P r i s o n B r e a k

P r i s o n B r e a k Correctional Liability Update December 2013 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 19 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 30 civil jury trials throughout California. email: scoleman@bwslaw.com direct: 213.236.2831 Media Coverage for Prisons and Jails By Susan E. Coleman In a typical news day, the Los Angeles Times may have a lengthy front page article about the arrest of 18 Los Angeles County Sheriff s deputies, an editorial bemoaning the inflated recidivism rates based on allegedly artificial definitions, and a tiny 2 article on page 34 about a guard attacked at a prison during a cell search. This lopsided media coverage, focusing on negative aspects of law enforcement while minimalizing stories that make prisoners less sympathetic, results in skewed perceptions amongst the public. Hollywood images, from the Netflix series Orange is the New Black to shows such as Oz do nothing to help these perceptions. At trial, the primary job for litigators defending custody staff is to educate the jurors about what really happens inside the prison or jail. For example, rather than the inmate s paranoid theory about jailers intent on revenge because of one inmate appeal, it is important to describe the reality of myriad tasks done by correctional officers within an 8-hour shift, such as feeding hundreds of inmates, releasing them to yard, providing security coverage, escorting inmates to showers, medical appointments, attorney visits, responding to incidents, and writing reports. But educating the public one juror at a time isn t enough. Prisons and jails should also work on obtaining more press coverage about the violence committed by inmates within their facilities on a daily basis, so that the public learns more about the volatile world of gangs, drugs, and violence that officers must brave daily. The public doesn t December 2013 Prison Break Page 1

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. hear about the frequent gassings, threats, profanity, attempted assaults, and batteries that occur within California s prisons and jails. Once criminals are convicted and incarcerated, the publicity is almost nonexistent unless there s a claim of excessive force filed by the prisoner or the Innocence Project challenges his conviction. Even when an in-cell homicide is committed, the news coverage is extremely limited; however, if an inmate is shot by staff during a riot, for example, it will be on the front page - with references to the Corcoran 8 prosecuted in 2000 [without mention of their acquittal] and insinuations about gladiator setups. So what can we do about this skewed coverage by the media? When an incident occurs in which inmates are responsible for violence, or staff make a positive contribution such as holding a blood drive, issue a press release. The headline should be short and catchy, with active verbs and specific facts. For example, instead of stating Warden Jones announced today, get to the point and say instead Inmate Smith Stabs Officer in Stomach. The opening paragraph should be short, no more than 3 sentences, and should answer the basic journalistic questions about who, what, where, when, why, and how. Like a pyramid, the most important information should appear at the top of the story. Although the newspapers and TV/radio stations may choose not to publish articles which show custody staff in a positive light, this should not deter the mission to educate the public about the reality of working in a prison or jail. By improving the media image for custody staff, it will also increase public support for these officers, working the toughest beat in the state. 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. email: kgruenberg@bwslaw.com direct: 213.236.2805 Party of One: Breaking Up Multi-Party Pro Se Inmate Cases By Kristina Doan Gruenberg When an inmate files a lawsuit, other inmates often want to jump on the bandwagon and become co-plaintiffs. This happens particularly in religion cases, where members of a religious group (such as Wiccans) want to make the same First Amendment and RLUIPA claims. For example, several members of the House of Yahweh have tried bringing lawsuits together, claiming their rights were violated by the denial of Kosher meals. Generally, plaintiffs may join in one action if: (1) they assert any right to relief or damages arising out of the same incident, and (2) there is any question of law or fact common to all plaintiffs will arise in the action. However, before allowing a joinder, the court must examine whether it would be fair or result in prejudice to any side. Many courts, especially those who frequently deal with inmate cases like the Eastern District of California (Fresno and Sacramento), disfavor multi-party cases where the plaintiffs are representing themselves (pro se). These courts acknowledge that actions brought by multiple inmates proceeding without counsel present unique problems not presented by ordinary civil litigation or by cases where inmates are represented by counsel. One court stated that delay often arises from the frequent transfer of inmates to other facilities or institutions, the changes in address that occur when inmates are released to parole, and the difficulties faced by inmates who attempt to communicate with each other and with unincarcerated individuals. December 2013 Prison Break Page 2

These difficulties arise because inmates cannot send mail to other inmates or probationers unless they meet strict criteria, such as receiving approval from the warden, due to security concerns. (Cal. Code Regs. tit. 15, 3139.) While inmates may claim that they are working on a case together, it could be a ruse to engage in gang or other illegal activity. Further, although inmates have a legal right to help one another prepare legal documents, this right is limited. For example, even though an inmate may possess legal papers, books, opinions or forms of another inmate that he is helping, those documents must be returned to the respective owner when either inmate is transferred to another institution or when an administrative action prevents communication between the inmates. (Cal. Code of Reg., tit. 15 3163.) 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 Given the limitations on communication between inmates, the courts have found that it would be difficult for parties to file joint motions because all pleadings must be signed by each party representing himself. Therefore, each plaintiff would have to sign and separately file his own papers with the court, which many courts believe would cause confusion and delay, and effectively eliminate the benefits of a consolidated action. Because the purpose of a joinder is to streamline litigation, the courts have good reason to deny motions to join when they would result in delay. In contrast to joinder, if a lawsuit has been filed on behalf of multiple plaintiffs and the court finds that it is not appropriate, the court may dismiss all but the first named plaintiff without prejudice, and create new, separate lawsuits by the dismissed plaintiffs. While breaking up a lawsuit into individual lawsuits may seem to create more litigation, the reality is that once these lawsuits are broken up, several bandwagon plaintiffs may abandon their claims because they do not have the desire to proceed on their own. Finally, the filing fee provisions of the Prison Litigation Reform Act of 1995 (PLRA) may affect whether courts allow multi-plaintiff actions. In the Sixth Circuit, the court rules allow multiple inmates to file suit together and divide up the filing fee. Meanwhile, the Third Circuit and Seventh Circuit allow multi-plaintiff actions only if each inmate pays a filing fee. Conversely, the Eleventh Circuit has determined that the filing fee provisions of the PLRA suggest that inmates cannot bring multi-plaintiff actions, but rather must proceed separately. The Eleventh Circuit found that part of the intent of the PLRA was to deter frivolous lawsuits by imposing a filing fee, and that allowing inmates to divide up the filing fee weakens this deterrent. Fee-splitting amongst multiple parties could also create complications with inmates who have had their IFP status revoked (i.e. as vexatious litigants) and must pay the entire filing fee at the commencement of the action. The Eleventh Circuit also held that requiring each inmate to pay the filing fee in a multi-party action would conflict with the language of the PLRA, because the amount of fees collected would exceed the amount permitted by statute for commencement of the action, in violation of 28 U.S.C. 1915(b)(3). While the Ninth Circuit (our jurisdiction) has yet to rule on this issue, many district courts in California have followed the logic of the Eleventh Circuit. Ultimately, this split between the circuits about whether the filing fee provisions of the PLRA prevent multi-party lawsuits with pro se litigants could make its way to the Supreme Court. Regardless of the final decision regarding the filing fee provision, the district courts have nonetheless pointed out good reasons for courts to prohibit these multiparty pro se actions, namely the delays that these types of lawsuits December 2013 Prison Break Page 3

cause in the courts and the security concerns within the correctional system. Mitch Wrosch is an associate at Burke. He has four years of specialized experience in correctional litigation, with four civil jury trials. email: mwrosch@bwslaw.com direct: 213.236.2814 One Vegan Meal Fits All By Mitch Wrosch In August 2013, U.S. District Judge Avern Cohn, sitting on the U.S. District Court for the Eastern District of Michigan (Detroit), ruled that the Michigan Department of Corrections (MDC) was violating the rights of Muslim prisoners by denying them the option to have festival halal meals. As part of the settlement in the case, which was approved in November, the MDC must now provide Muslim inmates with a halal diet. However, the Muslim inmates will be provided the same diet as vegetarian and Jewish inmates, as the Court implicitly upheld the MDC practice of providing one vegan meal that satisfies the religious requirements of vegetarian, Muslim, and Jewish inmates. California --- take notice. Ulysses Aguayo is an associate at Burke, Williams & Sorensen, where he works in correctional litigation and law enforcement defense. He graduated from Loyola Law More than 8% of Michigan prisoners are Muslim. In 2006, a group of Muslim inmates, represented by the American Civil Liberties Union, sued the MDC because they were not provided halal food and were not excused from working on Muslim holidays. Following the Court s ruling on behalf of the inmates, the parties entered into a settlement, which was approved by the Court. Pursuant to the agreement, the MDC will provide a halal diet to its Muslim inmates, allow the inmates to gather on the two Eid holidays per year, and excuse Muslim inmates from working on holidays (MDC was disciplining inmates who failed to show for work on religious holidays). But, the MDC will not need to provide the Muslim inmates with a specialized halal diet. The halal meals the MDC agreed to provide are the same vegan meals that it provides to vegetarian and Jewish inmates. In September 2013, the MDC introduced a food system that offers one type of vegan meal that complies with all religious beliefs and satisfies the basic nutritional requirements to all prisoners. The Court here did not specifically address this program, but it approved the settlement which mandated the MDC to provide Muslim inmates with the vegan diet. Although many Muslim inmates objected to the settlement because it does not provide for a meat-based diet, even the attorneys representing the inmates have stated that the case was about securing meals for Muslim inmates that met their religious needs, and not about providing them with specific foods. We have long recommended that the CDCR do the same in order to reduce costs of providing specialized kosher and halal meals. The CDCR should look to the MDC s standardized vegan diet as a way to break the endless cycle of inmate litigation regarding specialized and individualized religious diets. Parthemore v. Col: California Court of Appeals Holds that Exhaustion Requirement Applies to Independent Contractors By Ulysses Aguayo In California, prison inmates may appeal any action which they can show as having a negative effect on their welfare. A decision at the third or director s level of review constitutes exhaustion of an inmate s administrative remedies in the grievance/appeal process, which is a mandatory prerequisite to a civil lawsuit in both state and federal courts. December 2013 Prison Break Page 4

School in spring 2012. Prior to joining Burke, he served as a judicial extern to the Honorable S. James Otero, of the Central District of California. email: uaguayo@bwslaw.com direct: 213.236.2711 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 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 Recently, Burke, Williams & Sorensen, LLP successfully defeated a prisoner s claims based on his failure to exhaust. In doing so, the court decided an exhaustion-related issue of first impression: namely, whether prisoners are required to exhaust the available administrative remedies before bringing a cause of action against an independent contractor. In Parthemore v. Col, the plaintiff, an inmate at Mule Creek State Prison, sued an optometrist, who was not an employee but was under contract with the California Department of Corrections and Rehabilitation ( CDCR ) to provide optometry services. Prior to filing suit for negligence and fraud, the plaintiff did not receive a third or director s level decision for the issues he complained of. As a result, defendant argued that plaintiff s case should be dismissed for failure to exhaust administrative remedies. The trial court agreed and dismissed plaintiff s case, after which he appealed on the grounds that defendant was not a state employee. On appeal, plaintiff argued that the Government Claims Act, which sets forth the procedure for bringing claims against public entities (e.g. the CDCR), and the employees of public entities, specifically exempts independent contractors from the definition of public employees (and consequently excludes them from the Act s protection). Therefore, by analogy, as plaintiff argued, exhaustion of administrative remedies is similarly not required when a prisoner wishes to sue an independent contractor. The Third Appellate District of California was not convinced. Specifically, the court made two important notes in its holding. First, plaintiff s obligation to exhaust the administrative remedies available to prisoners... is independent of the obligation to comply with the Government Claims Act. Second, in interpreting the regulations that govern the administrative review process, the court construed the phrase department or its staff to include... independent contractors, like defendant, who are retained by the department to provide services on its behalf. Thus, although the procedures set forth in the Government Claims Act do not apply to independent contractors, prisoners must nevertheless exhaust administrative remedies within the prison or jail appeal system before bringing a claim against independent contractors. Finally, the Court also recognized that applying the exhaustion requirement broadly to include the decisions and omissions of individuals hired by the department but categorized as independent contractors also furthers the goals of mitigating damages, promoting judicial economy, encouraging prisoners to make full use of the prison grievance process, providing prisons or jails with a fair opportunity to correct their own errors, reducing the quantity of prisoner suits, and providing a record for courts to review. The Parthemore decision is a victory for correctional facilities in California. This case sets precedent requiring prisoners to exhaust administrative remedies for claims against independent contractors, which includes those who are retained by the department to provide services on its behalf. It also reinforces that exhaustion provisions should be applied broadly because of all of the policy goals that the administrative grievance process satisfies. 444 South Flower Street Suite 2400 Los Angeles CA 90071 800.333.4297 www.bwslaw.com December 2013 Prison Break Page 5