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Access to Courts/Legal Info

     Prisoner could not pursue a claim for alleged inadequate access to the prison law library when he failed to identify what arguable and non-frivolous legal claims he was purportedly prevented from pursuing as a result. Falciglia v. Erie County Prison, No. 07-4300, 2008 U.S. App. Lexis 11336 (Unpub. 3rd Cir.).

     Inmate failed to show that the seizure of his legal materials deprived him of access to the courts since he did not allege that he suffered any actual injury. While he claimed that he could not research a meritorious appeal, the prisoner had already filed both his appeal notice and filed his appeal brief with the court before the materials were seized. The court also ruled that the Fourth Amendment prohibition on unreasonable searches did not apply to a search of his prison cell, and that the seizure of his legal materials did not jeopardize his health or safety in violation of the Eighth Amendment. McNeil-El v. Diguglielmo, No. 07-2763, 2008 U.S. App. Lexis 6978 (Unpub. 3rd Cir.).

     Prisoner was not entitled to an appointed lawyer in order to pursue his excessive force claim. The court ruled that the prisoner, either acting on his own or with the help of "jailhouse lawyers," had sufficiently presented his claim of excessive force, and that there was nothing unusually complex about his case. He failed to show that there were "exceptional circumstances" requiring the appointment of counsel under 28 U.S.C. Sec. 1915(e)(1). Daughtery v. Wilson, No. 08cv0408, 2008 U.S. Dist. Lexis 38538 (S.D. Cal.).

     An immigration detainee failed to show that he was unconstitutionally denied access to the law library to weigh and place postage to a brief due in his immigration appeal on a given date. The detainee had three weeks' notice of the deadline for submitting his brief, so that his failure to prepare his brief earlier, or to use his allotted library time to do so did not mean that refusing to allow him additional unscheduled access violated his rights. Adegbuji v. Green, No. 07-1398, 2008 U.S. App. Lexis 10740 (Unpub. 3rd Cir.).

Defenses: Statute of Limitations

     A prisoner asserting claims against various correctional employees for alleged failure to protect him from an assault by another inmate was granted leave to amend his complaint to add a corrections officer as an additional defendant. The officer was not identified by other defendants until shortly before discovery closed in the case. Because this officer was in a supervisory position, he allegedly should have been aware that he would have been named in the lawsuit if the prisoner had known his name, so that expiration of the statute of limitations did not bar his addition as a defendant. Ward v. Taylor, No. 04-1391, 2008 U.S. Dist. Lexis 40238 (D. Del.).

Disability Discrimination: Employees

     Applicant for job as a corrections officer, who was born without a right hand, had presented evidence that she could perform the essential functions of the job, and the employer, in rejecting her, only gave "generalized, conclusory" statements to the contrary, and failed to show why proposed accommodations were unreasonable or that the employee's presence on the job would create a danger to herself or to others. The employer's motion for summary judgment in her disability discrimination lawsuit was therefore denied, despite a doctor's finding that she was unfit because of a lack of manual dexterity in both hands. The employer's job requirements stated that such manual dexterity was needed to restrain unruly prisoners, to provide cardiopulmonary resuscitation, and to handle firearms. Taylor v. Hampton Roads Regional Jail Authority, No. 2:07cv294, 2008 U.S. Dist. Lexis 37508 (E.D. Va.).

False Imprisonment

     An inmate held after the expiration of his sentence in an Ohio correctional facility failed to show that he was entitled to damages for lost wages during his false imprisonment when his own statements showed that, when he was not incarcerated, he performed "odd jobs" for cash. He also failed to show that he was entitled to damages for emotional distress, but was awarded a certain amount of damages, including his filing fee. Thomson v. Dept. of Rehabilitation and Corrections, No. 2006-02617, 2008 Ohio Misc. Lexis 56 (Ohio Ct. of Claims).

Federal Tort Claims Act

     Federal prisoner could not pursue claims against Bureau of Prisons personnel for confiscation of his property, items of which they allegedly either failed to return, destroyed, or gave to another prisoner. An exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 for damage to property detained by law enforcement officers applies to federal correctional officers, as recently determined by the U.S. Supreme Court in Ali v. Fed. Bureau of Prisons, No. 06-9130, 128 S. Ct. 831 (2008), so that there was no jurisdiction to hear his claims. That provision, found in 28 U.S.C. Sec. 2680(c), is an exception to the FTCA's waiver of sovereign immunity. Gordon v. U.S.A., No. 06-4961, 2008 U.S. App. Lexis 10850 (Unpub. 3rd Cir.).

First Amendment

     Removal of a prisoner from his misconduct hearing by correctional officers and prison nurses did not violate his First Amendment rights. His statement at the proceeding that the hearing officer was a "foul and corrupted bitch" was not protected by the First Amendment and constituted "insolence" in violation of prison regulations, questioning the hearing officer's authority and the proceeding's integrity. The court also found that the amount of force used was minimal and reasonable under the circumstances. The prisoner also failed to show deliberate indifference to his medical needs for his minor cuts and lacerations. Lockett v. Suardini, No. 06-2392, 2008 U.S. App. Lexis 10359 (6th Cir.).

Inmate Funds

     Federal Bureau of Prisons (BOP) did not act unlawfully in collecting money from prisoner to pay for court ordered restitution. The prisoner's argument that the restitution was only due after he would be released from prison was incorrect, and the court's order gave the BOP authority to deduct sums from his account to start to pay the restitution under the terms of its rules and regulations. The prisoner's challenge to the BOP's Inmate Financial Responsibility Program (IFRP), under which a schedule for the restitution payments had been established, was meritless. West v. Zenk, No. 07-13349, 2008 U.S. App. Lexis 11229 (Unpub. 11th Cir.).

Medical Care

     A prisoner's mere disagreement with the decision of prison medical staff to pursue a non-surgical course of treatment for his toe injury was insufficient to show a violation of his constitutional rights. Davila-Bajana v. Sherman, No. 07-4650, 2008 U.S. App. Lexis 10847 (Unpub. 3rd Cir.).

     Prisoner could not pursue his lawsuit over an alleged wrongful failure to authorize back surgery for him when he had previously already pursued that claim in two prior lawsuits, and courts had reached the merits of his claim, ruling against him. Claims against a prison health services nursing coordinator failed because she was not personally involved in his medical treatment. Perez v. Zunker, No. 07-3202, 2008 U.S. App. Lexis 11438 (Unpub. 7th Cir.).

     Prisoner failed to present expert medical testimony or any other evidence to support his claim that he either suffered multiple strokes or that such strokes occurred as a result of a doctor's alleged action in injecting him with an "enhancement" fluid which was not approved for human testing. He also failed to show that the doctor had the subjective intention to cause him unneeded pain. The court also found that the serum in question was not experimental, and that it had been approved for human use. Stewart v. Wilkinson, No. 2:03-cv-0687, 2008 U.S. Dist. Lexis 35715 (S.D. Ohio).

     A prisoner's claim that his fractured arm was improperly set amounted to, at most, a claim for medical malpractice or negligence, and was insufficient to state a claim for violation of his constitutional rights. Baez v. Kahanowicz, No. 07-1118, 2008 U.S. App. Lexis 10629 (Unpub. 2nd Cir.).

     When prison doctors believed that an inmate's pre-incarceration levels of medication were harming him, they did not violate his Eighth Amendment rights by failing to continue to prescribe a high-dose narcotic pain medication which had been provided to him before his incarceration to treat an "intractable-pain disorder" he suffered from as the result of a crushed forearm. The doctors performed various tests and tried a number of methods and medications to address his pain, and did not act with deliberate indifference to his serious medical needs. The fact that the prisoner disagreed with their conclusions and treatment decisions was insufficient for a federal civil rights claim. Steele v. Weber, No. 07-1257, 2008 U.S. App. Lexis 10869 (8th Cir.).

     Prisoner failed to show that the former administrator of the prison in which he was incarcerated acted with deliberate indifference to his serious medical needs, in the absence of any proof that the defendant had reason to belief that medical providers available at the facility were not providing him with treatment. Garcia v. Achebe, No. 07-4087, 2008 U.S. App. Lexis 7103 (Unpub. 3rd Cir.).

     Even if a prisoner's death was the result of a methicillin-resistant staphylococcus aureus (MRSA) infection caused by a wound from a spider bite on his thigh, the plaintiff failed to provide proof that this infection and his death was caused by any breach of the standard of care for such infections. Additionally, at the time of the incident, the condition of community-acquired MRSA was not "widely acknowledged" in the medical field. Zemmelman v. Ohio Dept. of Rehabilitation and Correction, No. 2005-05680, 2008 Ohio Misc. Lexis 59 (Ohio Ct. of Claims).

Medical Care: Dental

     Correctional institution was entitled to summary judgment on a prisoner's lawsuit for inadequate dental care when the plaintiff failed to respond to an affidavit submitted by a dentist stating that the dental care provided met acceptable standards. Varner v. Grafton Correctional Institution, No. 2007-02432, 2008 Ohio Misc. Lexis 57 (Ohio Ct. of Claims).

Medical Records

     A New York prisoner failed to show that a nurse administrator improperly disclosed his confidential medical information without his consent and in retaliation for his past grievance concerning the alleged failure to provide him with his prescribed medication. His past grievance had been resolved in his favor, but an investigation of the grievance resulted in the writing of a report that made an indirect reference to his medical condition. That reference, the court found, did not violate his rights, because the prisoner himself placed his medical condition at issue with his grievance. Additionally, the prisoner failed to show that information about his medical condition had been improperly distributed to persons outside of the grievance process. Tatta v. State of New York, No. 503121, 2008 N.Y. App. Div. Lexis 4372 (A.D. 3rd Dept.).

Overcrowding

     The Governor of California did not exceed his authority in declaring a state of emergency in relation to prison overcrowding, and then entering into contracts to house California inmates in out-of-state private prisons. Under state law, he could proclaim such states of emergency when there is "extreme peril" in an area exclusively under the control of the state government. Until additional state prisons were constructed, there was an urgent need for services to provide safety from the risks created by overcrowding. The court therefore rejected a challenge to the Governor's actions filed by a prison guards union and others. California Correctional Peace Officers' Association v. Schwarzenegger, No. C055327, 2008 Cal. App. Lexis 832 (3rd Dist.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner is not entitled to a jury trial under the Seventh Amendment to the U.S. Constitution on any genuine factual issue concerning a defense of failing to exhaust available administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997(e). In the prisoner's lawsuit claiming that an officer had used excessive force against him, the defendants claimed that he failed to exhaust his administrative remedies because he hadn't filed a timely grievance with prison authorities. The prisoner claimed that he had been unable to exhaust such remedies since he was left-handed and he had a broken left arm, so that he could not prepare the grievance himself. The appeals court held that he was not entitled to a jury trial right to that issue, overturning a trial court decision to the contrary. Pavey v. Conley, No. 07-1426, 2008 U.S. App. Lexis 11963 (7th Cir.). Editor's Note: The only other federal appeals court to address the issue also rejected the argument that there was a right to a jury trial when there are genuine issues of material fact concerning a prisoner's compliance with the duty to exhaust available administrative remedies before filing suit. Wyatt v. Terhune, #00-16568, 315 F.3d 1108 (9th Cir. 2003).

Prisoner Assault: By Officers

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

     Correctional officers were not entitled to qualified immunity in a lawsuit claiming that three of them beat a detainee at a juvenile detention facility with nightsticks about his head and face after he refused orders to remove his clothes. A fourth officer allegedly watched and failed to intervene. The beating was allegedly severe enough that the detainee required eleven stitches and a doctor at the hospital believed that he might have bled to death without medical attention. The court found that there was evidence from which a reasonable fact finder could find that the force employed was used in a malicious and sadistic manner, rather than in a good faith effort to maintain or restore discipline. McReynolds v. Ala. Dept. of Youth Services, No. 2:04-cv-850, 2008 U.S. Dist. Lexis 35070 (M.D. Ala.).

     Summary judgment should not have been entered against a prisoner on his excessive force claims since there were genuine factual disputes as to whether officers used force against him, including pepper spray, after he had begun to comply with their orders to him. Additionally, he allegedly was not warned before the use of the pepper spray, was not permitted to clean up after its use, and was then handcuffed to a bench and denied bathroom breaks, food, and water during that restraint. Walker v. Bowersox, No. 06-3118, 2008 U.S. App. Lexis 11507 (8th Cir.).

Prisoner Discipline

     No evidence in the record supported disciplinary charges that a prisoner ever charged or received a fee or favors for his services or that he had acted as a "writ writer" for other prisoners. Additionally, the prisoner's request that the officer who had filed the charges against him be called as a witness at the disciplinary hearing was improperly denied without any reason related to institutional safety and security. The alleged conduct of the prisoner, which involved him paying money to another prisoner in connection with a letter to a bank, rather than him receiving funds, did not violate the regulation under which he had been charged. The court therefore ordered the defendants to either hold a new disciplinary hearing or reinstate the loss of statutory good time imposed as a sanction for the disciplinary conviction. Disciplinary convictions related to another letter, which made threats against the prison staff, however, were upheld. Jones v. McDaniel, No. 3:04-CV-0524, 2008 U.S. Dist. Lexis 38816 (D. Nev.).

Prisoner Suicide

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

     When a detainee responded negatively, during jail intake, to questions about whether he had ever attempted suicide or was suicidal, but affirmatively to a question about whether he recently suffered the loss of a loved one, a reasonable jury could not conclude that the risk that he would commit suicide was obvious. Accordingly, even if suicide prevention training had not been provided for jail personnel, the county was not liable for failure to prevent the detainee's suicide seven hours later. Whitt v. Stephens County, No. 07-10729, 2008 U.S. App. Lexis 10881 (5th Cir.).

Privacy

     A prisoner could pursue his privacy claim based on a medical provider's alleged policy or custom of making him receive his insulin shots in the waiting room of the prison medical department. The prisoner claimed that this damaged his reputation and that other inmates shunned him on the assumption that he had either Hepatitis C or was HIV-positive. The prisoner could not, however, seek compensatory damages for his emotional distress when he did not suffer any physical injuries, on the basis of the provisions of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(c). Betrand v. Department of Corrections, No. 4:CV-07-859, 2008 U.S. Dist. Lexis 28599 (M.D. Pa.).

     Summary judgment was not appropriate for claims under the Privacy Act, 5 U.S.C. Sec. 552a against the Bureau of Prisons (BOP) and the Department of Homeland Security's Immigration and Customs Enforcement (ICE) arising out of their alleged maintaining of inaccurate records concerning a federal prisoner's citizenship. The prisoner was a U.S. citizen and claimed that these records showed his nationality as St. Lucia, resulting in an adverse impact on his custody and his classification as an alien subject to deportation. Genuine issues existed as to whether the defendants' delay in correcting their records was inexcusable. Claims for injunctive and declaratory relief, however, were moot because the inaccurate records had been corrected, so only the claim for damages remained. Baptiste v. Bureau of Prisons, No. 07-0959, 2008 U.S. Dist. Lexis 39479 (D.D.C.).

Racial Discrimination

     A black prisoner asserted an arguable race discrimination claim when he was denied a request to be reunited with his previous white cellmate after being released from segregated confinement. The trial court acted erroneously in dismissing this claim when the prisoner claimed, and prison officials admitted, that race was a factor in the denial of the prisoner's request. Brand v. Motley, No. 06-6362, 2008 U.S. App. Lexis 11082 (6th Cir.).

Religion

     Muslim prisoner could pursue his claim that correctional officers violated his right to exercise his religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Sec. 2000cc et seq. by allegedly throwing away his Ramadan food during a search of his cell. Harnett v. Barr, No. 9:06-CV-1044, 2008 U.S. Dist. Lexis 19236 (N.D.N.Y.).

     A Muslim prisoner's claim that correctional employees subjected him to disrespect, humiliation, and embarrassment because of his religious beliefs did not state a claim for violation of his constitutional rights when the alleged harassment was only verbal harassment and derogatory comments about his religion, and was not accompanied by any physical acts. The prisoner's claim that one of the prison staff members may have "tugged" on his beard was insufficient to state a claim for excessive use of force. Aponte v. Karnes, Civil No. 4:CV-08-183, 2008 U.S. Dist. Lexis 9675 (M.D. Pa.).

     While asserted limitations of space and staff and security concerns were valid penological reasons for not permitting Odinist prisoners to gather for services without an outside volunteer, an Odinist prisoner did present evidence that the policy was applied disparately to Odinists as opposed to prisoners of other religions. Barring Odinists from possessing "runestones," however, was justified by security concerns since they are similar to certain gambling-related objects, and no constitutional violation was found. The court found, however, that there were no penological interests that supported alleged limits on access to "rune literature" in the prison library, so that the trial court, on remand, had to examine whether that limitation violated the prisoner's constitutional rights. The court also held that, as to a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. §§ 2000cc-2000cc-5 concerning the restriction on possession of runestones, there should be further proceedings as to whether the overall runestones policy was "narrowly tailored" as required by the statute. Mayfield v. Texas Dept. of Criminal Justice, No. 06-50490, 2008 U.S. App. Lexis 11600 (5th Cir.).

     A prisoner failed to present evidence to dispute prison officials' argument that requiring him to place his name of conviction on outgoing mail, rather than his current legal name, which he had changed for religious reasons, was a policy that furthered prison order. Barring him from instead using his legal name did not violate his First Amendment right to practice his religion. Ghashiyah v. Litscher, No. 07-3670, 2008 U.S. App. Lexis 10729 (Unpub. 7th Cir.).

Search and Seizure: Prisoner/Cell

     While severe or repetitive sexual abuse by a correctional officer could be serious enough to violate the Eighth Amendment, a prisoner's claim that he was subject to excessive and intrusive body searches, including the handling of his penis, on three occasions, did not amount to such a violation. These, the court found, were minor, isolated incidents, and that, whatever the officers' motivations for these actions, the searches were conducted in a private location, and in a reasonable manner without humiliation, physical injury, or "undue" intrusion, and were justified by a purpose of locating contraband. Williams v. Fitch, No. 04-CV-6440, 2008 U.S. Dist. Lexis 36481 (W.D.N.Y.).

Smoking

     A prisoner's allegations that he was diagnosed with emphysema and subsequently suffered chest pains because of smoking by his cellmate--and that prison officials knew of this problem, but did nothing to remedy it, were sufficient to state a claim for both present and future injury based on violation of his Eighth Amendment rights. The plaintiff prisoner also adequately presented a claim that prison officials failed to protect him from another cellmate who attacked him after having previously threatened to kill him. Glick v. Walker, No. 07-2929, 2008 U.S. App. Lexis 7716 (Unpub. 7th Cir.).

     A former federal prisoner failed to show that his exposure to secondhand tobacco smoke in prison endangered his future health. Brown v. U.S. Justice Department, No. 07-3995, 2008 U.S. App. Lexis 6970 (Unpub. 3rd Cir.).

Work/Education/Recreation Programs

     New Jersey prison officials complied with the requirements of state regulations by providing recreation time to the plaintiff inmate which was consistent with safety and security concerns, the physical facilities available, custodial considerations, and the general operation of the facility. Rejecting the prisoner's civil rights claim that his Eighth Amendment rights were violated when he allegedly received only two hours of recreation time a month for exercise and fresh air, the court noted that the prisoner was serving time in administrative segregation for a disciplinary infraction during the period in question, and that prison officials showed that they made efforts to make changes in schedules to increase the outdoor recreation time provided to prisoners. The defendants' actions did not amount to deliberate indifference. Barkley v. Ricci, No. 07-2760, 2008 U.S. Dist. Lexis 37563 (D.N.J.).

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     Prison Rape: National Prison Rape Elimination Commission Draft Standards. The National Prison Rape Elimination Commission has released its draft standards for Adult Prisons, Jails, and supplemental standards for Facilities Holding Immigration Detainees. They are now available for public comment for a period of 60 days: May 5, 2008 through July 7, 2008. Another way to access the standards is to visit the National Prison Rape Elimination Commission website at http://www.nprec.us and select “standards and comments” on the left column.

     Prison Rape: "The Prison Rape Elimination Act: Implementation and Unresolved Issues," by Brenda V Smith, Criminal Law Brief American University, Washington College of Law, Washington, DC; 10-18 (Spring 2008)

     Prison Rape: "Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors’ Perceptions," by Brenda V Smith and Jaime Yarussi, Criminal Law Brief, American University, Washington College of Law, Washington, DC; 19-28 (Spring 2008).

     Prison Rape: "The Violence Against Women Act: Denying Needed Resources Based on Criminal History," by Jaime Yarussi, Criminal Law Brief of American University, Washington College of Law, Washington, DC; 29-36 (Spring 2008).

     Statistics: "Jail Inmates at Midyear 2007." Presents data on numbers of jails and jail inmates at midyear 2007 and analyzes patterns of growth from 2000 through 2007. This report includes data on rated capacity of jails, percent of capacity occupied, and capacity added. It provides estimates of admissions to jails and details the volume of movement among the jail population. This Bulletin includes total numbers for jail inmates by gender, race, and Hispanic origin as well as counts of jail inmates by conviction and confinement status. Standard errors for jail estimates are only provided in the appendix tables of the electronic version of this report. Highlights include the following: The total rated capacity of local jails at midyear 2007 reached 813,502 beds, up from an estimated 677,787 beds at midyear 2000. At midyear 2007, jail jurisdictions (173) with an average daily jail population of 1,000 or more inmates accounted for about 6% of all jail jurisdictions and about 52% of the jail inmate population. At midyear 2007, the 50 largest jail jurisdictions held about 29% (or 227,901 inmates) of the nation’s jail population. NCJ 221945 (June 2008). Press release | Acrobat file (121K) | ASCII file (17K) | Spreadsheets (zip format 19K)

     Statistics: "Prison Inmates at Midyear 2007." Presents data on prisoners under jurisdiction of federal or state correctional authorities on June 30, 2007, collected from the National Prisoner Statistics series. This annual report describes changes in the prison population during the first six months of 2007, compared to changes from yearend 2000 through yearend 2006. It details the incarceration rates for prisoners sentenced to more than 1 year by jurisdiction, the number of incarcerated males and females, and the number of prisoners admitted into and released from federal and state jurisdiction. The bulletin also presents data on the total number of inmates held in custody in prisons or jails on June 30, 2007. It provides estimates of the custody population by gender, race, and age. The custody incarceration rates for these groups are also included. Counts of the number of non-citizens and individuals under age 18 held in custody are included. See also Jail Inmates at Midyear 2007. Highlights include the following: Between January and June 2007, the prison population increased by 1.6% (or 24,919 prisoners), compared to a 2% increase during the first six months of 2006. The number of prisoners sentenced to more than 1 year increased 1.7% between December 31, 2006 and June 30, 2007, or at about the same rate as the total number of prisoners under jurisdiction. Between 2000 and 2007, the number of inmates in custody in prisons or jails increased by 367,200. Male inmates (315,100) accounted for 86% of the increase to the custody population. Female inmates (52,100) made up the remaining 14%. NCJ 221944 (June 2008). Press release | Acrobat file (456K) | ASCII file (31K) | 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.