ALL DIRECTORS’ TRAINING2015

Kathleen M. KenneyAssistant Director/General CounselFederal Bureau of Prisons

PRISON LEGAL ISSUES

TOPICS

Failure to Protect Death Penalty Restrictive Housing Gender Dysphoria Marriage Religion Hepatitis C Mental Health Misc. 9th Circuit Cases

FAILURE TO PROTECT

MORALES V. UNITED STATES, 72 F. SUPP.3D 826 (W.D. TENN. 2014)

Inmate alleged BOP breached duty of care by failing to protect him from another inmate

While housed separately in SHU on “keep away” status, Morales and the other inmate were placed in a recreation cage together, at which point the other inmate stabbed Morales 14 times with a homemade weapon While on “keep away” status, the two inmates

were to have no physical contact with each other

MORALES V. UNITED STATES

Court found BOP breached duty of care by allowing Morales to enter recreation cage with inmate on “keep away” status Staff failed to check inmates’ “keep away”

status No staff monitored the inmates while in

recreation cage 

MORALES V. UNITED STATES

Court awarded Morales damages in three categories: Pain and suffering ($75,000) Injury to his left arm ($5,000) Psychological injury he experienced as a

result of the attack ($25,000)

DEATH PENALTY

DEATH PENALTY ISSUES

Executions and death sentences have decreased since the 1990s

Since 1976, there have been 1,414 executions in the United States

35 executions in 2014 20 executions in 2015 to date States that are executing inmates use

pentobarbital or a combination of two or three drugs

The federal government has not executed an inmate since 2003

DEATH PENALTY IN THE STATESNINETEEN STATES (AND THE DISTRICT OF COLUMBIA) HAVE ABOLISHED THE DEATH PENALTY

Michigan (1846) Wisconsin (1853) Maine (1887) Minnesota (1911) Alaska (1957) Hawaii (1957) Vermont (1964) Iowa (1965) West Virginia (1965) North Dakota (1973)

District of Columbia (1981)

Massachusetts (1984) Rhode Island (1984) New Jersey (2007) New York (2007) New Mexico (2009) Illinois (2011) Connecticut (2012) Maryland (2013) Nebraska (2015)

DEATH PENALTY IN THE STATES

TENNESSEE In September 2014, Tennessee became the

first state to mandate use of electric chair when lethal injection drugs are unavailable

Eight states authorize electrocution as a method of execution, but only at the inmate’s discretion

DEATH PENALTY IN THE STATES

UTAH In March 2015, Utah Governor signed

legislation reauthorizing the state to use the firing squad if drugs required for lethal injection are unavailable

GLOSSIP V. GROSS, 135 S. CT. 2726 (2015)

Death row inmates challenged the constitutionality of the Oklahoma DOC execution protocol

Claim three-drug protocol violates Eighth Amendment Allege first drug used (midazolam) has no pain-relieving

properties and cannot reliably produce deep, coma-like unconsciousness

Allege constitutionally unacceptable risk of pain and suffering from the two other drugs when inmate is conscious

United States Supreme Court found inmates were not entitled to a preliminary injunction because (1) they failed to identify a known and available alternative method of

execution with a lesser risk of pain as required in Eighth Amendment method-of-execution claims and

(2) they failed to establish that Oklahoma’s use of a massive dose of midazolam entails a substantial risk of severe pain

HALL V. FLORIDA, 134 S. CT. 1986 (2014)

Supreme Court held Florida’s bright-line IQ cut-off of 70 or below to avoid the death penalty violated Eighth Amendment prohibition against cruel and unusual punishment and disregarded established medical practice by taking IQ as conclusive evidence of inmate’s intellectual capacity

PRIETO V. CLARKE, 780 F.3D 245 (4TH CIR. 2015)

Virginia inmate alleged that his confinement on death row where he was required by state policy to be housed in a single cell with minimal visitation and recreation violated his procedural due process rights

Fourth Circuit held inmate had no due process liberty interest in avoiding confinement on death row Virginia policy mandates that all persons who

receive a death sentence are housed on death row with no possibility of reclassification

BALL V. LEBLANC, 792 F.3D 584 (5TH CIR. 2015)

Louisiana state death row inmates with various medical conditions sued Louisiana DOC claiming the summer heat in death row cells without air conditioning violated the Eighth Amendment, Americans with Disabilities Act and the Rehabilitation Act

Fifth Circuit held that housing death-row inmates who were vulnerable to serious heat-related injury in very hot prison cells without sufficient access to heat-relief measures violated the Eighth Amendment

But the Court denied the inmates’ disability claims because they were not disabled and determined the District Court’s permanent injunctive relief effectively requiring the state to install air conditioning throughout death-row housing was overbroad

RESTRICTIVE HOUSING

DAVIS V. AYALA, 135 S. CT. 2187 (2015)

During jury selection in a murder trial, Hispanic defendant Ayala objected that seven of the prosecution’s peremptory challenges were impermissibly race-based under Batson v. Kentucky

The judge excluded defense counsel from the Batson hearings and Ayala was eventually convicted and sentenced to death

The Supreme Court held that any federal constitutional error from excluding defense counsel was harmless -- Ayala could not establish that the ex parte hearing actually prejudiced him

DAVIS V. AYALA

Justice Kennedy issued a concurring opinion noting that Ayala likely spent most of his 25 years on death row in solitary confinement and expressed concern over the negative effects of long-term isolation

He indicated that in a case presenting the issue, the judiciary may need to require correctional systems to adopt alternative solutions for long-term confinement

DAVIS V. AYALA

In response to Justice Kennedy’s opinion, Justice Thomas issued a concurring opinion noting Ayala’s current accommodations are much more spacious than where his three victims now rest

CNA REPORT ON BOP’S SPECIAL HOUSING UNIT

General conditions of confinement in BOP’s restricted housing units meet national standards

Recommendations for restricted housing: BOP needs adequate non-punitive protective custody housing units Mental health services need improvement in proper mental health

diagnoses, more effective treatment and sufficient psychiatric staffing

BOP needs more uniform time parameters for disciplinary hearings to reduce the substantial variation among facilities in the amount of time served in segregation for similar offenses

BOP needs a formal reentry preparedness program specific to restrictive housing

BOP information systems need improvement to effectively track the number and movement of inmates within restrictive housing units

PRESIDENT OBAMA’S SPEECH TO NAACP – JULY 2015

President Obama has asked Attorney General Lynch to review the overuse of solitary confinement in American prisons

Social science shows that solitary confinement “is often more likely to make inmates more alienated, more hostile, potentially more violent”

“Our prisons should be a place where we can train people for skills that can help them find a job, not train them to become more hardened criminals”

PRESIDENT OBAMA VISITS FCI EL RENO

LEGISLATIVE INITIATIVES Solitary Confinement Study & Reform Act 2015

Introduced in House July 2015 Dramatically reform the practice of solitary

confinement in the US federal prison system Establish a commission to study and recommend best

practices Require that DOJ issue regulations to bind BOP and

incentivize changes in behavior of state and local prison systems

MERCY Act Introduced by Senator Booker in August 2015 Bans “room confinement” at juvenile facilities except as a

temporary response to behavior that poses a serious and immediate risk of physical harm

GENDER DYSPHORIA

TRANSGENDER INMATES

Latest version of DSM changed terminology to Gender Dysphoria No longer Gender Identity Disorder (GID)

PREA regulations have specific requirements Searches Designation Reviews every six months

Courts are recognizing Gender Dysphoria as a serious medical need that requires treatment

KOSILEK V. SPENCER, 774 F.3D 63 (1ST CIR. 2014)

Inmate alleged Massachusetts DOC’s refusal to provide him male-to-female sex reassignment surgery (SRS) to treat his GID constituted inadequate medical care and deliberate indifference to serious medical needs

First Circuit overturned District Court and found decision not to provide SRS did not violate Eighth Amendment

United States Supreme Court declined to hear case

NORSWORTHY V. BEARD, 14-CV-00695 (N.D. CAL.)

Transsexual female inmate with gender dysphoria filed § 1983 suit alleging California DOC was deliberately indifferent to her medical needs and deprived her of equal protection under the laws when they denied her sex reassignment surgery

Inmate’s Hepatitis C makes long-term use of the high dosages of hormone therapy needed for preoperative female transgender patients more dangerous

NORSWORTHY V. BEARD

On April 2, 2015, court granted inmate’s injunction ordering DOC to provide sex reassignment surgery as promptly as possible

On April 10, 2015, DOC filed motion to stay pending review by Ninth Circuit

On May 21, 2015, Ninth Circuit granted a stay Norsworthy was released on parole in August Norsworthy’s attorneys said now she can

have the surgery paid for by Medi-Cal

DIAMOND V. OWENS, 15-00050 (M.D. GA.)

Transgender inmate Ashley Diamond filed a lawsuit in February 2015 claiming the Georgia DOC refused to provide adequate medical treatment for her gender dysphoria

On April 3, 2015, the Department of Justice Civil Rights Division filed a statement of interest asserting freeze frame policies and other policies that apply blanket prohibitions to treatment for transgender inmates with gender dysphoria are facially unconstitutional

The parties now await a decision on Diamond’s preliminary injunction motion seeking an order that the Georgia DOC provide her adequate medical treatment

QUINE V. BEARD, 14-02726 (N.D. CAL.)

California agreed to pay for transgender inmate Shiloh Quine’s genital sex-reassignment surgery as part of an August 2015 settlement

Following the surgery, Quine will be housed in a female facility

Previously, the California prison officials had denied the surgery, arguing that sex reassignment was not medically necessary

ARNOLD V. WILSON,2014 WL 7345755 (E.D. VA. DEC. 23, 2014)

Transsexual BOP inmate alleged prison violated Eighth Amendment by refusing to treat her GID in a manner she desired

Court held inmate did not state Eighth Amendment claim BOP’s policy (PS 6301.03) was flexible and

provided inmate individualized GID treatment BOP expressed valid security concerns when

denying inmate access to makeup

MARRIAGE

OBERGEFELL V. HODGES, 135 S. CT. 2584 (2015)

Several same-sex couples filed suits in Michigan, Kentucky, Ohio and Tennessee claiming state officials violated the Fourteenth Amendment by denying them the right to marry or refusing to recognize their marriages that were lawfully performed in another state

The District Courts ruled in favor of the couples and the Sixth Circuit reversed

The Supreme Court held the Due Process and Equal Protection Clauses of the Fourteenth Amendment require States to license a marriage between two people of the same sex and to recognize a same-sex marriage that was lawfully licensed and performed out-of-State

OBERGEFELL V. HODGES

In reviewing its cases holding the right to marry is protected by the Constitution, the Court references Turner v. Safley, 482 U.S. 78 (1987)

In Turner, the Court held the constitutional right of inmates to marry was impermissibly burdened by a Missouri DOC regulation that allowed inmates to marry only when there were compelling reasons

MARRIAGE POLICIES

Review current policies to consider affording inmates in same-sex marriages the same rights and privileges as those in opposite-sex marriages Program Statement 5326.05, Marriages of

Inmates Review policies regarding family

members being housed at the same institution

RELIGION

HOLT V. HOBBS, 135 S. CT. 853 (2015)

Muslim inmate challenged Arkansas DOC’s policy prohibiting inmate beards

Policy provides for medical exception permitting ¼ inch beard; inmate wants ½ inch beard

44 other states and BOP allow beards that Arkansas prohibits

Supreme Court ruled in favor of inmate

KNIGHT V. THOMPSON, 2015 WL 4638871 (C.A.11 (ALA.))

Native American male inmates challenged Alabama DOC’s short-hair policy (hair “off neck and ears”) under RLUIPA.

ADOC presented detailed evidence about the risks and costs associated with permitting male inmates to wear long hair. DOC showed that male inmates posed a greater security threat than female inmates.

The Court found ADOC met its burden under RLUIPA by offering more than just mere speculation and that there no efficacious less restrictive measures.

The Court also found the provision of an exemption for Native American inmates would not eliminate the ADOC’s security, discipline, hygiene and safety concerns.

INCUMAA V. STIRLING, 791 F.3D 517 (4TH CIR. 2015)

Inmate filed suit against Director of South Carolina DOC alleging his placement in solitary confinement for twenty years violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fourteenth Amendment

Inmate claimed that to be released from solitary confinement, the DOC required him to renounce his religion -- the Nation of Gods and Earths (which is also known as Five Percenters and considered a violent gang)

The Court dismissed the RLUIPA claim finding inmate’s renunciation of his faith was not a prerequisite to returning to general population (choosing to participate in a riot caused his continued solitary confinement)

But the Court found the inmate had a liberty interest in avoiding solitary confinement and the DOC had failed to show it provided the inmate meaningful review

LINDH V. FCI TERRE HAUTE,2013 WL 139699 (S.D. IND. JAN. 11, 2013)

Federal judge ruled that barring John Walker Lindh and his fellow Muslims from engaging in daily group ritual prayer in the Communications Management Unit violates Religious Freedom Restoration Act

Warden had prohibited group prayer based on security concerns

Issue spreading to other CMUs, and to recreation yards and work assignment areas

SCHLEMM V. WALL,2015 WL 2371944 (W.D. WIS. MAY 18, 2015)

Under RLUIPA, Navajo inmate requested (1) game meat be available during religious celebration and (2) he be allowed to wear multi-colored headband/bandana while praying in cell

DOC argued venison too expensive and would violate statewide rule limiting prison foods to those certified by USDA DOC offers Kosher and Halal but does not allow inmates

to choose menu DOC allows only solid white and solid black

religious headgear due to gang identification concerns

SCHLEMM V. WALL

Seventh Circuit found Wisconsin DOC had no compelling interest and granted preliminary injunction entitling inmate to both requests

On May 18, 2015, district court directed DOC to ensure inmate is provided venison for Ghost Feast and allowed to wear headband in cell and during religious ceremonies, so long as it does not contain the color red

WALKER V. BEARD, 789 F.3D 1125 (9TH CIR. 2015)

An Aryan Christian Odinist inmate claimed California’s policy that he could be placed in a prison cell with an individual of a different race violated his right to practice a religious “warding ritual” under RLUIPA

The Ninth Circuit found that the inmate made a sufficient showing that the warding ritual was a “religious exercise,” which the State’s policy substantially burdened

However, the Court then found California’s refusal to exempt him from this housing policy was the least restrictive means of furthering a compelling governmental interest in complying with a 2005 Supreme Court decision Supreme Court ruled in 2005 that California’s use of express racial

classifications for inmate housing assignments was subject to strict scrutiny

HEPATITIS C

HEPATITIS C DRUGS

FDA approved new generation of antiviral drugs in 2013

Single course of treatment costs anywhere from $65,000 to $170,000

Hepatitis C passed most frequently through needle sharing during intravenous drug use and tattooing

Prevalence of hepatitis C in state prisons is 17 percent Prevalence in community is two percent

New drugs have cure rate of 95 percent Previous drugs had cure rate of 45 percent

State budgets grew to accommodate cost of HIV treatment

PASZKO V. O’BRIEN, 15-12298 (D. MASS.)

Prisoners’ Legal Services filed class action lawsuit against the Massachusetts DOC, alleging the state is withholding treatment for Hepatitis C from inmates Allege 1500 state inmates have Hepatitis C, but

only three are currently being treated DOC says the current course of treatment

(three new medications approved by the FDA in 2013-14) costs between $40,000 - $84,000 per person

DALE V. TYLER, 2015 WL 4167366 (D. S.D. JULY 8, 2015)

Court found South Dakota inmate stated an 8th Amendment claim based on DOC’s denial of Ribavirin and Sofosbuvir to treat his Hepatitis C

Inmate claimed he had Grade 2 fibrosis of the liver and Stage 1 cirrhosis of the liver, but that DOC staff said he was not “sick enough” and treatment was too expensive

FRENCH V. CORIZON, 2015 WL 3503055 (D. MD. MAY 28, 2015)

Maryland inmate sought Hepatitis C treatment with new drug, Harvoni (which he ultimately received)

Court granted summary judgment in favor of Maryland DOC finding no 8th Amendment violation

Inmate is not entitled to the care of his choice and DOC provided appropriate care before new drug was approved

BOP CLINICAL PRACTICE GUIDELINES FOR HEPATITIS C

Issued revised guidelines in July 2015 Interferon treatment is replaced by

regimens using new direct-acting antiviral oral medications: Harvoni Viekira Pak Sofosbuvir and either Simeprevir or

Ribavirin

MENTAL HEALTH CASES

SILVERSTEIN V. BOP, 559 F. APP’X 739 (10TH CIR. 2014)

ADX inmate alleged his 30 years in solitary confinement constituted cruel and unusual punishment

Since 2009, his conditions of confinement have been largely equivalent to those of other ADX general population inmates

Court found his degree of social contact and environmental stimuli does not violate Eighth Amendment “Mr. Silverstein’s history with regard to both his violent

conduct and leadership in the Aryan Brotherhood makes this a deeply atypical case and it is clear his segregated confinement is commensurate with ongoing prison security concerns”

CUNNINGHAM V. BOP, 12-CV-01570 (D. COLO. 2012)

Class action filed by seriously mentally ill ADX inmates on behalf of all current, former and future ADX inmates

Alleges BOP ignores needs of mentally ill inmates at ADX, whose confinement conditions are “deplorable”

Plaintiffs seek relief requiring BOP to comply with its existing policies on treatment of mentally ill inmates and Eighth Amendment’s requirements for medical treatment

Court found inmates stated Eighth Amendment claim; on June 15, 2015, plaintiffs filed second amended complaint

DOCKERY V. EPPS, 13-CV-326 (S.D. MISS. 2013)

ACLU and Southern Poverty Law Center filed suit against Mississippi facility on behalf of inmates in solitary confinement, many of whom are mentally ill

Plaintiffs allege inmates “live in barbaric and horrific conditions” that have cost them “their health, their limbs, their eyesight, and even their lives” Including cells without functioning toilets, requiring

inmates to defecate into Styrofoam trays or plastic bags Case is currently in discovery

ASHKER V. BROWN, 09-CV-5796 (N.D. CAL. 2009)

Class of inmates incarcerated in California’s Pelican Bay State Prison’s SHU between 11 and 22 years allege prolonged conditions of confinement have produced harmful and predictable psychological deterioration

On March 11, 2015, filed amended complaint alleging defendants: Have deprived them of minimal civilized measures of life’s necessities and violated

their basic human dignity and their right to be free from cruel and unusual punishment

Have deprived them of liberty interest without due process of law by denying them meaningful and timely periodic review of continued SHU detention

The parties have filed a joint motion for preliminary approval of settlement agreement (status conference set for October):

CDCR will no longer place inmates into SHU solely because of gang validation status CDCR will no longer impose indeterminate SHU sentences No inmate will be housed involuntarily in Pelican Bay’s SHU for more than five

continuous years CDCR will review cases of all inmates currently serving indeterminate SHU terms Court will retain jurisdiction over the case for two years and magistrate will have an

active role in implementing settlement agreement

PARSONS V. RYAN, 12-601 (D. ARIZ.) In 2015, Court approved settlement of a class

action suit on behalf of more than 33,000 Arizona state inmates

Settlement requires Arizona DOC: Meet more than 100 health care performance

measures Overhaul rules for mentally ill inmates in solitary

confinement, including requirement that inmates have a minimum 19 hours a week outside their cells

Pay $4.9 million in attorneys’ fees

2015 PRISONER LITIGATION SUMMIT

Segregated Housing Kennedy’s concurrence

Prisoner Grievance Procedures Class Action Litigation Health Care Standards

Brown v. Plata

MISCELLANEOUS 9TH CIRCUIT

HARRINGTON V. SCRIBNER, 785 F.3D 1299 (9TH CIR. (CAL) 2015)

African American inmate brings a lawsuit challenging a race-based lockdown, as violative of the equal protection. He also sustained injuries, which resulted from a fall while being escorted, which he claims were in violation of his Eighth Amendment rights. 

Court explained that racial classifications in prisons are immediately suspect and subject to strict scrutiny for equal protection which requires the government to show that the measures are narrowly tailored to further a compelling government interest.

Facts showed that prison officials instituted the lockdown reacting to African American inmates injuring staff coupled with information that the inmates were plotting to murder staff. This lockdown was followed by an emergency lockdown of all inmates. Shower restrictions were lifted for all inmates except the African American and Northern Hispanics.

Plaintiff fell while being escorted to the showers. The Court found that prison administrators bear the burden of showing their race-

based policies are justified. While deference is owed to prison administrators under the Eighth Amendment, such deference does not extend to equal protection claims.

TEAMSTER LOCAL UNION NO. 117 V. WASHINGTON DEPT. OF CORRECTIONS, 789 F.3D 979 (9TH CIR. (WASH.)2015)

The Ninth Circuit found that the Washington Department of Correction’s creation of a narrow category of female-only job assignments is a bona fide occupation qualification reasonably necessary to the normal operation of women’s prisons.

The DOC was successful in showing that there is a correlation between gender and the ability to perform certain job functions, such as strip searches and pat downs of female inmates.

AMBAT V. CITY AND COUNTY OF SAN FRANCISCO, 757 F.3D 1017 (9TH CIR (CAL) 2014)

Correctional staff challenged policy prohibiting male deputies from supervising female inmates, alleging discrimination under Title VII.

Under Title VII, the defense of bona fide occupational qualification (BOFQ)can only be established by objective, verifiable requirements that concern job-related skills and aptitudes.

The staff restriction must also match job functions with high degree of specificity.

AMBAT V. CITY AND COUNTY OF SAN FRANCISCO

The Court established a two prong test for determining whether the DOC had shown sex was a BFOQ:

1. job qualification justifying discrimination is reasonably necessary for essence of its business;

And 2. that gender is a legitimate proxy for the qualification

because a) it has a substantial basis for believing that all or

nearly all men lack the qualification or B) it is impossible or highly impractical to insure by

individual testing that the employees will have the qualifications necessary for the job.

AMBAT V. CITY AND COUNTY OF SAN FRANCISCO

Based on the security concerns related to female inmates, the Court found the job qualifications were reasonably necessary.

The Court also found that although the statistics of sex abuse were “deeply troubling,” they do not prove that “all or substantially all” male deputies are like to engage in sexual misconduct.

The County also failed to show that it is impossible or impractical to conduct individual testing to assess propensity to engage in sexual misconduct.

The case was remanded for further proceedings.

CASTRO V. COUNTY OF LOS ANGELES, 2015 WL 4731366 (9TH CIR. (CAL) 2015)

Pretrial detainee gets assaulted in sobering cell and alleges County was deliberately indifferent on the construction design of the sobering cell. 

The 9th Circuit found that the County's design of the sobering cell without the audio-monitoring system required by a state regulation does not give rise to liability as the County had no actual knowledge of the regulation and constructive knowledge does not rise to the level of deliberate indifference.

THANK YOU

Kathleen M. KenneyAssistant Director/General CounselFederal Bureau of Prisons