Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Prison Law (page 1 of 2)

Religious “Conviction”: A Prisoner’s Struggle to Practice His Faith Behind Bars

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

For the Muslim community, Ramadan is a month-long celebration filled with peace and patience. But in 2010, Michael Thompson’s Ramadan was anything but peaceful. Thompson sued prison officials at the Waupun Correctional Institution in Wisconsin for violating his First Amendment right to freely exercise his religion, and he recently won his appeal before the Seventh Circuit.

Each day during the month of Ramadan, Muslims do not eat or drink anything between sunrise and sunset. The prison normally accommodates this practice by providing Muslim prisoners with “meal bags”. Each Ramadan meal bag contains two meals: the post-sunset dinner and the next morning’s pre-sunrise breakfast. According to the prison’s policies, a prisoner who eats in the cafeteria during Ramadan forfeits his or her right to receive meal bags for the rest of the month.

On August 11, 2010 – the first day of Ramadan – Thompson began his month-long fast and received his meal bags on time for several weeks. However, on August 21, certain events interrupted their delivery. While on his way back to his cell early that day, Thompson was handed a meal bag from a prison guard. Upon arriving at his cell, Thompson found another meal bag waiting for him. Because Thompson could not leave his cell to return the extra bag, he left one of the bags unopened for a guard to retrieve. However, one prison guard claims to have seen Thompson eating from both meal bags. After accidentally receiving two meal bags in one day, Thompson did not receive a meal bag on August 21 or 22, even though he remained on the list of eligible inmates. In effect, he began to suffer from hunger pains, fatigue, and exhaustion, and thus felt pressured to eat at the cafeteria. However, he knew that if he did, he would give up his meal bag privileges. Sometime during these two days, Thompson also missed one of his morning prayers because he felt so ill. As a result of these events, he was not able to properly observe Ramadan.

Thompson filed a lawsuit under 42 U.S.C. § 1983 against the prison officials that he felt were responsible for violating his First Amendment rights. After A magistrate judge granted the defendants’ motion for summary judgment, and Thompson appealed.

Ultimately, the Seventh Circuit vacated the previous judgment and remanded the case back to the lower court to make factual determinations, such as the reason for withholding Thompson’s meal bags and whether or not he remained on the meal bag list. The Court also held that there was enough evidence from which a reasonable jury could rule in favor of Thompson.

In its analysis, the Court considered whether the denial of meal bags placed a substantial burden on Thompson’s free exercise rights. Essentially, the Court defined a “substantial burden” as one that “put[s] a substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Using this definition, the Court held that Thompson’s free exercise rights were substantially burdened when he did not receive his meal bags because without them, he was forced to choose between foregoing adequate nutrition or violating a central pillar of his religion. In other words, forcing an inmate to choose between daily nutrition and religious practice is a substantial burden. Writing for the three-judge panel, Judge Rovner further reasoned that in addition to not receiving a meal for more than 55 hours, Thompson had no idea whether he would be put back on the Ramadan meal bag list and get regular food. This uncertainty contributed to the pressure on him to go to the cafeteria and left him so anxious that he was unable to practice Ramadan in its entirety.

How should society feel about the religious rights of inmates? From one point of view, many people believe that inmates have forfeited their rights when they are convicted of committing a crime. And some claim that allowing religious freedoms in prisons could open a can of worms where inmates use religious accommodation as an excuse for other, spurious requests. On the other hand, it can be argued that prisoners should be encouraged to practice their religious faith while incarcerated for its intrinsic value. Faith may provide them with a sense of purpose and could also help reintegrate prisoners who will eventually be released back into public communities. Certainly there are legitimate restrictions on the religious rights of prisoners, but as long as that practice does not compromise a prison’s security, inmates should be entitled to freely exercise their constitutional rights.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Minimum Wage for Inmates?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Urinating Not Verbal, 7th Circuit Holds


Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

Ronald Jerome Beal, an inmate of a Wisconsin state prison, filed a pro se §1983 complaint against a prison guard, alleging that they had inflicted cruel and unusual punishment on him in violation of the Eighth Amendment.

The magistrate judge of the United States District Court for the Eastern District of Wisconsin dismissed Beal’s complaint before the defendants could respond, simply stating that “standing alone, verbal harassment of an inmate does not constitute a constitutional violation.” Beal then filed an appeal with the Seventh Circuit Court of Appeals.

The allegations behind Beal’s original complaint are disturbing to say the least. According to Beal, the prison guard was constantly making blatant implications to other inmates that Beal was gay, urging the inmates to perform sex acts in front of him so as to “make him smile.” The prison guard also frequently urinated in front of Beal and other inmates, smiling suggestively at Beal while doing so. As a result of the prison guard’s treatment, inmates began to harass him by using homophobic slurs.

The harassment eventually became so unrelenting that Beal was forced to seek psychological help at the prison’s Clinical Services division. Beal kept a record of his visits with the counselors, and even filed a grievance against the prison guard, which was upheld by the prison. However, two years passed, and Beal was never informed of what disciplinary measures, if any, were taken.

The Seventh Circuit was rightfully appalled at Beal’s situation. In an opinion written by Judge Richard Posner, the Court stood firm on the principle that psychological pain can be enough to constitute cruel and unusual punishment. In its view, the Court held that it is completely arbitrary to draw a categorical distinction between verbal and physical harassment. Judge Posner  analogized this principle by saying, “Suppose a prisoner is having severe headaches and he complains about them to a prison doctor, who writes him a prescription for a powerful drug. A malicious guard learns of this and tells the prisoner the following lie: ‘the doctor didn’t tell you, but he told me: you have incurable brain cancer and will be dead in three months.’”

It may have been a form of simple verbal harassment, but such harassment can have devastating effects and consequences. As a result, the District Court erred when it summarily denied Beal’s complaint under the assumption that verbal abuse does not arise to cruel and unusual punishment. The Court of Appeals did not stop there, however; Judge Posner also stated that the District Court erred when it said Beal only claimed verbal harassment. “Urinating isn’t verbal,” the opinion stated. “We can imagine… that the plaintiff was seriously upset by Schneider’s nonverbal as well as verbal behavior, which may have… inflicted significant psychological harm on him,” the Court noted.

The Court then reversed the dismissal of Beal’s complaint and remanded the matter back to the District Court for further proceedings and consideration. Beal must still prove the merits of his claim, but at least now he will have a chance to make his case in court.

A Miscarriage of Justice

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Nobody is perfect. Mistakes happen to the very best of us, including judges. This is precisely why our justice system has a procedure of checks and balances set in place to prevent injustice to the best of its ability. Recently, the Seventh Circuit Court of Appeals dealt with a mistake made by both the defense counsel and trial judge in Reyes v. Dart.

A Cook County Jail pre-trial detainee was attacked and stabbed as a guard stood ten to fifteen feet away and ignored his cries for help. The detainee eventually lost consciousness which was not regained until three days later in the hospital. The attack caused severe nerve damage and a fractured eye socket which may eventually lead to blindness.

The victim-detainee filed suit against the Cook County Sheriff, Thomas Dart, and two of the jail officials claiming they failed to protect him from the attack. He contends that the defendants have culpably failed to create or enforce policies necessary to protect such attacks from occurring.  After filing an answer to the complaint, the next six months entailed the defense lawyer sending a total of five letters to the plaintiff. Each letter demanded the plaintiff sign a release giving the defense counsel access to protected health information maintained by a variety of hospitals. The release was not limited to medical records surrounding the attack that occurred, but rather all medical records would have been accessible from birth forward. Further, the release did not impose limitations on to whom the information could be disclosed.

The letters advised that it was entirely the plaintiff’s decision to sign the release or not, however, failure to sign would be grounds for dismissal of the case because the claim was for physical injuries. Naturally, the plaintiff did not sign the release for medical records. After the fifth letter of release was not replied to, defense counsel moved for dismissal under Federal Rules of Civil Procedure 41(b). The district court dismissed the suit with prejudice.

The Seventh Circuit ruled that the district judge erred in dismissing under 41(b) because there was no failure to comply with any rule or any court order. Nor was the plaintiff’s refusal to sign the release a failure to prosecute the suit. The defense counsel’s dispute with the plaintiff over the medical records was merely a discovery dispute and should have been dealt with as such by filing a motion to compel under Fed. R. Civ. P. 37. As the claim involved physical injuries, an order requiring the plaintiff to submit to a medical examination could have been filed under Fed. R. Civ. P. 35.

Another reason the case should not have been dismissed was because the release specifically stated that the signer may revoke authorization to release of his medical records at any time, which would have empower the plaintiff to refuse to sign in the first place without being punished. For the aforementioned reasons, the Court vacated and remanded the case. Judge Posner instructed the lower court to rule on the plaintiff’s prior motion for recruitment of counsel and inform the defendants’ counsel that the civil rule applicable to his demand for medical records is rule 37, not rule 41(b).

The defense counsel may have been quick to get the case dismissed, however, the counsel’s lack of knowledge concerning the Federal Rules of Civil Procedure only led to the case coming back to haunt him after Judge Posner issued the Seventh Circuit Court of Appeals opinion.

First Amendment Rights of Civil Detainees


By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

On September 14, 2015, the Seventh Circuit Court of Appeals ruled that the state of Illinois can ban sex offenders from having video game consoles, even when they are in civil detention rather than prison. Judge Rovner wrote the opinion for the three-judge panel.

The First Amendment provides, in part, that “Congress shall make no law… abridging the freedom of speech.” However, like many other fundamental rights found in the Bill of Rights, the right to free speech is not absolute.

According to Illinois law, a “sexually violent person” is someone who has been convicted of a sexually violent offense and “suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f). Under Illinois’s Sexually Violent Persons Commitment Act, someone who is found to be a sexually violent person in a civil proceeding is authorized to be committed to the custody of the Illinois Department of Human Services for control, care, and treatment until he or she is no longer considered a sexually violent person.

Eugene Brown was convicted of five counts of aggravated sexual assault for raping women and also diagnosed with a paraphilia: the sexual attraction to non-consenting women. In May 2003, Brown was approaching the end of his prison sentence in the Illinois Department of Corrections when the State filed a petition to involuntarily commit Brown for treatment under the Act, alleging that his mental disorders created a substantial probability that he would engage in acts of sexual violence. Eugene Brown is now civilly committed to the Rushville Treatment and Detention Center in Illinois.

Brown and 17 others sued the facility, alleging that certain policies restricting their access to movies, video games, and video game consoles violate the First Amendment. Rushville maintained that these policies were necessary because of their rehabilitation and security interests.

While Brown argued that strict scrutiny should be used to determine the constitutionality of the bans, the Seventh Circuit Court of Appeals disagreed. The Court relied on Turner v. Safley to support its claim that a reasonable-relationship standard governs the First Amendment rights of civil detainees. In Turner, the Supreme Court held that prison regulations infringing on the constitutional rights of inmates are valid if they are reasonably related to legitimate penological interests. In determining the reasonableness of such regulations, the Court explained there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. However, the Court also noted that the reasonable-relationship standard should be modified as necessary because there are key differences between prisoners and civil detainees, including the purposes of their confinement.

In applying the rational-relationship standard, the Court found that summary judgment on the video game consoles was proper for two reasons. First, the game consoles are capable of accessing the internet which would allow detainees to contact victims of their crimes and therefore the ban furthers the state’s interest in protecting the public. Second, civil detainees could possibly use the consoles to download, share, and store illegal pornography, such as child pornography. Therefore, the ban on video game consoles promotes the state’s interest in preventing crime. On the other hand, the Court found that the detention center’s evidence relating to the move and video game ban was insufficient to justify summary judgment on a First Amendment claim.

Because Illinois’s Sexually Violent Persons Commitment Act is a civil law rather than a criminal law, the state’s interests must be balanced against First Amendment protections. It is important to remember that although civil commitment statutes do not apply the same strict standards of the criminal justice system, First Amendment rights are afforded the most protection. Perhaps the Rushville facility’s ban on movie and video games should be determined on a case-by-case basis in order to safeguard both the state’s interests and the interests of civil detainees.

Court Rules Right to Marry Includes Choosing Whom to Marry

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law School

Almost fifty years ago, the Supreme Court held that men and women had the fundamental right to marry in Loving v. Virginia. Then this past summer, the Court extended the right to marry to include same-sex couples in the landmark case Obergefell v. Hodges. But what about when the government interferes with whom you choose to marry?

The Seventh Circuit took up this issue in Riker v. Lemmon. From 2007 to 2008, Rebecca Riker worked at the Wabash Valley Correctional Facility in Indiana where she met prison inmate Paul Vest, whom she supervised during his kitchen duty. After a few months, their interactions went beyond work and they began a romantic relationship, often engaging in sexual rendezvous inside a walk-in cooler. Their secret relationship was eventually discovered after another prison employee caught the two kissing inside the cooler, and Riker quit her job the same day.

However, this did not stop Riker and Vest from continuing to keep in contact with one another through letters. From 2008 to 2009, Riker also wrote several letters petitioning the department of corrections for privileges to visit Vest. However, those requests were repeatedly denied due to a prison policy prohibiting ex-employees from visiting inmates.

Distance and challenges brought on by the department of corrections still did not keep the couple apart. In 2010, Vest proposed to Riker and she accepted. But when the couple applied to be married, the prison denied their application because Riker was not on a list of approved visitors. Ultimately, Riker would never be allowed visit due to a prison policy barring ex-employees from visiting inmates if a relationship began while the employee worked at the corrections facility.

Riker filed suit in 2013, claiming the prison had denied her constitutional right to marry. The Seventh Circuit agreed, and decided that although the department of correction’s interest in preventing security risks was legitimate, the prison failed to justify how preventing Riker from marrying Vest would meet this interest. The prison did not submit any evidence to show how allowing a wedding ceremony would jeopardize prison security.

The Court of Appeals also rejected the prison’s argument that Riker’s right to marry had only been minimally burdened because she could wait to marry Vest after he was released from prison– in 2030. The court ruled that Riker had been left with no alternatives at all to exercise her right to marry, especially since she was prohibited from ever visiting Vest.

The Seventh Circuit explicitly expanded the right to marry to also include the right to choose one’s spouse, citing to language in Obergefell – “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” More narrowly, this decision also includes prisoners, and dictates that the right to marry overcomes an interest in maintaining prison security and stability, which is otherwise highly deferential under a rational basis analysis. It will be interesting to see if the Seventh Circuit applies this holding in any other contexts in the future.

Coming Back to Bite You: Immunity for Expert Witnesses


By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

Equalizing Administrative Remedies for Prisoners

By: Haley Holmberg
J.D. Candidate, 2017

Valparaiso University School of Law

Under 42 U.S.C. § 1997e(a), “no action shall be brought with respect to prison conditions until administrative remedies as are available are exhausted.” Recently, the 7th Circuit Court of Appeals reviewed White v. Bukowski to determine the outcome when a detainee does not follow protocol for reporting an abuse of a fundamental right–or at the very least, a right protected under statute regarding prison regulations.

When Wenona White arrive at jail for pre-trial detention on alleged conspiracy to commit bank fraud, she was almost eight months pregnant. Eleven days later, she experienced labor pains and was taken by ambulance to the hospital, where she delivered a daughter with severe birth defects. She was returned to the jail several days after giving birth, and was transferred to another jail four days later while she awaited trial. Two years later, she filed suit alleging that her child’s birth defects were caused by failure to take a proper medical history when she arrived at the jail (which would have revealed the complications in birth); failure to respond to her repeated medical requests; and failure to react quickly when she was in labor. The trial court dismissed White’s claim based on her failure to seek administrative remedies prior to filing suit.

However, White claimed there were no administrative remedies available to her in this case. Grievances are filed to obtain a change of some sort within the jail and to allow the jail time to address the issues. Even in cases where the harm has already occurred, a grievance must be filed or the detainee loses the right to sue. However, there is no administrative remedy to exhaust where the relevant administrative procedure provides no remedy. White was not aware while being held in the first jail that she was receiving inadequate health care, which contributed to her child’s birth defects. Therefore, it was not possible for her to file a grievance before the harm occurred. Further, according to the jail’s inmate handbook, there was no deadline for filing a grievance. Moreover, White was not aware that she would be transferred from the first jail at which she was being detained shortly after returning from the hospital.

The 7th Circuit Court of Appeals agreed with White that she could not be faulted for having not filed a grievance when no deadline existed, and when she had no knowledge that she was to be transferred from the jail. After she was transferred, it was too late to file her grievance, as the jail would not entertain a grievance by an individual no longer being detained in that jail. The Court held for these reasons that the judgment must be vacated and remanded.

Although a detainee’s rights and freedoms are extremely limited compared to other citizens, it is unethical to deny an individual a granted right based on circumstances beyond her control. This ruling will help ensure that all prisoners are given equal opportunity to be heard in court despite administrative procedures of the jail limiting such right and failing to offer relief to address the issue under such conditions.

“Less than Opaque” Jumpsuit Exposes Disregard for Prisoner Dignity


By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

While safety concerns in dealing with prisoners must be balanced against certain violations of prisoners’ privacy, there are still circumstances where supposed safety measures go too far. For instance, while strip searches of prisoners are typical and reasonable safety measures, requiring a prisoner to wear a transparent jumpsuit is not. The Seventh Circuit Court of Appeals reviewed such an instance this week in King v. McCarty, et al., when a prisoner was left emotionally scarred by the “safety measures” encountered from his guards.

Prior to being transported from a county jail to a state prison, Illinois prisoner Marshall King, was forced to wear a jumpsuit that left him exposed. The jumpsuit was not the typical garment administered by prison personnel, and left King’s genitals and rear exposed for an extended amount of time in front of both male and female guards and other male prisoners. King was chained to other prisoners during the transport and noticed that they were not similarly outfitted. After requesting garments with which to cover himself, King was mocked and advised that he should be grateful that he was not being transported in winter.

Although the guards responsible have failed, thus far, to comply with discovery requests that would require them to deliver the jumpsuit in question, they denied the jumpsuit’s translucency but stated that it was “less than opaque” and admitted that it was not standard issue. The guards further stated that providing him the jumpsuit was due to security concerns, despite the fact that King was strip searched on both sides of his transport to the new prison.

According to the Seventh Circuit Court of Appeals’ opinion, King brought suit on the following grounds: that the acts of the guards “amounted to an unjustified and humiliating strip-search that violated his rights under the Fourth and Eighth Amendments to the federal Constitution.” However, the district court found after reviewing King’s complaint (under the Prison Litigation Reform Act of 1995) that he had not stated a viable claim under the Eighth Amendment for cruel and unusual punishment, but allowed him to go forward with the Fourth Amendment theory of unreasonable search. The district court later granted summary judgment in favor of the defendants because King had failed to exhaust all administrative remedies to his problem under the Prison Litigation Reform Act. King subsequently appealed.

In reviewing King’s complaint, the Seventh Circuit decided that King’s transfer from one prison to another “made it impossible” for him to follow the grievance procedures against the guards that he would have otherwise been allowed. After being transferred, King wrote to the jail to obtain the proper grievance form, but received no response.

In response to the claim by defendants that he had not followed the proper grievance procedures, “King… responded with a number of affidavits and sworn pleadings stating that: (1) he tried to resolve his complaint informally by complaining to the guards on the day of his transfer; (2) he lacked access to writing materials with which to request the grievance form until more than a week after his transfer; and (3) he wrote to the jail as soon as he could, explaining his complaint and requesting the proper paperwork, but never received a response”, which tends to prove that King did exhaust all viable options in attempting to contact the county jail with his grievance.

The Seventh Circuit reversed and remanded for further proceedings after clarifying that an Eighth Amendment claim of cruel and unusual punishment was valid in this situation. It held that the Eight Amendment claim that King attempted at the district court level was plausible because the “unusual” jumpsuit King was forced to wear did not have a corrective purpose, but was rather used for humiliation. The Seventh Circuit explained that even in prison individuals must be protected against unreasonable intrusions to their bodies.

Such a holding by the Seventh Circuit Court of Appeals will hopefully encourage prisons to uphold standards of prisoner dignity in day-to-day operations. This decision demonstrates to those who would harass and embarrass prisoners for the sake of their own amusement that such sickening and intrusive behavior will not be tolerated.

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