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Access to Courts/Legal Info

     When a Texas inmate failed to identify any non-frivolous claim he would have asserted in either state or federal court in petitions for habeas review, he could not pursue his federal civil rights claim that his constitutional right of access to the courts was violated by a court clerk's inaction in response to his request for copies of certain court documents. Martin v. Rodriguez-Mendoza, No. 06-50117, 2007 U.S. App. Lexis 4026 (5th Cir.).

     An inmate failed to show that alleged inadequate law library time and the confiscation of his legal manual denied him access to the courts, prevented him from filing lawsuits, or effected his ability to prosecute his claims. Vasquez v. Kingston, No. 06-C-743-C, 2007 U.S. Dist. Lexis 22726 (W.D. Wis.).

AIDS Related

     Because the plaintiff prisoner had already disclosed his consensual sexual relationship with another inmate, from whom he allegedly contracted an HIV infection, he could not show that prisoner personnel violated his right to privacy by disclosing that relationship to others. Further, mental health professionals in a sexual offender program did not violate his rights or any promise of confidentiality when they disclosed his relationship to others who had a need to know. He claimed that the other prisoner did not disclose that he was HIV positive. The prisoner also had no claim against correctional officials for having contracted HIV since he consented to the conduct that resulted in it, and concealed it from prison officials. Boling v. Dept. of Rehabilitation and Correction, No. 2005-09901, 2007 Ohio Misc. Lexis 81 and 82 (Ohio Ct. of Claims).

DNA Tests & Databases

     Application of a federal statute to probationers convicted of "non-violent" but felonious crimes which required them to supply DNA for analysis and storage in a federal database did not violate their rights under the Fourth Amendment. The testing served a special need, and the intrusion into their privacy was minimal, given all the other identifying information that the government already had about them as a result of their status as convicted felons. U.S. v. Amerson, No. 05-1423, 2007 U.S. App. Lexis 8610 (2nd Cir.).

Employment Issues

     Without special circumstances, the sexually harassing conduct of inmates in a juvenile correctional facility could not be attributed to the employer. Additionally, the alleged sexually harassing conduct of the female plaintiff's former co-workers, such as asking for dates, while it was "inappropriate" was not so severe as to make the employer liable for creating an intolerable work environment that resulted in her resignation. Vajdl v. Mesabi Acad. of Kidspeace, Inc., No. 06-2482, 2007 U.S. App. Lexis 9368 (8th Cir.).

False Imprisonment

     Florida prisoner failed to present a valid federal civil rights claim for false imprisonment based on the fact that he was kept in custody for seven days longer than he should have, when he failed to show that either the sheriff's office or a defendant deputy had actual knowledge of documentation showing that he was entitled to release. Rodriguez v. Broward Sheriff's Office, No. 06-13171, 2007 U.S. App. Lexis 9547 (11th Cir.).

Federal Tort Claims Act

     The limited waiver of sovereign immunity contained in the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. did not apply to claims concerning the loss of property by a law enforcement officer. An appeals court upheld the trial court's determination that, in a federal inmate's lawsuit against federal prison officials for the alleged taking of his mail and personal property, federal prison officials constituted "other law enforcement officers," and therefore could not be liability for his losses. Bruscino v. Pugh, No. 06-1182, 2007 U.S. App. Lexis 9136 (10th Cir.).

First Amendment

     California prisoner stated a possible First Amendment claim by alleging that correctional officers confined him to his quarters and destroyed two of his "recycled art statutes" in retaliation for his having filed a grievance against two other correctional officers. The alleged conduct, however, did not violate his Eighth Amendment rights, and also did not violate his due process rights since he did not have a liberty interest in avoiding confinement to his quarters, and the destruction of the statutes, allegedly his property, was not "authorized." Davis v. Calif. Dept. of Corrections, No. 1:06-cv-01062, 2007 U.S. Dist. Lexis 26507 (E.D. Cal.).

     Prisoner allowed to amend his lawsuit to further explain his claim that he was suspended from a softball league and a hobby craft program in retaliation for having filed grievances, in violation of his First Amendment rights. The court found that his lawsuit did not adequately establish due process claims, because he had no protected liberty interest in remaining in the recreational programs from which he had been suspended. Bigbee v. Nalley, No. 07-C-71, 2007 U.S. Dist. Lexis 25336 (W.D. Wis.).

     Prisoner did not establish a First Amendment claim when he failed to show a connection between the alleged retaliation against him and the grievances he had previously filed. Bartelli v. Galabinski, No. 06-1545, 2007 U.S. App. Lexis 8853 (3rd Cir.).

Inmate Property

     Ohio prisoner failed to show that the alleged failure to transfer all of his legal work product at once when he was transferred to a new facility, because the property he had exceeded the institution's volume restrictions for prisoner property, caused him recoverable damages. Additionally, his claims for mental distress and "extraordinary" damages for simple negligence due to property loss could not result in recovery of damages under Ohio law. Britford v. Pickaway Correctional Inst., No. 2006-05047-AD, 2007 Ohio Misc. Lexis 127 (Ohio Ct. of Claims).

     Georgia prisoner could not recover damages for the alleged loss of his radio headphones and adapter from his cell under theories of either negligence or intentional theft. Simple negligence was insufficient to support a claim for a federal civil rights violation, and, because the State of Georgia provides adequate post-deprivation remedies for the loss of property, he also could not recover damages under 42 U.S.C. Sec. 1983 for violation of his constitutional rights. Brown v. Ammon, No. 1:07-cv-60, 2007 U.S. Dist. Lexis 25736 (M.D. Ga.).

Mail

     Prisoner did not show a violation of his constitutional rights merely by alleging that his "legal mail" was opened and visually inspected by the prison mailroom staff outside of his presence. Additionally, since the mail involved was mail from the courts, rather than from his lawyer, it was not "legal mail" for purposes of his lawsuit, since it was a public document. Meador v. Pleasant Valley State Prison, No. 1:05-CV-0939, 2007 U.S. Dist. Lexis 26505 (E.D. Cal.).

Medical Care

     Prisoner did not show that deliberate indifference to his serious medical needs was present when his medication for his diabetes was temporarily confiscated, as he did not claim that it endangered his life. Booth v. King, No. 06-1552, 2007 U.S. App. Lexis 8327 (3rd Cir.).

     Sheriff was not liable for the death of a detainee from complications of open-heart surgery when there was evidence that the decedent had refused treatment, and even the plaintiff admitted that the sheriff lacked personal knowledge of the decedent's medical condition. The plaintiff also failed to show a policy or custom causing deliberate indifference to serious medical needs, or any history of past widespread abuse that would have made the sheriff aware of alleged inadequacy in the medical care being provided at the county jail. Weaver v. Mobile County, No. 06-14237, 2007 U.S. App. Lexis 9102 (11th Cir.).

     Florida State Department of Corrections was entitled to Eleventh Amendment immunity against prisoner's claim that he was provided with inadequate medical care and treatment. Claims against a doctor failed to show deliberate indifference to his serious medical needs, as even the inmate admitted that he was provided with a special relief cream for his arthritis when he complained of pain, along with anti-inflammatory medication and an order barring him from standing for longer than ten minutes. He also did not even claim that these specific treatments failed to help him, and only complained that he was denied special boots, which he claimed were needed for his arthritis. Leonard v. Dept. of Corrections, State of Florida, No. 06-11223, 2007 U.S. App. Lexis 9691 (11th Cir.).

     The mere fact that expert witnesses for the plaintiff disagreed with the type of antibiotic chosen to treat an inmate who subsequently died was insufficient to show deliberate indifference to a serious medical need. Ruiz-Rosa v. Rullan, No. 06-1761, 2007 U.S. App. Lexis 9294 (1st Cir.).

     When it was undisputed that an inmate with a record of leg and foot injuries, including an amputated toe, was provided with treatment for the length differential of his legs, and a doctor's affidavit stated that the shoes he received were adequate for his condition, the mere fact that the inmate requested different, soft shoes did not show deliberate indifference by medical personnel. Turner v. Solorzano, No. 06-15737, 2007 U.S. App. Lexis 9537 (11th Cir.).

Medical Care: Dental

     Prisoner's lawsuit claiming deliberate indifference to his serious medical needs was improperly rejected by the trial court when there was some evidence that the medical director of the prison knew of his condition requiring that his teeth be removed but implemented a policy which barred him from being fitted for dentures. Scribner v. Linthicum, No. 06-41108, 2007 U.S. App. Lexis 9552 (5th Cir.).

     Prisoner did not show deliberate indifference to a serious medical need simply by alleging that he and another dentist disagreed with a prison dentist's recommendation that a tooth be extracted as non-restorable after a failed root canal procedure. The decision not to perform another procedure, known as an apicoectomy merely showed a medical disagreement about the preferred treatment rather than the deliberate failure to provide adequate care. Davis v. Collins, No. 06-3701, 2007 U.S. App. Lexis 9406 (3rd Cir.).

Prison and Jail Conditions: General

     The alleged removal of an inmate's mattress from his cell during the daytime did not violate his Eighth Amendment rights, when he did not claim that he was deprived of the mattress at night during hours that he would sleep. Federal appeals court also rejects argument that serving the plaintiff "food loaf" violated the Eighth Amendment. Further proceedings were ordered, however, on his claim that cold temperatures in his cell constituted cruel and unusual punishment. Alex v. Stalder, No. 05-30982, 2007 U.S. App. Lexis 9921 (5th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner did not have the burden of proving that he had exhausted available administrative remedies on his claim that he was exposed to harmful secondhand tobacco smoke, and did state that he filed a grievance concerning the issue, as well as explaining why he could not provide documentation on that grievance. His claim was therefore improperly dismissed. Roberts v. Barreras, No. 05-2373, 2007 U.S. App. Lexis 8631 (10th Cir.).

     When the rejection of a prisoner's grievance did not include an explanation of his appeal right, as required by prison regulations, prison officials failed to meet their burden of showing that the prisoner did not exhaust available administrative remedies, since this denied him access to the grievance process. The court therefore rejected a motion by prison officials to dismiss the prisoner's lawsuit allegedly that they failed to protect him from an attack by other prisoners. Tabarez v. Butler, No. CIV S-04-0360, 2007 U.S. Dist. Lexis 23642 (E.D. Cal.).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner was improperly denied permission to proceed as a pauper under the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) when one of the "strikes" relied on by the trial court was the dismissal of a lawsuit which was still then on appeal. Such a dismissal does not count as a "strike" under the statute until the prisoner either waives or exhausts his appeals rights. Further, the fact that an appeals court subsequently did uphold the dismissal of the prior lawsuit did not alter the result, since the statute only conditions the right to bring the lawsuit as a pauper on the number of "strikes" existing at the time the lawsuit is initially filed, and does not authorize a court to revoke status as a pauper if a plaintiff prisoner subsequently receives an additional "strike" Lopez v. U.S. Dept. of Justice, No. 06-2409, 2007 U.S. App. Lexis 9403 (3rd Cir.).

Prisoner Assault: By Inmates

     Inmate failed to show that the City of New York was negligent in failing to prevent him from being attacked with a knife by another prisoner. There was no evidence that the city either knew or should have known that the plaintiff was at risk of being subjected to such an attack and needed protection, or that his assailant had a propensity to engage in such attacks. Craig v. City of New York, #2225/93, 2007 N.Y. Misc. Lexis 1624 (Civil Court of the City of N.Y., Bronx County).

     Prison officials were not liable for an attack on a prisoner by another inmate who stabbed her with a pen, absent any evidence that they should have anticipated the attack or taken specific measures to prevent the fight. Alleged verbal abuse when the plaintiff was informed that she and her assailant would be transported together to receive medical care also did not violate her constitutional rights. Brown v. Saj, No. 06-CV-6272, 2007 U.S. Dist. Lexis 25553 (W.D.N.Y.).

Prisoner Assault: By Officers

     Federal court declines to dismiss prisoner's claim that an officer used excessive force and assaulted him when he declined to state what his middle name was. The prisoner claimed injuries including possible nerve damages, difficulty urinating, and difficulty breathing, and these were not injuries considered to be minimal. Brewer v. Paugh, No. 5:06CV98, 2007 U.S. Dist. Lexis 11393 (N.D.W.Va.).

Prisoner Death/Injury

     Federal court dismisses inmate's claim for violation of his federal civil rights stemming from injuries he suffered when the top bunk of a bunk bed in his cell collapsed on top of him, because the evidence showed, at most, that the jail and its officials may have been negligent in failing to repair the bunk bed, not that they acted with deliberate indifference to the plaintiff's health and safety. McKnight v. McDuffie, No. CV405-183, 2007 U.S. Dist. Lexis 26131 (S.D. Ga.).

Prisoner Discipline

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

     Former pretrial detainee did not show that his constitutional rights were violated when jail officials allegedly would not allow him to call witnesses at a disciplinary hearing, when he failed to show that he had any witnesses with relevant information that he tried to call. Prisoners do not have a right to call witnesses who would present repetitive or irrelevant evidence, so the plaintiff showed no violation of his due process rights. Jackson v. Everett, No. 06-2809, 2007 U.S. App. Lexis 9869 (7th Cir.).

     A prisoner's conviction of violation of a disciplinary rule, specifically of forging certificates showing that he had completed aggression replacement training, was supported by substantial evidence, including the documents, a misbehavior report, and testimony by investigating officers. The hearing officer's own analysis and finding of similarities between the certificates and the prisoner's handwriting samples were enough to uphold the conviction, and the failure to present a comparison by a handwriting expert did not alter the result. The court also ruled that the disciplinary hearing was commenced in a timely manner under New York law. Agosto v. Selsky, No. 501136, 2007 N.Y. App. Div. Lexis 5108 (3rd Dept.).

Prisoner Suicide

     In the absence of any evidence that a correctional officer considered an inmate to be suicidal or that he was aware of the "strange behavior" observed by the inmate's cellmates, he could not be liable for the prisoner's suicide in a county jail, and was entitled to qualified immunity. A sheriff, who was, at most, negligent, was also entitled to qualified immunity on a federal civil rights claim. Gaston v. Ploeger, No. 05-3461, 2007 U.S. App. Lexis 8572 (10th Cir.).

     When no previous suicide had occurred at a city jail, and there was no evidence of a city policy which was deliberately indifferent to prisoner suicide, the city could not be held liable for the death of a prisoner placed on suicide watch (after he asked a detective, during his booking, to please give him a gun so that he could shoot himself), but who hung himself with two blankets torn into strips. Bradley v. City of Fendale, No. 02-73001, 2007 U.S. Dist. Lexis 26270 (E.D. Mich.).

Public Protection

     Half-way house, which allegedly prematurely released a convicted felony into the community, could be held liable for his subsequent murder of the plaintiff's daughter. The question of whether the half-way house's negligence had caused the murder was a question for the jury. The court stated that it could be found to be reasonably foreseeable that a felon with a history of armed violence and burglary might commit a violent crime while breaking into a house if he was prematurely released. The half-way house's motions for summary judgment or judgment on the pleadings were denied. Smith v. Hope Village, Inc., Civil Action No. 05-633, 2007 U.S. Dist. Lexis 26904 (D.D.C.).

Religion

    Rhode Island Department of Corrections failed to show that a compelling interest in prison security was served by preventing a prisoner from preaching religion to his fellow prisoners at any time, as well as that the total ban on such inmate preaching was the least restrictive means of furthering that interest. The prisoner's claim that the ban violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.S. § 2000cc et seq., was therefore reinstated, overturning summary judgment for the defendant Department. Spratt v. R.I. Dept. of Corrections, No. 06-2038, 2007 U.S. App. Lexis 8021 (1st Cir.).

Telephone Access

     Prisoners have no right to unlimited phone access and the assignment of a prisoner with a history of using the phone to carry out criminal activity to a security classification restricting his phone privileges did not violate his free speech rights, and served legitimate interests in public and institutional safety by lowering the possibility that he would use the prison phones for criminal purposes. Perez v. Federal Bureau of Prisons, No. 06-3983, 2007 U.S. App. Lexis 8331 (3rd Cir.).

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     Prison Sex: Rethinking Prison Sex: Self-Expression and Safety. (Sexuality and the Law) Self-Expression and Safety. (Sexuality and the Law) Author(s) Smith, Brenda V. Details Published 2006. 45 pages. The "complexity of prison sex and the challenges that it raises in the context of recently enacted federal legislation, the Prison Rape Elimination Act ('PREA')" are examined (p. 1). Sections of this article are: abstract; PREA (of 2003) and its precursor; prisoner sex and the birth of U.S. prisons; inmates' interests in sexual expression; legitimate interests for state regulation of prison sex; and conclusion. The author suggests there is a need to balance institutional safety and security with the inmate's wish for consensual sex and individual sexual self-expression. Accession Number: 021523

     Prisoner Reentry Issues:  One Year Out: Experiences of Prisoners Returning to Cleveland Author(s) Visher, Christy A. Courtney, Shannon M.E. Source(s) Urban Institute. Justice Policy Center (Washington, DC) Sponsor(s) George Gund Foundation (Cleveland, OH) Health Foundation of Greater Cincinnati (Cincinnati, OH) Cleveland Foundation (Cleveland, OH) Smith Richardson Foundation (Westport, CT) Annie E. Casey Foundation (Baltimore, MD) Ohio. Office of Criminal Justice Services (Columbus, OH) Ohio Dept. of Rehabilitation and Correction (Columbus, OH) Details Published 2007. 15 pages. This research brief is intended to serve as a foundation for policy discussions about how released prisoners can successfully reintegrate into their communities, whether in Cleveland or in similar cities around the country" (p. 1). Sections of this report include: key findings, housing and community residence; employment and financial circumstances; family and peers; program participation and post-release attitudes; physical and mental health; profile of study participants; substance use; post-release supervision; criminal involvement; understanding reentry success and failure; and summary and policy implications. Accession Number: 022266 Related Documents

     Sexual Offenders: Evaluating and Improving Risk Assessment Schemes for Sexual Recidivism: A Long-Term Follow-Up of Convicted Sexual Offenders Author(s) Knight, Raymond A. Thornton, David Sponsor(s) National Institute of Justice (Washington, DC) Published 2007. 155 pages. The validity of seven instruments for predicting recidivism of sexual offenders is investigated. Sections following an executive summary are: abstract; introduction; method; results according to reliability and predictive potency of actuarials, meaningful differences among modern risk assessment instruments, cohesive and meaningful predictive dimensions identified in the extant risk assessment instruments, predictive contribution of the SRA (Structured Risk Assessment) Need framework, relation between age and sexual recidivism, and determining differential predictors for rapists and child molesters; and discussion. Based on this research, a new actuarial tool is being developed. Accession Number: 022261

     Sexual Offenders: Resources for Enhancing Sex Offender Management Strategies, U.S. Department of Justice, Bureau of Justice Assistance.

     Training: Correctional Leadership Resources: FY 2007. National Institute of Corrections. A collection of training material for corrections administrators is provided on CD-ROM. A copy may be requested by clicking on the link.

Reference:

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

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