by David M. Reutter

On March 23, 2023, the U.S. Court of Appeals for the Second Circuit held it was not error to deny qualified immunity (QI) to a New York prison official who “affirmatively decided” not to heed a federal court decision that it was unconstitutional to administratively impose post-release supervision (PRS) on a state prisoner. But it reversed an award for resulting damages, sending the case back to a district court to determine when exactly they should begin to be calculated.

The case follows another recently heard concerning administratively imposed PRS, which the Court first found unconstitutional in 2006, holding that PRS may be imposed only by a court, not by the state Department of Corrections and Community Services (DOCCS). [See: PLN, Apr. 2010, p.46.] In March 2022, the federal court for the Southern District of New York refused a bid by DOCCS to decertify the class in suit then action brought by prisoners subjected to illegally imposed PRS. [See: PLN, Oct. 2022, p.50.]

This case involved the illegal imposition of PRS on state prisoner Shawn Michael Vincent. As PLN has previously reported, Vincent was sentenced in 2001 to five years imprisonment and released conditionally on ...

by David M. Reutter

The U.S. Court of Appeals for the Seventh Circuit on January 11, 2023, affirmed a district court ruling that when an Illinois prisoner’s attorney submitted his grievances to the appropriate administrative office on time, his administrative remedies were exhausted, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

While held by the state Department of Corrections (DOC) at Hill Correctional Center, Randall J. Behning was allegedly attacked by guards after requesting daily medication that had been delayed. He accused two guards of assaulting him while others looked on. Behning further claimed he received inadequate medical care from Nurse Paula Young when taken to the prison emergency room. He also alleged denial of due process in prison disciplinary proceedings, when he was found guilty of assaulting the guard instead.

As a result of that finding, Behning was transferred to Pontiac Correctional Center and placed in solitary confinement. He attempted to file grievances there concerning the altercation, his claims of inadequate medical care and alleged procedural defects in his disciplinary hearing. Because he was at a prison other than the one where the incidents occurred, he was required by policy to submit his grievances ...

by David M. Reutter

On February 3, 2023, the U.S. Court of Appeals for the Seventh Circuit reinstated an Indiana prisoner’s civil rights complaint that had been dismissed because he failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. The Court found the prisoner’s low IQ and his placement in segregation may have rendered those remedies unavailable.

Howard Smallwood was found unresponsive in his cell at Pendleton Correctional Facility on October 22, 2017. He was taken to the prison medical unit and treated for a presumed drug overdose with two doses of Narcan. When he awoke, Smallwood denied taking any drugs and reminded the nurse he was a diabetic and had been similarly found unresponsive before.

Dr. Paul Talbot, however, ordered urinalysis screening for drugs. It came back negative. Talbot then ordered a blood test to further screen for drugs. Smallwood refused, but guards told him he had no choice. When Smallwood resisted, guards allegedly “twisted his hands and wrists, placed him in a head lock, and held a taser to his chest while they placed him in restraints,” the Court recalled, before “[t]hey then forced Smallwood into a chair and ...

by David M. Reutter

The U.S. Court of Appeals for the Tenth Circuit, in a mixed ruling issued on January 11, 2023, found a prisoner’s allegations satisfied the physical injury requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. The Court found that because the injuries required medical treatment, they were not de minimus.

Colorado prisoner Jabari J. Johnson is a “prolific pro se litigant,” the Court began, one who “by his own count” had filed over 60 civil rights suits accusing prison officials of violating his Eighth and Fourteenth Amendment rights. But all those lawsuits, except for those pending at the time of the instant appeal, were dismissed for failure to prosecute or failure to comply with court orders or procedural rules.

Johnson was escorted on May 3, 2018, to his prison’s case manager to retrieve copies he had requested of prior grievances. The case manager inquired about Johnson’s upcoming suits.  When Johnson refused to answer, the case manager became irate and ordered Johnson to leave if he wouldn’t answer questions. Johnson agreed to leave, and he was ordered to “cuff up.”

Moments later, Sgt. Joaquin Reyna, Lt. Brett Corbin, and another guard named Wargo ...

by David M. Reutter

On February 3, 2023, the U.S. Court of Appeals for the Fourth Circuit reversed a lower court’s grant of summary judgment to Virginia prison officials, in a civil rights complaint by a state prisoner alleging a guard falsely accused him of sexual harassment and supervisors refused him evidence that would exonerate him.

Before the Court was an appeal brought by Emmanual King Shaw, who has been held at Sussex I State Prison (SISP) since 2017. A female guard charged Shaw on July 19, 2017, with directing lewd behavior toward her in the prison showers. Shaw denied the allegation and contended security-camera footage would vindicate him.

Shaw was placed in isolation pending a hearing on the charge, which should have occurred within 15 days under state Department of Corrections (DOC) policy. From August 2 to 10, 2017, Shaw filed multiple internal complaints and letters to prison officials regarding the delay in his hearing, accusing staff of opening and intercepting them under pretense they had a faulty destination address.

When a disciplinary hearing was finally held on August 17, 2017, the supervising guard refused to review any security-camera footage and found Shaw guilty on the charging guard’s statements. ...

by David M. Reutter

On January 30, 2023, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit rebuffed Georgia Department of Corrections (DOC) officials who wanted to execute a condemned prisoner by lethal injection. Instead, the Court found that Michael Wade Nance offered a plausible alternative method for his death: Firing Squad.

Nance was 27 when he robbed an Atlanta-area bank in 1993. After dye packets that tellers bagged with the loot exploded inside his getaway car, he ran across the street and carjacked liquor store customer Gabor Balogh, fatally shooting the 43-year-old. A jury sentenced Nance to death in 1997.

In January 2020, Nance sued DOC in federal court for the Northern District of Georgia. Proceeding under 42 U.S.C. § 1983, he argued that his veins are “severely compromised,” so inserting an intravenous catheter for lethal injection might cause a vein to “blow” and leak toxins into the surrounding tissue. He also said his prescription Gabapentin lowered the effectiveness of the pentobarbital used as a sedative in DOC’s lethal injection protocol. Both claims, he said, put him at unconstitutional risk of pain. The state had no alternative execution method, but Nance offered one - ...

by David M. Reutter

On March 28, 2023, the CaliforniaThird District Court of Appeals ordered a lower court to recalculate a prisoner’s custody credits for time spent in a facility to bring the defendant back to competency. The Court’s ruling follows one almost a year earlier by the state Court of Appeals, which found in April 2022 that defendants receiving treatment to restore competency must be given the same opportunity at sentencing for credit whether the time was served in a hospital or in a jail. [See: PLN, Mar. 2023, p.42.]

In the more recent case, a jury found Yarsoslav Viktorvic Shkrabak guilty of assault with force likely to produce great bodily injury upon his mother. Based on the injury she suffered and a prior strike conviction he had for assault with a deadly weapon upon his father, the trial court doubled its sentence.

The Appellate Court’s order addressed two issues, though the Court certified only partial publication of its ruling. The unpublished portion included a motion to dismiss under People v. Superior Court, (1996) 13 Cal.4th 497 (Romero). That case requires the trial court to give “great weight” to the fact that Shkrabak’s “current offense is connected ...

by David Reutter

On January 31, 2023, the U.S. District Court for the Eastern District of Virginia approved a $1.325 million settlement in a suit brought by the estate of Darryl Terrell Becton against the Arlington County Sheriff’s Office and its private healthcare contractor at the Arlington County Detention Facility (ACDF), Corizon Health, Inc., as well as a doctor and several nurses the firm employed at the lockup.

During booking into ACDF on September 29, 2020, Becton, 46, informed staff he was an opiate user who also suffered from “hypertension and heart problems,” as the complaint later filed on his behalf recalled. Nurses Lois Ntiamoah and Natasha Toy noted when he turned pale and vomited. A Clinical Opiate Withdrawal Scale (COWS) protocol was ordered, including regular assessments and blood pressure checks.

But that was allegedly botched; the complaint noted that Licensed Practical Nurse Antoine Smith was subsequently charged criminally with falsifying patient records. [See: PLN, Mar. 2022, p.52.] In his cell, his blood pressure skyrocketing, Becton told Ntiamoah early on October 1, 2020, that he was “withdrawing from heroin and fentanyl.”

Becton was then admitted to the medical unit, where Dr. Richard Ashby was admitting practitioner. Ntiamoah again ordered ...

by David M. Reutter

On January 12, 2023, California’s Sixth District Court of Appeal concluded that attorney-client privilege did not apply to a state prisoner’s “kites,” even when included in an envelope addressed to his attorney. Written messages sent in violation of jail rules, the kites were ordered turned over ...

by David Reutter 

An Arizona prisoner’s civil rights claim is headed to trial in June 2023, after the U.S. Court of Appeals for the Ninth Circuit reinstated it, saying his prison’s policy on material he is allowed cannot be applied inconsistently without trampling his First Amendment liberties.

The suit was brought in federal court for the District of Arizona by Edward Lee Jones, Jr., a prisoner at Arizona State Prison in Eyman. In late 2017 and early 2018, Jones ordered two Nation of Islam books by Elijah Muhammad: Message to the Black Man in America (1965) and The Fall of America (1973). He also ordered six hip-hop and R&B CDs by Kendrick Lamar, The Weeknd and Snoop Dogg, among others.

Prison officials determined these items were contraband and confiscated them under Department Order (DO) 914.07. The CDs violated rules prohibiting depiction or promotion of violence, sexual excitement, gangs and drugs, they said, also citing a catchall for items that “may otherwise be detrimental to the safe, secure, and orderly operation of the institution.” The two religious texts were taken for allegedly promoting racism or the superiority of one group.

Jones filed suit pro se in June 2018 under 42 U.S.C. ...