February, 2000 web edition

Prisoner who claimed that county officials interfered with his access to state courts to challenge his criminal conviction was not entitled to damages in the absence of successful overturning of his conviction; prisoner might have been granted injunctive relief against alleged interference with his access, but not the order he sought compelling the state courts to take particular actions in his case.

            An Illinois prisoner filed a federal civil rights lawsuit, suing various county officials for allegedly violating his right of access to the courts. In particular, he claimed that they hindered his efforts to litigate a state court collateral attack on his criminal conviction, and sought money damages.

            The trial court dismissed the lawsuit on the principle stated in Heck v. Humphrey, 512 U.S. 477 (1994), forbidding a convicted person to seek damages on any theory that implies that his conviction was invalid without first getting the conviction set aside, which the prisoner had not done.

            A federal appeals court noted that "there is probably an exception to the rule of Heck for cases in which "no route other than a damages action under [42 U.S.C.] Section 1983 is open to the person to challenge his conviction." In this case, the prisoner was claiming that the defendants prevented him from challenging his conviction. In many cases, the court noted, a prisoner who was prevented from exhausting his state remedies "can go directly to federal district court to obtain relief from his conviction by means of federal habeas corpus." Such relief, however, is only available for violations of federal law, and, in this case, the prisoner "wishes to challenge his conviction on state-law grounds as well."

            However, the prisoner could seek an injunction under 42 U.S.C. Sec. 1983 "to clear away the blockage" allegedly interfering with his access to state courts, so the possible exception to Heck did not apply, since there was a way for him to attempt to get his conviction overturned.

            While the prisoner did seek an injunction in the immediate case, he had not asked for an order ending any blockage of his access to the state courts, but instead an order to the state courts to reopen his postconviction proceedings. Granting that sort of injunction, the court found, would be improper. The appeals court therefore affirmed the trial court's dismissal of the lawsuit. Hoard v. Reddy, #98-2624, 175 F.3d 531 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>.

End of twenty-year policy allowing prisoners to have typewriters and word processors did not violate inmate rights; access to pen and paper was adequate for access to the courts.

            Indiana prisoners asserted that the facility in which they are incarcerated had a twenty- year-old policy of permitting inmates to possess typewriters and word processors, and that they therefore had a "state created right" to continue possessing these machines. They also asserted that a new policy prohibiting typewriters and word processors was being applied "unequally," since prisoners in one section of the prison were permitted to keep typewriters they presently own, but will be required to dispose of them after the warranty period expires and the typewriter ceases functioning.

            Finally, they also asserted that the inability to use typewriters and word processors violated their First Amendment rights.

            Rejecting all these claims, a federal trial judge noted that, while prisoners have a "right to meaningful access to the courts, this access is satisfied by providing basic materials, such as ink pens and paper, for the preparation of legal materials." Correctional officials "have broad discretion" to make and change the rules and regulations of the prison, so that the past policy created no vested right to possess typewriters, etc.

            Even if the policy was, for purposes of argument, applied unequally, it did not impermissibly discriminate on the basis of any "suspect classification," such as race or religion. While the prisoners argued that publishers would not accept handwritten manuscripts, they failed to show that the new policy was imposed to restrict the exercise of their protected rights. Additionally, there was no evidence that they were prohibited from sending handwritten manuscripts to friends, family, or professional typists "to be typed up and then sent to the publisher."

            The court found that the policy in question was adequately justified by valid security concerns, including the possible use of machine parts as weapons, and reducing the amount of property kept in cells. Roberts v. Cohn, 63 F. Supp. 2d 921 (N.D. Ind. 1999). [Cross- reference: Prison Regulations].

Barring a prisoner from prison's cooking classes because he would not submit to HIV testing did not constitute disability discrimination.

            An Illinois prisoner complained that he was not allowed to enter a correctional facility's culinary arts program because he refused to submit to HIV testing. He claimed that this action constituted disability discrimination in violation of the federal Americans With Disabilities Act (ADA).

            A federal appeals court upheld the rejection of the prisoner's claims. It noted that the prisoner did not allege that he was HIV-positive or that prison officials perceived him in any way as disabled, so that he was not a "qualified individual with a disability." Further, he did not allege that if he had agreed to the testing and tested positive, that he would have been forbidden to participate in the class.

            He was not barred from the class for being HIV-positive, but rather for refusal to be tested for HIV. Although Title I of the ADA, prohibiting disability discrimination in employment, has a section limiting medical testing for disabilities, see 42 U.S.C. Sec. 12112(d)(2)-(4), under which an individual need not be disabled to state a claim, this did not apply to the plaintiff prisoner, since he is an "inmate of the prison, not an employee or job applicant." Title II of the ADA, prohibiting disability discrimination in public services and programs, "has no analogous provision proscribing or limiting testing." Murdock v. Washington, #98-2419, 193 F.3d 510 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>. [Cross-reference: Disability Discrimination].

Texas prisoner's claim that being denied eight meals and one visitation session over a seven-month period was "cruel and unusual punishment" was frivolous; prisoner did not show that he received an inadequate diet that threatened his health and he had no constitutional right to visitation.

            A Texas prisoner filed a federal civil rights lawsuit against a correctional officer, complaining of alleged "cruel and unusual punishment" in violation of the Eighth Amendment. The lawsuit claimed that the officer, in retaliation for the prisoner refusing to shave, denied him eight meals over a seven-month period and denied him visitation privileges with his mother once.

            Upholding the dismissal of this lawsuit as frivolous, a federal appeals court noted that the prisoner had not alleged any specific harm as a result of missing these particular meals, such as losing weight or being denied a nutritionally and calorically adequate diet. He had not claimed that his health was put at risk. Accordingly, his complaint about denial of food did not rise to the level of an Eighth Amendment violation. He was not denied a "minimal measure of life's necessities."

            The court also noted that, for convicted prisoners, visitation privileges "are a matter subject to the discretion of prison officials," and the plaintiff therefore "has no constitutional right to visitation privileges."

            The court finally rejected the prisoner's claim that his due process rights were violated by the correctional officer allegedly punishing him without adhering to relevant prison policies and procedures. It found that the denial of one visitation session and eight meals over a seven- month period, without any allegation of an inadequate diet, was "insufficient to implicate a liberty interest." Berry v. Brady, #98-41179, 192 F.3d 504 (5th Cir. 1999).

Text: <http://www.law.utexas.edu/us5th/us5th.html>. [Cross-reference: Diet; Visitation].

Trial court should not have granted summary judgment for deputy on prisoner's claim that a denial of a request to attend his mother's funeral was cruel and unusual punishment; prisoner, acting as his own lawyer, did not have sufficient notice or understanding of the need to submit sworn affidavits in support of his claim that the deputy denied his request in retaliation for his having filed complaints.

            A New York prisoner's federal civil rights lawsuit against a deputy sheriff complained that the deputy had denied his request to attend his mother's funeral, and claimed that this imposed cruel and unusual punishment on him in violation of the Eighth Amendment. He claimed that this denial was in retaliation for his having filed a complaint against another officer several days before.

            The trial court granted summary judgment for the deputy, finding that, rather than the retaliatory motive alleged by the prisoner, the deputy stated legitimate reasons, such as personnel shortages and security problems with transporting the prisoner, on short notice, to another town for the funeral. The trial judge also found that the prisoner's claim of retaliation was supported only by his own "conclusory statements."

            A federal appeals court reversed for further proceedings. It ruled that granting summary judgment was inappropriate when there was no indication in the record that the prisoner, who was acting as his own lawyer, understood what was required for opposing a motion for summary judgment. Accordingly, the prisoner did not submit any sworn affidavits or other documentary evidence to support his claims, while the deputy did present a sworn affidavit in support of his motion.

            The appeals court ruled that neither the trial court nor the defendant provided the prisoner with sufficient notice of the consequences of failure to supply affidavits with his papers opposing the summary judgment motion. It found that the mere mention of the Federal Rule of Civil Procedure governing such motions, F.R.C.P. 56, was insufficient.

            In this case, the prisoner indicated in his filing that he would be able to come forward with affidavits from other prisoners in support of his claim, but in the view of the appeals court did not comprehend the necessity of doing so at that time in order to effectively oppose the motion.

            Notice of the "nature and consequences" of Rule 56 must be given to a litigant acting as their own lawyer, in a manner that includes a "short and plain statement that all assertions of material fact in the movant's affidavits will be taken as true" by the trial court unless the plaintiff contradicts those factual assertions "in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence or by submitted other materials." McPherson v. Coombe, #98-2635, 174 F.3d 276 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>. [Cross-reference: Procedural: Summary Judgment].

Minnesota prison did not err in deducting court filing fee from prisoner's inmate account rather than from his gross wages in prison work program; agreement prisoner signed in order to be in work program manufacturing goods for sale in interstate commerce, which mentioned deductions that could be made from his pay, was not an enforceable "contract."

            A Minnesota prisoner was employed in a prison work program manufacturing goods sold in interstate commerce. Because of this,  under 18 U.S.C. Secs. 1761-62, it was required that he be paid the prevailing wage, voluntarily agree to be in the program, and agree to have certain deductions made from his wages. He signed the required agreement, under which taxes, reasonable charges for the cost of his confinement, family support obligations, contributions to a crime victims' fund, restitution, and other deductions set forward in state statutes could be made.

            Costs of confinement was set at 65% of his gross wages. When he became a party to an appeal in a federal lawsuit, prison officials, over his objections, deducted the $105 court filing fee from his inmate fund account. He argued that the deduction should instead have been taken from his gross compensation, reducing the amount available for the cost of confinement, but leaving his inmate account intact. He also challenged a $3 deduction for a medical co-payment.

            A Minnesota trial court rejected the prisoner's lawsuit challenging these inmate fund deductions as somehow a breach of his "contract" with the prison. Upholding this result, an intermediate Minnesota appeals court found that the agreement the prisoner signed, which was required by federal law for him to participate in the work program, was not a "contract." It did not obligate the Department of Corrections in any way to continue his employment "or to limit its authority to make deductions from his account." Since state law allows the deduction of court filing fees and medical payments from either wages or inmate accounts, the prisoner did not have a viable claim. Murray v. Minncor, No. C3-99-376, 506 N.W.2d 702 (Minn. App. 1999).

Text: <http://www.courts.state.mn.us/>. [Cross-reference: Work/Education Programs].

Prison warden did not violate inmate's rights by routinely opening and inspecting his outgoing mail for contraband; plaintiff prisoner's attempt to mail a homemade knife out in one such letter "underscored" the need to conduct such inspections for legitimate security reasons.

            A federal appeals court has ruled that a prison warden's practice of "routinely opening and inspecting outgoing mail for contraband without any particularized suspicion" was "reasonable related to legitimate penological interests, and, therefore, constitutional."

            As the appeals court noted, the plaintiff prisoner, in his "rambling pro se complaint," alleged, among other things, that the warden opened and inspected his outgoing mail--one piece of which contained a homemade knife.

            "Although an inmate's First Amendment rights may be violated when his outgoing mail is censored, his First Amendment rights are not violated when his outgoing mail is simply opened and inspected for, among other things, contraband, as was the case here." Indeed, the "obvious need to inspect" the plaintiff prisoner's outgoing mail "is underscored by his attempt--during the pendency of this very case--to mail a homemade knife to the Deputy Clerk" of the trial court. Opening and inspecting his mail was therefore reasonably related to legitimate security concerns. Altizer v. Deeds, No. 97-7111, 191 F.3d 540 (4th Cir. 1999).

Text: <http://www.law.emory.edu/4circuit>

New Jersey reaches wide-ranging $16 million settlement in lawsuit over allegedly inadequate treatment of mentally-ill prisoners and disability discrimination against them; plaintiffs' attorneys to receive $1.22 million in attorneys' fees; disciplinary policies to take prisoners' mental illness into account; all new prisoners to receive mental health assessment within 72 hours.

            In a settlement of a class action lawsuit brought on behalf of New Jersey prisoners suffering from mental illness, the state of New Jersey agreed to spend $16 million in the first year for mental health treatment, including medication and therapy, of approximately 2,000 prisoners. The settlement also included the payment of $1,220,000 in attorneys' fees and costs.

            The lawsuit asserted that mentally ill prisoners in New Jersey correctional facilities were provided with inadequate medical care and discriminated against in violation of the Americans With Disabilities Act (ADA). Evidence in the case indicated that some of these prisoners, who had allegedly not been adequately treated, committed self-destructive acts such as setting fire to themselves or eating their own feces. The lawsuit also complained that mentally ill prisoners were disciplined for various rule infractions without taking their disabling conditions into account.

            The settlement provides that:

            * Disciplinary regulations will be amended so that mental health staff may review the names of prisoners facing charges, and may then inform disciplinary hearing officers of those inmates undergoing mental health treatment. The hearing officer may ask for a psychological or psychiatric evaluation of the prisoner, and may refer a mentally ill prisoner to the mental health unit for treatment, instead of, or in addition to, any sanction imposed after the hearing.

            * All new prisoners will receive a mental health assessment within 72 hours of arrival, and additional training about mental illness will be given to prison personnel. Adequate personnel will be provided to furnish mental health treatment to those needing it.

            * Three "Stabilization Units" for treating mentally ill prisoners experiencing a mental health crisis will be created. Additional units will be created for mentally ill prisoners unable, due to their illness, to be placed in the general population.

            * The Department of Corrections will review or create policies in such areas as involuntary medication, use of force situations involving mentally ill prisoners, medication management, and "discharge planning" for mentally ill prisoners.

            The court named a forensic psychiatrist as an independent mental health expert to oversee the defendants' compliance with the settlement agreement, with the agreement terminating once the Department of Corrections is in full compliance for twelve continuous months. D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999). [Cross-reference: Disability Discrimination; Prisoner Discipline].

Prison and parole officials were not liable for the death of a police officer shot and killed by a parolee; while there was evidence that the parolee was a "violent and depraved" individual, this did not make his assault on the officer during a traffic stop foreseeable.

            A recent parolee from the Pennsylvania prison system relocated to a trailer park in New Jersey, with the permission of both Pennsylvania and New Jersey parole and prison authorities. He subsequently shot and killed a police officer during a routine traffic stop.

            The family of the deceased police officer sued Pennsylvania parole and prison officials, asserting that they "created" a danger by policies and practices which resulted in the release of "violent, unrehabilitated and dangerous criminals" such as the parolee, a motorcycle gang member, whose prior criminal record included the murder of a young woman who refused to be gang raped and various drug offenses, and who was suspected of murdering another inmate.

            Finding no liability, a federal trial court found it unforeseeable that the parolee would direct violence at this particular officer "or even to police officers in general," despite the fact that there was evidence that the parolee was "a violent and depraved individual." The defendant officials did not know that the parolee would come into contact with the decedent officer. Gonzalez v. Angelilli, 40 F. Supp. 2d 615 (E.D. Pa. 1999).

Exhaustion of remedies requirement of Prison Litigation Reform Act did not apply retroactively to bar lawsuit already pending; federal appeals court reinstates prisoner's lawsuit complaining that officials prevented him from meeting with prison chaplain.

            A Muslim prisoner in New York claimed that his First Amendment rights to religious freedom were violated when prison officials allegedly prevented him from meeting with a prison chaplain to discuss his impending marriage and the hospitalization of his daughter.

            The trial court dismissed the lawsuit for failure to exhaust administrative remedies as required by 42 U.S.C. Sec. 1997e(a), as amended by the Prison Litigation Reform Act (PLRA). A federal appeals court reversed, noting that the prisoner's lawsuit was already pending when the PLRA was adopted, and holding that the exhaustion of remedies requirement did not apply retroactively. Salahuddin v. Mead, #97-2522, 174 F.3d 271 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>. [Cross-reference: Religion].

Prisoner stated a claim for violation of his constitutional rights by asserting that officer told other inmates it was "open season" on him, following which two or three prisoners attacked him; plaintiff need not show that officer was present during assault.

            A New York prisoner asserted that he was attacked by two or three other inmates after a correctional officer escorted him back to his cell. His federal civil rights lawsuit against the officer claimed that he had just previously told the other prisoners that it was "open season" on the plaintiff prisoner.

            The trial court ruled that these alleged facts, even if true, did not state a federal civil rights claim, since the plaintiff did not allege that the officer either participated in the assault on the plaintiff or even witnessed it.

            A federal appeals court reinstated the lawsuit, ruling that the officer, if he did, in fact, "declare 'open season'" on the prisoner, would have indicated to other inmates that their abuse of the plaintiff "would be unimpeded," so that "deliberate indifference" to the prisoner's safety "would be obvious." This was not a case in which a prison official was alleged only to have "negligently failed to protect" a prisoner from other inmates, but rather a case in which it was alleged that the officer "affirmatively announced his decision not to protect" a prisoner. Accordingly, it was "irrelevant" that there was no claim that the officer was present when the plaintiff was beaten. Snider v. Dylag, #98-2271, 188 F.3d 51 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>.

Department's action of purchasing patrol wagons without safety nets and using them to transport detainees did not constitute deliberate indifference to a substantial risk of serious harm; no federal civil rights liability for injuries detainee suffered when thrown about by vehicle motions after being placed in wagon with his hands cuffed behind his back.

            An intoxicated detainee was rendered a quadriplegic when he was thrown about by vehicle motions after being placed with his hands cuffed behind his back in a police wagon. He was thrown forward and suffered his injuries when he struck the bulkhead of the passenger compartment.

            He filed suit against various police department officials and against the manufacturer and seller of the patrol wagon. Claims against the manufacturer/seller were either dismissed or settled. A federal appeals court has upheld summary judgment in favor of the law enforcement defendants.

            The court ruled that the purchase of patrol wagons without safety nets and the manner in which arrestees were transported in these wagons were not policies that "obviously presented a 'substantial risk of serious harm.'" Additionally, the court noted that the city's police department had guidelines in place which instructed officers to exercise caution when transporting individuals in the patrol wagon, including such suggestions as driving cautiously, place on the floor any prisoner whose physical condition "would not permit them to protect themselves from falling," and "advise prisoners to sit at the front of the wagon or on the floor." Even if these guidelines "may not have been adequate to prevent injuries, their failures, if any, constitute negligence at most," and not the "deliberate indifference" to a known substantial risk of serious harm that was required for federal civil rights liability in this context. Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Disability Discrimination].

Officer's use of a racial epithet, standing alone, did not constitute a violation of the equal protection rights of the person so addressed.

            Does an officer's use of a racial epithet, standing alone, constitute a violation of the equal protection rights of the person so addressed? "No," according to a federal appeals court. Although the case arose in a non-correctional setting, the aftermath of a search of a suspect by police officers, the reasoning would apply in corrections as well. The plaintiff asked for the officers' names and badge numbers, and was allegedly told in response: "we are not going to tell you our names either boy. You can only have our badge numbers [...] nigger." The officers deny that this statement was made.

            A federal appeals court ruled that these statements, even if made, "did not amount to conduct, such as harassment, that would deny" the plaintiff of equal protection of the laws. "We hold today that an officer's use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation."

            Use of such an epithet is "strong evidence that a comment or action is racially motivated." But this alone does not show that the officer has deprived a person of "equal protection of the law." Where "the conduct at issue consists solely of speech, there is no equal protection violation." Williams v. Bramer, #98-10254, 180 F.3d 699 (5th Cir. 1999).

Text: <http://www.law.utexas.edu/us5th/us5th.html>.

Sexual abuse of female prisoner by male correctional officer could be the basis of Eighth Amendment and "Violence Against Women Act" (VAWA) claims against supervisory officials who allegedly knew or should have known of risk that officer would sexually molest inmates.

            A female prisoner at a federal correctional institution had a history of being physically abused, and was allegedly "at risk of being subordinated to men whom she viewed as authority figures." A male correctional officer who had previously been the subject of investigations of alleged sexual misconduct was posted to the unit in which the prisoner was housed.

            In her federal civil rights lawsuit against prison officials, the prisoner asserted that the officer would "regularly grope" her in the breast and groin areas, and then threaten her in order to compel her to engage in oral and vaginal sex. She claimed that he threatened that he would contact her teenage daughter or have her transferred to another facility further away from her children if she informed anyone of his conduct or refused to have sex with him.            The lawsuit asserted that both correctional employees and other inmates observed this behavior at various times, and that two other officers, in response to her complaints about sexual abuse "warned" her not to get the officer she claimed assaulted her "in trouble." The lawsuit further asserted that even after she complained, other officers would help arrange things so that she would be alone with her alleged assailant in an office, where he would further "grope" her.

            Finally, she claimed that when she was assigned to a different housing program, which offered treatment and counseling for female inmates who have been victims of chronic sexual, physical, or emotional abuse, the same officer was reassigned to the midnight to 8 a.m. shift there and "regularly woke" her and took her to the TV room or stairwell where he compelled her to submit to oral and vaginal sex. The officer was later arrested by the FBI after requiring her to perform oral sex, and pled guilty to six counts of sexually abusing a prison inmate.

            The trial court in the prisoner's federal civil rights lawsuit found that the "exhaustion of remedies" requirement of the Prison Litigation Reform Act did not apply to her claims, since her allegations about a sexual assault on her did "not constitute a claim concerning prison conditions." "Severe and repetitive sexual abuse of an inmate by a prison officer is not part of the penalty that criminal offenders pay for their offenses against society and constitutes a cognizable claim of cruel and unusual punishment in violation of the Eighth Amendment." Prison conditions do not include intentional assaults, the court held.

            The court did dismiss her due process claims, finding that they were adequately covered by the Eighth Amendment claims. It upheld, however, her right to pursue claims against the defendants under the Violence Against Women Act (VAWA), 42 U.S.C. Sec. 13981(b), providing a right to be free from crimes motivated by gender. No prior case, the court acknowledged, had recognized a VAWA action against anyone but the individual who actually committed the crime itself. But the court ruled that supervisory liability was possible under the statute.

            In this case, the plaintiff alleged that the defendant supervisory officials assigned an officer whom they knew or should have known had a history of sexual misconduct "to posts where he had prolonged and unsupervised contact with female inmates, including the overnight shift in the sexual trauma unit." If true, this could establish a policy or custom of tolerating violations of inmates' rights and could also establish gross negligence. Peddle v. Sawyer, 64 F. Supp. 2d 12 (D. Conn. 1999).

Failure to adequately supervise jail guards to prevent sexual harassment of female prisoners results in civil rights liability for District of Columbia; plaintiff prisoner asserted that she and others were forced to participate in "strip-shows" and "exotic" dancing for guards; "exhaustion of remedies" provision of Prison Litigation Reform Act did not apply.

            A female prisoner in a District of Columbia jail asserted that she, along with other female inmates, was forced to participate in "strip-shows" and "exotic dancing" on three occasions. The prisoners wore only "g-strings" during the dancing, and at least on one occasion danced in the nude. In a federal civil rights lawsuit brought by the prisoner, she asserted that three prison guards on duty at these times directed that the dancing take place, and on one occasion, other male prison guards were allowed to observe.

            Testimony in the case included statements by one former inmate at the jail that she was beaten by a guard when she refused to participate in the strip-shows. Another prisoner testified that she only participated in the dancing out of fear of physical retaliation from guards if she refused.

            During the month she was incarcerated, the plaintiff prisoner also engaged in a sexual relationship with one prison guard who had private meetings with her in an empty cell where "the two would fondle and kiss one another."

            Ruling in favor of the plaintiff prisoner's motion for judgment as a matter of law, the trial court noted that, seven months before the incidents in question, a federal court had found that the District of Columbia violated the Eighth Amendment rights of female prisoners in its jail by maintaining a governmental custom of sexual harassment (including acceptance of sexual relationships between prison staff and inmates), notwithstanding the existence of official policies prohibiting such behavior. Women Prisoners of the D.C. Dept. of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994).

            "Other than putting out a policy statement" regarding sexual conduct between prison guards and female inmates, and implementing certain sexual harassment training, the court found that the "District did little else to ensure the cessation of guards engaging in proscribed activities with inmates." Most importantly, it failed "to institute a meaningful system of supervision that would provide some reasonable assurance" that sexual misconduct and harassment would be prevented. With the history of past sexual misconduct at the jail, the court found, "it is incumbent" upon correctional officials to "find some way to monitor the common areas at the jail." Surveillance cameras or supervisory officials should monitor such areas in order to prevent such misconduct.

            Accordingly, the failure to do so "clearly violated" the plaintiff's constitutional rights. This left the question of the amount of damages to be awarded the sole issue that was left for a jury to decide. Newby v. District of Columbia, 59 F. Supp. 2d 35 (D.D.C. 1999). [Cross- reference: Prison Litigation Reform Act: Exhaustion of Remedies].

Wisconsin statute that authorized the transfer of state prisoners to private prisons in other states did not violate prisoners' rights under the Thirteenth Amendment; federal appeals court states that prisoners' claims were "thoroughly frivolous."

            A number of Wisconsin state prison inmates sued to invalidate, as violative of the Thirteenth Amendment (prohibiting involuntary servitude), a state statute that allows prison officials to contract with private prisons in other states for the housing of Wisconsin prisoners. They attempted to use actions seeking habeas corpus relief for this purpose.

            A federal appeals court held:

            1. That habeas corpus "cannot be used to challenge a transfer between prisons," unless "the custody in which the transferred prisoner will find himself when transferred is so much more restrictive than his former custody that the transfer can fairly be said to have brought about" a "quantum change in the level of custody." Even in such cases, the court noted, "the prisoner is unlikely to have a good claim that he has been deprived of his liberty" under the principles announced in Sandin v. Conner, 515 U.S. 472 (1995);

            2. That the lawsuits were really, in substance, challenges under 42 U.S.C. Sec. 1983 to the conditions in which the inmates are being held or will be held in the private prisons to which they have been or will be transferred; and

            3. That it would uphold the dismissal of the habeas corpus applications, leaving them free to refile their claims as Sec. 1983 lawsuits.

            However, it also stated the opinion that the prisoners would be "foolish to do so," since their underlying claims were "thoroughly frivolous."

            "The Thirteenth Amendment, which forbids involuntary servitude, has an express exception for persons imprisoned pursuant to conviction for crime. Nor are we pointed to or can think of any other provision of the Constitution that might be violated by the decision of a state to confine a convicted prisoner in a prison owned by a private firm rather than by a government."

            The Wisconsin statute in question requires the private prisons to which state prisoners are transferred to adhere to "the same standards of reasonable and humane care as the prisoners would receive in an appropriate Wisconsin institution," and there was no evidence that this requirement "is being or will be flouted, let alone that the private prisons will fall below federal (Eighth Amendment) standards for the treatment of prisoners." In conclusion, a prisoner "has a legally protected interest in the conduct of his keeper, but not in the keeper's identity." Pischke v. Litscher, #98-4013, 178 F.3d 497 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>. [Cross-reference: Frivolous Lawsuits; Private Prisons].

Florida statute denying prisoner visitation with his children when he was convicted of child sexual offenses was constitutional; statute allows for prison superintendent to exercise discretion to allow visitation if it is in the interest of the children.

            A Florida prisoner was serving a sentence for sexual battery by a person over 18 years of age upon a person less than 12 years of age. Following his incarceration, a state statute regarding visitation privileges of prisoners convicted of such crimes was adopted. It provides that those convicted of certain enumerated sexual offenses involving children "shall not be allowed visitation with anyone under the age of 18 years, unless special visitation is approved by the superintendent." Such special visitation may be allowed in order to "serve the interest of the children."

            The prisoner claimed that the use of this statute to deny him visitation with his children violated his due process rights and constituted an improper retroactive enhancement of his punishment. An intermediate Florida appeals court rejected these arguments. There is no "absolute right of an inmate to visitation with his or her children," the court agreed. The statute does not impose any greater punishment on the prisoner or deny him any vested right. The statutory restriction on visitation in this case "serves the important state interests of protecting minor children from convicted sex offenders and helping to ensure the proper rehabilitation of sex offenders." Further, the court noted that the statute was "narrowly tailored," since it did not deny visitation completely, but instead left the determination "within the discretion of the superintendent, who must assess the interests of the children involved." Cassady v. Moore, 737 So. 2d 1174 (Fla. App. 1999).

Altizer v. Deeds, No. 97-7111, 191 F.3d 540 (4th Cir. 1999).[23]
Berry v. Brady, #98-41179, 192 F.3d 504 (5th Cir. 1999).[21]
Cassady v. Moore, 737 So. 2d 1174 (Fla. App. 1999).[30-31]
D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999).[24]
Gonzalez v. Angelilli, 40 F. Supp. 2d 615 (E.D. Pa. 1999).[25]
Hoard v. Reddy, #98-2624, 175 F.3d 531 (7th Cir. 1999).[19]
McPherson v. Coombe, #98-2635, 174 F.3d 276 (2nd Cir. 1999).[21-22]
Murdock v. Washington, #98-2419, 193 F.3d 510 (7th Cir. 1999).[20-21]
Murray v. Minncor, No. C3-99-376, 506 N.W.2d 702 (Minn. App. 1999).[22-23]
Newby v. District of Columbia, 59 F. Supp. 2d 35 (D.D.C. 1999).[28-29]
Peddle v. Sawyer, 64 F. Supp. 2d 12 (D. Conn. 1999).[27-28]
Pischke v. Litscher, #98-4013, 178 F.3d 497 (7th Cir. 1999).[29-30]
Roberts v. Cohn, 63 F. Supp. 2d 921 (N.D. Ind. 1999).[19-20]
Salahuddin v. Mead, 174 F.3d 271 (2nd Cir. 1999).[25]
Snider v. Dylag, #98-2271, 188 F.3d 51 (2nd Cir. 1999).[25-26]
Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).[26-27]
Williams v. Bramer, #98-10254, 180 F.3d 699 (5th Cir. 1999).[27]