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Access to Courts/Legal Info

      Prisoner claimed that, as a result of an alleged Arizona Department of Corrections policy removing prison law libraries, he did not have knowledge of a specific Supreme Court case when he filed his appeal, and that this might have aided him in achieving a reduced sentence. The federal trial court ruled that he did not show that he was prevented from bringing to court a non-frivolous claim, or suffered an actual injury. His motion for reconsideration of the dismissal of his federal civil rights lawsuit was denied. Faulkner v. Schriro, No. CV 06-2966, 2007 U.S. Dist. Lexis 32630 (D. Ariz.).

     Prisoner who was not pursuing an appeal from his federal criminal conviction, a habeas corpus petition, or a civil rights claim could not pursue a federal civil rights claim for a violation of his right of access to the courts based on the claimed denial of access to a prison law library. Valentine v. Drew, No. 9:05-CV-232, 2007 U.S. Dist. Lexis 33460 (N.D.N.Y.).

Clothing

     Prisoner's lawsuit did not properly show an unconstitutional policy or practice relating to how prison laundry was cleaned or exchanged, but rather only asserted "generic complaints" about the handling of his clothing/laundry. He also failed to show that he was caused to wear pants and shirts that aggravated a skin condition, in violation of his Eighth Amendment rights. Court grants him permission, however, to file a further amended complaint to attempt to make out a viable claim. Wilson v. Director of the Division of Adult Institutions, No. CIV S-06-0791, 2007 U.S. Dist. Lexis 32067 (E.D. Cal.).

Defenses: Statute of Limitations

     Prisoner's initial mailing of a letter, titled "Pro Se Complaint," to a federal court, alleging that correctional officers used excessive force against him, should have been docketed by the court when received on January, 26, 2006, and his lawsuit should therefore be considered filed within the applicable Illinois two-year statute of limitations, even though he failed to comply with court rules requiring him to also enclose a filing fee or a petition to proceed as a pauper. Federal appeals court rejects argument that his subsequently filed amended complaint was time-barred. The sending of the original letter tolled (extended) the running of the statute of limitations. Bahler v. Lopez, No. 06-2616, 2007 U.S. App. Lexis 11195 (7th Cir.).

Employee Injury/Death

     Correctional officer allegedly injured while attempting to stop a fight involving rival prison gangs could not collect damages from prison officials for violating his liberty interest under the due process clause of the 14th Amendment. The defendants did not restrict the officer's ability to act on his own behalf or defend himself against injury, even if, as the plaintiff claimed, they "orchestrated" the fight in which he was injured. O'Dea v. Bunnell, No. C052673, 2007 Cal. App. Lexis 837 (Cal. App. 3rd Dist.).

Expert Witnesses

     Former federal prisoner failed to show that a negligent response to his medical condition caused him to suffer a brain hemorrhage leaving him severely and permanently disabled. In upholding the verdict of a bench trial finding the U.S. government not liable for his injuries under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b)(1), a federal appeals court ruled that an expert witness who seems to deny possession a relevant expertise does not have to automatically and by reason of that statement alone, be barred from testifying, and that experts are not always required to render a written report as a precondition to being permitted to testify. The court found that the clinical director at the U.S. Department of Justice's Bureau of Prisons' Federal Transfer Center in Oklahoma City, Oklahoma was properly allowed to testify that, in his opinion, a prison medical team at all times acted professionally and competently in the treatment of the prisoner, despite the fact that he failed to prepare an expert report prior to taking the stand, and at his deposition seemed to deny having a relevant expertise. The appeals court noted that it is the trial court's job to decide whether an individual is sufficiently qualified to testify as an expert, by virtue of training and experience, and based on the facts and circumstances of each case, so that the witnesses' own statement concerning whether he is an expert is not dispositive. The witness could, therefore, be properly allowed to testify as an expert in health care in federal prisons, "his modesty notwithstanding." Additionally, while Federal Rule of Civil Procedure 26(a)(2)(B) states that disclosure of expert witnesses who are "retained or specially employed" to provide expert testimony in a case shall (except as "otherwise stipulated or directed by the court") be accompanied by a "written report prepared and signed by the witness," the witness in this case was not "retained or specially employed" to provide his testimony, but was, instead a person employed by the federal prisons and not a person who regularly gives expert testimony," so that the report requirement did not apply. Watson v. US, No. 05-6262 2007 U.S. App. Lexis 10526 (10th Cir.).

First Amendment

     Prisoner could proceed with his First Amendment claim that a housing lieutenant falsely accused him of misconduct, causing his placement in a special housing unit in retaliation for his having filed a grievance against the lieutenant. Rivera v. Selsky, No. 9:05-CV-0967, 2007 U.S. Dist. Lexis 23064 (N.D.N.Y.).

Inmate Funds

     Prison canteen manager and prison officials did not violate an inmate's 14th Amendment due process rights to his funds or property based on allowing another prisoner who stole his prison ID card to use it to buy $47 worth of commissary items which were then charged to the plaintiff's inmate account. The prisoner claimed that he had personally told the canteen operators about the card theft, that he was told that the card had been deactivated, and that his $47 was not restored to his account, despite his having followed prison grievance procedures concerning the purchases. The defendants' actions, at most, were negligent, and negligent conduct did not violate his federal constitutional rights. Additionally, there were sufficient remedies available to the prisoner under state law for the recovery of his funds, including the prison grievance process. Menendez v. Keefe Supply Company, No. 06-13450, 2007 U.S. App. Lexis 12325 (11th Cir.).

Inmate Property

     An Ohio prison did not have the duties or liabilities of an "insurer" with respect to an inmate's property, but rather only had a duty to make a reasonable attempt to protect it. A state administrative regulation which provided that items of property in excess of permitted quantities possessed by an inmate was "minor contraband" which could be destroyed after the issuance of a forfeiture order by a court justified the destruction of four boxes of the inmate's property which were over the 2.4 cubic foot limit on property imposed by the prison. Triplett v. Southern Ohio Correctional Facility, No. 06AP-1296, 2007 Ohio App, Lexis 2333 (Ohio App. 10th Dist.).

Mail

     While letters to a prisoner from a state's attorney's office and the Illinois Attorney Registration and Disciplinary Commission (ARDC) concerning issuance of a settlement check in a prior lawsuit were allegedly opened outside of his presence, this did not violated his constitutional right when the envelopes were not labeled as legal or official materials. A requirement in a state administrative regulation that such incoming mail had to be marked "privileged" in order for a prisoner to have a right to be present when it was opened and inspected for contraband was constitutional. Jenkins v. Huntley, No. 06-3622, 2007 U.S. App. Lexis 12303 (7th Cir.).

Medical Care

     Prisoner who received treatment more than 30 times between January 2003 and March 2004 for his ear infections, including receiving antibiotics, antihistamines, anti-inflammatory and pain medications, and ear drops, and was sent to a specialist approximately five months after the ear infections began did not show deliberate indifference to his serious medical needs, despite the fact that he subsequently suffered a significant hearing loss. Additionally, because the warden was not a doctor, his alleged failure to respond to the prisoner's medical complaints while he was already being treated by medical staff members was not deliberate indifference. Gusman v. Bureau of Prisons, No. 06-2022, 2007 U.S. App. Lexis 11571 (3rd Cir.).

     Prisoner did not show that a knee injury he suffered was sufficiently serious so that a 30-minute delay, as opposed to denial, of treatment for it constituted deliberate indifference to a serious medical need. The prisoner's injury was a "chronic knee condition," present for years, for which it was not "obvious" that it required a doctor's attention. There was also no evidence that the delay caused him any damage. Hood v. Krajnik, No. 05-10254, 2007 U.S. Dist. Lexis 23342 (E.D. Mich.).

     Even if all of a prisoner's complaints concerning his medical and dental treatment were true, that merely established that there was a difference of opinion concerning the appropriate medical treatment for his problems, or that certain defendants were negligent, rather than a violation of his constitutional rights. The prisoner himself agreed that the defendants provided him with the treatment they deemed appropriate. Beauclair v. Graves, No. 06-3265, 2007 U.S. App. Lexis 12149 (10th Cir.).

Medical Care: Dental

     Prisoner failed to show an unduly delay in receiving dental treatment, and the mere fact that he might have preferred a different course of treatment did not show deliberate indifference to his serious medical needs. The prisoner's own evidence conclusively established that he had received timely treatment, and there was no evidence that the dentist's choices concerning that treatment were based on any motive beyond providing routine patient care. James v. Pennsylvania Dept. of Corrections, No. 06-2937, 2007 U.S. App. Lexis 9919 (3rd Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Inmate who completed only one step of a multi-step grievance process by the time he filed his federal civil rights lawsuit complaining about exposure to another inmate's second-hand cigarette smoke failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act, so that the dismissal of his lawsuit was proper. Muhammad v. Beard, No. 06-4897, 2007 U.S. App. Lexis 12164 (3rd Cir.).

     The fact that a prisoner claimed ignorance of rules requiring him to file a step two grievance after his first step grievance had been referred to the Texas Department of Justice-Correctional Institutions Division did not excuse his failure to do so. Accordingly, he failed to exhaust his available administrative remedies concerning alleged verbal abuse and threats by correctional officers. Aguirre v. Dyer, No. 05-41345, 2007 U.S. App. Lexis 12258 (5th Cir.).

     In light of the U.S. Supreme Court's decision in Jones v. Bock, 05-7058, 127 S. Ct. 910 (2007), the plaintiff prisoner did not have to show in his federal civil rights complaint that he had administratively exhausted his claims concerning alleged violations of his First and Eighth Amendment rights. Instead, the defendants had the burden of raising the alleged failure to exhaust available administrative remedies as an affirmative defense in their response to his complaint. Additionally, the prisoner was free to proceed on claims on which he had exhausted available administrative remedies, even if he had not done so on other claims. The appeals court therefore vacated the trial courts dismissal of the lawsuit in its entirety and ordered further proceedings in accordance with Jones v. Bock. Milligan v. Reed, No. 07-1024, 2007 U.S. App. Lexis 11739 (10th Cir.).

Prisoner Litigation Reform Act: "Three Strikes" Rule

     Prisoner who claimed that defendant prison employees had threatened to hit him in the mouth failed to show that he was in imminent danger of serious physical injury, in the absence of which he was properly denied the right to proceed as a pauper in his federal civil rights lawsuit, based on the "three strikes rule" of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) and a finding that he had, on three or more occasions, while incarcerated, brought lawsuits or appeals in U.S. courts that were dismissed as frivolous, malicious, or for failure to state a claim on which relief could be granted. Bozeman v. Johnson, No. 2:07-CV-290, 2007 U.S. Dist. Lexis 26590 (M.D. Ala.), magistrate's recommendation adopted by 2007 U.S. Dist. Lexis 32536 (M.D. Ala.).

Prisoner Assault: By Officers

     There was no evidence, other than the prisoner's own "self-serving" testimony, that prison officers had used any force against him, much less that they used excessive force or that prison officials failed to take action to prevent "beatings" by staff members. The record of the case showed, at most, that after the prisoner started a confrontation, he had a three millimeter abrasion on his chest, and there was also medical evidence that this abrasion was actually suffered during a basketball game he had played in five days before. The court further rejected the prisoner's argument that he had been "tortured" in violation of 18 U.S.C. Sec. 2340. Felder v. Howerton, No. 07-10241, 2007 U.S. App. Lexis 11154 (11th Cir.).

     Deputy sheriff was not entitled to qualified immunity on prisoner's claim that he used excessive force against him by throwing him to the floor and landing on top of him while he was shackled at the wrists, waist and ankles, causing his head to hit the concrete floor, and causing him to require stitches to close a laceration to the right side of his head and to also suffer a separated right clavicle. If the facts were as the inmate alleged, the force used violated his Eighth Amendment rights and constituted a wanton and unnecessary infliction of pain. Long v. Morris, No. 06-3089, 2007 U.S. Dist. Lexis 32959 (D. Kan.).

Prisoner Discipline

     An Indiana prisoner did not have a substantive due process right to use violence to defend another prisoner which could be asserted in a prison disciplinary hearing. Federal appeals court rejects challenge to sanctions imposed by a prison's Conduct Adjustment Board after the plaintiff prisoner hit another inmate with a cane in an attempt to stop that inmate from stabbing a third prisoner. The plaintiff also failed to show a violation of his procedural due process rights. The plaintiff himself admitted his actions, and the Board had not disputed that he may have done so to protect another prisoner, but instead determined that punishment was still required. Additionally, his rights were not violated when the Board denied him access to a surveillance video of the incident, to live witnesses, or to prison medical records, given that the Board had accepted the prisoner's own version of the events, so that such evidence would not add anything to his defense, but instead would be merely repetitive of his own account. Scruggs v. Jordan, No. 05-4238, 2007 U.S. App. Lexis 10790 (7th Cir.).

     While sufficient evidence existed to support discipline of a prisoner for possessing drug paraphernalia, the disciplinary hearing officer's refusal of the inmate's request that he review a videotape of the incident in which he allegedly assaulted another prisoner to see if he acted in self-defense was erroneous. The federal appeals court ordered further proceedings in the trial court to decide whether or not that error was harmless. Howard v. U.S. Bureau of Prisons, No. 06-3315, 2007 U.S. App. Lexis 12038 (10th Cir.).

     Discipline of prisoner for alleged misuse of authorized medication resulting in a fellow inmate overdosing was adequately supported by "some evidence," when the hearing officer relied upon statements by an investigating officer, an intelligence officer, and the inmate's own admissions concerning the incident. The appeals court also found that there was no unjustified delay in notifying the prisoner of the charge against him, even if he did not receive notification of the charge within 24 hours after an investigation began, which he argued was required by 28 C.F.R. Sec. 541.15(a). Barner v. Williamson, No. 06-3351, 2007 U.S. App. Lexis 12399 (3rd Cir.).

Prisoner Restraint

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

     California intermediate court issues order setting aside juvenile court policy of having sheriff's department shackle all minors during court prisoners without a case-by-case determination of the need for such restraints. In making such a determination, factors to be considered included the type of proceeding, courtroom or security considerations, and the behavior and conduct of the juvenile. Tiffany A. v. The Superior Court of Los Angeles County, No. B193134, 2007 Cal. App. Lexis 783 (Cal. App. 2nd Dist.).

Prisoner Suicide

     In a lawsuit arising out of the death of a county inmate who hung himself, the plaintiff failed to show that the actions of county employees violated the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., since there was no showing that the decedent had been denied access to programs or services because of a disability. Claims for alleged medical malpractice under state law, and that the county had policies, practices, and procedures depriving the decedent of his Eighth Amendment rights, however, were viable on the basis of disputed facts concerning his treatment. Herman v. County of York, No. 1:05-CV-2501, 2007 U.S. Dist. Lexis 28824 (M.D. Pa.).

Prisoner Transfer

     Oklahoma state law did not create an expectation that a prisoner would be held in any particular facility and his transfer and classification reduction did not violate his constitutional rights. Prison officers needed to be able to house and classify prisoners as they deemed necessary for security purposes, and the prisoner was not entitled to a hearing before his classification was reduced. Gauthier v. Higgins, No. 06-7102, 2007 U.S. App. Lexis 8396 (10th Cir.).

Racial Discrimination

     African-American civil detainees at a treatment and detention facility for sexually violent persons failed to adequately show that they were treated unequally to similarly situated Caucasian detainees as to being returned to the Illinois Department of Corrections for criminal prosecution in connection with assaults that led to them being placed on a special/secure management status, or being referred to State Police for batteries committed against facility staff members. Webb v. Budz, No. 00C1230, 2007 U.S. Dist. Lexis 21700 (N.D. Ill.).

     Even if supervisor at prison factory did tell admittedly noisy African-American prisoners to "shut up" on one occasion, while failing to similarly admonish equally noisy inmates of another race to the same extent, this was insufficient to establish a claim for racial discrimination. The plaintiff prisoner also failed to show that his subsequent work assignments were retaliation for his having filed grievances.  Lewis v. Jacks, No. 06-1995, 2007 U.S. App. Lexis 11093 (8th Cir.)

Religion

     Muslim prisoner was not entitled to a preliminary injunction requiring that the prison serve fish to him as part of his diet. He did not show why fish was an absolute requirement of his practice of his religion, but instead merely asserted that fish was important in his religion because it was among the foods identified by Muhammad as "good" to eat. The vegan diet being provided to him sufficiently satisfied his needs for a religious diet, and the legitimate interest of the prison in efficiently preparing meals outweighed his personal preferences as to what to eat. Pasco v. Donald, No. 5:06-CV-141, 2007 U.S. Dist. Lexis 22809 (M.D. Ga.).

     Hearing impaired inmate did not show that his right to exercise his religion had been substantially burdened by prison regulations under which he was only allowed to possess ten audio cassettes of tape recorded church services, and permitted him to exchange two old tapes for two new ones when new ones were sent to him. Court also rejects his argument that he was subjected to disability discrimination by being denied possession of bi-aural headphones to enable him to watch his television, since he had no constitutional right to watch television. Sanders v. Ryan, No. CV 03-0523, 2007 U.S. Dist. Lexis 29070 (D. Ariz.).

     Warden was not entitled to qualified immunity in lawsuit brought by Orthodox Jewish prisoner claiming that his religious freedom rights were violated by denying his request to wear religious garments (his yarmulke and tallit katan) while being taken to a hospital for eye surgery. The plaintiff sufficiently alleged that the warden had not presented a valid penological justification for a substantial burden on his right to freely exercise his religion. Boles v. Neet, No. 05-1570, 2007 U.S. App. Lexis 12177 (10th Cir.).

     Prisoner's right to religious freedom was not violated by the denial of his request to hold an interfaith study group or by a deputy warden's refusal to provide him with additional reading material about atheism. The prison was not required to "subsidize" his religious studies by purchasing religious material for him. Further proceedings were ordered, however, on the prisoner's claim that it violated his rights under the "Establishment of Religion" clause of the First Amendment for a deputy warden to refuse to provide him with atheist reading material while approving the purchase of religious reading material for Christian prisoners. Kaufman v. Schneiter, No. 07-C-45, 2007 U.S. Dist. Lexis 32488 (W.D. Wis.).

Segregation: Administrative

      Prison officials were entitled to summary judgment on the basis of qualified immunity for placing a prisoner in administrative segregation for a period of over 850 days as a security risk when they had legitimate reasons to regard him as a potential risk to the safety of other prisoners and prison staff members on the basis of his past history. Additionally, the conditions of confinement he faced in administrative segregation were not "atypical" of those faced by prisoners in protective custody. Hunter v. Sapien, No. 05-3004, 2007 U.S. Dist. Lexis 23888 (D. Kan.).

Sexual Assault

     Federal prison officer did not act within the scope of his employment during his alleged sexual assault on a female prisoner. His alleged wrongful actions did not arise from a legitimate employment duty or goal furthering his employer's interests. The fact that the officer was successfully criminally prosecuted for abuse of a ward under 18 U.S.C. Sec. 2243(b) did not bar the U.S. government from denying that the officer was acting outside of the scope of his employment, because a conviction for that offense did not establish, under Texas state law, that the officer acted within the scope of his employment. Accordingly, the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) sovereign immunity waiver did not apply. Shirley v. U.S., No. 06-10654, 2007 U.S. App. Lexis 11696 (5th Cir.).

Smoking

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

     Trial court should have allowed plaintiff prisoner to amend his complaint to assert that his confinement to a cell in which smoking was allowed constituted cruel and unusual punishment even if he could not show that it constituted a serious health hazard. "Maybe there's a level of ambient tobacco smoke that, whether or not it creates a serious health hazard, inflicts acute discomfort amounting, especially if protracted, to punishment." The prisoner allegedly suffered discomfort with cellmates that were heavy smokers for 48 days. Powers v. Snyder, No. 04-1961 2007 U.S. App. Lexis 10327 (7th Cir.).

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     Inmate and Family Handbooks and Publications: Information Guidebook for Family Members and Friends of Arizona Department of Corrections Inmates. [PDF] [HTML]

     Prisoner Mental Health: Mental Health Screens for Corrections By Julian Ford and Robert L. Trestman; and Fred Osher, Jack E. Scott, Henry J. Steadman, and Pamela Clark Robbins May 2007 (National Institute of Justice, NIJ). Reports on two projects to create and validate mental health screening instruments that corrections staff can use during intake. The researchers created short questionnaires that accurately identify inmates who require mental health interventions. One mental health screen was found to be effective for men and is being adapted for women; the other has effective versions for both men and women. The screening instruments are reproduced in the appendixes. See also prior publications: Providing Services for Jail Inmates With Mental Disorders, Research in Brief NCJ 162207, January 1997, by Terence Dunworth, and Henry J. Steadman, and Americans With Disabilities Act and Criminal Justice: Mental Disabilities and Corrections NCJ 155061, 1995, by Paula N. Rubin and Susan W. McCampbell Summary.

     Prisoner Reentry: "Putting Them Away and Helping Them Out: The Prosecutor's Role in Offender Reentry," by Patricia L. Fanflik & David R. Troutman, 41 The Prosecutor No. 2, pg. 26-29, & 48 (March/April 2007). "NDAA study explores the role of prosecutors in comprehensive reentry initiates, activities, and programs."

     Religion: Department Order 904, Inmate Religious Activities/Marriage Requests, Arizona Department of Corrections. Topics covered include pastoral services, religious preferences, religious activities, religious accommodations, religious visitation, the religious advisory committee, and marriage.

     Sexual Assault: Director's Instruction #241, Sexual Assault Procedures. Arizona Department of Corrections.

     Statistics: Veterans in State and Federal Prison, 2004. Using the 2004 Survey of Inmates in State and Federal Correctional Facilities, this report presents data on the military and criminal backgrounds of incarcerated veterans, uses new measures to describe their substance abuse and dependence histories, and provides a detailed measure of their mental health problems. It compares incarceration rates for veterans and non-veterans in the U.S. population and describes trends from 1986 to 2004 in the prevalence of military service among inmates. The report also examines characteristics of incarcerated veterans who served in the 1990-91 Gulf War and the Afghanistan/Iraq operations since 2001. Highlights include the following: The percentage of veterans among State and Federal prisoners has steadily declined over the past three decades, according to national surveys of prison inmates conducted by the Bureau of Justice Statistics. In 2004,10% of State prisoners reported prior service in the U.S. Armed Forces, down from 12% in 1997 and 20% in 1986. The majority of veterans in State (54%) and Federal (64%) prison served during a wartime period, but a much lower percentage reported seeing combat duty (20% of State prisoners, 26% of Federal). 05/07 NCJ 217199 Press release | Acrobat file (152K) | ASCII file (28K) | Spreadsheets (zip format 22K)

Reference:

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

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