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Access to Courts/Legal Info

     Prisoner's claim that he was denied meaningful access to the courts because of the lack of certain resources in the prison law library was meritless when he failed to show that this caused him any actual injury to the ability to pursue a particular legal claim. Awala v. New Jersey Dept. of Corrections, No. 05-4899, 2007 U.S. App. Lexis 2094 (3rd Cir.).

Defenses: Absolute Immunity

     The Westfall Act, 28 U.S.C. Sec. 2679(b)(1) provides federal employees absolute immunity from tort claims for actions taken in the course of their official duties, and gives the Attorney General the power to certify that a federal employee sued for wrongful or negligent conduct was acting within the scope of his office or employment at the time of the incident. Once that certification takes place, the U.S. government is substituted as the defendant instead of the employee, and the lawsuit is then governed by the Federal Tort Claims Act. Additionally, if the lawsuit began in state court, the Westfall Act provides that it shall be removed to federal court, and renders the Attorney General's certification "conclusive" for purposes of the removal. Once the certification and removal take place, the federal court has the exclusive jurisdiction over the case, and cannot decide to send the lawsuit back to state court. In this case, the U.S. Supreme Court also ruled that certification can take place under the Westfall Act in instances where the federal employee sued asserts, and the Attorney General also concludes, that the incident alleged in the lawsuit never even took place. Osborn v. Haley, No. 05–593 2007 U.S. Lexis 1323.

Defenses: Statute of Limitations

     Prisoner's claim that a county jail failed to provide him with necessary medical treatment for injuries suffered in a car accident was barred by a Florida four-year statute of limitations, since he filed his lawsuit in federal court over ten years after the four-year period expired. Even if he was entitled to tolling (extension) of the statute of limitations during his detention in the county jail, he was required to filed his lawsuit no later than June of 1995, but failed to file it until November of 2005. Gomez v. Doe, No. 06-10091, 2007 U.S. App. Lexis 422 (11th Cir.).

DNA Tests and Databases

     After a Pennsylvania prisoner was convicted of a violent felony, a sex offense, there was a compelling interest in collecting a DNA sample from him because it is a reliable means of identification. Walker v. James, No. 03-3541, 2007 U.S. Dist. Lexis 5064 (E.D. Pa. 2007).

     Federal probationer who was charged with a violation of federal law in relation to the use of explosives was entitled to a modification of the conditions of his probation to prevent the U.S. Probation Department from obtaining a DNA sample from him under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Secs. 14135-14135e. While the probationer had a lessened expectation of privacy when it came to searches of his person and home, the obtaining of a DNA sample was a "highly intrusive" search, so that the DNA Act was unconstitutional as applied to him. U.S. v. Stewart, No. 05-10062, 2007 U.S. Dist. Lexis 745 (D. Mass.).

     Federal appeals court rules that DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Secs. 14135-14135e is not a violation of the Fourth Amendment, an impermissible retroactive enhancement of an offender's punishment, or a violation of the right against self-incrimination protected by the Fifth Amendment. Accordingly, the court upheld a revocation of a defendant's supervised release after he refused to provide a blood sample for DNA analysis, as required by the statute. U.S. v. Reynard, No. 02-50476, 2007 U.S. App. Lexis 665 (9th Cir.).

First Amendment

     In a prisoner's lawsuit claiming that correctional officers made threats of physical violence against him, as well as threats of disciplinary action, to deter him from filing grievances, an officer's statement that "something drastic" would occur if the prisoner continued filing grievances, and a second officer's statement that the prisoner should "learn to play the game or have a boot put in your ass" could be found by a reasonable jury to be threats of violence aimed at retaliating against the prisoner for engaged in protected First Amendment activity. Pittman v. Tucker, No. 06-11454, 2007 U.S. App. Lexis 381 (11th Cir.).

Medical Care

     Prisoner with lupus sufficiently alleged personal involvement of correctional facility superintendent in alleged failure to provide him with prescribed medications for his condition, based on the filing of several grievances which gave the superintendent notice of the problem, and the alleged failure of the superintendent to take action to remedy it. Claims against the superintendent in his official capacity, however, were barred by Eleventh Amendment immunity, as he was a state official. Saxon v. Attica Medical Department, No. 05-CV-6336, 2007 U.S. Dist. Lexis 1243  (W.D.N.Y.).

     A doctor's failure to prescribe the same treatment, orthopedic shoes, recommended by another doctor at another correctional facility, did not show deliberate indifference to a prisoner's foot deformity. Additionally, there was no showing that the prisoner's foot condition subsequently worsened. Bismark v. Fisher, No. 05-10013, 2007 U.S. App. Lexis 536 (11th Cir.).

     Prisoner stated possibly viable claims for deliberate indifference to his serious need for medical attention for his back injury against the sheriff, a doctor, and a nurse. He alleged that he had communicated with the sheriff via letter to complain about the doctor and nurse denying him necessary medical attention for his injury, and that the sheriff knew of their actions, but failed to do anything to remedy the continued denial of assistance. Woods v. Miller, No. 05-16748, 2007 U.S. App. Lexis 1595 (11th Cir.).

Prison & Jail Conditions: General

     Sheriff and deputy were not entitled to qualified immunity on detainee's claim that he was kept for two days in a jail cell lacking a bed and which was contaminated with human waste. There were other cells with beds available, and there was no compelling interest justifying placing the plaintiff in a cell without a bed. Herbert v. Maxwell, No 05-30929, 2007 U.S. App. Lexis 1160 (5th Cir.).

     Failure of Florida correctional officials to provide air conditioning in facility did not create conditions sufficiently severe to objectively violate the plaintiff prisoner's Eighth Amendment rights. The court found that ventilation and air circulation at the prison exceeded national standards, and that extra fans were provided during very hot weather. Further, prisoners had access to water and medical attention when needed. Green v. Secretary Depart. of Corrections, No. 05-16807, 2006 U.S. App. Lexis 32062 (11th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

    Interpreting the scope of the "exhaustion of remedies" requirement in the Prison Litigation Reform Act, (PLRA), 42 U.S.C. Sec. 1997e(a), the U.S. Supreme Court unanimously held that: (a) Failure to exhaust is an affirmative defense under the PLRA, and inmates are not required to specifically plead or demonstrate exhaustion in their complaints--instead, defendant prison officials must specifically raise the failure to do so as a defense; (b) Exhaustion is not per se inadequate under the PLRA when an individual later sued was not named in the grievance, and the applicable procedural rules that a prisoner must properly exhaust are not defined by the PLRA, but by the prison grievance process itself; and (c) The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. Jones v. Bock, No. 05–7058, 05–7142, 2007 U.S. Lexis 1325.

     Based on the U.S. Supreme Court's decision in Jones v. Bock, No. 05–7058, 2007 U.S. Lexis 1325, a federal trial court acted erroneously in dismissing the entirety of a lawsuit for failure to exhaust available administrative remedies on the basis of the plaintiff inmate's failure to plead that he had exhausted such remedies on each of his claims or with respect to each named defendant. Fisher v. Primstaller, No. 05-1026, 2007 U.S. App. Lexis 2365 (6th Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     A resident of a privately operated halfway house was confined there for a criminal conviction, and therefore was a "prisoner" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), denying prisoners the right to proceed as paupers with federal civil rights claims (except for claims involving imminent threats of physical harm) after three of their lawsuits are dismissed as frivolous, brought for an improper purposes, or for failure to state a claim. In this case, the plaintiff clearly had three such "strikes." Jackson v. Johnson, No. 04-10419, 2007 U.S. App. Lexis 92 (5th Cir.).

     Dismissal of an appeal on the basis of the filing of a premature notice of appeal did not constitute a "strike" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), since such a dismissal was based on a curable procedural flaw, unlike a dismissal for making a frivolous claim or for failure to state a claim on which relief can be granted. Tafari v. Hues, No. 05-0958, 2007 U.S. App. Lexis 190 (2nd Cir.).

Prisoner Assault: By Inmates

     Prison officials could not be held liable for failure to protect a prisoner from an assault in a prison yard when the prisoner himself stated that he had not anticipated the attack, and there was no information from which the defendants could have known that it was going to take place. The mere fact that the plaintiff prisoner and his assailants were allegedly in rival gangs did not suffice when he and his assailants were in separate pens in the prison yard when the attack took place. Turner v. Cabana, No. 05-61062, 2007 U.S. App. Lexis 248 (5th Cir.).

Prisoner Assault: By Officers

     Prisoner's injuries from correctional officers' alleged excessive force against him--including minor abrasions on a knee, a small scratch on his chin, and two minor bumps, were insufficient under 42 U.S.C. Sec. 1997e(e) to constitute physical injury under a provision of the Prison Litigation Reform Act barring recovery of damages for mental or emotional injuries in the absence of physical injuries. The plaintiff was also not entitled to punitive damages since he did not show that the defendants had the required state of mind to justify such an award. Since the prisoner had not even asked for nominal damages, the defendants were entitled to summary judgment. Glosson v. Morales, No. 05-CV-707, 2007 U.S. Dist. Lexis 1603 (S.D. Cal.).

     Former jail detainee failed to show that the use of force against him during his incarceration had amounted to unnecessary and wanton infliction of pain and suffering, entitling defendants to summary judgment on his excessive force claim. Clarke v. Blais, Civil No. 05-177, 2006 U.S. Dist. Lexis 89941 (D. Me.).

Prisoner Discipline

     Prisoner who claimed that a jail violated his right to due process by revoking certain good-time credits without providing him with an adequate disciplinary hearing was properly awarded only $1 in nominal damages when he failed to show he suffered any actual damages, and the loss of the good time credits did not actually lengthen his incarceration, since he had to served a longer sentence in another state as soon as he was released from an Illinois prison. Shigemura v. Duft, No. 06-1258, 2006 U.S. App. Lexis 31668 (7th Cir.).

     Upholding disciplinary action against a prisoner for possession of a glass shank, a metal shank, and a metal rod found among his property, an intermediate appeals court ruled that an officer's misbehavior report, along with other testimony, was sufficient to provide substantial evidence of guilt. Any conflict between the testimony of the prisoner and the officers was merely a question of credibility for the hearing officer to determine, and the prisoner failed to show any bias on the part of the hearing officer. Abdullah v. Goord, No. 500397, 2007 N.Y. App. Lexis 12 (3rd Dept.).

     A notice of a disciplinary proceeding which had no information other than that the prisoner was being charged with violation of two prison rules, and which did not identify a location, a time, or a victim of the supposed offense was "clearly" insufficient to satisfy due process requirements. The plaintiff prisoner was therefore entitled to summary judgment on his constitutional due process claim. Dible v. Scholl, No. C05-4089, 2006 U.S. Dist. lexis 92207 (N.D. Iowa).

     Prisoner's six-month disciplinary confinement did not violate a constitutionally protected interest, so that he could not obtain damages on his claim that a search of his cell, which resulted in finding of a homemade knife, and subsequent discipline, was retaliatory for his having filed a grievance, or that his disciplinary hearing violated his due process rights. McKeithan v. Jones, No. 05-2238, 2007 U.S. App. Lexis 329 (3rd Cir.).

Prisoner Transportation

     In prisoner's lawsuit for injuries he allegedly suffered when the van he was traveling in was rear-ended by a vehicle driven by a correctional officer, even if the officer had been speeding, that only constituted, at most, negligence, which could not be the basis for a federal civil rights lawsuit. Further, the alleged failure to have seat belts installed in the van was not a violation of the prisoner's constitutional rights. Further proceedings allowed, however, as to whether officers acted with deliberate indifference after the accident, based on such factors as how long the inmate was detained at a facility after the accident, and whether the prisoner suffered injuries on the basis of an alleged delay in his treatment following the accident. Oliver v. Brooks, No. 5:06-cv-320, 2006 U.S. Dist. Lexis 90676 (M.D. Ga.).

Property

     The federal government, according to a federal appeals court, has waived immunity for the negligent loss of prisoners' property by government employees under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), and subsequent amendments to the Civil Asset Forfeiture Reform Act, which changed the applicable section of the FTCA, 28 U.S.C. Sec. 2680(c), did not alter this. Accordingly, the trial court improperly dismissed a lawsuit for the value of items of property allegedly lost during a prison "shakedown." Dahler v. U.S., No. 05-4782, 2007 U.S. App. Lexis 664 (7th Cir. January 12, 2007)

Religion

     Trial court acted erroneously in ruling that prison officials did not violate inmate's rights to religious freedom by denying him access to certain allegedly religious books. The court found that the titles of the books indicated that they were "self-help" spiritual books. The appeals court ruled that the distinction between religion and spiritual "self-help" was not viable, and that the prisoner adequately alleged that his sincerely held religious beliefs were violated. Heleva v. Kramer, No. 06-1538, 2007 U.S. App. Lexis 1999 (3rd Cir.).

     The law was not clearly established, at the time of the prisoner's claim, that enforcement of a prison grooming policy requiring a prisoner to cut his hair would violate his right to religious freedom, entitling a defendant retired prison official to qualified immunity against liability. Von Staich v. Cal. Dept. of Corrections, No. C-04-2799, 2006 U.S. Dist. Lexis 73110 (N.D. Cal.).

     Muslim prisoner presented a viable factual issue as to whether one prison guard and the warden intentionally violated his right to practice his religion by preventing him from attending a Ramadan observance program. Under the prison's rules, disqualification from participation in one religious exercise automatically barred participation in communal worship services. The prison officials failed to show that this policy was the least restrictive means of advancing a compelling governmental interest, as required by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1. Lovelace v. Lee, No. 04-7797, 472 F.3d 174 (4th Cir. 2006)

     Catholic prisoner was not entitled to preliminary injunctive relief concerning his request for kosher meals because this was a request for a religious practice not usually associated with the Catholic faith. He failed to show that he was likely to succeed on the merits of his claim that denial of kosher meals violated his rights to religious freedom. Guzzi v. Thompson, No. 06-10874, 2007 U.S. Dist. Lexis 5132 (D. Mass.).

     Federal appeals court rules that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1, was a constitutional use of the spending power of Congress, and because the state of Virginia voluntarily accepted federal funds for its correctional facilities, it could not avoid the requirements of that statute. Because the statute does not clearly and unambiguously provide for money damages against a state or state agency, the Eleventh Amendment barred any money damages claim against the state under the statute. Madison v. Virginia, No. 06-6266, 2006 U.S. App. Lexis 32053 (4th Cir.).

Sexual Assault

     Correctional officer did not act with deliberate indifference by placing an inmate in a cell with inmates who had previously sexually assaulted him when she did not have knowledge of that prior attack, and removed him from the cell as soon as he made a request that she do so. Allen v. York County Jail, No. 06-1461, 2007 U.S. App. Lexis 1436 (1st Cir.).

Smoking

     In federal prisoner's lawsuit claiming that Bureau of Prisons (BOP) personnel did not enforce anti-smoking policies restricting smoking to certain designated areas, a federal trial court ruled that BOP staff had discretion, under the policies and regulations, concerning carrying out the policies. The court therefore dismissed the complaint based on the discretionary function exception of the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a). Reed v. U.S., No. 06-CV-096, 2006 U.S. Dist. Lexis 90547 (E.D. Ky.).

Strip Searches

     Correctional officials were entitled to qualified immunity in lawsuit brought by juvenile detainee allegedly subjected to strip searches under policy allowing such searches without reasonable suspicion of possession of contraband, as the law on the subject was not clearly established in the context of a juvenile facility. Doe v. Preston, Civil Action No. 03-11804, 2007 U.S. Dist. Lexis 6871 (D. Mass.).

Terrorism, Military Prisoners, and National Security Issues

     Prisoner's placement on a watch list by the U.S. Department of Homeland Security was not a deprivation of a due process liberty or property right, even if it did allegedly result in prison officials placing him in administrative detention at times of elevated national security. Almahdi v. Ridge, No. 04-3120, 2006 U.S. App. Lexis 26938 (3rd Cir.).

     The U.S. Attorney General had statutory authority to determine the place of detention of a detainee in the custody of the Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (BICE) while awaiting review of an order for his removal from the country, so that the detainee had no viable federal civil rights claims concerning his transfer to another facility or his detention. Drummond v. State of New York, No. 06-CV-0255, 2006 U.S. Dist. Lexis 80178 (W.D.N.Y.).

Visitation

     Court upholds revocation of visitation privileges for wife of inmate who allegedly hid cell telephones inside a typewriter and sent them to correctional facility for the use of her husband and two other prisoners. Evidence that the phones were planned to be used in connection with an escape attempt showed that she posed a threat to safety and security. Court rejects argument that it was improper to revoke her visitation privileges because the misconduct at issue did not occur during one of her visits. In the Matter of Sylvester v. Goord, #500653, 2007 N.Y. App. Div. Lexis 1037 (3rd Dept.).

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     Gangs: Report: "Public Enemy Number 1: California's Growing Racist Gang," (2007) by the Anti-Defamation League (ADL) discusses a white supremacist gang which is an "unusual hybrid of a racist skinhead gang, a violent white street gang, and a prison gang" which has grown substantially in recent years. The gang was the target of a December 14, 2006 series of search and arrest warrants executed by nearly 300 police officers from two dozen federal and local law enforcement agencies in Southern California at 75 different locations, resulting in the arrests of 67 alleged members of the gang "Public Enemy Number 1 (PENI)." The raids occurred after information was uncovered concerning an alleged PENI "hit list" with the names of a prosecutor and five police officers from several different departments.

     Search and Seizure: "Hooking the Crook: The Seventh Circuit Justifies the Suspicionless Search of a Probationer," by Meira Greenberg. 2 Seventh Circuit Rev. 203 (2006)

     Statistics: Medical Causes of Death in State Prisons, 2001-2004. Describes the specific medical conditions causing deaths in State prisons nationwide during a four-year period. For the leading medical causes of death, mortality rates are presented by gender, age, race and Hispanic origin, and the length of time served in prison. The report includes detailed statistics on cancer deaths. Mortality among older prisoners is examined in detail. Prisoner death rates are compared with rates in the general U.S. resident population. Data on medical treatments provided for these fatal illnesses are presented, along with findings on the presence of medical problems at time of admission to prison. State-by-state mortality rates are presented for the leading causes of illness deaths in appendix tables. Detailed data tables on topics covered in the report will be available on the BJS website. 1/07 NCJ 216340  Press release | Acrobat file (254K) | ASCII file (16K) | Spreadsheets (zip format 18K)

     Terrorism, Military Prisoners, and National Security Issues: Guantanamo Bay Inquiry 244 pages. The FBI on January 2, 2007 released documents related to an internal inquiry in 2004 of FBI personnel who had served at Guantanamo Bay, Cuba since September 11, 2001 and had observed any aggressive interview techniques, interrogations, or mistreatment of detainees by representatives of law enforcement, the military, or the FBI. There were no documented incidents involving FBI personnel. These documents include summaries of what FBI personnel observed. Part 1 Part 2

Reference:

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

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