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Access to Courts/Legal Info

     Depriving a prisoner plaintiff of the ability to communicate with his co-plaintiff in several lawsuits did not by itself violate his First Amendment right of access to the courts. Despite 28 C.F.R. Sec. 540.17, stating that a prisoner could be permitted to correspond to another prisoner who was a party in a lawsuit that both were involved in, the prisoner failed to identify the manner in which his right was restricted or the content of the communication which he wished to send. He therefore was not entitled to an order requiring that prison officials allow such communication. Stine v. Collins, No. 08-1078, 2008 U.S. App. Lexis 12003 (10th Cir.).

Death Penalty

     U.S. Supreme Court rules, by 5-4, that imposing a death sentence for the rape of a child where the crime did not involve and was not intended to result in the child's death violates the Eighth Amendment's prohibition on cruel and unusual punishment. Kennedy v. Louisiana, No. 07-343, 2008 U.S. Lexis 5262.

Diet

     Depriving a prisoner of lunch five days a week for five months, with no resulting physical harm and no deprivation of other meals did not state a claim for violation of his constitutional rights. Hernandez v. Florida Dept. of Corrections, No. 07-15147, 2008 U.S. App. Lexis 12491 (Unpub. 11th Cir.).

Disability Discrimination: Prisoners

     The state of Pennsylvania was not entitled to Eleventh Amendment immunity against claims asserted by a deaf mother and her deaf son contending that their rights under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131, and the Rehabilitation Act, 29 U.S.C. Sec. 794, were violated by the failure to provide them with a qualified sign language interpreter during their arrest or while they were incarcerated at a county prison. Congress abrogated any such immunity that the state might have in connection with these claims. Gonzales v. Pennsylvania, No. 07-2901, 2008 U.S. App. Lexis 13514 (Unpub. 3rd Cir.).

First Amendment

     A prisoner in a private prison in Texas had a First Amendment right to write to the Wyoming Department of Corrections Director asking to be returned to Wyoming and complaining about the conditions of his confinement, and stated a valid claim against seven prison employees contending that they retaliated against him for doing so. He also asserted a valid claim for unconstitutional deprivation of his funds by alleging that he was fined $50 because he testified in another prisoner's disciplinary hearing. Pfeh v. Freudenthal, No. 07-10312, 2008 U.S. App. Lexis 12897 (Unpub. 5th Cir.).

Inmate Funds

     A prisoner who claimed that he was overcharged for making copies, and improperly had funds deducted from his jail financial account for the cost of three welfare kits that he did not receive, failed to show that there were no meaningful post-deprivation remedies available under state law, and he therefore could not pursue a claim for violation of his constitutional rights. Sawyer v. Green, No. 08-3083, 2008 U.S. App. Lexis 13119 (Unpub. 10th Cir.).

     Prison authorities properly relied on a computer record in deducting $1,347.97 from an inmate's account for costs assessed against him by a court. The prisoner's argument that the court that assessed these costs against him had "mixed him up" with his cousin was an argument he should have raised in the sentencing court. Herrschaft v. Dept. of Corrections, No. 307 M.D. 2006, 2008 Pa. Commw. Lexis 260.

Mail

     Trial court improperly failed to recognize that a prisoner could have a First Amendment right to make "unflattering" statements to prison staff members in outgoing mail to his parents. The court should have analyzed whether the letters in question, which were allegedly censored and/or seized, fell within any identifiable categories of mail presented a threat to security and order. The court ordered further proceedings on the prisoner's claims concerning his personal correspondence, as well as on claims that he faced retaliation for statements made in the letters. Berenguel v. Bell, No. 07-10066, 2008 U.S. App. Lexis 13597 (Unpub. 5th Cir.).

     Prisoner's claims concerning the opening and reading of his mail by prison authorities was frivolous, as these actions did not violate his constitutional rights. He also could not pursue a constitutional claim regarding the alleged deprivation of his SSI benefits check, because there were adequate post-deprivation remedies available under Texas state law for deprivations of property. Malone v. Pedigo, No. 07-11025, 2008 U.S. App. Lexis 13006 (Unpub. 5th Cir.).

     A newspaper's refusal to accept a paid subscription from a prisoner based on a corporation policy against supplying subscriptions to prisoners did not violate his First Amendment rights, and the corporate action was not compelled by a city resolution that "urged" the corporation to adopt such a policy. Henderson v. Huibregtse, No. 07-2571, 2008 U.S. App. Lexis 12671 (Unpub. 7th Cir.).

Medical Care

     Prisoner stated a claim for deliberate indifference against prison's medical office for allegedly denying him surgery for a pre-incarceration elbow deformity injury suffered in a car crash. The prisoner argued that his arm was shrinking because of the deformity, and that the mere providing of pain medication was essentially the same as no treatment at all, because he needed extensive surgery and rehabilitation. Claims against an administrator, however, were rejected, because he properly relied on the medical office's determination that no surgery was needed. Acosta v. Watts, No. 07-15088, 2008 U.S. App. Lexis 13073 (Unpub. 11th Cir.).

     Prisoner failed to sufficiently show that medical personnel in misdiagnosing his psoriasis as spider bites, and therefore mistreating it with steroid creams acted with deliberate indifference. Even if his psoriasis constituted a serious medical condition, claims concerning misdiagnosis and inadequate treatment amounted to no more than medical negligence, at most, and were inadequate to establish a violation of constitutional rights. Matthews v. Palte, No. 07-13285, 2008 U.S. App. Lexis 13227 (Unpub. 11th Cir.).

     Prisoner's civil rights claims concerning an alleged delay in surgery for a cut close to his eye were time barred under a two-year Pennsylvania statute of limitations, and a state law medical negligence claim also could not be pursued because the prisoner failed to comply with a requirement that he file a medical certificate of merit concerning that claim. Lopez v. Brady, Civil No. 4:CV-07-1126, 2008 U.S. Dist. Lexis 43797 (M.D. Pa.).

     Jail personnel did not act with deliberate indifference to the serious medical needs of a prisoner who died in custody after being treated for a number of physical and mental ailments. While the decedent's family claimed that the jail failed to provide timely treatment for his injuries, withheld needed medicines, and improperly injected anti-psychotic drugs, as well as failing to prevent an assault on him, the court found that the jail acted properly in providing a licensed doctor, qualified nurses, and a social worker, and that these personnel attempted to provide reasonable treatment based on their evaluations. No real evidence was provided concerning how the injections showed deliberate indifference. The prisoner died from occlusive artery disease, and there was no evidence that the defendants knew of or should have known of a risk of that disease. Boyett v. County of Washington, No. 06-4315, 2008 U.S. App. Lexis 13010 (Unpub. 10th Cir.).

     A warden and prison administrator could not be held liable for the alleged improper denial of recommended eye surgery, because they relied on the director of a prison medical clinic to make that determination. The appeals court ruled, however, that summary judgment for the medical director was improper since many doctors had recommended surgery for the visually significant growths that the prisoner had on his eyes, and the medical records did not support the director's argument that he denied surgery because the condition did not interfere with the prisoner's vision. Further proceedings were therefore ordered on the claim against the director. Ortiz v. Bezy, No. 07-3807, 2008 U.S. App. Lexis 12885 (Unpub. 7th Cir.).

     Even assuming that a prisoner's alleged knee pain constituted a serious medical need, he failed to show that prison personnel had deliberately denied him treatment with the intent to cause him harm, or that he had actually suffered resulting harm. He essentially merely disagreed with the treatment provided, which was inadequate for a civil rights claim. Shope v. Tex. Dept. of Criminal Justice, No. 07-10714, 2008 U.S. App. Lexis 13022 (Unpub. 5th Cir.).   

Positional, Restraint, and Compressional Asphyxia

     Although a man suffering from delusions attacked a psychiatric hospital staff member, the defendants knew that restraining him face-down on the floor and putting pressure on a his back posed a substantial risk of asphyxiation. "Despite knowledge of this risk, defendants chose to restrain [the deceased] using these dangerous restraint techniques. Their actions were objectively unreasonable given the fact that [an] eyewitness testified that [the] defendants continued to restrain [him] in this dangerous position ..." He had been brought to the hospital for a mental health assessment by Sheriff's Department personnel who found him wandering the countryside. During the attempt to restrain him, he stopped breathing, never regained consciousness, and died. The appeals court rejected claims by certain defendants for qualified immunity in a federal civil rights lawsuit brought by the decedent's estate. Lanman v. Hinson, #06-2263, 2008 U.S. App. Lexis 12682, 2008 Fed App. 0212P (6th Cir.).

Prison & Jail Conditions: General -- Heat or Cold

     In a prisoner's lawsuit contending that he was subjected to unreasonable cold and hot temperatures while confined, his claims regarding the cold were too "vague" to show a denial of the "minimal civilized measure of life's necessities." As for the heat, while the prisoner claimed that the temperature in the facility was sometimes "uncomfortably" hot, he did not claim that this caused him any heat-related injuries. The court also rejected claims of inadequate ventilation. Johnson v. Tex. Board of Criminal Justice, No. 07-20036, 2008 U.S. App. Lexis 12056 (Unpub. 5th Cir.).     

Prison & Jail Conditions: General -- Sanitary Conditions: Toilets and Toilet Paper

     A prisoner with a history of throwing excrement was barred from flushing his toilet himself, and prison employees were told to flush his toilet every two hours. The court rejected the prisoner's claim that his Eighth Amendment rights were violated when employees allegedly deliberately failed to flush his toilet on the two-hour schedule. The employees were entitled to qualified immunity, as there was no prior case law concerning the issue. Further, the prisoner did not show that he suffered any injury or medical harm because of the unflushed toilet, or that he came into contact with the unflushed toilet water. The court also noted that the prisoner did not argue with the fact that there was a "behavior management problem," based on his prior conduct, and that, absent that conduct, there would have been no need for the restrictions on him flushing the toilet himself. Howard v. McCray, No. 606-CV-062, 2008 U.S. Dist. Lexis 44194 (S.D. Ga.).

Prisoner Assault: By Inmates

     Prison personnel were entitled to qualified immunity on a prisoner's claim that they failed to protect him against attack by another inmate. A prison unit classification officer and a reviewing classification committee member made reasonable attempts to prevent a feared assault, including transferring various prisoners who allegedly were harassing him, and denying his transfer request after these harassers had been transferred out. The fact that the prisoner's ultimate assailant remained did not show that they acted with deliberate indifference, particularly as the purported "gang leader" had also been transferred out. The court also found that, even if an officer had told the attacker about statements that the plaintiff prisoner had "snitched" on him, this did not cause the attack, since the plaintiff had already been labeled a "snitch" and targeted by the prison gang. Moore v. Lightfoot, No. 06-41648, 2008 U.S. App. Lexis 13624 (Unpub. 5th Cir.).

     Other prisoners beat up a detainee at a county jail after word spread throughout the facility that he was charged with child rape. The appeals court held that one defendant officer was not entitled to qualified immunity in a lawsuit brought by the detainee for failure to protect him, as this officer's own statements showed that he was aware of facts which could have indicated that a substantial risk of harm of such an assault existed and that he in fact drew the inference that the risk existed. The court also held that there was a clearly established right to be protected against assault under these circumstances. A claim against a second officer for excessive use of force was rejected, because the detainee himself testified that a blow to his neck did not hurt, and there was no injury that could be objectively verified. Leary v. Livingston County, No. 06-2603, 2008 U.S. App. Lexis 12370 (6th Cir.).

Prisoner Discipline

     The failure to provide a charged prisoner in a disciplinary hearing with all the times and places of specific sexual encounters between himself and his cellmate was not essential to his ability to defend himself in a disciplinary hearing against charges that he had persuaded the cellmate to perform oral sex on him in exchange for commissary items, and had hit the cellmate in the face. The summary of the charges and evidence supplied to the prisoner did not deny his right to due process, since he knew when he had been housed with the cellmate and the time period in which the alleged misconduct would have occurred. Ball v. Raemisch, No. 07-cv-670, 2008 U.S. Dist. Lexis 47598 (W.D. Wis.).

     Once a prisoner was released on parole, any claim concerning the restoration of good time credits lost at a disciplinary hearing were moot because a determination concerning that would have no impact on the length of time of his parole. Washington v. Scribner, No. 1:05-cv-01537, 2008 U.S. Dist. Lexis 47867 (E.D. Cal.).

     Imposing sanctions on a prisoner, including the loss of 151 days of good conduct time, for a charge of possession of a controlled substance was improper when there was no evidence that he possessed or even constructively possessed the heroin in question. There was evidence that he asked someone outside the prison to send him heroin, and that it was concealed on a postcard addressed to him, but the postcard was intercepted by a guard in the prison mailroom. Since the only charge brought against the prisoner was "possession," and he never possessed the drugs, the court vacated the finding of guilt by the disciplinary hearing, and restored the prisoner's good conduct credits. In re Rothwell, No. D051584, 2008 Cal. App. Lexis 943 (4th Dist.).

Prisoner Injury/Death

     While a prisoner claimed that prison officials had known about a loose shower seat for some time before it fell and cut his foot, he failed to show that it posed a risk of serious harm in violation of the Eighth Amendment, even though it did pose "some" danger. The resulting injury, a gash lasting two weeks, only required a bandage and a tetanus booster, and did not create a substantial risk of serious harm to the prisoner's future health, as required for a deliberate indifference claim. Gray v. McCormick, No. 07-3429, 2008 U.S. App. Lexis 12620 (Unpub. 7th Cir.).

Prisoner Restraint

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

     Placing a prisoner in a four-point restraint and keeping him shackled to his bed in this manner for four hours did not violate his substantive due process rights, and doing this, as well as fastening the restraints without the presence of the nurse were not an "atypical and significant hardship," but an expected "adverse consequence" of his confinement when the prisoner was accused of biting the prison guard at the time the restraints were applied. Grinter v. Knight, No. 05-6755, 2008 U.S. App. Lexis 12919 (6th Cir.).

Procedural: Discovery

     A federal trial court granted a prisoner's motion for reconsideration and vacation of summary judgment in favor of a city in his lawsuit claiming that he was beaten and kicked by officers during city prison intake procedures. The city had produced, in an untimely manner, a corrections' sergeant's log. This log, which was a "critical document" in the case, was "inexplicably" not produced by the city during the discovery process, and was only made available after summary judgment in the case had been granted in the city's favor. In granting the city summary judgment, the court relied on the city's representation that the log did not exist, and the detainee was unable to use information contained in the log to respond to the motion for summary judgment. Shimoyama v. City of Philadelphia, Civil Action No. 05-6299, 2008 U.S. Dist. Lexis 44690 (E.D. Pa.).

Religion

     A Wiccan or ritual magician prisoner failed to show that the actions of two prison officials violated his rights when they removed religious "seals" that he had affixed to his cell doors and walls. He failed to show that the seals had religious meaning to him, and the employees stated that there was a policy prohibiting prisoners from affixing anything to their cells which served prison security interests by facilitating inspections of cells and eliminating a source of conflicts between prisoners celled together. The policy allowed the prisoners to have non-contraband items in their cells as long as they were not affixed. Mark v. Gustafson, No. 06-3943, 2008 U.S. App. Lexis 13166 (Unpub. 7th Cir.).

     Prisoner could pursue his claim that a county sheriff and county violated his First Amendment rights by allegedly playing Christmas music daily in the jail, and forcing inmates to listen to Judeo/Christian religious doctrine. The court rejected the argument that the First Amendment claim should be dismissed based on the failure to show that the prisoner suffered a physical injury, ruling that 42 U.S.C. Sec. 1997e(c) of the Prison Litigation Reform Act, barring recovery of damages for mental distress in the absence of a physical injury, did not apply to the prisoner's claim. Fabricius v. Maricopa County, No. CV-06-1105, 2008 U.S. Dist. Lexis 37569 (D. Ariz.).

Sexual Assault

     Female inmate adequately alleged that she was sexually assaulted by correctional personnel, and that certain supervisory personnel failed to intervene and protect her from unwanted sexual contact by knowingly allowing officers who had sexually harassed her to remain in contact with her. Knight v. Simpson, Civil Action No. 3:08-CV-0495, 2008 U.S. Dist. Lexis 36631 (M.D. Pa.).

Sexual Harassment

     Prisoner's claim that correctional officer made "kissing motions" or "noises" at him, and that other officers laughed, calling him a "punk" was mere verbal harassment and was not sufficiently serious to constitute a federal civil rights claim. Castillo v. San Jose Police Dept., No. C 06-3225, 2008 U.S. Dist. Lexis 4261 (N.D. Cal.).

Smoking

     Prison officials did not act with deliberate indifference to asthmatic prisoner's complaints about exposure to second-hand smoke allegedly triggering his asthma and increasing his respiratory difficulties. To the contrary, the record showed that the officials showed concern, gave the prisoner access to an asthma clinic, prescribed medications, and doctors, and moved the prisoner to a medical wing when a prison doctor recommended the move. Additionally, he was provided with a non-smoking cell when he requested one. There was no showing that the prison officials, at any time, ignored medical advice concerning housing the prisoner. Lee v. Young, No. 07-3651, 2008 U.S. App. Lexis 13316 (7th Cir.).

Tasers, Stun Belts/Guns, and other Electronic Control Devices

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

     A prisoner did not state a claim for excessive use of force based on a sergeant allegedly pressing a Taser against his back and pressing him against elevator doors while transporting him. There was no claim that the Taser was activated, and the alleged actions only caused minimum discomfort, and failed to constitute a "malicious and sadistic" application of force. Sawyer v. Green, No. 08-3083, 2008 U.S. App. Lexis 13119 (Unpub. 10th Cir.).

Terrorism, Enemy Combatants, & Military Prisoners

     The U.S. Supreme Court in Boumediene v. Bush, No. 06-1195, 2008 U.S. Lexis 4887, ruled that aliens detained at Guantanamo Bay, Cuba as enemy combatants after their capture in Afghanistan or elsewhere overseas are constitutionally entitled to pursue claims for habeas corpus, and found that the procedures provided in a 2005 statute for review of the detainees' status are inadequate and constitute an unconstitutional suspension of the writ of habeas corpus. In another case, Munaf v. Geren, No. 06-1666, 2008 U.S. Lexis 4888, decided the same day, June 12, 2008, the Court ruled that the habeas corpus statute applies to U.S. citizens held overseas by U.S. military forces, such as in Iraq, even if those forces are operating as a component of an multinational coalition. The U.S. citizens being detained had traveled voluntarily to Iraq and are alleged to have committed crimes there. The Court further ruled, however, that the particular plaintiffs in that case were not entitled to relief to enjoin the U.S. from transferring them to the custody of Iraqi authorities for criminal prosecution.

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     Medical Care: The Federal Bureau of Prisons (BOP) has published several revised 2008 Clinical Practice Guidelines (CPGs) regarding treatment of inmates and correctional employees. They are in the areas of Diabetes, Lipid Disorders, and Ophthalmology Guidance. The Bureau also published a Pandemic Influenza Plain in May of 2008 in two modules, covering surveillance and infection control and antiviral medications and vaccines. A complete list of the Clinical Practice Guidelines and other health care resources are available at http://www.bop.gov/news/medresources.jsp

     Prison Rape and Sexual Misconduct: Sexual Victimization in Local Jails Reported by Inmates, 2007. Presents data from the 2007 National Inmate Survey (NIS), conducted in 282 local jails between April and December, with a sample of 40,419 inmates. The report and appendix tables provide a listing of results for sampled local jails, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79). Facilities are listed alphabetically by state with estimated prevalence rates of sexual victimization as reported by inmates during a personal interview and based on activity in the 6 months prior to the interview or since admission to the facility, if shorter. The report includes national-level and facility-level estimates of nonconsensual sexual acts, abusive sexual contacts, inmate-on-inmate and staff-on-inmate victimization, and level of coercion. It also includes estimates of the standard error for selected measures of sexual victimization and summary characteristics of victims and incidents. Data collected from prison inmates in the National Inmate Survey were reported in Sexual Victimization in State and Federal Prisons Reported by Inmates, 2007, released in December 2007. Highlights include the following: About 1.6% of inmates (12,100, nationwide) reported an incident involving another inmate, and 2.0% (15,200) reported an incident involving staff. Inmate-on-inmate victimization occurred most often in the victim’s cell (56%); staff-on-inmate victimization occurred in a closet, office, or other locked room (47%). An estimated 5.1% of female inmates, compared to 2.9% of male inmates, said they had experienced one or more incidents of sexual victimization. 06/08 NCJ 221946 Press release | Acrobat file (265K) | ASCII file (37K) | Spreadsheets (zip format 47K)

     Statistics: Updated Deaths in Custody Statistical Tables. State Prison Deaths, 2001-2006. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Reference:

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

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