Prison Break. Correctional Liability Update March Colorado Prison Chief s Death a Harsh Reality Check By Susan E. Coleman

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1 Prison Break Correctional Liability Update March 2013 Colorado Prison Chief s Death a Harsh Reality Check By Susan E. Coleman On March 19, 2013, just after 8:30 p.m., Colorado State s Executive Director of the Department of Corrections, Tom Clements, answered the doorbell at his home in Monument, Colorado. He was shot by an unidentified assailant and died soon after. Clements started his career in corrections as a parole officer in Missouri, and he rose through the ranks to become that state s director of prisons. Burke, Williams & Sorensen, LLP offers the expertise, depth, breadth, and quality service you need in the area of Correctional Litigation through the specialized knowledge of our featured attorneys. Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including correctional litigation. Ms. Coleman has 18 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 20 civil jury trials throughout California. scoleman@bwslaw.com direct: The motive for the killing officially remains a mystery. Not surprisingly, the local sheriff s department noted that Clements position may be a possible motive for a crime such as this. The Governor of Colorado queried whether the shooting could be an act of retaliation or an act of intimidation. He noted that the Director s position is a difficult job. You make difficult decisions. Can this type of execution-style killing of custody officials occur in California? According to the Officer Down Memorial Page website, 33 employees of the California Department of Corrections and Rehabilitation have been killed in the line of duty, and 20 of those were killed by inmates. 17 were custody employees, and 3 were non-custody employees working in industrial areas. 15 deaths were from stab wounds, 2 were from gunshot wounds, 2 were from bludgeoning, and 1 was being thrown from a tier. The last corrections officer killed on duty in the CDCR was Manuel Gonzalez, stabbed at the California Institution for Men in Chino in While street cops may consider custody work to be safer, due in part to the fact that inmates may have shanks but not guns, CCPOA has long argued that working in the prisons is the toughest beat in the state. Working inside the perimeter is often more stressful, as corrections staff deal with dangerous felons and rarely interact with civilians except perhaps those visiting incarcerated family members. On duty, custody staff know to be on guard and literally watch their backs to prevent an assault. Clements shooting serves as a harsh reminder that correctional staff must also be on the alert while off duty. We extend our condolences to the Clements family and the Colorado Department of Corrections community, and salute the correctional staff everywhere who put their life at risk daily to hold the line. March 2013 Prison Break Page 1

2 Catch Me if You Can: Anticipating Service of Process Issues for Former Employees By Susan E. Coleman When an employee of a government agency retires, resigns, goes on medical or administrative leave, or is terminated, service issues can and do arise when the employee is subsequently named in a lawsuit. Since inmates get up to two years tolling of the statute of limitations during their term of incarceration, extending the time for them to file suit, often these lawsuits show up years after the employee has last worked at the facility. While a person who is never served may end up being dismissed by the court for lack of service, in some cases the person may end up being tracked down by an investigator and personally served at their house. This is problematic for many reasons. First, the U.S. Marshal s or Sheriff s Department may note the home address for the former employee on the proof of service, which is later filed with the court and becomes a public record. Peace officers (and former peace officers) addresses should be kept confidential for reasons of safety and security. Second, without the assistance of a Litigation Coordinator or Civil Liability Unit contact, the former employee may not know what to do with the papers s/he has received. In some instances, when the State or County is also sued along with the individual officers, former employees assume that the matter is being taken care of by the agency and takes no further action. This disastrous assumption can result in a default judgment being taken against the person who has been served and fails to respond. Default judgments can be expensive and time consuming to overturn, or if not challenged, can end up resulting in a lien on the person s assets or income. This may occur even in cases that involve frivolous claims which would be easily defeated on the merits. So what can be done to avoid these issues? At Kern Valley State Prison, the Litigation Office provides employees with a blanket authorization to accept service of process on their behalf, except for service on criminal or civil contempt issues which must be served personally, and authorizes the Litigation Office to request legal representation on their behalf. This type of form can be provided when employees retire, go on leave, or leave for any other reason. The key element in making this authorization effective is for the employee to keep the Litigation Office updated on their contact information at all times. An employee s receipt of a legal defense from their employer for acts done in the course and scope of their duties is dependent upon that person s cooperation in their legal defense. If you would like a sample form, authorizing acceptance of service of process to modify for your agency, let us know. March 2013 Prison Break Page 2

3 Mitch Wrosch is an associate at Burke. He has four years of specialized experience in correctional litigation, with two civil jury trials. direct: Don t Squeeze the Charmin: the Eighth Circuit Holds that Detainees Do Not Have a Constitutional Right to Unlimited Toilet Paper By Mitch Wrosch In the Ninth Circuit, courts have held that inmates are entitled to basic necessities of life including such things as toilet paper, soap, food and water, clothing, running water, and functional plumbing. In the Eighth Circuit, which is generally stricter with inmate rights, the court recently issued a decision in Stickley v Byrd, holding that one roll of toilet paper per week is adequate. James Stickley filed a civil rights complaint under section 1983 against the Sheriff and jail staff of the Faulkner County Detention Center, in Conway, Arkansas. Stickley was detained awaiting trial for six months in Pursuant to jail policy, Stickley was issued one roll of toilet paper each week, and would be provided his fresh weekly roll of toilet paper so long as he showed staff the empty spool belonging to the previous week s allotted roll. Stickley alleged that he had digestive issues, and that he consistently used his weekly roll of T.P. before being issued the following week s roll. When Stickley depleted his roll of toilet paper prior to the issuance of the new week s roll, he would shower to clean himself up following a bowel movement. Stickley would often wait up to 30 minutes before he was given access to a shower. Predictably, Stickley filed a grievance at the jail, complaining that one roll of toilet paper was inadequate. Custody staff responded to the grievance, citing jail policy which provided one roll of toilet paper per inmate each week. Not surprisingly, Stickley then filed suit in federal court alleging that the jail s toilet paper policy violated his constitutional right to adequate sanitation and personal hygiene. The district court denied custody staff summary judgment on Stickley s claim that the defendants refusal to give him adequate toilet paper violated the Fourteenth Amendment, finding that this might amount to a violation of Stickley s rights. Defendants then appealed to the Eighth Circuit. At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Education Law Labor & Employment Litigation Public Law Real Estate & Business Law The Eighth Circuit was not sympathetic to Stickley. The Court reasoned that although Stickley exhausted his supply of toilet paper before receiving his new roll, he was not always without toilet paper, and that when he ran out of it, he could shower to clean himself. The Court explained that, under case law from the Seventh Circuit, a temporary (up to five day) deprivation of toilet paper does not rise to the level of a constitutional violation. Additionally, the Court noted that earlier authority from the Eighth Circuit held that the constitution was not violated where a pretrial detainee was subjected to an overflowed toilet for four days, nor were the constitutional rights of another detainee violated when he was deprived clothes, running water, hygiene supplies, a blanket, and a mattress for four days. Thus, the court found that any deprivation of hygiene supplies for Stickley was temporary (i.e., the last day or two of each week). Though it is hard to believe that a Court of Appeals would have to waste valuable resources addressing the issue of falling a few squares short of toilet paper, ultimately, the result is favorable one for jail administrators. However, we are not in the Eighth Circuit, and it is conceivable that the Ninth Circuit would find that pretrial detainees are entitled to an unlimited supply of Charmin. As for post-trial convicted March 2013 Prison Break Page 3

4 felons, prisons are required to provide them with toilet paper, however, in light of Stickley, it can be argued that inmates do not have a constitutional right to unlimited Charmin or even one-ply paper. Ulysses Aguayo is an associate at Burke, Williams & Sorensen, where he works in correctional litigation and law enforcement defense. He graduated from Loyola Law School in Spring Prior to joining Burke, he served as a judicial extern to the Honorable S. James Otero, of the Central District of California. uaguayo@bwslaw.com direct: Qualified Immunity: An Evolving Shield Against a Blitz of Inmate Lawsuits By Ulysses Aguayo If you have ever been sued by an inmate, you may have heard about the affirmative defense of qualified immunity. This defense protects government officials and employees (e.g. custody officers) in situations where their conduct does not violate clearly established rights of which a reasonable official in their position would have known. This ensures that an official must have fair notice of the law before being subject to suit for damages. Application of this defense raises a couple of questions: (1) how does the reasonable official part of the test work?; and (2) what is a clearly established right? Recent cases in the Supreme Court provide guidance. Most interestingly, the Supreme Court has increasingly required notice of unlawful conduct to be more specific in order to deny qualified immunity, raising the odds of this defense providing immunity to custody officers. Thus, instead of generally saying that the Eighth Amendment prohibits excessive force to hold that an officer had notice his conduct was unconstitutional, for example, the Supreme Court might require notice that using two full canisters of pepper spray during a cell extraction violates the Eighth Amendment where an inmate has surrendered after use of the first canister. A series of cases have led to the increased specificity required by the Supreme Court in order to deny qualified immunity. In 2011, the Supreme Court decided Ashcroft v. Al-Kidd, 131 S.Ct (2011), and held that clearly established law is violated when every reasonable official would have understood that his conduct violates that right. The Court explained that, for every reasonable official to have known the contours of a right, prior cases must have placed the constitutional question beyond debate. This means that defendants can argue that prior cases have left the contours of a certain right debatable, or that some reasonable officials would not have known they were violating a constitutional right. The Supreme Court has also explained that clearly established law means that there must have been a previous case with substantially similar facts. For example, in Safford Unified School District v. Redding, 129 S. Ct. 263 (2009), school officials strip-searched a 7th grade girl on suspicion that she possessed prescription drugs. The Court dismissed the case against the school officials based on qualified immunity because there was no clearly established law holding that strip searches under these circumstances violated a constitutional right. Similarly, in Ryburn v. Huff, 131 S. Ct. 987 (2012), the Supreme Court considered whether entering a home without a warrant violates clearly established law. The Court held that the officers were entitled to qualified immunity, because the circumstances were so unique that no prior Fourth Amendment case had been decided on similar facts. March 2013 Prison Break Page 4

5 Therefore, for purposes of qualified immunity, if there is no previously decided case on the question of a certain right, with very similar facts, the right is not clearly established. This significantly benefits custody staff who are sued in civil rights litigation. Arguably, every case may contain a unique set of facts, and defendants can argue that there was no clearly established law for those specific circumstances at the time of the alleged violation. For officers and officials in the prison/jail context, the important thing to do is to follow institutional and/or Departmental policy. This helps the qualified immunity defense because following policy is likely what most reasonable officials would do. Additionally, regulations often derive from case law or the Penal Code, making officers reliance on them reasonable. After all, qualified immunity is meant to protect all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 106 S. Ct (1986). Kristina Doan Gruenberg is an associate at Burke. Prior to joining the firm, she served as a judicial law clerk in the District of Columbia, handling civil and criminal cases including many inmate complaints. kgruenberg@bwslaw.com direct: American Taliban Living on a Prayer By Kristina Doan Gruenberg John Walker Lindh is best known as the California-native turned American Taliban fighter. Lindh is currently serving a 20-year sentence at a high-security federal prison in Indiana after pleading guilty to supplying services and carrying explosives for the Taliban. In 2010, Lindh joined a lawsuit filed by other Muslim inmates against the United States government, claiming that the government was violating their religious rights by banning daily prayer groups. While the other inmates dropped out of the lawsuit after they were transferred or released from prison, Lindh continued to pursue the matter up to a bench trial. This case forced the court to decide whether Muslims convicted of terrorism should be allowed to gather together in prison to pray. Inmates at Lindh s prison, held in the Communications Management Unit, are allowed to pray together only once a week except during Ramadan. At other times, they must pray in their individual cells. Lindh s lawsuit argues that the prison s policies force him to sin because Islam requires him to pray five times a day with other Muslims, if possible. Lindh contends that if the prison allows inmates to talk, play cards and engage in other recreational activities throughout the day, then they should be allowed to pray together. Moreover, before 2007, Muslim prisoners were allowed to pray together for at least three of Islam's five daily prayers, and there were no reports of problems. The government defended their policy, stating that the same restrictions applied to all inmates, not just Muslims, and that the thrice-daily group prayers were banned for security concerns. They argued that without such strict security, prisoners would be able to conspire with outsiders to commit terrorist or criminal acts. Government witnesses testified that Muslims, who make up the majority of inmates in the Communications Management Unit, have used religious activity as a cover for operating like a gang. March 2013 Prison Break Page 5

6 The government argued that group prayer time was particularly dangerous because guards would not be able to understand the inmates; while inmates must speak English at all other times, they are allowed to recite ritual prayers in Arabic. As one example, the government provided evidence that Lindh delivered a radical, all-arabic sermon to other Muslim prisoners in February that was in keeping with techniques in a manual seized from al-qaida members that details how terrorists should conduct themselves when they are imprisoned. Lindh s attorneys disputed this characterization and noted that Lindh was never disciplined for this incident. Burke's Correctional Litigation Team routinely deals with the following issues: First Amendment Fourth Amendment claims of unlawful search and seizure Eighth Amendment excessive force and deliberate indifference to safety or medical needs Fourteenth Amendment due process Religious claims under the First Amendment and RLUIPA Section 1983 claims of all types Bivens claims Torts including negligence, wrongful death, assault and battery, conversion, Bane and Unruh Act claims Class action litigation Parole and probation issues Employment issues Unfortunately, the government s case did not win over the court. On January 11, 2013, a federal judge ruled that banning daily prayer groups violates the Religious Freedom Restoration Act (the counterpart to Religious Land Use and Institutionalized Persons Act (RLUIPA) for suits against the United States government). The Religious Freedom Restoration Act bans the government from restricting religious speech without showing a compelling interest. The court found that the prison s restriction substantially burdened Lindh s religious beliefs, and while security was a concern, there was no actual evidence that daily group prayers actually led to problems such as violence. The court stated the fact that other federal prisons were able to accommodate daily prayer without incident demonstrates that there were other alternatives that should have been considered by the Warden. The government announced that it would not appeal the district court s decision. Lindh s case shows that, although judges recognize that security is a top concern at prisons, many judges want specific evidence that prison policies are addressing a tangible threat. While the Indiana district court s decision is not legally binding in California, it could influence other courts dealing with national security issues in prison, particularly given the national attention that this case has received due to Lindh s notoriety. Further, this case could also make it more difficult for prisons to regulate the congregation time for other religious groups which administrators believe are covers for gang activity, such as Odinists. Finally, many legal experts have pointed out the irony in Lindh s case: the American Taliban, whose religion turned him against the United States, is now turning to U.S. law to protect his religious rights. We'd Appreciate Your Feedback! If you would like to see any specific topics addressed in future issues, please let us know. Also, if you know other people who would be interested in reading this newsletter, let us know and we'll add them to the distribution list! Law Offices Throughout California 444 South Flower Street Suite 2400 Los Angeles CA March 2013 Prison Break Page 6