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Access to Courts/Legal Info

     Federal appeals court upholds the rejection of a prisoner's claims that he faced retaliation for exercising his right of access to the courts both in filing his own lawsuits, and in providing legal advice to other prisoners. The court notes that providing legal advice to other prisoners is not entitled to any greater First Amendment protection than communication with fellow inmates on any other topic. The prisoner failed to show any specific harm that the alleged retaliation caused to the progress of his lawsuits. Gronquist v. Deshazer, No. 06-35024, 2008 U.S. App. Lexis 19856 (Unpub. 9th Cir.).

     The prisoner's "criminal" complaint against prison personnel under 18 U.S.C. Secs. 241 and 242, claiming that they denied him time in the law library and thereby interfered with his right of access to the courts, was properly considered a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 by the trial court. The sole remedy sought by the prisoner in his complaint, the issuance of a warrant for the arrest of the defendants, was not available to a private person. The lawsuit was properly dismissed. Booth v. Henson, No. 06-1738, 2008 U.S. App. Lexis 19024 (Unpub. 6th Cir.).

Clothing

     A prison's denial of an inmate's demand that he be allowed to wear his own shoes was justified by legitimate penological objectives including security concerns over the possibility of increased fighting among inmates and the possible appearance of favoritism to particular individuals. Wolfenbarger v. Black, No. CIV S-03-2417, 2008 U.S. Dist. Lexis 71050 (E.D. Cal.).

Disability Discrimination: Employees

     A correctional officer who suffered a job-related back injury was terminated after he rejected an offered position when he was cleared to return to work with specified restrictions. Rejecting his argument that this constituted disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. Sec. 791, the court found that the officer failed to allege that his back injury interfered with his performance of a major life activity. Given that, and the fact that his injury was not long term or permanent, the officer did not show that he was a person with a disability under the Act. Aguillard v. Mukasey, No. 07-31036, 2008 U.S. App. Lexis 19429 (Unpub. 5th Cir.).

Disability Discrimination: Prisoners

     Prisoner classified by Social Security as suffering from mental disorders failed to show that alleged delays in medical care for a leg injury was disability discrimination by correctional authorities. The Texas correctional authority was not responsible for his medical care, as independent contractors provided it. The prisoner also failed to show that the Texas Department of Criminal Justice failed to adequately maintain a basketball court where he may have suffered his leg injury, for the purpose of discriminating against disabled inmates, or that he was retaliated against by forcing him to use traffic paths that were difficult to use with crutches. Norman v. Tex. Dept. of Criminal Justice, No. 07-41090, 2008 U.S. App. Lexis 19914 (Unpub. 5th Cir.).

False Imprisonment

     Federal court rejects challenge to the constitutionality of the practices of a state judge and other defendants who allegedly unnecessarily lengthened the confinement of persons found incompetent to stand trial, and to procedures used by state mental health authorities to involuntarily hospitalize persons found mentally ill. Monaco v. Hogan, CV-98-3386, 2008 U.S. Dist. Lexis 70510 (E.D.N.Y.).

First Amendment

     A prisoner could go forward with his claim that he suffered retaliatory action in connection with a transfer on the basis of his actions concerning a grievance, in violation of his First Amendment rights. The prisoner presented a plausible claim of retaliation on the basis of a memo requesting the transfer which was submitted outside of the normal procedure for such requests, and which spoke about his attempts to "create unrest" among other prisoners. Milligan v. Reed, Civil Action No. 06-cv-00911, 2008 U.S. Dist. Lexis 70864 (D. Colo.).

     Prisoner adequately alleged that a correctional officer seized and destroyed his family photographs from his cell in retaliation for grievances that he had filed or threatened to file against the officer. The court rejected his cruel and unusual punishment, equal protection, and due process claims. Olmsted v. Sherman, No.08-cv-439, 2008 U.S. Dist. Lexis 67391 (W.D. Wis.).

     Federal prisoner failed to show that the Ensign Amendment, 28 U.S.C. Sec. 530C(b)(6) violated his First Amendment rights in restricting his access to sexually explicit publications, specifically certain magazines and a book that were sent to him. Restricting such materials was reasonably related to legitimate penological interests in security and rehabilitation. The court did rule, however, that Federal Bureau of Prisons (BOP) Program Statement 5266.10, Sec. 7 was unconstitutional in allowing a rejected publication to be returned to the publisher before an administrative review was completed, and the enforcement of that Program Statement was enjoined. Jordan v. Sosa, Civil Action No. 05-cv-01283, 2008 U.S. Dist. Lexis 53006 (D. Colo.).

Inmate Funds

     Pennsylvania prisoner was entitled to further proceedings on his claim that actions by the Department of Corrections in directing that his institutional account be assessed for medical and other expenses for another inmate violated due process. The assessment was ordered after a disciplinary proceeding concluded that the prisoner had assaulted and injured another inmate. Burns v. Pa. Dept. of Correction, No. 07-1678, 2008 U.S. App. Lexis 20073 (3rd Cir.).

     A federal appeals court rejected a prisoners claim that he was coerced into participation in the Bureau of Prisons (BOP) Inmate Financial Responsibility Program (IFRP) or that doing so violated his constitutional right to due process. The prisoner could have refused to participate without being disciplined for his actions, so that a case worker and a counselor, in discussing the IFRP program with him, and encouraging him to sign a contract to participate, did not engage in coercion. Further, to the extent that the prisoner sought to challenge restitution ordered by the trial court in his criminal case, he could not do so in a federal civil rights lawsuit, since it was part of his criminal sentence which had not been set aside or modified. Duronio v. B.O.P. Director Gonzales, No. 08-2077, 2008 U.S. App. Lexis 19455 (Unpub. 3rd Cir.).

     The Bureau of Prisons (BOP) did not act improperly in encouraging voluntary payments in excess of those required under court judgments for restitution to the victims of crime, even if it conditioned the receipt of certain privileges during incarceration on a prisoner's participation in the Inmate Financial Responsibility Program (IFRP). The court rejected challenges to victim restitution payments schedules asserted by prisoners participating in the IFRP. U.S. v. Lemoine, No. 06-50663, 2008 U.S. App. Lexis 21189 (9th Cir.).

Mail

     Trial court should not have dismissed a prisoner's lawsuit claiming that his First Amendment rights were violated when prison officials allegedly censored his outgoing mail and cited him for violating prison disciplinary rules by using offensive and vulgar racist language describing prison officials. The trial judge could not decide, on the basis of merely the pleadings, whether the actions taken furthered substantial governmental interests or went no further than needed to protect those interests. Barrett v. Belleque, No. 06-35667, 2008 U.S. App. Lexis 20087 (9th Cir.).

Medical Care

     A detainee diagnosed after being released from jail as having suffered a stroke failed to show that jail personnel had acted with deliberate indifference to his serious medical needs. He himself did not dispute that his symptoms appeared to be consistent with mere intoxication. Under these circumstances, jail personnel were not shown to have known that he was in need of serious medical care. Further, he failed to show that any alleged denial of care was caused by a county policy. Hines v. Henson, No. 07-40987, 2008 U.S. App. Lexis 19430 (Unpub. 5th Cir.).

     Prisoner allegedly denied non-mandatory medicine for arthritis during a jail lockdown failed to show that individual defendants acted with deliberate indifference to his serious medical needs, so that individual defendants were entitled to qualified immunity. Claims against state agencies were barred by Eleventh Amendment immunity. Mayes v. Issac, No. 07-51013, 2008 U.S. App. Lexis 20555 (Unpub. 5th Cir.).

      Trial judge properly denied a motion to dismiss by officers and employees of the Public Health Service in a civil rights lawsuit for alleged repeated failures to treat a prisoner's penile cancer, which was claimed to have caused his death. The Federal Tort Claims Act, 42 U.S.C. Sec. 233(a) does not substitute for federal civil rights claims, and, accordingly, the court rejected the argument that the defendants were entitled to absolute immunity on the claims asserted. Castaneda v. Henneford, No. 08-55684, 2008 U.S. App. Lexis 20812 (9th Cir.).

     The alleged failure of a nurse to file an appeal on a prisoner's behalf after he was denied knee surgery did not amount to deliberate indifference. It was, at most, negligence, when the prisoner failed to show that she knew of and disregarded a serious threat to his safety or health. Further, her purported statement that the paperwork concerning this just "slipped" through the cracks, even if true, only showed negligence at most. The court found that the nurse was entitled to qualified immunity on a Fourteenth Amendment equal protection claim, in the absence of any evidence that other similarly situated persons were treated in a different manner. Sparks v. Rittenhouse, No. 07-1180, 2008 U.S. App. Lexis 19947 (Unpub. 10th Cir.).

     The chief physician and chief medical officer at a prisoner were not shown to have acted with deliberate indifference to a prisoner's leg pain. The prisoner was seen and treated numerous times, and the defendants did refer him to a specialist and place his name on a referral list to be sent to a clinic. Even if it was true that the prisoner was not seen by the specialist over a course of several years, the defendants were not responsible for the delay, and had not hindered the prisoner from seeing the specialist, according to a magistrate's findings. Johnson v. Cox, No. CIV S-06-2856, 2008 U.S. Dist. Lexis 70321 (E.D. Cal.).

     While a prisoner had received a recommendation for consideration for a low-altitude housing assignment, his doctor had not indicated in any way that such an assignment was medically necessary. Further, there was no showing of deliberate indifference to his complaints about exposure to second-hand tobacco smoke, since the defendants did investigate his complaints and try to provide an accommodation. The court found, however, that these same allegations may have been enough for negligence claims against the U.S. government under the Federal Tort Claims Act, but that further proceedings were required to determine whether negligence was shown by the facts. The prisoner's claims concerning the denial of exercise was rejected, since he refused opportunities to exercise that he was offered. Ajaj v. U.S.A., No. 07-1073, 2008 U.S. App. Lexis 19786 (10th Cir.).

     Prisoner failed to show that he provided a doctor with notice that he was complaining of a broken toe with his sick call requests or grievances as of April of 2005, and first complained of a broken toe during a June 23, 2005 examination. At the time of the examination, further, the doctor saw no swelling, deformity, redness, warmth, or tenderness and there appeared to be a full range of motion, no mass felt, and no pain. Additionally, even with this lack of symptoms, he ordered an x-ray of the toe, and therefore did not act with deliberate indifference. Claims against a correctional officer for allegedly failing to provide adequately wide boots showed, at most, negligence in measuring the prisoner's feet, rather than deliberate indifference. Roberson v. Patel, No. 07-11264, 2008 U.S. App. Lexis 19250 (Unpub. 5th Cir.).

Medical Care: Dental

     An inmate pursuing a dental malpractice claim under Delaware state law does not have to file an affidavit of merit from a medical professional, as the state law requiring that in medical malpractice specifically excluded claims against dentists from this requirement. The inmate could therefore pursue both his dental malpractice claim and his federal civil rights claim for alleged deliberate indifference to his serious dental needs. Brathwaite v. Correctional Medical Services, Civ. Action No. 07-006, 2008 U.S. Dist. Lexis 71562 (D. Del.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Administrative appeals concerning an inmate's grievances occurred after he had filed his federal habeas corpus petition, so that he failed to exhaust his available administrative remedies before filing his federal action. The court rejected the prisoner's argument that delays in scheduling a rehearing that was ordered after one of his appeals showed that the review process was "patently futile" or "unavailable," and that his failure to exhaust administrative remedies should therefore be excused. Cartwright v. Outlaw, No. 07-40803, 2008 U.S. App. Lexis 20140 (Unpub. 5th Cir.).

Prisoner Assault: By Inmates

     Prisoner stabbed by other inmates failed to show any deliberate indifference by the warden or two associate wardens. These officials could not be held liable simply on the basis of responsibility for the alleged actions of their subordinates. Following a trial against a deputy warden and several officers, the court granted judgment as a matter of law for the deputy warden, and the jury returned a verdict for the remaining defendants. The appeals court found that the evidence supported the jury's finding that there was no showing of deliberate indifference. Brown v. Kelly, No. 07-60329, 2008 U.S. App. Lexis 20564 (Unpub. 5th Cir.).

Prisoner Assault: By Officers

     Prisoner failed to show that officers used excessive force against him. While he called his actions "respectful" and "peaceful," it was clear that he was, at the time force was used against him, trying to walk away from an officer restraining him in an attempt to approach a second officer during a shakedown of his cell. The court also properly concluded that any injury suffered by the prisoner was minimal when no bruises or contusions were shown. Pruitt v. Hatchet, No. 05-30834, 2008 U.S. App. Lexis 19826 (Unpub. 5th Cir.).

     Evidence in a lawsuit claiming that jail personnel used excessive force against a prisoner and denied medical care to him, resulting in him dying in his cell supported a jury's verdict rejecting claims for violations of the decedent's rights. The detainee had been involved in two separate auto accidents just prior to his arrest, one of them serious, and an autopsy concluded that he died of natural causes, specifically a heart attack. Moore v. Tuleja, No. 07-3137, 2008 U.S. App. Lexis 20997 (7th Cir.).

Prisoner Death/Injury

     The merits of a former inmate's claim that he had suffered an injury from stepping in a pothole or the uneven playing surface of a prison's basketball court was "questionable" when he had first stated that his injury resulted from a collision with another player. An intermediate appellate court upheld a decision by the New York Court of Claims denying the prisoner's motion to bring a late notice of claim. Magee v. New York, No. 504087, 2008 N.Y. App. Div. Lexis 6754 (A.D. 3rd Dept.).

     Federal civil rights lawsuit for death of prisoner was rejected because it only alleged negligence by prison employees in causing the death. The prisoner was struck in the head by a plastic bullet fired by a prison employee, and other prison employees subjected him to pepper spray and placed a plastic bag over his head to increase the burning effect. Supervisory employees, the court found, were not alleged to have set into motion actions that they reasonably should have known would cause other employees to violate the prisoner's constitutional rights. State law claims were barred by the statute of limitations. Provencio v. Vazquez, No. 1:07-CV-0069, 2008 U.S. Dist. Lexis 73255 (E.D. Cal.).

Prisoner Discipline

     When a prisoner pled guilty, in a disciplinary proceeding, to having refused a direct order, he was barred from subsequently challenging the evidence that supported a guilty determination. Evidence sufficiently supported a finding of guilt on additional charges of fighting with another prisoner and engaging in violent conduct. Under the circumstances presented, the prisoner could be found guilty of a violation of the rules even if he did not start the fight in question. Wilson v. Dubray, No. 504376, 2008 N.Y. App. Div. Lexis 6597 (A.D. 3rd Dept.).

Public Protection

     A sheriff, captain, sergeant, and watch commander were not liable for a detainee's brutal attack on a female courtroom deputy, inflicting severe brain damage, when he was brought to the courtroom from a holding cell and disarmed her. The courtroom deputy, the appeals court noted, was not in custody, so that the failure to provide adequate security to prevent the attack violated her due process rights only if the defendants acted with deliberate indifference or engaged in conduct that was conscience shocking, which was not the case here. Further, the courtroom deputy was exposed to the danger of such an assault by the nature of her employment, and the claims against the defendants amounted to those similar to negligence, not deliberate indifference or conscience shocking behavior. Hall v. Freeman, No. 08-11238, 2008 U.S. App. Lexis 18421 (Unpub. 11th Cir.).

Religion

     The record failed to show how a prison's limit of ten books in a prisoner's cell furthered safety and security interests. The appeals court ordered further proceedings on the prisoner's lawsuit challenging the removal of 57 books, including the Koran and other religious books, from his cell under the policy, claiming that this violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc et seq. Warren v. Pennsylvania, No. 07-3011, 07-3011, 2008 U.S. App. Lexis 17395 (Unpub. 3rd Cir.).

     The hair length and facial hair policies of the Arkansas Department of Corrections were justified by the need to minimize the smuggling of contraband and reduce opportunities for prisoners disguising themselves by removing hair, and did not violate religious freedom rights under the First Amendment or under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc et seq. The court also rejected an equal protection claim based on valid reasons for differing hair length requirements for men and women. Additionally, there was evidence that longer beards created security and safety concerns absent when a prisoner is either clean shaven or has facial hair no longer than quarter-inch long. Appeals court also upholds an award of $1,500 to a prisoner on a claim that he was improperly not provided with Kosher meals. Fegans v. Norris, No. 06-3473, 2008 U.S. App. Lexis 17072 (8th Cir.).

Strip Searches: Prisoners

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

     Pre-trial detainees subjected to blanket strip searches as part of a booking process before they were placed into the general jail population for the first time did not present a viable claim for violation of their Fourth Amendment rights, despite the lack of a requirement that there be an individualized finding of reasonable suspicion that each of them was concealing weapons, drugs, or other contraband. The appeals court found that, in imposing a requirement of reasonable suspicion under such circumstances, its prior decisions "relied on, but misconstrued," the U.S. Supreme Court's decision in Bell v. Wolfish, #77-1829, 441 U.S. 520 (1979). The appeals court stated that the U.S. Supreme Court has never "imposed such a requirement" for strip searching arrestees bound for the general jail population for security and safety purposes. Powell v. Barrett, No. 0516734, 2008 U.S. App. Lexis 18907 (11th Cir.).

     The prisoner's claim that he was subjected to a strip search in a public manner in front of other prisoners in the room who were allowed to watch was sufficient to state a possible claim that it was conducted in an abusive or harassing manner with the intent to inflict psychological pain and humiliate him. The court declined, therefore, to dismiss the Plaintiff's Eighth Amendment claim, while dismissing a Fourteenth Amendment due process claim. Thompson v. Milyard, Civil Action No. 07-cv-02132, 2008 U.S. Dist. Lexis 69454 (D. Colo.).

Therapeutic Programs

     A prisoner who was not convicted of a felony under New York Penal Law art. 220 (controlled substances) or 221 (offenses involving marijuana) and was not eligible for temporary release, was also not eligible to participate, at his request, in a comprehensive alcohol and substance abuse treatment (CASAT) program during his incarceration, since he did not meet the eligibility requirements under Penal Law Sec. 60.04(6). Blake v. Dept. of Corrections, No. 504009, 2008 N.Y. App. Div. Lexis 6612 (A.D. 3rd Dept.).

Work/Education/Recreation Programs

    The provisions of the Fair Labor Standards Act concerning wages and related issues do not apply to inmates or to civilly-committed sexually dangerous persons. The plaintiff's lawsuit against state officials for cutting wages he received for work in the secure treatment facility to which he was committed to below minimum wage was therefore properly dismissed. The court also rejected claims that the wage cut violated the plaintiff's rights as disability discrimination, denial of equal protection, or denial of due process. Sanders v. Hayden, No. 08-1596, 2008 U.S. App. Lexis 19984 (7th Cir.).

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     Annual Reports: State of the Bureau 2007. Bureau of Prisons Staff: Everyday Heroes. Federal Bureau of Prisons (2008).

     Statistics: Census of State and Federal Correctional Facilities, 2005. Presents selected findings from the Census of State and Federal Correctional Facilities, 2005. The report includes data on characteristics of facilities by type, size, security level, rated and design capacities, court orders, and use of private contractors. It provides data on custody populations by type of facility, gender, and facility security level. The report includes data on facility staff by gender, occupational categories, and inmate-to-staff ratios by type of facility. Program data include work activities of inmates inside prison and on work release; educational training such as basic literacy and college courses; and counseling programs such as drug and alcohol dependency and employment interviewing skills. The report compares selected findings to the 2000 census. This is a web-only publication. Highlights include the following: * The number of prisoners held in custody in state and federal correctional facilities increased 10% from 1,305,253 in 2000 to 1,430,208 in 2005. * Between the 2000 and the 2005 censuses, the number of correctional employees rose 3%, resulting in a higher inmate-to-staff ratio in the latter year. * While the stock of minimum security facilities grew by 155 and maximum security facilities rose by 40 between 2000 and 2005, the number of medium security facilities declined by 42. 10/08 NCJ 222182 Acrobat file (302K) | ASCII file (32K) Spreadsheets (zip format 22K)

     Statistics: Federal Justice Statistics, 2005. Presents federal criminal case statistics on suspects and defendants processed in the federal criminal justice system. The report provides data on the number of persons arrested, investigated, convicted, and sentenced for a violation of federal law. It includes the number of offenders under federal correctional supervision at the pre-trial and post-conviction stages. It also describes case outcomes, including percent prosecuted, convicted, and sentenced by type of sanction. Data were collected from federal law enforcement, courts, and corrections agencies as a part of the Bureau of Justice Statistics Federal Justice Statistics Program. Additional data are available in the web component Federal Justice Statistics, 2005 - Statistical Tables. Highlights include the following: * Material witness, immigration, and weapons were the fastest growing arrest offenses during the period between 1995 and 2005. * In 2005, immigration (27%) was the most prevalent arrest offense followed by drug (24%) and supervision violations (17%). * Five federal judicial districts along the U.S.-Mexico border accounted for 40% of all suspects arrested and booked by the U.S. Marshals Service in 2005. 09/08 NCJ 220383 Press release | Acrobat file (116K) | ASCII file (23K) | Spreadsheets (zip format 12K)

Reference:

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

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