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Access to Courts/Legal Info

     Prison officials were entitled to summary judgment on prisoner's claim that his right of access to the courts had been violated by the alleged repeated opening of his privileged mail from his attorney outside his presence, since he failed to show any actual injury to a pending court case.  Al-Amin v. Smith, No. 06-15248, 2008 U.S. App. Lexis 180 (11th Cir.).

     Prisoner was entitled to an appointed lawyer in his lawsuit asserting claims for deliberate indifference and medical malpractice concerning treatment of his finger, which allegedly resulted in a need for its amputation. The prisoner was not an experienced litigant, and expressed confusion about the discovery process. Additionally, the case might raise complex legal issues which required more factual investigation than the prisoner was able to conduct, as well as requiring expert witness testimony. Colston v. Correctional Medical Services, No. 06-4247, 2007 U.S. App. Lexis 28082 (3rd Cir.).

     Jail officials did not violate a prisoner's right of access to the courts when they allegedly denied him access to a law library, resulting in his inability to file a motion in court based on the Texas Speedy Trial Act. The prisoner failed to show that he suffered an actual injury, since the statute in question had been declared unconstitutional by a state appeals court, and he also failed to allege why the "speedy trial" motion could not have been pursued by his appointed lawyer. The prisoner's appeal, therefore, was frivolous. Barnes v. Cerliano, No. 06-41129, 2007 U.S. App. Lexis 28583 (5th Cir.).

Defenses: Sovereign Immunity

     A federal prisoner claimed that the Federal Bureau of Prisons (BOP) unlawfully ended his work program with UNICOR, which provides work and training opportunities under 28 C.F.R. Sec. 345.11(a), and sought reinstatement and an award of back pay. A federal court has rejected the argument that the BOP's provision of a grievance system constituted an implied waiver of sovereign immunity and that the prisoner could use the Administrative Procedure Act, 18 U.S.C. Sec. 3625 to challenge his termination. The U.S. and its agencies cannot be sued in the absence of an explicit waiver of sovereign immunity, and the APA does not apply to any determination made under the statutes governing imprisonment. Anderson v. Federal Bureau of Prisons, No. 06-01402, 2007 U.S. Dist. Lexis 68137 (D.D.C.).

Defenses: Statute of Limitations

     While the trial court found that the prisoner's escape from jail had been motivated by his fear that another inmate would take his life, and that county officials had failed to protect him from that prisoner, it also correctly found that his claims were barred by a two year statute of limitations since it was filed over two years after his escape. Additionally, he failed to exhaust his administrative remedies under a grievance procedure that he was aware of. Schumacher v. Fannin County, No. 06-41498, 2007 U.S. App. Lexis 28943 (5th Cir.).

Disability Discrimination: Prisoners

     The Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12165, does not provide for claims against government employees in their individual capacities. The defendant employees were therefore entitled to qualified immunity on the individual capacity claims a prisoner asserted against them under the ADA. Doyle v. Jones, No. 1:06-CV-628, 2007 U.S. Dist. Lexis 84570 (W.D. Mich.).

Employment Issues

     Discipline of correctional employees because of their association with a motorcycle club did not violate their First Amendment or due process rights to freedom of intimate association or expressive association. The court found that the motorcycle club memberships were not expressive association "on matters of public" concern, and that those memberships also were not intimate relationships provided protection under the constitution. Additionally, law enforcement agencies believed that the motorcycle club in question engaged in criminal acts. Piscottano v. Murphy, No. 05-3716, 2007 U.S. App. Lexis 29541 (2nd Cir.).

First Amendment

     Prisoner's claim that he was improperly disciplined for sending a copy of a letter to a prison internal affairs unit, in violation of his First Amendment rights, is rejected by appeals court. The letter sought information about how to pursue his claims in state court against a prison official. The official considered the letter to be a threat because he worked in the unit where the copy of the letter was sent. The appeals court ruled that prison officials did not act unreasonably in viewing the sending of the copy of the letter as a "veiled threat" against the official, or in seizing the prisoner's legal papers after he filed a prison grievance, which was an attempt to circulate a petition, in violation of prison rules. May v. Libby, No. 05-1473, 2007 U.S. App. Lexis 27796 (7th Cir.).

Mail

     Prison officials were not entitled to dismissal of prisoner's claims that they violated his First Amendment rights to freedom of religion and freedom of speech in refusing to mail 13 letters he tried to send to Baptist churches and ministers to seek prayer partners and religious pen pals. These actions were taken to enforce a rule barring correspondence soliciting or advertising for "money, goods or services," including seeking pen pals. Prison officials, in the trial court, failed to offer any explanation of the reason for the rule or what governmental interest it was advancing. While they might yet justify the rule and their actions, they had failed, to date, to do so, as a result of which the dismissal of the case was premature. Adamson v. McDonough, No. 06-12579, 2007 U.S. App. Lexis 28969 (11th Cir.).

     Court upholds Massachusetts state regulation banning all sexually explicit publications and items from prisons. The rule banned the receipt, possession, and display of almost all materials with nude or semi-nude images or other sexually explicit content, except in a medical, educational, or anthropological context. The court ruled that there was a rational relationship between the rule and the legitimate interest that correctional facilities had in safety and rehabilitation. Under the rule, publications were individually reviewed to determine whether their content fell within the scope of the ban. Moses v. Dennehy, No. 06-10164, 2007 U.S. Dist. Lexis 85359 (D. Mass.).

Medical Care

     Pregnant female detainee presented sufficient medical evidence to show that she had a serious medical problem of prolonged amniotic leakage. which could lead to an infection and the death of her fetus. A jail facility commander was not entitled to qualified immunity, based on his alleged knowledge of this problem and his alleged deliberate decision to disbelieve all inmate complaints about medical care. The sheriff, however, was not shown to have had actual knowledge that jail policies were being implemented in a way that arguably ignored legitimate medical needs, and was therefore entitled to summary judgment. Goebert v. Lee County, No. 06-10606, 2007 U.S. App. Lexis 29513 (11th Cir.).

     Medical records did not show that an inmate received deliberate indifference to his medical needs. While it took a number of months to properly diagnose his problem, during that time period prison medical personnel conducted numerous tests in an attempt to make a diagnosis. Once the problem was diagnosed, the prisoner received crutches and a leg cast, which was appropriate treatment. The prisoner suffered no substantial harm from the delay in the diagnosis and treatment. Ramirez v. Stacks, No. 06-41447, 2007 U.S. App. Lexis 29611 (5th Cir.).

     While the prisoner presented evidence that her mental and physical condition deteriorated during the time period at issue, she did not present sufficient evidence to establish a factual issue as to whether there was a policy or custom of denying needed tests and treatment to inmates with her symptoms, or of making medical decisions based solely on financial concerns. A company that provided prison medical services was therefore entitled to summary judgment in the lawsuit. Southworth v. Missouri Dept. of Corrections, No. 06-3735, 2007 U.S. App. Lexis 29795 (8th Cir.).

     A prisoner who was suffering kidney failure failed to show that medical personnel acted with deliberate indifference in placing an arteriovenous graft in his arm and failing to subsequently remove it. While the graft, as it turned out, was not needed, the prisoner's mere difference of opinion concerning the medical treatment provided did not demonstrate deliberate indifference, and he also failed to show that he had a serious medical need to have the graft removed. Grimsley v. Hammack, No. 06-12143, 2007 U.S. App. Lexis 27522 (11th Cir.).

Medical Care: Dental

     Prisoner who claimed that he was denied needed dental care created, in his affidavit, a genuine issue of disputed material fact as to whether nurses knew of a serious medical need, and intentionally refused to treat it, either by stating that they would not respond to any of his requests for treatment or by "laughing in his face." A conflict between the existing medical records and the prisoner's version of events was an issue of fact for a jury to decide. Newsome v. Chatham County Detention Center, No. 07-10838, 2007 U.S. App. Lexis 27818 (11th Cir.).

Medical Care: Mental Health

     A federal civil detainee sufficiently presented a claim that prison employees acted with deliberate indifference to his mental health needs by denying him needed psychiatric treatment despite his deteriorating condition, which went beyond mere negligence in care. Because he was a civil detainee, and not a prisoner, he was not required to exhaust available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Additionally, as a civil detainee, his claims were analyzed under the due process clause of the Fifth Amendment, rather than under the Eighth Amendment's prohibition on cruel and unusual punishment. The detainee was confined under 18 U.S.C. Sec. 4246(a), providing for the hospitalization (and continued detention) of a person in the custody of the Bureau of Prisons when their sentence is about to expire or when criminal charges against them have been dismissed on the basis of their mental condition, if they suffer from a mental disease or defect as a result of which their release would create a "substantial risk of bodily harm to another persons or serious damage to property of another." Hicks v. James, No. 06-6786, 2007 U.S. App. Lexis 28251 (4th Cir.).

Parole

     Wisconsin's parole system is "completely discretionary," so that the plaintiff prisoner had no liberty interest concerning being eligible for parole, and could not pursue a procedural due process claim based on an alleged informal policy of not paroling sex offenders until they had completed a sex offender treatment program. The prisoner claimed that he had, in fact, finished such a program, but that the certificate of that completion was removed from his records after he angered the directors of the program, and therefore could not be granted a parole hearing. The appeals court also found that the conduct alleged, even if true, did not shock the conscience, as required for a substantive due process claim. Bartley v. Wisconsin Dept. of Corrections, No. 07-2059, 2007 U.S. App. Lexis 28430 (7th Cir.).

Prison & Jail Conditions: General

     Federal prisoner sufficiently alleged that certain prison employees violated his Eighth Amendment rights through the conditions of his confinement to defeat the dismissal of those claims. He asserted that he was required, while in a special housing unit strip-cell, to use a trash bag as a toilet and to share it with a mentally unstable cellmate, and that the cellmates were not allowed to remove the bagged sewage from the cell. Burnette v. Bureau of Prisons, No. 06-30540, 2007 U.S. App. Lexis 28492 (5th Cir.).

Prison Litigation Reform Act: Attorneys' Fees

     The cap on attorneys' fees imposed by the Prison Litigation Reform Act applied both to the time the plaintiffs' attorney spent in any underlying lawsuit and in monitoring whether a county was in compliance with consent degrees entered into during the litigation. The court reduced a total attorneys' fee request of $363,000 to $138,213.83. Batchelder v. Geary, No. C-71-02017, 2007 U.S. Dist. Lexis 64893 (N.D. Cal.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Former inmate failed to exhaust grievance procedures during his incarcerations concerning his complaints about overcrowding and other allegedly unsanitary jail conditions he was aware of, and therefore could not pursue a federal civil rights lawsuit, based on the requirements of 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. The former inmate could, however, still pursue claims concerning injuries he did not discover until after he was released, including medical conditions, without attempting to exhaust administrative remedies. As a former prisoner, the jail's grievance procedure was no longer available to him, so any "exhaustion" requirement was excused. Allard v. Anderson, No. 05-10019, 2007 U.S. App. Lexis 29932 (5th Cir.).

     HIV positive prisoner could not pursue his federal civil rights lawsuit over the alleged denial of his daily medication when he failed to file any formal grievance. His claim that he sent letters complaining to the nurse administrator and the superintendent was insufficient to fulfill the requirements of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) that he exhaust available administrative remedies. Murray v. Prison Health Services, No. 06 Civ 15426, 2007 U.S. Dist. Lexis 74719 (S.D.N.Y.).

Prisoner Assault: By Inmates

     Sheriff was entitled to qualified immunity on a claim by a civilly committed sexually violent predator (SVP) that he was not adequately protected from assault by other inmates while at the county jail. The law concerning the placement of civil detainees within a jail was not clearly established at the time of the incident at issue. Odom v. Kolender, No. 06-56180, 2007 U.S. App. Lexis 29004 (9th Cir.).

     Prison officials were not entitled to qualified immunity on a claim that they were liable for the death of a prisoner stabbed to death by fellow inmates using shanks. They allegedly failed to carry out a departmental mandate for a weekly search of cells, and 62 shanks had been, at one point, found during a search of the same building where the prisoner was stabbed. In light of the defendants' alleged knowledge of the large amount of shanks found on the premises, and the poor condition of prison gates and doors, their alleged non-compliance with the weekly search requirement could constitute deliberate indifference to prisoner safety. Sanchez v. Pereira, No. Civil 05-1293, 2007 U.S. Dist. Lexis 88759 (D. Puerto Rico).

Prisoner Assault: By Officers

     While a prisoner allegedly suffered an "unfortunate extent" of injuries as a result of a deputy's push or shove, the deputy was acting in good faith to attempt to maintain or restore discipline, and not maliciously and sadistically for the purpose of causing harm. The deputy was therefore entitled to summary judgment on an excessive force claim. Cockrell v. Sparks, No. 07-10984, (11th Cir.).

     In a lawsuit in which a prisoner claimed that he was beaten on two occasions by correctional officers, the first claim against the officers was properly dismissed for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a), and a verdict in favor of the officers on the second beating claim was upheld. The trial court did not act erroneously in failing to give an "assault and battery" instruction separate from the "cruel and unusual punishment" instruction given, as the prisoner did not ask for his own instruction or present an argument as to why the instruction given was allegedly defective. Finally, a directed verdict in favor of a prison superintendent was properly decided as there could be no supervisory liability when there was no finding of a constitutional violation by the officers. Matthews v. Cordeiro, No. 05-1041, 2007 U.S. App. Lexis 28613 (1st Cir.).

Prisoner Classification

     Prisoner's claims concerning the alleged violation of his rights as a result of his classification as a gang member and placement in administrative segregation were either frivolous or meritless. Additionally, his claims for injunctive relief were moot since he had been released from prison. The conditions he was allegedly subjected to, such as the denial of access to salt and pepper, denial of participation in work and education programs, and denial of access to television and games were not sufficient to show a deprivation of constitutionally protected liberty interests. The alleged limitation of access to legal research to only three days a week was found not to have denied his right of access to the courts. Farr v. Rodriguez, No. 05-41395, 2007 U.S. App. Lexis 28191 (5th Cir.).

Prisoner Discipline

     Disciplinary determination against prisoner concerning contraband was adequately supported by "some evidence" against him. Additionally, some of the prisoner's claims--such as that a Bureau of Prisons regulation making it an inmate's responsibility to keep his cell free of contraband did not apply to low security institutions, could not be considered on appeal when he did not assert them in his administrative proceedings. Reyes v. Attorney General of the U.S., No. 07-3289, 2007 U.S. App. Lexis 29249 (3rd Cir.).

     When a disciplinary determination against a prisoner had not previously been invalidated, he could not pursue federal civil rights claims for damages allegedly arising out of the alleged violation of his due process rights during the proceedings. Roberts v. Wilson, No. 07-10433, 2007 U.S. App. Lexis 29160 (11th Cir.).

     Failing to hold disciplinary hearing within seven days of the alleged violations did not violate the prisoner's rights. The New York state regulations concerning the time for such hearings were interpreted as being "directory" rather than "mandatory," at least when there was no showing of "substantial prejudice" resulting from the delay. Additionally, since the prisoner was already in a special housing unit at the time of the incident, which resulted in discipline for violent conduct, threats, and other rule violations, the seven-day procedural rule did not apply. The court also rejected the prisoner's argument that he was denied the right to present videotape evidence concerning the incident, as there was no record showing that any such videotape existed. Applewhite v. Goord, No. 500132, 2007 N.Y. App. Div. Lexis 12462 (A.D. 3rd Dept.).

    Prisoner was not denied the right to call witnesses at his disciplinary hearing when he failed to list any desired witnesses on a hearing form, and the determination against him, concerning alleged trafficking in contraband (tobacco allegedly brought in by a visitor) was adequately supported by "some evidence." Jackson v. Wrigley, No. 07-1618, 2007 U.S. App. Lexis 27794 (7th Cir.).

Prisoner Suicide

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

     City and its personnel were not liable for suicide of a man arrested for intoxicated driving and detained in a cell for intoxicated and combative prisoners. There was no evidence that officers had any actual knowledge that the detainee posed a substantial risk of suicide. The fact that he had fought with officers and made certain "off-hand, cavalier" comments did not establish that he was suicidal. Branton v. City of Moss Point, No. 07-60653, 2008 U.S. App. Lexis 76 (5th Cir.).

Public Protection

     Private company that operated a prison under a contract with the State of Kentucky was not liable for an escaped prisoner's robbery, assault, and rape of a woman several hours after his escape. Under Kentucky state law, applied by the federal court on the plaintiff's negligence claim, there is no negligence liability when the harm to a third person, the victim, is caused by another person's intentionally criminal acts. Intentionally violent acts against unknown third persons, the court stated, are generally not regarded as foreseeable under Kentucky state law. Norris v. Corrections Corporation of America, No. 3:07CV-273, 2007 U.S. Dist. Lexis 83965 (W.D. Ky.).

Religion

     Prison officials were not entitled to judgment as a matter of law in a lawsuit claiming that a prisoner was denied the right to practice his Asatru faith (a pagan religion with Norse origins) in terms of group worship. In response to the prisoner's equal protection claim, an official's affidavit failed to show how the prisoner's Asatru religion was different from the Nation of Islam or the Moorish American Science Temple, or other religions allowed group worship services. Gordon v. Caruso, No. 1:06-CV-571, 2007 U.S. Dist. Lexis 65140 (W.D. Mich.).

Work, Education, and Recreation Programs

     California prisoner did not have a constitutionally protected liberty interest in the accrual of credits for participation in a prisoner work training incentive program. Further, the appeals court rejected his equal protection claim, finding that the State of California had a rational basis for requiring that violent felons be treated more harshly in order to ensure public safety, supporting its requirement that the plaintiff, who had been sentenced for voluntary manslaughter, serve at least 85% of his sentence. Etcheverry v. Woodford, No. 06-17398, 2007 U.S. App. Lexis 27729 (9th Cir.).

     A federal prisoner who claimed that he had "essentially exhausted" his academic opportunities at the facility where he was incarcerated did not show that his due process and equal protection rights were violated by the failure to provide him with "marketable" vocational opportunities allegedly provided to some other similarly situated D.C. offenders in other facilities. There is no due process right to participate in vocational and educational programs, the court concluded, much less one of the prisoner's own choice. Boulware v. Federal Bureau of Prisons, No. 06-2137, 2007 U.S. Dist. Lexis 79609 (D.D.C.).

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     Publications: Managing Lesbian, Gay, Bisexual, Transgender, and Intersex Inmates: Is Your Jail Ready? Author(s) Leach, Donald L., II Source(s) LIS, Inc. (Longmont, CO) National Institute of Corrections Information Center (Aurora, CO) Sponsor(s) National Institute of Corrections (Washington, DC) Details Published 2007. 6 pages. "The management of lesbian, gay, bisexual, transgender, and intersex inmates (LGBTI) in a jail setting is addressed. Sections contained in this article are: a terminology lesson; the sexual being -- physiognomy, gender identity, and sexual orientation; and responses in the jail regarding medical care, data systems, security, housing, and clothing."

     Publications: Controlling Inmate Population Size: A Case Study of 20 Years of Success Controlling Inmate Population Size. Author(s) Ford, Marilyn Chandler Source(s) LIS, Inc. (Longmont, CO) National Institute of Corrections Information Center (Aurora, CO) Sponsor(s) National Institute of Corrections (Washington, DC) Details Published 2007. 6 pages. "This article explains how Volusia County (FL) keeps its jail population at such a level that no new jail construction has been needed for over 20 years. Topics discussed include: about Volusia County; the solution blueprint -- interacting with the external criminal justice system and data management systems; and sustaining the focus."

     Statistics: Sexual Victimization in State and Federal Prisons Reported by Inmates, 2007. Presents data from the National Inmate Survey (NIS), 2007, conducted in 146 State and Federal prisons between April and August 2007, with a sample of 23,398 inmates. The report and appendix tables provide a listing of State and Federal prisons ranked according to the incidence of prison rape, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79). Facilities are listed by the prevalence and incidence of sexual victimization in each facility, as reported by inmates during a personal interview and based on activity since admission to the facility or in the 12 months prior to the interview. 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. Data from jail inmates collected in the National Inmate Survey will be completed in January 2008, with a report ranking facilities expected in April 2008. Highlights include the following: An estimated 60,500 inmates (or 4.5% of all State and Federal inmates) experienced one or more incidents of sexual victimization involving other inmates or staff. Nationwide, about 2.1% of inmates reported an incident involving another inmate and 2.9% reported an incident involving staff. Among the 146 prison facilities in the 2007 NIS, 6 had no reports of sexual victimization from the sampled inmates; 10 had an overall victimization rate of at least 9.3%. Among the 10 facilities with the highest overall prevalence rates, 3 had prevalence rates of staff sexual misconduct that exceeded 10%. 12/07 NCJ 219414 Press release | Acrobat file (419K) | ASCII file (42K) | Spreadsheets (zip format 39K)

     Terrorism: Terrorist Recruitment in American Correctional Institutions: An Exploratory Study of Non-Traditional Faith Groups Final Report, NIJ-Sponsored, December 2007, NCJ 220957. (128 pages). [PDF]

Reference:

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

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