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Chemical Agents

     In a inmate's lawsuit claiming that corrections officers violated the Eighth Amendment in failing to adequately decontaminate him after subjecting him to pepper spray, and in holding him in restraints for eighteen hours, a federal court ruled that a reasonable officer could have believed that allowing the prisoner to briefly shower before he was placed into restraints, as well as rinse his eyes with saline, was adequate to avoid a rights violation. Normally, the effects of pepper spray are gone after 45 minutes. Claims related to the decontamination were therefore rejected. Further proceedings were ordered, however, as to whether an officer could have believed that it was reasonable to restrain the prisoner for eighteen hours, when it was disputed whether the prisoner made threatening gestures or verbal threats. Montgomery v. Johnson, Case No. 7:05CV00131, 2008 U.S. Dist. Lexis 74256 (W.D. Va.).

Defenses: Eleventh Amendment Immunity

     State prison officials sued in their individual capacities were entitled to Eleventh Amendment immunity. The prisoner also failed to show that three defendants did anything other than deny a grievance, which did not suffice to show personal participation in the alleged violation of his rights. Supervisory officials could not be held liable for problems with the inmate's medical treatment solely on the basis of knowledge of his medical grievances and history. Preble v. Milyard, Civil Action No. 07-cv-01361, 2008 U.S. District Lexis 81316 (D. Colo.).

Defenses: Statute of Limitations

     A federal prisoner's claim, arising from his alleged exposure to tuberculosis following the failure to follow Bureau of Prisons policies, accrued, for purposes of the statute of limitations, at least by September 23, 2002, when he was first informed of his exposure. When he first filed his lawsuit, only 14 days remained on the two-year statute of limitations under Texas law. After the lawsuit was dismissed without prejudice for failure to exhaust available administrative remedies, as required, the statute of limitations was tolled (extended) while the prisoner pursued such remedies. His refiling of the lawsuit was time barred, however, when he failed to re-file it until five months had elapsed after he finished exhausting available administrative remedies. Starks v. Hollier, No. 07-41085, 2008 U.S. App. Lexis 21111 (5th Cir.).

Disability Discrimination: Prisoners

     The Americans With Disabilities Act (ADA) does not waive the sovereign immunity of the U.S. government, so that a prisoner who is unable to speak or hear could not pursue ADA claims against the federal government or its employees. The prisoner also failed to exhaust available administrative remedies on his claim that he faced retaliation for his grievances concerning the inability of the prison phone system to provide Spanish translations, so that claim was also dismissed. Fellove v. Heady, Civil Action No. 3:05CV34, 208 U.S. Dist. Lexis 67586 (N.D.W.V.).

    The failure of the Savannah, Tenn. police to provide sign language interpreters for deaf arrestees, in the absence of intentional discrimination or claimed invalidity of the arrests, did not violate Title II of the Americans With Disabilities Act (ADA), which prohibits disability discrimination in the providing of a governmental "service, program, or activity." The ADA does not explicitly list arrests as within the definition of "service, program, or activity." Even if it is an activity, this does not, by itself, indicate that an interpreter was required. A plaintiff asserting such a claim must show that police failed to reasonably accommodate their disabilities in a manner that provided them with access to communications as effective as that made available to persons without disabilities, or that they were intentionally discriminated against. In the immediate case, there was no indication that providing a sign language interpreter would have resulted in a change of events. Tucker v. State of Tennessee, #06-6208, 539 F.3d 526, 2008 U.S. App. Lexis 18618 (6th Cir.), citing Rosen v. Montgomery Co., #96-1833, 121 F.3d 154, at 157-158 (4th Cir. 1997) and Bircoll v. Miami-Dade Co., #06-11098, 480 F.3d 1072 (11th Cir. 2007).

Drug Screening

     Federal appeals court rejects prisoner's claim that that his Fourth and Eighth Amendment rights were violated by two nurses and a correctional officer who allegedly required him to be catheterized when he was unable to produce a urine sample for a random drug test or else face prison discipline. The prisoner failed to show that the officer was personally responsible in any way for any involuntary catheterization that occurred, or that the nurses acted with a "culpable" state of mind to support an Eighth Amendment violation. LeVine v. Roebuck, No. 07-3388, 2008 U.S. App. Lexis 24685 (8th Cir.).

First Amendment

     A prisoner's conduct in filing grievances was activity protected by the First Amendment, and there was sufficient evidence to support an inference that the unit manager of his cell block was motivated by retaliation for such grievances in placing him in administrative custody and later transferring him to a different prison. The unit manager showed, however, that the same steps would have been taken for legitimate penological reasons, regardless of the inmate's grievances, so there was no showing that retaliation caused the administrative custody or transfer. The court also found no evidence that these actions were taken on the basis of the prisoner's religious affiliation. Holbrook v. Walters, No. 08-2080, 2008 U.S. App. Lexis 21679 (Unpub. 3rd Cir.).

     Prisoner showed that officer filed a false disciplinary charge against him for filing a grievance against him for cursing and threatening the prisoner in violation of department policy. While the disciplinary charges were later dismissed, the prisoner suffered six days of isolation, during which he received showers only every three days and had restricted exercise privileges. He was awarded $1 in nominal damages, as he had not suffered any physical injuries. The prisoner was also awarded $2,500 in punitive damages for the officer's malicious disregard for his right to access the courts. Haynes v. Stephenson, Case No. 5:07CV00295, 2008 U.S. Dist. Lexis 81571 (E.D. Ark.).

Inmate Funds

     A provision of the state law pertaining to parolees held or detained for proceedings to declare them sexually violent predators is void to the extent that it would bar the payment to them of a $200 release allowance otherwise authorized to be paid to all prisoners upon their release. Sabatasso v. Superior Court of Orange County, No. G039906, 2008 Cal. App. Lexis 1615,167 Cal. App. 4th 791; 84 Cal. Rptr. 3d 447 (Cal. App. 4th Dist.).

Mail

     Prison official was not entitled to qualified immunity for allegedly violating inmate's First Amendment rights by allegedly opening his legal mail outside of his presence on 50 or more occasions. The right of the prisoner to be present when mail from his attorney was opened was clearly established. Wappler v. Brevard, Case No. 4:05-CV-90, 2008 U.S. Dist. Lexis 90559 (W.D. Mich.).

Medical Care

     Inmate on dialysis could pursue claim for deliberate indifference against prison dialysis provider, based on two incidents in which he was told that a gauge on the dialysis machine was not working properly and had not been fixed, resulting in him becoming ill after his treatments. Four correctional administrators named as defendants, however, were not shown to have been personally involved in these incidents, and could not be held liable purely on the basis of vicarious liability. Adkins v. Walker, No. 08 C 0815, 2008 U.S. Dist. Lexis 85087 (N.D. Ill.).

     County jail personnel did promptly consider an inmate's request for medical treatment for a mental health problem, but delayed in providing it, since it did not constitute an emergency. No evidence was presented, however, to indicate that the defendants acted with deliberate indifference, or that the treatment provided was inadequate, despite a delay in providing a mental health related medication. Swift v. Tweddell, 05-CV-6233L, 2008 U.S. Dist. Lexis 82986 (W.D.N.Y.).

     Evidence showed that the treatment that a prisoner received for his hereditary skin condition and a staph infection, contrary to his complaints, were adequate and were not grossly incompetent. The fact that the prisoner, himself, would have preferred a different course of treatment did not alter the result. Sheffield v. Edwards, Civil Action No. 9:07-3550, 2008 U.S. Dist. Lexis 78645 (D.S.C.).

Medical Care: Dental

     Federal appeals court overturns summary judgment for defendant dentist in prisoner's lawsuit claiming disregard of a serious risk of harm in allegedly merely giving prisoner ibuprofen for the pain of a severe toothache, rather than providing a temporary filling for that tooth to alleviate the pain, pending the performance of several other extractions which had to be performed before a permanent filling was provided. This allegedly resulted in a seven-month delay in treatment of the cavity at issue. Some other prisoners had allegedly received temporary fillings in such situations. McCarthy v. Place, No. 07-3974, 2008 U.S. App. Lexis 24361 (6th Cir.).

Prison Conditions: General - Sanitary Conditions

     A federal court terminated an environmental order requiring a city to clean and sanitize shower facilities, janitor closets, laundry areas, toilets, washbasins, and sinks at city jails, and to monitor temperatures, as well as denying a request by plaintiff pre-trial detainees for additional orders concerning vermin control and sanitation. The jails were not now so lacking in sanitation as to violate the due process clause of the Fourteenth Amendment or to constitute an ongoing violation of detainee rights, so that continuation of the orders would be improper. The defendants had and were taking steps to improve jail sanitation. Benjamin v. Horn, 75 Civ. 3073, 2008 U.S. Dist. Lexis 78005 (S.D.N.Y.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner failed to exhaust available administrative remedies as required by 42 U.S.C. Sec 1997e of the Prison Litigation Reform Act before filing his federal civil rights lawsuit claiming that his Eighth and Fourteenth Amendment rights were violated by taking DNA samples from him involuntarily after he was identified as a sex offender, allegedly on the basis of false information. The prisoner failed to follow the established grievance procedure as to his claims against a correctional officer. The defendants were entitled to qualified immunity on the prisoner's claim concerning incorrect information in his file stating that he had been convicted of statutory rape, since the parameters of any due process right to dispute and correct such information was not clearly established at the time at issue. Walker v. James, No. 07-1327, 2008 U.S. App. Lexis 22403 (Unpub. 3rd Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     A lawsuit by a prisoner dismissed for failure to state a claim and/or for frivolousness prior to the 1996 enactment of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, counted as a "strike" for purposes of the "three-strikes" rule in 28 U.S.C Sec. 1915(g) of the Act. As the prisoner therefore had more than three "strikes," he was barred from proceeding as a pauper (without paying filing fees). Additionally, his claims did not fall within the exception to the three strikes rule for claims involving an imminent risk of serious physical danger. The prisoner, therefore, was required to pay a $350 filing fee to proceed with his lawsuit. McGee v. Maki, Case No. 2:08-cv-204, 2008 U.S. Dist. Lexis 90589 (W.D. Mich.).

     A prisoner was barred from proceeding as a pauper in his lawsuit claiming that he was illegally housed in administrative segregation, when he had previously had three lawsuits dismissed as frivolous or for failure to state a claim. A prior lawsuit challenging the banning of tobacco as a civil rights violation counted as a "strike," since a later lawsuit found to have possible merit was not identical, instead revolving around the ban of snuff and similar tobacco substitutes. Larson v. Gonzales, CV F 08 0740, 2008 U.S. Dist. Lexis 81555 (E.D. Calif.).

Prisoner Assault: By Inmate

     Prisoner failed to show that the Commissioner of the New York State Department of Correctional Services had personal knowledge of a history of inmate attacks on other prisoners in a facility's recreation yards, or that prisoners there had a substantial risk of being attacked. There was, however, sufficient evidence to raise a genuine factual issue as to whether the superintendent of that facility did have such knowledge. There was, however, a lack of proof that any of the defendants failed to take reasonable measures to prevent prisoners from bringing weapons into the yard or that the security methods employed were unreasonable. There was no evidence that the use of metal detectors would have substantially reduced the risk of inmate violence. Warren v. Goord, 05 Civ. 9590, 2008 U.S. Dist. Lexis 76875 (S.D.N.Y,).

     Prison officials were entitled to summary judgment in prisoner's lawsuit claiming that they violated his rights by failing to protect him from an assault by a fellow prisoner, since the defendants were not made aware of the risk of such harm. The plaintiff's prior statements indicating that other prisoners were "asking questions" about his trips to court and/or "pressuring" him were insufficient to put the defendants on notice that there was a threat to his safety in the form of other prisoners who might attack him. Additionally, the fact that other prisoners thought he was a "snitch" was not, by itself, enough to establish his claim, as he could have requested protective custody, but failed to do so. Dale v. Poston, No. 06-2847, 2008 U.S. App. Lexis 24667 (7th Cir.).

    Federal magistrate recommends that court grant summary judgment to deputy warden on prisoner's lawsuit claiming that he was injured in a prison riot that the deputy warden failed to prevent.  The riot involved a fight between Northern and Southern Hispanic inmates, and a subsequent lockdown. The deputy warden later allegedly saw that a controlled unlock was not going as the warden had planned, but then failed to ask that the yard be closed down until after a riot started. The court ruled that the plaintiff failed to show that the deputy warden had been aware of a change in plan regarding the release of prisoners into the yard, and disregarded the risk thereby created. Lopez v. Butler, No. CIV S-04-0822, 2008 U.S. Dist. Lexis 89642 (E.D. Ca.).

     Prisoner allegedly assaulted and injured by fellow inmate failed to show that sheriff, deputies, or the county were aware of the danger he encountered from being transported together with the other prisoner on an elevator. He failed to show that they acted with deliberate indifference to the risk of harm to him. Farah v. Wellington, No. 07-3476, 2008 U.S. App. Lexis 21166 (Unpub. 6th Cir.).

Prisoner Assault: By Officer

     Even considering medical records submitted by a prisoner of his purported injuries from an alleged attack by a correctional officer, the plaintiff prisoner failed to show that he suffered more than "de minimus" (minimal) injuries, and several injuries he claimed were actually preexisting conditions. The prisoner presented no evidence that the alleged attack had anything to do with his worsened blood pressure, his back pain or migraine headaches or his mental health problems. Wilkins v. Gaddy, 08-CV-138-01, 2008 U.S. Dist. Lexis 81474 (W.D.N.C.).

     Correctional officers were not entitled to qualified immunity on inmate's claim that they used excessive force against him. If the inmate's version of events was true, the officers could not have reasonably believed that their actions were lawful under the Eighth Amendment. The court also ruled that a jury verdict that the officers used excessive force in subduing the prisoner would not have necessarily implied the invalidity of a disciplinary hearing finding the prisoner guilty of an assault on prison staff members, creating a disturbance, refusing to submit to a search and frisk, and refusing a direct order. Tapp v. Tougas, 9:05-CV-1479, 2008 U.S. Dist. Lexis 76170 (N.D.N.Y.).

     There was a genuine issue of fact as to whether a correctional officer retaliated against him for filing grievances by writing up false disciplinary reports and intentionally closing a cell door on him, resulting in injury. Shaw v. Cowart, No. 07-14884, 2009 U.S. App. Lexis 23500 (Unpub.11th Cir.).

Prisoner Death/Injury

     When prisoners were injured in a vehicle accident while on the bus being transported to a work assignment, claims for their injuries were work-related, had to be filed against the Federal Bureau of Prisons under the Inmate Accident Compensation Act, 18 U.S.C.S. § 4126, so that claims the prisoners filed under the Federal Tort Claims Act were properly dismissed. Baynes v. U.S.A., No. 07-6352, 2008 U.S. App. Lexis 21775 (Unpub. 6th Cir.).

Prisoner Discipline

     A prisoner's federal civil rights claims seeking restoration of his lost good-time credits, reversal of a disciplinary decision, and expungement of the disciplinary action was barred by the fact that the disciplinary action had not previously been set aside. He could, however, pursue a due process claim based on the alleged failure to provide him with a written statement of the evidence against him in the disciplinary hearing. White v. Fox, No. 05-41387, 2008 U.S. App. Lexis 21078 (5th Cir.).

Prisoner Suicide

     Family of prisoner who died after hanging himself in a county jail failed to show that sheriff should be held liable on the alleged basis of failure to establish adequate policies on providing medical care or failure to adequately supervise personnel, or that the county should be held liable on the basis of deliberate indifference or inadequate policies. Brumfield v. Hollins, No. 07-61023, (5th Cir.).

     Correctional officer could not be held liable for pre-trial detainee's death from suicide when there was no indication that the officer was aware of the allegedly suicidal behavior observed by his cellmates, or that the inmate's behavior was otherwise unusual. It could not be inferred that a decision to move the detainee to a particular cell indicated knowledge of a risk that he would commit suicide, since that cell was not only used for prisoners on suicide watch. Gaston v. Ploeger, No. 08-3028, 2008 U.S. App. Lexis 22197 (10th Cir.).

Religion

     Pennsylvania Department of Corrections did not violate the rights of a Rastafarian prisoner by denying his request to hold weekly group Rastafarian services. The Department requires that approved religious leaders or chaplains lead such services, and provides such services to all of the largest major religions. Rastafarians, according to the court, are not a "major" faith group and the Department had budgetary reasons for failing to pay for a Rastafarian religious leader come to the facility to hold group services. It could not afford to provide chaplains for every faith. The plaintiff prisoner was provided with alternatives to group worship services, including keeping religious books and materials in his cell, personal meetings with a religious advisor, and asking for a religious exemption from the facility's hair length regulations. Smith v. Kyler, No. 08-1731, 2008 U.S. App. Lexis 21341 (Unpub. 3rd Cir.).

     Wardens who delegated to the assistant warden the job of reviewing inmate grievances could not be held liable for refusing to provide a prisoner with a vegan diet that he claimed was religiously required. The wardens therefore were not personally involved in the alleged violation of the plaintiff's rights, as they did not personally review his grievances. The prisoner, who was no longer incarcerated, was not entitled to injunctive relief. Wofford v. Sutton, Case No. 3:03-cv-725, 2008 U.S. Dist. Lexis 78319 (S.D. Ill.).

Sexual Discrimination

 ****Editor's Case Alert****

     Programs that provide services to inmate mothers in California did not engage in unlawful sex discrimination under state law by failing to provide the same services and programs to male prisoners who are parents. One of the programs is the Pregnant and Parenting Women’s Alternative Sentencing Program Act, that funds community based facilities for programs designed to reduce drug use and recidivism, and allows at least one eligible child to reside with the mother at the facility if the mother has a history of substance abuse, the child is under six, and the sentence is less than three years. The second program "provides for a community treatment program for women inmates sentenced to state prison who have one or more children under the age of six. An incarcerated mother is eligible for the program if she has a probable release or parole date with a maximum period of confinement not exceeding six years; she was the primary caretaker of the infant prior to incarceration; she has not been found to be an unfit parent; and she does not pose an unreasonable risk to the public due to the nature of her crime, the risk of absconding, or probable adverse conduct." Male prisoners who are parents, the court found, were not shown to be similarly situated to inmate mothers. "Most female inmates were convicted of drug or property crimes, often victims of abuse, and more likely to be single parents. [...] There were only a small percentage of male primary caretakers." The court noted that,: "Government data showed these women prisoners were likely to have been the primary or single caretaker of their young children, who were likely to be displaced to other relatives or foster care. By contrast, children of incarcerated men were likely to continue living with their mothers." Woods v. Shewry, No. C056072, 2008 Cal. App. Lexis 1588; 167 Cal. App. 4th 658; 84 Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).

Smoking

     The state of Louisiana was immune, under the Eleventh Amendment, from a prisoner's lawsuit claiming that his exposure to occasional second-hand smoke while housed in a non-smoking dormitory aggravated his bronchitis, causing him to gasp for breath and suffer nausea. Evidence also showed that violators of the dormitory's non-smoking policy were disciplined, and that the plaintiff's "sporadic" exposure to second-hand smoke did not rise to the level of an Eighth Amendment violation. Robinson v. Louisiana, Civil Action No. 05-1016, 2008 U.S. Dist. Lexis 88604 (M.D. La.).

Strip Search: Prisoner

     While the court did not adopt a per se rule that a charge of a crime of violence was sufficient to create an individualized reasonable suspicion justifying an arrestee's strip search, a U.S. Marshall was justified in strip searching, prior to a court appearance, an arrestee charged with trying to kill a government witness by shooting him in the head, torso, and leg. This charge, combined with the arrestee's history of violence, and the open environment of the courthouse created a reasonable fear that he would attempt to conceal a weapon, and justified the strip search. Harriston v. Mead, 05 CV 2058, 2008 U.S. Dist. Lexis 79001 (E.D.N.Y.).

Voting

     While convicted felons in Tennessee who finished their sentences and satisfied the conditions of their supervised release could ordinarily have applied for the restoration of their voting rights, they were ineligible to do so when they owed either past-due child support payments or crime victim restitution payments. This ineligibility did not violate their equal protection rights since there is no fundamental right for felons to vote. A number of other related claims were also rejected. Johnson v. Bredesen, Case No. 3:08cv0187, 2008 U.S. Dist. Lexis 80932 (M.D. Tenn.).

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     Federal Prisons. Legal Resource Guide to the Federal Bureau of Prisons 2008 (Revised 11/25/08). This publication is intended to serve as a guide to legal resources, including relevant statutes, regulations, program statements, and current case law on issues the BOP is facing today. It provides a general overview of the prison system, its services, and programs. The statutes, regulations, program statements, and case law decisions referred to in this guide may have been updated since publication. Thus, it is suggested that readers conduct independent research and confirm cited legal references within when exploring Bureau matters.

     Reentry Programs: A publication by the National Association of Counties (NACo), Reentry for Safer Communities Effective County Practices in Jail to Community Transition Planning for Offenders with Mental Health and Substance Abuse Disorders, highlights six county sites with effective programs for this population. "The Reentry Focus Group identified and defined five major characteristics of promising practices in local transition planning" as: Collaboration, Access to Benefits, Sustainability, Cultural/Gender Components, and Community Linkages. The six model county programs are then viewed according to these characteristics. The benefits of reentry and long term cost savings are demonstrated.

     Report: Lowering Prison Costs, Decreasing Some Recidivism Dec. 01, 2008. The Washington State Institute for Public Policy has released an interesting new report examining the impact of Washington State's 2003 law that increased earned release time for some offenders. Increasing Earned Release From Prison: Impacts of 2003 Law on Recidivism and Criminal Justice Costs finds "that the law has been effective: criminal recidivism has not increased and taxpayer costs are lower."

    Statistics: Capital Punishment, 2007 - Statistical Tables. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Presents characteristics of persons under sentence of death on December 31, 2007, and persons executed in 2007. Tables present state-by-state information on the movement of prisoners into and out of death sentence status during 2007, status of capital statutes, and methods of execution. Numerical tables also summarize data on offenders characteristics such as gender, race, Hispanic origin, age at time of arrest for capital offense, legal status at time of capital offense, and time between imposition of death sentence and execution. Data are from the National Prisoner Statistics (NPS-8) series. 12/08 NCJ 224528

     Statistics: Jails in Indian Country, 2007. Presents findings from the 2007 Survey of Jails in Indian Country, an enumeration of 83 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs. It includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2007. The Bulletin summarizes rated capacity, facility crowding, and jail staffing. Based on an addendum to the 2007 survey, data are presented on inmate medical and mental health services, suicide prevention, substance dependency programs, domestic violence counseling, sex offender treatment, educational programs, and inmate work assignments. Highlights include the following: Eighty-three jails in Indian country held an estimated 2,163 inmates at midyear 2007, up from 1,745 inmates held in 68 facilities at midyear 2004. About 4 in 10 inmates were confined for a violent offense at midyear 2007. This included 20% for domestic violence, 13% for aggravated or simple assault, 2% for rape or sexual assault, and 6% for other violent offenses. In the month of June 2007, the 79 jails in Indian country that responded to the survey admitted 12,490 inmates. Combined, the 79 facilities had about 158 admissions per month on average. 11/08 NCJ 223760  Press release | Acrobat file (745K) | ASCII file (30K) | Spreadsheets (zip format 40K).

 Reference:

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