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A Civil Liability Law Publication
for officers, jails, detention centers and prisons
Cite this issue as 2000 JB Apr (web edition)
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(Published as VOLUME 2000 NUMBER 280)
CONTENTS
Access to Courts/Legal Info
Disability Discrimination
Emotional Distress
Homosexual and Bi-Sexual
Prisoners
Inmate Property
Prisoner Injury/Death
Privacy
Procedural: Jury Selection
Race Discrimination
Religion
Sex Discrimination
Sexual Assault
Smoking
Strip Searches
Index of Cases Cited
Disciplining inmate law clerk for writing letter to another prisoner
containing legal advice violated law clerk's First Amendment rights.
An inmate law clerk at a Montana state prison sent a letter containing
legal advice to a fellow inmate. He was unable to visit the other prisoner
directly because he was in the maximum security wing of the prison. He
had provided legal assistance to this prisoner before and learned that
his assistance had been requested in a new case in which the other prisoner
had been charged with assaulting a correctional officer.
His letter contained information that the officer had allegedly
engaged in a variety of misconduct towards other prisoners, including "homo-sexual
advances." He knew that the letter would be read by prison officials
pursuant to prison regulations. As a result of the letter, the prisoner
was "written up" and charged with violation of rules prohibiting
interference with due process hearings and "insolence." He was
found guilty of these offenses and given a suspended sentence of 10 days
detention and received three "reclassification points."
A lawsuit by the inmate law clerk claimed that the imposition of
discipline on him under these circumstances violated the First Amendment,
and abridged the right of inmates to access to the courts and to the present
habeas petitions.
The trial court granted summary judgment for the defendant correctional
officials. Disagreeing, a federal appeals court found that a summary judgment
should be entered in favor of the inmate law clerk on his First Amendment
claim. It was undisputed that he was a law clerk and that his letter to
the other prisoner contained legal advice. As applied to "legitimate
law clerk correspondence," the rules applied were an "exaggerated
response" to the prison's interest in security and order, and "thus
impermissibly infringed" the plaintiff's First Amendment rights.
The appeals court, having found that the plaintiff was entitled
to summary judgment on his First Amendment claim, did not reach his argument
that prison officials had also interfered with other prisoners' right of
access to the courts. Murphy v. Shaw, No. 97-35989, 195 F.3d 1121
(9th Cir. 1999).
Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-reference: First Amendment].
Correctional officer whose medical condition required her to avoid
a risk of harm through altercations with inmates could not perform her
essential job functions which involved inmate contact; her termination
was not disability discrimination.
A female correctional officer at a hospital detention unit was in
daily contact with inmates, including intoxicated detainees. She was required
to admit inmates, patrol the unit, make head counts of inmates, handcuff
and guard inmates, and administer breath tests. Some correctional officers
engaged in these duties in the past had been injured by inmates, and one
detainee had kicked this officer in the eye and injured her during a struggle.
The officer suffered a blood clot in her leg and her doctor had
her take an anti- coagulant drug. A side effect of this drug is an increased
risk of hemorrhage if the patient suffers traumatic injury. She gave her
supervisor a note from her doctor instructing that she "may not engage
in any activity in which she may sustain injury--this could result in acute
blood loss and death." She was placed on light duty as a result, and
later ordered to report for a "fitness for duty" examination.
Two successive evaluations indicated that she was medically unfit for her
regular duty. It was later determined to be at risk of physical confrontation
with inmates even while performing her "light duty" assignment.
She was relieved of duty and she subsequently began work as a 911
police dispatcher. She sued her former correctional employer for disability
discrimination under the federal Americans With Disabilities Act (ADA).
The trial court found that the plaintiff's medical condition rendered
her unable to perform the essential functions of her job, which included
some inmate contact, and therefore at possible risk of physical injury.
Creating a light duty job which had no inmate contact was not a "reasonable
accommodation," but rather the creation of a new position with different
responsibilities. It is not "reasonable accommodation" of a disability
if it does not allow the employee to perform the essential functions of
their job. "There was no reasonable accommodation that would have
allowed plaintiff to patrol the detention center and supervise and restrain
prisoners without being exposed to a risk of physical trauma."
A person with a disability who cannot perform the essential functions
of her job even with reasonable accommodation is not an "otherwise
qualified" individual for their job under the ADA. Terminating them
for inability to perform their regular job functions is therefore not disability
discrimination. Pickering v. City of Atlanta, 75 F. Supp. 2d 1374
(N.D. Ga. 1999).
West Virginia prisoner could not recover damages from warden for
emotional distress allegedly caused by newspaper's mistaken report that
he had died in a prison fire; prisoner did not show that warden had anything
to do with publication of the information, and Prison Litigation Reform
Act barred recovery for emotional injury in the absence of any showing
of physical injury.
A West Virginia prisoner filed a federal civil rights lawsuit against
the warden for damages for emotional distress he allegedly suffered as
a result of his name being wrongfully printed in a local newspaper as having
died in a prison fire.
The trial court granted the defendant warden's motion to dismiss.
The court noted that: 1) there was no showing of any conduct or knowledge
on the part of the warden that would render him responsible for the publishing
of the inmate's name in the newspaper so that the warden was entitled to
qualified immunity in his personal capacity; 2) the warden, as a state
employee, was entitled to absolute immunity under the Eleventh Amendment
from liability in his official capacity; 3) the plaintiff prisoner showed
no physical harm. Accordingly, he was barred from pursuing his claim for
emotional injury suffered while in custody without a prior showing of physical
injury under 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act.
As an additional basis for dismissal, the court found that the lawsuit
was filed beyond the expiration of an applicable two-year West Virginia
statute of limitations. Orum v. Haines, 68 F. Supp. 2d 726 (N.D.W.Va.
1999). [Cross-reference: Prison Litigation Reform Act: Emotional Injury].
Prisoner who was assaulted three times by other inmates after assignment
to a medium security housing unit when he stated that he was a bisexual
failed to show that county jail had a policy or custom of assigning homosexual,
bisexual or HIV-positive prisoners to medium-security unit regardless of
their violent propensities.
A professed bisexual prisoner incarcerated in a Georgia county jail
was placed in a medium-security dormitory. He later claimed that his statement
about his bisexuality was false and was based on information that such
prisoners were housed in a specific unit. After his placement in this unit,
he allegedly was attacked three times by other prisoners, and he claimed
that these attacks caused continuing back and neck pain, limited his ability
to work and function physically, and resulted in mental and emotional trauma.
In a federal civil rights lawsuit he filed against jail officials,
he claimed that there was a custom or practice of housing professed homosexual,
bisexual, HIV-positive and "AIDS- positive" inmates in the same
dormitory regardless of their violent propensities, and that jail officials
took inadequate steps to protect him against the assaults which occurred.
The trial court granted summary judgment to the defendant jail officials.
The appeals court found that the plaintiff prisoner failed to offer sufficient
evidence to create a genuine issue of material fact as to the existence
of the policy or custom which he alleged existed. He did not identify a
single inmate who was placed in his particular housing unit because he
professed that he was homosexual, bisexual, HIV-positive or suffered from
AIDS and should have been placed in a higher security setting because of
his propensity for violence. While one prisoner had previously been classified
as a maximum security risk, he did not show that he had been placed in
the housing unit because he professed to be homosexual, bisexual, etc.
And, while another prisoner was shown to have been sent to the unit, at
least initially, because he told a classification officer that he was a
homosexual, his initial classification form indicated that he was a medium-security
risk and therefore was appropriately placed there.
The court noted that there was also some evidence that, instead
of assigning prisoners to the housing unit regardless of their propensity
for violence, that jail officials on occasion moved particular inmates
out of the unit, at least temporarily,
when they were involved in violent incidents.
There was no evidence that only professed homosexual, bisexual,
HIV-positive or "AIDS-positive" inmate were placed in the unit
either. While the housing unit was considered a "special needs"
unit, it also contained mentally-ill prisoners and prisoners who were on
a suicide watch. Wayne v. Jarvis, No. 97-9152, 197 F.3d 1098 (11th
Cir. 1999).
Text: <http://www.law.emory.edu/11circuit/index.html>. [Cross-reference: AIDS Related; Prisoner Assault: By Inmates].
Changing the amount of property, including both hobby materials and
legal materials, which prisoners could keep in their cells did not violate
prisoners' due process or equal protection rights; appeals court also finds
no violation of the right of access to the courts.
Eight Wyoming prisoners filed a federal civil rights lawsuit claiming
that prison officials deprived them of their property without due process
or equal protection of law. They had acquired a variety of personal property,
including "hobby" and legal materials, which they kept in their
cells. Shortly after the murder of a corrections officer, the prison adopted
a policy limiting the amount of property which could be kept in cells.
Property in excess of the authorized amount was removed from the
prisoners' cells and was stored for 90 days, during which they were allowed
to arrange for its shipment out of the prison to a location of their choice.
The plaintiff prisoners also claimed that restricting the legal materials
they could keep in their cells violated their right of access to the courts.
A federal appeals court upheld the dismissal of this lawsuit. It
found that the U.S. Supreme Court's decision in Sandin v. Conner, 515 U.S.
472 (1995) expressly rejected, in the context of prisoner liberty interests,
the method of analysis set forth in Hewitt v. Helms, 459 U.S. 460 (1983)
under which courts looked to state law to see whether mandatory language
in state statutes or regulations create protected rights which can only
be withdrawn by observing due process standards. Many courts also applied
this Hewitt analysis to see whether there were vested rights to the possession
of property created by state law. Sandin rejected this analysis in prisoner
liberty interest cases, requiring instead that prisoners show that prison
officials' actions impose an "atypical, significant deprivation"
different from the ordinary deprivations of prison life.
The plaintiff prisoners in this case argued that they had a constitutionally
protected right to keep the disputed property in their cells based on a
previously issued state prison Inmate Rules Handbook. The federal appeals
court found that the Sandin Court's analysis was equally applicable to
prisoner property rights cases, and that it could not be said that the
new regulations promulgated by prison officials presented "the type
of atypical significant deprivation [of their existing cell property privileges]
in which a State might create a [property] interest."
The appeals court found that the "regulation of type and quantity
of individual possession in cells is typical of the kinds of prison conditions
that the Court has declared to be subject to the new analysis set forth
in Sandin." The court also rejected the argument that the plaintiff
prisoners had a property right to certain income that they previously received
from their hobby activities.
Finally, the appeals court rejected the "access to the courts"
claim since the plaintiffs could not show that the denial of the right
to keep the specified legal materials in their cells "hindered"
their efforts to pursue any legal claim. Cosco v. Uphoff, #99-8036,
195 F.3d 1221 (10th Cir. 1999).
Text: <http://www.kscourts.org/ca10/>. [Cross-reference: Access to Courts/Legal Info].
Prisoner who suffered from varicose veins awarded $12,500 for increased
pain and suffering based on prison conditions that allegedly caused the
deterioration of his condition.
A prisoner in a New York correctional facility suffered from varicose
veins when he began his prison sentence. He later sued the state, arguing
that negligence and inadequate treatment had resulted in the deterioration
of his condition and in increased pain and suffering.
The New York Court of Claims awarded him $12,500 for pain and suffering.
Medical testimony in the case indicated that the prisoner's condition
was "further exacerbated" by his having to wear State-regulation
boots, sleep on a bed that was too short for him, and work in the horticulture
program. An intermediate New York appellate court upheld the award, but
rejected the argument that the plaintiff was also entitled to an award
of attorneys' fees, since "such an award is expressly prohibited by
Court of Claims Act. Sec. 27." Mihileas v. State of New York,
697 N.Y.S.2d 891 (A.D. 1999).
Male prisoner's right to privacy was not violated by correctional
officials refusal to allow him to block cell observation window with a
piece of paper when he used the toilet, allowing female and male correctional
officers and prisoners passing by to observe him doing so.
A male prisoner in a Virginia correctional facility asserted that
his constitutional right to privacy was violated when correctional officials
prevented him from covering his cell's observation window while he used
the toilet. He claimed that their refusal to allow him to cover the cell's
window with a piece of paper on these occasions resulted in female and
homosexual male officers, staff members, inmates, and "known predators"
being able to view him while he used the toilet because they all regularly
passed by his cell unannounced.
Correctional officials argued that placing such a barrier on the
cell window interfered with prison security and that the prisoner should
place a covering over a portion of his body while seated on the toilet
if he was concerned about a "privacy shield."
A federal trial court granted summary judgment for the defendant
correctional officials. It noted that while inmates may have a right to
be protected from "gratuitous and unnecessary observation while they
use their cell toilets, prison officials have an overriding responsibility
to take whatever steps may be reasonably necessary, including surveillance
of inmates, to maintain prison security."
Further, the existing controlling case law "does not make clear
that removing a paper covering from a cell observation window violates
an inmate's constitutional right to privacy, even if, as a result, persons
may view him using the toilet." Therefore "reasonable officials
in the place of defendants would not clearly understand that their specific
actions and policies violated plaintiff's right to privacy." The prison
officials were therefore entitled to qualified immunity from liability.
The court also denied the request for injunctive relief. It found
that the prison officials' actions were sensible and reasonable security
measures under the circumstances. "Allowing inmates to cover their
cell door observation windows would impose significant additional burdens"
on correctional officials and their staff "because every time they
wished to survey the activity inside," they would have to "take
steps (literally) to move the covering from the observation window."
Finally, allowing the prisoner to cover a portion of his body while using
the toilet is a reasonable alternative method of protecting inmate privacy.
MacDonald v. Angelone, 69 F. Supp. 2d 787 (E.D. Va. 1999).
California court rules that it is improper to strike gays and lesbians
from a prospective jury on the basis of their sexual orientation.
A number of prior court decisions have provided that it is improper
to use peremptory challenges to strike prospective jurors on the basis
of race, gender, or religion. In a recent decision, an intermediate California
appeals court has extended this principal to discrimination against gays
and lesbians in jury selection. While the decision came in a case involving
a criminal prosecution, the reasoning would appear to apply in civil cases
also. People v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339
(Cal. App. 2000).
Text: <http://www.courtinfo.ca.gov/opinions/>
Black prisoner's claim that he was denied an extra mattress and blanket
while his white cellmate was given one stated an equal protection claim,
as did his assertion that he was placed in solitary confinement for racially
discriminatory reasons.
A black prisoner in a South Dakota prison asserted that he and his
white cellmate, who followed the same procedures in requesting an extra
mattress and extra blanket, were treated differently by a correctional
officer for racial reasons. The officer granted his cellmate's requests
but denied his. He also claimed that another officer placed him in solitary
confinement for racially discriminatory reasons, treating him differently
than another inmate of a different race involved in the same conduct.
The trial court dismissed these complaints for failure to state
a claim. A federal appeals court disagreed, finding that an allegation
that the prisoner was treated differently than similarly situated prisoners
simply on the basis of race states an equal protection claim. Powells
v. Minnehaha County Sheriff Dept., No. 99-2029, 198 F.3d 711 (8th Cir.
1999).
Text: <http://www.wulaw.wustl.edu/8th.cir>.
Prisoner who declared that he was Jewish could not be properly denied
kosher food on the basis that prison Jewish chaplain did not recognize
him as Jewish; the proper legal issue was whether his religious beliefs
were sincerely held.
An African-American prisoner in the New York state prison system
identified himself as Jewish when he was first incarcerated in 1986, and
received a kosher diet at a number of correctional facilities. When he
was transferred to another facility in August of 1995, eligibility for
a kosher diet was determined by the prison's Jewish Chaplain "through
a process of interview and review of documentation to substantiate the
inmate's Judiac background and intent to strictly observe Jewish dietary
law."
The chaplain told the prisoner that he could only be Jewish if he
was either born Jewish or else had completed a formal conversion process.
The prisoner disagreed, saying that he was Jewish because he "read
the Torah [the old testament] and ate kosher food." He later claimed
that his mother had been Jewish but the chaplain was unable to confirm
this, and the prisoner declined to contact his mother, for fear of "upsetting"
her.
>
The chaplain decided that there was insufficient evidence that the
prisoner was Jewish and he was removed from the kosher diet program. The
prisoner filed a federal civil rights lawsuit against the chaplain and
various other prison officials, claiming that his right to practice his
religion had been violated.
The trial court granted summary judgment for the defendants. A federal
appeals court reversed in part. It found that the proper issue was not
the "objective 'accuracy' of" the prisoner's claim that he was
Jewish, but rather whether his religious beliefs are "objectively
held." The appeals court rejected the contention that the question
of Jewish stats is an "ecclesiastical question" beyond the competence
of federal courts and is best left to prison religious authority.
Whether the prisoner's religious beliefs were entitled to Free Exercise
protection "turns on whether they are 'objectively held,' not on the
'ecclesiastical question' whether he is in fact a Jew under Jewish law.
The court therefore ordered further proceedings in the lawsuit to apply
this standard. Prison officials were not entitled to qualified immunity,
because the right to practice "sincerely held" religious beliefs
was clearly established. Jackson v. Mann, No. 97- 2968, 196 F.3d
316 (2nd Cir. 1999).
Text: <http://www.tourolaw.edu/2ndCircuit>. [Cross-reference Diet].
Federal appeals court upholds $385,000 sanction against state correctional
department for failure to obey court orders to provide equal access to
vocational training and apprenticeship programs for female prisoners.
In federal civil rights litigation over alleged sex discrimination
against female prisoners in Michigan correctional facilities, state correctional
officials were ordered to provide vocational training and apprenticeship
opportunities for female prisoners equal to those provided for male prisoners.
In later proceedings, the trial court ruled that correctional officials
were in contempt of its orders and imposed sanctions in the amount of $5,000
a day, for a total of $385,000, for a time period during which female prisoners
were denied such programs despite the court's orders.
A federal appeals court upheld these sanctions, rejecting correctional
officials' argument that the sanctions should be set aside as excessive
or because the Michigan correctional facilities were now in compliance
with the original orders. The
appeals court found that the sanction imposed "was not intended as
compensatory damages, but as a punitive measure designed to force the Department
finally to comply with the court's lawful orders, after years of defiance
and delay. It would seem to have succeeded, since the Department was found
to have followed the court's order within ten weeks."
Rather than being excessive, the appeals court found that the sanctions,
"in light of the Department's years of noncompliance," were "remarkably
forbearant," and "succeeded in capturing the Department's attention."
The imposition of sanctions for a "coercive, rather than compensatory"
purpose was appropriate in these circumstances, the appeals court stated.
The money collected as a sanction will be placed in a fund for the benefit
of women prisoners in Michigan, with the recommendation that it be used
for the "purpose of defraying the future cost of the vocational programs
ordered." Glover v. Johnson, #98-1900, 98-2140, 199 F.3d 310
(6th Cir. 1999).
Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.
[Cross- reference: Work/Education Programs].
Prisoner's assertion that correctional officers sexually assaulted
him on three occasions satisfied the requirement of a physical injury for
recovery for emotional damages stated in the Prison Litigation Reform Act.
A New York prisoner asserted that a number of correctional officers
sexually assaulted him on three separate occasions, and further asserted
use of excessive force during "intrusive body searches."
The trial court dismissed these claims, finding that these were
emotional distress claims for which there could be no recovery without
a prior showing of physical injury under 42 U.S.C. Sec. 1997e(e) of the
Prison Litigation Reform Act. The appeals court disagreed. "The alleged
sexual assaults qualify as physical injuries as a matter of common sense,"
and would constitute more than minimal injury if they occurred. Additionally,
the trial court failed to consider whether the sexual assaults might state
a claim under the "Eighth Amendment in addition to stating a claim
for emotional distress." Liner v. Goord, No. 98-2925, 196 F.3d
132 (2nd Cir. 1999).
Text: <http://www.tourolaw.edu/2ndCircuit>.
[Cross-reference: Prison Litigation Reform Act: Emotion Injuries].
Federal
trial court rules that sexual relations between a female prisoner and a
male correctional officer, even if allegedly consensual, were a per se
violation of the Eighth Amendment in a state which criminalized such conduct;
consent defense was not available to officer in federal civil rights lawsuit.
When a female inmate in a Delaware state prison brought a lawsuit
against a male correctional officer, claiming that the officer violated
her constitutional rights by sexually assaulting her, could the officer
defend against liability by admitting to engaging in a sexual act with
her, but contending that she consented to the act? "No," according
to the federal trial court.
The trial court directed a verdict against the officer on the issue
of liability, and ruled that the officer could not assert the plaintiff's
alleged consent as a defense to the claimed constitutional violations.
The prisoner claimed that the officer entered her room while she
was taking an afternoon nap, woke her, told her to be quiet, placed a condom
on his penis, and then engaged in vaginal intercourse with her against
her will. The officer claimed that the plaintiff engaged in an act of oral
sex with him, rather than vaginal intercourse, and that she consented to
it and seduced him. He also claimed that she then wanted to have sexual
intercourse with him, but that he refused. He claimed that the prisoner
"conspired" to report the incident as a rape, so that she could
sue for money.
"The Court finds this factual discrepancy to be of no import,"
the trial judge wrote, "because, the Court concludes, as a matter
of law, that an act of vaginal intercourse and/or fellatio between a prison
inmate and a prison guard, whether consensual or not, is a per se violation
of the Eighth Amendment" in the state of Delaware. The court noted
that the state legislature in Delaware has "spoken on the issue of
sexual intercourse and fellatio in the context of the prison setting and
has concluded that such action, whether consensual or not, constitutes
a criminal offense." Accordingly, the court concluded that such actions
are "at odds with contemporary standards of decency."
The court noted that a number of other courts had "recognized
that the occurrence of sex acts between inmates and prison guards serves
no legitimate penal purpose, may cause severe physical and/or psychological
harm and may violate contemporary standards of decency." See Boddie
v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). The court noted that,
unlike other cases in which incidents of "fondling, touching or suggestive
sexual behavior" were held to be "insufficient to state an Eighth
Amendment claim," this case "involves actual sexual intercourse,"
whether vaginal or oral.
The court found the mere fact that the defendant admitted to having
engaged in a sexual act with the prisoner sufficient evidence, "in
and of itself, to establish as a matter of law that" he "acted
with deliberate indifference toward the Plaintiff's well-being, health
and security."
The court further reasoned that there was a special relationship
between a prisoner and those to whom her "care and custody are committed."
By eliminating consent as a defense to a crime of sex between a prisoner
and a correctional employee, the Delaware legislature "recognizes
the vulnerability of inmates to abuse by those empowered to control the
inmate's existence." The court concluded that the defendant, as a
matter of law, could not establish a "voluntary, knowing and intelligent
waiver" by the plaintiff of her right to be free of sexual contact
with the defendant. Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del.
1999).
EDITOR'S NOTE: In Fisher v. Goord, 981 F. Supp. 140
(W.D.N.Y. 1997), a federal trial court found that an inmate could, under
some circumstances, be found to have consented to sexual relations with
a correctional officer. But this court itself noted that the activity in
question took place before the state of New York enacted a revised statute
making sexual relations of any kind between an inmate and a correctional
officer statutory rape.
Prisoners right to be free from unreasonable levels of exposure to
second-hand tobacco smoke was "clearly established" in 1993,
federal appeals court rules; prison officials were not entitled to qualified
immunity from liability for alleged health problems caused by having allowed
smoking in certain areas of New York prison.
Three New York state prisoners sued correctional officials, claiming
that they were subjected to cruel and unusual punishment through exposure
to environmental tobacco smoke (ETS), also known as second-hand smoke.
Defendant correctional officials argued that they were entitled to summary
judgment either because exposure to second-hand smoke was not an Eighth
Amendment violation or on the basis of qualified immunity. The trial court
declined to accept these arguments.
A federal appeals court upheld this result. The appeals court noted
that the U.S. Supreme Court, in Helling v. McKinney, 509 U.S. 25
(1993), decided two months before the plaintiffs filed their lawsuit, held
that the Eighth Amendment prohibits prison officials from exhibiting deliberate
indifference to future health problems that an inmate may suffer as a result
of current prison conditions, even if the inmate "shows no serious
current symptoms." The Supreme Court explained that a plaintiff "states
a cause of action under the Eighth Amendment by alleging" that defendants
have, "with deliberate indifference, exposed him to levels of ETS
that pose an unreasonable risk of serious damage to his future health."
After Helling, the appeals court found, it was "clearly
established that prison officials could violate the Eighth Amendment through
deliberate indifference to an inmate's exposure to levels of ETS that posed
an unreasonable risk of future harm to the inmate's health."
The appeals court also found that the medical dangers of ETS were
well known to the defendants. Indeed, the prison's policy itself stated
that the "health risks associated with smoking are well-documented,"
in justifying the prohibition of smoking in certain public areas. The policy
did not regulate smoking, however, in private residences, and treated inmates'
cells as private residences, allowing inmates to smoke freely there, as
well as in certain recreation areas.
The prisoners' lawsuit claimed that the level of ETS in the cells
and common areas of the prison, combined with poor ventilation, created
a serious long-term risk to their health. They also claimed to suffer from
sinus problems, headaches, dizziness, asthma, hepatitis, nausea, shortness
of breath, chest pains, and tuberculosis as a result of exposure to ETS.
The prisoner's allegations, if believed, "overwhelmingly describe
a prison environment permeated with smoke resulting" from "under-enforcement
of inadequate smoking rules, overcrowding of inmates and poor ventilation."
Accordingly, the prison officials were not entitled to qualified immunity,
and the prisoners' lawsuit will proceed to trial. Warren v. Keane,
No. 98-2997, 196 F.3d 330 (2nd Cir. 1999).
Text: <http://www.tourolaw.edu/2ndCircuit>.
Pre-trial
detainee allegedly subjected to second-hand smoke for 4-1/2 years in county
jail could not recover damages from county officials for either present
or future health problems when present health problems were not sufficiently
serious and there was no objective certainty that future health problems
would occur.
A pre-trial detainee at an Illinois county jail was housed in a
non-smoking tier, but claimed that other prisoners routinely violated the
non-smoking policy causing him to be exposed to excessive levels of second-hand
smoke throughout his detention. In a federal civil rights lawsuit against
jail officials, the detainee claimed that they forced him to share a cell
with smokers for the majority of his four-and-one-half year detention,
and that this caused him to experience difficulty in breathing, chest pains,
dizziness, drowsiness, sinus problems, burning sensations in his throat
and headaches.
He also claimed that he might experience significant health problems
in the future as a result of being forced to breathe cancer-causing second-hand
smoke. Upholding summary judgment for the defendants, a federal appeals
court ruled that the detainee's alleged present injuries and health problems
were not "objectively, sufficiently serious" to support a claim
of a violation of his right to due process. There was no allegation that
any physician had diagnosed him as having a medical condition necessitating
a smoke-free environment or treated him for any condition or medical ailment
brought about by exposure to environmental tobacco smoke.
The appeals court also rejected the detainee's claim for damages for future harm. Such damages for future harm may not be awarded, the court ruled, in the absence of evidence that, "to a reasonable degree of medical certainty," the detainee himself faced "some defined, increased risk of developing" a serious future injury or medical condition attributable to exposure to second-hand tobacco smoke. The court found no such evidence in this case. Further, the court ruled that, under applicable Illinois state law, damages for a "currently unmanifested injury" could not be recovered unless the "future serious injury" is "reasonably certain to occur." Henderson v. Sheahan, #98-2964, 196 F.3d 839 (7th Cir. 1999).
Text: <http://www.kentlaw.edu/7circuit/>.
Correctional officials were not liable to female prisoners who were
strip searched by female officers with male officers and staff members
present during emergency evacuation of women's correctional facility because
of flooding of nearby creek; no clearly established law against viewing
of unclothed female prisoners by male officers who did not conduct searches
or touch prisoners.
Officials at an Oregon women's correctional facility decided to
evacuate the prisoners and take them to another facility because of an
emergency involving the flooding of the facility's parking lot by an overflowing
nearby creek. In accordance with policies requiring skin searches of prisoners
prior to inter-institutional transfers, female officers and staff performed
skin searches on female prisoners being transferred.
However, some male staff and officers at the receiving facility
were in the area where the skin searches were conducted while they were
going on. Some of them were walking in and out or doing paperwork and were
able to see the searches. The prisoners subsequently filed a federal civil
rights lawsuit claiming that the presence of these male personnel during
the searches violated their Fourth and Eighth Amendment rights. The trial
court ruled that the defendant correctional officials were entitled to
qualified immunity.
The trial court acknowledged that a federal appeals court had previously
held, in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc),
that a prison policy requiring male guards to conduct random, nonemergency,
suspicionless clothed body searches on female prisoners constituted cruel
and unusual punishment in violation of the Eighth Amendment. This was because
there was evidence that many of the female inmates had been sexually abused
prior to incarceration, and the court concluded that the searches, which
included squeezing and kneading of the breast, groin and thigh areas, were
cruel because they inflicted psychological pain on the inmates.
The court found the searches in this case different. In the immediate
case, male guards may have looked at the female prisoners, but they did
not touch them. Additionally, this case involved "an isolated event
occasioned by the emergency removal of the female inmates to the male prison."
Further,
the court found that there was no "clearly established" constitutional
right for female prisoners not to be viewed by male guards while being
strip searched.
"Because it is not clear to this day whether such a right exists,
there is no question that a right to be free from the viewing of plaintiffs'
unclothed bodies by officials of the opposite sex was not established at
the time of the skin searches in question in this matter," which took
place in 1996. Accordingly, defendant officials were entitled to qualified
immunity. Carlin v. Manu, No. 98-372-HU, 72 F. Supp. 2d 1177 (D.
Or. 1999). [Cross-reference: Privacy].
Page numbers in [brackets] refer to the print edition.
Carlin
v. Manu, No. 98-372-HU, 72 F. Supp. 2d 1177 (D. Or. 1999).[62-63]
Carrigan
v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999).[59-60]
Cosco
v. Uphoff, #99-8036, 195 F.3d 1221 (10th Cir. 1999).[54-55]
Glover
v. Johnson, #98-1900, 98-2140, 199 F.3d 310 (6th Cir. 1999).[58]
Henderson
v. Sheahan, #98-2964, 196 F.3d 839 (7th Cir. 1999).[61-62]
Jackson
v. Mann, No. 97-2968, 196 F.3d 316 (2nd Cir. 1999).[57-58]
Liner
v. Goord, No. 98-2925, 196 F.3d 132 (2nd Cir. 1999).[58-59]
MacDonald
v. Angelone, 69 F. Supp. 2d 787 (E.D. Va. 1999).[55-56]
Mihileas
v. State of New York, 697 N.Y.S.2d 891 (A.D. 1999).[55]
Murphy
v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999).[51]
Orum
v. Haines, 68 F. Supp. 2d 726 (N.D.W.Va. 1999).[52-53]
People
v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339 (Cal. App. 2000).[56]
Pickering
v. City of Atlanta, 75 F. Supp. 2d 1374 (N.D. Ga. 1999).[51-52]
Powells
v. Minnehaha County Sheriff Dept., No. 99-2029, 198 F.3d 711 (8th Cir.
1999).[56-57]
Warren
v. Keane, No. 98-2997, 196 F.3d 330 (2nd Cir. 1999).[60-61]
Wayne
v. Jarvis, No. 97-9152, 197 F.3d 1098 (11th Cir. 1999).[53-54]
Page numbers in [brackets] refer to the print edition.
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