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Rudovsky Prisoners Civil Rights Litigation Consitutional Law Update 2011

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228 PLI/Crim 25
Practising Law Institute
Litigation and Administrative Practice Course Handbook Series
Criminal Law and Urban Problems
PLI Order No. 29281
August 5, 2011
Prison Law 2011
PRISONER'S CIVIL RIGHTS LITIGATION - CONSTITUTIONAL LAW UPDATE
David Rudovsky
Kairys Rudovsky Messing & Feinberg LLP

behavior in the future; are all denials of services and programs
legitimate on this theory?).

If you find this article helpful, you can learn more about the
subject by going to www.pli.edu to view the on demand
program or segment for which it was written.

Overton v. Bazzetta, 123 S.Ct. 2162 (2003) (Court upholds
regulations limiting visitation at state prison. State permitted
visitations by minor children only where they were the
children or grandchildren of the prisoner, and further required
children to be accompanied by a family member. Former
prisoners were denied visitations rights. State also suspended
most visits for prisoners who violated substance abuse rules;
Court cites “alternatives,” e.g., letters to inmates/telephones).
See also, Dunn v. Castro, 621 F.3d 1196 (9th Cir. 2010).

I. FIRST AMENDMENT RIGHTS
A. Freedom of Speech and Advocacy
1. Supreme Court Doctrine: Procunier v. Martinez, 416 U.S.
396 (1974); Turner v. Safley, 482 U.S. 78 (1987); Thornburgh
v. Abbot, 490 U.S. 401 (1989)
Turner factors address issue of whether regulations are
reasonably related to penological objectives. Four part test:
1. Is there a rational relationship between regulation and
governmental interest.
2. Does prisoner have alternative means to exercise the right
3. Impact of exercise of right on other inmates or
correctional officers
4. Is regulation an exaggerated response: whether
alternatives exist that could accommodate the rights asserted
without risk to prison security.
2. Recent Cases:
Beard v. Banks, 126 S.Ct. 2572 (2006) (rule prohibiting
access to secular newspapers, magazines, and family
photographs to certain special housing inmates (the so-called
“worst of the worst”) to create an incentive towards better
behavior does not violate First Amendment; the state's
rehabilitation and security concerns are supported by the
affidavits of prison officials as to scope and purpose of the
program; prison must show more than a “logical” relationship
between goals and the rules; must show that the relationships
is “reasonable; dissent questions whether any and all such
rules are now valid simply because they might modify

Hammer v. Aschcroft, 570 F.3d 798 (7th Cir. 2009)(en
banc) (BOP policy prohibiting face-to-face interviews of death
row inmates with the media does not violate First Amendment
and Equal Protection rights even if access to other inmates is
allowed; security justifications are sufficient (e.g., to combat
problem of jailhouse celebrities). Majority rejects argument
that rule was changed with improper motive (a pretext to
suppress views of death row inmates) as the rule on its face
does not refer to content of speech, even though the policy
was adopted after criticism of BOP for allowing Timothy
McVeigh interview on television). See also, Young v. Beard,
No. 07-1670 (3d Cir. 2008)(DOC prohibition on prison bands
except for religious bands does not offend First Amendment,
even though DOC took this action in response to public
criticism of bands playing on TV; court says there was
sufficient basis for DOC to find a security issue based on lack
of supervision of the bands); Brittain v. Beard, 974 A.2d 479
(Pa. 2009) (sustaining regulation prohibiting receipt or
possession of pornography, including mere nudity in settings
with educational or artistic value; BOP allows nude pictures
only where they have “significant literary or educational
value.” Burden on inmates to show that BOP policy is not
related to security).
Singer v. Ramisch, F.3d (7th Cir. 2010)(court sustains
prison prohibition on playing or having materials related to
“Dungeons and Dragons” on ground that this game could lead

to “fantasy role playing,” “competitive and hostile behaviors,”
and gambling; refuses discovery even in the face of numerous
affidavits in support of prisoner that the game is not
threatening to institutional security and does not promote gang
activity; prison gang “ “expert” stated that games can mimic
gang organizations, with “Dungeon Master” as leader, though
there was no evidence of such gang activity in the past).
Fontroy v. Beard, 559 F.3d 173 (3d Cir. 2009)(sustaining
BOP policy requiring an attorney id number to be placed on
incoming mail to preserve right to have the mail treated in
confidential manner; fact that some attorneys did not use this
process not sufficient grounds for striking the regulation)
Guajardo-Palma v. Martinson, 622 F.3d 801 (7th Cir. 2010)
(opening legal mail is unconstitutional only if it provides
prison officials with litigation strategy).
Al-Amin v. Smith, 511 F.3d 1317 (7th Cir. 2008)(the right
to have legal mail opened in presence of inmate is sufficiently
well-established as to defeat claim of qualified immunity;
Turner factors do not undermine earlier cases granting this
right; relief granted on free speech grounds but rejected on
access to courts without a showing of actual injury). See also
*29 Merriweather v. Zamora, 569 F.3d 307 (6th Cir.
2009)(denying qualified immunity where officers opened
“legal mail” outside presence of inmate).
Jones v. Brown, 461 F.3d 353 (3d Cir. 2006)(prisoners have
First Amendment right to be present when incoming legal mail
is opened; prison's justification of prevention of anthrax
contamination is rejected as too remote as it was more than 3
years since anthrax was sent by mail and no evidence that it
was sent to prisons; court puts emphasis on confidentiality
concerns).
Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005)
(Washington State regulations on bulk mail deliveries that
prohibit inmates from receiving bulk and third and fourth class
mail, including magazines, has no rational relationship to
penological interests; claim that inmates would strong-arm
others to gain gifts and creation of fire hazards are too
speculative; qualified immunity denied as to claim of
discriminatory enforcement). See also, Sorrells v. McKee, 287
F.3d 1213 (9th Cir. 2002) (same ruling with respect to rule
prohibiting gifts of books or magazines to inmates).
Johnson v. State of California, 543 U.S. 499
(2005)(rejecting prison policy of considering race in cell
assignments even for limited periods).
B. Retaliation Claims
Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009)(recognizing
retaliation claim where inmate claimed harassment by
correctional officers and unjustified disciplinary charges after
he signed affidavit in support of fellow prisoner in separate
litigation, even if not a matter of “public concern”). See also,
Dobbey v. Ill. Dept Corrections, 574 F.3d 443 (7th Cir.
2009)(while hanging of noose by white guards in front of
black inmates did not amount to cruel and unusual
punishment, there was a claim for retaliation where inmate
was punished after filing a grievance on the incident).

Bibbs v. Early, 541 F.3d 267 (5th Cir. 2008)(sustaining
retaliation claim where after inmate filed grievances against
COs, the temperature in his cell was reduced to below freezing
for several nights; sufficient to deter inmate of ordinary
firmness from exercising constitutional rights; injuries are not
de minimis).
Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) (threat of
retaliation is sufficient if made in context where inmate would
likely perceive punishment if he did not follow officer's
directives)
Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007) (sustaining
retaliation claim on motion to dismiss where inmate alleged
that *30 disciplinary write-up was the result of his prior
grievance against another CO; court emphatically rejects
argument that since he brought this civil suit, he cannot claim
retaliation since he was not deterred from doing so; court also
rejects argument, at least at MTD stage, that hearing
committee's decision imposing discipline precludes suit on
theory that CO issued a valid misconduct).
Espinal v. Goord, 554 F.3d 216 (2d Cir. 2009)(six month
time separation from prisoner's protected actions in filing
lawsuit and alleged act of retaliation sufficiently close in time
to sustain the retaliation claim)
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001)(court sets
standards for determining causal link between exercise of
constitutional right and alleged retaliatory action of prison
officials and adopts a Mt. Healthy and Turner analysis. Here,
plaintiff showed exercise of right-refusal to participate in AA
program that required acceptance of God; retaliation by
transfer, loss of job, adverse parole recommendation; and
causal link under Mt. Healthy by showing that the protected
conduct was a “substantial or motivating factor.” Prison can
defend on ground that the action would have been taken
regardless of the protected conduct). Compare, Yount v. PA
DOC, 966 A.2d 1115 (Pa. 2009) (rejecting retaliation claim
and putting burden on inmate to show violation of Turner
factors).
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003)(allegation
that false disciplinary charges were filed to retaliate for the
filing of complaints against the officer states a claim under
First Amendment; key issue is motivation of COs).
Rhodes v. Robinson, 408 F.3d 559 (9th Cir.
2005)(sustaining retaliation claim and rejecting “Catch-22”
argument that fact that prisoner filed the complaint
demonstrated that he was not “chilled” by the conduct of the
prison officials). See also Gill v. Pidlypchak, 389 F.3d 379 (2d
Cir. 2004).
Crawford-El v. Britton, 118 S. Ct. 1554 (1998)(no
heightened pleading requirement for showing intent or
retaliation, even in context of qualified immunity defense.
Court can require specific proof of intent in pleadings or at
summary judgment stage).

C. Access to the Courts
Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) (prison cannot
force inmate to choose between right to out-of-call exercise
and access to law library).
Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc)
(standards for appointment of counsel in prisoner civil rights
cases)
D. Freedom of Religion
1. General Standards:
O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)(courts
should defer to reasonable regulations in the area of religious
freedoms, but the deference is not absolute and prison officials
must demonstrate a security or other penological need for the
restriction; Turner factors are applicable in all First
Amendment cases). The First Amendment test is not toothless.
See, Boles v. Neet, 486 F.3d 1177 (10th Cir. 2007)(sustaining
claim for damages and rejected qualified immunity where
warden denied Jewish inmate right to wear religious garments
on trip to hospital; rote assertion of security interests not
sufficient).
Following City of Boerne v. Flores, 117 S.Ct. 2157 (1997),
where Court ruled that the Religious Freedom Restoration Act
is an invalid exercise of Congressional power under
Fourteenth Amendment with respect to State facilities,
Congress passed the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”). The law provides that a
prison rule or regulation that imposes a “substantial burden on
. . . religious exercise” must be “in furtherance of a compelling
governmental interest” and “be the least restrictive means of
furthering that . . . interest.”
The constitutionality of this law has been sustained in Cutter
v. Wilkinson, 125 S.Ct. 2113 (2005). See also, Madison v.
Virginia, 474 F.3d 118 (4th Cir. 2006)(sustaining the law
under the Spending Clause, but finding no override of waiver
of 11A immunity to damage actions against the state);
Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009)(no claim
against officials in individual capacities); Nelson v. Miller,
570 F.3d 868 (7th Cir. 2009) (same); Cardinal v. Metrish, 564
F.3d 794 (6thCir. 2009) (same); Smith v. Allen, 502 F.3d 1255
(11th Cir. 2007) (permitting damage suits against officials in
their official, but not individual capacities, but under PLRA
limiting damages to nominal awards); Webman v. Federal
Bureau of Prisons, 441 F.3d 1022 (D.C. Cir. 2006)(no waiver
of state immunity).
The “compelling governmental interest” and “least
restrictive means” tests will make certain claims viable that
would not be actionable under the First Amendment.
Crawford v. Clarke, 578 F.3d 39 (1st Cir. 2009) (sustaining
injunction requiring prison to provide closed-circuit
broadcasting of *32 religious services to inmates in SMU who
otherwise would not have access to these services)
Smith v. Ozmint, 578 F.3d 246 (4th Cir. 2009)(prison policy
permitting forced shaving of hair determined to be too long

violated RLUIPA for inmate whose religious beliefs
prohibited cutting of his hair; prison failed to explain why the
forced shaving was necessary, even assuming a strong
governmental interest in short hair of all inmates, as plaintiff
was already in an SMU and there was no showing that forced
shaving was the least restrictive alternative). See also
Wardsoldier v. Woodford, 418 F.3d 989 (9th Cir.
2005)(challenge to regulation regarding hair length under
RLUIPA; substantial burden satisfied by punishment short of
forced cutting of hair; security concerns are substantial, but
not in a minimum security facility where there are less
restrictive alternatives; court cites to policies in other prison
systems and for women); Fegans v. Norris, 537 F.3d 897 (8th
Cir. 2008)(compelling governmental interest in hair length and
beard regulations); Longoria v. Dretke, 507 F.3d 898 (5th Cir.
2007)(same).
Greene v. Solano County Jail, 513 F.3d 982 (9th Cir.
2008)(denial of group religious services to inmates in
maximum security states violation of RLUIPA and mere
assertion by jail officials that such a practice would cause
security concerns not sufficient for summary judgment; least
restrictive means test requires careful scrutiny of all facts and
here there are contested facts on space availability). See also,
Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006)(applying
RLUIPA to various limitations on religious exercise rights
including joint Shiite and Sunni worship, chaplains for
Muslims and services for inmates in RHU); Kay v. Bemis, 500
F.3d 1214 (10th Cir. 2007)(remanding constitutional and
RLUIPA claims for denial of religious materials, including
tarot cards).
Mayfield v. Texas Dept. Of Criminal Justice, 529 F.3d 599
(5th Cir. 2008) (requirements of security trained, religious
volunteer for services not a sufficient basis to bar services
where because of limited number of “Odinist” clergy made
this impossible; issue of whether inmates were entitled to
possession of “runestones” for the services requires careful
balancing of interests); compare, Fowler v. Crawford, 534
F.3d 931 (8th Cir. 2008) (prison offered adequate alternatives
to a “sweat lodge”).
Washington v. Klem, 497 F.3d 272 (3d Cir.
2007)(“substantial burden” element of RLUIPA requires
inmate to show either that he is forced to choose between
precepts of his religion and forfeiting benefits otherwise
available to other inmates or that prison has put *33
substantial pressure on inmate to modify his beliefs; regulation
limiting inmate to 10 books in cell substantially burdens his
religious beliefs that require him to read 28 books a week and
government has not shown compelling interest or least
restrictive alternative in the regulation).
Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006)(sustaining
claim under RLUIPA of inmate who was denied right to
fasting meals and to attend Ramadan services for alleged
breaking of fast; court goes further and finds that policy that
not only forfeits fasting practices for eating during the day but
also forfeits Ramadan services is in violation of the statute and
perhaps of the First Amendment).

Spratt v. Rhode Island Dept of Corrections, 482 F.3d 33 (1st
Cir. 2007) (ban on inmates acting as preachers in prison must
be supported by some showing of dangers of such activity; no
such showing made on record where plaintiff had been
preacher for 7 years before new regulation took effect and
where state argued only that it is dangerous to allow inmates
to become “leaders”).

Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.
2005)(atheism study group cannot be banned).
Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)(deprivation of
Koran; denial of prayer sessions; no qualified immunity based
on “terrorism exception”).

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir.
2008)(sustaining regulation requiring inmate to provide DNA
sample against claim that it interfered with religious beliefs;
also, government had compelling interest)

I. Supreme Court Doctrine: Estelle v. Gamble, 429 U.S. 97
(1976); Wilson v. Seiter, 111 S.Ct. 2321 (1991); Helling v.
McKinney, 113 S.Ct. 2475 5 (1993)

II. RIGHT TO MEDICAL CARE

I. Application of Doctrine:
Cases involving diets: Abdulhaseeb v. Calbone, 600 F.3d
1301 (6th Cir. 2010)(right to halal diet under RLUIPA); Koger
v. Bryan, 523 F.3d 789 (7th Cir. 2008)(request for non-meat
diet was a “religious exercise” under the Act; “clergy
verification” requirement is unlawful where it burdens
minority religions without sufficient clergy members); Nelson
v. Miller, 570 F.3d 868 (same); Beerheide v. Suthers, 286 F.3d
1179 (10th Cir. 2002)(applying Turner and striking down
policy of not providing kosher meals; rejecting claims of
budgetary impact and adverse impact on population); DeHart
v. Horn, 390 F.3d 262 (3d Cir. 2004)(Court may not inquire
into whether religious beliefs are central to the religion (here
whether Buddhists must avoid meat and dairy items); this diet
is complex and more difficult than kosher diets and requires
individualized preparations; other religious needs were
accommodated); Shakur v. Schriro, 514 F.3d 878 (9th Cir.
2008) (Islamic Halal diet request which could be satisfied by
kosher meats is subject to RLUIPA and given particular
medical needs of inmate the Act may require providing kosher
diet even though consumption of Halal meat is not a central
tenet of his religion); Patel v. U.S. BOP, 515 F.3d 807 (8th
Cir. 2008)(no requirement to serve Halal diet where vegetarian
alternatives are *34 provided); Baranowski v. Hart, 486 F.3d
112 (5th Cir. 2007) (rejecting First Amendment and RLUIPA
claims for kosher diet on grounds that there were insufficient
funds for these and other religiously based diets)
Williams v. Bitner, 455 F.3d 186 (3d Cir. 2006)(First
Amendment violation for dismissing prison worker from
kitchen job for religiously based refusal to handle pork).
Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003)(limitations
on access to religious materials to Nation of Islam inmates
confined to special housing areas were unconstitutional under
Turner factors, but officials had qualified immunity from
damages claim).
Flores v. Congregation Pidyon Shevuyim, 603 F.3d 1118
(9th Cir. 2010) (contract chaplain subject to suit under
RLUIPA).
Americans United for Separation v. Prison Fellowship, 509
F.3d 406 (8th Cir. 2007)(state funding of a religiously based
residential based inmate rehabilitation program is
unconstitutional under Establishment Clause; Biblical
principles are the main agenda)
Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007)(parole
department may not compel parolee to attend a religious based
drug treatment program).

Dominiguez v. CMS, 555 F.3d 543 (6th Cir. 2009)(serious
medical condition established by heat exhaustion, including
loss of consciousness, dizziness, and dehydration; nurse knew
or should have known of need to treat and there was no burden
on plaintiff to show that lack of treatment would lead, as here,
to his becoming a quadripalegic). See also, Vaughn v. Gray,
557 F.3d 904 (8th Cir. 2009)(mentally ill inmate who medical
personnel had reason to believe was ingesting shampoo
causing him to vomit and later died from heart attack, was
denied right to treatment by deliberate *35 indifference; no
qualified immunity); Phillips v. Roane Cy., 534 F.3d 531 (6th
Cir. 2008)(life threatening conditions existed over a 2 week
period).
Harper v. Lawrence Cy., 592 F.3d 1227 (11th Cir. 2010)
(inmate's physical condition and complaints of other inmates
sufficient to establish notice).
Gayton v. McCoy, F.3d (7th Cir. January 28, 2010)(failure
to provide inmate with serious heart condition and elevated
blood pressure with medication or to provide a timely
examination establishes deliberate indifference; chest pain and
vomiting sufficient to put medical nurse on notice of need for
care; court addresses scope of expert testimony)
McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009)(while
prison official can rely on advice of medical personnel, there
is no reasonable reliance where officials has independent
information that would require medical treatment or where
official has reason to know that the medical diagnosis was
incomplete or inaccurate).
Goebert v. Lee County, 510 F.3d 1312 (11th Cir. 2007)
(pregnant inmate who had leaked amniotic fluid for several
days stated claim for denial of medical care where fetus was
stillborn; record showed that prison official did not believe her
complaint; no qualified immunity)
Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008)(prisoner
had a serious medical need after being subjected to pepper
spray and rights were violated by keeping him in small
enclosed area and not providing proper shower)
Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008)(prison doctor
who had policy of not providing prescription level pain killers
and who would not make a referral to a specialist when he
could not determine source of pain; inmate had serious
medical condition of testicular cysts and growths that caused
excruciating pain).

Flanory v. Bonn, 604 F.3d 249 (6th Cir. 2010)(denial of
toothpaste for 1 year); Berry v. Prettyman, 604 F.3d 435 (7th
Cir. 2010) (lack of effective services for serious dental pain is
actionable); McGowan v. Hulick, 612 F.3d 636 (7th cir.
2010)(delay in dental surgery was actionable; claim of delay
caused by economic factors).
Davis v. Carter, 452 F.3d 686 (7th Cir. 2006)(denial of
methadone to incoming inmate who was on methadone
maintenance and suffered painful withdrawal symptoms states
claim for denial of medical care; failure of county to have in
place a system for such *36 care establishes municipal
liability); Foelker v. Outagamie Cy., 394 F.3d 510 (7th Cir.
2005) (need for methadone to continue maintenance program
was serious medical need and signs of withdrawal sufficient to
show knowledge of medical personnel).
Williams v. Leifer, 491 F.3d 710 (7th Cir. 2007) (delay in
medical care that prolongs serious pain is actionable and can
be proven without expert testimony if medical records
demonstrate that treatment eventually provided alleviated the
pain and the medical condition).
Gordon ex rel. Gordon v. Frank, 454 F.3d 858 (8th Cir.
2006) (newly admitted inmate who complains of congestive
heart failure and shows symptoms of this disease and who
repeatedly requested care before he died of a heart attack,
stated claim under Eighth Amendment)
Clark-Murphy v. Foreback, 439 F.3d 280 (6th Cir. 2006)
(denial of care to inmate with severe psychiatric problems;
court discusses how to determine liability of a large number of
defendant officers who had contact with or were responsible
for inmate's safety)
Pabon v. Wright, 459 F.3d 241 (2d Cir. 2006)(discussing
right to refuse treatment and to informed consent based on
relevant medical information; inmate had hepatitis C and was
subjected to liver biopsy that led to infection; he was entitled
to information regarding side effects and dangers of
procedure)
Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004) (sustaining
claims for lack of treatment for serious back pain and threat of
permanent injury).
Natale v. Camden County Correctional Facility, 318 F.3d
575 (3d Cir. 2003)(failure to provide insulin to person with
diabetes was deliberate indifference to serious medical
condition and private medical provider could be liable for
failing to have policies and practices to ensure that this
medication is provided on a timely basis).
Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008)(prohibition
of transportation of pregnant inmates to off-site for elective
abortion is unconstitutional; under Turner factors, no showing
of serious security problems and rejecting “heckler's veto”
where there were anti-abortion demonstrations at some clinics)
Nelson v. CMS, 583 F.3d 522 (8th Cir. 2009)(en
banc)(policy of shackling women prisoners during labor is
violation of Eighth Amendment as it interferes with necessary

medical care and is *37 unduly painful; risk of flight is almost
non-existent; court denies qualified immunity as prior case
law was sufficient to put officials on notice and prison
regulations required a balancing of medical and security
concerns).
Shepherd v. Dallas Cy., 591 F.3d 445 (5th Cir.
2009)(systematic failure to diagnose serious ailments or to
provide care); Langford v. Norris, 614 F.3d 445 (8th Cir.
2010)(complicated grievance procedure denied access to care).
Thomas v. Cook Cy. Sheriff's Department, 604 F.3d 293
(7th Cir. 2010) (sustaining $4 million award against
individuals and City for failure to properly tret inmate who
dies of meningitis; officers were on notice of his need for care
by direct observation and by complaints of other inmates; city
liability based on evidence that there was widespread practice
of not collecting medical request forms or to reviewing those
collected; city can be liable even if contractor's personnel were
not individually responsible for the death).
Conn v. City of Reno, 591 F.3d 1081 (9th Cir.
2010)(individual officers could be held liable for failing to
provide information to jailers as to the serious suicide risk of
decedent; attempt to kill oneself in patrol car sufficient to put
officers on notice; causation is issue for jury; City can be held
liable for failure to train on suicide prevention and
identification of suicide risks; that suicides in custody are
predictable as a statistical matter; and lack of written policies
requiring reporting of suicide attempts while in police custody
could be proven by post incident evidence that officers were
not disciplined for this event). See also Clouthier v. Cy. of
Contra Costa, 591 F.3d 1232 (9th Cir. 2010).
Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir.
2006) (county could be held liable for lack of care for inmate
suffering from congestive heart failure where VA doctor set
forth what care was needed and sentencing court ordered an
examination and report upon admission to the jail; fact that
medical professionals were in charge of care did not relieve
the City of duty to properly train and supervise the staff; city
must have adequate policies and training as to medical care for
acutely ill inmates)
Lawson v. Dallas County, 286 F.3d 257 ((5th Cir. 2002)
(sustaining award against county on Monell theory for lack of
treatment for parapalegics; fact that this was first injury does
not defeat claim; in this case the plaintiff had developed
severe decubitus ulcers on his lower back, but health and
correctional officials *38 ignored the condition and failed to
provide even basic care; award of $250,000 sustained)
Blackmore v. Kalamazoo Cy., 390 F.3d 890 (6th Cir. 2004)
(symptoms of appendicitis should have been obvious, so no
need for expert testimony on effect of delay in treatment).
Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005)(medical
protocol rejecting certain medical treatment for substance
abuse patients does not automatically protect defendants from
liability where they made no individualized assessment of
dangers of medication; jury question on whether there was

deliberate indifference to Hepatitis C inmate where medication
refused on basis of protocol).
Agster v. Maricopa Cy., 422 F.3d 836 (9th Cir. 2005)(no
federal privilege of peer review mortality reviews and studies
made by defendant health care provider)
Rodriguez v. PAS, 577 F.3d 816 (7th Cir. 2009)(discussing
standards for determining whether private ambulance service
and private hospital which refused to treat plaintiff acted under
color of state law).
Thomas v. Bryant, 614 F.3d 1288 (11th Cir.
2010)(deliberate indifference standard and not malice governs
claim of improper use of chemical agent on mentally ill
inmates not capable of responding to prison directives or
regulations).
United States v. Georgia, 126 S.Ct. 877 (2006)(Title II of
ADA validly abrogates state sovereign immunity for actual
violations of 14th Amendment rights). See also, Kiman v.
New Hampshire Dept. of Corrections, 451 F.3d 274 (1st Cir.
2006)(discussing medical needs recognized by ADA and
suggesting standards of review of statutory rights that are
similar to RLUIPA); Hale v. King, 624 F.3d 178 (5th Cir.
2010)(no state liability for ADA claims that do not state
separate 14th Amendment violation).
III. DUE PROCESS AND PUNISHMENT IN PRISONS
A. Supreme Court Doctrine:
Sandin v. Conner, 515 U.S. 472 (1995). Court held there
was no right to due process hearing unless the change in
conditions “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Real issue is what is the proper baseline for determining
whether segregation imposes such hardships. Plaintiff had
been in RHU for 30 days.
Wilkinson v. Austin, 125 S.Ct. 2384 (2005)(super max
prisons impose extreme isolation on most violent and
disruptive prisoners and, therefore, inmates have a liberty
interest in avoiding placement; state provides sufficient due
process by requiring notice of proposed placement, “fair
opportunity for rebuttal,” and a short statement of reasons,
after hearing).
B. Lower Court Decisions:
Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009)(55 days in
administrative segregation may require due process safeguards
depending on harshness of the conditions)
Hardin-Bey v. Rutter, 524 F.3d 789 (6th Cir.
2008)(indefinite placement in administrative segregation
presents due process issue)
Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007)(pre-trial
inmates alleged valid due process claims based on being
housed in SHU areas without a hearing or adequate reasons;
fact that there may have been a legitimate classification
decision does not bar suit and some discovery is necessary on
this issue).

Colon v. Howard, 215 F.3d 227 (2d Cir. 2000)(305 days in
SHU was atypical and severe hardship requiring procedural
due process; discussion of bright line rule of 180 days; and
advice to district courts to develop record on impact of
segregation for periods of 100-300 days); Kalwasinski v.
Morse, 201 F.3d 103 (2d Cir. 2000)(same); Scott v. Coughlin,
78 F.Supp.2d 299 (S.D.N.Y. 2000)(applying test).
Tellier v. Fields, 280 F.3d 69 (2d Cir. 2002)(plaintiff put in
RHU as an “ “escape risk” for 522 days; court rules that
federal regulation requiring a “ “detention order” with reasons
stated for restrictive housing placement creates a liberty
interest regarding duration of confinement and that this
prolonged confinement is “atypical and [a] significant
hardship” under Sandin. Further, law was clearly established
on his point even though court had not yet declared regulation
to create a liberty interest and, therefore, no qualified
immunity defense to damages claim). See also, Iqbal v. Hasty,
490 F.3d 143 (2d Cir. 2007).
Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004)(while
duration of segregation--77 days-was not atypical, the
conditions of confinement were so substandard as to make the
detention atypical and thus subject to due process standards);
Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003)(same;
placing of disabled person in solitary without ability to take
showers, etc. was atypical).
Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000)(eight year
confinement to RHU requires due process safeguards, but
periodic reviews satisfied this requirement).
Farid v. Ellen, 593 F.3d 233 (2d Cir. 2010)(vagueness of
prison regulations with respect to possession of written
materials violated due process rights).
Burns v. PA DOC, 544 F.3d 279 (3d Cir. 2008)(inmate had
property interest protected by due process where prison
disciplinary proceeding resulted in an assessment on his
inmate account for expenses caused by his assault)
Howard v. U.S. Bureau of Prisons, 487 F.3d 808 (10th Cir.
2007)(inmate entitled to production of video of incident on
claim that denial of such exculpatory evidence would deny
due process of law).
Luna v. Pico, 356 F.3d 481 (2d Cir. 2004)(“some evidence”
rule for disciplinary sanctions is not met where prison simply
provided hearsay allegations of assault without any
consideration of credibility of “ “complainant;” however,
qualified immunity precludes damages claim). See also,
Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005)(no evidence
at hearing in support of disciplinary charges); Sira v. Morton,
380 F.3d 57 (2d Cir. 2004)(discussing notice and disclosure of
evidence requirements).
C. Procedural Issues
Muhammed v. Close, 124 S.Ct. 1303 (2004)(where prisoner
sues for damages for allegedly false misconduct charge, and
thereby seeks to challenge conditions of confinement as
opposed to fact or duration of confinement, Heck v.
Humphrey, 512 U.S. 477 and Edwards v. Balisok, 520 U.S.
641 (1997) favorable termination rule is not applicable as a
predicate to suit). Wilkinson v. Dotson, 125 S. Ct. 1242
(2005)(challenge to parole procedures not barred by Heck
since outcome of new hearing is unpredictable; court may
grant injunctive and declaratory relief).

Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002)(court
permits challenge to placement in restricted activities program
as part of sex therapy program permitted to proceed under
§1983 where inmate's claims if successful would not lead to
earlier release, but rather attacks a condition of confinement.
Further, the fact that the inmate seeks access to programs that
would enhance his chances for parole does not turn this
challenge into one that sounds in habeas. Court also
determines that remand is necessary to assess due process and
other claims). See also, Torres v. Flauver, 292 F.3d 141 (3d
Cir. 2002) (same).
IV. PRIVACY RIGHTS IN PRISON
A. General Principles
United States v. Kincade, 379 F.3d 813 (9th Cir. 2004)(en
banc) (sustaining statute requiring inmates convicted of certain
crimes and on parole to provide DNA samples for future
identification in criminal investigations); U.S. v. Sczubelek,
402 F.3d 175 (3d Cir. 2005)(same); Green v. Burge, 354 F.3d
675 (7th Cir. 2004)(same).
Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004)(sheriff's
use of “webcams” to stream live images of pre-trial detainees
on the Internet deprived inmates of privacy rights under 14th
Amendment and amounted to punishment not authorized by
law; court finds invasion of privacy to be serious and
gratuitous).
Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002)(en
banc)(right to procreation does not survive incarceration and
prisoner has no substantive due process right to have his wife
artificially inseminated with his sperm. Under Turner, the
right is inconsistent with incarceration. Dissent would find no
state interest in interfering with this right)
Willis v. Artuz, 301 F.3d 65 (2d Cir. 2002)(convicted
inmate has no privacy interest to be free from search of cell
conducted at behest of police, even where no institutional
interests are served by the search).
Powell
v.
Schriver,
175
F.3d
107
(2d
Cir.1999)(transsexual's right to keep condition private and
confidential; inmate also states claim under Farmer v. Brennan
for deliberate indifference where he was subjected to attacks
because of this disclosure)
Neumeyer v. Beard, 421 F.3d 210 (3d Cir. 2005)(sustaining
suspicionless searches of cars of visitors to state prison).

Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007)(strip
search of inmate must be based on a proper institutional safety
or security need)
Sanchez v. Pereiva-Custillo, 590 F.3d 31 (1st Cir.
2009)(invasive abdominal surgery to determine if inmate
hiding cell phone violated clearly established rights; no
qualified immunity).
V. FIFTH AMENDMENT PROTECTIONS AGAINST
SELF-INCRIMINATION
McKune v. Lile, 122 S.Ct. 2017 (2002)(finding
constitutional over Fifth Amendment challenge prison policy
of reducing privileges and changes in classification for sex
offenders who do not disclose past sexual misconduct
including case on which they were convicted where state does
not guarantee confidentiality of these statements.
Consequences to inmate were not ““atypical.” Justice
O'Connor, concurring, rejected the test of plurality and
sustained the program only because inmate would not likely
be “compelled” by the consequences to provide the
information).
Searcy v. Simmons, 299 F.3d 1220 (10th Cir.
2002)(extending Lile to regulation that forfeited good time
credits for failure to participate in program and provide
incriminating information; prisoner was faced only with
““difficult choice”).
Gwinn v. Awmiller, 354 F.3d 1211 (10th Cir.
2004)(prisoner not convicted of sex offense can be classified
as sex offender and can be made to forfeit good time for
refusal to engage in sex offender program; court does not
decide whether refusal to parole inmate in these circumstances
would be “compulsion” under Fifth Amendment).
Wirsching v. Colorado, 360 F.3d 1191 (10th Cir.
2004)(denial of visitation with children of inmate is
permissible for failure to participate in sex therapy program).
Ainsworth v. Stanley, 317 F.3d 1 (1st Cir. 2002)(even
where refusal to participate in sex offender programs (with
required admissions) would reduce chances for parole, no
Fifth Amendment protections).
United States v. Antelope, 395 F.3d 1128 (9th Cir.
2005)(requirement of sex offender program for probationer to
discuss full sexual history, without provision of immunity,
violates Fifth Amendment; threat of imprisonment is sufficient
compulsion). See also, *43 United States v. Saechao, 418 F.3d
1073 (9th Cir. 2005)(requirement that probationer reveal
possession of any weapons violates Fifth Amendment).

B. Strip Searches:
Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d
Cir. 2010) (sustaining blanket strip search policy).
Bull v. City of San Francisco, 595 F.3d 964 (9th Cir.
2010)(en banc) (sustaining a blanket strip search policy)
Allison v. GEO Group, Inc., 611 F.Supp. 2d 433 (E.D. Pa.
2009)(DuBois, J.)
Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008)(en
banc)(no need for individualized suspicion in jail strip
searches).
Tardiff v. Knox Cy., 365 F.3d 1 (1st Cir. 2004)(sustaining
class certification of damages class for unconstitutional strip
searches at jails and prisons).

VI. GENERAL CONDITIONS OF CONFINEMENT AND
THE EIGHTH AMENDMENT
A. “Conditions Litigation”
Bowers v. City of Philadelphia, 2007 WL 2818501 (January
25, 2007, E.D.Pa.)
Coleman v. Schwarzenegger, F.Supp. 2d (N.D. Cal. 2009)
(3-Judge Court) (requiring reduction in population in
California state prison system due to harm caused by lack of
medical care); cert granted, 2010. See also Plato v.
Schwarzenegger, 603 F.3d 1088 (9th Cir. 2010)(appointing
receiver to oversee medical system); Graves v. Arpaio, 623
F.3d 1043 (9th Cir. 2010).

Hubbard v. Taylor, 538 F.3d 229 (3d Cir. 2008)(pre-trial
facility that housed 3 to cell, with mattresses on floor must be
judged by Fourteenth Amendment, not Eighth Amendment
standards; triple celling alone not sufficient to show
“punishment”) See also Hart v. Sheahan, 396 F.3d 887 (7th
Cir. 2005)
Pierce v. County of Orange, 519 F.3d 985, as amended, 526
F.3d 1190 (9th Cir. 2008)(finding ADA violations and
constitutional violations (denial of adequate exercise time) in
proceeding to determine need for continued injunctive relief
under PLRA).
Smith v. Peters, F.3d (7th Cir. 2011)(severe cold conditions
violated Eighth Amendment).
Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010)(denial of
exercise for 14 months cannot be justified by refusal to sign
form no to engage in violent behavior).
Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009)(denial of 16
meals over a 23 day period can state claim for cruel and
unusual punishment)
Sain v. Wood, 512 F.3d 886 (7th Cir. 2008)(discussing
cases finding 8A violations on conditions)
Vinning-El v. Long, 482 F.3d 923 (7th Cir. 2007)(inhumane
conditions in punitive segregation, with non-working sink and
toilet; water on floor; blood on walls provides strong
circumstantial evidence that defendants who worked on this
unit knew of the conditions).
Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006)(court
compares claims of conditions of confinement at Supermax
with a “stay at a *44 Soviet gulag in the 1930's'D' and finds
triable issue under 8th Amendment)
Spencer v. Bouchard, 449 F.3d 721 (9th Cir. 2006)(long
term exposure to cold and wet conditions violate rights of pretrial detainee).
Lopez v. City of Chicago, 464 F.3d 711 (7th Cir.
2006)(depriving suspect of food and drink shackling him
during periods of interrogation for several days violates Fourth
Amendment; also state violation of Gerstein v. Pugh
requirement of arraignment within reasonable period of time).

Despain v. Uphoff, 264 F.3d 965 (10th Cir.
2001)(unsanitary conditions caused by flood of cellblock;
standard does not change merely because flooding occurred
during prison riot; indiscriminate use of pepper spray stated
8th Amendment violation; no qualified immunity as these
rights were clearly established).

Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006)(discussing
constitutional limitations on conditions of confinement for
persons civilly committed as sexually violent predators).

Lawrence v. Bowersox, 297 F.3d 727 (8th Cir.
2002)(sustaining jury verdict finding excessive force for use
of large amounts of pepper spray in plaintiff's cell; also
finding that officer on scene had duty to intervene and that
officers were not protected by qualified immunity). See also,
Treats v. Morgan, 308 F.3d 868 (8th Cir. 2002); Martinez v.
Stanford, 323 F.3d 1178 (9th Cir. 2003)(same).
Irving v. Dormire, 519 F.3d 441 (8th Cir. 2008)(death
threats to inmate by officers; labeling plaintiff a “snitch,” and
permitting other inmates to assault plaintiff are all violations
of clearly established rights under 8th Amendment; court also
finds a failure to protect under these facts)

Miller v. King, 384 F.3d 1248 (11th Cir. 2004)(court grants
relief under 8th Amendment for conditions of confinement
where he was placed in isolation, and there were no
accommodations for his paralysis and other disabilities).
Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2003)(harsh,
solitary confinement conditions imposed for a period in excess
of 500 days for pre-trial detainee could be found to amount to
punishment in violation of 14th Amendment; failure to
provide periodic reviews as required by regulations; no
qualified immunity as law was clearly established).
Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004)(sheriff's
use of “ “webcams” to stream live images of pre-trial
detainees on the Internet deprived inmates of privacy rights
under 14th Amendment and amounted to punishment not
authorized by law).

Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)(inmate
with serious allergies to second hand smoke claimed that
exposure to environmental tobacco smoke in cell violated
Eighth Amendment by the risk of future harm and the
infliction of current injuries. Court sustained both claims
based on record testimony and further ruled that there was no
qualified immunity given settled status of the law). See also,
Powers v. Snyder, 484 F.3d 929 (7th Cir. 2007).
B. Excessive Force Claims
Wilkins v. Gaddy, 130 S. Ct.1175 (2010). See also,
Hendrickson v. Cooper, 589 F.3d 887 (7th Cir. 2009).
Giles v. Kearney, 571 F.3d 318 (3d Cir. 2009)(use of force
while inmate was fully restrained is excessive; no qualified
immunity)
Iko v. Shreve, 535 F.3d 225 (4th Cir. 2008)(use of excessive
amounts of pepper spray during “cell extraction” stated 8th
Amendment claim where inmate did not physically resist
officers; failure to provide medical care for the spray was also
actionable; overall use of force that resulted in death was not
justified; no qualified immunity)
Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008)(use of
pepper spray after inmate was no longer refusing an order;
failure to provide medical attention following use of spray;
refusal to allow inmate to leave contaminated cell, with poor
ventilation, where he could not properly breathe, while being
mocked by officers, states 8th Amendment claim)

Valdes v. Crosby, 450 F.3d 1231 (11th Cir. 2006)(warden
can be held liable for excessive force causing death of inmate
where there was evidence of pattern of excessive force
pervasive enough to constitute notice to warden and failure to
take adequate steps to prevent such force). See also, Matthews
v. Crosby, 480 F.3d 1265 (11th Cir. 2005)(warden was
specifically warned about illegal use of force and in particular
by CO sued in this case; testimony showed his indifference to
use of force problem including the handling of complaints
from inmates).

Bozeman v. Orum, 422 F.3d 1265 (11th Cir.
2005)(continued use of force after prisoner was subdued and
then delaying medical care for 14 minutes while he lay
unconscious states claim for malicious use of force).

history of violence and current schizophrenic attacks) were
liable for his assault on plaintiff; right was clearly established
and therefore no qualified immunity).
Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60 (1st Cir
2002)(lack of proper classification procedures may be basis
for claim for lack of protection from assaults).

Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000)(minor injuries
sufficient to establish excessive force claim where force was
maliciously applied). See also, Smith v. Messinger, 293 F.3d
641 (3d Cir. 2002)(jury issue on extent of force and holding
that officer in location may be liable for not intervening to
protect inmate from attack by fellow officer).

Cavalieri v. Shepard, 321 F.3d 616 (7th Cir.
2003)(standards for deliberate indifference in jail suicide; no
qualified immunity once there is a showing that official knew
of and disregarded excessive risk).

Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000)(standards
for excessive force claims for pre-trial detainees)
C. Duty to Protect
Rodriguez v. Dept. of Corrections, 508 F.3d 611 (11th Cir.
2007) (prisoner who notified officials of threats from former
gang members (for leaving the gang) and was attacked by one
of the gang members upon release from protective custody
states claim and there was a jury question as to whether the
deliberate indifference caused the injuries)
Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008)(prisoner's
oral request for protection after being sexually assaulted was
sufficient to give notice of danger to prison officials;
identification by prisoner of the group that had made the
threats was sufficient, even though prisoner failed to name
specific inmates; remedies of transfer or protective housing
were available to officials, but were not used)
Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008)(failure to
secured seat belts for inmates who were shackled and being
transported in vans; careless driving; and mocking of their
request for safety in the vans states a claim under 8th
Amendment and Farmer).
Ambrose v. Young, 474 F.3d 1070 (8th Cir. 2007)(inmate
required to work near downed power line was electrocuted
when CO ordered him to stamp out a fire in close proximity to
the line; deliberate indifference was proven by these facts)
Morgan v. Morgensen, 465 F.3d 1041 (9th Cir.
2006)(requiring inmate to work on dangerous equipment on a
job for which he had volunteered states cause of action by
showing of deliberate indifference to his safety).
Kahle v. Leonard, 477 F.3d 544 (8th Cir. 2007)(sufficient
evidence to show that supervisor was deliberately indifferent
to substantial risk that another CO was sexually assaulting
plaintiff; defendant knew that CO had entered the cell three
times after lockdown and stayed over 5 minutes on one
occasion; no qualified immunity).
Green v. Bowles, 361 F.3d 290 (6th Cir. 2004)(preoperative male-to-female inmate stated claim for deliberate
indifference when he was placed in unit with inmate warden
knew to be predatory).
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003)(prison
officials who were aware of violent nature of inmate (both a

Pierson v. Harley, 391 F.3d 898 (7th Cir. 2004)(awareness
of inmate's violent propensities and failure to follow
classification procedures sufficient to establish liability; no
need to show which inmate might be in danger). See also
Brown v. Butz, 398 F.3d 904 (7th Cir. 2005); Gonzales v.
Martinez, 403 F.3d 1179 (10th Cir. 2005).
VII. EX POST FACTO
Pa. Prison Society v. Cortes, 622 F.3d 215 (3d Cir.
2010)(rejecting Ex Post Facto challenge to amendments to
commutation procedures); Mickens-Thomas v. Vaughn, 355
F.3d 294 (3d Cir. 2004).
VIII. DAMAGES AND QUALIFIED IMMUNITY
Pearson v. Callahan, 129 S.Ct. 808 (2009)
Hope v. Pelzer, 122 S.Ct. 2508 (2002)(8th Amendment
prohibits use of ““hitching post” for extended time as
punishment for misconduct. Even without specific precedent
on this type of punishment, no qualified immunity for
defendants since some conduct is so obviously
unconstitutional as to not require prior case law with
“materially similar” facts).
Thomas v. Cook Cy. Sheriff's Department, 588 F.3d 445
(7th Cir. 2009) (sustaining $4 million award against
individuals and City for failure to properly treat inmate who
died of meningitis; officers were on notice of his need for care
by direct observation and by complaints of other inmates; city
liability based on evidence that there was widespread practice
of not collecting medical request forms or to reviewing those
*48 collected; city can be liable even if contractor's personnel
were not individually responsible for the death).
Gibson v. Moskowitz, 523 F.3d 657 (6th Cir. 2008)($ 2
million compensatory and $3 million punitive award upheld
for wrongful death of inmate who died of dehydration after
being kept in extremely hot room while on psychiatric
medications)
Haynes v. Stephenson, 588 F.3d 1152 (8th Cir.
2009)(sustaining punitive award of $2500 where jury awarded
only nominal compensatory damages).
Harrison v. Ash, 539 F.3d 510 (6th Cir. 2008)(nurses
employed by private medical provider not entitled to QI; court
places heavy emphasis on fact that provider was a for-profit
corporation who could attract medical personnel without
protections of QI). See Richardson v. McKnight, 521 U.S.
399.

Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007)(no qualified
immunity from claim that defendants violated parolee's rights
by requiring him to be placed in a religion-based narcotics
treatment program as condition of parole).
Williams v. Bitner, 455 F.3d 186 (3d Cir. 2006)(law was
clearly established that inmates could refuse to handle pork in
prison condition for religious reasons even though Third
Circuit had not yet ruled on this precise issue)
Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006)(no
qualified immunity on claims regarding conditions of
confinement in civil commitment for sexually violent
predators as conditions would have violated clearly
established rights even of those convicted of crime; lack of
case law on SVP does not provide automatic grounds for
immunity)
Farmer v. Perrill, 288 F.3d 1254 (10th Cir. 2002)(clearly
established right not to be subject to humiliating strip search
conducted without legitimate prison interest).
Walker v. Horn, 286 F.3d 705 (3d Cir. 2002)(dismissing
qualified immunity interlocutory appeal as facts were in
dispute; if plaintiff was forced-fed without reason, no
immunity on constitutional claim).
Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir.
2000)
Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001)
Pryer v. Slavic, 251 F.3d 448 (3d Cir. 2001)

Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000)(freedom of
religion claim for damages subject to PLRA restrictions on
damages; absent physical harm, inmate entitled to nominal and
punitive damages). Compare, Oliver v. Scott, 276 F.3d 736
(5th Cir. 2002)(leaving open issue of constitutionality of
limitations on damages for First Amendment claims).
IX. TRIAL ISSUES
Pleading requirements: Ashcroft v. Iqbal, 129 S.Ct. 1937
(2009); Erickson v. Pardus, 127 S.Ct. 2197 (2007); Gee v.
Pacheco, 624 F.3d 1304 (10th Cir. 2010) (applying Iqbal to
retaliation and free speech claims and requiring specificity
where facts are known to inmate); Edwards v. Snyder, 478
F.3d 827 (7th Cir. 2007).
Sides v. Cherry, 609 F.3d 576 (3d Cir. 2010)(sustaining
shackling procedures at civil trial).
Drippe v. Tobelinski, 604 F.3d 778, 787 (3d Cir.
2010)(reversing summary judgment granted in violation of
Rule 56 time requirements; “we require prisoners to adhere
strictly to . . . PLRA. It is not too much to ask that nonprisoner parties play by the . . .Rules of Civil Procedures”
(Ambro, J., concurring)).
228 PLI/Crim 25
END OF DOCUMENT

 

 

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