July, 2001 web edition

Correctional facility had to either make a good faith effort to accommodate an officer, who was also a minister, in his request for unpaid leave to attend religious conferences, or else show that doing so would create an undue hardship; racial harassment claim was also asserted by officer.

            A New York correctional officer, who was also a minister, was entitled to unpaid leave from his job to attend religious conferences, in an absence of a showing of undue hardship by his employer. A federal trial court found that the employer had the burden of showing that it tried, in good faith, to accommodate the requirements of the officer's religious beliefs, or else to show that doing so would create an undue hardship on the correctional facility. The officer alleged that he was denied various accommodations, such as the use of vacation time or annual leave to attend annual religious conferences, and that various retaliatory actions were taken against him for his requests.  The court therefore denied summary judgment to the defendants.

            The court also found that the officer, who is African-American, stated a claim for a hostile work environment based on racial harassment such as racial slurs in bathroom graffiti and log book entries and drawings, which were allegedly not adequately investigated, as well as incidents in which African-American officers had BBs shot through the windows of their cars. Jones v. New York City Dept. of Correction, 2001 U.S. Dist. LEXIS 2669 (S.D.N.Y.). [Cross-reference: Racial Harassment; Religion].

Existence of state law remedies for false imprisonment did not bar prisoner's federal civil rights claim that his Fourth and Eighth Amendment rights were violated when he was allegedly held in custody for 90 days beyond his scheduled release date; two year Kansas statute of limitations rather than one-year statute applied to federal claim.

            A Kansas prisoner serving a sentence for aggravated incest claimed that he was unlawfully held in custody for 90 days beyond his scheduled release day. He filed a lawsuit seeking damages for violation of his federal civil rights under 42 U.S.C. Sec. 1983, as well as for negligence under state law. A Kentucky trial court ruled that the prisoner's federal civil rights claim was barred "because an adequate state remedy for false imprisonment was available" to him. It further ruled that a false imprisonment claim should have been brought within a 1-year statute of limitations and that the negligence claim was also time-barred as an attempt to circumvent the time limit. (His lawsuit was filed one year and nine months after his release).

            An intermediate Kansas appeals court reversed, holding that the existence of any adequate state remedies did not bar the former prisoner's federal civil rights claims that his continued confinement violated his Fourth Amendment right to be free from unlawful seizure and his Eighth Amendment right against cruel and unusual punishment. These claims were based on violations of specific protections defined in the Bill of Rights of the U.S. Constitution. Under Zinermon v. Burch, 494 U.S. 113 (1990), such claims are not barred by the existence of state remedies.

            The existence of adequate state remedies is only relevant to the barring of federal civil rights claims when they are for "procedural due process" violations, such as for the deprivation of property without due process of law. This is because, in such cases, the constitutional violation is "not complete when the deprivation occurs," and rather is not complete "unless and until the State fails to provide due process." In this case, assuming that the prisoner was unlawfully detained beyond the rightful date of the end of his sentence, the constitutional violation would already be complete.

            The appeals court also found that the applicable statute of limitations for the prisoner's claim was the general personal injury statute of limitations in the state, which is two years. The prisoner's federal civil rights claim was therefore not time barred. Gragg v. McKune, No. 84,354, 16 P.3d 311 (Kan. App. 2000).

Text: <www.kscourts.org/kscases/>. [Cross- reference: Defenses: Statute of Limitations].

Correctional officers' alleged statements labeling a prisoner a "rat" and an "informant," based on his complaints that an officer was allegedly seeking to incite another prisoner to attack him in retaliation for successfully appealing a disciplinary order did not suffice to constitute unconstitutional retaliation for his exercise of his First Amendment rights.

            A New York prisoner claimed that a number of correctional officers took retaliatory actions against him, in violation of his First Amendment rights, after he successfully appealed a disciplinary order issued by one officer and filed a complaint against another.

            He claimed that he was told that one of these officers threatened to put another inmate on a "restricted diet" unless he attacked him, with the goal of taking disciplinary action against him for the fight that would follow. He did not claim that he was actually either attacked or threatened by this inmate, however.

            After he reported this claim to the superintendent, another officer, appointed to investigate, allegedly approached him and called him a "rat" in a manner that other prisoners could hear. His lawsuit claimed that this was intended to label him as an "informant" for the purpose of getting other prisoners to attack him. He further claimed that yet another officer subsequently told various unidentified inmates that he was "an informant."

            Upholding the dismissal of the lawsuit, a federal appeals court found that the facts, as alleged, did not support an inference of a causal connection between the prisoner's successful appeal of the disciplinary order and the first officer's alleged attempt to incite another prisoner to attack him, since the prisoner failed to specify any time frame between the two events.

            The appeals court also found that officers' various alleged references to the prisoner as a "rat" or an "informant" in conversations with other prisoners were insufficient to be viewed as unconstitutional retaliation for the exercise of First Amendment rights, without "some factual showing that the comments actually risked inciting other inmates" to attack him.

            "We are unwilling simply to assume that prison inmates would be incited, without more, to attack 'one of their own' who was labeled an 'informant' and a 'rat' for complaining to prison supervisors about a prison guard's conduct." Dawes v. Walker, No. 99-252, 239 F.3d 489 (2nd Cir. 2001). [Cross-reference: Prisoner Assault: By Inmates].

Prisoner's 125-page complaint was "neatly typed," and "readable and comprehensive," but his claim to be the "Messiah" and request for a pardon, peace in the Middle East, and material things such as "500 pairs of mature breeding lake trout" were all frivolous.

            A federal judge in Michigan did have some words of praise for a plaintiff prisoner's 125-page complaint and its 80 pages of exhibits: "He has obviously devoted prodigious amounts of time, energy and disciplined effort to assembling his proofs. His submissions are neatly typed and his rambling and lengthy expositions about prison conditions" and various other things "are readable and comprehensible, despite their often irrational, megalomaniacal content." Turning to the content, however, he felt that he had little choice but to dismiss as "fanciful, fantastic, delusional [...] frivolous, implausible, unsubstantial and devoid of merit" the prisoner's claim that he was the "'God-Messiah' of the Holy Bible."

            The prisoner's lawsuit against a wide variety of governmental and non-governmental entities and persons sought acknowledgement that he  is the "Messiah" and "King of the Jews," as well as a judicially ordered pardon, peace in the Middle East, "treatment of the Red Heifer, Melody, as Royalty," and, in the alternative, that he be given various material things by the government, such as 600 million metric tons of .995 fine gold, 500 pairs of mature breeding lake trout, and "45 million trees of various varieties at least the age of 50 years old."

            While the prisoner paid the entire filing fee of $150, rendering inapplicable the court's authority to screen prisoner complaints for frivolity under the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(e)(2), the court found that it lacked subject matter jurisdiction since the plaintiff had no constitutional right to be treated as the "Messiah-God or any other holy, extra- worldly or supernatural being of power." DeKoven v. Bell, #01-10124-BC, 2001 U.S. Dist. LEXIS 5133 (E.D. Mich.).

Text: <www.mied.uscourts.gov>.

Detainee with complete kidney failure did not show that he suffered a detrimental effect from missing one scheduled dialysis treatment during his incarceration.

            A Kentucky arrestee suffered from complete kidney failure and was scheduled, prior to his incarceration, to receive dialysis treatments three times a week. When he was brought to a detention facility following his arrest on a bench warrant, he told correctional employees of his need for dialysis, but told the assistant jailer that missing his appointment the following day was "no big deal" because he had "missed them before." The assistant jailer, before leaving that evening, told the arrestee who to ask for if he felt sick.

            The following day, when he appeared in court, the judge granted him a furlough allowing him to be transported to the dialysis treatment and returned by a relative, but no relative picked him up. Later that evening, after twenty-nine hours of incarceration, he was released.

            The prisoner sued various jail employees claiming that they acted with deliberate indifference to his serious medical needs. The medical records showed that he had not appeared for his scheduled dialysis three days before his incarceration, did not received scheduled dialysis on the day of his release, and did not attend his scheduled dialysis the following Monday. Further, he missed a total of forty-one scheduled dialysis treatments that year. A federal appeals court upheld summary judgment for the defendants, finding that the plaintiff had failed to show that he suffered a detrimental effect from missing the one dialysis treatment scheduled during his incarceration. Napier v. Madison County, Kentucky, No. 99- 6067, 238 F.3d 739 (6th Cir. 2001).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.

Prisoner could not assert a claim for damages for mental and emotional injuries from his alleged exposure to asbestos, in the absence of a showing of physical injury.

            A Louisiana prisoner claimed that correctional officials violated the Eighth Amendment by allowing him to be exposed to the presence of asbestos and other unhealthy conditions at a detention center. The prisoner, who had since been transferred to another facility, did not allege a particular physical injury had resulted from this exposure, but instead sought injunctive and declaratory relief and damages because he had suffered mental stress due to "fear of his life" and depression, based on his knowledge of his exposure to the asbestos.

            Upholding summary judgment for the defendant officials, a federal appeals court ruled that the prisoner's transfer to another facility made his claims for declaratory and injunctive relief moot. It further held that the plaintiff prisoner was barred, under 42 U.S.C Sec. 1997e(e) of the Prison Litigation Reform Act (PLRA), from seeking damages for emotional and mental injuries, in the absence of any allegation of physical injury. Herman v. Holiday, #99-30863, 238 F.3d 660 (5th Cir. 2001).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-reference: Prison Conditions: Asbestos].

African-American prisoner stated a failure to protect claim based on his placement in a racially integrated exercise yard with Mexican-American inmates who attacked him twice; prison officials and guards allegedly knew that this created a "serious risk" of harm but were indifferent to it.

            An African-American prisoner in a California prison stated a possible federal civil rights claim for deliberate indifference to the risk of prisoner-on-prisoner assault based on being placed in a racially integrated exercise yard, a federal appeals court ruled. Denying qualified immunity to prison officials and correctional officers, the court found that the law "regarding prison officials' duty to take reasonable measures to protect inmates from violence at the hands of other prisoners was 'clearly established'" in 1996, when the plaintiff prisoner was attacked twice in the exercise yard by Mexican-American inmates.

            The appeals court said that evidence presented by the prisoner "paints a gladiator-like scenario, in which prison guards are aware that placing inmates of different races in the yard at the same time presents a serious risk of violent outbreaks. The defendants' awareness of and indifference to this risk is demonstrated by the alleged frequency with which such outbreaks occur, by the alleged jokes made by the guards to [the plaintiff] before they released a Mexican-American inmate into the yard with him, and by the alleged fact that guards failed to intervene while [he] was attacked by another inmate." If the plaintiff's assertions are true, the court concluded, "then no reasonable prison official could have believed that his or her conduct was lawful."

            The prisoner claimed that, prior to the second attack on him, one guard joked, "let the other guy get all the way on the yard before you fight him, you can't rush him at the gate," and another guard asked him if "tear gas would bother his asthma, and six other guards laughed at this comment."

            Following that, the guards released a Mexican-American inmate into the yard with him, who attacked him immediately, requiring the use of tear gas and the firing of wooden blocks, one of which hit the plaintiff prisoner in the leg, in order to stop the fight. The prisoner also asserted that while the prison exercise yards are not segregated by race or gang affiliation, that individual prison cells at the facility are segregated "because it is widely understood that members of different gangs or races would attempt to kill each other solely on the basis of gang membership or race." Robinson v. Prunty, #00-55922, 2001 U.S. App. LEXIS 8488 (9th Cir.).

N.Y. prisoner awarded $392,000 in failure to protect lawsuit; jury finds correctional sergeant was deliberately indifferent to the risk of a second assault by returning prisoner to his cell without taking protective measures after first attack.

            While a New York prisoner was talking to a corrections officer about property that was missing from his cell, another inmate came up from behind and attacked him, right in front of the officer, punching him in the face and kicking him. The assailant's cellmate also allegedly stood by during the attack as "back-up."

            A sergeant assigned to supervise that floor escorted the injured prisoner to the infirmary and questioned him about the attack. The prisoner declined to identify either his assailant or any other inmates who might pose a continued threat to him because he felt that it would be dangerous to "rat" on other prisoners. But he did ask that he be transferred to another cell block or be placed in protective custody because he feared other inmates would "kill him."

            The sergeant refused this request and the  prisoner was returned to his cell without being placed in protective custody. The actual assailant was later transferred, but his cellmate and another inmate later again attacked the prisoner, causing serious injuries to his face, shoulder and neck which required nine days of hospitalization.

            The injured prisoner was awarded $392,000 in damages, including $225,000 for future lost earnings and $120,00 for past and future pain and suffering, based on a finding that the sergeant was deliberately indifferent to a serious risk of injury to the plaintiff when he returned him to his cell following the first assault. The trial judge declined to set aside the jury's award, finding it sufficiently supported by the evidence. Hutchinson v. McCabee, #95-Civ. 5449, 2001 U.S. Dist. LEXIS 5205 (S.D.N.Y.).

New York prisoner awarded $10,000 on claim that correctional officer struck him twice in the face without provocation; further proceedings to follow on prisoner's claim that there was a city policy of toleration of officer abuse of prisoners.

            A New York prisoner was awarded $10,000 by a jury in damages on his claim that a correctional officer, without provocation, struck him at least twice in the face with his fist, causing him a black eye, tooth loss, and other injuries. The prisoner claimed that the officer had a foot long metal rod in his hand at the time.

            Officers asserted that the prisoner had attacked the officer, but the jury rejected this version of the incident. The trial judge upheld the jury's award, and then granted the plaintiff prisoner's motion for reconsideration of summary judgment previously awarded to the employing city on his claim that there was a municipal policy of toleration of widespread abuse of prisoners by correctional officers, including a practice of improperly conducting investigations, unfounded discipline of prisoners, and failure to impose punishment on officers for prisoner abuse. Further proceedings will be held on the claims against the city. Hemric v. City of New York, 2001 U.S. Dist. LEXIS 1196 (S.D.N.Y.).

Kentucky county had sovereign immunity against negligence claim by inmate injured while performing work assignment for county road department; statute providing a mechanism for negligence claims against the state did not apply to counties in the state.

            A Kentucky inmate was injured while operating a front end loader for the county road department during his work assignment, and filed suit against the county for alleged negligent maintenance of the equipment. An intermediate Kentucky appeals court found that county had sovereign immunity under state law, and that a Board of Claims Act, KRS 44.072, establishing a mechanism for negligence damage claims against the state, did not expressly waive sovereign immunity for counties in the state. Board of Claims of Kentucky v. Banks, No. 1999-CA- 001001-MR, 31 S.W.3d 436 (Ky. App. 2000).

Text: <http://www.aoc.state.ky.us/opinions/opinions/Opinions.htm>. [Cross-reference: Sovereign Immunity].

Correctional officers were entitled to summary judgment on prisoner's claim that they "covered up" an accident in which he was struck by a van driven by a correctional employee, when prisoner failed to present any evidence to oppose evidence they submitted; claims against them in an official capacity were claims against the state, barred by absolute immunity under the Alabama state constitution.

            An inmate in an Alabama state prison claimed that he was struck by a van driven by a correctional department employee, a penitentiary steward, and that several correctional officers "deliberately attempted to cover up the incident" to protect the steward.

            The defendant correctional officers filed a motion for summary judgment, accompanied by statements by various officers and inmates involved in the incident, including an affidavit from one inmate stating that prisoners present on the scene had conspired to "get rich off the State" and had fabricated most of the story about the van striking prisoners.

            Upholding summary judgment for the correctional officers, an intermediate Alabama appeals court held that claims against them in their official capacity were prohibited by absolute immunity since they are "essentially claims against the state" barred by Art. I, Sec. 14 of the state Constitution. And the trial court correctly granted the officers summary judgment on the individual capacity claims also, since the plaintiff prisoner produced no evidence in response to their summary judgment motion and its accompanying evidence.

            Further, while the prisoner claimed that the officers "covered up" the incident, the prisoner only reported that he had been struck by the van the day after the incident, and this incident was then investigated. The court did find that the prisoner was entitled to proceed on his individual capacity claim against the stewart who he alleged drove the van and hit him. This employee was not entitled to qualified immunity, the court ruled, since driving a van through a parking lot is a "ministerial, not a discretionary, function," since it requires only "due care, rather than difficult decision-making." Evans v. Cotton, #2981428, 770 So. 2d 620 (Ala. Civ. App. 2000).

Text: <www.findlaw.com/11stategov/al/alca.html>. [Cross- references: Defenses: Absolute Immunity; Defenses: Qualified Immunity].

Overly tight application of handcuffs on a nonviolent detainee may be excessive use of force, in the absence of any indication that detainee would resist or attempt to flee.

            After a motorist was stopped for making an illegal left-hand turn, a routine check revealed that the motorist's license had been suspended for failure to pay a previous traffic ticket, and that a civil warrant had been issued due to the motorist's failure to pay child support. Placed under arrest, the motorist complained that the handcuffs were too small and tight and were injuring his wrists. Officers purportedly responded that it was city policy to handcuff all detainees, regardless of circumstances.

            In his lawsuit against the city, the motorist claimed that he was further injured because he was tossed about in the back seat because of the officers' "unnecessary speeding, tailgating, abrupt braking, and general reckless driving." When he requested medical attention at the police station, he claimed he was threatened with prosecution for obstruction for doing so, and then again handcuffed on his swollen wrists for transport to and from

            The federal appeals court found that these alleged facts stated a claim for excessive use of force. The crimes for which the motorist was stopped were "not particularly severe, nor do they indicate that the plaintiff had a tendency toward violence. There is also no evidence that  the plaintiff attempted to flee from the officers, or that he resisted arrest in any way."

            "While the Supreme Court in Graham [Graham v. Connor, 490 U.S. 386 (1989)] acknowledged that the government has the right to use, or threaten to use, 'some degree of physical coercion' when making an arrest, it is not clear from the face of the complaint that the government's interests in officer and public safety outweigh the detainee's interests in being free from severe pain and risk of injury, particularly in this case, where a non-violent detainee  was forced to wear handcuffs that were allegedly too small, even on their loosest setting, simply because the City's policy may have required it."

            Further, "for the district court to make a blanket statement that the use of handcuffs on detainees is, in all cases, objectively reasonable is at odds with the Supreme Court's holding in Graham that the particular facts of each case be examined when making a determination of the reasonableness of the force used." Kostrzewa v. City of Troy, #00-1037, 2001 U.S. App. LEXIS 7362 (6th Cir.).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.

       EDITOR'S NOTE: See also: Soares v. Connecticut, 8 F.3d 917 (2nd Cir. 1993) (refusing to hold that handcuffing is per se reasonable). In a different factual context, where officers arrested a woman following her physical altercation with her grown daughter, and the arrestee sued, claiming that her wrist was allegedly swollen from being handcuffed, another federal appeals court found that "handcuffing  too tightly, without more, does not amount to excessive force."  Glenn v. City of Tyler, #00-40133, 242 F.3d 307 (5th Cir. 2001). Full Text: <www.law.utexas.edu/us5th/us5th.html>. This case, in contrast to the one decided by the 6th Circuit, did not involve a nonviolent offense.

Keeping an inmate handcuffed to a hitching post in the sun for seven hours without regular water or bathroom breaks constituted cruel and unusual punishment; prison guards who did this, however, were entitled to qualified immunity because the law on the subject was not clearly established in 1995.

            A federal appeals court held that an Alabama inmate's Eighth and Fourteenth Amendment rights were violated when guards transporting him from his chain gang work assignment on two occasions left him handcuffed to a hitching post in the yard for lengthy periods of time.

            On one of these occasions, this restraint lasted for seven hours in the sun without regular water or bathroom breaks. He also claimed that he was taunted by the guards on this occasion and that he was not wearing a shirt. At one point guards "brought a cooler of water near him, let the prison dogs drink from the water, and then kicked the cooler over" at his feet."

            This was done after he engaged in a verbal altercation with another inmate on the first occasion and a physical altercation with a guard on the second occasion.

            On both occasions, he was examined by a prison nurse after the restraint, and no injuries were noted. The appeals court ruled that the evidence showed that prison officials were aware that placing him on a hitching post in this manner created a substantial risk of harm and did nothing to alleviate the risk. Accordingly, his claim satisfied both the subjective and objective requirements for an Eighth Amendment claim of cruel and unusual punishment.

            "Cuffing an inmate to a hitching post for a period of time extending past that required to address an immediate danger or threat is a violation of the Eighth Amendment. This violation is exacerbated by the lack of proper clothing, water, or bathroom breaks."

            At the same time, the appeals court found that the defendant prison guards were entitled to qualified immunity because "there was no clear, bright-line test established in 1995," the date of the incidents, which clearly established that the use of the hitching post in this manner constituted cruel and unusual punishment. Hope v. Pelzer, No. 00-12150, 240 F.3d 975 (11th Cir. 2001).

Text: <www.law.emory.edu/11circuit/index.html>.

Michigan city reaches $31,500 settlement with three detainees jailed completely naked for a number of hours as a suicide prevention measure; prior court ruling found that removal of their underwear and possible viewing of their bodies by female officers was not adequately justified by suicide prevention concerns, and could violate privacy and due process rights.

            A Michigan city on April 2 reached a $31,500 settlement with three men who were stripped of their clothing and jailed naked as a suicide prevention measure. The city normally removed the clothing of inmates suspected of being potentially suicidal and having them wear special gowns instead. The three plaintiff detainees were jailed completely naked for a number of hours (ranging from 6 to 18 hours) after misdemeanor arrests, because of a shortage of the gowns.

            A lawsuit filed by the detainees claimed that there was at least some viewing of their naked bodies by jail employees of the opposite sex. In an earlier ruling in the case, a federal court found that the prisoners stated a claim for a violation of their privacy rights, and that the removal of underclothing was not adequately justified as a suicide prevention measure.

            "It would not have been violative" of the detainee's rights to be "clad only in their underwear, as a suicide prevention measure, for short periods of time. However, to strip plaintiffs naked and provide them with no means of covering their bodies, forcing them to expose private body parts to viewing by female officers and to video surveillance for several hours, where the City's legitimate interest in suicide prevention could ostensibly have been just as well served by less degrading and humiliating means" also stated a claim for violation of their Fourteenth Amendment due process rights. Wilson v. City of Kalamazoo,127 F. Supp. 2d 855 (W.D. Mich. 2000). [Cross-reference: Privacy].

Prisoner's claim that he was negligently injured while being transported in a sheriff's bus from a prison to a court proceeding was insufficient, even if true, to support a federal civil rights lawsuit for a violation of due process rights.

            A Pennsylvania prisoner filed a federal civil rights lawsuit seeking damages for injuries he claimed to have suffered while being transported in a sheriff's bus from the prison to a courthouse. The federal trial court dismissed the claim, noting that it merely alleged negligence on the part of the defendants, which is insufficient to support a federal civil rights due process claim. Johnson v. City of Philadelphia, #00-0150, 2001 U.S. Dist. LEXIS 2520 (E.D.Pa.).

Transfer of Alaska prisoner to an out-of-state private prison did not violate his rights or constitute improper enhanced punishment; such transfers were authorized under state law and contract with private prison required it to adopt state corrections policies and procedures and comply with federal and state laws.

            An Alaska prisoner serving a 40-year sentence for second-degree murder objected to being transferred from a state facility in Alaska to a privately operated prison in Arizona. An intermediate Alaska appeals court upheld the dismissal of the prisoner's habeas corpus petition, rejecting arguments that the transfer violated his constitutional rights, exceeded the state Department of Correction's authority, or operated as a "commutation of his sentence or a pardon."

            "Alaska courts have long recognized that the State retains jurisdiction over inmates transferred to foreign jurisdictions to serve sentences for crimes committed in this state." And while there was a time when state statutes did not permit Alaska correctional officials to contract with private out-of-state facilities to house prisoners, this was altered in order to cope with prison overcrowding. Under the contract that Alaska correctional authorities entered into with the private Arizona facility, the Department of Corrections "retains authority over all significant decisions involving Alaska inmates housed" there.

            The appeals court also rejected the argument that transfer constituted improper enhancement of the prisoner's punishment because he committed the crime prior to the date when state statutes were amended to allow for transfers to private out-of-state prisons. He is still serving the same sentence, and the contract with the private prison requires it to adopt DOC policies and procedures "and comply with applicable federal and state laws," and "corrections industry standards." Prisoner discipline may be appealed to Alaska correctional officials and "prisoners can appeal decisions implicating fundamental constitutional rights" to the Alaska courts. Hertz v. State of Alaska, #A-7585, No. 1732, 2001 Alas. App. LEXIS 75.

Text: <www.alaska.net/~akctlib/homepage.htm>.

Prisoners claiming that excessive exposure to second hand tobacco smoke constituted deliberate indifference to their existing medical conditions and disability discrimination have to provide individual proof; correctional officials who took some steps to restrict smoking were entitled to qualified immunity from damages for allegedly exposing prisoners to a risk of future harm.

            Current and former prisoners of Maryland correctional facilities claimed that during the course of their confinement they were involuntarily exposed to "environmental tobacco smoke" (ETS) to an extent violative of the Eighth Amendment and the Americans With Disabilities Act (ADA). Various restrictions on smoking in state correctional facilities there were imposed as early as 1987, and a ban on all indoor smoking in Maryland prisons was imposed in 1995. The plaintiffs claimed that ETS still remains "prevalent" in the state's prisons, however.

            A federal trial court held that there were factual issues as to whether the particular inmates had been or were continuing to be exposed to harmful levels of tobacco smoke, constituting deliberate indifference to existing medical needs, and as to whether violations of the ADA had occurred.

            At the same time, the court found that the prison officials were entitled to qualified immunity from damages on the Eighth Amendment claims relating to exposing the plaintiffs to substantial risks of serious future harm. The right of a prisoner to be free from unreasonable levels of ETS "has been clearly established" since the U.S. Supreme Court's decision in Helling v. McKinney, 509 U.S. 25 (1993), but the defendants had taken steps to restrict smoking, and could not have been expected to know that their initial policies and "their more expanded policy of 1995" nevertheless created an unconstitutional condition. The fact that the defendants "might have known that there were problems with the enforcement of their policies does not necessarily mean that they also knew that they were violating Plaintiff's rights under the Eighth Amendment."

            In further proceedings, plaintiffs must individually show that they have or had serious medical needs which were subjectively known to defendants, who then acted with deliberate indifference. On the disability discrimination claim, they must individually show that they are qualified individuals with a disability and that they were "excluded from" a service, program, or activity on the basis of this disability. McIntyre v. Robinson, 126 F. Supp. 2d 394 (D. Md. 2000). [Cross-reference: Defenses: Qualified Immunity; Disability Discrimination; Medical Care].

Visual body cavity search of female officer for drugs, based on a tip from a previously reliable inmate informant, was based on reasonable suspicion; warden was entitled to qualified immunity from liability; alleged violations of prison's own rules during the search would not violate officer's Fourth Amendment rights.

            An inmate informer who had previously provided reliable tips gave the warden of a South Carolina prison information that a female corrections officer was planning to smuggle drugs into the facility in a tampon. A visual body cavity search of the officer was conducted based on this tip and no drugs were found.

            A federal appeals court ruled that the warden was entitled to qualified immunity in a civil rights lawsuit brought by the officer. It found that the body cavity search, although intrusive, was based on reasonable suspicion and was properly conducted in a sensitive and professional way.     The court noted that the officer, while not forfeiting all privacy rights when she accepted employment, had "diminished" privacy interests "in light of the prison's manifest interest in preventing the introduction of drugs, weapons and other contraband." The court concluded that such searches may be conducted when prison officials "possess a reasonable and individualized suspicion that an employee is hiding contraband on his or her person."

            The appeals court rejected the argument that this result should be altered because of alleged violations of departmental guidelines, such as obtaining written consent for the search after it had taken place and taking too long after the search to produce a report concerning the findings from the search, rather than creating a written record right after the search occurred. A violation of the prison's own policies and procedures during the search "does not render it unreasonable under the Fourth Amendment." Leverette v. Bell, #00-1407, 2001 U.S. App. LEXIS 6255 (4th Cir.).

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

Board of Claims of Kentucky v. Banks, No. 1999-CA-001001-MR, 31 S.W.3d 436 (Ky. App. 2000).[105]
Dawes v. Walker, No. 99-252, 239 F.3d 489 (2nd Cir. 2001).[100-101]
DeKoven v. Bell, #01-10124-BC, 2001 U.S. Dist. LEXIS 5133 (E.D. Mich.).[101-102]
Evans v. Cotton, #2981428, 770 So. 2d 620 (Ala. Civ. App. 2000).[105-106]
Glenn v. City of Tyler, #00-40133, 242 F.3d 307 (5th Cir. 2001).[107]
Gragg v. McKune, No. 84,354, 16 P.3d 311 (Kan. App. 2000).[99-100]
Hemric v. City of New York, 2001 U.S. Dist. LEXIS 1196 (S.D.N.Y.).[104-105]
Herman v. Holiday, #99-30863, 238 F.3d 660 (5th Cir. 2001).[102-103]
Hertz v. State of Alaska, #A-7585, No. 1732, 2001 Alas. App. LEXIS 75.[109]
Hope v. Pelzer, No. 00-12150, 240 F.3d 975 (11th Cir. 2001).[107-108]
Hutchinson v. McCabee, #95-Civ. 5449, 2001 U.S. Dist. LEXIS 5205 (S.D.N.Y.).[104]
Johnson v. City of Philadelphia, #00-0150, 2001 U.S. Dist. LEXIS 2520 (E.D.Pa.).[108]
Jones v. New York City Dept. of Correction, 2001 U.S. Dist. LEXIS 2669 (S.D.N.Y.).[99]
Kostrzewa v. City of Troy, #00-1037, 2001 U.S. App. LEXIS 7362 (6th Cir.).[106-107]
Leverette v. Bell, #00-1407, 2001 U.S. App. LEXIS 6255 (4th Cir.).[110-111]
McIntyre v. Robinson, 126 F. Supp. 2d 394 (D. Md. 2000).[109-110]
Napier v. Madison County, Kentucky, No. 99-6067, 238 F.3d 739 (6th Cir. 2001).[102]
Robinson v. Prunty, #00-55922, 2001 U.S. App. LEXIS 8488 (9th Cir.).[103-104]
Wilson v. City of Kalamazoo,127 F. Supp. 2d 855 (W.D. Mich. 2000).[108]