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Abortion

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

     Missouri Department of Corrections' policy of not providing transportation for inmates' elective, non-therapeutic abortion is unreasonable under the due process clause of the Fourteenth Amendment. The court also rules, however, that elective non-therapeutic abortions are not a serious medical need, and that a prison's refusal to provide such an abortion is not deliberate indifference for purposes of an Eighth Amendment claim. Roe v. Crawford, No. 06-3108 2008 U.S. App. Lexis 1185 (8th Cir. 2008).     

Access to Courts

     Prisoner's lawsuit claiming that he was denied access to the courts because he was denied access to legal papers during his transfer to another facility was properly dismissed because the plaintiff failed to show that he suffered a particular injury from the unavailability of those papers. McKinney v. Rianda, No. 06-55196, 2007 U.S. App. Lexis 30253 (9th Cir.).

     While a prisoner had a well-established right to have properly marked attorney mail opened only in his presence, the plaintiff prisoner failed to show that the alleged opening of such privileged mail outside of his presence had caused him any actual injury or compromised his cases. He failed to show specifically how any legal matters were damaged. The actual injury requirement, however, only applied to his access to courts claims, and did not apply to his First Amendment free speech claims, so further proceedings were warranted on the free speech claims. Al-Amin v. Smith, No. 06-15248, 2008 U.S. App. Lexis 180 (11th Cir.).

     Prisoner's claim that he was denied meaningful access to the courts because a prison did not provide him with either legal research materials in Spanish or another way to research his claims was properly rejected because his underlying claim, that he had been subjected to ineffective assistance of counsel in his criminal case was frivolous. Angulo v. Fisher, No. 07-12203, 2008 U.S. App. Lexis 789 (11th Cir.).  

     Inmate failed to show that his habeas corpus petition had been dismissed because of a correctional facility's deprivation of his right of access to the courts, resulting in the late filing of a brief in support of the petition. The judge did not dismiss the petition because of the late filing of the brief, but rather because it was determined that it was completely without merit. Laufgas v. Speziale, No. 06-5062, 2008 U.S. App. Lexis 2514 (3rd Cir.).

AIDS Related

     Court rejects HIV-positive detainee's claims that his conditions of confinement violated his rights and that the denial of his requests to be transferred from an old to a new building in the facility constituted deliberate indifference to those conditions. While the detainee claimed that his cell in an older building was hot, had a foul odor, and had bugs and paint chips, a number of reasons were set forth for the denial of the transfer request, including his failure to participate in sex-offender treatment, his HIV-positive status, and his past sexual interactions with other prisoners. The court ruled that the transfer requests were properly denied, and also that the conditions of the detainee's confinement could not reasonably be found to be serious enough to establish an Eighth Amendment violation. Sain v. Wood, No. 06-3919, 2008 U.S. App. Lexis 330 (7th Cir.).

Diet

     A prison's alleged failure to provide two hot meals a day did not violate a prisoner's constitutional rights. While there is a right to a nutritionally adequate diet, there is no constitutional right to hot meals. Laufgas v. Speziale, No. 06-5062, 2008 U.S. App. Lexis 2514 (3rd Cir.).

Disability Discrimination: Prisoners

     Sex offender's objection to the application of a mental health category to him without "due process of law" rejected, as no violation of any constitutionally protected liberty interest was involved, since the categorization did not concern a hospital placement. Classification as a sexual offender was justified by his past convictions of three counts of second-degree criminal sexual conduct and one count of first-degree criminal sexual conduct. Disability discrimination claims under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 were rejected because the definition of "disability" in those statutes specifically excludes "sexual behavior disorders." Rice v. Mich. Dept. of Corrections, No. 1:07-CV-578, 2007 U.S. Dist. Lexis 83792 (W.D. Mich).

DNA 

     Further proceedings were ordered on a Maryland prisoner's federal civil rights lawsuit complaining that a state trooper and a captain involuntarily took a DNA sample from him pursuant to a Maryland statute. The Maryland statute was different from a Virginia statute relied on by the trial court rejecting the prisoner's claims, since the opinions upholding the Virginia statute did not discuss the use of force to obtain a sample, but concerned punishments provided for failure to provide a sample. On remand, the court was instructed to examine the question of what kind of force the defendants would have used to obtain the DNA sample if the prisoner had failed to provide one after they threatened the use of force. Rendelman v. Scott, No. 07-7108, 2008 U.S. App. Lexis 1229 (4th Cir.).

Drugs and Drug Screening

     Claim that the lack of a county correctional policy concerning drug overdoses caused a detainee's death in custody from a drug overdose was properly rejected. The evidence showed, in fact, that the facility's staff violated a written policy in responding to the detainee's medical complaints by failing to call for emergency medical care after he was found to have a heart rate above 100 as well as chest pain. Additionally, the detainee's estate failed to offer any evidence of how alleged inadequate medical training rendered staff members unable to adequately respond to the situation. Powers v. County of Lorain, Ohio, No. 06-4515, 2008 U.S. App. Lexis 1129 (6th Cir.).

First Amendment

     Federal appeals court overturns trial court decision upholding federal Bureau of Prisons policy preventing death row inmates from engaging in face-to-face interviews with members of the media or from discussing other inmates with the media. The appeals court found that there were genuine material facts in dispute as to whether the policy was based on security concerns or merely was a pretext for preventing death row inmates from expressing their views to the public. Also at issue was whether there was a legitimate reason for treating death row inmates different from other inmates. Hammer v. Ashcroft, No. 06-1750, 2008 U.S. App. Lexis 808 (7th Cir.).

Inmate Funds

     Federal Bureau of Prison's use of the Inmate Financial Responsibility Program (IFRP) to increase the quarterly payments that a prisoner was required to make for special assessments and restitution stemming from his conviction did not violate his constitutional rights. The BOP's setting of an individual payment schedule for prisoners for court-ordered restitution did not violate due process. The BOP's use of inducements or withholding of benefits when a prisoner refused to participate in the IFRP did not alter the result. Davis v. Wiley, No. 07-1303, 2008 U.S. App. Lexis 42 (10th Cir.).

Inmate Property

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

     A federal prisoner transferred from a facility in Atlanta, Georgia to one in Kentucky allegedly noticed that a number of items were missing from his property, which the federal Bureau of Prisons had shipped to his new facility. He filed a lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, seeking recovery of damages. The property involved included items of religious and nostalgic significance, including two copies of the Qur'an, a prayer rug, and religious magazines, with an estimated total value of $177. The U.S. Supreme Court ruled that an exception to the FTCA's waiver of sovereign immunity for actions of federal employees, which bars liability arising from the detention of any property "by any officer of customs or excise or any other law enforcement officer," 28 U.S.C. Sec. 2680(c), applies to all law enforcement officers, including federal correctional officers. The Supreme Court therefore upheld the dismissal of the prisoner's lawsuit. Ali v. Fed. Bureau of Prisons, No. 06-9130, 2008 U.S. Lexis 1212.

Medical Care

     Prisoner failed to show that correctional officials acted with deliberate indifference to his serious medical needs by withholding a pair of mail ordered sneakers from him, which he wanted to use to treat his foot pain. The prisoner did not claim that they prevented him from obtaining different sneakers, which complied with their security concerns. Flemings v. Ryan, No. 06-56630, 2007 U.S. App. Lexis 29055 (9th Cir.).

     A prisoner's lawsuit concerning allegedly inadequate medical care provided to him for an injury he suffered during a slip and fall on an ice-covered sidewalk boiled down to a disagreement with the level of care he received, which did not amount to an Eighth Amendment violation. Martinez v. Dretke, No. 07-10434, 2008 U.S. App. Lexis 1467 (5th Cir.).

     Detainee did not show that he was provided with constitutionally inadequate medical care for his seizure disorder, his anxiety and depression, or his infected tooth. Medical personnel gave him a prescription for the seizure medication he preferred to take, and gave him a choice between having his family obtain that medication for him, or else having the facility provide him with an different seizure drug which the facility would pay for. The medical personnel also provided him with two medications for his anxiety and depression, and provided him with the opportunity to attend therapy sessions. Antibiotics were also provided to the detainee, as well as pain medication, during a two-month period he waited to have his infected tooth extracted. Blanchard v. White County Detention Center Staff, No. 07-12313, 2008 U.S. App. Lexis 1612 (11th Cir.).

     An inmate suffering from an eye problem, a cataract, was monitored by doctors, and received eye surgery when it was decided that it was medically necessary. There was no showing that a three-month wait for an eye doctor appointment resulted in any permanent damage or additional harm. The inmate's claims against the Governor of Hawaii were also rejected, and could not be based merely on the fact that she was the governor. Samonte v. Bauman, No. 06-16697, 2008 U.S. App. Lexis 1559 (9th Cir.).

     Detained alien did not show that federal officials were personally involved in the alleged deliberate indifference to his medical needs while he was in a county jail. Further, his claims against county jail personnel for alleged inadequate medical care amount, at most, to medical malpractice, which was insufficient to state a claim for violation of the Eighth Amendment. The detainee also failed to show that any alleged delay in providing him with treatment caused him any harm. Harvey v. Chertoff, No. 07-2206, 2008 U.S. App. Lexis 2096 (3rd Cir.).

Prison and Jail Conditions: Asbestos

     Prisoner failed to show that his exposure to friable asbestos constituted deliberate indifference to his medical needs. An expert witness report stated that the prisoner could only show a likelihood of future suffering of an asbestos-related illness if he suffered prolonged exposure to the asbestos. There was no evidence of a present asbestos-related injury, and nothing in the prisoner's medical records to show exposure to either moderate or severe levels of asbestos for a prolonged time. Harris v. Donald, No. 07-12774, 2008 U.S. App. Lexis 1600 (11th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit claiming that he was beaten by prison officials during a fight involving another inmate and a correctional officer was properly dismissed for failing to exhaust available administrative remedies pursuant to 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. The result was not altered by the prisoner's claim that he was in lock-down isolation until six days after the fight, when there were procedures for late grievances, but only if a prisoner made a request to file a grievance late and showed good cause. The prisoner, having never followed those procedures, was not excused from the normal grievance requirements, and he also failed to appeal the denial of his grievances. The court also rejected an equal protection challenge to the exhaustion of remedies requirement. Mason v. Bridger, No. 07-14206, 2008 U.S. App. Lexis 573 (11th Cir.).

     Prisoner failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) before filing a lawsuit concerning alleged denial of his right of access to the law library, alleged discipline imposed for asserting that right, and "involuntary servitude" and discipline imposed for not reporting to work, as well as a complaint about prison food being "poor." The prisoner himself admitted that he had not appealed his grievances after presenting them to the grievance committee, and had also failed to appeal his disciplinary claim after presenting it to the warden, as was possible under a prison operating procedure. Anderson v. Donald, No. 06-16322, 2008 U.S. App. Lexis 569 (11th Cir.).

Prisoner Discipline

     Prisoner, under Illinois administrative procedures, did not have a right to confront or cross-examine witnesses at his disciplinary hearing, but was able to submit questions for the witnesses to the disciplinary committee before the hearing, which would be asked unless the committee found them to be irrelevant, cumulative, or a threat to individual safety or institutional security. Because the prisoner failed to raise a constitutional objection and failed to comply with the authorized procedures, he could not pursue his claim that he had been "retaliated" against for attempting to "present evidence" to the committee. Johnson v. Evinger, No. 06-2103, 2008 U.S. App. Lexis 2555 (7th Cir.).

     Prisoner's claim that prison official violated his rights by conducting a biased hearing at which he was convicted on a false charge, and by failing to explain the evidence relied on, was barred under Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), since a favorable result in the lawsuit would imply the invalidity of the loss of good time credits, impacting on the length of his confinement, and the disciplinary determination had not been set aside. A claim that the prison official who allegedly filed a false disciplinary charge against him did so in retaliation for his cooperation in an internal investigation at the facility was barred because the disciplinary determination was supported by some evidence. Davis v. Baughman, No. 07-1581, 2008 U.S. App. Lexis 2541 (8th Cir.).

Prisoner Suicide

     Nurse was not entitled to summary judgment on the basis of qualified immunity in a lawsuit accusing her of deliberate indifference to risk of suicide of detainee at youth correctional facility. The deceased youth's parents claimed that the nurse was aware that their son had a history of suicide attempts and bipolar disorder, but failed to put him on suicide watch or to complete a form that would have notified other facility staff that he was a suicide risk, resulting in him committing suicide hours later. The nurse claimed that the youth appeared "happy" during the intake process. Matis v. Johnson, No. 07-30104, 2008 U.S. App. Lexis 2086 (5th Cir.).

Religion

     After a Muslim prisoner was allowed to have a vegetarian diet on a religious basis, he claimed that he suffered adverse health effects from it, which interfered with his religious activities. He therefore claimed that he should receive a meat-based protein diet and that a kosher meat diet being provided to Jewish prisoners would satisfy his religious needs. A federal appeals court overturned the trial court's summary judgment for prison officials. Further proceedings were needed as to the extent of the burden on the prisoner's religious activities from the denial of the meat kosher diet, and the amount of burden on correctional resources that providing it would impose, as well as whether there were less restrictive alternatives that would still satisfy his needs. The court did find that the prisoner's beliefs were sincere, so that the denial did involve the Free Exercise of Religion clause of the First Amendment. Shakur v. Schriro, No. 05-16705, 2008 U.S. App. Lexis 1255 (9th Cir.).

     Muslim prisoner failed to present sufficient evidence to establish whether his right to practice his religion was violated by federal prison officials' alleged failure to provide him with "appropriate meals" to satisfy his religious beliefs. The record in the case failed to indicate whether the prisoner requested, or would have been allowed to store halal food from the prison kitchen in his cell so that he could eat a halal meal on days that kosher meat entrees were served. The prisoner also failed to show that the defendants acted with any discriminatory purpose. Patel v. U.S. Bureau of Prisons, No. 06-3819, 2008 U.S. App. Lexis 2423 (8th Cir.).

     Muslim prisoner failed to show that a lockdown prevented him from practicing his religion, that prison officials were motivated by discriminatory intent against Muslim inmates in ordering the lockdown, or to raise a viable claim as to whether the lockdown had, as claimed by officials, been legitimately ordered for security purposes. Ford v. Martel, No. 06-16994, 2007 U.S. App. Lexis 30243 (9th Cir.).

     A prisoner awaiting trial on charges of terrorist threats housed in the maximum-security area of a county jail challenged a jail policy barring maximum-security prisoners from participating in group worship. Overturning summary judgment for jail officials on claims under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc et seq., a federal appeals court found that disputed issues of material fact existed as to whether this policy was the "least restrictive means" of satisfying security concerns. Greene v. Solano County Jail, No. 06-16957, 2008 U.S. App. Lexis 1189 (9th Cir.).

     Two Rastafarian prisoners and three Muslim prisoners claimed that an inmate grooming policy prohibiting them from wearing beards violated their rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. §§ 2000cc to 2000cc-5. A federal appeals court rejected these claims, based on a record and established case law showing a need for suppressing contraband, maintaining discipline and security, maintaining inmate and staff health and safety, and preventing prisoners from quickly changing their appearance. The court also found that a suggested "less restrictive means" of serving these "compelling governmental interests," which was transferring inmates with such religious beliefs to other prison systems without similar grooming policies, was not "workable." McRae v. Johnson, No. 06-7548, 2008 U.S. App. Lexis 246 (4th Cir.).

Search and Seizure: Prisoners/Cells

     The Fourth Amendment's prohibition on unreasonable searches and seizures does not apply to prison cells, where prisoners have no reasonable subjective expectation of privacy. The court also rejected the prisoner's due process claims, finding no evidence that his placement in administrative segregation exposed him to atypical or significant hardships. O'Cain v. Renton Police Dept., 06-36065, 2007 U.S. App. Lexis 30262 (9th Cir.).

Smoking

     Prisoner failed to provide adequate evidence from which a jury could find that he had suffered harmful exposure to second-hand tobacco smoke. Laufgas v. Speziale, No. 06-5062, 2008 U.S. App. Lexis 2514 (3rd Cir.).

     A detainee at a D.C. jail claimed that his rights were violated during his 12-month incarceration by being housed with chain smokers, along with poor jail air ventilation. His claims were rejected because he did not show either an actual or an imminent injury, but merely a "remote and speculative" injury. He did present an expert witness with the opinion that he would suffer a 55% increased risk of heart disease and 38 times the risk of lung cancer suffered by the average adult U.S. male. But, because the expert witness never tested the plaintiff, his report did not show the probability of such harm to the plaintiff. In the absence of any showing of an actual injury from the smoke exposure, the lawsuit was dismissed. Williams v. D.C., Civil Action No. 02-1641, 2008 U.S. Dist. Lexis 76 (D.D.C.).

     D.C. prisoner failed to show that he suffered violations of his constitutional rights during his exposure, during his seven-month confinement, to environmental tobacco smoke (ETS). The objective component of an Eighth Amendment claim was not satisfied because, while he had presented an expert witness on jail conditions, that expert was not a medical doctor, had not consulted with the inmate's doctors, and had not gone to the jail to take air samples or conducted any test on the plaintiff. The prisoner also failed to satisfy the subjective part of a deliberate indifference Eighth Amendment claim, since there was evidence that the jail had instituted an anti-smoking policy and engaged in efforts to improve air quality. Abdullah v. Washington, Civil Action No. 02-1642, 2008 U.S. Dist. Lexis 59 (D.D.C.).

Strip Search: Prisoner

     Trial court acted erroneously in dismissing the entirety of a Texas prisoner's lawsuit alleging that his rights were violated during a strip and cavity search conducted by an officer. The male prisoner claimed that the search took place within the view of a female prison guard and other prisoners, and that, during the search, the officer never accused him of possession of contraband. If these allegations were true, his Fourth Amendment rights would have been violated. The prisoner was barred from recovering compensatory damages for emotional or mental injuries under 42 U.S.C. Sec. 1997e(e) because he did not claim he had suffered any physical injury, but this would not bar him from recovering punitive or nominal damages. Hutchins v. McDaniels, No. 06-41733, 2007 U.S. App. Lexis 29755 (5th Cir.).

Telephone Access

     New York court rejects claims by family and friends of prisoners and a non-profit organization providing legal services to inmates challenging the charges for making collect telephone calls from prisoners. State correctional officials and a telephone services provider established a system for collect calls from prisoners under which the correctional system received a 57.5% commission on all such calls. The court rejected the argument that these charges were unlawful under state law, or that equal protection of law was violated under the New York state Constitution. The court found, for purposes of the equal protection claim that the recipients of calls from inmates were not similarly situated to other members of the public. The court also rejected arguments that these charges violated the plaintiffs' rights to free speech and association under N.Y. law. Limitations on inmate phone access, the court noted, have previously been ruled not to amount to a constitutional violation. The right of non-inmates to communicate with prisoners was limited by the rights that the inmates themselves had. Walton v. N.Y. State Depart. of Correctional Services, No. 01-04-ST4340, 2007 N.Y. Misc. Lexis 8605 (Sup. Albany County).

Visitation

     A former prison employee had become involved with a prisoner when she met him at the facility. She married him after she resigned while correctional officials were investigating that involvement. A federal court has upheld actions denying her the right to visit the prisoner because she had violated departmental policy by becoming involved with him. This, the court found, was rationally related to legitimate security concerns. Samson v. Donahue, No. 3:07-CV-505, 2007 U.S. Dist. Lexis 89355 (N.D. Ind.).

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     AIDS: "Sex, Drugs, Prisons, and HIV," by Susan Okie, M.D., 356 New England Journal of Medicine Number 2 (Jan. 11, 2007) pgs. 105-108

     Publications: Library Services for Incarcerated Spanish Speakers. Source(s) WebJunction (Dublin, OH) OCLC Online Computer Library Center (Dublin, OH) Published 2007. 101 pages. Materials from a presentation about providing better library service to Spanish speakers are supplied. Items comprising this collection are: copies of overheads; resource packet containing learning objectives, action plan guide, Four Dimensions of Diversity chart, guide for conducting community leader interviews, resources for working with Spanish speakers, and Serving Latino Communities checklist; and suggested outreach activities for correctional libraries. Accession Number: 022851

     Publications: Legal Resource Guide to the Federal Bureau of Prisons, updated January 2008.

     Sexual Assault: Kim Shayo Buchanan, Impunity: Sexual Abuse in Women's Prisons, 47 Harvard Civil Rights-Civil Liberties L. Rev. 45 (2007).

Reference:

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

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