March, 2001 web edition

U.S. Supreme Court rules that Congress exceeded its authority by attempting to make employment discrimination provisions of Americans With Disabilities Act (ADA) applicable to state government; employees can no longer sue states under this federal statute for money damages for disability discrimination.

            A security officer for an Alabama state youth detention facility and a nurse for an Alabama state university hospital brought separate lawsuits, consolidated on appeal, seeking money damages against their state employers under Title I of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12112(a), prohibiting disability discrimination in employment.

            A federal appeals court upheld the right of the employees to pursue such claims, finding that Congress had validly abrogated the Eleventh Amendment immunity of the states from suits for damages when it enacted the ADA. See, Board of Trustees of the University of Alabama v. Garrett, Nos. 98-6069 and 98-6070, 193 F.3d 1214 (11th Cir. 1999), full text: <www.law.emory.edu/11circuit/index.html>.

            The U.S. Supreme Court reversed, finding that Congress exceeded its constitutional authority when it attempted to allow private individuals to seek money damages against the states for violations of the ADA. The Court noted that it had found, in earlier cases regarding the disabled, that the Fourteenth Amendment's equal protection clause does not require states to make special accommodations for the disabled, so long as their actions towards these individuals are "rational."

            The Court ruled that Congress failed to identify a "history and pattern of irrational employment discrimination by the States against the disabled." Congress's power to enforce the equal protection clause of the Fourteenth Amendment against the states is limited to those instances in which a "pattern of unconstitutional discrimination" is shown. Since no such pattern was shown, Congress exceeded its authority by requiring the states to provide reasonable accommodation for disabled employees or else face the prospect of lawsuits for money damages.

            The Court stated that it would be "entirely rational and therefore constitutional for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities," for instances, rather than having to make reasonable accommodations for disabled employees who are not able to easily use such facilities. Board of Trustees of the University of Alabama v. Garrett, #99-1240, 2001 U.S. LEXIS 1700.

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

Prisoner with AIDS could not recover damages for allegedly inadequate medical treatment when he refused to take an HIV test to show that he needed  requested drugs.

            An Illinois prisoner suffering from AIDS and hemophilia could not recover damages against prison officials for allegedly inadequate medical treatment when he essentially refused treatment by refusing to take an HIV test, which was required before he could receive certain AIDS fighting drugs.

            A federal appeals court also rejected the argument that defendant prison officials violated the plaintiff's Eighth Amendment rights by failing to force him to take the HIV test.

            "If there had been any evidence that the defendants were aware he was mentally ill and incompetent to make his own medical decisions, or perhaps suffering from AIDS-related dementia, for example, this might well be a different case. Without evidence of incompetence, no reasonable jury could find the defendants were deliberately indifferent" to the prisoner's "serious medical needs simply because they required an HIV confirmatory test before dispensing a powerful and dangerous drug."

            Prison doctors argued in the lawsuit that they would have committed medical malpractice if they had administering the AIDS fighting drug AZT without confirmation from a test showing that the prisoner was HIV positive. Walker v. Peters, #97-1058, 233 F.3d 494 (7th Cir. 2000).

Text: <www.kentlaw.edu/7circuit/>. [Cross-reference: Medical Care].

African-American correctional officer could recover $100,000 in emotional distress damages, as well as back pay, after he resigned his job in response to racially hostile work environment caused by the use of racial slurs by his supervisor, also an African- American.

            Can an African-American correctional officer recover damages for a racially hostile work environment, including damages for emotional distress, when a supervisor who is of the same race uses racial epithets against him in the workplace. "Yes," according to a federal appeals court which recently upheld an award of back pay and $100,000 for emotional damages to a plaintiff former officer in just such a case.

            The plaintiff, a black male, claimed that his supervisor, also a black male, began using racial epithets when addressing him, including "nigger" and "black boy," and occasionally referred to his wife, who is white, as "whitey." He stated that he protested this and asked to be addressed simply as "officer," but that the racial slurs continued. He also claimed that he was reassigned to a more stressful work assignment in retaliation for filing a racial discrimination complaint. He ultimately resigned, and also alleged that he was not allowed to withdraw his resignation, as other white officers had done in the past, allegedly because of his prior filing of a racial discrimination claim.

            Upholding the award, the appeals court rejected the argument that a black male supervisor could not have the racial animus required to support a hostile work environment claim. "We have no doubt that, as a matter of law, a black male could discriminate against another black male 'because of such individual's race." The remarks made were demeaning, and whether they were made to please the supervisor's "white superior" or to "create a negative and distressing environment" for the plaintiff, "we deem such conduct discriminatory" whatever "the motive."

            The court also found that the claim related to the refusal to allow the plaintiff to take back his resignation was supported by testimony that the chief warden stated he would not be allowed to get his job back because he was a "black radical" who would "stir up" other black employees. The damages awarded were supported by evidence that the plaintiff suffered emotional and physical injury, was forced to take a lower-paying job without health benefits, and suffered financial strain, including the repossession of his automobiles and a "substantial curtailment of his children's activities." Ross v. Douglas County, Nebraska, #00-2688, 234 F.3d 391 (8th Cir. 2000).

Text: <www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Racial Harassment].

Prisoner's claim that housing him with an inmate of another race violated his right to exercise his religion was properly dismissed as frivolous.

            A Texas prisoner claimed that his religious beliefs as a member of the "Lost-Found Nation of Islam" restricted him from being housed with anyone not of his own race, and sued prison officials for violating his right to exercise his religion by putting him in a two-person cell with a prisoner of another race.

            Reporting that it could find not a "single precedent holding that a prison's attempt to house an inmate with someone of a different race violates the First Amendment," the court upheld the dismissal of the claim as frivolous. The court further noted that the prisoner had not shown how his cell assignment "has prevented the practice of his religion." Thompson v. Texas Dept. of Crim. Just., #01-98-01215-CV, 33 S.W.2d 412 (Tex. App. 2000).

Text: <www.courts.state.tx.us/appcourt.htm>. [Cross-reference: Religion]

Delay in diagnosing the true nature and seriousness of a prisoner's injury may have been negligence, but it did not show deliberate indifference to his medical needs and therefore could not be the basis for a federal civil rights claim.

            A New York prisoner injured the back of his right heel while playing basketball. A prison doctor examined the injury approximately an hour after it occurred and treated it as a sprain. The prisoner continued to complain and it ultimately was concluded, several weeks later, that the prisoner had an acute Achilles tendon rupture (tear) requiring surgical repair. The prisoner sued the prison doctor and various other correctional officials, arguing that the delay in determining the true nature of his injury violated his Eighth Amendment rights.

            In this case, the trial court ruled, while the prisoner faced an objectively serious medical problem, there was insufficient evidence to show that the defendants acted with a "sufficiently culpable state of mind to satisfy the deliberate indifference standard." The plaintiff prisoner was never refused treatment, and the defendants accordingly were "at most" guilty of "negligence in failing to diagnose his injury, but even this misdiagnosis was based on a reasonable, although incorrect, assessment" of his condition. Summary judgment was therefore entered for the defendants. Irby v. Frisnia, 119 F. Supp. 2d 130 (N.D.N.Y. 2000).

Medical personnel's decision to furnish dialysis for prisoner suffering from kidney disease, rather than pursuing a kidney transplant for him, did not violate prisoner's rights, despite medical studies cited by prisoner indicating that transplant recipients had a better chance of survival.

            A federal prisoner suffering from kidney disease argued that he was entitled to access to a kidney transplant, rather than being furnished with dialysis, the course of treatment chosen for him by prison medical personnel.

            A federal appeals court has held that this choice by prison medical personnel did not show deliberate indifference to his serious medical needs in violation of the Eighth Amendment. While the prisoner cited medical studies showing that kidney disease sufferers who receive transplants have better survival rates than those who don't, this did not show that the defendants were violating his rights by choosing a different course of treatment in his case. Medical evidence in the case showed that dialysis is also an accepted form of medical treatment in cases such as the prisoner's. Barron v. Keohane, #99-2201, 216 F.3d 692 (8th Cir. 2000).

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

Former prisoner, who sued over delay in treatment of cheek abscess, was not a "prisoner" required to exhaust available administrative remedies before pursuing a federal civil rights lawsuit.

            A prisoner in a Philadelphia youth detention facility claimed that treatment of a severe toothache that he had when first incarcerated was delayed until he developed an abscess in his cheek that burst, leaving a disfiguring facial scar. He also asserted that the treatment received even after the abscess burst was inadequate or delayed.

            The trial court found that these alleged facts stated a claim against the city for violation of the prisoner's constitutional rights. It also ruled that, since the prisoner was released from custody prior to bringing the lawsuit, he was not a "prisoner" required to exhaust his administrative remedies pursuant to 42 U.S.C. Sec. 1997e(h) of the Prison Litigation Reform Act (PLRA), and therefore could go forward with his lawsuit without having done so. Burton v. City of Philadelphia, 121 F. Supp. 2d 810 (E.D. Pa. 2000). [Cross-references: Medical Care; Medical Care: Dental].

            EDITOR'S NOTE: Two federal courts of appeals, facing the issue of released prisoners, both held that plaintiffs who file prison condition lawsuits after their release from custody are not "prisoners" required to exhaust administrative remedies under the PLRA. Page v. Torrey, 98-56526, 201 F.3d 1136 (9th Cir. 2000), full text: <www.ce9.uscourts.gov/opinions>.; Greig v. Goord, 97-9340, 169 F.3d 165 (2nd Cir. 1999), full text: <www.tourolaw.edu/2ndCircuit>.

Correctional officer's alleged statement to other prisoners that a particular inmate was a "snitch" could constitute an Eighth Amendment violation even without proof that a physical assault or particular threats followed the statement.

            When a correctional officer tells other prisoners that a particular inmate is a "snitch," does this, by itself, constitute a possible violation of the inmate's rights, even if no physical assault actually occurs? "Yes," according to a recent federal appeals court decision.

            Denying qualified immunity to the defendant correctional officer, the court found that labeling an inmate a "snitch" may constitute deliberate indifference to the safety of the prisoner, and that if the defendant correctional officer did what the prisoner alleged, communicating this label to other inmates, she violated the prisoner's Eighth Amendment rights under "clearly established law."

            A prison official who "knows of and disregards an excessive risk to inmate health or safety" is deliberately indifferent to inmate rights for purposes of federal civil rights law." The appeals court rejected arguments that in the absence of physical attacks or threats by other inmates, the risk of harm in these circumstances was insufficient to state an Eighth Amendment claim."

            "The Supreme Court has rejected," the appeals court stated, "the notion that the Eighth Amendment does not reach official conduct that 'is sure or very likely to cause' serious injury at the hands of other inmates," citing the statement in Hellin v. McKinney, 509 U.S. 23 that "moreover, he does not need to wait until he is actually assaulted before obtaining relief." Benefield v. McDowall, No. 00-1097, 2001 WL 220048, 2001 U.S. App. LEXIS 3338 (10th Cir.).

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

Prisoner could pursue claim against deputy for failure to protect him from assault by another prisoner when other inmates shouted threats against him as he was being taken to his cell assignment because of the highly publicized rape charges against him and deputy told him that he would have to "face the music."

            A suspect was taken into custody on charges arising from a highly publicized rape and attempted murder of a young woman in Indiana. During his ride to the county jail, deputies allegedly told him that he had "no idea" what was waiting for him at the jail. The deputy who booked him walked him through a number of cell blocks where inmates allegedly shouted threats such as "we know who you are and what you did," and urged the deputy to put the prisoner in their cell block so they could "___ him up."

            When the prisoner asked the deputy to isolate him from the other inmates, the deputy allegedly told him "you have to go where I put you," and also that "you have to face the music sometime." The prisoner was assaulted by another inmate in his cell block after dinner on his first day of incarceration, leaving him with a fractured eye socket and a cut requiring stitches.

            A federal appeals court ruled that the injured prisoner was entitled to a trial on his lawsuit against the booking deputy, overturning a decision by the trial court in the deputy's favor.

            "In order to recover from officials in a prison or a jail, a plaintiff must show both an objective risk of danger and actual knowledge of that risk on the part of the custodial staff. A detainee establishes a [federal civil rights] claim by demonstrating that the defendants were aware of a substantial risk of serious injury to the detainee but nevertheless failed to take appropriate steps to protect him from a known danger."

            In this case, the appeals court found it undisputed that the plaintiff prisoner faced an objective risk of serious injury from fellow prisoners. The trial court had ruled that there was not sufficient evidence that the defendant deputy "knew" of the risk, however, since the plaintiff prisoner had not told him that the particular inmate who ultimately attacked him was a threat to him, and because the deputy did not have any "advance" knowledge of the attack that took place.

            The appeals court stated that "sometimes the heightened risk of which the guards were aware comes about because of their knowledge of the victim's characteristics, not the assailants." In this case, the deputy's remarks about "facing the music is as close to an admission of subjective knowledge" that the prisoner faced "a substantial risk of serious harm as one is likely to see in these cases."

            Additionally, there was the evidence of the shouted threats and the fact that inmate trustees observed not only the booking of the plaintiff prisoner "but the media show that surrounded it, that they knew what he was accused of, and that they had access to the rest of the inmate population." While a trier of fact might interpret the "face the music" statement "differently" and "put a more innocuous face" on the prisoner's other evidence, "those choices must be resolved at a trial, not on summary judgment." Weiss v. Cooley, No. 98-2880, 230 F.3d 1027 (7th Cir. 2000).

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

Jail officials were not liable for alleged attack on a pre-trial detainee by his cellmate as he slept; evidence did not show deliberate indifference to a serious risk of harm and cellmate, the evidence showed, was also a pre-trial detainee, not a sentenced prisoner as the plaintiff argued.

            A pre-trial detainee in a Michigan county jail claimed that his cellmate attacked him while he was sleeping and "injured him grievously." In a federal civil rights lawsuit against the county and various county correctional officials, he argued that his cellmate was a sentenced prisoner with a known propensity for violence and that his rights were violated when he was housed with this cellmate.

            The federal trial court ruled that, in the absence of any showing that jail officials had the express intent to punish the plaintiff or that they acted with deliberate indifference to a serious risk of harm to him, the defendants could not be held liable for the assault simply because of who they housed him with. The court noted that there was evidence that both cellmates were pre-trial detainees at the time of the alleged assault and that each had previous incarcerations for assault.

            Therefore, "even if housing sentenced and unsentenced inmates together were a constitutional violation," the plaintiff had not shown that this took place. There was no evidence from which a reasonable juror could find the defendants "deliberately indifferent" to the plaintiff's safety. Burciaga v. County of Lenawee, 123 F. Supp. 2d 1076 (E.D. Mich. 2000).

After jury returned a verdict in favor of correctional officers sued by a prisoner who claimed they beat him, trial judge grants prisoner a new trial based on repeated "prejudicial" remarks during trial referring to him as an "inmate" and pointing to his confinement in "maximum security," which implied that he was dangerous.

            An Illinois prisoner sued five correctional officers at a county jail, claiming that they beat him. Following a trial, the jury found each of the defendant officers not guilty.

            The federal trial judge granted the plaintiff prisoner, who acted as his own lawyer, a new trial "in the interest of justice" because of the defendants' and defendants' attorneys' repeated "prejudicial references" to the plaintiff as an "inmate" or "prisoner" and to his confinement in "maximum security," which implied that the prisoner was unusually dangerous.

            These comments "suggested to the jury that simply because" the plaintiff was located in the highest security housing unit, "he had a propensity for violence, with the implication that the defendants' use of force" against him was justified, while there was no actual "evidence or contention" by the defendants that the plaintiff was "in fact dangerous."

            The trial judge also noted that the jury may have been misled by remarks during closing arguments which suggested that deciding against the officers would "cost them part of their rather modest salary," when the officers' attorney was "well aware, unless found liable for punitive damages," that the defendants "would be fully indemnified by their employer." The court concluded that the overall trial "was not fair" and that a new trial should be held, with the prisoner being appointed a lawyer for the retrial. Hillard v. Hargraves, 197 F.R.D. 358 (N.D. Ill. 2000).

Prisoners must face "actual, imminent danger of serious injury" in order to claim self- defense in resisting the use of force by a correctional officer in the state of Washington; assertion of "apparent" imminent danger is insufficient, court rules.

            When can a prisoner claim self-defense in resisting the use of force by a correctional officer? Only when the prisoner is in actual, imminent danger of serious injury, according to the Supreme Court of the state of Washington. It is not enough that the prisoner claimed to have faced apparent imminent danger.

            "We conclude," the court stated, that "the use of force against correctional officers should have the same status as the use of force against arresting officers, and should generally be discouraged as a matter of public policy."  The court upheld the criminal conviction of a prisoner for assault on an officer who used pepper spray and other force to get him back in his cell when he refused to obey orders and instead took a swing at the officer and bit his wrist. State v. Bradley, #68320-4, 10 P.3d 358 (Wash. 2000).

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

Prisoner's lawsuit over his disciplinary hearing conviction was properly dismissed as frivolous without a hearing when the finding of guilt was supported by "some evidence"; federal appeals court joins four other federal circuits in ruling that prisoner's suit could be screened for, and dismissed for, frivolous claims regardless of whether or not prisoner was proceeding as a pauper.

            A federal prisoner filed a civil rights lawsuit claiming that prison officials violated his constitutional right to due process during prison disciplinary proceedings. A federal appeals court upheld the dismissal of the lawsuit as frivolous, without a hearing, when it was clear from the record that the disciplinary conviction of the prisoner was supported by "some evidence as found by an independent observer." This standard of proof, lower than "preponderance of the evidence," is all that is required to comply with constitutional due process.

            In reaching its ruling, the appeals court ruled that the trial court acted correctly in applying the procedures of 28 U.S.C. Sec. 1915A(b) to screen the complaint for possible frivolousness, even though the plaintiff prisoner was not proceeding as a pauper, but had instead paid the full filing fee. The court ruled that this statutory procedure, allowing the dismissal of the complaint for being "frivolous, malicious," failing to state a claim on which relief may be granted, or seeking money damages from a defendant immune from such relief, by the plain language of the statute is authorized in prisoner lawsuits "regardless of the prisoner's litigant fee status." Plunk v. Givens, No. 00-1375, 234 F.3d 1128 (10th Cir. 2000).

Text: <www.kscourts.org/ca10/>. [Cross-reference: Frivolous Lawsuits].

            EDITOR'S NOTE: Four other federal appeals courts have reached the same conclusion--that 28 U.S.C. Sec. 1915A(b) allows the screening of prisoner lawsuits for immediate dismissal whether the prisoner is proceeding as a pauper or not. See Carr v. Dvorin, #98-2086, 171 F.3d 115 (2nd Cir. 1999), full text <www.tourolaw.edu/2ndCircuit>.;  Martin v. Scott, #97-41242, 156 F.3d 578 (5th Cir. 1998), full text: <www.law.utexas.edu/us5th/us5th.html>, cert. denied, #98-9113, 527 U.S. 1041 (1999); Benson v. O'Brian, #98-3017, 179 F.3d 1014 (6th Cir. 1999), full text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.; and Rowe v. Shake, #98-4207, 196 F.3d 778 (7th Cir. 1999), full text: <www.kentlaw.edu/7circuit/>

U.S. Supreme Court to review issue of whether prisoners may pursue federal civil rights claims against private companies that run prisons under contract with federal agencies; federal appeals courts are currently split on the issue.

            The U.S. Supreme Court will review the question of whether private companies running prisons or performing other similar traditional governmental functions for the federal government can be sued for alleged violations of constitutional rights committed by their employees. The lawsuit chosen for review involves a prisoner suffering from congestive heart failure who suffered a heart attack, fell down, and suffered various injuries after he was allegedly denied the use of an elevator and forced to walk up the stairs to a fifth-floor room in a halfway house in New York operated by a private company under a contract with the Federal Bureau of Prisons.

            The federal appeals court ruled that the prisoner's lawsuit could proceed to trial against the private company, rejecting its argument that the lawsuit should be barred under the reasoning of FDIC v. Meyer, 510 U.S. 471 (1994), holding that federal civil rights claims for violations of constitutional rights may not be brought against agencies of the federal government, as they may against individual federal employees pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

            The appeals court found that the reasoning of Meyer did not apply to a lawsuit against a private corporation, since it was not a federal governmental agency. In reaching this conclusion, the appeals court disagreed with another federal appeals court, see Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994) (Meyer bars Bivens claim against private entity acting under color of federal law), but agreed with the court in Hammons v. Norfolk Southern Corp., 156 F.3d 701 (6th Cir. 1998) (holding that "nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action."). The U.S. Supreme Court will now resolve this disagreement between the federal courts of appeal. Malesko v. Correctional Services Corp., #99-7995, 229 F.3d 374 (2nd Cir. 2000), full text: <www.tourolaw.edu/2ndCircuit>, cert. granted, Correctional Services Corp. v. Malesko, #00-860, 2001 U.S. LEXIS 1967.

Family of 12-year-old girl raped and murdered by escapee from Washington state juvenile group home could sue state, county, and group home operators for damages on claims that escapee should have been in a more secure facility and more adequately supervised because of his past history of burglaries.

            A Washington state juvenile probationer living in a group home youth facility because of his juvenile burglary conviction escaped and raped and murdered a 12-year-old girl who was babysitting at a neighbor's house. Her assailant was later convicted of murder. The deceased girl's family sued the state, the county, and the nonprofit corporation that operated the group home facility at which the assailant was placed.

            The lawsuit asserts that the state should have kept the assailant in a more secure facility because of his history of criminal misconduct, which included prior violent conduct. It further asserts that the state and the facility inadequately supervised him, and that the county failed to disclose information that would have better identified him as presenting a threat of violence.

            The trial court dismissed the lawsuit. An intermediate Washington state appeals court reinstated the lawsuit, rejecting the argument that the defendants were not liable because the assailant's actions were not foreseeable. "The escape and subsequent rape and murder" of the 12 year-old by "a person convicted of burglary are not wholly beyond the range of expectability." The court noted that in Hertog v. City of Seattle, #66136-7, 979 P.2d 400 (1999), full text: <www.courts.wa.gov/opinions/>, it was held foreseeable that a "supervised individual would commit rape where that individual had been convicted of exposure and was later charged but not yet convicted for a sexually motivated burglary."

            In this case the assailant had four burglary convictions and committed the rape and murder "in the course of another burglary," so that the "question of foreseeability" is a "matter for the jury," and summary judgment was improper. Jones, Estate of, v. State of Washington, No. 45303-3-1, 15 P.3d 180 (Wash. App. 2000).

New York correctional officials should not have denied Shi'a Islam's grievance requesting separate religious services on the basis of advice from a Sunni Islam clergyman.

            A New York prisoner was an adherent of the "Shi'a" sect of Islam, and filed a lawsuit challenging alleged control of Islamic services in his prison by a chaplain who was a member of the "Sunni" sect of Islam. He asserted that these Sunni services were the only Islamic services provided, and that they were "inconsistent with, and even antagonistic to, his Shi'a faith." His grievance asked that Shi'a clergy, or registered volunteers be allowed to enter the prison to lead services and religious discussion groups.

            His grievance was denied, based on advice given to the state Department of Corrections by its Inman (Muslim religious authority) that all Muslim religious groups fall under Islam, with the exception of followers of the Nation of Islam, and that separate services should not be held. An intermediate New York appellate court found a fundamental flaw with this--the prisoner's grievance, "that adherents of the Shi'a sect are subject to religious discrimination by Sunni chaplains within his facility, was denied based on the opinion of one of the very individuals whom the petitioner alleges is guilty of religious discrimination."

            Under these circumstances, the denial of the grievance was not rationally based, but rather "arbitrary and capricious." The court therefore ordered state correctional officials to "conduct administrative proceedings, with Shi'a participation, to determine the manner in which to best afford Shi'a inmates separate religious services, under appropriate Shi'a religious leadership, in a time and place that comport with legitimate penological concerns." Cancel v. Goord, 717 N.Y.S.2d 610 (A.D. 2000).

Text: <www.law.cornell.edu/ny/ctap/overview.html>.

Prison's refusal to accommodate prisoner's request for food in his cell on Saturday so that he could follow his belief that he should not leave his cell or prepare food on Sunday, his Sabbath, was not justified by concerns about cell cleanliness and violated his First Amendment rights.

            When an Arkansas inmate was first incarcerated, he identified his religion as "Catholic," but he later told correctional officials that his religion had changed and that he was now of the "Hebrew religion," based on his self-study of the Old Testament. He therefore informed them that he had concluded that it was wrong to leave his residence or to work on the Sabbath, which he considers to run from sundown on Saturday to sundown on Sunday. He also told them that he was not permitted to eat food prepared by others on the Sabbath or to have others serve him through their work on the Sabbath.

            He asked that he be provided with peanut butter and bread in his cell on Saturdays so that he could prepare sandwiches to consume in his cell on the Sabbath. While he was allowed to forgo cafeteria meals on his Sabbath, his request for food in his cell was denied on the basis of concerns about cell cleanliness and existing contraband rules.

            A federal appeals court has accepted the prisoner's claim that the refusal to provide the food for consumption in his cell "substantially burdened" his religious beliefs and violated the First Amendment right to exercise his religion. It further ruled that the option of fasting on the Sabbath was not a reasonable accommodation, and that the refusal to provide the food was not justified as having a reasonable relationship to a legitimate penological interest. Additionally, while prepackaged food could be purchased in the prison commissary, the prisoner was indigent.

            Fasting was not appropriate, since the prisoner stated that fasting inteferred with "celebration" of the Sabbath, based on his belief that the Sabbath should be a day of "rest and refreshment," with fasting reserved for days of "mourning and atonement."

            The court found that the prisoner's "belief system" was a religion, and protected by the First Amendment even if he admitted that his understanding of his religious beliefs was "evolving."

            The appeals court noted that the requested food did not pose any serious potential health risk and were not highly perishable. Additionally, prison officials had already made exceptions to the rules against food in cells by providing food to prisoners in segregation or observing religious holidays with food in their cells for immediate consumption. Love v. Reed, #99-3149, 216 F.3d 682 (8th Cir. 2000).

Text: <www.wulaw.wustl.edu/8th.cir>. [Cross- references: Diet].

N.J. court upholds use of scanning device and dogs to detect drugs on prison visitors.

            Using scanning devices and trained drug-sniffing dogs to search prison visitors for drugs is constitutional, a New Jersey intermediate appeals court ruled. In so ruling, the court rejected a death row inmate's claim that his visitors should be "unfettered" by such searches. A policy adopted by the state Department of Corrections permits the use of an Ion Scan machine, a vacuum device, on prison visitors' hands and pockets. The device is able to detect traces of 14 different types of drugs. A more extensive search is conducted if either the scanner or the dog indicates the possible presence of drugs.

            Visitors are allowed to bypass the scanner and dog, but if they do so, they are not allowed to visit on that day.

            The court held that a prisoner does not have a due process right to "unfettered visitation," nor does a visitor have the right to unrestricted access to a state prison. "The balance must be struck in favor of institutional security. In some ways, the DOC's newly adopted policy is less intrusive than other methods commonly used to screen prison visitors, such as pat-down frisk and metal detectors." In the "final analysis," the court concluded, prisoners and visitors "all profit by heightened security because they make correctional institutions safer for all concerned." Jackson v. Dept. of Corrections, No. A-5223-98T5, 762 A.2d 255 (N.J. Super. 2000).

Text: <http://lawlibrary.rutgers.edu/search.html>. [Cross- reference: Visitation].

            EDITOR'S NOTE: For other cases upholding similar drug detection policies, see Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995); Romo v. Champion, 46 F.3d 1013 (10th Cir. 1995); Ybarra v. Nevada Board of State Prison Commissioners, 520 F. Supp. 1000 (D. Nev. 1981); Black v. Amico, 387 F. Supp. 88 (W.D.N.Y. 1974).

Correctional officials were not liable for alleged rape of female prisoner by correctional officer, which caused her to give birth to a son; plaintiff inmate did not show "deliberate indifference" by correctional officials to the risk of such attacks, and training given to officer included training on policy prohibiting sexual contact with prisoners.

            A Delaware inmate claimed that she had been raped by a correctional officer, and that the rape resulted in her pregnancy and the birth of her son. On this basis she filed a federal civil rights lawsuit against a number of administrative officials, and against the state Department of Corrections, as well as against her alleged assailant.

            The trial court found that the defendant administrative officials were entitled to qualified immunity, as the plaintiff had not shown that they were "deliberately indifferent" to the risk that she would be raped by a correctional officer. "Rumors and innuendos" of past sexual impropriety between inmates and prison guards, the court found, "is insufficient as a matter of law to establish that the" defendants "were aware of and deliberately disregarded a risk of harm to Plaintiff."

            The court also noted that the record reflected that the defendants took appropriate disciplinary and remedial action in instances where investigations showed misconduct by correctional officers.

            The court also rejected claims of inadequate training and supervision, noting that the alleged assailant was given training in "cultural awareness," which included training in sexual harassment, and part of that training involved the prison's code of conduct, which prohibited sexual contact with inmates. Daniels v. Delaware, 120 F. Supp. 2d 411 (D. Del. 2000).

Barron v. Keohane, #99-2201, 216 F.3d 692 (8th Cir. 2000).[38]
Benefield v. McDowall, No. 00-1097, 2001 WL 220048, 2001 U.S. App. LEXIS 3338 (10th Cir.).[39]
Board of Trustees of the University of Alabama v. Garrett, #99-1240, 2001 U.S. LEXIS 1700.[35]
Burciaga v. County of Lenawee, 123 F. Supp. 2d 1076 (E.D. Mich. 2000).[40-41]
Burton v. City of Philadelphia, 121 F. Supp. 2d 810 (E.D. Pa. 2000).[38]
Cancel v. Goord, 717 N.Y.S.2d 610 (A.D. 2000).[44]
Daniels v. Delaware, 120 F. Supp. 2d 411 (D. Del. 2000).[46-47]
Hillard v. Hargraves, 197 F.R.D. 358 (N.D. Ill. 2000).[41]
Irby v. Frisnia, 119 F. Supp. 2d 130 (N.D.N.Y. 2000).[37-38]
Jackson v. Dept. of Corrections, No. A-5223-98T5, 762 A.2d 255 (N.J. Super. 2000).[45-46]
Jones, Estate of, v. State of Washington, No. 45303-3-1, 15 P.3d 180 (Wash. App. 2000).[43-44]
Love v. Reed, #99-3149, 216 F.3d 682 (8th Cir. 2000).[45]
Malesko v. Correctional Services Corp., #99-7995, 229 F.3d 374 (2nd Cir. 2000),
                cert. granted, Correctional Services Corp. v. Malesko, #00-860, 2001 U.S. LEXIS 1967.[43]
Page v. Torrey, 98-56526, 201 F.3d 1136 (9th Cir. 2000).[38-39]
Plunk v. Givens, No. 00-1375, 234 F.3d 1128 (10th Cir. 2000).[42]
Ross v. Douglas County, Nebraska, 234 F.3d 391 (8th Cir. 2000).[36-37]
State v. Bradley, 10 P.3d 358 (Wash. 2000).[41-42]
Thompson v. Texas Dept. of Crim. Just., 33 S.W.2d 412 (Tex. App. 2000).[37]
Walker v. Peters, #97-1058, 233 F.3d 494 (7th Cir. 2000).[35-36]
Weiss v. Cooley, No. 98-2880, 230 F.3d 1027 (7th Cir. 2000).[39-40]