August, 2001 web edition

Under the Prison Litigation Reform Act, prisoners must exhaust available administrative remedies before filing a lawsuit, even when they are seeking only money damages and money damages may not be obtained through the administrative grievance process.

            Under the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a), a prisoner must exhaust available administrative remedies before pursuing a lawsuit over prison conditions. The U.S. Supreme Court has now unanimously held that a plaintiff prisoner must do this even if they are seeking only money damages as a remedies, and despite the fact that money damages may not be available in an administrative grievance procedure.

            The ruling came in a lawsuit under 42 U.S.C. Sec. 1983 filed by a Pennsylvania state prison inmate who claimed that correctional officers assaulted him and then denied him adequate medical care for resulting injuries. Seeking both injunctive relief and money damages, he pursued an administrative grievance, but did not seek an administrative review after the prison authority denied relief. Money damages were not available through the administrative process. When he filed his lawsuit, a federal appeals court upheld dismissal of the claim for failure to pursue the administrative appeal. Booth v. Churner, #97-7487 & 97- 7488, 206 F.3d 289 (3rd Cir. 2000), reported in Jail & Prisoner Law Bulletin, No. 287, p. 168 (Nov. 2000).

Text: <http://pacer.ca3.uscourts.gov/>.

            The U.S. Supreme Court upheld this ruling, finding that Congress intended to require procedural exhaustion of available administrative remedies "regardless of the relief offered through administrative remedies." Booth v. Churner, #99-1964, 121 S. Ct. 1819 (2001). [Cross-references: Prisoner Assault: By Officer; Prison Litigation Reform Act: Exhaustion of Remedies].

Text: <www.findlaw.com/casecode/supreme.html>.

U.S. Supreme Court rejects "catalyst theory" for the award of attorneys' fees in federal lawsuits; a plaintiff, in order to be entitled to an attorneys' fee award must receive a court judgment on the merits or a court-ordered consent decree; a voluntary change in the behavior of the defendant will not suffice.

            In an important decision on the awarding of attorneys' fees in federal lawsuits, the U.S. Supreme Court has rejected the argument that plaintiffs can qualify to receive such awards as "prevailing plaintiffs" on a "catalyst theory," without being awarded either a judgment on the merits or a court-ordered consent decree. While the immediate case involved alleged violations of the federal Fair Housing Amendments Act and Americans With Disabilities Act against a state welfare agency, rather than a federal civil rights claim under 42 U.S.C. Sec. 1983 against law enforcement defendants, the reasoning of the Court's opinion would appear to be equally applicable to Sec. 1988 claims for attorneys' fees in Sec. 1983 cases.

            The "catalyst theory," which a number of federal appeals courts had adopted, awarded attorneys' fees to a plaintiff in instances where the filing of the lawsuit arguably brought about a voluntary change in the defendant's conduct, and the plaintiff therefore arguably achieved their goals or obtained their desired relief without the court ruling on the merits of their claim.

            The Supreme Court ruled that the "catalyst theory" is not a permissible basis for the award of attorneys' fees under the FHAA and ADA. Parties in litigation in the U.S. are expected to bear their own attorneys' fees in the absence of an "explicit statutory authority" for an attorneys' fee award. While Congress has employed the legal term "prevailing party" in numerous statutes authorizing awards of attorneys' fees, the Court noted, a "prevailing party" is "one who has been awarded some relief by a court."

            The "catalyst theory," by allowing an attorneys' fee award where there is "no judicially sanctioned change in the parties' legal relationship" exceeds the intent of Congress in authorizing attorneys' fee awards.  Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848, 121 S. Ct. 1835 (2001).

Text: <www.findlaw.com/casecode/supreme.html>.

Colorado statute providing for sovereign immunity to negligent injury claims by prisoners did not violate inmate's right to equal protection of law; prisoner claiming he slipped and fell because of officer's spilling of coffee and juice could amend complaint to assert claim for "willful and wanton" misconduct.

            A Colorado prisoner sued a correctional officer and the state Department of Corrections for negligence based on injuries he suffered when he slipped and fell on coffee and juice allegedly spilled by the officer. An intermediate state appeals court upheld a provision of the state's Governmental Immunity Act, C.R.S.A. Sec. 24-10-106(1.5), which provides that the waiver of sovereign immunity for negligence set forth in other state statutes "does not apply to claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction."

            The court rejected the argument that this violated the plaintiff prisoner's right to equal protection of the law under the U.S. and Colorado constitutions. It found the statute in question "rationally related to the legitimate state interests of fiscal solvency and provision of essential services while minimizing taxpayer burdens," by eliminating the possibility of significant liability for negligence lawsuits by prisoners.

            The appeals court did, however, rule that the trial court should have allowed the prisoner to amend the complaint to allege that the employee acted willfully and wantonly, a claim not barred by the statute in question. Davis v. Paolino, No. 00CA1322, 21 P.3d 870 (Colo. App. 2001).

Text: <www.cobar.org/coappcts/ctappndx.htm>. [Cross-reference: Prisoner Injury/Death].

Female correctional officer was properly awarded $45,000 against New Hampshire Dept. of Corrections based on sexual harassment and a hostile work environment which included male co-workers making sexual remarks and propositions and reading pornographic magazines at work.

            A federal appeals court has upheld an award of $45,000 to a female former corrections officer against the New Hampshire Dept. of Corrections, based on her claims that she was subjected to direct sexual harassment and a hostile work environment because of actions of male officers and supervisors, and that she was retaliated against when she complained about the harassment.

            The plaintiff presented evidence that "sexual conversations and jokes" were common at the workplace, that male employees "graphically spoke of their evenings at clubs and bars, read pornographic magazines at work, discussed the size of mens' penises and stared at women's breasts." She also claimed that a male co-worker said to her that a corporal "owed me a blow job for today, but seeing as though he's not here, you want to take care of that for me?" According to the plaintiff, "disgusting comments," conversations and treatment of her were "continuing," "consistent" and occurred "everyday."

            There was additional evidence that the plaintiff was subject to disparate treatment because she was a woman, including being told she could not enter the supply room with an inmate because she was a woman and "something could happen to her." Male officers were not given the same warning and were allowed to enter the supply room with inmates to speak with them privately.

            The appeals court also found that there was evidence that the employer was aware of the sexual harassment because of the plaintiff's complaints but that it allegedly did not handle the internal investigation properly or timely. Finally, it found adequate evidence that she was transferred out of her unit in retaliation for her complaints and ultimately constructively discharged. White v. New Hampshire Dept. of Corrections, No. 99-1818, 221 F.3d 254 (1st Cir. 2000).

Text: <http://www.law.emory.edu/1circuit>. [Cross-reference: Sexual Harassment].

Exclusion of polygraph evidence showing that inmate was telling the truth about her alleged repeated sexual relations with Native American/Hispanic correctional officer required a new trial and reversal of $50,000 damage award to officer, who claimed race discrimination in having been placed on administrative leave during investigation of her accusations.

            A Native American/Hispanic correctional officer was awarded $50,000 in damages and $22,001 in attorneys' fees and court costs on his claim that he was subjected to race discrimination when he was placed on administrative leave during an investigation of a female prisoner's sexual misconduct charges against him. He had claimed that race was a substantial factor in the decision to place him on administrative leave.

            Reversing the award and ordering a new trial, an intermediate state of Washington appeals court found that a polygraph test conducted on the inmate, indicating that she was telling the truth concerning her alleged repeated sexual relations with the plaintiff officer were admissible as evidence in the lawsuit, for the purpose of showing the department's nondiscriminatory reason for placing the officer on administrative leave during the ensuing investigation. The Defendant Department was therefore entitled to a new trial, since the trial court's exclusion of this polygraph evidence prejudiced the state's case. Subia v. Riveland, No. 24627-9-H, 15 P.3d 658 (Wash. App. 2001).

Text: <www.courts.wa.gov/opinions/>.

Alleged parole violator's detention for 30 days in a New Mexico facility without the initiation of extradition proceedings to send him to Ohio did not violate his rights under federal or state law when he had previously signed a waiver of extradition as a condition of parole in Ohio.

            A man incarcerated in a New Mexico detention facility for 30 days on a warrant for an alleged parole violation in Ohio. He later sued New Mexico correctional officials, arguing that he was unlawfully detained without the initiation of extradition proceedings. He claimed that this entitled him to damages under 42 U.S.C. Sec. 1983 and the New Mexico Tort Claims Act.

            Upholding summary judgment for the defendants, a federal appeals court held that the detainee had no right to specific extradition procedures, especially since he had previously signed a waiver of extradition as a condition of parole in Ohio. Further, even if the waiver of extradition he signed was invalid because it was coerced, New Mexico officials had no reason to known that it was signed involuntarily, and were therefore entitled to qualified immunity from a claim based on their failure to initiate extradition procedures.

            Further, the court held that the officials at the detention center were not required by law to conduct an independent investigation of the detainee's claim that he was entitled to be released under a judge's order in another New Mexico county. That order named a different detention facility that the detainee was to be released from, but did not name the facility in which he was then confined. Scull v. New Mexico, Nos. 99-2215, 99-2216, 236 F.3d 588 (10th Cir. 2000).

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

Neither the state nor a state employee can be liable for damage to a prisoner's property under applicable North Dakota law.

            A North Dakota prisoner brought a lawsuit under state law against four prison employees, seeking damages for the alleged confiscation of his property. He sued the defendants in their individual capacities.

            Upholding the dismissal of the lawsuit, the Supreme Court of North Dakota noted that, under a state statute, N.D.C.C. Sec. 32-12.2-03(2), a state employee "is not personally liable for money damages when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of employment." Rather, such an action "must be brought against the state."

            In this case, the plaintiff did not sue the state and also did not allege that the employees acted outside the scope of their employment. Further refuting the prisoner's assertion that he had a valid lawsuit, the court pointed to another state statute, N.D.C.C. Sec. 32-12.2-02(3)(k), providing that neither the state nor a state employee may be held liable for a "claim resulting from damage to the property of a patient or inmate of a state institution." Vogel v. Braun, No. 20000193, 622 N.W.2d 216 (N.D. 2001).

Text: <www.findlaw.com/11stategov/nd/ndca.html>.

Failure to provide insulin for a diabetic prisoners could be the basis for a deliberate indifference claim; civil rights lawsuit allowed to go forward.

            A diabetic prisoner in an Alabama correctional facility sued prison officials for allegedly failing to provide her with "usable insulin" in a timely manner after she was incarcerated. The trial court declined to grant the defendants qualified immunity. If the defendants knew that the prisoner needed insulin and deliberately declined to supply it, then a reasonable jury could find that the officials did so in order to improperly punish the prisoner. Flowers v. Bennett, 135 F. Supp. 2d 1150 (N.D. Ala. 2000).

Prisoner could pursue claim against jail captain based on allegation that he knew of the seriousness of her tooth abscess and acted with deliberate indifference to it, but claims against the county were abandoned when she did not dispute trial court's finding that the county had a policy in place for making and transporting inmates to outside medical (including dental) appointments.

            A former prisoner at a Wisconsin county jail sued a captain at the facility and the county, alleging a violation of her right to receive adequate medical treatment based on an claimed delay in receiving dental treatment for an abscessed tooth. An intermediate state appeals court found that the prisoner stated a possible claim against the captain, since there was a factual issue as to whether he was aware of the seriousness of the risk to the prisoner's health from the tooth abcess, and, knowing that, acted with deliberate indifference to it.

            At the same time, the court found that the prisoner had essentially abandoned her claims against the county by failing to dispute the trial court's conclusion that the county had in place a policy for making and transporting inmates to outside medical appointments, including for dental treatment. The fact that the policy might have been misapplied or violated in relation to the inmate's dental problem did "not render" the policy itself defective. Cody v. Dane County, 625 N.W.2d 630 (Wis. App. 2001).

Text: <http://www.wisbar.org/legalres/>.

Man confined in a state mental hospital based on a finding of not guilty by reason of insanity was not a "prisoner" for purposes of the Prison Litigation Reform Act's filing fee or "three strikes" rules; no rule prohibited him from pursuing federal civil rights claim himself rather than through his court-appointed guardian.

            An inmate of a state mental institution, confined there based on a determination that he was not guilty of a certain criminal offense on the basis of insanity, filed a civil rights lawsuit against his termination from a job within the institution based on his refusal to take prescribed medication, and also claiming that he was being forced to take certain medications in violation of his due process rights.

            The trial court dismissed these claims because they were brought directly by the inmate, rather than by his court appointed guardian. Additionally, the court and applied the Prison Litigation Reform Act (PLRA) to the lawsuit, as though he were a prison inmate.

            A federal appeals court found that there was "no absolute rule" that a "ward may never prosecute a case in his own name." It further held that the plaintiff, under these circumstances, was "a mental patient, not a convict" for purposes of the PLRA. Accordingly, the plaintiff was subject to neither the detailed inmate account procedures for the payment of filing fees nor the "three-strikes" rule contained in the PLRA barring the filing of further lawsuits after three frivolous ones. Kolocotronis v. Morgan, No. 01-1308WM, 247 F.3d 726 (8th Cir. 2001).

Text: <www.wulaw.wustl.edu/8th.cir>. [Cross-references: Prison Litigation Reform Act: Filing Fees; Prison Litigation Reform Act: "Three Strikes" Rule].

Arkansas prisoner's lawsuit was properly dismissed for failure to exhaust available administrative remedies; even if prisoner submitted evidence to the appeals court that he may have exhausted remedies on one of his claims, he never showed that to the trial court, and the burden to do so was his.

            An Arkansas prisoner claimed that various Arkansas correctional employees violated his constitutional rights by, "among other things, forcing him to assault other inmates, improperly placing him in punitive isolation and administrative segregation, assaulting him, and improperly classifying him."

            A federal appeals court upheld the dismissal of the lawsuit for failure to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). While the prisoner submitted some evidence to the appeals court indicating that his administrative remedies as to at least one of his claims "may have indeed been exhausted" before he filed his lawsuit, he did not attach that evidence to his complaint in the trial court nor did he allege full exhaustion in his complaint. The plaintiff prisoner had the burden, in the trial court, of showing that he had complied with the exhaustion of remedies requirement, which he did not do. McAlphin v. Morgan, #99-4112, 216 F.3d 680 (8th Cir. 2000).

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

Prisoner adequately exhausted administrative remedies on his excessive force claim against officers when he attempted to file his grievance, but it was not processed; the merits of his claim were later examined and rejected by the highest official in the state corrections department.

            A Pennsylvania prisoner adequately exhausted administrative remedies before filing his federal civil rights lawsuit claiming that excessive force had been used against him, a federal appeals court ruled. The prisoner's claim was that guards assaulted and stun gunned him while extracting him from his cell.

            The prisoner asserted that despite his attempts to file a grievance after the incident, his complaint was not processed at all because he was on grievance restriction at the time in a restrictive housing unit. After he left that facility, he submitted a grievance to the correctional department's office of professional responsibility, which forwarded it to the state Office of the Secretary of Corrections. That official later notified him that his allegations were rejected and that the officers' actions were justified.

            A federal appeals court rejected the defendants' argument that the prisoner did not show, under these circumstances, that he had exhausted all available administrative remedies. The appeals court noted that while he was in restrictive housing, he took all steps he could to present his grievance, and was only required to exhaust such administrative remedies "as are available." Further, his grievance was ultimately fully examined on its merits "by the ultimate administrative authority" and was found wanting. Therefore, he could now proceed with his lawsuit. Camp v. Brennan, No. 99-3887, 219 F.3d 279 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-reference: Prisoner Assault: By Officer].

Deputy's alleged action of choking a pre-trial detainee without justification was sufficient to state a claim for excessive use of force even if no "significant injury" was suffered.

            A pre-trial detainee in a Virginia correctional center alleged that he was assaulted by a sheriff's deputy with force sufficient to cause bruising, scarring and swelling. He claimed that the deputy choked him without provocation or justification, as a result of the deputy's "personal problems." The defendant officer argued that, even if the plaintiff was attacked, the injuries alleged were "de minimis" (insignificant) and therefore could not be the basis for a federal civil rights lawsuit under 42 U.S.C. Sec. 1983.

            In support of that argument, the defendant officer cited Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc) and Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998), two cases holding that a prisoner or pre-trial detainee cannot prevail on an excessive force claim if the injury suffered was "de minimis." The federal trial court rejected the argument, holding that the cases cited appear to "be in conflict with the United States Supreme Court" and its ruling in Hudson McMillian, 503 U.S. 1 (1992).

            In Hudson, the court pointed out, the U.S. Supreme Court held that "when prison officials maliciously and sadistically use force to cause harm, contemporary standards of decedency always are violated. This is true whether or not significant injury is evident." The Eighth Amendment, the trial court stated "surely does not afford guards in a detention center with the cloak of insulation from cruel and unusual punishments inflicted upon an inmate in custody so long as the assault is not severe." The trial court reasoned that the Supreme Court, in Hudson, when it stated that "not every malevolent touch by a prison guard gives rise to a federal cause of action," was not basing this on a requirement that there be some type of level of injury before a claim was stated, but rather referring to "trivial uses of force."

            The Hudson Court, the trial court stated, "seems to recognize that an unprovoked punch in the face would violate the Eighth Amendment, particularly where the inmate suffers some painful injury." Watford v. Bruce, 126 F. Supp. 2d 425 (E.D.Va. 2001).

Parole officers' release of parolee's medical records to officers investigating serial rape case did not violate parolee's Fourth Amendment or Eighth Amendment rights or his right to privacy.

            When New York parole officers concluded that one of their parolees had certain distinctive physical characteristics that matched those of a rape suspect sought in a serial rape case, they notified the authorities and provided them with copies of the parolee's medical records from his prior incarceration. He was later arrested and charged with numerous rapes, but alleges that DNA tests eventually cleared him of one of the rapes. He was eventually convicted of multiple counts of rape, sodomy, arson, and robbery.

            He sued the parole officers, as well as other defendants, arguing that they violated his federal civil rights, specifically his right to privacy, by releasing his prison medical records without his consent. A federal trial court found that the plaintiff did not have a Fourth Amendment expectation of privacy in his prison medical records, even if he provided information in those records expecting that it would be maintained confidentially, since the records did not belong to him and were never in his possession.

            The court also found that the production of these records did not violate the plaintiff's privilege against self-incrimination or the Eighth Amendment's prohibition on cruel and unusual punishment. Further, the prisoner's interest in confidentiality about his various genital conditions was outweighed by the public's interest in determining whether he had committed the rapes, for which his genital condition made him a prime suspicion. Webb v. Goldstein, 117 F. Supp. 2d 289 (E.D.N.Y. 2000). [Cross-reference: Parole].

Texas Supreme Court rules that religious instruction housing unit at county jail, popularly called the "God Pod," was an unconstitutional establishment of religion since it constituted a government endorsement of a particular religious view.

            A unanimous Texas Supreme Court has ruled that the operation of a "Chaplain's Education Unit" at a county jail, popularly known as the "God Pod," was an unconstitutional "establishment of religion" in violation of the First Amendment, promoting a certain religion over others. The lawsuit was brought by two former inmates of a county jail who claimed that this program, initiated by the former county sheriff, violated the separation of church and state. Prisoners living in the housing unit received 4 hours a day of group religious instruction, spend the rest of the day completing assignments and studying the Bible, and reviewing other religious books or videotapes.

            "Providing moral guidance to inmates," the court stated, "is certainly an important mission, and we recognize that hiring a chaplain may be necessary to secure prisoners' rights under the Free Exercise Clause." Prisoners, to be admitted into the housing unit or "pod", had to pass a security clearance, as well as sign an agreement that the Chaplain's Education Unit was based on "orthodox Christian biblical principles," and that they were willing to "cooperate fully with the program." This "official endorsement of religion is, as a matter of law, unconstitutional," the court ruled, despite any legitimate motivation of furthering prisoner rehabilitation. The former sheriff and the chaplain involved in the program acknowledged that no religious instruction that would conflict with their view of Jesus Christ as deity and the Bible being holy and "infallible" was allowed in the program.

            The plaintiffs were a Jewish prisoner and a Jehovah's Witness prisoner, who objected to the fact that the "God Pod's" particular type of religious instruction was the only available opportunity for group religious study. The county jail held a Tuesday night religious service for the general population of the jail, but it followed the same religious doctrines as the Chaplain's Education Unit.

            The court rejected the argument that the establishment of the religiously based housing unit at the jail did not violate the establishment clause because participation in the program was voluntary. The fact that inmates were "willing to submit to the instruction offered does not mean that [the sheriff and the chaplain] did not promote their own personal religious beliefs over other religious teachings, and their official endorsement of the substance of the religious instruction offered in th CEU goes beyond what the Establishment Clause can tolerate." The court ordered further proceedings to determine if injunctive relief is warranted and whether the plaintiffs should recover damages. Williams v. Huff, No. 99-0273, 2001 Tex. LEXIS 74.

Text: <www.supreme.courts.state.tx.us/scopn.htm>.

Jail chaplain acted under color of state law in allegedly engaging in sexual acts with female prisoner who came to him for religious purposes; prisoner could pursue federal civil rights claim.

            A female inmate in a Texas county jail claimed that the jail chaplain, on a number of occasions, engaged in various sexual acts with her, including fondling her breasts, performing oral sex on her, and putting his fingers in her vagina. She initially went to him for purposes of discussing her "spiritual awakening" and belief in God.

            A federal trial court ruled that the chaplain acted under color of state law for purposes of a civil rights lawsuit under 42 U.S.C. Sec. 1983. The county had delegated to a private corporation its duty under state law to provide religious services to prisoners, and allowed that company and its personnel "broad access" to inmates when providing those services. The court also reasoned that there could be liability for the county under a "failure to protect" theory even if the chaplain were found not to have acted under color of state law.

            The court found that there were genuine issues of fact as to whether the jail chaplain had coerced the prisoner or used his position to prevail upon her to engage in repeated sexual acts, while also telling her that God would forgive her actions, and also whether the alleged sexual contact took place, making summary judgment inappropriate on the federal civil rights claim. It also found a genuine issue as to whether the prisoner was placed in administrative segregation in retaliation for complaining about the alleged sexual acts. At the same time, the court ruled that any state law claim for sexual battery could not be pursued against the county because of sovereign immunity under Texas law. Paz v. Weir, 137 F. Supp. 2d 782 (S.D. Tex. 2001). [Defenses: Governmental Immunity].

State prison ban on smoking, sale of tobacco products, and possession of tobacco by inmates did not violate inmate's equal protection rights or constitute "disability discrimination" against smokers; federal court dismisses lawsuit as frivolous.

            A Maryland state prisoner brought a federal civil rights lawsuit asserting that a ban on smoking and sale of tobacco products and possession of tobacco by inmates in state prisons violated his right to equal protection of the law and constituted disability discrimination under the Americans With Disabilities Act (ADA). A federal trial court rejected the lawsuit as frivolous.

            Far from violating equal protection of law, the court found that the prohibitions on tobacco possession and use was a rational way of furthering the state's legitimate interest in protecting the health of non-smokers present in correctional facilities. Smoking, the court noted, is not a fundamental right, and a classification between smokers and non-smokers is not a "suspect" one. "Indeed," the court commented, "given the close confinement situation is prisons, it is probably the only rational way," given the fact that the state could, under Helling v. McKinney, 509 U.S. 25 (1993), potentially face liability if it did not protect non-smokers from the "well-known harmful effects of secondhand smoke."

            The court also stated that "common sense compels the conclusion that smoking, whether denominated as 'nicotine addiction' or not, is not a 'disability' within the meaning of the ADA," since Congress "could not possibly have intended the absurd result of including smoking within the meaning of 'disability,' which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke." Additionally, both smoking and 'nicotine addiction' are readily remediable," either by quitting smoking or by using such items as nicotine patches or chewing gum. Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001). [Cross-reference: Disability Discrimination; Frivolous Lawsuits].

State did not violate the rights of prisoners or their families in granting phone companies a monopoly in providing collect telephone services at particular prisons in exchange for half the revenue generated; federal appeals court rejects claim that it should review "exorbitant" rates charged for such calls.

            A number of Illinois prisoners, their families, and a "public interest" law firm filed a lawsuit against Illinois state correctional officials challenging the practice of prisons in the state giving a phone company the exclusive right to provide phone services to prisoners at a facility in exchange for 50% of the revenues generated. The plaintiffs claimed that the rates charged by the phone companies were "exorbitant." The rates were for collect calls only, and the plaintiffs alleged that the high rates were due to the monopoly granted.

            The plaintiffs sought damages and injunctive relief against the phone companies and against state agencies for violation of civil rights, on anti-trust claims, and on other grounds.

            A federal appeals court rejected all the claims made. The court noted that there was no evidence that the deals entered into were motivated by any intent to limit free speech. The court also found that the state did not violate any anti-trust law, and that any claim that the telephone rates were improperly set should be addressed before regulatory agencies that address that issue.

            States, the court noted, "have to get revenue somehow, and the 'somehow' is not the business of the federal courts unless a specific federal right is infringed." Arsberry v. State of Illinois, No. 00-1777, 244 F.3d 558 (7th Cir. 2001).

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

Visitor denied use of a restroom to urinate is awarded $5,000 in compensatory and $5,000 in punitive damages against correctional officer; refusal to allow visitor to urinate violated his substantive due process rights.

            A 69-year-old man was visiting his son in a Michigan correctional facility. The son informed a correctional officer that his father needed to urinate. The officer stated that the request was denied because a prisoner count was being taken and no prisoner or visitor movement was allowed during the count. After repeated requests were denied, including one that the visitor simply be allowed to leave, terminating the visit, and a statement by the visitor that he was in pain, the visitor urinated in his pants.

            In a federal civil rights lawsuit against the officer, the visitor states that the officer was laughing at him when he wet his pants. At the time, prison rules allowed visitors to use the restroom one time during a visit and no rule restricted the movement of a visitor to the restroom during a prisoner count. A federal trial court ruled that the corrections officer violated the visitor's substantive due process rights by refusing to allow him to use the restroom, and awarded the plaintiff visitor $5,000 in compensatory damages and $5,000 in punitive damages.

            The court found that, under these conditions, the ability/opportunity to urinate, "being a matter of bodily integrity, is a fundamental right subject to due process protection." It further ruled that the officer's conduct "shocks the conscience," as he was deliberately indifferent to the visitor's rights. Further, the fact that the officer laughed at the visitor's situation demonstrates that his actions were "malicious and not intended to advance any legitimate governmental interest." Glaspy v. Malicoat, 134 F. Supp. 2d 890 (W.D. Mich. 2001).

Correctional officials were entitled to qualified immunity from liability for removal of prisoner from New York work release program in 1994, when his right to be in the program was not clearly established, but not entitled to such immunity for removing him from the program again in 1997, when his right to a pre-removal hearing was clear.

            New York correctional officials were entitled to qualified immunity on a prisoner's lawsuit concerning his 1994 removal from a temporary work release program, but not from a claim seeking damages for his 1997 removal from the program. That was because, at the time of the prisoner's removal in 1994, the "contours" of his right to be in the program were not "sufficiently clear," according to the trial court, so that it could not be said that a reasonable person would understand that removing the prisoner from the program would violate his rights. By the time of the 1997 removal from the program, the "boundaries" of the prisoner's liberty interest as defined in applicable regulations concerning the program were "clear and unambiguous," and spelled out his right to various procedural safeguards before his removal from the program. Aupperlee v. Coughlin, 97 F. Supp. 2d 336 (E.D.N.Y. 2000).

Arsberry v. State of Illinois, No. 00-1777, 244 F.3d 558 (7th Cir. 2001).[125-126]
Aupperlee v. Coughlin, 97 F. Supp. 2d 336 (E.D.N.Y. 2000).[126-127]
Booth v. Churner, #99-1964, 121 S. Ct. 1819 (2001).[115]
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,
                No. 99-1848, 121 S. Ct. 1835 (2001).[115-116]
Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001).[124-125]
Camp v. Brennan, No. 99-3887, 219 F.3d 279 (3rd Cir. 2000).[121]
Cody v. Dane County, 625 N.W.2d 630 (Wis. App. 2001).[119-120]
Davis v. Paolino, No. 00CA1322, 21 P.3d 870 (Colo. App. 2001).[116]
Flowers v. Bennett, 135 F. Supp. 2d 1150 (N.D. Ala. 2000).[119]
Glaspy v. Malicoat, 134 F. Supp. 2d 890 (W.D. Mich. 2001).[126]
Kolocotronis v. Morgan, No. 01-1308WM, 247 F.3d 726 (8th Cir. 2001).[120]
McAlphin v. Morgan, #99-4112, 216 F.3d 680 (8th Cir. 2000).[120-121]
Paz v. Weir, 137 F. Supp. 2d 782 (S.D. Tex. 2001).[124]
Scull v. New Mexico, Nos. 99-2215, 99-2216, 236 F.3d 588 (10th Cir. 2000).[118]
Subia v. Riveland, No. 24627-9-H, 15 P.3d 658 (Wash. App. 2001).[117-118]
Vogel v. Braun, No. 20000193, 622 N.W.2d 216 (N.D. 2001).[118-119]
Watford v. Bruce, 126 F. Supp. 2d 425 (E.D.Va. 2001).[121-122]
Webb v. Goldstein, 117 F. Supp. 2d 289 (E.D.N.Y. 2000).[122-123]
White v. New Hampshire Dept. of Corrections, No. 99-1818, 221 F.3d 254 (1st Cir. 2000).[117]
Williams v. Huff, No. 99-0273, 2001 Tex. LEXIS 74.[123-124]