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Access to Courts/Legal Info

     Prisoner who claimed that his constitutional due process rights were violated when he was allegedly denied access to the law library as a disciplinary sanction, and who also claimed that the sanction was unlawfully imposed without a hearing could not use a habeas corpus petition to challenge the sanction, since it did not have an impact on the length of his confinement. He did not claim that he lost good time credits, nor did he seek a release from custody. The prisoner could instead seek to challenge the sanctions imposed in a federal civil rights lawsuit, since his claims involved the conditions of his confinement rather than their duration. Williams-Bey v. Buss, No. 06-4204, 2008 U.S. App. Lexis 5968 (7th Cir.).

     A prisoner was not entitled to injunctive relief compelling the return of a notarized affidavit and other legal documents seized from his cell when he failed to show either that he would otherwise suffer irreparable injury, or that he was likely to succeed on the merits of his underlying claim. He could not demonstrate a likelihood of such success because he had not yet exhausted his available administrative remedies, as required before pursuing litigation, and his evidence that documents other than the affidavit (subsequently returned) had been seized from his cell was "scanty." Carabello v. Beard, No. 06-336, 2008 U.S. Dist. Lexis 16814 (E.D. Pa.).

Defenses: Eleventh Amendment Immunity

     Prisoner could not seek to impose civil liability on South Carolina correctional officials in their official capacities, as such claims were essential claims for money damages against the state. The prisoner could continue to pursue individual capacity claims against the defendants for alleged excessive use of force in the course of a search of the prisoner's cell. Frost v. Ozmint, No. 8:07-83, 2008 U.S. Dist. Lexis 15784 (D.S.C.).

Diet

     Prisoner failed to show that a private company providing food at a county jail or jail officials knew that problems with the food served posed an excessive risk to his health in violation of the Eighth and Fourteenth Amendments, but disregarded this risk. While the prisoner claimed that he was served spoiled meat, spoiled milk, and inadequately cooked chicken, the evidence supported a finding that the company took measures to make sure that food and milk were safe, including discarding expired milk and old meat. Further, each time the plaintiff complained about a problem, the defendants took measures to attempt to remedy the complained of problems. After the detainee claimed he received undercooked chicken, he was given a replacement meal, and retraining of the kitchen staff took place. McRoy v. Aramark Correctional Services, Inc., No. 06-3922, 2008 U.S. App. Lexis 5560 (7th Cir.).

Disability Discrimination: Prisoners

     While a county is not required to make all existing correctional facilities accessible to individuals with disabilities, it is required to provide access to programs for such individuals. Therefore, disabled prisoners should have similar access to that provided to other prisoners to any type of educational, vocational, rehabilitative, or recreational program, service, or activity offered, provided that the disabled prisoners, with or without reasonable accommodation of their disabilities, would otherwise meet the eligibility requirements to participate. In this case, the county failed to provide a justification for differences between recreational and vocational activities available at other facilities, and those available to detainees at its central jail, including disabled detainees. Further fact finding was therefore needed to determine the appropriate remedy in response to disability discrimination. The county was in violation of the Americans with Disabilities Act (ADA) both because of the differing programs and services available to disabled versus non-disabled prisoners, and because there were some physical barriers preventing the disabled from gaining access to certain facilities. The court also continued in force prior orders requiring that prisoners in administrative segregation be provided at least minimal access to both exercise and religious services. Pierce v. County of Orange, No. 05-55829, 2008 U.S. App. Lexis 6148 (9th Cir.).

Freedom of Information

     Federal appeals court rejects prisoner's claim that excluding prisoners from using the Virginia Freedom of Information Act to request public records violated equal protection and due process of law as protected by the Fourteenth Amendment. The plaintiff failed to show that the classification excluding prisoners from the application of the statute was not rationally related to a legitimate state interest. Nothing more needed to be shown by the defendants, since the classification applied did not violate a fundamental right and was not based on a suspect classification, such as race. Additionally, there was no showing that the denial of the plaintiff's freedom of information requested obstructed him from filing a lawsuit, so there was no viable claim for denial of his First Amendment right of access to the courts.  Giarratano v. Johnson, No. 06-7890, 2008 U.S. App. Lexis 6144 (4th Cir.).

     While the Bureau of Prisons (BOP) produced a two-page incident report requested by the prisoner under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, it refused to either deny or confirm the existence of disciplinary records regarding a former prison staff member, contending that they were excluded from disclosure because of an exemption in the statute for the disclosure of records compiled for law enforcement purposes. The court ordered further proceedings however, as a declaration concerning such records did not demonstrate the circumstances under which they may have been compiled. Coleman v. Lappin, No. 06-2255, 2008 U.S. Dist. Lexis 15421 (D.D.C.).

Frivolous Lawsuits

     A prisoner's lawsuit claimed that, after he filed a court action to require prison employees to provide him access to the law library, he was subjected to retaliation in the form of a "fabricated" disciplinary charge, and found guilty of the violation. The court found that the prisoner's claim was frivolous, and that he failed to show facts to support a claim for unlawful retaliation. The prisoner was also found to be an "abusive litigator" with at least "three strikes" under a Pennsylvania state statute--three previously dismissed frivolous lawsuits. The court revoked the prisoner's status as someone able to proceed in the case as a pauper, and also dismissed his appeal. Bailey v. Miller, No. 1688 C.D. 2007, 2008 Pa. Commw. Lexis 95.

Inmate Funds

     Ohio correctional officials did not act improperly in seizing financial gifts sent to an inmate for the purpose of paying his fine and court costs he had been ordered to pay after his conviction. The court found that the correctional officials' conclusion that "income" within the meaning of an Ohio Administrative Code provision authorizing the seizure of inmate funds for these purposes includes "gifts." The prisoner had no right to have gifts excluded from his income otherwise subjected to seizure. State Ex Rel. Turner v. Eberlin, No. 2007-2013, 2008 Ohio Lexis 693.

     Ohio correctional officials had legitimate authority to take money from a prisoner's prison account under a state statute for the purpose of paying an Arizona state restitution order. Wassenaar v. Ohio Department of Rehabilitation and Correction, No. 07AP-712, 2008 Ohio App. Lexis 1053 (Ohio App. 10th Dist.).

Medical Care

     A prisoner seeking to pursue a medical malpractice claim concerning the treatment he received for a sinus infection was required to present expert witness testimony as to the applicable professional standard of care, and the defendants were properly granted summary judgment on the basis of his failure to do so. Additionally, the trial judge did not abuse its discretion in refusing to appoint an expert witness for the prisoner. The lawsuit was filed under the Federal Tort Claims Act. Hannah v. US, No. 06-11091, 2008 U.S. App. Lexis 7265 (5th Cir. 2008).

     Even if a hole in the prisoner's skull constituted a serious medical need, the prisoner, in his lawsuit claiming deliberate indifference in failing to surgically install a protective metal plate to cover it, did not show either that he had suffered any harm from the failure to do so, or that he had been deliberately denied treatment with the intent to harm him. Further, his own documents showed that he was seen "repeatedly" by doctors, including specialists, who had not found that it was necessary to install his requested skull plate. He also failed to show that the conditions of his confinement were such that correctional officials were deliberately indifferent to a need to protect him against the possibility than unidentified violent prisoners would later injury him because of the unprotected hole in his head. Walls v. Texas Dept. of Criminal Justice, No. 07-20094, 2008 U.S. App. Lexis 6103 (5th Cir.).

     Pretrial detainee failed to show that jail personnel acted with deliberate indifference to his serious medical needs by failing to provide him with adequate pain medication for a period of time after his finger was broken. The injury to his finger occurred when he caught his hand in a van door while being transported to the courthouse from the jail. The plaintiff failed to point to any swelling, bleeding, discoloration, or visible broken bones that would have put jail personnel on notice that he obviously needed immediate medical attention. Barron v. Macy, No. 07-3276, 2008 U.S. App. Lexis 5208 (10th Cir.).

     Federal prisoner without any kidneys, and who had received hemodialysis for more than 14 years, was not entitled to an order requiring that he be provided with a kidney transplant. The most that the court could do was order officials to review the prisoner's request, and they had, in fact, already recommended him as a candidate for such a transplant, so that his request was moot. Sanchez v. Sabol, No. 07-40090, 2008 U.S. Dist. Lexis 18525 (D. Mass.).

     Prisoner failed to show that medical treatment for the boils on his arm and chest was constitutionally inadequate. Specifically, he failed to show that daily treatment of his boils was an objectively serious medical need or that he was subjected to an escalating or acute condition that medical personnel ignored. Jackson v. Douglas, No. 07-1808, 2008 U.S. App. Lexis 5940 (8th Cir.).

Medical Care: Dental

     Prisoner failed to show that prison employees were deliberately indifferent to her serious dental needs, improperly revoked her authorization to receive acne medication from an outside source, or failed to protect her from an assault by another prisoner. Wilkens v. Ward, No. 07-6225, 2008 U.S. App. Lexis 4211 (10th Cir.).

Negligent or Inadequate Hiring, Supervision, Retention & Training

     Jail officials were entitled to summary judgment on prisoner's claims based on their alleged failure to suspend a correctional officer after receiving reports about an incident. Given what was known about the incident at the time, the decision to simply initiate an investigation without taking immediate action against the officer did not amount to deliberate indifference. Woods v. York County, No. 06-CV-171, 2008 U.S. Dist. Lexis 13044 (D. Maine).

Prison & Jail Conditions: Sanitary Conditions

     Prisoner failed to show that correctional officials violated the Eighth Amendment in allegedly failing to repair a leaky roof and prison floors. The prisoner failed to show that the defendants knew that there was a substantial risk of serious harm and failed to act reasonably to avoid such harm, resulting in inhumane conditions of confinement. Gilman v. Woodford, No. 06-16157, 2008 U.S. App. Lexis 6029 (9th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit claiming that his rights were violated by placing him in a cell with a defective ceiling that fell and injured him was properly rejected because of his failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(1). His relocation to another cell and his alleged lack of knowledge of the names of the officers he claimed to have told about the problems with the ceiling did not excuse his failure to comply with a prison's 48-hour deadline for reporting the incident. Prisoners must comply with prison grievance rules, including time limitations, and there was no showing that he tried to learn the names of the correctional officers during the 48-hour period, or that he requested that the prison waive the 48-hour rule. Whitener v. Buss, No. 07-1490, 2008 U.S. App. Lexis 5799 (7th Cir.).

     A prisoner who failed to filed an intermediate appeal of the denial of his grievance in a timely manner, as required by prison grievance rules, failed to properly exhaust available administrative remedies, so that prison officials were entitled to summary judgment in his lawsuit over the alleged seizing of legal materials from his cell. Rohn v. Beard, No. 07-4833, 2008 U.S. App. Lexis 5179 (3rd Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     When a prisoner's lawsuit includes a number of claims, and one or some claims are dismissed for failure to state a claim, but other claims are allowed to proceed, the partial dismissal of the complaint does not constitute a "strike" for purposes of the "three strikes" provision of 28 U.S.C. Sec. 1915(g). Imposing such a "strike" while allowing the prisoner to proceed with other claims in the complaint would not further the purpose of the statute to deter frivolous lawsuits. Tafari v. Hues, No. 04-Civ-5564, 2008 U.S. Dist. Lexis 17042 (S.D.N.Y.).

Prisoner Assault: By Inmates

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

     Officers were not entitled to qualified immunity on claims that they failed to properly protect a prisoner against an assault by another inmate. The plaintiff claimed that the attack occurred because two of the officers opened cell doors to enable the attack, that he suffered fear for his life from the officers' death threats, which were made "credible" by their conduct, and that one officer also labeled the prisoner a "snitch." If the facts were as alleged by the prisoner, no reasonable officer could have believed that such conduct was constitutional. Irving v. Dormire, No. 07-1591, 2008 U.S. App. Lexis 4925 (8th Cir.).

Prisoner Assault: By Officer

     A pretrial detainee failed to show that a correctional officer used excessive force against him, or that a second officer failed to intervene to prevent the excessive use of force. A videotape of the incident showed that the plaintiff punched and hit an officer in the face, causing her to fall, and that the other officer then struck the plaintiff, pushed him to the floor, and handcuffed him. The force used was only that required to regain control of the plaintiff, despite his claim that the officers had "altered" the videotape. Johnson v. Moeller, No. 07-3184, 2008 U.S. App. Lexis 6227 (7th Cir.).

Prisoner Discipline

     The fact that a prisoner had been released from custody, barring him from obtaining habeas corpus relief, did not relieve him of his need to show that a disciplinary determination against him had been overturned before pursuing a federal civil rights claim for alleged violation of his due process rights, resulting in a loss of good time credit, which caused him to serve additional prison time. The plaintiff failed to show the required prior overturning of the disciplinary determination. The magistrate judge, in an action that had no effect on the result in the case, the dismissal of the lawsuit, still declined to reverse a prior holding that the plaintiff's constitutional rights to adequate notice had been violated in relation to the disciplinary hearing. Dible v. Scholl, No. C05-4089, 2008 U.S. Dist. Lexis 17907 (N.D. Iowa).

     A prisoner's claim that his constitutional due process rights were violated in a disciplinary proceeding was barred by his failure to show that the results of the hearing had previously been invalidated. Summary judgment was properly granted against the plaintiff in his federal civil rights lawsuit. Crane v. Wheeler, No. 05-17410, 2008 U.S. App. Lexis 6026 (9th Cir.).

     Federal appeals court rejects prisoner's argument that his due process rights were violated in a disciplinary proceeding because an investigative employee assigned to him failed to actually assist him. The assignment of such an assistant under California regulations did not mean that the prisoner had a federal due process constitutional right to such assistance. Trujillo v. Vaughn, No. 06-17104, 2008 U.S. App. Lexis 5602 (9th Cir.).

Prisoner Suicide

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

     The fact that officers transporting prisoners had different duties than arresting officers, or that jail clerks did not receive training on the watching of monitors and had too much work to do to adequately watch them was insufficient to impose liability on the city for an alleged practice or custom of failing to provide adequate suicide prevention training to jail personnel. City and officers were not liable for detainee's suicide in city jail. Coleman v. City of Pagedale, No. 4:06CV-01376, 2008 U.S. Dist. Lexis 6781 (E.D. Mo.).

Therapeutic Programs

     The Bureau of Prisons (BOP) did not act in an arbitrary or capricious manner in failing to give an inmate, previously incarcerated at a contract correctional facility, with credit for his participation in a drug treatment program there. He argued that this completion of that program should be viewed as the equivalent of completion of the first step of the BOP's three-step drug program. Further, the BOP had actually not yet decided whether the inmate was eligible to participate in its drug program, and its policy was that such determinations were made 36 months before a prisoner's release, a point in time that the plaintiff prisoner had not yet reached. Davis v. Federal Bureau of Prisons, No. 07-201, 2008 U.S. Dist. Lexis 13872 (D.D.C.).

Religion

     Atheist prisoner failed to show that his religious freedom rights were violated because prison officials refused to let him receive a silver circle, free publications, and other books he ordered, and delayed processing and placing atheistic books in the library. The court ruled that the "silver circle" did not have anything to do with the practice of any religion or philosophy, and that a policy of allowing prisoners possession of only generally accepted religious symbols was supported by a "valid secular and penological" purpose that did not advance any religion. The defendant officials also adequately provided legitimate reasons for any delay in the processing of atheist books for the library, as well as why certain other materials had been excluded. The court also rejected, as frivolous, the prisoner's claim that he should have been furnished with additional free bars of soap, beyond those that he did receive. Kaufman v. Karlen, No. 07-2712, 2008 U.S. App. Lexis 6181 (7th Cir.).

     The refusal to provide a daily "Halal" menu to Muslim inmates who are members of the Nation of Islam was a "substantial burden" on their exercise of their religion. For purposes of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.S. § 2000cc-1 et seq., the Massachusetts Department of Corrections failed to show that this refusal served a compelling state interest. The Department failed to produce support for its argument that providing such meals would have created conflicts among prisoners, particularly in light of the Department's long standing practice of giving Jewish, Buddhist, and Seventh Day Adventist prisoners with religious dietary accommodations. The court also found than an "alternative vegetarian" diet did not satisfactorily replace a Halal diet. The court also ruled that the prisoners should be provided with closed circuit television access to Jum'ah services. The court rejected, however, the prisoners' claims relating to alleged deprivation of prayer rugs. Hudson v. Dennehy, No. 01-CV-12145, 2008 U.S. Dist. Lexis 16672 (D. Mass.).  

     Minnesota prison's failure to provide Muslim prisoner with a Halal religious diet, instead providing him with a special vegetarian diet, did not impose a substantial burden on his right to practice his religion. The vegetarian diet, further, was nutritionally adequate. Additionally, the prisoner's claims for injunctive and declaratory relief were moot because the prisoner had been moved to a federal facility. Pratt v. Corrections Corporation of America, No. 06-3556, 2008 U.S. App. Lexis 4977 (8th Cir.).

Segregation: Administrative

     Placement of a prisoner in a Special Housing Unit on administrative detention status without a hearing for a ten-week period during the completion of an internal investigation concerning a magazine confiscated from his locker did not violate his constitutional rights. The prisoner failed to show, in any way, how he had been deprived of the "minimal civilized measures of life's necessities" by his administrative segregation. Wilson v. Hogsten, No. 07-3992, 2008 U.S. App. Lexis 5640 (3rd Cir.).

Sexual Offenders

    When a prisoner's criminal conviction, which was the basis of his custody, has been overturned, and he has not been retried and reconvicted, civil commitment proceedings under the California Sexually Violent Predator (SVP) Act are not available. In re Smith, No. 14-5959, 2008 Cal. Lexis 3548.

Smoking

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

     Summary judgment against prisoner in a lawsuit challenging his exposure to environmental tobacco smoke (ETS) while he was in a federal prison was improper. The prisoner raised genuine issues of material fact as to whether his exposure to ETS ignored his medical needs. The court noted that a Surgeon General's Report stated that there is no such thing as a safe level of exposure to secondhand smoke, and that there was evidence that prison employees knew that the inmate was allergic to ETS, which caused him to suffer from high blood pressure and migraine headaches. These employees allegedly ignored the plaintiff's requests that they enforce the no-smoking policy, and "looked the other way" when some prisoners smoked in cells or other no-smoking areas. The employees also allegedly denied the plaintiff's request that he be given a non-smoking cellmate. Murrell v. Casterline, No. 07-30153, 2008 U.S. App. Lexis 6176 (5th Cir.).

Supreme Court Actions

     In a case (Avena and Other Mexican Nationals) involving 51 Mexican nationals confined in U.S. prisons, the International Court of Justice (ICJ) ruled that the U.S. had violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to provide them with notice of their rights to contact the Mexican consulate after they were taken into custody. The ICJ, therefore, held that each of these individuals were entitled to review and reconsideration of the U.S. state court convictions, even if they had failed to comply with otherwise applicable state rules concerning the challenging of those convictions. In a prior decision, Sanchez-Llamas v. Oregon, No. 04-10566, 548 U.S. 331 (2006), the U.S. Supreme Court ruled that the Convention did not negate the need to apply state rules. The President of the United States, however, issued a memo stating that the U.S. would "discharge its institutional obligations" and have state courts follow the ICJ decision. The Plaintiff in the immediate case, incarcerated in Texas, then filed a Texas state court habeas application challenging his capital murder conviction and death sentence because of the failure to inform him of his rights under the Vienna Convention. The U.S. Supreme Court has now held that neither the ICJ decision nor the President's memo are directly enforceable federal law which would pre-empt state limits on the filing of successive habeas petitions. The court further found that a treaty such as the Vienna Convention is not binding domestic law in the U.S. when Congress has not passed statutes to implement it, except if the treaty itself conveys an intention that it be "self-executing." The plaintiff's habeas petition was therefore properly dismissed. Medellin v. Texas, No. 06-984, 2008 U.S. Lexus 2912.

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     DNA: Fourth Amendment Probationers, Parolees and DNA Collection: Is This "Justice for All"? by Jessica K. Fender, 3 Seventh Circuit Rev. 312 (2007), Both an abstract and the full article are available on-line at the link.

     Statistics: Department of Justice Bureau of Justice Statistics webpage on Corrections Statistics includes statistics and publications about capital punishment, jails, prisons, probation and parole.

     Prison Rape and Sexual Misconduct: Texas Update, By Stop Prisoner Rape, "Texas State Prisons Plagued by Sexual Abuse," (8 pgs PDF) (March 2008).

Reference:

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

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