obvious risk to prisoners, and a trial judge's disagreement with the warden's choices in disciplining one of the officers for allegedly mistreating a prisoner by suspending him was not sufficient to support a finding of deliberate indifference. Lenz v. Reed, No. 06-3017, 2007 U.S. App. Lexis 14460 (8th Cir.).

     Prisoner's claim that correctional employees used excessive force against him was rejected after he failed to refute the evidence presented by the defendants that the back pain he experienced was the result of a medical condition--a degenerative disc disease he suffers from, rather being caused a defendant's conduct. Appeals court also upholds rejection of claims for denial of access to the courts and for purported due process violations in connection with a disciplinary hearing in which the prisoner was found not guilty of battery. Billups v. Hammon, No. 06-55274, 2007 U.S. App. Lexis 12672 (9th Cir.).

     Prisoner presented a viable claim for use of excessive force against correctional officer who allegedly punched him in the eye, breaking the orbital bone in his face, while he was being carried up some stairs in shackles following an incident in which the prisoner was restrained. A videotape of the incident did not suffice to indicate whether the injury was inflicted by the guard or by the prisoner on himself after he twisted his body away while being carried. Claims against all other defendants, including supervisory personnel and a prison nurse, were dismissed. Christle v. Magles, No. 6:05cv334, 2007 U.S. Dist. Lexis 35438 (E.D. Tex.).

Prisoner Death/Injury

     Prisoner could not pursue federal civil rights claim against sheriff and county for his injury in a prison shower exit based on alleged negligence in failing to provide a shower mat, since negligence is insufficient for such a claim. The prisoner also failed to show, for purposes of an Eighth Amendment civil rights claim, that there was an official county policy or custom which results in the absence of non-slip shower exits. Smith v. Leonard, No. 06-41123, 2007 U.S. App. Lexis 14003 (5th Cir.).

Prisoner Discipline

     The plaintiff prisoner failed to prove his claims that prison officials maliciously conspired to concoct a misconduct charge, which was used to discipline him, and violated his due process rights in reducing his security classification, or in connection with the disciplinary hearing itself. Cardoso v. Calbone, No. 06-6266 2007 U.S. App. Lexis 14342 (10th Cir.).

     New York correctional employees were entitled to summary judgment in a lawsuit by a prisoner claiming that his due process rights were violated when they failed to personally interview two witnesses he sought to call at his disciplinary hearing, but who refused to testify. The disciplinary proceeding involved his alleged refusal to properly submit an unadulterated urine specimen as part of an ordered drug test. There was no requirement to call the witnesses, as the defendants reasonably believed, relying on other staff members, that it would be "futile" to do so. Additionally, even if their actions were found to violate the prisoner's rights, such rights were not clearly established by prior case law, so that the defendants would be entitled to qualified immunity. Hill v. Selsky, No. 06-CV-6043, 2007 U.S. Dist. Lexis 33455 (W.D.N.Y.).

Prisoner Suicide

     County officials were not shown to have had actual knowledge that a pre-trial detainee was a suicide risk, and therefore were not liable for his suicide approximately five hours after he was brought to a jail. No "troubling behavior" was observed prior to his death, and any failure to assess and monitor the detainee was, at most, negligence, which was insufficient for a federal civil rights claim. The defendants were entitled to qualified immunity. Whitt v. Stephens County, No. 06-11215, 2007 U.S. App. Lexis 12550 (5th Cir.).

Prisoner Transfer

     A federal prisoner failed to show that he had a constitutionally protected liberty interest in assignment to either a specific housing location nearer his family or to a lower custody security level. The court rejected the argument that the failure to transfer him to a medium or low security facility closer to his relatives violated his right to equal protection, based on his claim that other prisoners with a similar history had received such transfers. The prisoner failed to show that those other prisoners were "similarly situated" to him as to his offenses, and there was no showing that prison officials rejected the transfer request discriminatorily on the basis of an unlawful factor (such as race, gender, etc.). Green v. Williamson, No. 06-5022, 2007 U.S. App. Lexis 14376 (3rd Cir.).

Religion

     A Muslim inmate who was an Egyptian citizen failed to show that the vegetarian meal plan offered him violated any of his personal religious beliefs, and a nutritional analysis of the food offered indicated that it satisfied recommended dietary allowances. Additionally, the plan offered was created after consultation with a Muslim clergyman. The court also found that the prisoner did not have an unqualified or absolute right to send confidential mail from the prison to the Egyptian embassy or consulate, so that the alleged refusal to allow him to do so could not be the basis of a civil right claim. Sefeldeen v. Alameida, No. 05-15809, 2007 U.S. App. Lexis 13508 (9th Cir.).

     Florida Orthodox Jewish prisoner could proceed with his claim that he was improperly denied kosher meals, but failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a), on a number of other claims, including alleged denial of permission to wear religious clothing, and denial of some supplies for observing the Jewish holiday of Sukkot. Lawson v. McDonough, No. 4:04-cv-00105, 2007 U.S. Dist. Lexis 37821 (N.D. Fla.).

     Appeals court orders further proceedings on prisoner's claim that prison officials violated his rights by delaying in providing him with a vegan diet after he converted from Islam to the African Hebrew Israelite religion. The prisoner's claim could properly be analyzed under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. §§ 2000cc to 2000cc-5, even though the prisoner cited the Religious Freedom Restoration Act, which could not be applied to the states, in his response to the defendants' motion for summary judgment. The prisoner was not required to cite the specific statute he was relying on in his complaint, and therefore did not waive his rights under the RLUIPA by failing to cite it. Whitfield v. Illinois Department of Corrections, No. 06-2245, 2007 U.S. App. Lexis 12786 (7th Cir.).

Segregation: Administrative

     Prison officials were entitled to qualified immunity and summary judgment on prisoner's claims that his due process rights were violated by placing him in administrative segregation for a period of over 850 days. The prisoner was not subjected to an "atypical and significant hardship," and therefore no constitutionally protected liberty interest was violated. Hunt v. Sapien, No. 05-3004, 2007 U.S. Dist. Lexis 37976 (D. Kan.).

     A prisoner's relatively brief placement in administrative segregation was not shown to have subjected him to an "atypical and significant hardship," so it was not an error to dismiss his lawsuit. Additionally, claims against state correctional officials in their official capacities seeking money damages were barred by Eleventh Amendment immunity. Clayton v. Ward, No. 06-7079, 2007 U.S. App. Lexis 12245 (10th Cir.).

Smoking

     An Ohio state statute allowing correctional officials to designate "at least" one tobacco-free housing area within a correctional facility also allowed them to declare the entire facility tobacco-free. The defendants also had authority to discipline the plaintiff prisoner for violating a ban on smoking, so doing so did not constitute impermissible "harassment" or "retaliation." Call v. Ohio Dept. of Rehabilitation & Corrections, No. 06AP-1057, 2007 Ohio App. Lexis 2451 (10th Dist, Franklin County).

Tasers, Stun Guns, and other Electronic Control Devices

****Editor's Case Alert****

     The use of a Taser® against a prisoner is not, by itself, a violation of constitutional rights when it is used to obtain his obedience, and the plaintiff prisoner did not prove that its use against him was objectively unreasonable under the circumstances. A correctional officer was therefore entitled to qualified immunity on the prisoner's claims against him individually. The prisoner had just suffered minor injuries during an altercation with officers while receiving his medication. He subsequently refused to obey orders to sit on his bunk while officers re-entered his cell to retrieve some dropped keys, and the Taser® was used against him to compel his compliance, after which the keys were retrieved, and a nurse entered the cell to provide medical assistance. Claims against the officer in his official capacity were barred by the Eleventh Amendment, as the state of Kansas had not waived its immunity against federal civil rights lawsuits for damages under the general language of a state statute, Kan. Stat. Ann. Sec. 19-811. Hunter v. Young, No. 06-3371, 2007 U.S. App. Lexis 13886 (10th Cir.).

Terrorism, Enemy Combatants, & Military Prisoners

     A man born in Qatari, who was lawfully in the U.S., and who has been detained without charges since 2003, when President Bush designated him as an "enemy combatant," was ordered released by a federal appeals court. The court, by a 2-1 vote, ruled that holding civilians as detainees without charges for an unlimited period of time could result in "disastrous consequences for the Constitution, and the country." The court also found that there was no evidence that the detainee had been engaged in the use of arms against the U.S. on a battlefield or in a combat zone, and was therefore not an enemy combatant. The U.S. government was ordered to release him, within a reasonable time, from military custody. He could still, the court noted, be subjected to either criminal charges, if any were brought, or to deportation proceedings. Al-Marri v. Wright, #06-7427, 2007 U.S. App. Lexis 14109 (4th Cir.).

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     Homeland security website: The Justice Dept. has created a National Security Resources website for the criminal justice community, at: www.nationalsecurityresources.gov/

     Jail Standards & Inspections: Jail Standards and Inspection Programs: Resource and Implementation Guide. Author(s) Martin, Mark D. Source(s) National Institute of Corrections. Jails Division (Washington, DC) Details Published 2007. 64 pages. “The purpose of this guide is to give information that will help states and state jail-related organizations to develop or update jail standards and inspection programs" (p. v). This publication contains the following sections: introduction; role and purpose of jail standards; jail standards and liability; key elements of jail standards and inspection programs; strategies for developing and implementing jail standards programs; technical assistance and resources available from the National Institute of Corrections; topics of litigation; summary of state standards and inspection programs; profiles of three organizational models of standards programs; example of a group charter for a jail standards planning committee; excerpted sections of enabling legislation for Nebraska Jail Standards; and Competency Profile of a Detention Facility Inspector.

     Litigation Documents: Amended Settlement Agreement Between the United States of America and the State of Maryland Regarding Conditions at Three Juvenile Justice Facilities. Source(s) U.S. District Court. District of Maryland (Baltimore, MD) Details Published May 17, 2007. 41 pages. "The denial of particular constitutional rights of youth confined at the Cheltenham Youth Facility, Charles H. Hickey, Jr. School, and Baltimore City Juvenile Justice Center (all located in Maryland) is rectified by this amended agreement. Sections of this document are: introduction; definitions; substantive remedial measures - in general, protection from harm, suicide prevention, mental health, medical care, special education, and fire safety; compliance and quality assurance; monitoring and enforcement; reporting requirements and right of access; and implementation and termination. A copy of the original agreement is also included."

     Overcrowding: "Increasing Public Safety and Generating Savings: Options for Pennsylvania Policymakers." Source(s) Council of State Governments. Justice Center (New York, NY) Sponsor(s) U.S. Bureau of Justice Assistance (Washington, DC) Pew Charitable Trusts (Philadelphia, PA) Details Published 2007. 8 pages. "Causes for the increase in Pennsylvania's state prison population and strategies to reduce growth while increasing public safety are discussed. This policy brief is divided into four parts: background; recent and projected growth of the prison population; factors driving the increase in the prison population; and options for policymakers."

     Prison Rape and Sexual Misconduct: Research Report on Sexual Assault in California. In a report submitted to the California Department of Corrections and Rehabilitation, researchers from the Center for Evidence-Based Corrections examine the extent of inmate sexual assault, demographic characteristics of victims, and characteristics of reported incidents. An executive summary is also available. Published Tuesday, June 12, 2007.

Reference:

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

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