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Access to Courts/Legal Info

     Inmate failed to provide sufficient documentation to show that he missed a filing deadline because of actions by prison officials which had the effect of denying him access to the courts, either as to his direct criminal appeal or his post-conviction petition. The prisoner also failed to file a brief in opposition to the defendant officials' motion for summary judgment as to the effect of their actions on two civil lawsuits, so that summary judgment was also granted on claims related to those cases. Finally, the prisoner also failed to show that prison officials retaliated against him for engaging in protected activity of attempting to access the courts. Gordon v. Lappin, No. 06-4154, 2007 U.S. App. Lexis 11977 (3rd Cir.).

     Federal appeals court rejects prisoner's claim that he was denied the right to access the courts in a meaningful way because of the absence of a prison law library when the prison hired contract attorneys who came to the prison several days a month, met with inmates individually for approximately 15 minutes, answered simple legal questions, and dispensed legal forms. While these attorneys were not compensated for researching legal issues for inmates, they did perform limited legal research on an "ad hoc" basis. The prisoner failed to show that he suffered an actual injury to his case as a result of this system. White v. Kautzky, No. 05-3750, 2007 U.S. App. Lexis 16930 (8th Cir.).

     A county did not violate the constitutional rights to counsel of a man held in a county jail after a warrantless arrest by denying him an appointed lawyer when he was taken before a magistrate to receive certain statutory warnings under Texas law, since that appearance did not amount to the beginnings of a prosecution against him triggering his right to counsel under the Sixth and Fourteenth Amendment, but primarily involved the setting of bond. Rothgery v. Gillespie County Texas, No. 06-50267, 2007 U.S. App. Lexis 15541 (5th Cir.).

     Deaf prisoner with a limited ability to read and write English, who was also indigent, was unable to represent himself on his disability discrimination claims and should be provided with an appointed lawyer. The court, on its own motion, entered an order for the appointment of a lawyer, despite the prior denial of the prisoner's motion seeking one, finding that it was unfair and unrealistic to expect that the prisoner could have expressed in his written motion the legal factors or arguments required to show the need for an appointed lawyer. Williams v. Hayman, No. 06-3705, 2007 U.S. Dist. Lexis 41890 (D.N.J.).

Assessment of Costs

     After a jury ruled in favor of defendant correctional employees in a prisoner's civil rights lawsuit, the trial court granted the defendant's motion for an award of $1,794.25 in costs against the prisoner. The mere fact that the prisoner exhausted his available administrative remedies prior to filing his lawsuit was insufficient to show that he pursued his claims in "good faith." The court rejected also his argument that the fact that he managed to create a genuine issue of material fact in order to survive a motion for summary judgment should be sufficient to avoid an award of costs. There was no evidence to show that the jury had to "struggle" to reach its verdict, and the trial essentially involved a dispute between the prisoner's version of how he suffered his injuries, and the prison employee's version, which the jury believed. The court further rejected the argument that the prisoner should not be required to pay costs because he was indigent. A prisoner's ability to pay the costs assessed was not relevant to the decision to assess them. Adkins v. Wolever, No. 1:03-cv-797, 2007 U.S. Dist. Lexis 36776 (W.D. Mich.).

Clothing

     An Oregon prisoner claimed that he was improperly placed in suicide watch status and then deprived of clothing other than underwear, in violation of a state administrative rule. The appeals court found that the trial court, in granting the defendant correctional officers qualified immunity, failed to properly determine that there was no constitutional violation, so that further proceedings were required. Howard v. Klicka, No. 05-35795, 2007 U.S. App. Lexis 14255 (9th Cir.). Editor's Note: In two prior decisions, the courts addressed the issue of deprivation of clothing under the Oregon administrative rule. The court ruled in LeMaire v. Maass, 745 F. Supp. 623, 639 (D. Or. 1990), that deprivation of clothing and property is unconstitutional when misuse does not present a serious risk to safety, and a federal appeals court then ruled on appeal in LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993), that the state's rules are constitutional as written.

Death Penalty

     A prisoner awaiting execution failed to show that he would experience anything more than a "loss of consciousness" during the lethal injection execution, based on evidence concerning Virginia's prior executions using that method. Reducing pain and discomfort during such an execution may well be good goals, the federal court noted, but there is not constitutional requirement that the carrying out of a death sentence be accompanied by a surgical "level of comfort." Emmett v. Johnson, No. 3:07CV227, 2007 U.S. Dist. Lexis 40047 (E.D. Va.).

Defenses: Eleventh Amendment Immunity

     A Maine state prison, as an agency of the state, could not be sued for damages under 42 U.S.C. Sec. 1983 for alleged use of excessive force against a prisoner, because of Eleventh Amendment Immunity, and the fact that the state is not a "person" subject to such liability. To the extent that there could arguably be a state law claim against the prison, there was no showing that the state had waived its 11th Amendment immunity from a suit in federal court. Additionally, the prison could not be held vicariously liable under federal law for the actions of a prison officer on the basis that it was his employer. Warren v. Maine State Prison, No. CV-07-24, 2007 U.S. Dist. Lexis 42982 (D. Maine).

Disability Discrimination: Prisoners

     In a lawsuit over the death of an allegedly mentally ill pretrial detainee while in custody in a county jail, the plaintiff failed to show that the decedent had been discriminated against because of his alleged disability of mental illness or that there had been deliberate indifference to his serious medical needs. There was also no proof of an official policy or custom of depriving mentally ill detainees of needed medical treatment. The cause of the detainee's death was a previously undiagnosed physical ailment of  "peritonitis due to a perforated ulcer," and the prisoner's mental illness may have rendered meaningful communication with the medical personnel who treated him "almost impossible." In the absence of accurate information from the patient, the medical personnel were denied information that might have aided in their ability to timely diagnose the perforated ulcer. Winters v. Arkansas Dep't of Health & Human Servs., No. 06-2787 2007 U.S. App. Lexis 15486. (8th Cir.).

Employment Issues

     A Mexican-American correctional officer failed to show that he had been subjected to national origin discrimination or that there was any connection between the allegedly discriminatory conduct of two employees of the Illinois Department of Corrections (such as discriminatory remarks) and his firing. He was fired after an investigation concerning the alleged smuggling of contraband cigars into a correctional facility. Jennings v. IL Dep't of Corr., No. 06-1637 2007 U.S. App. Lexis 18325 (7th Cir.).

Federal Tort Claims Act

     In a lawsuit by a federal prisoner under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680, concerning an alleged attack on him by other prisoners, the court ruled that the only proper defendant was the United States government, rather than the Bureau of Prisons, the defendant the plaintiff prisoner named. The court therefore properly dismissed the Federal Tort Claims Act claim. The prisoner also failed to properly state a federal civil rights claim against defendants who were supervisory prison officials, since he did not show that they were either involved personally in the incident, or had carried out an improper policy that caused the injuries he suffered. The conduct claimed, at most, suggested possible negligence, which is inadequate for a showing of a violation of constitutional due process. Toledo v. Bureau of Prisons, No. 06-11265, 2007 U.S. App. Lexis 13441 (5th Cir.).

Medical Care

     An obese inmate with high blood pressure failed to show any medical evidence demonstrating that any purported delay in responding to his claim of chest pains caused him any harm. Williams v. Liefer, No. 06-3493 2007 U.S. App. Lexis 15948 (7th Cir.).

     When a prisoner had begun receiving the treatment he wanted for his hepatitis C, his request for injunctive relief was moot. The appeals court also upheld the trial courts' rejection of other claims by the prisoner concerning the alleged denial and delay of medical treatment for his hepatitis C and a hernia.  Neely v. Ortiz, No. 06-1314, 2007 U.S. App. Lexis 14692 (10th Cir.).

     Prisoner who was treated for a spider bite on his leg with a heat pack, who allegedly suffered a severe burn when a nurse failed to check on him after applying the heat pack failed to show deliberate indifference to his serious medical needs. He also failed to adequately show that a second nurse delayed treatment for the burn for two hours in retaliation for his having complained to prison officials about her alleged refusal to treat him. Jones v. University of Texas Medical Branch Hospital, No. 06-11128, 2007 U.S. App. Lexis 13984 (5th Cir.).

Medical Care: Dental

     A delay in referring a prisoner to an oral surgeon to have three teeth extracted did not amount to deliberate indifference to a serious medical need when the trial court found, without any clear error, that a prison nurse lacked knowledge of a serious medical need, and that the delay in fact resulted from the prisoner's own failure to follow the institution's administrative procedures. The prisoner's claims amounted to, at most, a claim of negligence, which is not sufficient for a federal civil rights lawsuit, which requires a showing of deliberate indifference. Hartsfield v. Colburn, No. 06-2454, 2007 U.S. App. Lexis 17141 (8th Cir.).

Parole

     An Arkansas prisoner had no constitutionally protected liberty interest in the possibility of parole after the parole board reviewed its prior favorable decision, and therefore was not entitled to due process. A federal appeals court rejected the prisoner's argument that the parole board violated his due process rights when they failed to give him notice or the opportunity to participate in a hearing before they rescinded their prior decision to grant him parole. Hamilton v. Brownlee, No. 06-2304, 2007 U.S. App. Lexis 13567 (8th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A grievance which was not filed in a timely manner could not be the basis for proper exhaustion of available administrative remedies as required by 42 U.S.C. Sec. 1997e before filing a federal civil rights lawsuit. The prisoner did not show that he had properly exhausted his administrative remedies concerning alleged discrimination against him based on his religion. Davison v. Maclean, No. 06-12755, 2007 U.S. Dist. Lexis 37449 (E.D. Mich.).

     A prisoner's failure to hire an expert witness to show that his medical needs, arising from his heart condition, were "serious" did not require summary judgment for the defendants in a lawsuit for alleged deliberate indifference to his condition and delay in providing him with medication. The court ruled that a lay person would know that medical needs in connection with such a heart condition were serious. Bosco v. C.F.G. Health Systems, NO. 04-CV-3517, 2007 U.S. Dist. Lexis 44314 (D.N.J.).

Prison Litigation Reform Act: "Three Strikes Rule"

     Even though the dismissal of the plaintiff prisoner's prior five appeals, on the basis of his failure to prosecute them, were not "strikes" for purposes of the Prison Litigation Reform Act's "three strikes rule," 28 U.S.C. § 1915(g), the court could properly deny his request that he be allowed to proceed as a pauper on another appeal, on the basis of its supervisory discretion. Butler v. Dep't of Justice, No. 05-5171, 2007 U.S. App. Lexis 15151 (D.C. Cir.).

     A prisoner who had three or more previous "strikes" under the "three strikes rule" of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), should still be allowed to proceed as a pauper in his immediate lawsuit without the payment of a $350 fee, based on an exception for cases involving "imminent danger of serious physical injury." The plaintiff's claim that he was being subjected to the danger of exposure to communicable diseases because of a facility's housing practices and failure to screen prisoners for such diseases fell within this exception to the "three strikes rule." Andrews v. Cervantes, No. 04-17459, 2007 U.S. App. Lexis 15986 (9th Cir.).

Prisoner Assault: By Inmates

     A former corrections officer now serving a sentence for rape, sexual battery, and burglary failed to show that the prison warden was deliberately indifferent to his safety in violation of the Eighth Amendment, resulting in him being attacked and beaten by two other prisoners causing the loss of his left eye. There was no showing that the warden failed to take measures to prevent harm to the plaintiff, including the prisoner's housing assignment, even though those measures did not suffice to prevent the attack. Further, the attack took place four and one-half years after the prisoner was incarcerated at the facility, and he had not renewed or repeated his initial request for a more segregated housing assignment. O'Brien v. Indiana Dep't of Correc., No. 06-3064, 2007 U.S. App. Lexis 17804 (7th Cir.).

Prisoner Assault: By Officers

     Even if a prisoner's claim was true that a correctional officer slammed him against a wall, squeezed his nipples and buttocks, and pulled on his testicles hard, causing him pain and discomfort, this was not sufficient to show an Eighth Amendment violation, when the force used was minimal. Further, the fact that there was no medical evidence of any injury resulting from the incident was supportive of a finding that the force used was not excessive. Rhoten v. Werholtz, No. 07-3064, 2007 U.S. App. Lexis 14964 (10th Cir.).

Prisoner Discipline

      While the prisoner claimed that he had not received sufficient notice of a disciplinary hearing or an opportunity to be heard, his own assertions did indicate that he received a notice prior to the hearing, and did receive a hearing. The trial court further held that the plaintiff had no constitutionally protected liberty interest to be free from prison officials' alleged "scheme" to conduct what the prisoner called an "unwarranted" hearing. Canosa v. Condon, No. 05-00791, 2007 U.S. Dist. Lexis 39865 (D. Hawaii).

     A prisoner's claim challenging the due process adequacy of Oklahoma state prison disciplinary hearings was barred because he failed to pursue avenues available under Oklahoma law in state court to have his due process claims reviewed. An Oklahoma state law requires state courts to determine whether prisoners are provided with constitutionally required due process by prison officials, provided that the prisoner asks the court to do so within 90 days of his notification of the Department of Corrections' final decision in his case. The statute applies to disciplinary proceedings that resulted in the taking away of earned good behavior credits. Magar v. Parker, No. 06-6369, 2007 U.S. App. Lexis 14371 (10th Cir.).

     A prisoner subjected to a disallowance of good time credit and a period of disciplinary segregation after a disciplinary hearing found him guilty of fighting with another inmate failed to show that the hearing officer failed to consider all of the evidence presented, or that the minimal due process required was not provided. Kenney v. Barron, No. 06-16663, 2007 U.S. App. Lexis 14988 (11th Cir.).

Privacy

     Correctional officers at a maximum security correctional facility, housing male prisoners who pose an extreme escape risk or who have a clearly demonstrated history of violent acts towards other prisoners and staff, filed a federal civil rights lawsuit objecting to the release of their birth dates and Social Security numbers to prisoners by the Michigan Department of Corrections. The disclosure allegedly occurred in connection with the prisoners' appeals of their disciplinary convictions, and internal reports containing the information was inadvertently not removed before documents were provided to the prisoners. The prisoners subsequently allegedly taunted and threatened the officers, sometimes incorporating the officers' Social Security numbers, which they had committed to memory, into the taunts. The prisoners also allegedly used the numbers to obtain other confidential information about the officers. A federal appeals court ruled that two of the defendant officials were entitled to qualified immunity from liability, and that the hearing officer involved in the case was entitled to absolute judicial immunity from liability. The appeals court found no constitutional violation in the release of the information, quickly adding that this did not mean that protection of the officers' privacy was not important, but rather that the protection of the privacy right involved "must be left to the states or the legislative process." Barber v. Overton, No. 05-2014, 2007 U.S. App. Lexis 18320 (6th Cir.).

Racial/National Origin Discrimination

     A federal appeals court rejected claims by a jail inmate that "racial discrimination, segregation, and cruel and unusual punishment" accompanied a five-day lock down of the facility. Evidence indicated that any racial segregation was ordered because of an inmate's complaint of a fear of racial violence, and there was no evidence refuting that motivation for the segregation. Further, there was also evidence that the racial segregation ended immediately after it was determined that a threat of racial violence was no longer present. Allegations concerning overcrowding, sleeping, and shower conditions during the lock-down, including a denial of sheets and showers, were insufficient to show a constitutional violation. Fischer v. Captain Ellegood, No. 06-15167, 2007 U.S. App. Lexis 13552 (11th Cir.)

Religion

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

     The Pennsylvania Department of Corrections' restriction on prisoners possessing more than ten books at a time in their cell substantially burdened a prisoner's exercise of his religion for purposes of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000c. The defendant department was unable to show that the ten-book policy was the least restrictive means of furthering a compelling governmental interest in the safety and health of prisoners and prison employees, so that a federal appeals court overturned the dismissal of the prisoner's lawsuit. The prisoner belongs to the Children of the Sun Church, which allegedly requires that the members of its religion read four Pan-African books per day.  Washington v. Klem, No. 05-2351, 2007 U.S. App. Lexis 18345 (3rd Cir.).

Segregation: Administrative

     Further proceedings were required as to whether the plaintiff prisoner's confinement in administrative segregation complied with due process, as it was unclear from the record in the case who the actual decision-maker was concerning the placement, and whether the prisoner had an opportunity to present his views to the decision-making authority. Castro v. Terhune, No. 06-15756, 2007 U.S. App. Lexis 12700 (9th Cir.).

Sexual Assault

     A detainee's affidavit that she was subjected to a sexual assault by a correctional officer was adequate to bar summary judgment on her state law claim for intentional infliction of emotional distress. Further, at the time of the alleged incident, the officer was involved in the performance of his job duties, which included supervising the plaintiff and other inmates in a medical unit, so that a claim for assault and battery against the employer would also go forward. The court rejected, however, negligent hiring and retention claims, since there was no evidence that the employer knew, at the time that the officer was hired, that he had any propensity to sexually assault a prisoner. Heckenlaible v. Virginia Peninsula Regional Jail Authority, No. 4:06cv25, 2007 U.S.Dist. Lexis 43256 (E.D. Va.).

Telephone Access

     A prisoner disciplined for engaging in a prohibited third party telephone call at a New Jersey prison had sufficient written material both from that facility and from a Pennsylvania prison at which he had previously been housed, to give him notice that the call he made was forbidden. The use of the Pennsylvania prison's handbook at the disciplinary hearing, rather than the New Jersey prison's handbook, did not violate his due process rights. Further, the hearing officer wrote a detailed report stating the evidence relied on and the reasons for the discipline. Cook v. Warden, Fort Dix Correctional Institution, No. 06-1054, 2007 U.S. App. Lexis 14772 (3rd Cir.).

Therapeutic Programs

     Denial of prisoner's request that he participate in the Bureau of Prisons' (BOP) residential drug abuse treatment program constituted an abuse of discretion because of the reliance on the prisoner's failure to show that he had a substance abuse problem within the immediately preceding twelve months. This "12 months preceding" requirement, the court found, was not found in the BOP's own program statement, the regulations governing the BOP, or in the statute, 18 U.S.C. Sec. 3621e, requiring that the BOP provide residential substance abuse treatment for all eligible prisoners found to have a documented substance abuse problem. The court ordered that the BOP reconsider the prisoner's request, without using the "12 months preceding" criteria in making its decision. Smith v. Vazquez, No. CV 206-275, 2007 U.S. Dist. Lexis 40704 (S.D.Ga.).

Youthful Prisoners

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

     Federal appeals court upholds award of $200,000 in compensatory and $797,160 in punitive damages to parent whose son was murdered in a residential program for juvenile delinquents. By the end of 1999, four youths had been murdered while in the same juvenile facility, provided by a private company for the District of Columbia. The plaintiff's son became the fifth in 2000. The plaintiff had argued that the company that operated the facility acted in a reckless manner in failing to protect the decedent against a foreseeable risk of harm, and violated his constitutional rights, and the jury returned a verdict for the plaintiff on both claims. Muldrow v. Re-Direct, Inc., No. 05-7169, 2007 U.S. App. Lexus 15814 (D.C. Cir.).

Voting

     Washington state Supreme Court, by 6-3, upholds requirement that felons, after completing their full prison terms, can properly be required to pay court-ordered fines before their right to vote is restored, rejecting a claim by three former prisoners that these provisions of state law denied them their constitutional right to vote on the basis of their lack of wealth. Madison v. State of Washington, No. 78598-8, 2007 Wash. Lexis 556.

Work/Education Programs

     Federal appeals court disagrees with trial court's conclusion that a reasonable jury could not find, based on a layman's opinion, including the prisoner's opinion, that experienced work supervisors at his prison job responded unreasonably to a known excessive risk to his health and safety. The evidence could support a conclusion, the appeals court found, that the supervisors knew that the prisoner was suffering from serious respiratory distress from his job in a poorly ventilated and enclosed room, and that the prisoner could not avoid instances where a razor blade would catch and then slip loose uncontrollably, using the tools made available to him. Blay v. Reilly, No. 04-1347, 2007 U.S. App. Lexis 17603 (10th Cir.).

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     Medical Care: Management of Tuberculosis. Federal Bureau of Prisons Clinical Practice Guidelines. April 2007.

     Medical Care: Medical Management of Exposures: HIV, HBV, HCV, Human Bites and Sexual Assaults. Federal Bureau of Prisons Clinical Practice Guideline. May 2007.

     Report: "Jail Leaders Speak: Current and Future Challenges to Jail Administration and Operations. A Summary Report to the Bureau of Justice Assistance," by Jeanne B. Stinchcomb, Ph.D. and Susan W. McCampbell, The Center for Innovative Public Policies, Inc. The Center, in a partnership with the Bureau of Justice Assistance, the National Institute of Corrections, and national organizations, conducted two focus groups to identify the major issues facing jails today and in the immediate future. (July 27, 2007). Also see Appendices, or White Papers issued in connection with the report.

     Statistics: Deaths in Custody Statistical Tables is a new section on the Bureau of Justice Statistics website that contains a series of data tables describing recent trends in mortality in State prison, local jails and State juvenile correctional facilities.

     Study: A new analysis by The Sentencing Project provides a regional examination of the racial and ethnic dynamics of incarceration in the U.S., and finds broad variations in racial disparity among the 50 states. The report, Uneven Justice: State Rates of Incarceration by Race and Ethnicity (July 2007), finds that African Americans are incarcerated at nearly six (5.6) times the rate of whites and Hispanics nearly double (1.8) the rate.

Reference:

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

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