Transgender Prisoner’s Right to Sex Reassignment Surgery Upheld

Prison officials must provide sex reassignment surgery to a prisoner serving a sentence of life without parole if that treatment is deemed “medically necessary,” said the United States Court of Appeals for the First Circuit on January 17, 2014. Michelle Kosilek, a Massachusetts prisoner confined at the Massachusetts Correctional Institution Norfolk, sued Massachusetts Department of

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Sixth Circuit Rejects Racial Disparity Challenge To Crack Cocaine Sentences, Reverses Panel That Applied Fair Sentencing Act Retroactively

By Christopher Zoukis

On December 3, 2013, the United States Court of Appeals for the Sixth Circuit, sitting en banc, rejected a challenge to the federal crack cocaine sentencing regimen that had been held unconstitutional in May by a three-judge panel of the Court.  By a 10-7 margin, the full court ruled that the crack cocaine sentences handed down to two black defendants, withstood review for racial disparities under the Fifth and Eighth Amendments to the United States Constitution.  The Court also ruled that Sentencing Guidelines relief from mandatory minimum sentences provided by the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, would not be applied retroactively under 18 U.S.C. § 3582(c)(2).  United States v. Blewett, Case No. 12-5226, 5582 (6th Cir., 12/3/12)(en banc).

The en banc court reversed a controversial decision by a three-judge panel of the same court that equated the federal crack cocaine sentencing regimen with “slavery and Jim Crow laws,” and vacated the sentences of two black defendants as violation of the equal protection clause. See United States v. Blewett, 719 F.3d 482, 493 (6th Cir. 2013), vacated (July 11, 2013).

The en banc court ruled that the Blewett defendants’ claim of an equal protection clause violation, due to the crack sentencing laws having a disparate effect on blacks, failed because prior decisions of that court had already addressed the issue, see, e.g., United States v. Williams, 962 F.2d 1218, 1227 (6th Cir. 1992), and that an Eighth Amendment concern over the length of their sentence were negated by Supreme Court decisional law that had upheld far more onerous punishments for drug dealing than the 10-year sentences imposed on Cornelius Blewett and his cousin, Jarreous Blewett. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991)(upholding life-without-parole sentence for 672 grams of cocaine).

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Illinois DOC’s Failure to Accommodate Disabled Prisoners

By Prison Legal News

In separate decisions, the Seventh Circuit Court of Appeals reversed the dismissal of two lawsuits filed by disabled state prisoners, finding that the Illinois Department of Corrections (IDOC) may have violated their rights under the Rehabilitation Act (RA), while skirting claims raised under the Americans with Disabilities Act.

In May 2010, Phillip E. Jaros was sent to the Vandalia Correctional Center (VCC) to serve a two-year sentence for driving on a suspended license.

Medical records indicated that Jaros suffered from several serious physical ailments, including advanced osteoarthritis and vascular necrosis in his right hip. He required a cane to walk, and walking for more than a few minutes made him tired. He suffered chronic, severe pain whether walking, sitting, standing or lying down. Private physicians had recommended a hip replacement.

VCC was not compliant with the Americans with Disabilities Act (ADA), and lacked grab bars for the physically disabled near toilets and in showers and walkways. Two days after his arrival at VCC, Jaros told Teanah Harter, a grievance coordinator, that he required such accommodations. She conceded that VCC was not ADA compliant but told Jaros “to just deal with it,” because the prison’s administrators “did not do” medical transfers. Harter recommended that the warden deny a grievance filed by Jaros on the grounds that he could not be transferred as he had less than a year left to serve.

VCC’s failure to accommodate Jaros’ disability caused him to miss some meals because he could not walk fast enough to the cafeteria. He also limited himself to four showers a month out of fear that he would fall. Further, he alleged he was not approved for work release due to a “medical hold” placed in his file due to his disability.

Following his release, Jaros brought claims under the RA, ADA and Eighth Amendment. The suit was dismissed at the screening stage for failure to state a claim, and he appealed.

The Seventh Circuit held that the district court had properly dismissed the Eighth Amendment claim because “the alleged conditions of Jaros’s confinement did not deprive him of life’s necessities.” The Court of Appeals then turned to the RA and ADA claims.

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Sixth Circuit: Disciplinary Conviction Does Not Bar Excessive Force Claim

By Christopher Zoukis

Prisoners who claim they were assaulted by guards in violation of the Eighth Amendment are not barred from challenging such abuse in court even if they were found guilty of disciplinary charges in connection with the incident, the Sixth Circuit Court of Appeals has held. Moreover, it is erroneous for a district court to rely on a guard’s written account of the incident when videotape evidence is readily available.

In overturning a grant of summary judgment in favor of a prison guard, the Court of Appeals ruled that the guard’s alleged act of slamming a handcuffed prisoner into a wall and then to the floor was an event legally distinct from the prisoner’s alleged assault on the guard moments earlier. Prison guards who use excessive force after subduing prisoners are not immunized from court oversight as a result of disciplinary infractions against the prisoner, the Sixth Circuit wrote.

Michigan state prisoner Toran V. Peterson filed suit in federal court, claiming that a prison guard identified only as “Jones” had, without provocation, pushed up on his handcuffed arms to “slam” him into a wall, then lifted him three feet off the ground to slam him to the floor. Peterson was not seriously injured but filed a 42 U.S.C. § 1983 complaint, alleging cruel and unusual punishment in violation of the Eighth Amendment among other claims.

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Supreme Court: No Bivens Actions for Federal Prisoners in Private Prison

By Matt Clarke

In an 8-1 decision, the U.S. Supreme Court has held that federal prisoners
housed in privately-managed prisons may not file Bivens-style federal lawsuits
against private prison employees alleging lack of medical care in violation of
the Eighth Amendment.

Richard Lee Pollard was a federal prisoner incarcerated in a California facility
operated by Wackenhut Corrections (now GEO Group) when he slipped on a cart
left in the doorway to the butcher shop in the prison’s food service
department, fell and was injured. He was X-rayed at the prison. Because prison
medical staff believed he had fractured both elbows, he was taken to an outside
clinic for orthopedic evaluation. He later had surgery.

Pollard filed an action in federal court under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), alleging that guards had caused him severe pain by
requiring him to put on a jumpsuit for transportation outside the prison when
he could not extend his arm, and by placing him in arm restraints that caused
him great pain. He also alleged that prison medical personnel failed to provide
a splint, physical therapy and medical studies recommended by the outside
clinic and provided insufficient pain medication, leaving him in so much pain
that he could not sleep. Further, he claimed that prison officials did not make
provisions for basic hygienic care and nourishment, and as a result he was
unable to bathe or receive meals from the food service department for two
weeks. Finally, he alleged that prison officials ordered him to return to work
before his injuries had healed.

The district court dismissed Pollard’s suit after agreeing with the magistrate
judge that the Eighth Amendment did not provide for a Bivens action against
employees of a privately-managed prison. The Ninth Circuit reversed the
dismissal on appeal, finding that the Eighth Amendment did provide such an
action. The defendants filed a petition for writ of certiorari in the Supreme
Court, which was granted.

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The Eighth Amendment’s prohibition against “cruel and unusual punishment” includes a bar to the use of “excessive force” by prison officials against prisoners. Hudson v. McMillian, 503 U.S. 1, 8 (1992). When a prisoner makes an Eighth Amendment claim of excessive force, courts consider two elements: (1) the objective severity of the prisoner’s injuries from

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