Abstract
This annual survey examines important prisoners' rights cases decided by the U.S. Courts of Appeals during 2011. These cases addressed constitutional questions about inmate-on-inmate violence, lockdowns, delayed medical care, custodial suicide, gender identity disorder, excessive staff force, unsolicited mail, religious dress and diets, impermissible staff retaliation, cross-gender searches, and procedural due process. In addressing these constitutional questions, the U.S. Courts of Appeal created new law and/or applied clearly established law. Because the U.S. Supreme Court will only rarely grant certiorari to appellants, the U.S. Courts of Appeals remain the de facto courts of last resort for all but a few prisoners who challenge the constitutionality of the manner of their confinement.
The 13 United States Courts of Appeals cast a long shadow over correctional case law in 2011. Their importance rests on two functions they have performed since the demise of the hands-off doctrine: applying clearly established correctional law to fact-specific cases and creating new law (Cooper & Berman, 2000). Both tasks are made necessary by the infrequency in which the U.S. Supreme Court grants certiorari in matters of prisoners’ rights. In the Supreme Court’s 2010–2011 term, the justices decided only two cases directly addressing prisoners’ rights, Brown v. Plata (2011) and Swarthout v. Cooke (2011).
In keeping with previous installments, this annual survey examines select prisoners’ rights cases decided by the U.S. Courts of Appeals during 2011 and recommended for full-text publication in the Federal Reporter, Third Series. The author chose these cases because they addressed persistent, important, or emerging constitutional issues about confinement in jails and prisons. Because a summary judgment for a dismissal for the defendants in these cases typically led to an appeal by the plaintiffs, the factual summaries of cases discussed herein reflect the practice of the U.S. Courts of Appeals in such instances to view all facts and draw all inferences in the light most favorable to the plaintiffs. As in past, this installment examines only constitutional issues raised before the U.S. Courts of Appeals and thus does not address statutory interpretation.
Failure to Protect
In passing the Prison Rape Elimination Act of 2003 (codified at 42 U.S.C. § 15602(1)), the U.S. Congress embraced a policy of “zero tolerance” of prison rape. Eight years later, in early 2011, the U.S. Department of Justice released its proposed standards for implementing the Act (Office of the Federal Register, 76 Federal Registry 6248, Feb. 4, 2011). Meanwhile in 2011, correctional authorities reported an estimated 7,374 allegations of sexual victimization among imprisoned men and women for 2007 and 7,444 for 2008 (Guerino & Beck, 2011). By contrast, the most recent survey of inmates estimated that 88,500 incarcerated men and women experienced sexual victimization over a 12-month period (Beck, Harrison, Berzofsky, Caspar, & Krebs, 2010).
Whereas most male victims of prison rape do not inform authorities (e.g., Struckman-Johnson, Struckman-Johnson, Rucker, Bumby, & Donaldson, 1996), the plaintiff in Bishop v. Hackel (2011) reported his rape and eventually sued his keepers. Bishop’s road to victimization began with his arrest and transportation to the Macomb County (Michigan) jail. The booking officer, noting his physical build as “small” and his troubled mental history, scheduled Bishop for a mental health assessment and placed him in a high observation cell (p. 762). The results of the assessment led to Bishop’s transfer to a mental health observation unit of the jail. There he encountered his assailant, a physically much larger detainee who had been convicted of sex offenses. The plaintiff claimed that he informed unnamed jailers of the sexual abuse he repeatedly sustained; yet, they did nothing to protect him—a not uncommon allegation by victims of prison rape (e.g., Buchanan, 2010; Eigenberg, 1994; Howard v. Waide, 2008). Bishop named as defendants, in relevant part, three jailers on duty when he was assaulted.
Invoking the landmark case on point, Farmer v. Brennan (1994), the U.S. Court of Appeals for the Sixth Circuit posited that prison rape inflicted cruel and unusual punishment when prison staff demonstrate deliberate indifference to a serious risk of assault. Accordingly, the Sixth Circuit initially inquired whether the risk of harm was “objectively sufficiently serious” (Bishop v. Hackel, 2011, p. 766). Upon discerning the plaintiff’s vulnerable traits (Bishop was young, small, suffering from severe mental illness, and exhibiting lack of full mental functioning) and his assailant’s traits (his cellmate was older, stronger, and predatory), the court concluded that the risk passed the threshold for severity (p. 766).
The Sixth Circuit then turned to the subjective component, whether the defendants responded to this significant risk with deliberate indifference. The Bishop court operationalized the concept of deliberate indifference by quoting the following passage from Farmer: Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence. … and a factfinder may conclude that prison officials knew of a substantial risk from the very fact that the risk was obvious. (Bishop, p. 767; Farmer, p. 842)
Because the plaintiff could not name the jailers informed of his dire situation, he countered that everyone who guarded him must have known of his vulnerability, given his individual characteristics that made his endangerment obvious. Moreover, he pointed to the physical structure of the facility, where, as one inmate testified, “guards assigned … [to the unit] can hear everything inmates say,” which would have included the threatening behavior of his rapist (p. 768). While the Sixth Circuit accepted the broad outlines of these theories of liability, it added an important caveat: it must be shown that each individual defendant had sufficient personal contact with the plaintiff.
The U.S. Court of Appeals thus proceeded to draw the following distinctions among the three defendants in question. Two defendants lacked sufficient contact: a jailer working a single, 8-hours shift that coincidentally fell on the very day of the assault; and a jailer who had intermittently worked in the unit for a month. Finally, the Sixth Circuit did fault the jailer assigned to the unit throughout the month and who had admitted his “familiar[ity]” with the plaintiff and his assailant. “Here,” wrote the circuit panel, “a jury could find that … [this particular jailer] was aware of Bishop’s characteristics because he testified that he talked to Bishop quite often on his rounds” (p. 771). Thus, he alone would face civil trial for the alleged infliction of cruel and unusual punishment.
Lockdowns and “Total Separation” Status
Wynn in 2004 wrote of “the proliferation of super-maximum security ‘lockdown’ units, highly secure prisons within prisons or freestanding facilities in which inmates are confined twenty-three hours a day” (p. 498). That trend continues, with Schlanger (2010) recently commenting that “solitary confinement for prisoners has increased in prevalence and in salience” (p. 1422). Lockdowns in California state prisons have been especially controversial, which has led to the filing of a lawsuit in Mitchell v. Cate (2011). As the plaintiffs’ attorneys claim, “California’s prisons regularly discriminate against prisoners by subjecting entire racial groups to illegal lockdowns” (Prison Law Office, 2011).
The ruling by the U.S. Court of Appeals for the Ninth Circuit in Noble v. Adams (2011) suggests that the odds are stacked against the Mitchell plaintiffs when their lawsuit goes to trial. The Noble plaintiff, an African American inmate confined in the highest custody level at California’s Corcoran State Prison, contended that a prison-wide lockdown that barred him from outdoor exercise for a 7-month period inflicted cruel and unusual punishment. The lockdown occurred because of a “mass assault” by African American inmates on prison staff, which injured 21 officers (p. 526). The plaintiff did not participate in the riot, but he was a former member of a prison gang whose members were involved in the riot, and he resided in a cellblock reserved for inmates with histories of misbehavior. An earlier lockdown had ended just 1 day prior to the riot, which was initiated because of earlier riots.
The U.S. District Court had ruled that the defendant prison officials failed to provide “specific facts” warranting a restriction of this length (p. 1142). The Ninth Circuit reversed. It had “no doubt” that the defendants confronted a genuine emergency and that “multiple security reasons” justified the lockdown (p. 1144). The Ninth Circuit proceeded to create black letter law, stating that “[a] lockdown by definition normally precludes” outdoor exercise (p. 1144). Moreover, as to the duration of such restrictions, the circuit panel posited that “[r]egular operations cease during a lockdown and are restored gradually according to prison officials’ judgment as to the safety on the ground” (p. 1144, emphasis in original). While the circuit panel did speak of “wide-ranging deference” owed prison staff (p. 1138), it did not repudiate the U.S. District Court’s insistence on “specific facts” justifying the defendants’ actions. Unlike the U.S. District Court, however, the Ninth Circuit characterized the record as amply demonstrating prudent judgment by the staff in balancing safety of staff and inmates against inmates’ rights.
Whereas the term lockdown traditionally denotes the wholesale confinement of a living unit or the institution’s population in their cells round the clock, the term acquired an additional meaning in Jones v. Horne (2011). The plaintiff, a detainee, was singled out by the U.S. Attorney for “lockdown,” which jail officials described as “Total Separation Status” (p. 592)—a form of solitary confinement where the detainee was denied mail, telephone calls, or visitors for nearly 5 months. Whereas lockdowns typically arise from institutional needs, which in the case of pretrial detention are construed as internal security and ensuring the detainee’s presence at trial (see Bell v. Wolfish, 1979), the defendants’ lockdown sought to prevent this detainee from witness tampering by contacting civilians through telephone calls, correspondence, or visitation. The detainee argued that this government objective fell outside the permissible, nonpunitive restraints that can be imposed on pretrial detainees. The Court of Appeals for the District of Columbia held otherwise. Citing post- Bell v. Wolfish (1979) cases, the District of Columbia Circuit held that any “legitimate nonpunitive interest” justified rationally related restrictions on detainees, including those at issue in Jones (p. 598).
Medical Care
“Our jails and prisons,” wrote a noted commentator, “have increasingly become the de facto clinical depositories for hundreds of thousands of inmates who are very sick and who require all manner of specialty medical, dental, and mental health care. Prisons are not only the new mental asylums; they are the new community hospitals and emergency wards for certain segments of the poor” (Cohen, 2008, p. 5). Yet, correctional facilities face an acute shortage of well-qualified physicians, especially in those specialties addressing psychiatry, infectious diseases, and substance abuse (Westoff, 2008). Among correctional medical doctors, 48% lack specialty training and 22% lack board certification (Westoff, 2008). Prison overcrowding exacerbates this shortage. In the most important correctional law case to be decided by the U.S. Supreme Court in 2011, Brown v. Plata (2011), the Justices upheld an order by the U.S. Court of Appeals for the Ninth Circuit that the California reduce its prison population as a remedial measure, given its broken correctional health care system.
Delayed Care
Faced with rising costs of correctional health care, many states have privatized its delivery. One of the largest providers, Correctional Medical Services Inc. (CMS), has contracted to deliver medical care to 277,000 inmates in 18 states (Ward, 2011). One critic of privatization has contended that “[p]rivatization usually means … poorer care” (Ward, 2011). Arguably, a case on point is Leavitt v. Correctional Medical Services (2011).
The plaintiff in Leavitt was one of nearly 22,000 inmates with confirmed HIV/AIDS in states reporting data between 2006 and 2008 (Maruschak, 2009). His initial 22 months of imprisonment passed before antiretroviral therapy was renewed despite his repeated requests for treatment. While antiretroviral therapy eventually reconstituted his immune system, his expert witness testified that the prolonged interruption of treatment constituted a “‘continuum’ of harm that makes him statistically more likely to be susceptible to opportunistic infections and/or cancer” (p. 496).
The U.S. Court of Appeals for the First Circuit characterized the gravamen of his complaint as “inadequate or delayed medical care” (p. 497). It chose to analyze complaints of this genre by the test set forth in Estelle v. Gamble (1976) by the U.S. Supreme Court. Speaking for the Estelle Court, Justice Marshall held that deliberate indifference to a serious medical need inflicted cruel and unusual punishment. Like most courts that have applied this test, the Leavitt court first inquired whether the plaintiff demonstrated that his medical condition was objectively serious. While the apparent lack of serious symptoms would suggest a medical condition below the constitutional threshold, the Leavitt court looked beyond presenting symptoms in ruling that a serious medical need is nonetheless present if failure to initiate treatment is “very likely to cause serious illness and needless suffering in the future” (p. 501)—as is true of HIV if left untreated.
The plaintiff had initially spent 4 months in a county jail under the care of a physician’s assistant. This defendant rejected the plaintiff’s request for antiretroviral therapy until he received the results of new tests conducted on the plaintiff. Upon their completion, the defendant did not review the results, which gave rise to his argument that he lacked the requisite actual knowledge of a serious medical problem afflicting the plaintiff. In rejecting this argument, the First Circuit characterized his state of mind as “willful blindness … in which the official culpably ignores or turns away from what is otherwise apparent” (p. 487). Moreover, the First Circuit observed that this defendant had a financial incentive not to treat the plaintiff because of his ownership of the private medical service contracted to care for inmates at the county jail.
After his transfer to the Maine State Prison, the plaintiff experienced an 18-month delay in antiretroviral treatment. This facility used a clinical model of health care through the contract medical provider, CMS. As the First Circuit explained, the clinic model paired a client with a member of the medical staff as chance dictated, giving rise to a host of attending medical personnel during the plaintiff’s several appointments at the clinic. Consequently, the plaintiff advanced a group liability theory of recovery, arguing that the several persons who examined him collectively contributed to the decline in his health. However, the Leavitt court rejected his group liability theory, positing that liability for Eighth Amendment violations rests on sufficient proof of each defendant’s own acts or omissions. The First Circuit then reviewed the separate acts and omissions of four employees who individually cared for the plaintiff, finding that no single person’s conduct was so inadequate as to fall within that “narrow band of conduct” comprising deliberate indifference, “a form of scienter” that is “repugnant to the conscience of mankind” (p. 497).
Finally, the Leavitt court entertained a claim against CMS as a corporate entity under the theory of municipal liability “as though it were [sic] a municipality” (p. 504). The court acknowledged the novelty of this analogy but offered no rationale. It held for CMS on the grounds that entity liability, like municipal liability, requires an underlying constitutional tort by one of its employees. As indicated earlier, the plaintiff had failed to establish an underlying civil rights violations by the defendants acting in their individual capacities.
Suicides
The Bureau of Justice Statistics reported that suicide remains the leading cause of unnatural deaths in jails, but the rate of reported suicides continued its long-term decline, dropping from 46 to 36 deaths per 100,000 persons between 2000 and 2007 (Noonan, 2010). Suicides did occur at a higher rate in jail than in the nation as a whole (Noonan, 2010). As Ross (2010) observed, a suicide will invariably lead to a lawsuit; however, the chances of the plaintiff prevailing are one to three (34%), based upon some 2,000 published cases between 1980 and 2008.
The decision of the U.S. Court of Appeals for the First Circuit in Coscia v. Town of Pembrooke, Mass (2011) answered a likely novel issue: Does liability arise for a noncustodial suicide of a person recently detained, whom his jailers knew to be suicidal? The deceased had committed suicide in the very manner he had prophesied during his pretrial detention. The defendants did not contest that as a matter of law the deceased presented a strong risk of suicide while in custody. Indeed, he had threatened to jump in front of a train and his responses to a suicide questionnaire indicated that he presented an unacceptable risk of self-injury. Also, the county’s own policy dictated that the deceased should have been transferred to a medical facility. Instead, he was released in the early evening and by early morning of the following day he succeeded in his death wish.
For the U.S. District Court, causation, not the location of his death along train tracks, mattered. Thus, it inquired whether the defendants exhibited deliberate indifference and, if they did, was their deliberate indifference the proximate cause of his suicide some 12 hr after his release. The court answered in the affirmative on both counts, given the plaintiff’s repeated warnings of self-injury and the defendants’ repeated failure to take obvious steps to address this danger, such as involuntary hospitalization.
When the case came before the First Circuit, it held that location—that is, whether or not his death occurred in a noncustodial setting, alone mattered. The court explained that Estelle v. Gamble (1976) dictated this theory of liability in that it elevated the “deprivation of liberty,” whereby an individual is prevented from “car[ing] for himself,” as the rationale for prisoners’ right to medical treatment (Coscia, 2011, p. 40). Thus, under this theory of liability, when the Coscia plaintiff was released, even though his release put him at jeopardy of self-injury, the deprivation of liberty ended and, consequently, so did the jailers’ constitutional duty to provide him with medical care. Accordingly, the First Circuit ruled in favor of the defendants.
Gender Identity Disorder (GID)
Does failure to provide transgendered inmates with hormone therapy and/or sexual reassignment surgery constitute deliberate indifference to a serious medical need per Estelle v. Gamble (1976)? For more than a decade, transgendered inmates have sought these procedures, which, as one commentator observed, have “evoke[d] the ire and distain of the public and politicians” (Maruri, 2011, p. 808). The Wisconsin legislature went so far as to ban the expenditure of state monies on hormone therapy for transgendered inmates. In Fields v. Smith (2011), a case of sufficient importance to merit discussion in the Harvard Law Review (Harvard Law Review Association, 2011), the U.S. Court of Appeals for the Seventh Circuit addressed the constitutionality of the Wisconsin law.
In Fields, transgendered inmates who had been diagnosed with GID and received treatment in prison prior to the enactment of the Wisconsin statute, challenged its constitutionality. They contended that the statute denied them the only effective treatment for GID. Having conceded that GID comprises a serious medical need per Estelle v. Gamble (1976), the state could not convince the circuit panel that a treatment other than hormone therapy could treat GID. Also, the Seventh Circuit dismissed the state’s rationale for the law—that hormone therapy renders transgendered inmates susceptible to sexual assault—as lacking a factual basis, given their vulnerability to sexual assault whether or not they receive hormone therapy. Whereas a hallmark of the Supreme Court’s correctional law jurisprudence has been deference to the policies of prison administrators (Robertson, 2006), the circuit panel insisted that “deference does not extend to actions taken in bad faith and for no legitimate purpose,” as illustrated by the facts of the instant case ( Fields v. Smith, 2011, p. 558). Consequently, the court struck down the statute as a violation of the Eighth Amendment, explaining that denying these inmates the only effective treatment for their medical condition served no valid penal purpose and thus amounted to torture.
Excessive Force
The Commission on Safety and Abuse in Prison (2005) found “disturbing evidence of individual assaults and patterns of violence in some U.S. prisons and jails. Corrections officers told the Commission about a near-constant fear of being assaulted. Former prisoners recounted … beatings by officers…” (p. 399).
The United States lacks a system for the collection of nationwide data on the use of officer force in correctional facilities (Gross, 2008). A recent study by Wolff, Blitz, Shi, Siegel, and Bachman (2007) found that one in four male inmates (246 per 1,000 male inmates) and one in twelve female inmates (83 per 1,000 female inmates) reported staff-on-inmate violence within a 6-month period. Ross’ (2004) study of excessive force claims found that physical force was at issue in 44% of prisoner federal lawsuits.
Recently, the U.S. Supreme Court in Wilkins v. Gaddy (2010) both reaffirmed and clarified the standard set forth in Hudson v. McMillian (1992) for determining when officer force violates the Eighth Amendment. On one hand, the Wilkins Court reaffirmed that the subjective prong of the test remained “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm” (p. 1178). On the other hand, the Wilkins Court clarified the ruling in Hudson by stressing that the “core judicial inquiry” concerned the subjective prong (p. 1179), as juxtaposed to objective prong of the test, which inquired whether the resulting pain was serious. More importantly, the Wilkins Court repudiated the long-held doctrine that a de minimis injury can never be sufficiently serious to support an excessive force claim. The Court did add two important caveats: the quantum of injury could shed light on the amount of force used and whether the officer had a good faith belief in the necessity of the force he employed; and “no discernible injury” would be “almost certainly” fatal to the plaintiff’s Eighth Amendment claim (p. 1178).
The ruling of the U.S. Court of Appeals for the Sixth Circuit in Williams v. Curtin (2011) illustrated the impact of Wilkins on federal case law. Correctional officers had employed a chemical agent on the plaintiff after he refused to exit his cell. The U.S. District Court in relevant part dismissed his subsequent Eighth Amendment claim on the basis that his injury—a “shortage of oxygen” (p. 381)—was de minimis. Subsequently, the U.S. Supreme Court issued its opinion in Wilkins, which the Sixth Circuit employed in overturning the judgment of the U.S. District Court. Reading Wilkins as a directive to “focus on the nature of the force rather than the extent of the injury” (p. 384), the Sixth Circuit faulted the U.S. District Court for not considering the degree of force employed against the plaintiff. Observing that “injury and force … are only imperfectly correlated,” the Sixth Circuit held that the plaintiff’s pain passed the “serious” threshold for his suit to go to trial (p. 384).
The Supreme Court has yet to inform the lower federal courts when excessive force claims are subject to the Fourth Amendment. Left to its own devices, the U.S. Court of Appeals for the Eighth Circuit in Hicks v. Norwood (2011) recounted the extant case law of the lower federal courts. After his arrest and transportation to the county detention center, the plaintiff refused to cooperate during his booking. In relevant part, a struggle between the plaintiff and officer Norwood ensued over possession of the plaintiff’s pants. The officers who witnessed the melee said that the plaintiff had slipped and struck his head. The plaintiff, by contrast, told of being beaten with a flashlight or shocking device, as well as being hit and kicked. Implicitly applying the “continuing seizure rule,” in which Fourth Amendment applies during the seizure of an individual, a process that ends no earlier than the conclusion of the booking stage, the Eighth Circuit applied the test commonly used in officer-seizure cases—that is, the “objectively reasonableness” test, in which “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” (p. 842). Hence, the Eighth Circuit gauged the reasonableness of the force by assuming the defendant’s recounting of facts was true and thus sided with him in that the amount of force was objectively appropriate, given plaintiff’s combativeness during booking.
First Amendment Freedoms
“Even protected speech,” wrote the U.S. Supreme Court, “is not equally permissible in all places and at all times” ( Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 1985, p. 799). Surely the Court had in mind correctional settings. In this instance, the Court practiced what it preached by upholding challenging restrictions on prisoner correspondence ( Turner v. Safley, 1987), religious practices ( O’Lone v. Estate of Shabazz, 1987), censorship of books (Thornburgh v. Abbott, 1989), and visitation ( Overton v. Bazzetta, 2003).
In addressing inmates’ right to correspond, the Supreme Court in Turner v. Safley (2007) set forth a four-pronged test for determining whether prison regulations impermissible infringe on First Amendment freedoms. In summary form, it inquires (a) “whether there is a valid rational connection between the prison regulation and the government interest in justifying it”; (b) “whether there is an alternative means available to the prison inmates to exercise the right”; (c) “whether an accommodation would have a significant ripple effect on the guards, other inmates, and prison resources”; and (d) “whether there is an alternative that fully accommodates the prisoner at de minimis cost to valid penological interests.” (p. 832)
Unsolicited Mail
The U.S. Court of Appeals for the Ninth Circuit in Hyrdlica v. Reniff (2011) handed down the most important prison speech decision for 2011. This case demonstrated that the Turner test is not “toothless”—as the Supreme Court in Thornburg v. Abbott (1989, p. 434) had asserted in response to critics. Pursuant to an operational order of the Sacramento County (California) Jail, the defendant jailer had barred the delivery of complimentary copies of an unsolicited magazine addressing correctional issues and advertising the services of bail bondsmen and attorneys. The civilian publisher of the magazine sued, claiming that his First Amendment rights entitled him to send unsolicited publications of the type described above. In ruling for the plaintiff, the Ninth Circuit applied the Turner test but had no need to proceed beyond the first factor, the sine qua non of the test. In this regard, the Ninth Circuit concluded that the defendant failed to show the requisite “rational connection” between the regulation and a legitimate penal objective, given his failure to substantiate the alleged harms arising from the distributing this publication, such an increased risk of fire or diminished security. Tellingly, the Ninth Circuit observed that more than 60 county jails distributed this publication, the implication being that the defendant’s concerns were exaggerated—an additional breach of the Turner factors.
Religious Appearance and Diets
While the applicable law was the same as the above Hrdlicak decision—that is, the four-factor Turner test, its operationalization in Kuperman v. Wrenn (2011) could not have been more different. The plaintiff in Kuperman objected to a regulation that limited the length of inmate beards to one quarter of an inch, arguing that his Jewish faith dictated an untrimmed beard. Whereas the Ninth Circuit in Hrdlicka put “teeth” into the “rationally related” factor of the Turner test, the U.S. Court of Appeals for the First Circuit in Kuperman symbolically extracted those teeth. It did so by giving the plaintiff the daunting task of showing that the regulation did not advance penal interests delineated by the defendants—that is, (a) aiding in the identification of inmates; (b) finding hidden contraband, such as knives; and (c) preventing ready changes in appearance. Regarding the plaintiff’s response, the court characterizing it as “containing nothing … to rebut Prison Officials’ assertions” (p. 75). The First Circuit then addressed the remaining three Turner factors, respectively, finding that (a) the plaintiff had alternative means of exercising his religious beliefs; (b) that allowing him to grow his beard would have an adverse impact on the prison’s operations—e.g., necessitating more searches; and, finally, (c) the “ready alternatives” proposed by the plaintiff—for example, having staff use combs when searching beards—lacked the ease of implementation envisaged by the Turner Court.
The extent that the First Amendment’s Free Exercise Clause provides for religious diets remains unsettled (Boston & Manville, 2010). The U.S. Court of Appeals for the Seventh Circuit in Vinning-El v. Evans (2011) addressed whether an inmate is entitled to a religious diet that is not required by his religious sect. The plaintiff had brought suit over the denial of a vegan diet. His sect, the Moorish Science Temple of America, required a nonpork diet but permitted consumption of certain foods, such a fish, that disqualify it as a vegan diet. The Seventh Circuit held that if an inmate’s dietary request falls outside his faith group’s edicts but is grounded in his sincerely held “personal religious faith,” he is entitled to constitutional protection equal to that of an inmate requesting a diet espoused by his faith group (p. 593). In finding that the plaintiff’s request grew out of sincerely held religious beliefs, the Seventh Circuit distinguished hierarchical faith traditions, such as the Roman Catholic Church, from nonhierarchical faith traditions, which included the plaintiff’s Moslem sect, where “every worshipper has a direct connection to God” (p. 593) and thus more leeway in faith-based dietary practices. Consequently, the Seventh Circuit remanded the case back to the U.S. District Court for trial.
Retaliation
Conduct by inmates, including constitutionally protected conduct, can lead to retaliation by prison staff. Their retaliation is “one of the dirty secrets of American corrections” (Boston, 2001, p. 431). Fear of retaliation especially weighs on inmates who file grievances, the exhaustion of which being a statutory prerequisite for bringing a federal civil rights suit (42 U.S.C. § 1997e(a) (2006)). In this regard, Nathan’s (2001) survey of Ohio inmates found that 92% of the respondents who used the grievance process agreed with the statement, “I believe staff will retaliate or get back at me if I use the grievance process” (p. 25). Yet, prisoners’ right to be free of retaliation is clearly established law: as early as 1995, the U.S. Court of Appeals for the Eighth Circuit stated, “We have long held that prison officials may not permissible retaliate against a prisoner based on the inmate’s exercise of his constitutional rights” ( Cornell v. Woods, 1995, p. 1390).
The plaintiff, a Florida prisoner, in Moton v. Cowart (2011) would likely agree that proving impermissible retaliation requires persistence under the best of circumstances. The facts of his suit tell of grievances he filed in 2004 accusing the defendant correctional officer of “running a “correctional atmosphere … akin to dictatorships in Third World countries, or the brutal and abusive relationship between slave master and tortured slave’” (p. 1339). Defendant Cowart responded by threatening him with a disciplinary report for using disrespectful language. The plaintiff answered by filing another grievance. A verbal confrontation followed. Shortly, the defendant filed two disciplinary reports against the plaintiff: one for the disrespect allegedly shown in his use of all-uppercase letters in a grievance form, which the defendant characterized as “yell[ing]”; and a second disciplinary report for allegedly making threats by virtue of the plaintiff’s remark, “she [the defendant] would be hearing from his attorney” (p. 1340). A disciplinary panel found the plaintiff guilty on both counts but an administrative review found insufficient evidence to support the charges and thus dismissed them. The plaintiff then sued, claiming retaliation for exercising his First Amendment rights.
The U.S. Court of Appeals for the Eleventh Circuit in Moton set forth three elements that inmates must establish in a retaliation claim: (1)[H]is speech or act was constitutionally protected; (2) the defendant’s retaliatory conduct adversely affected the protected speech; and (3) there is a causal connection between the retaliatory actions and the adverse effect on speech. (p. 1341)
Because the U.S. District Court had earlier ruled that the plaintiff established the first two elements, but not the third, which speaks to whether the defendant’s motivation in bringing disciplinary charges was of a retaliatory nature, the Eleventh Circuit solely addressed this issue. In the absence of direct evidence of a retaliatory motive—that is, the defendant’s admission, the circuit panel applied an uncommon test: it would infer a retaliatory motive if the defendant could not have “reasonably construed” the plaintiff’s conduct as disrespectful and threatening (p. 1342).
Upon reviewing the various allegations, the circuit panel concluded that the officer’s construction of these events failed this test. Specifically, completing a grievance form in all-uppercase letters was a matter of style, not content, and thus “by itself” could not be reasonably construed as disrespectful (p. 1342). In turn, an inmate’s remark that he would contact his attorney represented an invocation of his constitutional rights, not a sanctionable threat. Having established a factual basis for the three elements of a retaliation claim, the plaintiff’s suit could proceed to trial upon remand to the U.S. District Court.
In O’Bryant v. Finch (2011), the Eleventh Circuit addressed a case quite similar to that of Moton. The outcome would likely have been the same but for one factor. Like the Moton plaintiff, the O’Bryant plaintiff had also filed several grievances against Florida prison staff. He too was told by the defendant officer to stop filing grievances or he would charge him with a prison rule violation. Like the Moton plaintiff, that threat did not deter him from filing another grievance. Hence, like the Moton plaintiff, he was charged with disrespect because of alleged statements he made. A disciplinary panel found him guilty of disrespect. Unlike the Moton plaintiff, however, his administrative appeal failed. He sued, alleging retaliation for exercising his First Amendment rights.
The Eleventh Circuit held in relevant part that his claim failed. The court explained as follows: [A]n inmate cannot state a claim of retaliation for a disciplinary charge involving a prison rule infraction when the inmate was found guilty of the actual behavior underlying that charge after being afforded adequate due process. (p. 1215)
The court’s rationale for this holding addressed the first element of a successful retaliation action—whether “his speech or action was constitutionally protected” ( Moton v. Cowart, 2011, p. 1341). By finding the plaintiff guilty of a disrespectful utterance, explained the O’Bryant panel, what would have been protected speech was no longer protected by the First Amendment. Moreover, according to the O’Bryant panel, the U.S. Supreme Court’s decision in Superintendent v. Hill (1985) precluded the circuit panel from reweighing the evidence supporting that conviction. The Hill opinion, as characterized by the O’Bryant panel, held that due process is satisfied as long as “some evidence” supports the finding of guilt, and, according to the panel, the requisite “some evidence” in the instant case was the defendant’s report alleging the plaintiff’s disrespect ( O’Bryant v. Finch, 2011, p. 1213).
In ruling in favor of the defendant, the Eleventh Circuit reflected a split in the U.S. Courts of Appeals over the import of Superintendent v. Hill (1985). Whereas the O’Bryant court read Hill as having application to inmates’ substantive rights in disciplinary hearings, the Second Circuit in Graham v. Henderson (1996) read Hill as only governing procedural rights, explaining that substantive rights “cannot be obstructed, regardless of the procedural means applied” ( O’Bryant v. Finch, 2011, p. 80). Indeed, the Graham court found the Hill decision inapplicable to retaliation lawsuits because Hill was “only concerned procedural due process … Hill did not involve retaliation for protected conduct, so it lacks a component of substantive due process” (Graham v. Henderson, 2011, p. 80).
Cross-Gender Searches
Cross-gender searches originated to advance equal work opportunities for female correctional officers. Thus, Branham (2002) observed that “many courts have required or permitted greater restrictions on searches and surveillance of female inmates by male correctional officers than those imposed on searches and surveillance of male inmates by female correctional officers” (pp. 259–260). Her observation likely requires revision for the following reasons. First, the National Prison Rape Elimination Commission Report (2009; NPREC Report) called for “strict limits on cross-gender searches” out of concern for the sexual abuse of inmates (pp. 6–7). It recommended barring all cross-gender strip searches and visual body cavity searches except in emergency situations. Second, the American Bar Association’s Standards for the Treatment of Prisoners (2010) are in agreement with the NPREC Report (standard 23-7.9), as are the American Correctional Association’s Standards for Adult Correctional Institutions (2003; section 4–4194). Whereas these model professional standards do not comprise constitutional minima ( Bell v. Wolfish, 1979), they played a significant role in the most important cross-gender search case of 2011, Byrd v. Maricopa County Sheriff’s Department (2011).
Whether to limit cross-gender strip searches to emergency situations sharply divided the U.S. Court of Appeals for the Ninth Circuit sitting en banc in Byrd. A male detainee brought this suit after a female training academy cadet subjected him to what the court described as a strip search. With the plaintiff clothed in his boxer shorts, the search involved, in relevant part, genital manipulation—that is, “applying slight pressure,” “[u]sing the back of her hand” under his shorts, she “moved Byrd’s penis and scrotum” (p. 1137). A majority of the en banc panel determined that the search violated the Fourth Amendment. Importantly, the panel in dicta stated that it would continue to uphold cross-gender patdown searches, presumably because they are less intrusive.
Key to the court’s holding was the test it applied. Rather than the deferential, four-part reasonableness test of Turner v. Safley (1987), the Ninth Circuit used the fact-intensive reasonableness test of Bell v. Wolfish (1979), which, in the main, involves “balancing the need for a particular search against the invasion of personal rights that the search entails…” (p. 555). Because the NPREC Report had characterized cross-gender strip searches as “extraordinarily intrusive,” a majority of the en banc panel concluded that “[t]he scope of the intrusion in this case far exceeds searches we have previously sanctioned…” when, as in the instant case, no emergency existed ( Byrd v. Maricopa County Sheriff’s Department, 2011, p. 1142).
The dissenting opinion in Byrd faulted the majority on two counts. First, in balancing the relevant factors, the majority gave too much weight to the NPREC Report and, conversely, not enough weight to the defendant’s “collective wisdom” (pp. 1148–1149). Second, the dissenters contended that the majority underweighted the need for the search, that is, seizing shanks “in the wake of” several fights in the plaintiff’s housing unit (p. 1149). Consequently, the dissenting opinion would have upheld the search.
Procedural Due Process
In Sandin v. Conner (1995), the U.S. Supreme Court held that conviction and imprisonment does not extinguish all of the liberty interests that arise from Due Process Clause of the Fourteenth Amendment and those created by state law. Regarding the latter source of liberty interests, the Sandin Court held that subjecting inmates to an “atypical and significant hardship … in relation to the ordinary incidents of prison life” triggered procedural safeguards (p. 484). In her dissent, Justice Ginsberg charged that this new test would “leav[e] the consumers of the Court’s work at sea, unable to fathom what would constitute an atypical, significant deprivation” (p. 490). In 2011, lower federal courts continued to face “rough seas” in identifying this deprivation.
Since the Sandin decision, drug offenders have flooded state courts, leading many states to establish drug treatment as either an alternative to incarceration, or, as in Missouri, a direct route to parole (Burke, 2010). For the Missouri plaintiff in Persechini v. Callaway (2011), the stakes were high: Upon admitting the theft of a towel, he was terminated from a long-term treatment program housed in Missouri prison, resulting in the mandatory execution of his 15-year sentence and his transfer to a more restrictive prison. He subsequently contended that the procedures of the termination hearing fell short of those mandated by due process.
After the U.S. District Court dismissed his claims, the U.S. Court of Appeals for the Eight Circuit addressed in relevant part the prerequisite for procedural due process—whether he had been deprived of a state-created liberty interest. In finding that he lacked a state-created liberty interest in continued participation in the treatment program, the circuit panel held, without further explanation, that his termination precluded the prospect of “significant benefits” from the program but did not impose an atypical and significant hardship (p. 807). As to the arguably more important question of whether his transfer to a more restrictive prison deprived him of liberty, the Eighth Circuit characterized the transfer as a “routine classification decision” (p. 807) but failed to explore the extent to which his conditions of confinement had changed as a consequence.
By contrast, in
Toevs v. Reid (2011), the U.S. Court of Appeals for the Tenth Circuit posited a useful, multifactor test for identifying an atypical and significant hardship. After an escape attempt, the plaintiff was removed to administrative segregation and resided there for all of 7 years when he brought his suit. In relevant part, he argued that the duration of his segregation constituted an atypical and significant hardship, the trigger for procedural due process under the Fourteenth Amendment. In response, the court posited four “nondispositive” but telling factors to consider when segregation is the hardship in question: [W]hether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement…; and (4) the placement is indeterminate. (p. 756)
The Tenth Circuit proceeded to balance these factors in light of evidence introduced by the parties. A mixed bag emerged. Because the plaintiff’s earlier escape attempt, his segregation did relate to legitimate security concerns (Factor 1). Also, his segregation did not prolong his prison sentence because he was serving a life sentence (Factor 3). However, his 7 years in segregation surely represented an extreme condition or placement (Factor 2). That left one factor (Factor 4), considered “determinative,” to be considered: whether “the placement is indeterminate” in duration (p. 756), which the panel answered in the affirmative. Thus, the Tenth Circuit concluded that his lengthy period of segregation had deprived him of state-created liberty. However, this finding did not ultimately benefit the plaintiff. The Tenth Circuit proceeded to find that the periodic reviews of his segregation status undertaken by the defendants satisfied procedural due process, leading the court to affirm the judgment of the U.S. District court for the defendants.
Conclusion
In 2011, the U.S. Supreme Court granted certiorari in Florence v. Board of Chosen Freeholders of the County of Burlington (2011), a case that should profoundly affect the estimated 13 million people admitted to U.S. jails in a 12-month period (Minton, 2011). The Court’s decision is expected in 2012. It promises to end a division in the U.S. Courts of Appeals regarding the reasonableness of suspicionless strip searches of every person arrested and booked, including for minor offenses. Strip searches represent “an invasion of personal rights of the first magnitude” ( Archuleta v. Wagner, 2008, p. 1283). When jailers stripped searched two retired school teachers in Iowa after their arrest in an antiwar demonstration, the jury awarded $500,000 to one of the retirees and $250,000 to the other ( McCabe v. Mais, 2008). Although the trial judge reduced their size, the jury’s awards may reflect community sentiment toward suspicionless searches.
Footnotes
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
The author received no financial support for the research, authorship, and/or publication of this article.