November, 2001 web edition

Federal appeals court rules that HIV-positive prisoner had a federal constitutional right to privacy for his medical records and condition, but that prison officials were entitled to qualified immunity for conduct that allegedly disclosed his conditions to others in 1995, since this right was not then clearly established.

            A Pennsylvania prisoner was informed by facility medical staff in 1995 that he was HIV-positive. After signing a written consent of disclosure form, he was told that his medical condition would be kept confidential and that the medical records relating to his illness would be maintained separately from his general prison file.

            In his lawsuit against prison officials, he claimed that his right to medical privacy under the Fourteenth Amendment was violated by certain procedures which resulted in his condition being disclosed to others. Specifically, when he was taken for sick call appointments, medical staff members informed the escorting officers of his medical condition. Additionally, during doctor visits, medical staff kept the door to the clinic room open, allowing officers, inmates, and others in the area to see and hear the treating physician and the plaintiff. Further, nurses administering medication made announcements loud enough to allow other inmates to infer the plaintiff's condition.

            A federal appeals court ruled that the prisoner did have a Fourteenth Amendment right to privacy in his medical information, subject to substantial restrictions and limitations required to achieve legitimate correctional goals and maintain institutional security. Information about a prisoner's HIV-positive status, the court found, was information of the "most personal" kind, which the inmate had an interest in protecting against dissemination.

            In this case, however, the appeals court found that the defendants were entitled to qualified immunity from liability because the right to such privacy was not clearly established in 1995 at the time of the disclosures. The appeals court also rejected the argument that the Pennsylvania Confidentiality of HIV-Related Information Act, which prohibited the disclosure of confidential HIV-related information except by consent or to certain designated persons, clearly established the prisoner's federal constitutional right to privacy in his medical information for qualified immunity purposes. Doe v. Delie, #99-3019, 257 F.3d 309 (3d Cir. 2001).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-references: Defenses: Qualified Immunity; Medical Care; Privacy].

Award of $10 in damages to prisoner for violation of his religious right to receive a pork- free diet could be set off against his liability to the county for costs arising out of the same lawsuit; federal court does not reach restitution issue.

            A prisoner was awarded $10 in damages on his claim that his right as a Muslim to receive a religiously required pork-free diet was violated by county jail officials and employees. The prisoner urged a federal appeals court to order that this $10 damage judgment be enforced, rather than applied against a separate liability he owed to the county.

            The prisoner, currently on death row for a first degree murder conviction, complained that his damage award was being withheld because of a civil restitution lien for incarceration costs filed against him under a Florida state statute, Fla. Stat. Sec. 960.293. The prisoner argued, based on Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992), that his award under 42 U.S.C. Sec. 1983 for violation of his civil rights "preempts his state civil restitution lien." In Hankins, the court ruled that the state of Missouri could not apply a federal civil rights award of damages to pay the costs of the prisoner's incarceration under that state's statutes because "to allow the state to largely recoup this award would be inimical to the goals of the federal statute," which are to "compensate victims and to deter future deprivations of federal  constitutional rights."

            The appeals court found it unnecessary to reach this issue in relation to the Florida statute, however, because it found that the plaintiff prisoner owed costs to the county in the immediate case which were far in excess of the $10 damage award to him. These costs were assessed against the prisoner at the conclusion of the trial under Federal Rule of Civil Procedure 68, because the prisoner rejected the defendants' offer of judgment of $1,001 before trial, and instead elected to proceed with a trial after which he was awarded a smaller amount, $10.

            "Under such circumstances, we readily conclude that it is appropriate to apply" the $10 damage award to the prisoner's liability "to the County for costs arising out of the same case." Rinaldo v. Corbett, No. 99-10801, 256 F.3d 1276 (11th Cir. 2001).

Text: <www.law.emory.edu/11circuit/index.html>. [Cross-references: Defenses: Settlement Offers; Religion; Restitution].

Federal court rules that a convicted rapist had a constitutional due process right to DNA testing on evidence in his case in an attempt to prove his innocence.

            A federal trial judge has ruled that felons have a constitutional right to DNA testing to attempt to prove their innocence, in what appears to be the first case so holding. The judge ordered Virginia state officials to allow the tests for a currently imprisoned convicted rapist who claims that he did not commit the crime for which he is incarcerated. The plaintiff prisoner had filed a federal civil rights lawsuit alleging that the refusal of officials to allow such testing on the evidence in his case denied his right to due process of law. The court granted the plaintiff prisoner summary judgment and ordered the prosecutor to release biological evidence in the case for DNA testing. Harvey v. Horan, 119 F. Supp. 2d 581 (E.D. Va. 2001).

Federal prison rule banning possession of electronic instruments did not violate prisoners' First Amendment rights, but court orders further proceedings on claim that the Bureau of Prisons improperly allowed a "religious-use" exception to the rule, discriminating in favor of religion.

            Federal prisoners filed a civil rights lawsuit challenging the constitutionality of a Bureau of Prisons' ban on the possession of electronic or electrical musical instruments by prisoners, claiming that it violated their First Amendment rights to "musical expression." While agreeing that musical expression is a form of protected speech, the trial court rejected the argument that music created by electronic instruments was a "distinct" expression subject to such protection.

            The legitimate objective of the policy was to enhance the punishment aspect of prisons as a deterrent, the court found, and the policy was rationally related to its objectives. The court noted that acoustical instruments were not banned. The policy was created in response to legislation enacted into law which bans federal funding for electric or electronic instruments, the Zimmer Amendment, sec. 611 of Pub. L. No. 104-208, 110 Stat. 3009.

            The court ordered further proceedings, however, on the prisoners' claim that the BOP violated their rights by allowing a religious-use exception to the policy, thus discriminating in favor of religion. The court noted that the statute in question had no religious-use exception. Kimberlin v. U.S. Dept. of Justice, 150 F. Supp. 2d 36 (D.D.C. 2001). [Cross-references: Religion].

Prisoner could pursue claim that his access to the courts had been violated when documents he needed to attack his criminal conviction, mailed to him by his mother, were returned, partially destroyed, to her after delivery to the prison, but could not pursue federal due process claim when New York state offered an adequate post-deprivation remedy.

            A New York prisoner asked his mother to mail him various documents that he needed to proceed with state and federal collateral attacks on his criminal convictions. While the package of documents arrived at the prison, as indicated by a signed receipt, it was ultimately returned to the prisoner's mother instead of being delivered to the prisoner. Further, it was received back in a torn and mutilated condition with some of the documents effectively destroyed.

            A deputy prisoner superintendent allegedly told the prisoner that he would investigate the incident, but never completed the investigation. The prisoner subsequently allegedly missed various deadlines related to his court cases. He filed a federal civil rights lawsuit, claiming that the destruction of the documents and the failure to adequately investigate it violated his constitutional rights to access to the courts, due process, and equal protection.

            The trial court granted summary judgment against the prisoner in a two-sentence order with little explanation. A federal appeals court reversed in part, reinstating the prisoner's claim for denial of access to the courts. It found that the prisoner was entitled to further discovery to explore the issue of who the person signing for the package was and what the circumstances were under which the package was handled and returned. This was based, in part, on evidence in the case that the individual whose name appeared on the receipt had not been working in the mailroom at the time the package arrived.

            It upheld, however, the dismissal of his due process and equal protection claims. The appeals court noted that the state of New York provided an adequate post-deprivation remedy by allowing a Court of Claims lawsuit for the destruction of the prisoner's documents, and his failure to pursue that remedy precluded a federal due process claim. As for the equal protection claim, there was not even the "slightest evidence" offered by the prisoner that the destruction of his mail was intentionally directed at him, as opposed to being an accident or random act, and no evidence that he was treated differently from other prisoners. Jackson v. Burke, No. 00-0088, 256 F.3d 93 (2nd Cir. 2001).

Text: <www.tourolaw.edu/2ndCircuit>. [Cross-references: Access to Courts/Legal Info].

Prisoner suffering from lodged bullet and hernia was generally provided with adequate medical treatment and, indeed, refused several accommodations offered for his medical conditions; appeals court orders further proceedings, however, on whether officials conditioned a needed surgical procedure on his signing of a complete release of all future liability.

            A Minnesota prisoner suffered from a number of medical problems, including a bullet lodged near his spine that affected his neural functioning and a right-sided hernia. He sued prison officials and medical personnel, alleging deliberate indifference to his serious medical needs.

            Rejecting most of his claims, a federal appeals court noted that he had been seen in the prison infirmary at least sixty times for his complaints. While the number of doctor visits alone did not necessarily preclude a finding of deliberate indifference, "the record clearly reflects that prison officials have conscientiously attempted" to meet the plaintiff prisoner's medical needs, and, indeed, have "continually been rebuffed by" his refusal to comply with recommended treatment.

            The defendants had further offered a variety of accommodations to the plaintiff, which were intended to minimize his walking, such as the use of a wheelchair or to eat meals in his cells, but he refused both of those options. They also repeatedly offered to fit him with a truss that would help alleviate some of the symptoms of his hernia, but he also refused that option.  

           The appeals court did, however, order further proceedings on whether prison officials conditioned a needed surgical procedure on the prisoner signing a release of all future liability that might arise from the surgery. If the prisoner could prove that allegation, the court stated, that could establish a deliberate indifference to his right to basic medical care. Beck v. Skon, #00-2027, 253 F.3d 330 (8th Cir. 2001).

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

Jail officials were not liable for prisoner's death after his cancer reappeared and spread to his brain; far from deliberate indifference, they transported him to and from outside medical appointments and made sure that his medical records followed him when he was transferred to a state facility.

            A Mississippi prisoner serving a state sentence in a county jail had previously survived testicular cancer. When he told his family he felt ill, jail officials obeyed his doctor's instructions in transporting him to and from four outside medical appointments. After blood tests and a CAT scan revealed that his cancer had reappeared, this doctor advised jail officials that the prisoner needed to begin chemotherapy immediately.

            Following an unsuccessful attempt to have the sentencing judge modify the prisoner's sentence to allow house arrest, the county's chief deputy contacted the medical director at the state penitentiary who recommended his transfer to a state facility. Once there, he ultimately was transferred to a university medical center after diagnosis of a brain tumor, and subsequently died.

            A federal trial court found that the jail officials had not acted with deliberate indifference to the prisoner's medical problems, but had instead done what they could to provide or facilitate treatment. Additionally, they made sure that the state facility received the prisoner's medical records. The court also ruled that the county was immune under Mississippi state law from claims for wrongful death and negligence brought by his mother. Phillips v. Monroe County, 143 F. Supp. 2d 663 (N.D. Miss. 2001).

County jail management could be sued by correctional officers subjected, without their knowledge, to training exercise in which probationary officers played the role of inmates pretending to "take over" the facility and take the other officers hostage.

            Management at the county jail in Memphis created a training exercise intended to prepare jailers for a hostage situation. Unknown to other officers, two probationary officers were selected to play the role of inmates, and attempted to "take over" the county jail.

            After being escorted into the jail, the two role-players entered a control room, shouting and brandishing handguns.  They ordered three jailers to line up against the wall, and pressed handguns to the back of their heads, yelling obscenities.  They forced one jailer to operate the control panel at gunpoint while others were pushed to the floor, threatened with their lives, and kicked.  Jailers outside the control room panicked. The hostage scenario lasted between 20 to 30 minutes. Fifteen of the jailers were sent home, and one required emergency room attention.

            In a subsequent lawsuit, the veteran jailers alleged that they had not received sufficient training for a hostage crisis, were not armed, and were not trained in how to use firearms.  Because gang members in the jail had previously threatened several of the jailers, they feared they were acting on those threats.

            Rejecting arguments that the lawsuit should be dismissed in its entirety, the court noted that the injuries did not occur as a result of the risks ordinarily associated with their employment duties.  The inmates didn't riot or take the jailers hostage.

            "Instead, the Department initiated a training exercise that was not only perceived as life threatening, but actually put [the jailers] into a life threatening situation.''  The fact that the Sheriff's Dept. is not be liable for injuries caused by an actual inmate uprising, "does not mean that [management] may create such a scenario and be immune from liability."

            The judge said that management's efforts to create a realistic training exercise "is not per se unreasonable." Such training "may better prepare jailers mentally and emotionally for an actual uprising."  However, "a reasonable jury could find that the ... intrusion on [the jailers'] security, bodily integrity, and liberty interests tips the balance in [the jailers'] favor."

            The length of the exercise was substantial and subjected the jailers to "an intense degree of fear of bodily harm or death..."  Each passing minute "posed a greater risk that bodily harm or death would actually occur."

            The judge said that because the forcible detention -- in a life-threatening situation -- lasted for over twenty minutes, it may be considered unreasonable.  The Court found that the jailers  sufficiently alleged facts suggesting that management's actions, "however well- intended, were so intrusive that society would objectively find them unreasonable," and therefore violative of the officers' Fourth Amendment rights.

            The fact that those posing as inmates were not identified as officers did not preclude a Fourth Amendment claim or insulate them from federal civil rights liability, the court commented. "The actions of a governmental official who is disguised must still comply with the Fourth Amendment." While the probationary officers appeared to be inmates, they were, in fact, acting pursuant to departmental orders, "and therefore acting under color of state law."

            As for governmental liability, the jailers alleged that the sheriff, the chief deputy, the asst. chief and the training director "all participated in or at least approved of the plan ... to conduct the mock training exercise." The court said alleged facts suggest that the actions were at the behest of the county's decision-makers.

            As for state-based claims of assault by officers outside the control room, the court said that the waving of a gun from one victim to another can constitute an assault on all victims.  Because the role-players pointed their weapons at jailers outside of the control room, "all Plaintiffs have sufficiently alleged facts constituting assault" and the defendants' motion to dismiss those claims was denied.  Humes v. Gilless, #01-2028, 154 F.Supp.2d 1353, 2001 U.S. Dist. LEXIS 11233 (W.D. Tenn.).

Prisoner who was allegedly exposed to raw sewage in the course of her work assignment failed to show that correctional officials acted with deliberate indifference; even if she was correct that protective clothing issued was inadequate, nothing showed that defendants knew that before she complained.

            A Kansas prisoner sued correctional officials, claiming that her conditions of confinement violated her constitutional rights. Specifically, she complained about her exposure to raw sewage in the course of her prison work assignment. The facility in which she was confined had frequent plumbing and sewer problems, with all sewage flowing into a lift station. A basket in that station must be cleaned at least daily, and must be emptied several times a day, and that work is performed by inmates, including the plaintiff.

            The prison did not consider the sewage to be hazardous waste, but did provide inmates with protective gear, and allow inmates coming into contact with the waste to shower after the basket has been cleaned. In her complaint, the plaintiff alleged that she was given a suit in which the sleeve did not reach the top of the glove, and that during the basket cleaning she got some of the solid waste on her arm, but was not allowed to clean it off until she had finished and gone back inside.

            Upholding summary judgment for the defendants, the state governor and prison warden, a federal appeals court found that the plaintiff had failed to show that the defendants acted with deliberate indifference to a serious risk of harm to her. "This is not a case where inmates were denied the necessary protective equipment," the court stated. The prisoner disputed the "adequacy of the protective gear supplied to her and not being allowed to clean off the waste until the job was finished," but at best, "these complaints suggest negligence--not a wanton and obdurate disregard for inmate health and safety" required to impose liability for a violation of a prisoner's Eighth Amendment rights.

            The prisoner also claimed that clothing--and blankets used to mop up sewage and then issued to prisoners--still were contaminated after being laundered. The court found that nothing in the record "indicates that prison officials were aware" of the alleged problem before the prisoner filed her lawsuit. "Although prison officials will not be able to rely upon their ignorance of the problem in the future," the plaintiff "has not made a showing of deliberate indifference in this case." Shannon v. Graves, No. 00-3029, 257 F.3d 1164 (10th Cir. 2001).

Text: <www.kscourts.org/ca10/>. [Cross-references: Inmate Death/Injury; Work/Education Programs].

Former correctional officer serving a sentence for murder failed to show that the state of New York was negligent in failing to protect him against an in-cell assault by two other prisoners; plaintiff himself chose to be housed in the general prison population after three years in segregated housing.

            A former correctional officer serving a sentence for murder was assaulted by two fellow inmates in a New York correctional facility while he was housed in the general prison population. His assailants entered his cell, punched him, stabbed him with a 9-1/2 inch sharpened metal rod and robbed him of his personal property. He sued the state seeking money damages for alleged negligence in failing to assign him to segregated housing despite his vulnerable status as a former officer. He also claimed that the state inadequately supervised his attackers and that prison employees failed to intervene in time to prevent his injuries.

            An intermediate New York appellate court upheld the dismissal of these claims by the Court of Claims after a one-day trial. While the state is required to exercise reasonable care to protect its inmates from foreseeable risks of harm, including risks of attack by other prisoners, the court said, it is not "an insurer of inmate safety."

            To establish liability against the state in these circumstances under New York law, "one of the following must be shown: (1) the victim was known to be at risk and the State nonetheless failed to take reasonable steps to protect him or her, (2) the assailant was known to be dangerous but the State failed to protect other inmates from him or her, or (3) the State had both notice and the opportunity to intervene for the purpose of protecting the inmate victim but failed to do so." The court found that the plaintiff failed to show any of these three things.

            He had been assigned to segregated housing for his protection during the first three years of his incarceration, but after being transferred to a new facility affirmatively chose to be housed with the general inmate population and voluntarily accepted a job assignment in the kitchen where he was exposed to large numbers of inmates each day. Further, the plaintiff also declined the option of keeping his cell door locked during recreation periods when other cells on the tier were automatically opened, a safeguard that would have prevented the attack. Finally, he had been housed in the general population for approximately three years without incident at the time of the attack.

            The prisoner also failed to show either that correctional officials knew his assailants to be dangerous or had notice of a pending attack on him and the opportunity to do something to prevent it. Smith v. State of New York, 728 N.Y.S.2d 530 (A.D. 2001).

Prisoner could recover damages for negligent supervision by correctional officer during touch football game during which he was allegedly assaulted by another prisoner.

            A New York court of claims has held that a prisoner injured by what he asserted was an assault during a touch football game could collect damages from the state based on alleged negligent supervision of the activity by a correctional officer present. The court stated that it did not agree that all competitive sports necessarily led to violence but further noted that in this case an "articulated prohibition against participation in a football game" was ignored and "thus tacitly approved by staff. Coupled with a lack of supervision," this "combined to be a proximate cause of the incident." Schindler v. State of New York, Claim No. 96692 (N.Y. Ct. of Claims, Rochester, N.Y.), reported in The National Law Journal, p. B4 (Aug. 13, 2001). [Cross-reference: Prisoner Death/Injury].

New York high court rules that state statute did not preclude a county from seeking a jury instruction that damages be apportioned between itself and the actual assailant in a lawsuit brought by a prisoner against the county for alleged negligence in failing to prevent another prisoner's attack on him.

            A prisoner in a New York county correctional facility sued the county in federal court, alleging, among other things, negligence for failure to protect him from a serious beating by another prisoner. The Plaintiff prisoner had cooperated as a confidential informant against his alleged assailant, and his inmate file cautioned that he was not to be housed in proximity to him, but a correctional officer failed to notice the warning and placed the two prisoners in the same dormitory prior to the incident.

            The federal court dismissed the prisoner's federal civil rights claim, but a jury awarded damages to him on the state law negligence claim, after the trial judge turned down the defendant county's request that he instruct the jury on the apportionment of damages between the county and the inmate who allegedly attacked the plaintiff. The trial court ruled that a state statute, N.Y. CPLR Sec. 1602(2)(iv), made apportionment of damages unavailable where the county's liability arose from a breach of a non-delegable duty, such as protecting a prisoner's safety.

            A federal appeals court certified the question of whether this was a proper interpretation of New York state law to the highest court in New York, noting the absence of prior precedent on the subject. That court has now ruled that the statute in question does not preclude the county from having a jury apportion damages in these factual circumstances between itself and the actual assailant. Accordingly, the county was entitled to a jury instruction that this issue be considered before the jury awarded damages against it. Rangolan v. County of Nassau, 96 N.Y.2d 42, 725 N.Y.S.2d 611, 749 N.E.2d 178 (2001).

Text: <http://www.law.cornell.edu/ny/ctap/overview.html>. [Cross-reference: Prisoner Death/Injury].

Alleged beating and use of a stun device by officers on a prisoner in full restraints who was not offering physical resistance stated a claim for excessive use of force.

            A Virginia prisoner adequately stated a claim for excessive use of force when he alleged that prison guards beat him and used a stun device on him while he was in full restraints (handcuffs, shackles and waist chain) and not offering any physical resistance. The officers were not entitled to qualified immunity, since the allegations, if proven, would violate clearly established prior caselaw. The prisoner claimed that officers shocked him twice with an Ultron II electronic stun device and beat him with his hands when he first arrived at the prison. Shelton v. Angelone, 148 F. Supp. 2d 670 (W.D. Va. 2001).

Federal appeals court overturns dismissal of prisoner's claim that three officers physically attacked him while he was handcuffed and that two of them made threats of physical harm against him in retaliation for his having filed lawsuits.

            A federal appeals court ruled that a trial court erred in dismissing a plaintiff prisoner's claims of excessive force against three correctional officers and of retaliatory threats allegedly made by two of them.

            The court noted that the prisoner testified that one of the officers "jumped on" him, body-slammed him to the floor twice, stomped on his head and back, and kicked and punched him repeatedly, and that the two other officers beat him with a flashlight and their fists, all while he was handcuffed. "This testimony must be accepted as true for present purposes" of a motion to dismiss, the court noted.

            "We also believe a jury could infer a retaliatory motive behind threats of physical harm" allegedly made by two of the officers, because the prisoner testified that one of the officer's threats specifically referred to his newly filed lawsuits, and also that the second officer threatened him during the same time period. Proctor v. Harmon, No. 00-3583EA, 257 F.3d 867 (8th Cir. 2001).

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

Prisoner who lost good-time credits when he tested positive for drug use could not pursue claim that officer asked him to take the test in retaliation for filing a grievance against her unless the disciplinary determination was first set aside; prisoner could, however, pursue claims of retaliation concerning the filing of allegedly false disciplinary complaints against him or his transfer in alleged retaliation for questioning an officer's authority to deny him legal assistance.

            An Arkansas inmate claimed that a correctional officer wrote up two false disciplinary complaints against him, the first to harass him, and the second because of grievances that the prisoner had filed against the officer. Both were ultimately dismissed as false. He also claimed that another officer retaliated against him for filing a grievance against her by ordering him to submit to a urine test, on the basis of which he was found guilty of a rule violation and lost good-time credits and was denied a requested transfer. Finally, he claimed he was transferred 250 miles from his home after he questioned the second officer's authority to deny him legal assistance.

            A federal appeals court ruled that the prisoner could not seek restoration of his good-time credits or pursue other relief to remedy the effect of the urine-test discipline until it is set aside, citing Edwards v. Balisok, 520 U.S. 641 (1997) (inmate cannot pursue federal civil rights claim based on allegations of bias and deceit by decisionmaker until discipline that resulted in loss of good time is invalidated by state or federal court).

            The appeals court ruled that the trial judge also properly dismissed the prisoner's claim of retaliation based on the discipline, because it was supported by both a report from staff and test results, and was therefore supported by "some evidence of violation," which "essentially checkmates" a retaliation claim.

            The appeals court also ruled, however, that the trial court erred in dismissing the claim over the earlier two disciplinary complaints which had been dismissed. A prisoner may sue under 42 U.S.C. Sec. 1983 on a claim that a false disciplinary charge was filed against him in retaliation for the inmate's having filed a grievance pursuant to established procedures, because "such retaliation interferes with inmate's access to" a grievance procedure. Finally, the prisoner could also pursue his claim that he was transferred in retaliation for questioning an officer's right to deny him legal assistance. Farver v. Schwartz, No. 00-3729EA, 255 F.3d 473 (8th Cir. 2001).

Text: <www.wulaw.wustl.edu/8th.cir>. [Cross-references: Access to Courts/Legal Info; Drug Testing; Transfer].

Supreme Court of Alaska rejects trial court jury instructions that state could not be held liable for prisoner's death if it was caused by his intentional suicide.

            A prisoner in an Alaska correctional center committed suicide after his arrest for striking a relative in the face with a glass bottle of rum while intoxicated. While his cell was monitored by a video camera, a correctional officer allegedly took no responsive action when she noticed that the camera lens in the cell had been obscured, following which another officer found the prisoner ten to fifteen minutes later slumped on the floor of his cell with a nylon cord around his neck. The cord was suspended from a shelf support in the cell.

            The decedent's estate sued the state for negligence in failing to prevent the death, and the trial court instructed the jury to excuse the state from liability if it found that the suicide was intentional. The Supreme Court of Alaska, overturning a jury verdict for the state, found that this jury instruction was erroneous.

            "A jailer owes its prisoners the duty of reasonable care to protect them from reasonably foreseeable harm, including self-inflicted harm." Intentional suicide, the court held, "is not a complete defense to a claim that a jailer negligently failed to prevent a prisoner's reasonably foreseeable death." Without deciding whether the state and its employees were or were not negligent in this case, the court therefore remanded for a new trial on the issue of whether the state breached its duty of reasonable care and whether any breach of that duty was a legal cause of the harm to the decedent. Joseph v. State, No. S-8518, 26 P.3d 459 (Alaska 2001).

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

Muslim prisoner could pursue claim that his equal protection rights were violated by prison allowing inmates with certain medical conditions to wear three-quarter-inch beards while denying his request to wear a one-quarter-inch beard for religious purposes.

            A Muslim prisoner sued Texas prison officials, claiming that a grooming policy that prohibited him from wearing a one-quarter-inch beard violated his right to practice his religion. The trial court dismissed both the religious practice claim and an equal protection claim as frivolous.

            While agreeing that the grooming policy did not violate the prisoner's religious freedom rights and was reasonably related to legitimate penological interests, a federal appeals court reinstated the prisoner's equal protection claim, based on the fact that the prison's policy allowed prisoners with certain medical conditions to wear three-quarter-inch beards. The prisoner argued that it violated his right to equal protection of law to permit these prisoners to wear longer beards while prohibiting the lesser accommodation he sought for religious purposes.

            The appeals court ruled that this claim lacked "neither an arguable basis in law or fact," and should not have been dismissed as frivolous. Taylor v. Johnson, #00-21155, 257 F.2d 470 (5th Cir. 2001).

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

            EDITOR'S NOTE: The religious freedom claim in this case was decided under the "reasonable relationship" test rather than the "compelling governmental interest" and "least restrictive means" tests mandated by a recent federal statute, the Religious Land Use and Institutionalized Persons Act, Public Law 106-274 (Sep. 22, 2000). The plaintiff prisoner sought reconsideration in the trial court of the judge's decision, based on this new federal statute, but this motion was denied for procedural reasons, and the appeals court found that it did not have jurisdiction to reach the merits of that question.

$6.8 million settlement in lawsuit over strip searching of female prisoners returning to county jail to retrieve their possessions after court proceedings during which they were ordered released.

            A county board has voted to approve a $6.8 million settlement of a class action federal lawsuit brought over strip searches of female inmates at the county jail. The settlement will provide awards to up to 2,600 women who were allegedly strip searched when they were returned to the jail after court appearances at which they were ordered released. The trial judge in the case ordered that the prisoners be given the option of either returning to their jail cells to retrieve their possessions, in which case they could be strip searched, or else remaining in the jail's receiving area and having their possessions brought out to them, in which case no strip search could take place.             Plaintiffs in the case had alleged that the routine strip searches of all female inmates returning to the jail to retrieve their possessions after court appearances continued for two years after the trial judge issued a preliminary finding that such searches were unconstitutional. Gary v. Sheahan, No. 96C7294, U.S. Dist. Ct., N.D. Ill.,  reported in Chicago Tribune, July 11, 2001.

Beck v. Skon, #00-2027, 253 F.3d 330 (8th Cir. 2001).[166-167]
Doe v. Delie, #99-3019, 257 F.3d 309 (3d Cir. 2001).[163]
Farver v. Schwartz, No. 00-3729EA, 255 F.3d 473 (8th Cir. 2001).[172-173]
Gary v. Sheahan, No. 96C7294, U.S. Dist. Ct., N.D. Ill.,
            reported in Chicago Tribune, July 11, 2001.[174-175]
Harvey v. Horan, 119 F. Supp. 2d 581 (E.D. Va. 2001).[164]
Humes v. Gilless, #01-2028, 154 F.Supp.2d 1353,
            2001 U.S. Dist. LEXIS 11233 (W.D. Tenn.).[167-169]
Jackson v. Burke, No. 00-0088, 256 F.3d 93 (2nd Cir. 2001).[165-166]
Joseph v. State, No. S-8518, 26 P.3d 459 (Alaska 2001).[173]
Kimberlin v. U.S. Dept. of Justice, 150 F. Supp. 2d 36 (D.D.C. 2001).[165]
Phillips v. Monroe County, 143 F. Supp. 2d 663 (N.D. Miss. 2001).[167]
Proctor v. Harmon, No. 00-3583EA, 257 F.3d 867 (8th Cir. 2001).[172]
Rangolan v. County of Nassau, 96 N.Y.2d 42,
            725 N.Y.S.2d 611, 749 N.E.2d 178 (2001).[171]
Rinaldo v. Corbett, No. 99-10801, 256 F.3d 1276 (11th Cir. 2001).[163-164]
Schindler v. State of New York, Claim No. 96692 (N.Y. Ct. of Claims, Rochester, N.Y.),
            reported in The National Law Journal, p. B4 (Aug. 13, 2001).[170-171]
Shannon v. Graves, No. 00-3029, 257 F.3d 1164 (10th Cir. 2001).[169]
Shelton v. Angelone, 148 F. Supp. 2d 670 (W.D. Va. 2001).[171-172]
Smith v. State of New York, 728 N.Y.S.2d 530 (A.D. 2001).[170]
Taylor v. Johnson, #00-21155, 257 F.2d 470 (5th Cir. 2001).[174]