October, 2000 web edition

Alleged delay in providing Spanish-speaking prisoner with AIDS medication was not a violation of the Eighth Amendment when there was no claim that the failure to adequately advise him of prison medical policies was deliberate; prisoner had no clearly established right to Spanish-speaking medical personnel, so prison officials were not liable for an "invasion of privacy" allegedly resulting from inmate's need to use other prisoners as interpreters.

            A Spanish-speaking prisoner in a New York correctional facility claimed that prison officials failed to adequately advise him--in Spanish--of the prison's medical policies and that this resulted in a delay in receipt of medication in violation of his Eighth Amendment rights. He further claimed that it violated his right to privacy that there were no Spanish-speaking medical personnel, so that he had to use other prisoners as interpreters when communicating with doctors and nurses, requiring him to reveal confidential medical information to the other prisoners.

            Rejecting these claims, the federal trial court found that the delay in receiving AIDS medication was not a violation of the Eighth Amendment prohibition on cruel and unusual punishment when it was not shown that the failure to inform the prisoner of prison medical policies was deliberate.

            The court ruled further that any claim that the lack of Spanish-speaking medical staff violated his right to privacy was precluded by provisions of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) requiring proof of physical injury before a claim can be brought for "mental or emotional injury suffered while in custody." The court further expressed doubt that the defendants violated the inmate's right to privacy in any event, since he was the one who revealed his medical information to the other prisoners, but it also ruled that, even if the right to privacy had been violated, the defendants were entitled to qualified immunity from damages, since the law in the area was not "clearly established."

            Further, there was only one identified date on which the plaintiff used an inmate as an interpreter, and that was a date on which he wished to look at his medical records, not a date on which he received medical treatment. In another instance where a translator was required, a correctional counselor was utilized. Leon v. Johnson, 96 F. Supp. 2d 244 (W.D.N.Y. 2000). [Cross-references: Medical Care; Prison Litigation Reform Act: Mental Injury; Privacy].

County sheriff was not entitled to qualified immunity from lawsuit by 52-year-old prisoner with AIDS challenging an alleged policy of shackling all hospitalized inmates hand and foot 24 hours a day despite also having an armed guard stationed at their hospital room; lawsuit stated claims for denial of access to the courts, denial of equal protection, and excessive bodily restraint of a pretrial detainee.

            A federal appeals court rejected a claim of qualified immunity by a county sheriff to lawsuit challenging an alleged policy of requiring all inmates who are hospitalized to remain shackled hand and foot around the clock, even though an armed correctional officer was stationed with each prisoner. The lawsuit was filed on behalf of a 52-year-old man who has AIDS, who was being held on a drug charge. He claimed that he was hospitalized for nearly two weeks in a county hospital, and that being shackled on his hand and foot the entire time kept him from using the telephone, reading and writing, and going to court.

            While the trial court dismissed a claim under the Americans With Disabilities Act (ADA), it denied the sheriff's motion to dismiss the other claims, including an equal protection claim arguing that hospital inmates were treated differently that jail inmates, a claim that the policy resulted in a denial of access to the courts, and a claim that the manner of restraint violated due process and was excessive.

            The court found that the prisoner stated a claim for denial of access to the courts, since he claimed that the failure to take him to scheduled court appearances delayed the final disposition of his case, causing him to remain in custody for a longer period of time and preventing him from requesting a lowering of his bond as a result of his illness.

            Additionally, the court noted that the plaintiff prisoner was a pretrial detainee, who was presumed innocent, and who should not be subjected to bodily restraints in a manner that "serves to punish." The "use of bodily restrains constitutes punishment in the constitutional sense if their use is not rationally related to a legitimate non-punitive government purpose or they appear excessive in relation to the purpose they allegedly serve."

            While the sheriff argued that the practice of shackling hospital detainees was "rationally related to his legitimate security concerns," the appeals court commented that "it is hard to see how shackling an AIDS patient to his or her bed around the clock, despite the continuous presence of a guard, is an appropriate policy for carrying out this purpose. Such a policy is plainly excessive in the absence of any indication that the detainee poses some sort of security risk." The court acknowledged that it might be possible for the sheriff to produce some evidence justifying "both his shackling policy in general" and the shackling of the plaintiff in particular, but the prisoner's claims were "more than adequate to survive a motion to dismiss." May v. Sheahan, #99-3140, 2000 U.S. App. LEXIS 22676 (7th Cir.).

Text: <www.kentlaw.edu/7circuit/>. [Cross references: Access to Courts/Legal Info; Medical Care; Prisoner Restraint].

Prisoner who had been on death row for twenty-two years could not assert that the frequent delays and stays in his execution constituted "torture" or cruel and unusual punishment when the main reason for the delays were his own pursuit of every possible avenue to overturn his death sentence and filing of motions seeking the delays he now complained of.

            A Texas prisoner who had been on death row for twenty-two years filed a federal civil rights lawsuit claiming that he had been subjected to "psychological torture" in violation of 42 U.S.C. Sec. 1983 and the international "Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment" ("Torture Convention"), S. Treaty Doc. No. 100-20 (1988), U.N.T.S. 85, a treaty which the U.S. government entered into with other countries. His lawsuit was also brought under the Alien Tort Statute, 28 U.S.C. Sec. 1350, as he is a Canadian citizen.

            The essence of his claim was that he had been "tortured" because of his nine execution dates and repeated stays of his execution during the twenty-two years, and that this therefore subjected him to cruel and unusual punishment. Despite the prisoner's complaint that the many stays of his execution amount to "torture," the main relief asked for was another execution stay.

            Denying this request, a federal trial court noted that the main reason for the many delays and stays in the prisoner's execution was the fact that he had himself pursued numerous appeals, applications for state and federal habeas corpus, etc., and in the course of those actions, filed motions seeking the stays and delays that he now complained of. The court also noted that there was no case law currently holding that an "inordinate delay in carrying out an execution violates the condemned prisoner's eighth amendment rights."

            To the contrary, in White v. Johnson, #96-20005, 79 F.3d 432 (5th Cir. 1996), full text: <www.law.utexas.edu/us5th/us5th.html>, the court held that an execution after a 17-year wait would not constitute cruel and unusual punishment, and did not violate international treaties prohibiting "torture or cruel, inhuman, or degrading punishment." Faulder v. Johnson, 99 F. Supp. 2d 774 (S.D. Tex. 1999).

Federal appeals court rules that lawsuits against a state under Title II of the Americans With Disabilities Act (ADA), prohibiting disability discrimination by any public entity, including claims for injunctive relief, could not be pursued in federal court because of Eleventh Amendment immunity.

            An Illinois prisoner serving a sentence for residential burglary had no vision in his right eye and poor vision in his left. With corrective lenses, bright light, and concentration, however, it was possible for him to read. He wanted the state to accommodate his condition in several ways, including supplying books on tape, a brightly lit cell to himself so that he can read better and "does not have to worry about a cellmate put out of sorts by having to tolerate his disability," and transfer to a less restrictive prison.

            In a lawsuit he filed against state correctional officials under Title II of the Americans With Disabilities Act, 42 U.S.C. Secs. 12131-65, (ADA), he argued that it was disability discrimination not to provide these accommodations.

            While the lawsuit was pending, the state began to provide the prisoner with audio books, but the lawsuit continued on the basis of the prisoner's requests for a better placement in the state prison system and free equipment to play the audio books. The state then lent him a tape player, but required him to promise to reimburse the state if either the tapes or the player should be lost or damaged. The trial court rejected the argument that this repayment requirement violated the ADA. The trial court ruled that the prisoner was not entitled to any damages but might be entitled to injunctive relief on some of his claims.

            A federal appeals court ruled that qualified immunity was not available since the defendants "have been sued and could be liable only in their official capacities," so that the lawsuit was in essence against the state, rather than the individual defendants. Qualified immunity is a defense available in federal civil rights lawsuits only for persons sued in their individual capacities. The appeals court found that there was no possible personal liability under Title II of the ADA, which forbids disability discrimination by "any public entity."

            At the same time, the appeals court ruled that any remaining ADA claims against the state, whether for damages or for injunctive relief,  could not be brought against the state in federal court because of Eleventh Amendment immunity. "Although the commerce clause gives Congress ample authority to enact the ADA, legislation based only on the commerce clause does not subject states to private litigation in federal court," unlike legislation based on section 5 of the Fourteenth Amendment, seeking to enforce such rights as equal protection or due process of law. Accordingly, any remaining claims that the prisoner had "must be pursued in state court." Walker v. Snyder, No. 98-3308, 213 F.3d 344 (7th Cir. 2000).

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

Failure to provide double amputee with a wheelchair during his incarceration in a county jail did not violate the Eighth Amendment since jail corridors were too narrow for wheelchair access and there were legitimate security concerns about the presence of a wheelchair in the general population; prisoner did, however, state possible claims for violation of the Eighth Amendment and disability discrimination statutes based on alleged "deliberate indifference" to his serious medical needs.

            A former inmate at a Kansas county jail filed a federal civil rights and disability discrimination lawsuit against jail officials. He is a double amputee and is without both legs from a point below his knees. He alleged that during his incarceration the defendants deprived him of a wheelchair or other accommodation and forced him to crawl and pull himself about the jail on the floor. He claimed that this violated the Eighth Amendment prohibition on cruel and unusual punishment, as well as federal statutes prohibiting disability discrimination, the Americans With Disabilities Act and the Rehabilitation Act of 1973. He also asserted a state law claim for intentional infliction of emotional distress.

            The plaintiff had been incarcerated in the jail after having been convicted of driving under the influence of alcohol and driving on a suspended license. He had suffered the loss of his legs after he contracted frostbite years ago while on the run from a state youth center, where he had been incarcerated. When he was admitted to the jail, he had prosthetic devices. He was not prevented from using those devices to get around the jail, but requested and ultimately was provided with a shower chair since he could not wear the prostheses while showering, to avoid them being damaged by water. The shower chair was provided some seven months after his incarceration began and only after his treating physician requested it.

            The prosthetic legs were damaged in the jail during a fight with another inmate, the prisoner alleged, and this made them painful to use. He had not reported that incident to the jail staff.

            The federal trial court found that the refusal to provide the prisoner with a wheelchair during his incarceration was not a violation of the Eighth Amendment, since the jail exits, entrances and hallways were too narrow to accommodate wheelchairs. Additionally, the defendants had legitimate security concerns about placing a wheelchair among the jail's general population. However, it also declined to dismiss the remainder of his claims against the jail officials or to grant them summary judgment. It found that there were genuine issues of material fact as to whether they were deliberately indifferent to his basic needs to move around in an appropriate manner, to use the toilet, to use the shower, and to obtain his meals and suitable recreation and exercise.

            Since the constitutional prohibition on deliberate indifference to such medical needs was "clearly established," the defendants were not entitled to qualified immunity. If the defendants deliberately inflicted unnecessary pain and humiliation on him, the court stated, there could be liability for intentional infliction of emotional distress. And finally, the fact that the prisoner was actually able to use most of the jail's services during his incarceration did not preclude his disability discrimination claims, since he was "able to do so only by virtue of exceptional and painful exertion which was contrary to a physician's instructions concerning his disability. Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999). [Cross-reference: Medical Care].

Federal appeals court holds that Washington state statute properly authorized the deduction, from inmates' outside income, including pension plan income, of up to 35% of incoming funds to pay for crime victim restitution and the cost of incarceration; trial court ruling that certain federal benefits could not be seized under the statute undisturbed on appeal.

            A federal appeals court has upheld in part a Washington state statute which authorizes the deduction of 35% of prisoners' outside income, including income from pension plans, to pay for such things as restitution to crime victims or the cost of incarceration.

            The court rejected arguments by plaintiff prisoners that a federal statute regulating pensions and qualified retirement plans, the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1001 et seq. somehow barred the state from seizing a portion of prisoner retirement income. It did not disturb the trial court's ruling that the statute was void to the extent that it authorized funds to be deducted from various federal benefit payments including Veterans Administration benefits received under 38 U.S.C. Sec. 5301(a), Social Security benefits received under 42 U.S.C. Sec. 407(a), proceeds from civil rights actions filed pursuant to 42 U.S.C. Sec. 1983, and certain funds distributed to Native Americans under 25 U.S.C. Secs. 410, 1401-07, 1176 and 43 U.S.C. Secs. 1606(h) and 1620.

            The statute in question, Wash. Rev. Code Sec. 72.09.111(1)(a), authorizes correctional officials to deduct from such incoming funds 5% to the public safety and education account for the purpose of crime victims' compensation, 10% to a department personal inmate savings account, and 20% to the correctional department "to contribute to the cost of incarceration.

            The appeals court upheld the trial court's rejection of the plaintiffs' arguments that the deduction of these funds violated their due process rights or constituted an "excessive fine."

            The court did, however, order further proceedings as to whether there were problems with the statute during a one-year period prior to its amendment in 1997 to prohibit deductions for the cost of incarceration that exceed the actual cost of the inmate's incarceration. Wright v. Riveland, No. 97-36074, 219 F.3d 905 (9th Cir. 2000).

Text: <www.ce9.uscourts.gov/opinions>.

Prisoner who was severely injured during a fire that began in his cell after he fell asleep smoking a cigarette stated a claim for deliberate indifference against prison employees who knew that smoke evacuation system and fire and smoke alarms were not operational and who allegedly waited an unreasonable length of time before releasing him from his cell after the fire started.

            A fire started in an Illinois prisoner's cell when he fell asleep while smoking a cigarette. The cellhouse where he was located at the time of the fire was undergoing extensive renovation, and the smoke evacuation system was not operational, since both smoke evacuation fans within the area had been removed. The fire and smoke alarms were not functioning. As a result of the fire, the prisoner suffered severe burns over a large part of his body and suffered from severe smoke inhalation.

            In a federal civil rights lawsuit, the prisoner asserted that a number of correctional officers knew of the fire while it was occurring, but failed to take any action to assist him for an unreasonably long period of time. He claimed that he was in his cell during the fire for 30 to 45 minutes before anyone arrived and then that they stood outside his cell for five minutes watching him scream to be let out of the cell.

            The trial court found that the plaintiff had adequately stated a claim for deliberate indifference to a substantial risk of serious harm. The court denied qualified immunity to the correctional defendants, since it was reasonable to conclude that they knew that "consciously disregarding a non-operational fire safety and prevention system in a state prison and failing to free a man from his burning prison cell would violate an inmate's most basic and established constitutional rights."

            The trial court did grant a motion to dismiss by the construction company doing the prison renovations, which had also been named a defendant by the prisoner. It court found that the construction company, a private entity, did not act "under color of state law," as required for federal civil rights liability. The mere fact that it was performing its construction work under a contract with the state was not enough to make its conduct "state action." White v. Cooper, 55 F. Supp. 2d 848 (N.D. Ill. 1999).

Sheriff's alleged policy of releasing critically ill prisoners from custody in order to avoid expenses, even if true, did not actually contribute to prisoner's death, so that he could not be held liable for it.

            A woman in Illinois was arrested and held in a county jail. Prior to and during her incarceration, she suffered from chronic liver disease, cirrhosis of the liver, hepatitis B and C, and she was HIV positive. She was seen by various medical personnel at the jail for a variety of complaints. At one point, when a nurse noted that the prisoner's persistent vomiting prevented her from keeping down any food or medication, she was provided with ice chips and water.

            Fellow inmates later complained that the prisoner was "out of control," that she "got up from bed and acted as though she had lost her mind." Nurses found her to be flushed and disoriented and noted that she had been vomiting a gritty brown substance for days. Despite this and her well-documented medical history, they neither arranged for her to see a doctor nor for her to go to the hospital. The next morning, a correctional officer found her in her cell "unresponsive," and she was transported by ambulance to a hospital.

            Once the prisoner was at the hospital, the sheriff sought and obtained her release from custody, as a result of which he avoided having to post a duty in her hospital room. Despite treatment, she died two days later of "acute hepatic failure due to cirrhosis secondary to viral hepatitis." Her estate sued various defendants, arguing that the jail's supervisory nurse breached her duty of care to the prisoner while she was incarcerated, and that the county sheriff had an allegedly improper policy of releasing critically ill prisoners on recognizance bond.

            The lawsuit claimed that this policy of releasing critically ill prisoners was aimed at attempting to save on medical costs, as well as the costs of stationing a deputy at the hospital or paying for funeral and burial expenses. The federal trial court ruled that even if that were true, there was simply no evidence tying that policy to the prisoner's death. Further, while the plaintiffs vaguely "insinuated" that the sheriff's policy was to withhold medical care until the prisoner's condition became acute, and therefore was subject to the releasing policy, there was "no evidence" supporting this insinuation.

            While the court agreed that the prisoner received "woefully inadequate medical attention" prior to her "tragic death," there was no basis for imposing federal civil rights liability upon the sheriff, who was not personally involved in the medical care of the prisoner and whose policies did not cause her death. Remaining claims against the supervising nurse at the jail for inadequate training and supervision of the nursing staff were state law claims for negligence, which the federal court declined to retain jurisdiction over once the federal civil rights claim was dismissed. Chuffo v. Ramsey, 55 F. Supp. 2d 860 (N.D. Ill. 1999).

Federal appeals court rules that Kansas state prisoner's lawsuit over his private prison industry work assignment could proceed, at least insofar as it sought money damages, despite failure to exhaust available administrative remedies, when administrative remedies did not provide for awards of money.

            A prisoner in Kansas filed a federal civil rights lawsuit asserting various constitutional issues about his private prison industry work assignment, seeking both monetary and injunctive relief. The trial court dismissed the lawsuit, based on the prisoner's failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a).

            A federal appeals court affirmed in part and reversed in part. The court held that the prisoner was not required to exhaust his administrative remedies before pursuing his claim for money damages against state prison officials because "no available state administrative procedures provide that remedy." It further held that dismissal of the claims for injunctive relief for failure to exhaust administrative remedies was proper, since the available administrative remedies would allow the prisoner, if successful, to put an end to particular alleged violations of his rights. Miller v. Menghini, #99-3401, 213 F.3d 1244 (10th Cir. 2000).

Text: <www.kscourts.org/ca10/>. [Cross-reference: Work/Education Programs].

            EDITOR'S NOTE: The U.S. Court of Appeals for the Tenth Circuit had previously reached a similar result in a case where the federal prisoner was seeking only money damages, and no available administrative remedy allowed an award of money. Garrett v. Hawk, No. 96- 1429, 127 F.3d 1263 (10th Cir. 1997). In the case reported above, the court applied this principal for the first time to state, as opposed to federal, prisoners, in light of the fact that section 1997e(a) of the Prison Litigation Reform Act applies to lawsuits by both.

County was liable for attack by other prisoners on man arrested for traffic offenses; sheriff had a policy of confining all arrestees, including those with prior felony arrests and a history of violence, together in one large cell, which amounted to deliberate indifference to the risk of harm to prisoners such as the plaintiff; limits on attorneys' fees in the Prison Litigation Reform Act did not apply in a suit by a former prisoner.

            A man arrested for traffic offenses was placed in a Texas jail which had a policy of "confining together inmates of no propensity for violence with dangerous people." He was in a large cell with more than eight other inmates, some of whom were felons with a history of violence.

            During his time in the cell, he was threatened with death, awakened in his bunk as he was being bound, kicked in the head, and had his face injured when smashed into the wall. A jury awarded him damages against the county, finding the unsafe condition of the jail to be due to the sheriff's policy and deliberate indifference to the safety of such prisoners.

            On appeal, the county argued that the sheriff, who was a county policymaker, did not know of the unsafe condition. It additionally objected to the amount of the attorneys' fees awarded, arguing that the amount exceeded limits for such awards contained in the Prison Litigation Reform Act, (PLRA), 42 U.S.C. Sec. 1997e.

            The appeals court rejected these arguments. "Whatever their history, no one was denied access to helpless inmates until the former demonstrated violent behavior in the jail. His conduct outside of the jail did not matter. The policy was to leave the inmate to self-defense unless an officer on an hourly round learned of the abuse and obtained a superior's consent to do more to protect the inmate." The evidence showed that there was "continuous fighting and abuses within the large cell," and it was an "admitted fact that the jail officers expected the prisoners to fight and abuse one another during the duty shifts."

            The court ruled that the plaintiff was not required to show that the sheriff knew that the prisoners who injured him were a risk of harm to him. Rather, he only needed to prove that the sheriff "knew there was a substantial risk of serious harm to the inmates under his policy or custom of housing all manner of inmates together. That policy created an unsafe jail and the substantial risk that inmates would be injured. Fights were the order of the jail, to which the sheriff was necessarily deliberately indifferent."

            The limitations on attorneys' fees contained in the PLRA, the court ruled, only applies to lawsuits filed by prisoners. Because the plaintiff was not a prisoner, but rather a former prisoner, at the time he filed his lawsuit, the limitation on the amount of attorneys' fees had no application in the case. Janes v. Hernandez, Nos. 99-50092 & 99-50141, 215 F.3d 541 (5th Cir. 2000).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-references: Attorneys' Fees; Prison Litigation Reform Act: Attorneys' Fees].

            EDITOR'S NOTE: Two other federal appeals courts have similarly held that the PLRA's limits on attorneys' fees awards has no application in lawsuits filed by former prisoners. See Doe v. Washington County, #97-3969, 150 F.3d 920 (8th Cir. 1998), full text: <www.wulaw.wustl.edu/8th.cir>, and Kerr v. Puckett, #k97-2566, 138 F.3d 321 (7th Cir. 1998), full text: <www.kentlaw.edu/7circuit/>.

Prisoner who was assaulted by other inmates did not show that any purported inadequate training and supervision of jail personnel caused his injuries, but he did state a possible claim for liability by the county sheriff by asserting that there was a policy of understaffing the jail and failing to monitor inmates.

            A federal appeals court ruled that a federal civil rights lawsuit against an Oklahoma sheriff by a pretrial detainee beaten by other inmates could proceed, rejecting the defendant sheriff's claim for summary judgment.

            The plaintiff prisoner failed to establish a claim for inadequate training and supervision of jail personnel, since he did not identify any specific training and supervision deficiencies that were closely related to his injuries. A general assertion that jailers were "poorly" trained, even if backed up by some evidence, could not support his claim, absent a connection to what happened to him.

            However, the appeals court further found that there were genuine issues of material fact as to whether the conditions at the county jail presented a substantial risk of harm to inmate safety which the sheriff knew about but failed to respond to with reasonable measures to ensure inmate safety. Specifically, the plaintiff asserted that there was an unconstitutional policy of understaffing the jail and failing to monitor inmates. Lopez v. LeMaster, No. 98-6203, 172 F.3d 756 (10th Cir. 1999).

Text: <www.kscourts.org/ca10/>.

Police officer acted reasonably in opening cell door to quiet yelling arrestee and make sure that intoxicated arrestee was not harming himself; no liability for injuries to arrestee who was knocked unconscious by cell door opening; officer was unable to see that arrestee was standing behind cell door and would be hit by it.

            An Arkansas police officer, responding to a call reporting a disturbance, placed a man under arrest for public intoxication. A second officer transported the arrestee to the local jail. Both officers were involved in booking the arrestee, who was uncooperative and hostile. He attempted to elbow one of the officers, who then wrestled him to the floor, following which both officers handcuffed the arrestee, picked him up and placed him into a holding cell.

            Once in the cell, the arrestee started yelling and pounding on the door. One of the officers unlocked the cell door and pushed it open, intended to go inside to see what was the matter. The door hit the arrestee, knocking him unconscious. The entire incident was recorded on videotape.

            The arrestee, who received medical treatment at a local hospital, sued this officer for excessive use of force. Upholding summary judgment for the defendant, a federal appeals court found that the defendant officer, who was unable to see that the arrestee was standing behind the door and would be struck when he opened it, acted reasonably in opening the cell door to both quiet the arrestee and to make sure that the arrestee was not injuring himself.  Wilson v. Spain, No. 99-2224, 209 F.3d 713 (8th Cir. 2000).

Text: <www.wulaw.wustl.edu/8th.cir>.

Prisoner who was classified as a sexual offender under an Alabama state statute, despite never having been convicted of a sex related offense was entitled to due process before such classification because of the "stigmatizing" effect of this classification; second prisoner who had been convicted of a sex related offense could not challenge sex offender community notification statute while incarcerated, since it did not affect him prior to his release.

            Two Alabama prisoners brought suit against the application of the state's sex offender community notification statute to them. Under the terms of this statute, public notice is given to the community of the fact that a person previously classified as a sexual offender is living in the area.

            A federal appeals court ruled that the first prisoner's claims that the statute violated his constitutional rights not to be subject to double jeopardy and not to be subjected to additional or enhanced punishment after the fact (the prohibition on "ex post facto" punishments) were not yet "ripe" for decision, because the statute would not affect the prisoner until he was released from prison. In his case, he had been convicted of first-degree sodomy, so there was no dispute that he met the criteria in the statute to be classified as a sexual offender.

            As to the second plaintiff prisoner, however, who was serving a sentence for attempted murder, the appeals court found that classifying him as a sexual offender without providing him with due process could violate his rights. This prisoner claimed that he was unlawfully classified in prison as a sex offender despite never having been convicted of a sex offense. The department of corrections argued that two prior charges of sexual offenses, one for rape which was later no billed by the grand jury and one for sexual abuse which was dismissed by the trial court, supported his classification as a sexual offender even without a conviction.

            As a consequence of the classification, he was required to participate in group therapy sessions of Sexual Offenders Anonymous as a prerequisite for parole eligibility and was required to admit past sexual offenses. A further consequence of the classification, he argued, was to make him ineligible for minimum custody classification, deny him eligibility for certain work-release and community custody programs, and impose a "stigma" on him.

            The appeals court ruled that there was a "stigmatizing effect" of being classified as a sex offender under these circumstances and that a prisoner who is classified as a sex offender despite never having been convicted of a sex crime was entitled to due process before such a classification was imposed. The prisoner argued that he had received no notice or hearing before his classification, while the state argued that he had an opportunity to be heard through his annual classification review, and that he will be eligible for minimum custody.

            The appeals court found that the record was inadequate for it to determine whether the prisoner had received adequate notice and hearing to satisfy this due process requirement, so it ordered further proceedings. Kirry v. Siegelman, Nos. 98-6236, 98-6672, 195 F.3d 1285 (11th Cir. 1999).

Text: <www.law.emory.edu/11circuit/index.html>. [Cross-reference: Sexual Offenders].

"Nation of Islam" members in New York state prison were not entitled to a kosher diet, even though it was being supplied to Jewish prisoners, when a pork-free "Religious Alternative Menu" provided to them was adequate to meet their nutritional and religious requirements; prison did not violate their rights by refusing to hire one of them as an inmate clerk to handle "Nation of Islam" affairs in the facility.

            New York state prisoners of the Muslim faith sued prison officials, arguing that they were denied free exercise of their religion or equal protection rights based on denial of access to kosher meals, which they argued were available to Jewish inmates. They also complained that their religious needs were not adequately accommodated because the prison refused to hire a clerk to handle "Nation of Islam" (N.O.I.) affairs.

            Granting judgment for the defendant prison officials, the federal trial court noted that the Muslim prisoners were allowed to choose food from the "Religious Alternative Menu" (RAM) currently offered by the Department of Corrections to the entire general population of the state prison system. This pork-free diet, it had been found, provided a nutritionally adequate diet which did not impinge upon Nation of Islam inmates' exercise of their religious faith. This had been established in prior litigation, Allah v. Kelly, No. 99-CV-7323CJS(H) (W.D.N.Y. April 19, 1999), by comparing this menu to the dietary requirements described by Elijah Muhammad, the founder of the Nation of Islam, in his publication "How to Eat to Live." While a kosher diet would also satisfy these requirements, the RAM menu diet was adequate to do so.

            The court also found that prior caselaw had repeatedly ruled that the RAM program was reasonably related to legitimate penological interests, such as operating correctional facilities "appropriately within budgetary constraints" while reasonably accommodating prisoner's religious beliefs.

            The trial court also found that no "rational juror" could find that the prisoners were entitled to an order requiring the prison to hire a member of the Nation of Islam "as an inmate clerk to conduct N.O.I. affairs starting at pay grade three" as they demanded. "It is well established," the court noted, that inmates "do not have any constitutional, statutory, regulatory or precedential rights to a particular prison job." Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337 (W.D.N.Y. 2000). [Cross-references: Diet; Work/Educational Programs].

Denial of privileges to prisoner serving a sentence for sexual exploitation of a child, following his refusal to participate in a sexual abuse treatment program, did not violate his rights; court finds no violation of the privilege against self-incrimination, no violation of the prisoner's First Amendment or religious freedom rights, and no problem with the use of a "penile plethysmograph" to measure his sexual responses to various images, when participation in the treatment program was voluntary.

            A Kansas prisoner serving a sentence for sexual exploitation of a child brought a federal civil rights lawsuit against prison officials after they reduced his privileges following his refusal to participate in a sexual abuse treatment program, which they required that he do in order to obtain privileges and good time benefits.

            The trial court granted summary judgment to the defendant officials. It rejected the prisoner's claim that the requirement, in the treatment program, that he reveal potentially incriminating information about his sexual history violated his right against self-incrimination, since it was voluntary for the prisoner to participate in the program. It also found that it did not violate the prisoner's First Amendment right to refrain from speaking, again because the prisoner could choose not to participate, which he did.

            The voluntary nature of the program was also the key to the court's rejection of the prisoner's claims concerning the requirement that a prisoner seeking to participate in the treatment program first submit to a "penile plethysmograph" examination, which measured the subject's sexual responses to various images, or that the exposure to such images, including allegedly pornographic ones, violated his sincere religious beliefs. Finally, the court found that the prisoner was not deprived of procedural due process when the prison removed his personal property after he was denied privileges and shipped it to his relatives without a "pre- deprivation" hearing. He had first been provided with an opportunity to specify where he wanted the property sent, but had refused to do so. Searcy v. Simmons, 97 F. Supp. 2d 1055 (D. Kan. 2000). [Cross-references: First Amendment; Religion].

Allah v. Kelly, No. 99-CV-7323CJS(H) (W.D.N.Y. April 19, 1999).[158]
Chuffo v. Ramsey, 55 F. Supp. 2d 860 (N.D. Ill. 1999).[153]
Faulder v. Johnson, 99 F. Supp. 2d 774 (S.D. Tex. 1999).[148-149]
Janes v. Hernandez, Nos. 99-50092 & 99-50141, 215 F.3d 541 (5th Cir. 2000).[154-155]
Kirry v. Siegelman, Nos. 98-6236, 98-6672, 195 F.3d 1285 (11th Cir. 1999).[156-157]
Leon v. Johnson, 96 F. Supp. 2d 244 (W.D.N.Y. 2000).[147]
Lopez v. LeMaster, No. 98-6203, 172 F.3d 756 (10th Cir. 1999).[155-156]
May v. Sheahan, #99-3140, 2000 U.S. App. LEXIS 22676 (7th Cir.).[147-148]
Miller v. Menghini, #99-3401, 213 F.3d 1244 (10th Cir. 2000).[154]
Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337 (W.D.N.Y. 2000).[157-158]
Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999).[150-151]
Searcy v. Simmons, 97 F. Supp. 2d 1055 (D. Kan. 2000).[158-159]
Walker v. Snyder, No. 98-3308, 213 F.3d 344 (7th Cir. 2000).[149-150]
White v. Cooper, 55 F. Supp. 2d 848 (N.D. Ill. 1999).[152-153]
Wilson v. Spain, No. 99-2224, 209 F.3d 713 (8th Cir. 2000).[156]
Wright v. Riveland, No. 97-36074, 219 F.3d 905 (9th Cir. 2000).[151-152]