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Access to Courts/Legal Info

     Federal appeals court reinstates prisoner's claim for denial of access to the courts. Prisoner stated a viable claim by asserting that correctional officials required him to request legal materials exactly without any knowledge of what materials might be available to him, and that these actions prevented him from filing a state habeas corpus petition and from challenging the retroactive changing of his sentence. Trujillo v. Williams, No. 04-2257, 465 F.3d 1210 (10th Cir. 2006).

     Even if the legal materials provided to the plaintiff inmate were inadequate, as he claimed, he failed to show that this resulted in any detriment to his ability to pursue an appeal in his criminal case.  Driggers v. Carlson, No. 04-C-322, 2006 U.S. Dist. Lexis 69374 (E.D. Wis.).

     Prisoner did not show how alleged confiscation of "excessive" legal materials by prison officials interfered with his preparation and filing of a brief in another civil rights lawsuit, and therefore did not show a denial of his constitutional right of access to the courts. The prisoner's appeal was frivolous, and he was properly sanctioned by being ordered to pay $500 to the clerk of the court. Taylor v. Stanciel, No. 05-60428, 2006 U.S. App. Lexis 25387 (5th Cir.).

     Prisoner failed to show how the alleged loss or theft of his manila folders and blank legal forms damaged his ability to pursue a particular legal claim, or explain how the defendant correctional officials were responsible for the alleged loss of his legal materials. Burden v. Warden, No. 06-1175, 2006 U.S. App. Lexis 26654 (10th Cir.).

Defenses: Statute of Limitations

     Prisoner's federal civil rights claims were barred by a two-year statute of limitations to the extent that they involved events occurring from 1972 through September of 2001. Gay v. City of Philadelphia, No. 05-4718, 2006 U.S. App. Lexis 26878 (3rd Cir.).

Employment Issues

     Correctional officials' alleged failure to do anything in response to female correctional employee's concerns about presence of a male inmate in her office after hours was sufficient to support denial of summary judgment in a lawsuit claiming that the inmate's alleged sexual assault on her grew out of a "hostile work environment," because this lack of response could be found unreasonable by a reasonable jury. Erickson v. WI Dep't of Corr., No. 05-4516, 2006 U.S. App. Lexis 28125 (7th Cir. November 14, 2006)

     White male correctional employee failed to show that his firing for having brought prohibited alcoholic drinks onto prison property on several occasions constituted racial discrimination. Another employee who was not fired for possession of alcohol on prison property was not similarly situated since there was no showing of multiple incidents over a period of time, as there was with the plaintiff. Veazey v. Ark. Dept. of Corrections, No. 5:05CV080, 2006 U.S. Dist. Lexis 73430 (E.D. Ark. 2006).

Exercise

     Prisoner who allegedly was denied outdoor exercise for over nine months failed to show that warden acted with deliberate indifference to his rights when evidence showed that the restrictions on such exercise were imposed mainly for the purpose of preventing a reoccurrence of racial violence which had previously occurred. Additionally, there was evidence that every time the warden tried to relax restrictions on outdoor exercise, more violent incidents occurred. Hayes v. Garcia, No. 04-2112, 2006 U.S. Dist. Lexis 80279 (S.D. Cal.).

First Amendment

     Prison officials failed to show a rational relationship between rehabilitative goals for the plaintiff prisoner and actions denying him access to eight specific publications withheld under a federal statute and regulations, the Ensign Amendment, 28 U.S.C. Sec. 530C(b)(6) and 28 C.F.R. Sec. 540.72 prohibiting the use of prison funds to distribute commercial materials featuring nudity or which were sexually explicit. Prisoner could proceed with his lawsuit challenging the constitutionality of the statute and regulations under the First Amendment. Jordan v. Sosa, No. 05-CV-01283, 2006 U.S. Dist. Lexis 82037 (D. Colo.).

     Evidence showed that prisoner's property was not destroyed in retaliation for his filing of a grievance over it being confiscation, but instead because prison officials believed it to be contraband. Buehl v. Beard, No. 03-1313, 2006 U.S. Dist. Lexis 68642 (W.D. Pa.).

Inmate Funds

     In prisoner's lawsuit challenging garnishment of his prison account to pay appeals court costs, Michigan state statute did not allow the deduction of 100% of the inmate's monthly income from his account for such costs, but rather limited the deduction to 20%. Accordingly, while costs were properly assessed against the prisoner, he could proceed with aspects of his lawsuit challenging the manner of collection of the costs. Skinner v. Govorchin, No. 05-2458,  463 F.3d 518 (6th Cir. 2006).

     Deduction of 5% of an inmate's monthly prison wages under a Kansas state statute directing the payment of such an amount to a crime victims' compensation fund did not violate his constitutional rights, despite the absence of a court order requiring the inmate to pay restitution to his victim. A prison policy requiring such payments satisfied constitutional due process, and the prisoner was not entitled to a hearing prior to the deduction of the money. Ellibee v. Simmons, No. 05-3479, 2006 U.S. App. Lexis 26169 (10th Cir.).

Inmate Property

     Prisoner could pursue his claim that Bureau of Prisons (BOP) officers lost his personal property, since immunity for law enforcement officers for such losses under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(c) did not apply to those officers. Mendez v. U.S., No. 05-1716, 2006 U.S. Dist. Lexis 76099 (D.N.J.).

Medical Care

     Prisoner's lawsuit claiming that doctor acted with deliberate indifference to his diabetes and resulting foot problems, misdiagnosing it as gout, and resulting in its amputation, was adequate to state a claim for violation of the Eighth Amendment. Dismissal of prior lawsuit involving the same claims did not bar the present lawsuit, since the first complaint was dismissed "without prejudice." Smith v. Missouri Dept. of Corrections, No. 06-1191, 2006 U.S. App. Lexis 27951 (8th Cir.).

     Prisoner showed that there were genuine issues of material fact as to whether a prison vocation nurse acted with deliberate indifference to his medical conditions. He claimed that she knew that he needed to go to the hospital, that he had complaints of swelling and pain in his testicle, and that a doctor had instructed her to call if his condition did not improve, but that she failed to provide any treatment. Ware v. Zeller, No. 04-20539, 2006 U.S. App. Lexis 28180 (5th Cir.).

     Prisoner's claim that a correctional employee denied him follow-up care after surgery, and also denied him a prescribed medication, which put him at risk of death was sufficient to assert a constitutional claim for inadequate medical treatment. Copenhaver v. Hammer, No. 1:05-CV-675, 2006 U.S. Dist. Lexis 66970 (W.D. Mich.).

     Prisoner who received nine eye examinations during an eight-month period after he suffered an eye injury during a handball game failed to show that prison officials acted with deliberate indifference to his medical needs. All the prisoner's claims showed was that he was in disagreement with the diagnoses or treatment offered by optometrists and an ophthalmologist, which is insufficient for an Eighth Amendment claim. The prisoner's lawsuit was properly dismissed as frivolous. Thomas v. Brockbank, No. 05-3480, 2006 U.S. App. Lexis 25547 (10th Cir.).

Medical Care: Mental Health

     New York state corrections law does not give prison superintendents authority to authorize the commitment of inmates who are sexual offenders to psychiatric hospitals in a unilateral manner. Prisoners are entitled, prior to such commitment, to procedural safeguards, including a right to be heard in court. New York ex rel. Harkavy v. Consilvio, No. 140, 2006 N.Y. Lexis 3580.

Medical Records

     Provisions of Virginia state Freedom of Information Act, Va. Code Ann. Secs. 2.2-3700 to 3704, under which a prisoner was denied access to medical records concerning his treatment in prison, did not constitute a violation of his rights. Provisions of the statute excluding prisoners from access to public records was supported by rational reasons and did not deny the prisoner equal protection of law. Additionally, the prisoner was not obstructed in his ability to pursue legal claims challenging his medical care while incarcerated. Giarratano v. Johnson, No. 2:06CV00004, 2006 U.S. Dist. Lexis 74882 (W.D. Va.).

Prison and Jail Conditions: Asbestos

     Prison officials were not entitled to summary judgment on the basis of qualified immunity in prisoner's lawsuit claiming that they acted with deliberate indifference to medical problems caused by his exposure to friable asbestos, which allegedly caused damage to his lungs. Further proceedings were ordered, however, on the question of whether the prisoner had actually suffered medical damages as a result of the exposure. Purser v. Donald, No. 05CV033, 2006 U.S. Dist. 73386 (S.D. Ga.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit claiming that he was sexually assaulted by a correctional officer was properly dismissed for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e when he filed a request to pursue an administrative remedy procedure but did so in an untimely manner. Johnson v. State of Louisiana, No. 06-30302, 2006 U.S. App. Lexis 26402 (5th Cir.).

     As long as a prisoner's grievance gives officials sufficient information to investigate his complaint, the prisoner's failure to identify the specific employee he claims violated his rights did not violate the requirement that he exhaust available administrative remedies. In this case, regulations concerning such grievances said nothing about any requirement to identify specific employees in such grievances. Kikumura v. Osagie, No. 04-1249, 461 F.3d 1269 (10th Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     Despite the fact that he had many more than three prior "strikes" against him, i.e., lawsuits dismissed as frivolous or for failure to state a claim, a prisoner was entitled to pursue as a pauper his lawsuit claiming that he had been denied proper treatment for both Hepatitis C and prostate cancer, since these claims constituted an allegation of imminent danger constituting an exception to the "three strikes" rule of 28 U.S.C. Sec. 1915(g). Ibrahim v. District of Columbia, No. 05-5370, 2006 U.S. App. Lexis 26676 (D.C. Cir.).

     Federal appeals court could not presume that a prisoner faced a threat of imminent death or serious physical injury merely because he claimed that he had been denied his heart medication, when he failed to describe either the medical condition resulting in the prescription or that he suffered a physical injury after he did not receive the medication. As a result, the court upheld the trial judge's decision denying the prisoner, who had previously had "three strikes," permission to proceed as a pauper in his federal civil rights lawsuit. Skillern v. Deputy Warden Paul, No. 06-11440, 2006 U.S. App. Lexis 24841 (11th Cir.).

Prisoner Assault: By Inmates

     Further proceedings ordered as to whether warden and correctional officers should have known that a prisoner faced a substantial risk of serious harm from an attack by another prisoner and that they should have reasonably known that it would violate his rights to not remove him from the general population while they proceeded to investigate an alleged threat against him. Leach v. Lowe, No. 04-16815, 2006 U.S. App. Lexis 27974 (9th Cir.).

Prisoner Assault: By Officer

     Prison shift commander was not shown to have used excessive force in removing a prisoner's necklace, when wearing it was a violation of institutional rules, and the force applied was shown to have been applied in a "good faith" attempt to maintain discipline, rather than sadistically or maliciously to cause harm. The prisoner also failed to show that he suffered any injuries from the officer's actions. Mullis v. Cobb County Board of Commissioners, No. 06-11930, 2006 U.S. App. Lexis 26371 (11th Cir.).

Prisoner Classification

     Policy under which prisoner's status was changed to a more restrictive classification, rendering him ineligible to participate in employment or other prison programs or make phone calls, and the application of that policy without written notice did not inflict an "atypical or significant hardship" and therefore did not violate his due process rights. Padilla v. Beard, No. 06-2900, 2006 U.S. App. Lexis 28439 (3rd Cir.).

Prisoner Death/Injury

     Unresolved factual issues concerning whether there was still a "storm in progress" while the State of New York allegedly attempted to remove snow from prison premises, and whether the prisoner should have not been allowed, during the storm, to travel from the dormitory to the schoolhouse, allegedly falling on the way and suffering injuries, barred summary judgment for the state and required a trial on the prisoner's personal injury claim. The state had argued that it could not be held liable for the prisoner's injury under the "storm in progress" doctrine, allowing landowners a reasonable period of time after a storm ends to engage in snow removal efforts. DeGregorio v. State of New York, No. 109305, 2006 N.Y. Misc. Lexis 2820 (Ct. Claims).

Prisoner Discipline

     Criminal prosecution of prisoner for attempting to promote prison contraband was not barred by a prior prison disciplinary proceeding involving the same incident finding him not guilty of assault and possession of a weapon. The New York Department of Correctional Services, which prosecuted the disciplinary charges against the prisoner, was not a representative of the People of the State of New York for purposes of prosecution, and the disciplinary proceedings results, therefore, did not have any impact on the ability to pursue the criminal charges. People v. Lowe, No. 100023, 2006 N.Y. App. Div. Lexis 13531 (A.D. 3d Dept.).

     Prisoner's rights were not violated by failure to have requested witness testify at disciplinary hearing when the witness was then medically unable to do so, and when the prisoner failed to show that his testimony would have been helpful to his case. Additionally, the prisoner basically admitted that he had been involved in the assault which was the subject of the disciplinary hearing. Speller v. Rios, No. 06-1159, 2006 U.S. App. Lexis 25628 (10th Cir.).

     Time limits in New York regulations for holding disciplinary hearing were not mandatory, and the prisoner failed to show that a delay caused any prejudice to him in a hearing finding him guilty of assaulting prison staff members and violent conduct in an incident in which he allegedly swung a food transport cart at the prison's head cook during an argument. Bilbrew v. Goord, #99635, 2006 N.Y. App. Div. Lexis 12495 (A.D. 3rd Dept.).

Prisoner Suicide

     Estate of pretrial detainee who committed suicide in county jail could pursue federal civil rights claims against jail's mental health services contractor based on alleged failure to train personnel, resulting in detainee, after being on suicide watch, being released back into the general population prematurely. Factual issue existed as to whether contractor's employees knew of the substantial risk of suicide based on contact with the detainee's family and friends. Claims were also validly asserted against the sheriff on the basis of prior suicides at the facility, and policies and customs that allegedly caused them, but court dismisses state law claims against the sheriff based on alleged overcrowding. The decision as to whether or not to build a new jail to address overcrowding was one for which the sheriff was entitled to sovereign immunity as a "planning decision" under Florida law. Smith v. Brevard County, No.6:06-cv-715-Orl-31, 2006 U.S. Dist. Lexis 79506 (M.D. Fla.).

Religion

     Prison doctor did not violate prisoner's right to religious freedom by obtaining a court authorization to begin intravenous feeding of him to stop what he claimed was a religious fast, which had resulted in serious dehydration. The prisoner had not claimed that he was religiously opposed to intravenous feeding, so there could be no claim based on the method of breaking his fast. Further, since the action was taken pursuant to a state court order, the prisoner's federal civil rights claim against the prison officials and employees was barred. O'Malley v. Litscher, No. 05-3415, 2006 U.S. App. Lexis 25661 (7th Cir.).

     Correctional officials offered no evidence showing a legitimate penological interest to support a policy of preventing prisoners from receiving free, softbound religious materials from the plaintiff religious organization. The Department's voluntary change of its policy, allowing the receipt of the softbound materials following an inspection did not make the lawsuit moot. Jesus Christ Prison Ministry v. Calif. Dept. of Corrections, No. CIV-S-05-0440, 2006 U.S. Dist. Lexis 73813 (E.D. Cal.).

Sexual Assault

     Prisoner asserted a viable claim for sexual assault during a strip search by alleging that an officer pressed his own penis against the inmate's buttocks and also made "inappropriate" statements during the search. Bromell v. Idaho Dept. of Corrections, No. CV05-419, 2006 U.S. Dist. Lexis 80804 (D. Idaho).

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     AIDS Related: HIV in Prisons, 2004. Reports the number of female and male prisoners who were HIV positive or AIDS active, the number of AIDS-related deaths in State and Federal prisons, a profile of those inmates who died, and a comparison of AIDS rates for the general and prisoner populations. This annual bulletin uses yearend 2004 data from the National Prisoner Statistics and the Deaths in Custody series. Supplemental information from the 2004 Survey of Inmates in State and Federal Correctional Facilities is provided in this report, including estimates of HIV infection among prison inmates by age, gender, race, Hispanic origin, education, marital status, current offense, and selected risk factors such as prior drug use. Highlights include the following: * Between 2003 and 2004 the number of HIV-positive prisoners decreased 2.6%. * During 2004, 20 States reported a decrease in the number of HIV-positive prisoners, and 24 States and the Federal system reported an increase. * Rate of AIDS-related deaths in State prisons decreased in 2004. 11/06 NCJ 213897 Press release | Acrobat file (244K) | ASCII file (21K) | Spreadsheets (zip format 17K)

     Correctional Statistics and Reports: Prisoners in 2005. Reports the number of persons in State and Federal prisons at yearend, compares the increase in the prison population during 2005 with the previous year, and presents prison growth rates since 1995. The report also provides the number of male and female prisoners on December 31, 2005, and the rates of incarceration by jurisdiction. It includes the number of prisoners held at yearend in the U.S. Territories and Commonwealths, in military facilities, and in facilities operated by or for the Bureau of Immigration and Custom Enforcement. Data are presented on prison capacities and the use of local jails and privately operated prisons. Estimates are provided on the number of sentenced prisoners by age, gender, race, and Hispanic origin, and type of offense. Highlights include the following: * Fourteen States had prison population increases of at least 5%, led by South Dakota (up 11.9%), Montana (up 10.9%), and Kentucky (up 10.4%). * Eleven States experienced prison population decreases, led by Georgia (down 4.6%), Maryland (down 2.4%), Louisiana (down 2.3%), and Mississippi (down 2.2%). * State prisons were operating between 1% below and 14% above capacity; Federal prisons were operating at 34% above capacity. 11/06 NCJ 215092 Press release | Acrobat file (229K) | ASCII file (32K) | Spreadsheets (zip format 23K)

     Correctional Statistics and Reports: New York Department of Correctional Services, Annotated Listing, Research Studies And Legislative Reports (Year 2006). Areas covered include Shock Incarceration Program Research, Earned Eligibility Program Research, Merit Time, Research on Comprehensive Alcohol and Substance Abuse Treatment (CASAT), Research on Psychological Screening Program for Correction Officer Candidates, Recidivism Research, Statistical Reports on Inmate Population, Criminal Justice Statistics, Research on Extent of Substance Abuse in Inmate Population, Research on the Foreign-Born Inmate Population, Female Inmates, Special Program Reports, and Legislative Reports on Temporary Release Program, and Inmate Grievance Programs. Copies of individual reports may be obtained, as long as supplies last, by filling in a Research Studies Request Form, and mailing it to: Research Studies And Legislative Reports Requests Program Planning, Research & Evaluation New York State Department of Correctional Services Building #2 1220 Washington Avenue Albany, NY 12226-2050.

     Medical Care: Medical Problems of Jail Inmates.  Presents findings on jail inmates who reported a current medical problem, a physical or mental impairment, or an injury since admission based on data from the 2002 Survey of Inmates in Local Jails. The prevalence of specific medical problems and conditions are also included. The report examines medical problems and other conditions by gender, age, time served since admission, and select background characteristics. Highlights include the following: * More than a third of jail inmates reported having a current medical problem. * 22% of jail inmates reported having a learning impairment; 11% said they had impaired vision. * Heart valve damage (290 per 10,000 inmates) and arrhythmia (211 per 10,000) were the most commonly reported types of heart problems. 11/06 NCJ 210696  Acrobat file (280K) | ASCII file (25K) | Spreadsheets (zip format 21K)

Reference:

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

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