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Chemical Agents

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

     Prisoner failed to show that officers violated his rights in using pepper spray in the process of extracting another inmate from a cell near his. The officers were not shown to have acted with malicious and sadistic intent, but instead used the pepper spray to restore discipline when the other inmate refused to comply with their orders. The officers also followed written policies designed to minimize other inmates' exposure to the fumes of the pepper spray. Allen v. Bosley, No. 06-16541, 2007 U.S. App. Lexis 25933 (9th Cir.).

Defenses: Statute of Limitations

    Prisoner's claim that correctional officials violated his rights by confiscating and destroying publications he received through the mail in retaliation for grievances he filed was barred by a statute of limitations. The limitations period was not tolled (extended) by the prisoner's claim that he lacked "knowledge of the law" at the time that the alleged deprivation occurred. His alleged lack of knowledge that he could file a lawsuit during the statute of limitations period was not relevant. Royster v. Beard, No 1:CV-06-0842, 2007 U.S. Dist. Lexis 83833 (M.D. Pa.).

Diet

     Prisoner failed to provide any supporting evidence for his allegation that he was served tainted food in retaliation of his pursuit of prior litigation, or that his snack food was tampered with. Ali v. Suchocki, No. 06-5160, 2007 U.S. App. Lexis 26233 (3rd Cir.).

Disability Discrimination: Employees

     A deputy sheriff with epilepsy was not subjected to disability discrimination when he was fired subsequent to having a seizure in a jail cell and a doctor's report indicating that his epilepsy was poorly controlled. He failed to show that he could perform his essential job functions with a reasonable accommodation, or that he could meet a reasonable medical standard of being "seizure free." Dicksey v. New Hanover County Sheriff's Dept., No. 7:06-CV-70, 2007 U.S. Dist. Lexis 83876 (E.D.N.C.).

Disability Discrimination: Prisoners

     The Americans with Disabilities Act (ADA) does not apply to the federal government, so that a prisoner could not pursue an ADA disability discrimination claim against the federal Bureau of Prisons for the alleged wrongful refusal to classify him as medically unable to work. The prisoner's claim concerning alleged deliberate indifference to his serious medical needs showed, at most, a disagreement with the medical treatment provided or an incorrect diagnosis of his condition by prisoner personnel, both of which would be inadequate to demonstrate a violation of his constitutional rights. The prisoner allegedly suffered from an inner ear disorder (Meniere's disease), and had also requested to be seen by an orthopedic specialist for problems with his neck, back, left hip, knee and ankle. .Marlin v. Alexandre, No. 06-30838, 2007 U.S. App. Lexis 26534 (5th Cir.).

     A prisoner with a hearing impairment could not recover damages for any alleged emotional injury he suffered from the failure of a Nebraska prison to provide him with visual alarms and assistive communication devices in the segregation unit he was housed in, because he did not assert any claim for physical injuries are required by 42 U.S.C. Sec. 1997e(e). His claims for damages against the State of Nebraska for disability discrimination were further barred by the Eleventh Amendment. The prisoner could, however, amend his complaint to seek injunctive or other equitable relief. If he did not do so, his lawsuit would be dismissed. Stainbrook v. Houston, No. 4:07CV3196, 2007 U.S. Dist. Lexis 81195 (D. Neb.).

DNA

     Requiring a convicted felon on supervised release to report for DNA testing or else suffer a possible revocation of his release did not violate the Fourth Amendment. The federal government's "significant interests" in preventing recidivism, solving past crimes, and identifying supervised releasees outweighed any diminished privacy interest held by a convicted felon serving a term of supervised release. Federal appeals court affirms trial court decision upholding the constitutionality of the 2004 amendments to the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 108-405, and 28 C.F.R. Sec. 28.2, regulations identifying federal offenses qualifying for DNA sample collection under the Act. U.S. v. Kriesel, No. 06-30110, 2007 U.S. App. Lexis 27492 (9th Cir.).

Drugs and Drug Screening

     Relatives of prisoner who died from a drug overdose failed to provide any evidence to support their argument that the drugs had been administered to him by other inmates forcing him to take them, or that his death resulted from prison officials failure to provide adequate personnel to supervise inmates to avoid such incidents. The plaintiffs could proceed, however, on their claim that certain defendants acted with deliberate indifference by eliminating in-house emergency medical facilities despite the common occurrence of drug overdoses among the inmate population. Rivera-Quinones v. Rivera-Gonzalez, Civil No. 03-2326, 2007 U.S. Dist. Lexis 81258 (D. Puerto Rico).

Employment Issues

     While an Illinois prison employee (serving as a clinical casework supervisor) had a protected property right under state law not to be demoted or fired without cause, a mere change in his job duties, relating to the entry of data concerning certain disciplinary hearing information and other clerical work, did not constitute a firing or demotion. While his specific job duties changed, he was not placed in a lower pay grade. Further, there was no evidence that the employee's new job duties were so "intolerable" as to constitute a constructive discharge. Akande v. Grounds, No. 05-cv-4212, 2007 U.S. Dist. Lexis 78803 (S.D. Ill.).

First Amendment

     Prisoner presented evidence from which a reasonable jury could find that major misconduct charges were brought against him in retaliation for his filing of prison grievances, in violation of his First Amendment rights, so that the defendant prison employees and officials were not entitled to qualified immunity. Scott v. Stone, No. 06-1622, 2007 U.S. App. Lexis 26624 (6th Cir.).

Freedom of Information

     A prisoner filed a request under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 for the release of all documents concerning a psychological examination of him by a Bureau of Prisons (BOP) staff psychologist. The court ruled that certain test materials, including the test protocol and extended score report were not subject to disclosure, based on the test publisher's objection that their disclosure would compromise the validity of the test and reveal trade secrets. The handwritten notes of the psychologist and other documents, such as a summary report, however, were subject to disclosure. Ruston v. Dept. of Justice, Civil Action No.: 06-0224, 2007 U.S. Dist. Lexis 83009 (D.D.C.).

Inmate Funds

     The retroactive application of newly adopted administrative code regulations and correctional policies to charge inmates co-payments for certain medical services, when they previously received those services for free, did not violate their due process rights or their plea agreements. Ridenour v. Wilkinson, No. 07AP-200, 2007 Ohio App. Lexis 5238 (Ohio App. 10th Dist.).

Mail

     A prison's ban on inmates receiving commercially-produced pictures of celebrities, including actresses such as Jennifer Aniston, did not violate a prisoner's First Amendment rights. The court found that the prison's economic interest in saving staff resources that would otherwise be needed to process incoming individual commercial photographs and to screen them for possible inappropriate content was legitimate. The prisoner had adequate alternative means of exercising any right he had to see a photo of Jennifer Aniston by subscribing to a magazine which might, in some issue, contain a photo of her. The court commented, in a footnote: "If possessing a photo of a movie star in a prison cell can even be deemed a 'right' protected by the First Amendment." The ban on celebrity photos was found to be reasonably related to legitimate penological objectives. The rules in place did allow prisoners to receive photos of family members. Jackson v. Frank, No. 07-2314 (7th Cir.).

     Prisoner who was formerly in a maximum-security unit in a prison, and then subjected to a policy barring him from receiving publications in the mail, was not entitled to continue his pursuit of claims challenging that policy when he had been released from maximum security and not returned there in over two years. He would not benefit from the declaratory and injunctive relief sought in his lawsuit, since he was no longer subjected to the policy in question. His challenge was now moot, and a ruling on the policy would now be an unconstitutional "advisory opinion." Incumaa v. Ozmint, No. 04-7824, 2007 U.S. App. Lexis 25309 (4th Cir.).

Medical Care

     Prisoner's claim that prison employees refused to give him a single dose of his high blood pressure medication did not show a violation of his rights. The prisoner did not show that the defendants knew that he would allegedly require hospitalization as a result of their actions. The prison's policy requiring that a prisoner stand to receive their medication and have their cell lights on, and their identification available was not unreasonable. Moreland v. Roscko, No. 05-10508, 2007 U.S. App. Lexis 26445 (5th Cir.).

     While prison medical clinic employees were wrong in concluding that an inmate was not having a heart attack, they did engage in efforts to determine whether he was, including performing an enzyme test, placing him on a cardiac monitor, and providing him with oxygen, an analgesic, and an aspirin, as well as trying to keep him calm. Additionally, when his symptoms did not improve, he was sent to a hospital in an ambulance. Given these facts, the inmate failed to show deliberate indifference to a serious medical need, even though the facts may have shown medical malpractice or negligence. Taylor v. CMCF 720 Clinic, No. 06-60397, 2007 U.S. App. Lexis 26781 (5th Cir.).

     When the prisoner's medical records showed that he had been examined by a number of doctors, including specialists, and received various medications for his complaints, as well as undergoing various tests, including MRIs, x-rays, and hearing tests, his claim for deliberate indifference to his serious medical needs was not supported by the facts, despite his subjective believe that his medical care was not adequate. Pettus v. Wright, No. 04-CV-6203, 2007 U.S. Dist. Lexis 73713 (W.D.N.Y.).

     The fact that a prisoner suffered a slight stroke after a jail superintendent and a jail physician decided not to take her to an outside doctor for treatment for her high blood pressure did not constitute deliberate indifference to a serious medical need, but instead only showed, at most, either negligence or a mere disagreement over the services provided. Knight v. Barlow, 1:07cv384, 2007 U.S. Dist. Lexis 73586 (E.D. Va.).

Medical Care: Dental

     Dental assistant, in allegedly failing to follow prison procedure and repeatedly refusing to add a prisoner's name to a sick call list, resulting in a 7-1/2 month delay in his access to a dentist for the removal of a fragment of a tooth previously extracted could constitute deliberate indifference. The court rejected the prisoner's claim concerning another, chipped, tooth. The dental assistant's action in giving the prisoner a choice between waiting for a filing or immediate extraction of the chipped tooth was not deliberate indifference. Finley v. Parker, No. 05-56531, 2007 U.S. App. Lexis 25662 (9th Cir.).

     When a prisoner was seen by a dentist on nine separate occasions over a 13 month period, there was no showing of deliberate indifference to a serious medical need, but instead, merely a showing that the prisoner had a different opinion than the dentist concerning the required treatment. The prisoner also failed to allege that he could not afford outside treatment because of indigence. Amarir v. Hill, No. 06-16195, 2007 U.S. App. Lexis 25651 (9th Cir.).

Prison and Jail Conditions: General

     Prisoner who claimed that he was housed in an unsanitary, dirty administrative segregation cell for seven days, failed to show that the sheriff was aware of the dirty condition of the cell when he was placed in it. Additionally, three or four days after he sent a letter to the sheriff complaining about it, his cell was cleaned after being inspected and photographed, and the sheriff toured the area of the prison where he was housed in order to inspect the cells. The prisoner's own version of events show that the sheriff took reasonable steps to respond to his complaint. Johnson v. Anderson, No. 07-10095, 2007 U.S. App. Lexis 26947 (5th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner claimed that he was denied two injections prescribed for treatment of syphilis. In the trial court, the case was dismissed based on the representation by correctional officials that the prisoner had only filed one grievance concerning medical treatment, but which did not raise the question of the injections. On appeal, the state located prison records showing that the prisoner had, in fact, filed another grievance concerning the failure to give him the injections, but argued that the prisoner did not complete the administrative process for that grievance. The appeals court ruled that the defendants were barred from asserting failure to exhaust available administrative remedies on that claim, since the late disclosure of the grievance on the injections did not allow the trial court to adequately address that issue. Cunningham v. Dept. of Correctional Services, No. 05-5072, 2007 U.S. App. Lexis 26608 (2nd Cir.).

Prison Litigation Reform Act: Mental Injuries

     Prisoner who claimed that he was subjected to an order to strip in a public hallway, a strip search, and a disciplinary proceeding, all as part of a campaign of harassment in retaliation for his exercise of his right of access to the courts could not recover compensatory damages when he failed to allege a physical injury as required under 42 U.S.C. Sec. 1997e(e). His vague claim on appeal that he suffered a wrist injury through unspecified events at some unspecified time was inadequate to alter the result. Further, the prisoner failed to show a constitutional violation as there were no facts showing an intent to retaliate for the exercise of his First Amendment rights. Samford v. Staples, No. 06-20717, 2007 U.S. App. Lexis 26851 (5th Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner was improperly denied the right to proceed with a federal civil rights lawsuit as a pauper on the basis that he had "three strikes" under 28 U.S.C. Sec. 1915(g) and his lawsuit did not allege that he was in "imminent danger" of physical harm. The appeals court noted, first, that all of the strikes were dismissals of lawsuits that had not yet been entered when he filed his immediate lawsuit, and that the inmate had appealed each of the dismissals and those appeals were not completed at the time he filed this lawsuit. Dismissal of a lawsuit by a trial court cannot count as a "strike" for purposes of the statute until appeal rights on that dismissal have been exhausted. Further, the question of whether or not a prisoner has "three strikes" for purposes of the statute must be determined at the time he files his lawsuit. Nicholas v. Corbett, No. 07-2011, 2007 U.S. App. Lexis 26184 (3rd Cir.).

Prisoner Assault: By Inmates

      Prison officials were not entitled to qualified immunity when there was evidence supporting the conclusion that they were aware of a substantial risk of serious harm to the plaintiff prisoner from his roommate, based on the prisoner's prior complaints that the roommate was "deranged" and had threatened him. They allegedly did not reasonably respond to that known risk, resulting in an assault. Young v. Selk, No. 06-3883, 2007 U.S. App. Lexis 27395 (8th Cir.).

     When an inmate being held in administrative segregation claimed that he had, on at least two occasions, told a prison official that members of his former gang had threatened to kill him if he were released into the general population, there was a genuine issue of fact as to whether it violated his Eighth Amendment rights to fail to grant his request that he either be transferred or placed in protective custody. The prisoner was stabbed in the back and chest with a shank within hours of his placement in the general population. Rodriguez v. McDonough, No. 05-14600, 2007 U.S. App. Lexis 26882 (11th Cir.).

Prisoner Discipline

     Disciplinary hearing during which a prisoner was found to have engaged in disruptive conduct, received money for the purpose of introducing contraband, and possessing a cell phone did not violate his due process rights. Despite the prisoner's claim that he was denied the right to call witnesses, he did call one witness and he failed to identify other witnesses that he was barred from calling. The hearing officer properly reviewed privately statements by other prisoners concerning a scheme to leave the prison camp and then return, due to their "sensitive nature," but the prisoner was provided with the factual asserts\ions in the documents. The weight of the evidence presented supported the disciplinary assertions. Redding v. Holt, No. 07-3397, 2007 U.S. App. Lexis 25464 (3rd Cir.).

     A disciplinary notice accusing a prisoner of threatening and choking a victim while on work release was inadequate in that it failed to identify the victim, name any witnesses, or specify the date or location of the alleged assault, so that it did not allow the prisoner to know what evidence would be needed to refute the charge. Additionally, no reasons were provided as to why these specific facts were not included. Prison officials were therefore not entitled to qualified immunity, and the plaintiff prisoner was entitled to summary judgment on his claim that he was denied due process, and that his work-release status was improperly lost as a result of the accusation. Dible v. Scholl, No. 07-1013, 2007 U.S. App. Lexis 25985 (8th Cir.).

Prisoner Suicide

     Mother of detainee who committed suicide in jail failed to show that the jailers knew or reasonably should have known of his suicidal tendencies or contributed in any way to his death by an unjustified delay in providing him with medical assistance. Estate of Justus v. County of Buchanan, No. 1:06CV00117, 2007 U.S. Dist. Lexis 75238 (W.D. Va.).

Religion

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

     A religiously-oriented rehabilitation program run by two non-profit organizations under a contract with the Iowa Department of Corrections violated the Establishment of Religion clause of the First Amendment by improperly using tax money to pay for what was characterized as a 24-hour-a-day, Christ-centered, biblically based program that promotes "personal transformation of prisoners through the power of the Gospel." Even though the government did not act for the purpose of advancing religion, the direct aid to the operators of the program was unconstitutional in that it funded proselytizing activity. Injunctive relief was appropriate, but the trial court abused its discretion in ordering repayment from the non-profit organizations for services previously rendered. Further funding of the program was properly barred. Ams. United for Separation of Church & State v. Prison Fellowship Ministries, Inc., No. 06-2741, 2007 U.S. App. Lexis 27928 (8th Cir.).

Search: Prisoners/Cells

     The Fourth Amendment prohibition on unreasonable searches does not apply to the search of a prisoner's cell. Court rejects Ohio prisoner's Fourth Amendment claim based on a search of his cell for property allegedly missing from the medical unit, where he worked, which was not found during the search. Reznickcheck v. North Central Correctional Institution, No. 9-07-22, 2007 Ohio App. Lexis 5621 (Ohio App. 3rd Dist.).

Segregation: Administrative

     Appeals court rejects prisoner's claim that he was subjected to unlawful retaliation when an officer placed him in administrative segregation, since he failed to show his placement there did not promote a legitimate interest in maintaining security and order. The prisoner also failed to show that he suffered a serious deprivation of his rights when officers allegedly threatened him, subjected him to verbal abuse, and took away his lunch on one occasion. Wilson v. Pima County Jail, No. 05-16081, 2007 U.S. App. Lexis 27774, 2007 U.S. App. Lexis 27774 (9th Cir.).

Smoking

     Prisoner who claimed that he was exposed to environmental tobacco smoke (ETS) in violation of his constitutional rights failed to allege facts sufficient to create a triable issue as to whether the levels of ETS were unreasonable, or whether the defendants knowingly disregarded the risk of harm to him from the exposure. Beasley v. Arizona Dept. of Corrections, No. 05-17079, 2007 U.S. App. Lexis 27771 (9th Cir.).

     A Georgia prisoner failed to present sufficient evidence from which a jury could find that he was deliberately exposed to an unreasonable level of environmental tobacco smoke (ETS). He also failed to refute the diagnosis, by a prison doctor, that he did not suffer from a serious respiratory or cardiovascular medical problem that would result in him being at particular risk from ETS. Giddens v. Calhoun State Prison, No. 07-11988, 2007 U.S. App. Lexis 25248 (11th Cir.).

     An Illinois prisoner failed to show that his rights were violated in connection with his exposure to second-hand tobacco smoke. The prisoner suffered from asthma, which allegedly worsened during his incarceration. In granting summary judgment to prison officials, the court found that the prisoner had been granted access to doctors, an asthma clinic, and his prescribed medications, and that he was moved to a non-smoking cell when he requested it, and to the medical wing when his prison doctor recommended it. Under these circumstances, prison officials did not act with deliberate indifference. Even if an Eighth Amendment violation were to be found, the defendant officials would be entitled to qualified immunity because they would not have known, at the time, that they were violating his rights. Lee v. Young, No. 02-cv-281, 2007 U.S. Dist. Lexis 74259 (S.D. Ill.).

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     Disability Benefits: Helping Inmates Obtain Federal Disability Benefits By Catherine H. Conly (December 2007) Helping Inmates Obtain Federal Disability Benefits looks at three programs—in the State of Texas, the city of Philadelphia, and the State of New York—that assist inmates in preparing and filing prerelease applications for Federal disability benefits so they can continue to receive treatment without interruption after they are released from prison or jail. The results of the research indicate that helping offenders obtain Federal benefits not only can increase releasees' access to care, but also can reduce the financial burden on State and local governments that fund indigent health care systems. National Institute of Justice (NIJ), U.S. Department of Justice.

     Litigation Documents: Agreed order in lawsuit by U.S. government concerning conditions in Dallas County, Texas jail, U.S. District Court, Northern District of Texas (11/06/07). See also U.S. v. Dallas County, Civil No. 307 CV 1559 (Complaint, 9/11/07).

     Report: Congressional Research Service: Federal Prison Industries (updated 2007).

     Report: U.S. Department of Justice, Civil Rights Division, Report on Investigation of the King County Correctional Facility, Seattle, Washington pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Sec. 1997. November 13, 2007.

     Report: U.S. Department of Justice, Office of the Inspector General, Semi-Annual Report to Congress, April 1, 2007-September 30, 2007. Includes sections on investigations into allegations of misconduct by personnel of the U.S. Marshals Service and Federal Bureau of Prisons. (December 3, 2007). [.html format].

     Statistics: Pretrial Release of Felony Defendants in State Courts. Presents findings on the pretrial release phase of the criminal justice process using data collected from a representative sample of felony cases filed in the 75 largest U.S. counties in May during even-numbered years from 1990 to 2004. It includes trends on pretrial release rates and the types of release used. Pretrial release rates are compared by arrest offense, demographic characteristics, and criminal history. Characteristics of released and detained defendants are also presented. Rates of pretrial misconduct including failure to appear and rearrest are presented by type of release, demographic characteristics, and criminal history. Highlights include the following: About 3 in 5 felony defendants in the 75 largest counties were released prior to the disposition of their case. Surety bond surpassed release on recognizance in 1998 as the most common type of pretrial release. Defendants on financial release were more likely to make all scheduled court appearances. 11/07 NCJ 214994 Acrobat file (201K) | ASCII file (37K) | Spreadsheets (zip format 23K)

     Statistics: Prisoners in 2006. Reports the number of persons in State and Federal prisons at yearend, compares the increase in the prison population during 2006 with the previous year, and presents prison growth rates since 2000. The report also provides the number of male and female prisoners on December 31, 2006, and the rates of incarceration by jurisdiction. It includes the number of prisoners held at yearend in the U.S. Territories and Commonwealths, in military facilities, and in facilities operated by or for the U.S. Immigration and Customs Enforcement. Data are presented on prison capacities and the use of local jails and privately operated prisons. Estimates are provided on the number of sentenced prisoners by age, gender, race, and Hispanic origin, and type of offense. Highlights include the following: During 2006 the number of women in prison increased by 4.5%, reaching 112,498 prisoners. About 96% of prisoners under State or Federal jurisdiction (or 1,502,179 prisoners) were sentenced to more than 1 year in prison. A total of 113,791 State and Federal prisoners were held in privately operated facilities at yearend 2006. 12/07 NCJ 219416  Press release | Acrobat file (268K) | ASCII file (20K) | Spreadsheets (zip format 22K)

     Statistics: Probation and Parole in the United States, 2006. Presents the number of persons on probation and parole at yearend 2006, by State, and compares the national totals to counts for yearend 1995 and 2000 through 2005. The report provides State-level probation and parole supervision rates at yearend 2006 and the percentage change in each population during the year. It presents probation and parole entries and exits, by State, and it provides national and State-level data on parole revocations. The Bulletin also includes a national description of the race, gender, and offense composition of these populations. Highlights include the following: The number of adult men and women in the United States who were being supervised on probation or parole at the end of 2006 reached 5,035,225. In 2006 the combined probation and parole populations grew by 1.8% or 87,852 persons. More than 8 in 10 offenders under community supervision were on probation at yearend 2006. During 2006 the probation population grew by 1.7% which represented an increase of 70,266 probationers. At yearend 2006 a total of 798,202 adult men and women were on parole or mandatory conditional release following a prison term. The population grew by 17,586 parolees during the year or 2.3%. 12/07 NCJ 220218 Press release | Acrobat file (237K) | ASCII file (32K) | Spreadsheets (zip format 37K)

Reference:

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

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