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Access to Courts/Legal Info

     Removal from prison law library of reporters containing decisions of the U.S. Supreme Court prior to 1950 was not shown to have caused a prisoner any actual injury. While he claimed that the lack of access to these decisions caused him to be "prejudiced greatly" in pursuing his habeas petitions, he did not specify how, and, additionally, his habeas claims were not shown to be "non-frivolous." Hairston v. Nash, No. 06-5219, 2007 U.S. App. Lexis 20090 (3rd Cir.).

     Prison officials were not shown to have unconstitutionally interfered with a prisoner's right of access to the courts by depriving him of mail containing trial transcripts, in the absence of any actual injury, since he was still able to file his habeas petition without possession of that material. Wall v. McGrath, 1:05-cv-00818, 2007 U.S. Dist. Lexis 47787 (E.D. Cal.).

     Prisoner failed to show any evidence that he had a "meaningful legal need" for copies or carbon paper in connection with his pending litigation, so that his claim that denial of access to carbon paper or photocopying equipment free of cost was properly dismissed as frivolous. The prisoner also failed to show that the alleged denial of access to either one paralegal prisoner or access to the law library actually interfered with any pending case. Finally, since the prisoner had adequate funds to pay for his own stamps to send his papers to the court, the prison was not required to provide him with free postage to do so. Muhammad v. Mitchell, No. 07-1010, 2007 U.S. App. Lexis 17076 (10th Cir.).

Defenses: Qualified Immunity

     While the U.S. Court of Appeals for the Ninth Circuit in 2004 ruled that prison policies prohibiting all prisoner access to mail containing materials downloaded from the internet was unconstitutional in Clement v. California Department of Corrections, #03-15006, 364 F.3d 1148 (9th Cir. 2004), there was no clearly established law on the subject in 2001, when this plaintiff prisoner's mail containing such materials was returned, so that the prison warden was entitled to qualified immunity. Butler v. Yarborough, No. 03-5420, 2007 U.S. Dist. Lexis 56667 (E.D. Cal.).

Diet

     Prisoner did not show that the alleged failure to provide him with a diet prescribed for his hypertension, diabetes, and high cholesterol created any immediate danger to his health or even that his health suffered at all, and therefore did not establish a violation of his Eighth Amendment rights. Cody v. CBM Correctional Food Services, No. 06-1474, 2007 U.S. App. Lexis 19502 (8th Cir.).

DNA

      Requiring a prisoner on supervised release (probation) to provide a blood sample for DNA profiling purposes under the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 016-546 (codified in scattered sections of 10 U.S.C., 18 U.S.C., and 42 U.S.C.) did not violate his Fourth Amendment rights. The federal appeals court rejected the trial court's analysis, using a "special needs" test, which had concluded that requiring the blood sample violated the Fourth Amendment, and instead upheld the requirement under a "totality of the circumstances" test. U.S. v. Weikert, No. 06-1861, 2007 U.S. App. Lexis 18845 (1st Cir.).

Exercise

       Under the circumstances of a prisoner's confinement, depriving him of outdoor exercise did not violate his clearly established rights. Additionally, prison employees who deprived him of such outdoor exercise were entitled to qualified immunity. The prisoner could have changed his circumstances, the court noted, by simply agreeing to comply with the prison's work program policy. Moore v. LaMarque, No. 06-15724, 2007 U.S. App. Lexis 16163 (9th Cir.).

False Imprisonment

     Jail supervisory personnel were not shown to have acted with deliberate indifference to the right of prisoners to be released when ordered by a court. Any mistakes which resulted in the plaintiffs being detained after such court orders were not the result of jail policies concerning the processing of court orders, but rather were due to "unfortunate lapses" by non-supervisory personnel, stemming from cuts in the jail's budget and staff size. West v. Tillman, No. 06-14479, 2007 U.S. App. Lexis 20329 (11th Cir.).

Federal Tort Claims Act

     Trial court improperly dismissed prisoner's claim under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 28 U.S.C. Sec. 2680(a)-(n) seeking damages for a correctional officer's alleged negligent loss of his property while he was being transferred to a new cell. The federal appeals court rejected the trial court's ruling that 28 U.S.C. Sec. 2680(c), in stating an exception to liability under the Act for the detention of goods "by any officer of customs or excise or any other law enforcement officer" applied to actions of a correctional officer. That section, the appeals court ruled, in the phrase "any other law enforcement officer," only references law enforcement officers who are "functioning in a capacity akin to that of a customs or excise officer." The plaintiff's claim, therefore, was not barred by Sec. 2680(c), so further proceedings were required. ABC v. DEF, No. 06-1362, 2007 U.S. App. Lexis 21155 (2nd Cir.).

     Appeals court rejects prisoner's argument that independent contractors, such as a medical center and doctors providing medical services to federal prisoners were agents of the government. The waiver of sovereign immunity contained in the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 does not apply to negligent acts of independent contractors. Additionally, even if the Chief Health Programmer at a facility was found to be a federal employee, a doctor's alleged negligent action of tearing the prisoner's stitches while conducting an examination of his eye was a "subsequent cause," so that any negligence by the Programmer was not the cause of the prisoner's injuries. The prisoner's claims were therefore properly dismissed. Lopez-Heredia v. University of Texas Medical Branch Hospital, No. 05-11365, 2007 U.S. App. Lexis 16102 (5th Cir.).

Inmate Funds

     Inmate at municipal jail was not entitled to a hearing before the facility withheld a part of his canteen funds to cover the costs of his booking, room and board. Recovering such costs of incarceration did not violate the inmate's due process rights. Sickles v. Campbell County, No. 06-6055, 2007 U.S. App. Lexis 21163 (6th Cir.).

Inmate Property

     Seizure without a hearing of prisoner's materials concerning fantasy role-playing games, on the basis that materials of this sort had the potential of promoting "gang mentality and an interest in escape" did not violate either prisoner's due process of First Amendment rights. Post-deprivation remedies available were adequate to protect any possible due process rights, and the prison's policy was reasonably related to curbing gang activity and protecting institutional safety and security. Singer v. Frank, No. 05-C-1040, 2007 U.S. Dist. Lexis 55663 (E.D. Wis.).

Mail

     Correctional policy that allowed the opening of incoming legal mail outside of a prisoner's presence unless it bore a control number was not unconstitutional. The policy was rationally connected to a legitimate penological interest in preventing contraband from entering correctional facilities disguised as privileged legal mail. The policy allowed a court or attorney to apply for and use a control number on incoming envelopes to guarantee that their mail would be opened only in the presence of the prisoner. Brown v. Pa. Dept. of Corrections, No. 3 M.D. 2007, 2007 Pa. Commw. Lexis 482 (Commonwealth Court).

Medical Care

     Prison personnel could not be held liable for inmate's death from a malignant growth in her neck, since there was no showing that they deliberately disregarded a known risk to her health. The employees relied upon diagnoses provided by medical professionals which did not inform them of the danger the prisoner faced from the swelling on her neck, and the employees followed proper procedures by alerting medical personnel about the swelling and then treating the prisoner's swelling as they were directed. Forton v. Ogemaw County, No. 06-1753, 2007 U.S. App. Lexis 20145 (6th Cir.).

     When a prisoner received both medical treatment and pain medication for his condition while incarcerated, he failed to show that medical personnel acted with deliberate indifference to his claim that he had a nerve entrapment and hernia that required surgery. Baez v. Immigration and Naturalization Service, No. 06-30112, 2007 U.S. App. Lexis 20048 (5th Cir.).

     Prisoner received "substantial" medical treatment for his sinus and ear problems while incarcerated, including x-rays, antibiotics, and treatment by a specialist, and failed to show deliberate indifference to his serious medical needs. Any argument that the treatment he received was ineffective was, at most, a medical malpractice claim, and did not establish any violation of his constitutional rights. Fox v. Fischer, No. 05-4440, 2007 U.S. App. Lexis 17316 (2nd Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Further proceedings ordered to determine whether threats plaintiff prisoner claimed to have received from one of the defendants rendered the prison grievance procedures unavailable to him, or whether the existence of those threats barred the defendants from using the prisoner's failure to exhaust those remedies as an affirmative defense to his claim of deliberate indifference to his serious medical needs. Macias v. Zenk, No. 04-6131, 2007 U.S. App. Lexis 17795 (2nd Cir.).

Prisoner Assault: By Inmate

     There was no proof that correctional personnel were aware that the prisoner who allegedly attacked a pretrial detainee had a "proclivity for violence," and a guard who became aware of the attack responded in a reasonable manner by immediately seeking backup. The plaintiff detainee also failed to show that the county sheriff was aware of the extent of delays in reclassifying detainees, which the plaintiff claimed was responsible for him being attacked. The defendants could not be held liable for the attack on the detainee. Guzman v. Sheahan, No. 06-3647, 2007 U.S. App. Lexis 18660 (7th Cir.).

Prisoner Assault: By Officers

     There was no evidence from which a jury could find that officers used excessive force in entering an inmate's cell and restraining her after she was observed violently banging her head against her cell wall. Plaintiff prisoners also failed to show deliberate indifference to their serious mental health needs, when they received their prescribed medication, and they could not demonstrate that the care they received caused them any adverse symptoms. Bellotto v. County of Orange, No. 06-1185, 2007 U.S. App. Lexis 19848 (2nd Cir.).

Prisoner Discipline

     Discipline of prisoner for unauthorized possession of cellular phone was adequately supported by "some evidence" after it was found in a cooler with his prison number and nickname on it. Antonakeas v. Sherman, No. 06-5003, 2007 U.S. App. Lexis 20089 (3rd Cir.).

     Notice of the potential penalties a prisoner faces in a disciplinary hearing is not a due process requirement. Prisoner found guilty of fighting with another inmate, who was fined and lost some good time credit received sufficient due process since he was given notice of the hearing, the chance to defend himself, and a written statement of the evidence relied on for the disciplinary determination. White v. Golder, No. 07-1114, 2007 U.S. App. Lexis 19437 (10th Cir.).

     Federal Bureau of Prisons regulation, contained in 28 C.F.R. Sec. 541.13, tbl. 3, Code 203, prohibiting threats of bodily harm to any person is not void for vagueness. A disciplinary hearing properly found that the prisoner violated the regulation by approaching the female unit manager with a "loud and boisterous" tone of voice, and had "stepped towards her" every time he spoke. This determination could properly rely on the prisoner's mannerisms, movements, size, and tone of voice. The appeals court noted that prison regulations are not judged on the same strict standards as criminal statutes, and found that the prisoner should have known that he was violating the disciplinary rules, given his actions and size. Estrada v. Williamson, No. 06-3278, 2007 U.S. App. Lexis 16691 (3rd Cir.).

Prisoner Restraint

     Use of restraints on prisoner at county jail after she stated that she was having suicidal thoughts and wanted to try to make herself bleed to death did not shock the conscience or violate her due process rights. Norris v. Engles, No. 06-3394, 2007 U.S. App. Lexis 18838 (8th Cir.).

Prisoner Suicide

     Family of arrestee who committed suicide by hanging himself with trousers supplied by the sheriff's department failed to show that the jail's training policies on suicide prevention were inadequate and caused the arrestee's death. Appeals court also rejects state law claim under Texas Tort Claims Act. There was no waiver of sovereign immunity under that statute for issuing "non-defective" trousers to the arrestee. Forgan v. Howard County, No. 06-10472, 2007 U.S. App. Lexis 17903 (5th Cir.).

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

     While a detainee who attempted suicide by hanging himself was young, intoxicated, and acting irrationally, these facts did not necessarily establish that he had a strong likelihood of inflicting harm upon himself. Neither his behavior nor scars on his arms were sufficient to put an officer on notice that he could harm himself. No liability existed, therefore, for the permanent brain damage he suffered from his suicide attempt. Joines v. Township of Ridley, No. 06-2518, 2007 U.S. App. Lexis 15859 (3rd Cir.).

Public Protection

     Residential substance abuse facility and its operator were not liable for crimes inflicted on victims in a nearby park by four inmates who escaped from the drug rehabilitation program there, and used a knife stolen from the facility's kitchen to stab the plaintiffs. There was no duty to protect the specific persons attacked from such injuries under California state law. Rice v. Center Point, Inc., No. A114953, 2007 Cal. App. Lexis 1434 (Cal. App. 1st Dist.).

Religion

     Grooming regulation that required a Rastafarian prisoner to cut his hair to a specified maximum length, in violation of his religious beliefs, did not violate his First Amendment rights because it was reasonably related to legitimate penological interests. Additionally it was not clearly established that it would violate a prisoner's Eighth and Fourteenth Amendment rights to subject him to discipline for violating the regulation, so that the defendants were entitled to qualified immunity on those claims. The court's decision did not discuss the merits of the prisoner's claims under the Religious Land Use and Institutionalized Persons Act RLUIPA, 42 U.S.C. § 2000cc(a)(1), which remains pending. Hypolite v. California Dept. of Corrections, No. CIV S-05-0428, 2007 U.S. Dist. Lexis 55317 (E.D. Cal.).

     Prisoner's claim that he was denied the right to possess a cross and practice his religion, and that he was forcibly given an injection for the purpose of screening him for tuberculosis, in violation of his religious belief against the injection of foreign substances were not frivolous claims under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.S. § 2000cc et seq. Trial court ruling dismissing those claims is vacated. Barefoot v. Polk, No. 07-6628, 2007 U.S. App. Lexis 16785 (4th Cir.).

Sexual Assault

     At the time the plaintiff inmate was allegedly sexually assaulted by a guard, defendant correctional officials only knew that he had previously been accused of sexually assaulting one other prisoner. Given that the guard denied that prior allegation, the officials' response in beginning an investigation, rather than immediately firing the guard, was not objectively unreasonable, so that the officials could not be held liable for the alleged sexual assault of the plaintiff prisoner. Doe v. Georgia Dept. of Corrections, No. 06-15915, 2007 U.S. App. Lexis 19676 (11th Cir.).

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

     County did not act with deliberate indifference in hiring a correctional officer who had previously been fired from his job at a high school based on an accusation of making improper sexual advances to students, and who subsequently allegedly raped a female inmate. The county's failure to follow up to learn the circumstances of the guard's termination from the school was, at most, negligence, which was insufficient for federal civil rights liability, and the circumstances of that termination would not necessarily show that the guard was likely to rape an inmate. Additionally, the fact that the guard was reprimanded several times for touching inmates but was not fired showed, at most, negligence, and also did not suffice to establish liability based on inadequate supervision. Hardeman v. Kerr County, No. 06-50636, 2007 U.S. App. Lexis 18830 (5th Cir.).

Sexual Discrimination

     Female juvenile adjudicated delinquent did not show that her federal constitutional or statutory rights were violated by the fact that a community corrections facility near her home did not accept females, resulting in her having to serve 11 months in a juvenile correctional facility and a drug rehabilitation center that were further away. Her constitutional rights were not violated because she was provided with opportunities comparable to those provided for male inmates. The decision made by her family members not to drive to the facility where she was incarcerated for attendance at family therapy sessions did not alter the fact that family therapy was offered. Additionally for purposes of federal civil rights statutes prohibiting sex discrimination in a governmental "program or activity," the "program or activity" at issue was the entire system of juvenile institutions operated by the State of Ohio, rather than a particular juvenile facility. Lothes v. Butler County Juvenile Rehabilitation Center, No. 06-3389, 2007 U.S. App. Lexis 16559 (6th Cir.).

Smoking

     Prisoner failed to show sufficient evidence that the level of environmental tobacco smoke (ETS) he was exposed to after he was transferred to a single cell was unreasonably high or that it was likely that his respiratory distress was caused by such exposure. Benjamin v. Goord, No. 02 Civ 1703, 2007 U.S. Dist. Lexis 58788 (S.D.N.Y.).

Work/Education/Recreation Programs

     While the working conditions in the prison commissary were "perhaps uncomfortable," they did not violate the plaintiff prisoner's Eighth Amendment rights against cruel and unusual punishment. The prisoner also failed to show that he was improperly transferred from his commissary job in retaliation for his grievances against his supervisors. Toolasprashad v. Wright, No. 06-3784, 2007 U.S. App. Lexis 19875 (3rd Cir.).

     A Pennsylvania prisoner's sentence was vacated in a state court, and he continued to serve his sentence pending further proceedings, which subsequently led to the vacating of his sentence being overturned on appeal. Under these circumstances, requiring him to work during the time that his sentence was vacated did not violate his constitutional rights, nor did the deduction, during that time, of money from his prison account to pay previously-ordered restitution. Under prior federal precedent, the plaintiff remained a convicted person while any post-trial proceedings were ongoing in the state courts. Forcing him to work during that time therefore did not violate his 13th Amendment rights. O'Connell v. Johnson, No. 07-2001, 2007 U.S. App. Lexis 19664 (3rd Cir.).

     Inmate's rights were not violated by the fact that, as a barber school student in a vocational training program, he was eligible to receive good time credits, but not pay, while other inmates enrolled in a culinary arts program were both paid and eligible to receive a greater number of good time credits. There is no federally protected due process right to compensation for prisoners in such vocational training programs, and there was no evidence that the plaintiff prisoner was unfairly denied participation in other prison activities through which he might have received additional good time credits. The federal court also ruled that it was "not difficult" to think of rational reasons to give more favorable treatment to students in a culinary arts program than to students in a barber training program. Jackson v. Russo, No. 06-12044, 2007 U.S. Dist. Lexis 50159 (D. Mass.).

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     Habeas Corpus: Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996, NIJ-Sponsored, 2007, NCJ 219559. (127 pages). PDF NCJRS Abstract

     Statistics: Deaths in Custody. Statistical tables concerning state prison deaths, 2001-2005, local jail deaths, 2000-2005, state juvenile correctional facility deaths, 2002-2005, and links to publications on medical causes of death in state prisons, 2001-2004, and suicide and homicide in state prisons and local jails. U.S. Department of Justice · Office of Justice Programs Bureau of Justice Statistics.

     Statistics: Sexual Violence Reported by Correctional Authorities, 2006. Presents data from the Survey on Sexual Violence, 2006, an administrative records collection of incidents of inmate-on-inmate and staff-on-inmate sexual violence reported to correctional authorities. The report provides counts of sexual violence, by type, for adult prisons, jails, and other adult correctional facilities. The report provides an in-depth analysis of substantiated incidents, including where the incidents occur, time of day, number and characteristics of victims and perpetrators, nature of the injuries, impact on the victims, and sanctions imposed on the perpetrators. The appendix tables include counts of sexual violence, by type, for all State systems, the Federal Bureau of Prisons, and sampled jail jurisdictions. The report also includes an update on BJS activities related to implementation of the data collections required under the Prison Rape Elimination Act of 2003 (Public Law 108-79). Highlights include the following: There were 2.91 allegations of sexual violence per 1,000 inmates held in prison, jail, and other adult correctional facilities in 2006, up from 2.46 per 1,000 inmates in 2004. More than one inmate was reported to have been victimized in 8% of the substantiated inmate-on-inmate incidents in 2006 and 4% of those in 2005. Most incidents of sexual violence among inmates involve force or threat of force and occur in the victim's cell, in the evening. 08/07 NCJ 218914 Press release | Acrobat file (357K) | ASCII file (33K) | 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.