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Access to Courts/Legal Info

     In confiscating legal papers from prisoner's cell, prison authorities did not violate his right to provide legal assistance to other inmates when applicable state law and regulations provided adequate legal assistance to prisoners, so that the Department of Corrections could limit prisoners providing such assistance to other inmates. Even if such adequate assistance had not been provided, however, a policy barring prisoners from possession of each other's legal documents was reasonably related to legitimate penological interests. The prisoner did not have standing to assert any claimed right of other prisoners to receive legal assistance from him. An adequate post deprivation state law remedy was provided for the deprivation of the prisoner's property. Pennick v. Mason, No. 06-35978, 2008 U.S. App. Lexis 16720 (Unpub. 9th Cir.).

    While a prisoner claimed, in his federal civil rights lawsuit for denial of access to the courts, that the confiscation of his computer disks and the hard drives from a computer interfered with his attempt to comply with court deadlines concerning briefing deadlines in a civil rights lawsuit appeal, the trial court rejected this claim. The court noted that he had previously represented to the U.S. Court of Appeals for the First Circuit that he was having difficulty complying with the deadlines because of medical conditions and impaired vision. Additionally, while the confiscation of the disks in question might have resulted in the plaintiff not having as much access to legal materials as he wanted in the form he preferred, he was still able to pursue his appeal, and received an opinion from the appeals court on the merits of case, so that there was no actual injury suffered. Rollins v. Magnusson, Civil No. 06-103-B-K, 2008 U.S. Dist. Lexis 28883 (D. Maine).

Chemical Agents

     When a prisoner refused to obey a jailer's orders during a disagreement, creating a disturbance, there was a need to use force and a short burst of pepper spray was not excessive. The prisoner's assertion, however, that he was confined in a small cell following the incident and was not allowed to wash off the spray was sufficient to state a claim for excessive use of force. Danley v. Allen, No. 07-12328, 2008 U.S. App. Lexis 17837 (11th Cir.).

Disability Discrimination: Prisoners

     A quadriplegic inmate confined to a wheelchair may have filed at least thirty prior frivolous cases against correctional officials but an injunction against him filing future lawsuits was overbroad in that it went beyond barring duplicative lawsuits concerning his conditions of confinement and did not uphold his right of access to the courts. His disability discrimination claim being asserted was at least arguable, when the prisoner had been moved in and out of various correctional facilities, so that his claim that he was not provided with adequate accommodation for his physical limitation and medical problems, that he was placed in a cell too small for his wheelchair to move, and that he was not provided with accessible toilets and catheters might be true of different locations. The dismissal of his lawsuit was therefore reversed. Miller v. Donald, No. 06-10536, 2008 U.S. App. Lexis 18611 (11th Cir.).

     Although a prisoner showed that one of his legs was shorter than the other, he failed to show that leg or knee problems interfered with his ability to perform major life activities, as required to constitute a disability for purposes of a disability discrimination claim. Claims for substandard medical care must be pursued under the Eighth Amendment, rather than under the federal disability discrimination statutes. Montez v. Owens, No. 92-N-870, 2008 U.S. Dist. Lexis 62815 (D. Co.).

     Federal appeals court upheld, in part, the dismissal of a lawsuit claiming that prison officials engaged in disability discrimination by holding a disciplinary hearing without providing a sign language interpreter. Claims, which, if successful, would imply the invalidity of the disciplinary conviction that caused a loss of good-time credits could not be pursued when the prisoner failed to show that the conviction had already been overturned. The prisoner could, however, on remand, pursue claims that concerned the conditions of his confinement and were independent of a challenge to his disciplinary conviction. Fresquez v. Moeroyk, No. 06-17273, 2008 U.S. App. Lexis 16772 (9th Cir.).

Employment Issues

     Nine separate incidents of alleged sexual harassment and discrimination that a female prison employee claimed occurred over almost a two year period did not show "severe and pervasive harassment," according to a federal appeals court, rejecting the plaintiff's argument that she was treated like a "sex object," and that the environment she worked in was like a "men's club" and was degrading and humiliating. Additionally, the city showed legitimate reasons for her termination after she stopped coming to work when there was evidence that she never submitted paperwork which would have been required for the approval of leave under the Family and Medical Leave Act, including paperwork from her doctor. Stephenson v. City of Philadelphia, No. 06-3522, 2008 U.S. App. Lexis 18629 (Unpub. 3rd Cir.).

     The New Jersey Department of Corrections' training academy no-facial hair policy was facially neutral and only incidentally burdened religious conduct. It was rationally related to compliance with federal and state health regulations concerning the use of respirator masks and to a concern about the esprit de corps, which comes from uniformity of appearance. It therefore did not violate the rights of a Muslim trainee removed from the training program when he failed, on three separate occasions, to keep his beard within parameters allowed to him as an accommodation of his religion. The policy would be lawful, the court stated, under any standard of review, including strict scrutiny. Valdes v. New Jersey, No. 07-2971, 2008 U.S. App. Lexis 17380 (Unpub. 3rd Cir.).

False Imprisonment

     Prisoner re-incarcerated for committing criminal offenses while out on parole was legally re-incarcerated, but was not afforded a timely parole violation hearing, resulting in him being falsely imprisoned for 74 days. The inmate was entitled, under Ohio law, to damages for mental distress, and to compensation for the days he was falsely imprisoned. The measure of damages for false imprisonment, however, was not that afforded under state law to an innocent person who was wrongfully imprisoned, but rather the lesser amount provided to a person falsely imprisoned beyond the term of his lawful incarceration. Dentigance v. Adult Parole Authority, Case No. 2005-04373, 2008 Ohio Misc. Lexis 175 (Ohio Ct. of Claims).

Inmate Property

     Prison officials failed to show that a regulation under which they confiscated a prisoner's magazine tear-outs of photographs was rationally related to legitimate objectives. The photo tear-outs were confiscated because they came from the prisoner's magazines, while, had those photos been part of a clipped article that arrived in the mail to the prisoner, they would not have been confiscated. The prisoner, therefore, could pursue his First Amendment claim, but the defendant officials were entitled to qualified immunity on a claim for damages because they acted pursuant to official prison policies, and those policies were not "patently" in violation of established constitutional rights. Brown v. Mason, No. 06-35766, 2008 U.S. App. Lexis 16725 (Unpub. 9th Cir.).

Mail

     Prisoner's claim's concerning the alleged "censorship" of his correspondence with the media was properly dismissed when he failed to specify who engaged in the alleged censorship, and what the "censorship' consisted of. The court also properly rejected the prisoner's claim concerning alleged denial of access to the law library when he failed to show that this interfered with his ability to pursue a particular legal claim. While he mentioned an adoption case, he did not state that his parental rights were at stake in the case. Shupe v. Morganflash, No. 07-8087, 2008 U.S. App. Lexis 18588 (10th Cir.).

     Prison officials did not violate the plaintiff prisoner's First Amendment rights or "censor" his mail in opening his mail, as it was properly subject to inspection in order to prevent the introduction of contraband into the facility. Ransom v. Greenwood, No. 06-56500, 2008 U.S. App. Lexis 16754 (9th Cir.).

Medical Care

     A prisoner suffering from asthma complained, at a jail, about difficulty with breathing, and asked to be sent to a hospital. He was examined by nurses, and by the time his request for hospitalization was granted, he had suffered a severe asthma attack and died. Correctional officers were entitled to qualified immunity in a lawsuit contending that they violated his Eighth Amendment rights since they reasonably relied on the nurse's medical treatment of the prisoner, once they obtained such treatment for him. The qualified immunity defense, however, did not apply to nurses employed by a private medical provider. Harrison v. Ash, No. 07-2077, 2008 U.S. App. Lexis 18503 (6th Cir.).

     Sheriff, through his employees at a correctional center, did not act with deliberate indifference in abruptly discontinuing a detainee's pain medication and allegedly failing to properly treat her withdrawal, causing her to attempt suicide. The detainee did not show any signs of her difficulties, and she never told jail employees that she was suffering from withdrawal or report the use of medications linked to complications such as seizures or psychosis. Corley v. Prator, No. 07-31002, 2008 U.S. 18498 (5th Cir.).

     A doctor's failure to indicate on a consultation form that an examined prisoner should receive a neurological consultation was, at most, negligence, and was insufficient to support a claim for constitutionally inadequate medical treatment. Another doctor's denial, repeatedly, of an orthopedic consultation and the "minimal" treatment of the problem provided by prison medical staff members could be viewed as "so cursory" as to amount to no treatment at all, and could be the basis of a constitutional claim. Parzyck v. Prison Health Services, Inc., No. 07-14715, 2008 U.S. App. Lexis 18051 (Unpub. 11th Cir.).

     Prisoner who claimed that he was denied proper medical care of stomach, back, and mental health problems was, in fact, seen by a physician, a mental health doctor, and nurses, and provided with both medication and treatment. Further, he failed to show that he suffered from serious medical needs that required prompt attention, or that he had let particular correctional personnel know about alleged serious medical needs. The prisoner was, however, given time to file a supplement to his complaint in an effort to attempt to state a constitutional claim. Dougherty v. Kansas, No. 08-3066, 2008 U.S. Dist. Lexis 60381 (D. Kan.).

     The prisoner only showed that he disagreed with the medical decision by doctors that he should not be provided with anti-viral therapy for his Hepatitis C, which was insufficient to show deliberate indifference to his serious medical needs. One doctor's affidavit indicated that, because the prisoner had three prior episodes of inflicting injury on himself while on interferon, which could be interpreted as suicide attempts, that the prisoner was ineligible for antiviral treatment. The prisoner also failed to show that he suffered liver damage from alleged exposure to "toxic" paint. Edmonds v. Rees, No. 3:06-CV-P301, 2008 U.S. Dist. Lexis 61839 (W.D. Ky.).

     A prisoner's records did not show deliberate indifference to his serious medical needs when a doctor "aggressively" treated him and made repeated requests for appropriate neurological tests. The physician who allegedly decided to postpone a follow-up based his decision on a favorable medical report, and approved the follow-up exam when new medical findings were reported. The delay was, at most, negligence, and could not support a constitutional claim. Mabry v. Antonini, No. 07-2122, 2008 U.S. App. Lexis 17278 (6th Cir.).

     A prisoner who was denied refills of his prescription medication presented a triable issue of whether there was deliberate indifference to his serious medical needs. Padilla v. Crawford, No. 06-16017, 2008 U.S. App. Lexis 16714 (9th Cir.).

Medical Care: Mental Health

     In a class action over alleged inadequate mental health care of inmates at a county jail, the plaintiffs failed to define in "reasonably particular" detail, what adequate mental health screening would be or a system for delivering medications, and that injunctive relief concerning the treatment of the class was manageable and "conceivable," in light of the individual characteristics and circumstances of class members, including the severity and nature of their mental illnesses. Class certification was therefore properly denied. Shook v. Board of County Commissioners, County of El Paso, No. 06-1454, 2008 U.S. App. Lexis 18542 (10th Cir.).

    While an inmate's claim concerning his allegedly inadequate mental health treatment focused on his desire to be admitted to a particular mental health facility, he was nevertheless required under 42 U.S.C. Sec. 1997e of the Prison Litigation Reform Act to exhaust all available administrative procedures before filing suit, even if those procedures could not provide him with the precise relief that he was seeking. He had an opportunity to appeal a decision to transfer him out of the facility after a determination that his conduct had become a "barrier" to his participation in the program there, but failed to appeal. Additionally, examining psychologists failed to find that he suffered from a mental illness. The trial court properly granted summary judgment to the defendants in his lawsuit. Gruenberg v. Lundquist, No. 08-1251, 2008 U.S. App. Lexis 18216 (Unpub. 7th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner failed to show that he exhausted his available administrative remedies before filing his federal civil rights lawsuit. Evidence showed that he knew that 11 of his 12 administrative grievances were rejected for procedural deficiencies, but he failed to correct identified errors or pursue administrative appeals. He argued that he should be excused from the exhaustion of remedies requirements because the grievance process was made unavailable to him by defendants failing to visit his cell area to accept and return grievances. Affidavits that he submitted in support of that argument, however, were entitled to "little weight," when a number of them contained typewritten signatures all dated on Friday December 1, 2006 at various locations throughout the county, which were all submitted by him together on Monday, December 4, 2006, which would have been impossible using the prison's mail system. This, the court stated, suggested that the prisoner had created those signatures himself. Queen v. McIntire, No. 08-3058, 2008 U.S. App. Lexis 18580 (10th Cir.).

     A prisoner who sued for injuries suffered from his alleged deliberate exposure to an electrical shock could be excused from the requirement that he exhaust available administrative remedies before filing suit when he contended that he was unable to appeal the denial of his grievance based on a warden's alleged retaliatory threat to transfer him if he did so. If true, the warden thereby made it clear that the prisoner's overall condition would become worse if he pursued his appeal, which "effectively" made the administrative remedy unavailable. Further proceedings were ordered on disputed factual issues. Turner v. Burnside, No. 07-14791, 2008 U.S. App. Lexis 18510 (11th Cir.).

Prisoner Assault: By Inmate

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

     In a lawsuit by a pretrial detainee attacked by other prisoners who were gang members, he failed to show that correctional officials and officers acted with deliberate indifference in housing gang members together with non-gang members and allegedly periodically leaving them unsupervised. He failed to show the existence of a "de facto" policy of housing gang members and non-gang members together, of allowing gang members to retain weapons, or of leaving prisoners unsupervised. Further, he failed to show that officers were aware of a specific threat to him, since he did not tell them about threats after a first attack, or tell them that the attack occurred because he was not a gang member. Klebanowski v. Sheahan, No. 06-2572, 2008 U.S. App. Lexis 18760 (7th Cir.).

     Prisoner did not show that prison officials were on notice that he faced a substantial risk of assault by a fellow inmate and disregarded that risk. His claim that the risk should have been obvious to them after another prisoner called him a child molester was insufficient. Davis v. Williams, No. Civ. No. 05-067, 2008 U.S. Dist. Lexis 64032 (D. Del.).

     A detainee presented no evidence, for six assaults on him by other prisoners, that jail guards knew about the risks to his safety. Summary judgment should not have been granted, however, as to a seventh assault, which the detainee claimed was watched by one of the guards, as there was a genuine issue of material fact, in that instance, whether the guard was deliberately indifferent to the plaintiff's safety. There were also genuine issues as to whether three guards acted with deliberate indifference to the detainee's medical needs. Grieveson v. Anderson, No. 05-4681, 2008 U.S. App. Lexis 17554 (7th Cir.).

Prisoner Assault: By Officers

     Prisoner who claimed that he was beaten by correctional officers failed to show that the warden was personally involved in the violation of his rights or that there was an unlawful county policy or custom concerning the use of excessive force or that such a policy caused his injuries. Further, he failed to show that the force used against him was excessive under the circumstances. Hernandez v. York County, No. 07-4774, 2008 U.S. App. Lexis 17985 (Unpub. 3rd Cir.).

     Prisoner stated a possible claim for excessive use of force by three guards who allegedly were members of a team that sprayed him with pepper spray, slammed him into a wall, and choked and stunned him with a Taser for at least five minutes after forcing him to the floor. Rollen v. Horton, No. 3:08-0227, 2008 U.S. Dist. Lexis 59657 (M.D. Tenn.).

Prisoner Classification

     Bureau of Prisons (BOP) regulations allowing the transfer of prisoners to community correctional facilities (Residential Re-Entry Centers or RRC) only during the final ten percent of their sentences held to violate statutory provisions enacted by Congress giving the BOP authority to transfer prisoners to such facilities at any time. Rodriguez v. Smith, No. 07-16014, 2008 U.S. App. Lexis 18918 (9th Cir.).

Prisoner Transfer

     Prisoner failed to show that his transfer to another facility was in retaliation for his pursuit of grievances, or that his grievances were denied in retaliation, rather than because the defendant officials believed that they had no merit. Additionally, the defendants presented "plausible and independent" reasons for transferring him. It was also undisputed that he had previously requested a transfer, and that the transfer moved him 200 miles closer to his home. Alexander v. Forr, No. 06-4467, 2008 U.S. App. Lexis 18682 (Unpub. 3rd Cir.).

Religion

     Correctional officials were entitled to qualified immunity from liability for damages in a lawsuit concerning alleged failure to accommodate a prisoner's religious beliefs when his "Hebrew Israelite" religion was not yet officially recognized, and the sincerity of his beliefs had been questioned in a prior lawsuit. The prisoner sufficiently pursued his claim for daily kosher meals through the grievance procedure, and further proceedings were ordered as to whether the denial of such meals was the least restrictive means to accomplish a compelling governmental interest. Walker v. Iowa Dept. of Corrections, No. 06-1839, 2008 U.S. App. Lexis 18631 (8th Cir.).

     Federal magistrate finds that Congress, in passing the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc, did not unequivocally waive state immunity from suits for damages, so that an inmate's claim for damages against an official in his official capacity was barred by Eleventh Amendment immunity, and a claim for money damages was not available under the Act against a prison official in his individual capacity. On the prisoner's claim for alleged violation of his First Amendment rights to religious freedom by denying his request to purchase an ankh cross, however, the magistrate found that 42 U.S.C. Sec. 1997e did not bar punitive damages because punitive damages are not for mental or emotional injury. Additionally, even if he were seeking damages for mental or emotional injury, those damages would potentially be recoverable because Sec. 1997e does not apply to First Amendment claims. Porter v. Caruso, No. 1:05-CV-562, 2008 U.S. Dist. Lexis 64347 (W.D. Mich.).

     Shi'ite Muslim prisoners presented a genuine issue of material fact as to whether their rights were violated by the failure to provide them with separate Friday Jumah prayer services for Shi'ite inmates led by a Shi'ite cleric, giving them only the options of either attending a Sunni Muslim led service or praying the Zohr prayer alone in their cells, which they claimed was inadequate. Further proceedings would examine whether the defendant prison officials could accommodate the plaintiffs' request for a Shi'ite led prayer service without jeopardizing legitimate penological objectives. A claim by a former inmate for injunctive relief was dismissed, as was a claim for money damages. Pugh v. Goord, No. 00 Civ. 7279, 2008 U.S. Dist. Lexis 60998 (S.D.N.Y.).

Segregation: Administrative

     Prisoner failed to present a viable due process claim concerning his initial placement in administrative segregation when he admitted that he was provided with notice of the facts on which his placement there was based, as well as an opportunity to be heard. The prisoner also failed to present a viable claim as to whether the periodic reviews of his continued placement there were adequate, or concerning the adequacy of lighting in his cell, the adequacy of the exercise provided to him, or the adequacy of the calories provided. A claim concerning his medical care was also rejected. Hampton v. Ryan, No. 06-17388, 2008 U.S. App. Lexis 16770 (Unpub. 9th Cir.).

Strip Searches: Prisoners

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

     Alleged blanket policy of strip searching all persons arrested and classified for housing in the general jail population violated the detainees' Fourth and Fourteenth Amendment rights when the policy did not require reasonable suspicion of possession of weapons, drugs, or contraband or take individualized factors into account. The defendants' evidence concerning the discovery of contraband during the strip searches did not provide any indication of the charges of the individuals searched or of the reason why they were searched. Without such information, the court could not find any reasonable relationship between the criteria triggering the searches and the interest in carrying out the searches. The law on the subject was also clearly established at the time of the alleged violations. Bull v. City and County of San Francisco, No. 05-17080, 2008 U.S. App. Lexis 18026 (9th Cir.).

    •Return to the Contents menu.

     Medical Care: Bureau of Prisons (BOP) Pandemic Influenza Plan Module 3: Health Care Delivery and Module 4: Care for the Deceased (8/26/08).

     Mentally Ill Persons: Improving Responses to People with Mental Illnesses: The Essential Elements of a Specialized Law Enforcement-Based Program A report prepared by the Council of State Governments Justice Center in partnership with the Police Executive Research Forum for Bureau of Justice Assistance, Office of Justice Programs, Justice Center, 26 pgs. .PDF format. (8/18/08).

     Statistics: Characteristics of State Parole Supervising Agencies, 2006. Presents information for 52 state parole supervising agencies at midyear 2006, including the California Youth Authority and the District of Columbia. This report describes, by state, where these agencies were located in each state's administrative structure, the number of adult parolees, and probationers, if any, under supervision, and the number of separate offices the parole agency operated. National estimates are presented for the number and type of staff employed by parole supervising agencies and of parole supervision caseloads. Use of drug abuse testing, various treatment programs, and the availability of housing and employment assistance programs are documented. Highlights include the following: * Five state agencies accounted for about half of the adults under parole supervision on June 30, 2006: Departments of Corrections in California (125,067 adults on parole); Texas (101,175); and Illinois (33,354); and two independent agencies, New York (53,215) and Pennsylvania (24,956, excluding adults supervised by county parole offices). * Half of parole supervising agencies had a role in releasing prisoners to parole, setting the conditions of supervision, or conducting revocation hearings. * Up to 16% of at-risk parolees in some agencies were re-incarcerated for a failed drug test. 08/08 NCJ 222180 Press release | Acrobat file (133K) | ASCII file (19K) | Spreadsheets (zip format 19K)

     Statistics: Parents in Prison and Their Minor Children. Presents data from the 2004 Survey of Inmates in State and Federal Correctional Facilities about inmates who were parents and their minor children. This report compares estimates of the number of incarcerated parents and their children under the age of 18, by gender, age, race, and Hispanic origin in state and federal prisons in 1991, 1997, 1999, 2004, and 2007. It presents the total number of children who were minors at some time during their parent’s incarceration. The report describes selected background characteristics of parents in prisons, including marital status, citizenship, education, offense type, criminal history, employment, prior experiences of homelessness, drug and alcohol involvement, mental health, and physical and sexual abuse. It provides family background of inmate parents including household makeup, public assistance received by household, drug and alcohol use, and incarceration of family members. It includes information on the children’s daily care, financial support, current caregivers, and frequency and type of contact with incarcerated parents. Highlights include the following: * The nation’s prisons held approximately 744,200 fathers and 65,600 mothers at midyear 2007. * Parents held in the nation’s prisons—52% of state inmates and 63% of federal inmates—reported having an estimated 1,706,600 minor children, accounting for 2.3% of the U.S. resident population under age 18. * Growth in the number of parents held in state and federal prisons was outpaced by the growth in the nation’s prison population between 1991 and midyear 2007. 08/08 NCJ 222984 Press release | Acrobat file (175K) | ASCII file (38K) | Spreadsheets (zip format 22K)

Reference:

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

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