Jail and Prisoner Law Bulletin – November 2017

//Jail and Prisoner Law Bulletin – November 2017

Jail and Prisoner Law Bulletin – November 2017

2017-11-07T13:02:30+00:00November 30th, 2017|Legal Updates|Comments Off on Jail and Prisoner Law Bulletin – November 2017

A civil liability law publication for officers, jails, detention centers and prisons

ISSN 0739-0998 – Cite this issue as: 2017 JB November



  • Digest Topics
    • Disability Discrimination: Prisoners
    • Inmate Property
    • Medical Care (2 cases)
    • Prison Litigation Reform Act: “Three Strikes” Rule
    • Prisoner Death/Injury
    • Prisoner Restraint
    • Strip Searches: Prisoners
    • Telephone Access and Usage
    • Therapeutic Programs
  • Resources
  • Cross_References



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Disability Discrimination: Prisoners

Prisoners who had disabilities making them particularly susceptible to heat and who claimed that correctional officials failed to reasonably accommodate their disabilities that impacted their ability to withstand extreme heat sued, asserting claims under the Eighth Amendment, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. A federal appeals court, upholding class certification, found no error in the trial court’s ruling that a facility’s heat mitigation measures were not effective to bring the risk of serious harm below the constitutional baseline for the plaintiff prisoners. Class certification was appropriate because the same acts were the source of injury for all inmates as they were all subjected to the same lack of air-conditioning, had the same available heat-mitigation measures, and were all harmed by exposure to excessive heat and they identified specific injunctive relief of maintaining a heat index of 88 degrees or lower. Yates v. Collier, #16-20505, 868 F.3d 354 (5th Cir. 2017).


 Inmate Property

     An inmate in a Wisconsin prison left two boxes of personal property for his son to pick up. The prison’s policy was that such property on deposit must be picked up in 30 days, or else shipped to someone the prisoner designated. If the prisoner’s account did not have enough to cover the shipping costs, the property was then destroyed. When the son did not retrieve the boxes within 30 days, a shipping cost of $9.50 was calculated, which was $2 more than the prisoner had in his account. The property was accordingly destroyed without notice to the prisoner. A federal appeals court upheld the dismissal of a due process claim against the sergeant in charge of the mailroom. The defendant was not responsible for giving notice, and only carried out the policy. The warden and deputy warden were not liable, as the policy did not authorize the destruction of property without notice. At most, this amounted to a negligent bureaucratic error, which was insufficient for a due process claim. Streckenbach v. Van Densen, #16-1695, 868 F.3d 594 (7th Cir. 2017).


Editor’s Note: For more on this topic, see: Legal Issues Pertaining to Inmate Property, 2008 (3) AELE Mo. L.J. 301.


Medical Care

****Editor’s Case Alert****

An arrestee stated that he suffered from seizures caused by a prior head injury, that he took medication to treat his condition, and that he had not taken his medication. Placed in a “bullpen” cell, he suffered a seizure 12 hours later and was taken to a hospital. A lawsuit claimed that after he returned to the city jail he was not given medical attention although he displayed symptoms of deteriorating health. Instead he was shackled, with a spit mask placed on his face. Officers allegedly ignored his cries for help and complaints of difficulty breathing. Then he was transferred to the county facility, where nurses found him medically unfit to be booked. Despite this, they allegedly gave him no medical care and did not remove the mask, which was seeping blood. When a nurse finally removed the mask, he was no longer breathing. He died less than 24 hours after his arrest. A trial court rejected his family’s claims against individual defendants and their argument that the city had a de facto policy of failing to investigate in-custody deaths and ignoring detainees’ medical difficulties. A federal appeals court reversed in part, ruling that the evidence, including surveillance footage, while disputed, would permit a jury to find liability on civil rights claims against some individual defendants. Rejecting claims of qualified immunity, the appeals court found that it was clearly established that a detainee was entitled to objectively reasonable medical care for a serious medical need. The alleged lack of care, if true, was objectively unreasonable. Estate of Perry v. Wenzel, #16-3130, 2017 U.S. App. Lexis 18010 (7th Cir.).

Several correctional officers touring a dorm at night observed nothing unusual about an inmate asleep in his bunk. At 3:45 a.m., when the dorm supervisor started awakening inmates for kitchen duty, he saw he prisoner breathing abnormally and making noises, with his body making sudden moves. Despite efforts to wake him, the prisoner was unresponsive. The supervisor noted this in the logbook and called an officer, who later denied that he was given all information. The prisoner did not wake up for breakfast, and when other prisoners returned from the meal, the supervisor heard someone shout “man down!” He called a medical emergency, and the prisoner was pronounced dead at 6:54 a.m.

He had died from a methadone overdose, taking pills he bought from another prisoner. Medical experts stated that he would have fully recovered if he had received medical care between 3:45 and 5:48 a.m. A federal appeals court reversed summary judgment for the defendants on Eighth Amendment claims, finding that there was a material dispute of fact as to whether the defendants were deliberately indifferent to the prisoner’s severe medical condition. The court also ruled, however, that the decedent’s father did establish a substantive due process violation from the loss of his familial relationship due to the prisoner’s death because there was no evidence that either of the correctional facility officers intentionally interfered in the father’s familial relationship with his adult son. Orlowski v. Milwaukee County, #16-2166, 2017 U.S. App. Lexis 17991 (7th Cir.).


Prison Litigation Reform Act: “Three Strikes” Rule

      An indigent prisoner who was a prolific pro se litigant filed approximate 40 lawsuits over a brief period of time. In 2014, his lawsuit claiming false arrest, malicious prosecution, and the use of excessive force was dismissed with prejudice as time-barred and this was his first strike under the Prison Litigation Reform Act’s (PLRA) “three strikes” rule limiting a prisoner’s ability to proceed as a pauper if they abuse the judicial system by filing frivolous actions. His next strikes arose from the dismissals, as “frivolous,” of two 2015 civil rights complaints. The Third Circuit upheld the denial of the prisoner’s attempt to proceed as a pauper on the appeal of the dismissal of the third strike. An indigent prisoner appealing a trial court’s imposition of his “third strike” may not proceed as a pauper for that appeal without demonstrating that he is in “imminent danger of serious physical injury.” Parker v. Montgomery County Correctional Facility, #15-3449, 870 F.3d 144 (3rd Cir. 2017).


 Prisoner Death/Injury

      A California prisoner filed a lawsuit against various defendants under state law based on his contraction of coccidioidomycosis (commonly known as valley fever) while incarcerated in a state prison. Upholding summary judgment for the defendant state, an intermediate state appeals court found no exception to a state statute providing that a public entity is not liable for an injury to any prisoner. Regardless of the merits of the plaintiff’s claim, he may not assert it against the state. Towery v. State of California, #B269387, 14 Cal. App. 5th 226, 2017 Cal. App. Lexis 695.


Prisoner Restraint

****Editor’s Case Alert****

      A federal trial court’s district-wide policy of routinely shackling all pretrial detainees in the courtroom violated the Fifth Amendment’s due process clause. Before a government entity seeks to shackle a criminal defendant, it must first justify the infringement with specific security needs as to that particular defendant. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom. The en banc court held that there was still a live controversy over the shackling policy and the case was not moot, despite the policy having been changed, because of the capable-of-repetition-yet-evading-review exception to mootness. The en banc court clarified the right to be free from shackles and held that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Although the court held that the policy was unconstitutional, it withheld the issuance of a formal writ of mandamus because the policy was no longer in effect. U.S. v. Sanchez-Gomez, #13-50561, 859 F.3d 649 (9th Cir. 2017).


Editor’s Note: For a more detailed discussion of this case and this topic, see Prisoner Restraint and Court Appearances, 2017 (10) AELE Mo. L. J. 301.


Strip Searches: Prisoners

Correctional defendants were entitled to summary judgment in a lawsuit claiming that an inmate was subjected to unconstitutional strip searches. The policies challenged were designed for the prevention of the flow of contraband from the outside truck drivers and others to inmates in an on-site garment factory and to the main prison, as well as to prevent the removal of items from the garment factory that could be used as weapons. The appeals court ruled that plaintiff failed to rebut this reasonable justification of the strip and visual body searches and therefore the trial court did not err in granting summary judgment to the defendants. The court also held that the prison’s internal rules and regulations did not alone create federally-protected rights and a prison official’s failure to follow prison policies or regulations did not establish a violation of a constitutional right. Lewis v. Secretary of Public Safety and Corrections, #16-30037, 870 F.3d 365 (5th Cir. 2017).


Telephone Access and Usage

A phone company challenged an FCC order that set permanent rate and fee caps for interstate inmate calling services. After the presidential inauguration in January 2017, the FCC notified the court that, due to a change in the composition of the Commission, “a majority of the current Commission does not believe that the agency has the authority to cap intrastate rates” under section 276 of the Communications Act of 1934. Consequently, the federal appeals court granted in part and denied in part the petitions for review, remanding for further proceedings. The court held that the order’s proposed caps on intrastate rates exceed the FCC’s statutory authority under the Telecommunications Act of 1996 Act, that the use of industry-averaged cost data as proposed in the order was arbitrary and capricious because it lacked justification in the record and was not supported by reasoned decision-making. Further, the order’s imposition of video visitation reporting requirements was beyond the statutory authority of the Commission, and the order’s proposed wholesale exclusion of site commission payments from the FCC’s cost calculus was devoid of reasoned decision-making and therefore was arbitrary and capricious.Global Tel*Link v. FCC, #15-1461, 859 F.3d 39 (D.C. Cir. 2017).

Therapeutic Programs

A federal appeals court has overturned a trial court’s dismissal of a former inmate’s lawsuit claiming that she was psychologically traumatized by being forced to undergo sexual shame therapy while incarcerated. The appeals court ruled that it was erroneous to deny as futile the plaintiff’s request for leave to amend to include new assertions when she may be able to allege that she was unaware of her injuries until sometime after she stopped participating in the therapy sessions, and she may have reasonably viewed the embarrassment and humiliation she felt as the ordinary, and therefore not harmful, response to the therapy. Gregg v. Hawaii DPS, #14-16785, 870 F.3d 883, (9th Cir. 2017).

  • Return to the contents

Report non-working links here


     Corrections Policies: California Department of Corrections and Rehabilitations Department Operations Manual, including 2017 updates.

Jail Violence: New York Department of Corrections, Fact Sheet: Reducing Jail Violence (January 2017).



Cross References


Medical Care: Mental Health – See also, Therapeutic Programs

Prison Conditions: Heat and Cold – See also, Disability Discrimination: Prisoners

Prisoner Death/Injury – See also, Medical Care (both cases)

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John Blackmon

A retired law enforcement officer who now serves as the President of the Fraternal Order of Police Tri-County Lodge #3.
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