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JAIL AND PRISON LEGAL ISSUES: AN ADMINISTRATOR'S GUIDE
William Collins, Esq.
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CHAPTER 1: Nuts and Bolts
I. CITATION FORM
II. 42 USC §1983
A. Person
B. Color of State Law
C. Causation
D. Federal Rights
E. Relief in §1983 Lawsuits
F. Injunctions
III. DAMAGES IN §1983 ACTIONS
A. Indemnification
IV. CLASS ACTIONS
V. QUALIFIED IMMUNITY: A DEFENSE TO DAMAGES
VI. THE PRISON LITIGATION REFORM ACT
A. Reducing Inmate Litigation
B. Reducing the Power of the Federal Court
C. Terminating Orders Under PLRA
VII. CRIPA AND THE UNITED STATES DEPARTMENT OF JUSTICE
VIII. THE LOGISTICS OF A LAWSUIT: LITIGATION STEP BY STEP
A. Exhaustion of Administrative Remedies
B. Filing the Complaint
C. Filing Fees and In Forma Pauperis Complaints
D. Judicial Screening of Inmate Complaints
Frivolous complaints
Malicious complaints
Failure to state a claim
Officials are immune
Effects of judicial screening
E. The Scheduling Order
F. Getting Rid of Cases Before Trial: Motions to Dismiss and Summary Judgments
Motions to dismiss
Summary judgments
Which motion is best?
G. Discovery
Depositions
Interrogatories
Requests for production
Requests for admission
H. Settlement and the Prison Litigation Reform Act
Consent decrees
Prospective relief
Termination of orders
Trial and relief
I. Trial and Relief
Injunctive relief
J. Attorney's Fees
For the winning plaintiff
PLRA limits attorney's fees
For the winning defendant
Attorney's fees: still a factor
K. Appeal
III. DAMAGES IN §1983 ACTIONS
CHAPTER 2: Access to the Courts
I. DEVELOPMENT OF THE RIGHT
II. LEWIS V. CASEY AND THE RIGHT OF ACCESS TO THE COURTS
A. Applies to Jails
B. Affirmative Duties Continue
C. Scope of the Right
D. Actual Injury
III. WHAT AMOUNTS TO "ACTUAL INJURY?"
A. Getting Material to Court May Defeat Injury Claim
B. Complete Denial of Access to Materials for Short Times
IV. NONFRIVOLOUS CLAIMS
V. LAW LIBRARIES
A. Understanding Legal Research
B. What Should the Library Contain? The Traditional Approach
C. Is There a New Post-Lewis Law Library?
D. Computerized Research Services
E. Donations: More Trouble Than They Are Worth?
F. Direct Appeals, Collateral Attacks, and the Jail
G. Law Library Collateral Issues
VI. ILLITERATE INMATES: THE REALLY TOUGH PROBLEM
VII. SEGREGATION AND ACCESS TO THE COURTS
A. Paging Systems
B. Something Is Required
VIII. THE PRO SE CRIMINAL DEFENDANT AND ACCESS TO A LAW LIBRARY
A. Does Bounds Apply for Criminal Defendants?
B. A Practical Problem
IX. JAILHOUSE "LAWYERING": A SOMEWHAT PROTECTED VOCATION
A. Charging for Services
B. Possessing the Legal Papers of Another
C. Is There a "Jailhouse Lawyer-Client Privilege?"
D. Communication Between Jailhouse Lawyers and Their "Clients"
X. OTHER ISSUES
A. Typewriters and Copy Machines
B. Storage of Legal Materials
XI. SUMMARY
CHAPTER 3: The Eighth Amendment: Overview and Use of Force
I. OVERVIEW
II. AREAS OF CONCERN
III. USE OF FORCE
A. The Malicious and Sadistic Test
B. Pretrial Detainees and Use of Force
The reasonableness test
IV. THE FIVE FACTORS
A. Need for Force and Amount Used
B. Extent of Injuries
C. Threat Reasonably Perceived
D. Efforts to Temper
E. The Five Factors: An Example
V. MISCELLANEOUS FORCE ISSUES
A. Duty to Intervene
B. The Loud, Disruptive Inmate
C. Restraints
Is overuse a problem?
How long in restraints?
Restraint devices: some suggestions
D. Hog-Tying
Hog-tying vs. hobbling: Is there a distinction?
The "studies" debate
Hog-tying: the bottom line
Restraint asphyxia
E. Extreme Handcuffing and Due Process
F. "Lasers, Tasers, and Phasers"
Stun guns
Stun belt
Stun devices and medical needs
Chemical agents
G. Using Force to Enforce Orders
VI. DEADLY FORCE
A. Escapes and deadly force
B. Warning shots
VII. DEFENDING FORCE CASES
A. Video Tape
B. Documenting Extent of the Injury
C. Force Cases and Credibility
The missing files
The lost video tape
The arrogant officers
VIII. SUMMARY
CHAPTER 4: The Eighth Amendment: Medical Care
I. THE BASIC LEGAL TEST
A. Deliberate Indifference
B. Serious Medical Need
Serious medical need: examples
II. PARTICULAR ISSUES
A. Cost of Treatment
B. Delayed Care
C. "Elective" Treatment
D. Admission Screening
When should screening take place?
E. Abortion
F. Pre-Existing Conditions
G. Organ Transplants
H. Paraplegic Inmates
I. Officers Passing Medications
J. Will Following Policy Trump Good Sense?
K. Ignoring Instructions of Treatment Staff
L. Medical-Custody Conflict Resolution Process
M. Medical Co-Pay Plans
N. Medical Records and the Right to Privacy
O. Interpreters
Interpreters and the right to privacy
P. A Right to Post-Release Care?
III. HIV/AIDS
A. HIV Is a Serious Medical Need
B. Mandatory Segregation
C. Right to Privacy/Disclosure
D. Protection
E. HIV/AIDS, the Americans with Disabilities Act, and the Rehabilitation Act
F. Security Concerns and ADA Issues
IV. DENTAL CARE
A. Extraction Only Policies
V. SMOKING
A. Secondhand Smoke
B. Smoke Free Jails
C. Employees and Smoke Free Jails
D. Summary
VI. TUBERCULOSIS
A. Screening
B. Response to Active TB
C. Mandatory Testing
VII. MENTAL HEALTH
A. Consent and Involuntary Medication
Emergency medication
Inmate refusals and deliberate indifference
B. Involuntary Medications and Pretrial Detainees
Danger to self or others
Involuntary medications and incompetence to stand trial
When dangerousness and competency overlap, what then?
Summary
C. Hunger Strikes and Other Involuntary Medical Treatment
Is a court order necessary?
D. Transsexuals
Transsexuals and other operational issues
Housing
Searches
VIII. HIPAA
A. Does HIPAA Apply to Jails and Prisons?
B. What Do the Regulations Require?
C. Exception for Correctional Facilities
D. Other Requirements
Right of access
Who can complain about HIPAA violations?
E. HIPAA Conclusion: Confusion
IX. SUMMARY
CHAPTER 5: The Eighth Amendment: Suicide
I. LEGAL TEST: DELIBERATE INDIFFERENCE
A. Deliberate Indifference: Examples
B. "Died by His Own Hand" Defense
II. LITIGATION THEMES: IDENTIFICATION, PROTECTION, RESPONSE (I-P-R)
A. Identifying the Suicide Risk
Comment
Screening and profiles
Passing on information
Records and threat identification
B. Protecting the Identified Suicide Risk
Comment
Frequency of checks
Video surveillance: not recommended, but if you use it . . .
Removal from suicide watch
Comment
C. Response to Suicide Attempts
Summary
III. POST ADMISSION SUICIDES
IV. JAIL DESIGN ISSUES
V. SUICIDE LITIGATION: A CAUTION
A. State Law Negligence Claims
B. Every Failure an Issue
VI. SUMMARY
CHAPTER 6: The Eighth Amendment: General Conditions of Confinement
I. CONDITIONS PROBLEMS: OLD HISTORY AND NEW HISTORY
II. WHAT "CONDITIONS" ARE OF CONCERN?
III. LEGAL TESTS: OBJECTIVE AND SUBJECTIVE PARTS
A. Objective Test: How Bad Are the Conditions?
B. Subjective Test: Deliberate Indifference
The "pure of heart" defense
C. Crowding Is Not Necessarily Unconstitutional
D. The "Totality of Conditions" Approach Is No Longer Used
E. Standards: Professional or State-Mandated
IV. SPECIFIC CONDITIONS OF CONCERN
A. Personal Safety
Classification
B. Shelter
Padded cells
General dust and dirt
C. Food
Withholding meals
Food loaf
Vegetarian meals
Hot food
D. Sanitation
Showers and personal hygiene
Inmate cleaning requirements
E. Clothing
F. Exercise
Outdoor exercise
Exercise in the cell
G. How Long Does the Condition Last?
V. LOOKING FOR ANSWERS
CHAPTER 7: The Fourteenth Amendment: Inmate Discipline and Other Procedural Due Process Issues
I. WHAT IS "DUE PROCESS?"
II. OVERVIEW: WHEN IS "PROCESS DUE" IN JAIL AND PRISON DECISION-MAKING
A. Is There a "Liberty Interest?"
B. What Is an "Atypical and Significant Hardship?"
III. PROPERTY INTERESTS
A. Fines in Disciplinary Hearings
B. Disciplinary Hearing "Fees"
C. Taking Inmate Property
D. Control of Cash
E. Sandin and Property Interests
IV. INMATE DISCIPLINE AND DUE PROCESS
A. Sandin Only Limits Due Process for Sentenced Offenders
B. Jails, Discipline of Pretrial Detainees, and the Liberty Interest Question
C. Good Time Earned vs. Expectations of Good Time and Due Process
D. Sandin as a Defensive Tool
V. MAJOR OFFENSES: THE PROCEDURAL REQUIREMENTS OF WOLFF V. MCDONNELL
A. No Right to Counsel or Cross-Examination
B. Privilege Against Self-Incrimination in Disciplinary Hearings and Miranda Warnings
Miranda warnings
C. Notice and the Hearing
D. Inmate's Presence in the Hearing
Waiver
Refusal to attend the hearing
Excluding the inmate for safety or security reasons
An exception
Suggestion
E. Witnesses
Institution must justify denials
F. Grounds for Denying Witness Requests
Advance notice of witness requests and witness summaries
Relevance
Security concerns: "unduly hazardous to institutional safety"
Cumulative testimony
Unnecessary
Witness statements
G. Grounds for Not Denying Witnesses
Blanket denials
Credibility
H. Refusal to Testify
Officer refusals
Inmate refusals
I. Stating Reasons for Denying Witnesses
J. Right to Assistance
Interpreters and the hearing impaired
Role of the assistant
K. The Hearing Officer(s)
Impartiality
Inmate lawsuits against hearing officers and bias
Role of the hearing officer
Hearing officers vs. hearing committees
L. Evidence: When Is an Inmate Guilty?
The "some evidence" standard of review
The burden of proof
Officers' reports as evidence of guilt
M. Anonymous Informants
N. Hearsay
O. Constructive Possession
P. Statement of the Evidence Relied Upon
Q. The Hearing Record and Its Importance
R. Prehearing Confinement
VI. MISCELLANEOUS ISSUES
A. Polygraph
B. Settlement
C. Appeals
D. Overlapping Disciplinary and Criminal Charges
E. Major vs. Minor Offenses: Where Is the Line Drawn, and Is Some "Process Due" for Minor Infractions?
VII. DUE PROCESS AND LONG-TERM ADMINISTRATIVE SEGREGATION
A. Courts Differ on Determining "Atypical Deprivation"
B. Administrative Segregation and Pretrial Detainees
C. Some Process Is Easy to Provide
CHAPTER 8: The First Amendment: Mail, Religion, Publications, Telephone, and Grievances
I. INTRODUCTION AND PRELIMINARY ISSUES
A. Extends to Local Governments
B. Extends to Persons Incarcerated
C. The Most Common Issues
II. THE TURNER TEST: IMPOSING RESTRICTIONS ON FIRST AMENDMENT RIGHTS
A. What Are "Legitimate Penological Interests?"
B. Turner: The Four Questions
C. Why Understand the Turner Test?
D. Are Cost Concerns a Legitimate Penological Interest?
E. What Constitutional Issues Does Turner Apply To?
F. Must a Problem Have Occurred?
G. Exaggerated Responses
H. Consistency
I. Burden
III. RELIGIOUS ISSUES
A. The Religious Land Use and Institutionalized Persons Act
Is RLUIPA constitutional?
B. What Is a Religion and Sincerity of Beliefs?
IV. PARTICULAR RELIGIOUS PRACTICES
A. Mandates from Faith Not Required
B. Hair and Beards
C. Hair and Male Inmates vs. Female Inmates
D. Personal Appearance
E. Group Religious Services
F. Religious Diets
Common fare diet and co-pay plan
Kosher
Kosher in jails
Is the sky falling on a slippery slope?
G. Native American Practices
Must inmate be Native American?
Sweat lodges
H. Satanic Materials and Practices
I. Establishment Clause: Can the Jail "Establish" a Religion?
"God pods"
Twelve Step programs
Government chaplains
J. Equal Protection
V. PUBLICATIONS
A. Supreme Court Decisions
Procunier v. Martinez
Thornburgh v. Abbott
B. Total Bans of All Publications
C. "Publisher Only" Rules
D. Complete Bans on Hardbound Books
E. Due Process, Rejection Notices to Inmate and Sender
Reading incoming and outgoing mail
Rejection of letters and publications
F. Censoring Outgoing Mail
G. Bulk Mail Publications
H. Content Based Restrictions
Racist/religious material
Sexual publications
Criticism of institution officials
Photos of wives and girlfriends
I. All or Nothing Censorship
J. Segregation and Mail Access
K. Mail Between Inmates
L. Gift Subscriptions
M. Copying Outgoing Mail
Obstruction of justice
N. Foreign Language
O. Delays in Mail Delivery
P. Privileged Mail
What is "privileged" or "legal" mail?
General rule
Media mail and privilege
Opening privileged mail mistake
VI. TELEPHONE
A. Recordings
B. Calls to Lawyers
VII. GRIEVANCES
A. Disrespectful Language
B. False Statements
C. Abuse of the System
How many grievances are too many?
Petitions
VIII. INMATE MARRIAGES
CHAPTER 9: The First Amendment: Visiting
I. OVERVIEW
A. Summary
II. DENIAL OF VISITING RIGHTS, TURNER, AND DUE PROCESS
III. CHILDREN'S VISITS
IV. CONTACT AND CONJUGAL VISITING
V. VISITOR SEARCHES - GENERAL
VI. VISITING: SOME SUGGESTIONS
CHAPTER 10: The Fourth Amendment: Searches
I. WHEN DOES THE FOURTH AMENDMENT APPLY?
A. A Balancing Test
B. Should the Turner Test Be Used for the Fourth Amendment Issues?
C. No Warrant Requirement
D. "Reasonable Suspicion" - What Is It?
II. CELL SEARCHES
III. PAT SEARCHES
IV. STRIP SEARCHES: OVERVIEW
A. "Arrestee" Strip Search
B. "Inmate" Strip Search
C. Strip Searches: A Same Sex Task
D. Privacy and Strip Searches
V. ARRESTEE STRIP SEARCHES: THERE ARE NO LOOPHOLES
A. Is There a "Turner Test" Loophole?
B. Broad Definition of "Strip Search"
C. Unconstitutional Arrestee Strip Search Policy Exposes the County to Damages
D. What Is the Liability Exposure?
E. The General Rule and "Reasonable Suspicion"
F. Offense-Based Reasonable Suspicion
G. "Felony" Label Alone Does Not Establish Reasonable Suspicion
H. Drugs and Alcohol
I. Nature of the Offense and Criminal History
J. What Does and Does Not Constitute Reasonable Suspicion?
"Furtive movements"
Refusal to cooperate with arresting and booking officers - maybe
Lack of ID not enough
Arrests on outstanding warrants not enough
Civil violations: No
K. General Population Placement
L. Medical Concerns
M. Clothing Exchanges
N. Bullpens and Holding Areas
O. When Does an "Arrestee" Become an "Inmate?"
P. Summary: Arrestee Strip Searches: A Recipe for Liability
VI. INMATE STRIP SEARCHES
A. Out of Institution Contacts
B. Inmates in Segregation
C. Incident to Cell Block Searches
D. Random General Population Strip Searches
E. Reasonable Suspicion Strip Searches
F. Emergency Situations
G. How, Where Search Conducted
VII. BODY CAVITY PROBE SEARCHES
A. Probe Searches and High Security Settings
B. Ad Hoc Probe Searches - Reasonable Suspicion or Probable Cause
C. "Less Intrusive Alternatives": A Good Idea
D. Manner of Search
E. Eighth Amendment
F. Probe Searches: Summary
VIII. VISITOR SEARCHES
A. Pat Downs and Searches of Bags and Purses
B. Vehicle Searches
C. Visitor Strip Searches
D. "Consent" Conditions
Where reasonable suspicion doesn't exist
Where reasonable suspicion exists
Visitor searches: summary
IX. INFORMANT TIPS AND REASONABLE SUSPICION
X. SUMMARY
CHAPTER 11: Cross Gender Supervision
I. FEMALE OFFICERS AND MALE INMATES
A. Observation of Male Inmates by Female Officers
B. Pat Searches of Male Inmates by Female Officers
C. Strip Searches of Male Inmates by Female Officers
II. MALE OFFICERS AND FEMALE INMATES
A. Pat Searches of Female Inmates by Male Officers
B. Pat Searches and Small Jails
C. Strip Searches of Female Inmates by Male Officers
D. Summary
III. BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) ISSUES
A. BFOQs in Small Jails
B. Men Working in Women's Facilities
C. Limited Ban on Male Officers Approved
D. BFOQ Summary
IV. SEXUAL CONTACT BETWEEN STAFF AND INMATES
V. SUMMARY
CHAPTER 12: Retaliation
I. GRIEVANCE SYSTEM ABUSE
II. POINTS TO REMEMBER
APPENDIX 1 Table of Cases
APPENDIX 2 Glossary
About the Author...
William C. Collins received his J.D. degree from the University of Washington in 1969. His work has focused on correctional law for over 30 years. Bill has written several monographs on various topics in the field and is the cofounder and coeditor of the Corrections Law Reporter. He has provided legal issues training for corrections administrators and staff from coast to coast and has presented NIC Legal Issues at AJA's Annual Training Conference & Jail Expo for well over a decade.
CLICK HERE to Purchase Jail and Prison Legal Issues: An Administrator's Guide Online!
CLICK HERE to Purchas Jail and Prison Legal Issues: An Administrators Guide via PDF printout
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