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Access to Courts/Legal Info

     Federal appeals court upholds dismissal of prisoner's lawsuit over alleged violation of his right of access to the courts based on the alleged refusal of the prison to advance him funds to use for postage to mail documents to a court. The prisoner failed to show that he suffered any injury to his right to pursue claims concerning his sentence or conditions of confinement from the alleged deprivation. Salkeld v. Tennis, No. 07-1776, 2007 U.S. App. Lexis 21990 (3rd Cir.).

     Ohio Supreme Court orders dismissal of proceeding charging inmate who acted as a "jailhouse lawyer" in the state prison system with the unauthorized practice of law. The court stated that inmates were entitled to "meaningful access to the courts," there were "no reasonable" alternatives to the inmate's actions for other prisoners, and further, that the proposed sanctions sought to be imposed against him would be meaningless. Any regulation of his conduct was to be governed by internal prison regulations, and not by the court's practice rules. Disciplinary Counsel v. Cotton, No. 2004-1130, 2007 Ohio Lexis 2165.

DNA

     A requirement that prisoner provide a blood sample as a condition of supervised release for inclusion in DNA databases did not violate his Fourth Amendment or other constitutional rights. U.S. v. Lujan, No. 02-30237, 2007 U.S. App. Lexis 23046 (9th Cir.),

Drugs and Drug Screening

     Prisoner's refusal to submit a urine sample for the purposes of drug testing was not constitutionally protected conduct, and he could be properly disciplined for a violation of prison rules requiring him to do so. Prison was not required to have "probable cause" to conduct such testing, and could do so on a random basis. Guillen v. Finnan, No. 06-3970, 2007 U.S. App. Lexis 21031 (7th Cir.).

First Amendment

     Bureau of Prisons regulation prohibiting a prisoner from publishing an article under a byline, 28 C.F.R. Sec. 540.20(b) violates the First Amendment, and was not essential for any particular security objective. The regulation was overbroad in discouraging all outgoing correspondence with the news media. Jordan v. Pugh, No. 02-cv-01239, 2007 U.S. Dist. Lexis 58231 (D. Co.).

     There was a genuine issue of fact as to whether a prison employee who moved an inmate from the first to the second floor did so in retaliation for the prisoner having previously filed grievances and a lawsuit, requiring further proceedings on his First Amendment claim. Cross v. Dretke, No. 06-40513, 2007 U.S. App. Lexis 17207 (5th Cir.).

     Prisoner failed to show that he was subjected to unlawful retaliation after he filed a grievance against an officer. The officer filed a misconduct report against him, which provided information concerning a fight between the inmate's children and the officer's children at school. The prisoner failed to show that the subsequent proceedings, which resulted in him being put into administrative custody and transferred, constituted unlawful retaliation. First, there was evidence that the officer had no involvement in what occurred after filing the report, and that institutional stability and safety required the separation of the officer and prisoner after the fight between their children occurred. Davis v. Pennsylvania State, No. 06-5188, 2007 U.S. App. Lexis 17819 (3rd Cir.).

     A correctional regulation which prohibited an inmate's use of "abusive, obscene, or inappropriate language" did not violate a Pennsylvania prisoner's rights, and punishment of a prisoner for using such language in a prison form and a letter to a prison employee was proper, even if those documents allegedly were part of the prisoner's attempts to redress prison staff "malfeasance." Corliss v. Varner, No. 06-2328, 2007 U.S. App. Lexis 22202 (3rd Cir.).

Frivolous Lawsuits

     Prisoner's claim that he was subjected to retaliation and a "fabricated" misconduct complaint for expressing an opinion about which television channel inmates would watch was properly dismissed as frivolous. A First Amendment retaliation claim could not be based on this, as expressing such an opinion was not protected speech. Wilson v. Budgeon, No. 07-1607, 2007 U.S. App. Lexis 22086 (3rd Cir.).

Governmental Liability: Policy/Custom

     Prisoner failed to provided any evidence of an official city policy permitting or encouraging the excessive or unnecessary use of force by sheriff's employees against arrestees, or a widespread custom of such use of force, so that the city was entitled to summary judgment. Ludaway v. City of Jacksonville, Florida, No. 07-10859, 2007 U.S. App. 21150 (11th Cir.).

Inmate Funds

     County policies under which money from a detainee's canteen account was withheld for booking and arraignment fees, and for room-and-board did not violate due process even though no pre-deprivation hearing was provided. A county's interests in encouraging offender accountability and sharing the costs of incarceration were substantial and outweighed the "small" private interest in a detainee retaining the money. Relatives of detainees who sent funds to be deposited in such canteen accounts voluntarily gave up any interest they previously had in the money. Sickles v. Campbell County, Kentucky, No. 06-6055, 2007 U.S. App. Lexis 21163 (6th Cir.).

Inmate Property

     Because of a discrepancy between an inventory of inmate property taken at a prior state facility and the inventory taken at a federal facility to which the inmate was transferred, there was a genuine issue as to whether the property was "pilfered" while it was in the custody of federal prison employees, requiring further proceedings on the inmate's claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b)(1) for the loss of his property, a thermos, a pair of eyeglasses, and a pair of sunglasses. Mathis v. U.S.A., No. 8:05-3000, 2007 U.S. Dist. Lexis 65611 (D.S.C.).

Mail

     Federal appeals court rejects challenge to county jail's regulations barring prisoner receipt and access to both sexually explicit and technical publications, but orders further proceedings on a ban on receipt of catalogs. Jones v. Salt Lake County, No. 04-4185, 04-4186 2007 U.S. App. Lexis 22990 (10th Cir.).

Medical Care

     In prisoner's lawsuit over the alleged refusal of a prison clinical director to give him a narcotic medicine prescribed by a neurologist, there was evidence which indicated that the neurologist in fact changed his recommendation after learning of the prisoner's past prescription narcotics addiction. Additionally, there was no indication that the defendant director improperly delayed treatment of the prisoner for non-medical reasons. Whooten v. Bussanich, No. 07-1441, 2007 U.S. App. Lexis 21856 (3rd Cir.).

     While a prisoner's Hepatitis C was a serious medical need, since it could result in liver disease and death, the plaintiff had failed to show that the federal government acted with deliberate indifference to his need for treatment. The prisoner's condition was monitored by routine blood tests, and he was also provided with an ultrasound, which showed that his liver was normal. The prison officials did not act improperly in requiring that the inmate, who had a long history of mental illness, be cleared by the prison's psychology services department before being placed on a list for a liver biopsy. All that the prisoner succeeded in showing was his disagreement with the course of treatment provided, which did not show a violation of his rights. Coleman-Bey v. U.S.A., No. 06-1855, 2007 U.S. Dist. Lexis 66645 (D.D.C.).

     Prisoner who suffered a stroke adequately stated claims for possible deliberate indifference to his serious medical needs. Among other things, he claimed that he was placed in a special housing unit without a needed wheelchair or walking aid, that his blood pressure was not consistently monitored, and that he was denied access to materials necessary for his physical therapy. Estrada v. Reed, No. 07-C-442, 2007 U.S. Dist. Lexis 68769 (W.D. Wis.).

     While the record showed that a prisoner who suffered a back injury while performing a prison job was provided with treatment for his injury at that facility, the trial court failed to address the prisoner's claims that he was subjected to either denial or delay of medical treatments and appointments, in violation of recommendations by certain medical specialists, requiring further proceedings. Cooleen v. Lamanna, No. 05-4751, 2007 U.S. App. 22204 (3rd Cir.).

     In a lawsuit over the death of a detainee at a county jail from a methamphetamine overdose, there was sufficient evidence from which a reasonable jury could possibly find that both a deputy sheriff and a jailer knew that the detainee had swallowed drugs during his arrest, but deliberately disregarded his resulting medical needs. There was no evidence, however, that other jail employees had any such knowledge, or that any additional training would have made a difference in how the detainee was treated. Hall v. County of Nemaha, Neb., No. 4:06CV3069, 2007 U.S. Dist. Lexis 66002 (D. Neb.).

Prison & Jail Conditions: General

     Prisoner who claimed he was exposed to "extremely cold" temperatures in a state prison failed to provide any evidence that the temperature ranged from 26 degrees to -15 degrees. The defendants, however, presented evidence that the temperature at the time at the prison ranged from 67 to 75 degrees. The prisoner also failed to show that he suffered any injuries as a result of the purportedly cold conditions, or even that he requested extra blankets or a move to warmer cell. Further, his complaints about the temperature in his cell were investigated, and he was moved to a different cell. Prison officials also replaced certain parts of the prison heating system. Brown v. Beard, No. 07-2169, 2007 U.S. App. Lexis 21987 (3rd Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoners seeking to assert claims under the Americans With Disabilities Act (ADA) and the Rehabilitation Act for alleged disability discrimination by prison officials (failure to accommodate and treat his mental illness) are required by The Prison Litigation Reform Act (PLRA) to exhaust available administrative remedies before proceeding with a lawsuit.  In this case, the prisoner failed to exhaust such remedies before filing his lawsuit, which must, therefore, be dismissed. The court also noted, however, that because the prisoner had, in the meantime, proceeded to exhaust those administrative remedies, he could now file a new lawsuit based on his claims if he wanted. O'Guinn v. Lovelock Corr. Ctr., No. 06-15972 2007 U.S. App. Lexis 21170 (9th Cir.).

     Dismissal of a prisoner's lawsuit for alleged failure to exhaust available administrative remedies was improper when the prisoner presented evidence that prison staff members were ignoring his initial grievance forms concerning religious harassment, and refused to give him forms necessary to continue the process of pursuing administrative remedies. Based on these allegations, the trial court was required to make a factual finding as to whether the prison grievance process was actually "available" to the plaintiff prisoner. Nixon v. Sanders, No. 06-1013, 2007 U.S. App. Lexis 19698 (8th Cir.).  

Prison Litigation Reform Act: "Three Strikes Rule"

     In an opinion on a previously unresolved issue, a federal appeals court ruled that the dismissal of a lawsuit in which some claims were dismissed for failure to state a claim and other claims were dismissed for failure to exhaust available administrative remedies, the dismissal counts as a strike for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g). Under that rule, a prisoner with three strikes is denied the right to proceed as a pauper with further lawsuits, except in cases presenting a danger of imminent physical harm. The appeals court found that the whole purpose of the "three strikes" rule would be undermined if prisoners could avoid getting a "strike" simply by adding "unexhausted" claims to a lawsuit containing claims that would otherwise to summarily dismissed on the merits. Pointer v. Wilkinson, No. 06-3393, 2007 U.S. App. Lexis 21250 (6th Cir.).

Prison Rules and Regulations

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

     Commissary supervisor's order requiring inmate workers to stop speaking Spanish and converse only in English while working did not violate prisoner's constitutional rights. The supervisor's concern for her own safety if workers spoke a language on the job that she did not understand was legitimate, and was rationally related to the order given. The inmates working there could still communicate with each other in English, and did not prevent them from using Spanish at other times. Allah v. Poole, No. 05-CV-6050, 2007 U.S. Dist. Lexis 59574 (W.D.N.Y.).

Prisoner Assault: By Inmate

     Prisoner who allegedly was attacked by fellow inmates while "indiscriminately placed" together with other unclassified inmates during an "initial evaluation period" did not show that the prison director was deliberately indifferent to the possibility of such an assault. The director had no contact with the plaintiff prisoner, and was the acting director of corrections for the entire state. Additionally, there was no evidence that she knew or should have known of the risk of harm to the plaintiff during the evaluation period. The defendant director had not written the policy or procedures challenged, and was new to the job. The prisoner presented no evidence of anything that would have alerted the director to any alleged deficiencies in the procedures, such as complaints of other attacks. Byerly v. McConnell, No. 06-15267, 2007 U.S. App. Lexis 21312 (9th Cir.).

Prisoner Assault: By Officer

     Correctional officer who allegedly used a cattle prod against an inmate who was merely working at his prison job was not entitled to summary judgment. If it was true that the prisoner was not causing any disruption or violating any prison rule, a reasonable jury could find that there was no need to use any level of force. Payne v. Parnell, No. 05-20687, 2007 U.S. App. Lexis 21227 (5th Cir.).

     Prisoner stated a claim for excessive use of force against correctional officer who allegedly slammed the food slot door of his cell on his hand three times without justification. Claims against a supervising officer and a fellow officer who allegedly failed to prevent the alleged use of force were properly dismissed, however. Espinoza v. McDaniel, No. 3:06-CV-00542, 2007 U.S. Dist. Lexis 58416 (D. Nev.).

Prisoner Classification

     Prison officials did not violate inmate's rights by classifying him as a security risk without a hearing after he was accused of planning to escape by using a passport his twin brother had provided him. The state of Connecticut had not given inmates a protected liberty interest in their security classifications, and the deprivations he allegedly suffered were not an "atypical and significant hardship." Additionally, the court noted, prisoners do not generally have constitutionally protected liberty interests in classifications that allow them to participate in rehabilitative programs (one of the arguments the prisoner put forward for why he was entitled to a hearing. Taylor v. Levesque, No. 06-0356, 2007 U.S. App. Lexis 21178 (2nd Cir.).

Prisoner Discipline

     Prisoner subjected to discipline for allegedly making and providing a weapon to another inmate had no due process right to know the identity of confidential informants regarding the incident or to obtain a copy of confidential reports. Lewis v. Moore, No. CV 04-3055, 2007 U.S. Dist. Lexis 61667 (D. Ariz.).

Public Protection

     City and its probation and parole department were not liable for the murders of a number of persons killed by a parolee who escaped from home detention. The plaintiffs failed to show that those killed by the parolee were "foreseeable" victims or that the defendants took affirmative actions which created or enhanced the danger to the victims, as required for the "state-created danger" theory of liability. Henry v. Philadelphia Adult Probation and Parole Dept., Civil Action No. 05-4809, 2007 U.S. Dist. Lexis 66247 (E.D. Pa.).

Religion

     Prisoner failed to show that the serving of vegetarian meals to all inmates at a jail during Lent improperly forced him to practice a religious tenet of the Catholic religion. The jail did not engage in the serving of the vegetarian meals for the purpose of advancing Catholicism or inhibiting other religions, but for the secular purpose of feeding the prisoners. The prisoner's "equal protection" claim lacked merit, because all inmates were served such meals, regardless of their religion. Finally, the prisoner's refusal to eat vegetarian meals was not constitutionally protected conduct. Travillion v. Leon, No. 06-2136, 2007 U.S. App. Lexis 22203 (3rd Cir.). See also related proceeding at Travillion v. Coffee, No. 06-1873, 2007 U.S. App. Lexis 21959 (3rd Cir.), rejecting similar claims against the private company which provided the meals to the jail.

     In a lawsuit by a Utah prisoner claiming that the refusal of prison officials to allow him possession of tarot cards, incense and religious books prevented him from practicing his Wiccan religion, a federal appeals court found that there was enough factual support to conclude that the plaintiff was a sincere devotee of the Wiccan faith. Further proceedings were therefore ordered to determine whether the prison's restrictions were justified by reasonable penological interests for purposes of a First Amendment claim, as well as the prisoner's claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc et seq., requiring that restrictions on prisoner religious freedom be justified by a "compelling" governmental interest and use the "least restrictive means" to further that interest. Kay v. Bemis, No. 07-4032, 2007 U.S. App. Lexis 21811 (10th Cir.).

Sexual Offenders

     Convicted sex offender did not have a constitutional right to rehabilitative sex offender treatment, and the prisoner's claim that the failure to provide him with such treatment violated the terms of his plea bargain agreement could not be a basis for a federal civil rights lawsuit, although it might be raised in a petition for habeas corpus. Paige v. Oklahoma Dept. of Corrections, No. 07-6101, 2007 U.S. App. Lexis 21558 (10th Cir.).

     California state officials and employees allegedly responsible for the conditions of confinement of civilly committed persons and persons awaiting commitment under the state's Sexually Violent Predators (SVP) Act were entitled to qualified immunity from a lawsuit asserting claims for double jeopardy, violation of procedural due process, violation of the Eighth Amendment prohibition on cruel and unusual punishment, and violation of the ex post facto clause of the U.S. Constitution (barring retroactive enhancement of the penalty for a crime). A federal appeals court ruled, however, that they were not entitled to qualified immunity on other claims raised in the lawsuit concerning the conditions of confinement of such persons, particularly as those sued were directors and policy-makers for the state hospital at which such persons were confined. Additionally, if the facts alleged by the plaintiffs were true, they might be able to show that they were subjected to punishment in unlawful retaliation for their filing of grievances about their conditions of confinement. Hydrick v. Hunter, No. 03-56712, 2007 U.S. App. Lexis 20729 (9th Cir.).

Transsexual Inmates

     Federal trial court denies correctional officials' motion for reconsideration of order requiring them to provide transsexual inmate with female hormone therapy and psychotherapy for treatment of gender issues. The officials based their motion on a claim that the prisoner's purported history of attempting to live like a female was not substantiated. That evidence, however, was found by the court to really only relate to the issue of whether or not the defendants were liable for allegedly failing to previously diagnose and treat the inmate before he engaged in self-castration, and was only "marginally" related to his diagnosis and treatment for gender identity disorder (GID) after that castration. The trial court ruled that GID was a life-threatening mental health condition if untreated, in light of the prisoner's actions of self-mutilation and attempts at suicide after having repeatedly requested treatment for GID. Gammett v. Idaho State Board of Corrections, No. CV05-257, 2007 U.S. Dist. 66456 (D. Idaho).

Work/Education/Recreation Programs

     Federal prisoner performing the duties of his prison job was not a federal "employee" and it did not violate his rights to fail to pay him the federal minimum wage for that work. Banks v. Roberts, No. 1:06-CV-01232, 2007 U.S. Dist. Lexis 57697 (M.D. Pa.).

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     AIDS & HIV: HIV in Prisons, 2005. Provides the number of HIV-infection and confirmed AIDS cases among State and Federal prisoners at yearend 2005. This annual bulletin reports the number of AIDS-related deaths in prisons, a profile of those inmates who died, the number of female and male prisoners who were HIV-infected or had confirmed AIDS, and a comparison of confirmed AIDS rates for the general and prisoner populations. This report also examines trends in HIV infection, confirmed AIDS, and AIDS-related deaths. Data are from the National Prisoner Statistics and the Deaths in Custody series. Highlights include the following: * At yearend 2005, an estimated 18,953 males and 1,935 females in State prisons were HIV-infected or had confirmed AIDS. * During 2005 an estimated 176 State inmates died from AIDS-related causes, down from 185 in 2004. * Among Federal inmates, 27 died from AIDS-related causes in 2005, up from 18 in 2004. 09/07 NCJ 218915 Press release | Acrobat file (152K) | ASCII file (28K) | Spreadsheets (zip format 22K).

     Legislation: California Senate Bill No. 81, Chapter 175 Source: California. Legislature. Senate (Sacramento, CA). 36 pages. This bill, approved by the Governor of California on August 24, 2007, amends sections of California's Government Code, Penal Code, and Welfare and Institutions Code related to corrections. Required changes will affect reporting of site assessments, master planning, funding for new jail construction, budget, operational and fiscal information, assessment of facility maintenance, reimbursement for detention costs, approval and administrative oversight of appropriated funds, approval for housing older juveniles, authority of juvenile courts, juvenile parole supervision, composition of the State Commission on Juvenile Justice, Youthful Offender Block Grant Program establishment, construction of a local youthful offender rehabilitation facility, telephone services to inmates, funding for offender rehabilitation, probation pilot project funding, and reimbursement of local agencies and school districts. Bill provisions are severable and "to take effect immediately as urgency statutes" p. 6. Accession Number: 022559

     Publication: "Jails and The Constitution: An Overview, Second Edition," by William C. Collins, (104 pgs., The National Institute of Corrections, September 2007). The sections included in this document are: Introduction, History of Court Involvement, Corrections & the Constitution in the New Century, The Constitution and the Physical Plant, Understanding Section 1983 Lawsuits, How the Courts Evaluate Claims: The Balancing Test, The First Amendment, The Fourth Amendment, The Eighth Amendment: Overview, The Eighth Amendment: Use of Force, The Eighth Amendment: Medical Care, The Eighth Amendment: Conditions of Confinement, The Fourteenth Amendment, Consent Decrees, Some Final Thoughts, Glossary, and Some Final Cases.

     Transsexual Prisoners: "Dual Prongs for the Doubly Imprisoned: Transsexual Inmates & the Eighth Amendment Right to Treatment," Matthew Stoloff, Syracuse University College of Law (August 2007) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012980

Reference:

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

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