PRISONERS’ CIVIL RIGHTS MANUAL Texas Civil Rights Project and American Civil Liberties Union of Texas ** This information is not a substitute for speaking with a lawyer. Before filing a lawsuit, always consult an attorney. This information is not a substitute for a lawyer’s advice. ** INTRODUCTION The United States Constitution and other laws protect you, even while you are in prison. Even though you have been convicted of a crime, you do not give up all your civil rights. “Prisoners do not shed all constitutional rights at the prison gate.” 1 You have the right to receive medical care, food, clothing, water, and shelter, and to be reasonably safe while in prison. 2 You have the right not to be denied participation in prison programs because of a disability. 3 You have the right to participate in religious services and practice your religion. 4 You can enforce all these rights by filing a lawsuit in court. You need to know, however, it is very difficult for a prisoner to win a lawsuit, even if you have a lawyer. Lawsuits can also take a long time—sometimes many years. It is always best to think about if your problem is serious enough to require a lawsuit, and to try every other way to fix your problem short of filing a lawsuit. This chapter of the manual will help you with both options. SOME BASIC ADVICE If you have a problem in prison, you should first try to get help from TDCJ. For example, you should talk to an officer or supervisor you think might listen, send I-60s or letters to officials, and write grievances. TDCJ has control over all its prisons, and is in the best position to help you immediately. Though you may feel TDCJ does not want to help you, it is always best to try because TDCJ can help the fastest. TDCJ has a grievance process that lets prisoners make formal complaints. It is important to use every step in the grievance process. If you ever want to file a lawsuit about a problem, you will have to show the court you tried to use the grievance process first. Even if the grievance system doesn’t seem to work, you MUST file a Step 1 AND Step 2 grievance about your problem before you can go to court. Reasons to File a Grievance: • • • • • If you are not safe, or your life is in danger; You need medical attention; 5 You are being physically or sexually abused; TDCJ policies or procedures are being violated; You are being threatened by an employee or another prisoner; 1 Sandin v. Conner, 515 U.S. 472, 485 (1995). 2 Farmer v. Brennan, 511 U.S. 825 (1994). 3 Americans with Disabilities Act, 42 U.S.C. § 12131; Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). 4 Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc. 5 Before filing a grievance about a medical problem, you should make a sick call request to see a doctor. 2 • • • • You are being harassed or retaliated against for using the grievance process; You are have trouble accessing the courts; Your personal property at the prison has been lost or damaged; or Basic conditions are inhumane (like the prison is too hot, too cold, or unclean). How to file a grievance: There is no special way to file grievances. You do not need to be a writ writer to write a grievance. The best thing to do is use plain English (or whatever language you can write in) to say what your problem is and what you want. You do not need to use any legal language. Just write the grievance like you would explain the problem to a friend. Before you file a grievance, you need to try “informal resolution.” “Informal resolution” means talking to someone who works for the prison about the problem. Sending an I-60 or letter to a prison official can also be “informal resolution.” You will need to write on the grievance form who you talked to and what they told you. You can get grievance forms in the law library, housing areas, or from a shift supervisor. Follow these guidelines when you write your grievance: – Only write about the issue you want help with. Each grievance can only address one problem. If you have more than one problem, write a different grievance for each problem. – When you write the grievance, explain who you talked to and what they did (if anything) about your problem. – Be sure to file your grievance within 15 days of learning about the problem, or as soon as possible. If you did not file the grievance within 15 days of learning about the problem, write why you did not file earlier. – Make sure you include how you would like to have the problem solved. For example, if you are sick and need to see a doctor, write “I want to see a doctor.” Ask for everything you want to solve the problem in the grievance. – Do not use indecent, vulgar, or threatening language. TDCJ has the right to refuse to process a grievance with bad language. TDCJ has 40 days to respond to your Step 1 grievance. You can file a Step 2 grievance as soon as you receive a response to your Step 1 grievance. If 40 days have passed and you have still not received a response to the Step 1, and you have not been notified that there will be a delay, you can file the Step 2 grievance. – You must file a Step 2 grievance within 15 days of receiving the response to your Step 1 grievance. TDCJ has 35 more days to process a Step 2 grievance. Thirty-five days after you filed your Step 2, unless you have been notified there will be a delay, you can take your claim to court. – 6 If you want to file your lawsuit in State court, you need to file the lawsuit within 31 days of receiving a response to the Step 2 grievance. 6 If you want to file your lawsuit in Federal court, your deadline to file the suit is the “statute of limitations” discussed in the section on Individual Litigation. Texas Civil Practice and Remedies Code § 14.005(b). 3 Always keep copies of your returned grievances. You may need them later on and it can be difficult to obtain copies. Check your TDCJ Offender Handbook for more information about how to file a grievance. What to do if your problem is not resolved in TDCJ: When TDCJ employees at the unit will not solve your problem, other TDCJ offices might be able to help. These offices handle complaints from prisoners and their friends or family. • For serious medical and mental health care problems, send I-60s or letters to the Patient Liaison: Patient Liaison Office Office of Professional Standards 3009-A Hwy 30 West Huntsville, TX 77340 Phone: (936) 436-1265 • For unnecessary or excessive force, or other staff misconduct or criminal activity within TDCJ, send I-60s or to the Office of the Inspector General (also known as "OIG"): Office of the Inspector General P. O. Box 4003 Huntsville, TX 77342-4003 • For problems with TDCJ's calculation of your time or release date, send I-60s or letters to the State Counsel for Offenders: State Counsel for Offenders P.O. Box 4005 Huntsville, TX 77342-4005 • If you have been raped or sexually assaulted, or are afraid you may be, you can send a letter or I-60 to TDCJ’s Prison Rape Elimination Act Ombudsman: Sexual Assault Ombudsman PO Box 99 Huntsville, TX 77342-0099 • Family members, friends, and outsiders (but not prisoners) may send letters to the Ombudsman. (Family members, friends, and other outsiders also can telephone or write the other offices above. Many prisoners feel it helps them if someone on the outside contacts TDCJ for them.) TDCJ-ID Ombudsman P.O. Box 99 4 Huntsville, TX 77342 (936) 294-6791 (ph); (936) 294-6325 (fax) You can use truck mail for all TDCJ offices that investigate complaints or problems including Patient Liaison, OIG (Office of the Inspector General), and State Counsel for Offenders. 5 Individual Litigation If TDCJ will not help you, you have the right to file a lawsuit. Because of the Prison Litigation Reform Act (PLRA), you must file grievances before you can file a lawsuit. A court may dismiss your case, no matter how bad your problem is, if you have not tried to go through the grievance process first (including Step 2). If you think you might ever want to file a lawsuit, you must go through the entire grievance process (including Step 2). You must ask for everything you believe TDCJ should do to make up for what happened to you, even if you do not think the process will work. It is not easy to file a lawsuit, and it is very hard to win. Before filing a lawsuit, you should always try to contact a lawyer. There are very few lawyers in Texas who help prisoners, but it is important to try to get help before going to court by yourself. Remember, however, most civil claims in Texas must be brought within 2 years of the incident. 7 If you are close to running out of time to file your suit, it is better to file without a lawyer to make sure your case will not be dismissed because it was filed too late. Also, many problems are too small to be worth a lawsuit, even when they involve something very important to you. FILING A LAWSUIT FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS Congress passed a law in 1871 called “Section 1983.” 8 It protects your constitutional rights. Section 1983 lets you file a lawsuit in federal court when your rights are violated. The law library has forms that will help you file a Section 1983 lawsuit. Section 1983 lets you bring a lawsuit against people who violate your rights. 9 TDCJ is not a “person,” so you cannot sue TDCJ directly. 10 If you try to sue TDCJ directly, your case will probably be dismissed. State entities like TDCJ cannot be sued most of the time. 11 If a TDCJ employee has mistreated you, you need to sue that employee personally, not TDCJ. 7 See Texas Civil Practice & Remedies Code, Chapter. 16. Civil rights and personal injury cases must be filed within 2 years. Sexual assault cases must be filed within 5 years (but if you wait beyond 2 years you can only sue the person who actually assaulted you, not their supervisors or anyone else who could have prevented the assault, see Twist v. Lara, 2007 U.S. Dist. LEXIS 52256 (S.D. Tex. July 2007)). Malicious prosecution claims must be brought within 1 year. If your case involves some other type of problem, consult Chapter 16 of the Civil Practices and Remedies Code to see how long you have to file your case. Separate deadlines apply to filing criminal appeals, which are discussed in the State Counsel for Offenders Legal Manual. 8 Section 1983 is named for its location in the United States Code—42 U.S.C. § 1983. 9 42 U.S.C. § 1983. 10 11 See Will v. Michigan Department of State Police, 491 U.S. 58 (1989). See Frew v. Hawkins, 540 U.S. 431 (2004). There are some exceptions. The Americans with Disabilities Act, Rehabilitation Act, and Religious Land Use and Institutionalized Persons Act all allow you to sue TDCJ directly. These laws are discussed later in this chapter. 6 There is an exception to this general rule. If you are seeking an injunction you can sue TDCJ’s executive director in his or her “official capacity.” 12 An “injunction” means a change to a prison policy or how the prison operates. An injunction does not include money. If you want both an injunction and money, you can sue the individual employees “in their individual capacities” for money, and the executive director of TDCJ in his or her “official capacity” for an injunction. 13 In the United States, we have two court systems—state courts and federal courts. You can file a lawsuit for violations of your constitutional rights in state or federal court. If you file in state court, and only complain about violations of your federal rights, the defendants will have the option to move your case to federal court. If you only have complaints about violations of state law, you can only file your case in state court. PRISON LITIGATION REFORM ACT If you are thinking about filing a lawsuit, you should know about a 1996 law called the Prison Litigation Reform Act (PLRA). The PLRA makes it harder for prisoners to file lawsuits in federal court. Texas has a similar law that makes it hard for TDCJ prisoners to file cases in state court. 14 The PLRA contains many parts, but the following parts are the most important. “Exhaustion of administrative remedies” (42 U.S.C. § 1997e(a)) The first thing to remember about the PLRA is before you file a lawsuit, you must try to resolve your complaint through the prison’s grievance system. If your Step 1 grievance is denied, you must file a Step 2 grievance. If you file a lawsuit before taking your complaints through every step of the grievance system, it will almost certainly be dismissed. (This manual explains how to file a grievance above. Consult your TDCJ Offender Handbook for more information about how to file a grievance.) 12 See Ex Parte Young, 209 U.S. 123 (1908). See also McCarthy v. Hawkins, 381 F.3d 407 (5th Cir. 2004). 13 If your rights were violated before you got to TDCJ, you would sue the officials in charge of the governmental agency that violated your rights instead of the executive director of TDCJ. For example, if your rights were violated in the county jail, you could sue the sheriff of the jail for an injunction if you thought you might have to go back to that jail in the future. Moreover, if your rights were violated because the county had a policy, pattern, or practice of violating people’s civil rights, you can sue the county directly. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91 (1978). Unlike TDCJ, a county is not a state agency so the county may be sued when its policies are unconstitutional. 14 See Texas Civil Practice & Remedies Code, Chapter 14. The Texas law is similar to the federal PLRA in many ways. 7 A. What is “exhaustion”? “Exhausting your remedies” means filing a grievance and all available appeals. 15 You must mention every problem you want to raise in your lawsuit in your grievance first. 16 However, if you cannot file your grievance for some reason beyond your control, no administrative remedy is “available,” and you may file in court. 17 Even if you have a good excuse for not filing your grievance properly, you should still do your best to go through Step 1 and Step 2 in the grievance process. If staff fail to respond to your grievance within the time limits, you still must appeal to the next stage. 18 If you do not receive a response to your Step 2 grievance, you can file a lawsuit. 19 You must also file your Step 1 and Step 2 grievances during the time required by TDCJ. 20 Your Step 1 grievance must be filed within 15 days of the event you are complaining about. The Step 2 grievance must be filed within 15 days of when you receive a response to the Step 1. There is an exception to the rule if prison staff tell you that you cannot file a grievance or cannot appeal. 21 Courts disagree when you have an excuse for not using the grievance system. 22 The safest course is always to file a Step 1 AND Step 2 for each claim you want to raise and each defendant 15 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004); Randle v. Woods, 299 Fed. App’x 466 (5th Cir. 2008). 16 See, e.g., Johnson v. Johnson, 385 F.3d 503, 519 (5th Cir. 2004) (prisoner’s racial discrimination claims dismissed because he failed to mention them in grievance). 17 Miller v. Norris, 247 F.3d 736 (8th Cir. 2001). See also Days v. Johnson, 322 F.3d 863 (5th Cir. 2003) (prisoner unable to file grievance because hand was broken); Almond v. Tarver, 468 F.Supp.2d 886 (E.D. Tex. Aug. 15, 2006) (grievance system not available to prisoner who was released from custody while grievance was pending). 18 White v. McGinnis, 131 F.3d 593 (6th Cir. 1997). 19 Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999). Cf. Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002) (when prison officials do not respond to a prisoner’s initial grievance, administrative remedies are exhausted). 20 See Woodford v. Ngo, 548 U.S. 81 (2006). 21 See Taylor v. Barrett, 105 F. Supp. 2d 483 (E.D. Va. 2000); see also Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner had exhausted when told by staff no appeal possible); Pearson v. Vaughn, 102 F. Supp. 2d 282 (E.D. Pa. 2000) (same). 22 See, e.g., Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999) (prisoner who failed to sign and date grievance form did not fail to exhaust administrative remedies; inmate did not fail to exhaust remedies by failing to appeal institutional-level denial of his grievance after being told unequivocally that no such 8 you want to name in your eventual lawsuit. Do your best to follow the TDCJ grievance policy. (A copy of the policy should be available in the law library.) Once you get a response to the Step 2, or the time for TDCJ to respond to the Step 2 expires, you can file a lawsuit. B. What happens if you don’t exhaust the grievance process? If you do not exhaust your grievances, the defendants can ask the court to dismiss your case.23 The defendants have to show the court evidence you did not file the proper grievances. You will have an opportunity to show the court what you did to try and complete the grievance system. If the court finds you did not properly file grievances, the case will most likely be dismissed without prejudice. 24 “Without prejudice” means you can try to file the lawsuit again after you complete the grievance system, if it has not been too long since the event you are complaining about happened. 25 You can lose your claim if you miss a grievance deadline. 26 If this happened to you, appeal through all the levels of the grievance system and explain in the grievance why you did not file on time. 27 Finally, if the deadline for filing your case (the “statute of limitations”) comes while you are going through the grievance system, you can still file your lawsuit. The statutes of limitations are suspended while you go through the grievance process. 28 If this happens to you, file your lawsuit as soon as you get a response to the Step 2 or the time for a response runs out. appeal was possible); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (substantial compliance with grievance procedure will satisfy exhaustion requirement); cf. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (holding that investigation of complaint by Secretary of Corrections rather than regular grievance system satisfied exhaustion requirement); but see Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999) (investigations by use of force committee and state police are not exhaustion). 23 Jones v. Bock, 549 U.S. 199 (2007). 24 Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Even though you may be able to re-file your lawsuit if it is dismissed without prejudice, you may be barred from filing it again without paying the filing fee. See id. This is another reason to make sure you complete the grievance process before filing a lawsuit. 25 As discussed in footnote 1, you must file your lawsuit before certain deadlines. For most prisoners’ civil claims, you will need to file your lawsuit within two years of the event you are complaining about. 26 Woodford v. Ngo, 548 U.S. 81 (2006). 27 Harper v. Jenkins, 179 F.3d 1311 (11th Cir. 1999) (holding that prisoner who filed an untimely grievance was obliged to seek a waiver of the time limits in the grievance system); see also Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) (prisoner who missed deadline on one of the levels of appeals of the grievance system barred from filing lawsuit). 28 Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999); Rodriguez v. Holmes, 963 F.2d 799 (5th Cir. 1992). 9 C. There are very few exceptions to the exhaustion requirement. If you want money for your legal claims, you still must go through the grievance process. TDCJ will not give you money by filing a grievance, but you are still required to go through the process before you file a lawsuit. 29 Speaking to staff, putting in a kite or I-60, or writing to the warden are not the same as filing a grievance. They do not count under the PLRA. You must use the grievance system. Some courts may get involved to prevent serious injury while the you finish the grievance process. 30 Even if you file the lawsuit to prevent a serious injury, you should still complete the grievance process. Filing fees (28 U.S.C. § 1915(b)) The second point to remember about the PLRA is prisoners must pay court filing fees in full. In 2009, the filing fee is federal court was $350. If you do not have the money up front, you can pay the filing fee over time through monthly withdrawals from your prison commissary account. Indigent prisoners paying the filing fee in monthly withdrawals pay an initial fee of 20% of the greater of the prisoner’s average balance or the average deposits to the account for the preceding six months. After the initial payment, you pay monthly installments of 20% of money coming into the account in the previous month until the fee has been paid in full. Three strikes provision (28 U.S.C. § 1915(g)) The third point to remember about the PLRA is it can prevent you from filing more lawsuits. If a court finds you have filed three “frivolous” lawsuits, you cannot file any more lawsuits without paying the full filing fee up front. “Frivolous” means a problem is not serious, or the law does not support your claim. Each lawsuit or appeal you file that is dismissed because it is frivolous, malicious, or does not state a proper claim counts as a “strike.” After you get three “strikes,” you cannot file another lawsuit without paying the full filing fee up front. The “three strikes” rule is another reason it is important to only take serious issues to court. If you have filed three “frivolous” lawsuits, and cannot pay a filing fee, you may not be able to file a lawsuit when you have a serious problem. 29 Booth v. Churner, 121 S. Ct. 1819 (2001). 30 Evans v. Saar, 412 F. Supp. 2d 519, 527 (D.Md. 2006); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533–34 (M.D. La. 2003); Ferguson v. Ashcroft, 248 F. Supp. 2d 547, 563–64 (M.D. La. 2003); Borgetti v. Bureau of Prisons, 2003 WL 743936, at *2 n.2 (N.D. Ill. Feb. 14, 2003); Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001). But see Ford v. Smith, 2007 WL 1192298 (E.D. Tex. 2007) (dismissing prisoner’s complaint for failure to complete grievances even though prisoner “feels his safety is in danger”). 10 If you appeal after your case is dismissed, and the appeal is also dismissed as frivolous, the appeal counts as a separate strike. 31 Even old lawsuits from before the PLRA passed count as strikes. 32 The only exception to the “three strikes” rule is if you are in immediate danger of serious physical injury. 33 A court looks at the “imminent danger” at the time you attempt to file the lawsuit, not at the time of the incident that lead to the lawsuit. 34 In other words, if you are no longer in “imminent danger” when you file the lawsuit or appeal, you will have to pay the full filing fee up front. Physical injury requirement (42 U.S.C. § 1997e(e)) The fourth point to remember about the PLRA is that unless you have a physical injury, you cannot file a lawsuit for mental pain. The physical injury requirement only applies to claims for money damages. It does not apply to claims to change how TDCJ operates. 35 Courts are split on whether a violation of constitutional rights is always a claim for mental injury even there is no physical injury. 36 The courts disagree about what when a prisoner has been harmed enough to count as a “physical injury.” 37 31 Patterson v. Jefferson Corrections Center, 136 F.3d 626 (5th Cir. 1998). See e.g., Ibrahim v. District of Columbia, 208 F.3d 1032 (D.C. Cir. 2000); Welch v. Galie, 207 F.3d 130 (2d Cir. 2000). 32 33 See Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998) (plaintiff alleged an imminent danger of serious physical injury where dust, lint and shower odor came from his cell vent, causing him to suffer “severe headaches, changes in voice, mucus that is full of dust and lint, and watery eyes.”). See also Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (allegations that staff placed plaintiff in proximity to known enemies satisfied imminent danger requirement). 34 Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc). See also Choyce v. Dominguez, 160 F.3d 1068 (5th Cir. 1998) (prisoner with three strikes must be in “imminent danger” to proceed in forma pauperis on appeal). 35 See Harper v. Showers, 174 F.3d 716 (5th Cir. 1999); Perkins v. Kansas Dept. of Corrections, 165 F.3d 803 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998). 36 See Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) (First Amendment claim not barred by physical injury requirement); Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) (claim for violation of First Amendment is not a claim for mental or emotional injury); cases going the other way include Thompson v. Carter, 284 F.3d 411 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) (First Amendment claims involve mental or emotional injuries); Davis v. District of Columbia, 158 F.3d 1342 (D.C. 1998) (claim for violation of privacy is claim for mental or emotional injuries). 37 See Payne v. Parnell, 246 Fed. App’x 884 (5th Cir. 2007) (pain from being shocked with a cattle prod can be a physical injury); Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999) (allegations of cuts and abrasions satisfy physical injury requirement); Liner v. Goord, 196 F.3d 132 (2d Cir. 1999) (intrusive body searches qualify as physical injury); compare with Herman v. Holiday, 238 F.3d 660 (5th Cir. 2001) (claim of “physical health problems” by prisoner exposed to asbestos does not specify a physical 11 MEDICAL CARE There are two ways you can challenge poor prison medical care. First, as a prisoner, you have a right to receive medical care from the prison system. This right is protected by the U.S. Constitution. Second, “medical malpractice” law protects you from receiving poor quality medical care. Even someone who has never been in prison can bring a medical malpractice claim if their doctor treats them incorrectly. Both constitutional lawsuits and medical malpractice lawsuits are very hard to win. You should know how difficult these claims are before investing time and effort. A. Constitutional Claims The Eighth Amendment requires prison officials to provide you with medical care. This requirement includes mental health and dental care. 38 "Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." 39 To win a constitutional claim for poor medical care, you must show prison officials were "deliberately indifferent" to your serious medical needs. First you need to show officials knew about your condition. Second you need to show they ignored a substantial risk of serious harm to your health. 40 A medical need is considered "serious" if it "causes pain, discomfort, or threat to good health." 41 It is very hard to show prison medical staff is “deliberately indifferent” to your health if you are receiving medical treatment. “[C]ourts have found that just because a prisoner does not agree that the medical care offered is appropriate, this is not enough to suffice for a claim of deliberate indifference to serious medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citing Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977). It is not enough that the diagnosis is incorrect. Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). The prisoner must instead establish that officials "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Indeed, courts have found that evidence of medical exams, injury which would permit recovery for emotional or mental damages due to fear caused by increased risk of developing asbestos-related disease); Harper v. Showers, 174 F.3d 716 (5th Cir. 1999) (confinement in filthy cell where exposed to mentally ill patients not physical injury); Sigler v. Hightower, 112 F.3d 191 (5th Cir. 1997) (bruised ear does not qualify as physical injury). 38 Estelle v. Gamble, 429 U.S. 97, 103 (1976). 39 Estelle v. Gamble, 429 U.S. at 104. 40 Farmer v. Brennan, 511 U.S. 825 (1994). 41 Dean v. Coughlin, 623 F.Supp. 392, 404 (S.D.N.Y. 1985). 12 sick calls, and diagnoses have been used to rebut a claim of deliberate indifference. See, e.g., Sexton v. Young, No. 07-0088, 2007 U.S. Dist. LEXIS 25147, at *3-4 (W.D. La. Mar. 12, 2007).” 42 Under this standard, your rights have not been violated if the treatment you are getting does not work. Your rights have not been violated if you disagree with the treatment your doctor gives you. Even if a free world doctor gave you different treatment than a prison doctor, that may not be enough to prove your constitutional rights have been violated. Evidence of “deliberate indifference” includes sick call requests for medical attention that were not answered, records showing date(s) you requested medical attention, to whom the request(s) were submitted, the medical conditions complained of, the effects of any delay in obtaining access to medical staff, the date(s) access was provided, specific medical staff seen, treatment provided by particular staff, the follow-up care ordered and whether it was carried out, additional information to indicate the adequacy of treatment, and complaints and formal grievances filed regarding inadequate care. You should try to get copies of medical records to show the court. You can show prison officials' knowledge of risks to your health from "the very fact that the risk was obvious." 43 If a prison official could see your health is getting worse this can show they knew about your condition. You should tell the court if you have significant weight loss, seizures, asthma attacks, or other problems that are obvious. A prison official cannot "escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." 44 Though it is not required, you will almost always need an expert witness to testify for you in a case like this. An “expert witness” is a doctor who can testify about the care you received. The law does not require you have an expert, but you will probably need one to convince the court you were denied care. This expert can be the doctor who is treating you, or it can be an independent doctor who agrees to help you. Independent doctors are hard for a prisoner to find and will almost always be expensive. B. Medical Malpractice You can also sue medical staff for providing you incorrect care. If you have been treated by medical staff in prison, but you are being treated incorrectly, you can sue the doctor for medical malpractice. “Medical malpractice” is not a claim based on the constitution. It comes from medical staff’s duty to provide treatment from a set standard of care. If medical staff provide you care below the standard of care, you may be able to sue them for malpractice. Malpractice may be a better option for you if you have received medical treatment, but that treatment did not work or was incorrect. 42 Kennedy v. Potter, 2009 U.S. App. LEXIS 21217 (5th Cir. 2009). Farmer, 511 U.S. at 842. See also Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979) (guards liable to failing to get medical treatment for prisoner who was suffering from seizures); McCoy v. Texas Department of Criminal Justice, 2006 U.S. Dist. LEXIS 58861 (S.D. Tex. 2006). 43 44 Farmer, 511 U.S. at 843 n.8. 13 In Texas, it is very hard to win a medical malpractice lawsuit. There are several special rules you have to follow to bring a successful medical malpractice case. 45 You will almost certainly need an expert witness. 46 An “expert witness” is another doctor who can testify about the care you got. You will have to give the medical staff you are suing a copy of a report from the expert no later than 120 days after you file your lawsuit. 47 Also, if you do not also bring federal constitutional claims, you will have to file your medical malpractice case in state court. It is very important to try to talk to a lawyer before these cases. C. Requesting Medical Care from TDCJ Because it is very hard to win a lawsuit requesting medical care, it may be best for you to ask for help through TDCJ’s policies. If you need to be seen by a doctor or nurse, you can request treatment by following the steps below. 1. Place a sick call—complete a sick call form, clearly describing what your medical problem is. You do not need to use legal jargon like “deliberate indifference”—just tell the medical staff what your problem is and why you want to be seen. Sick call forms are available on your housing unit. TDCJ policy requires all sick calls be answered within 48 hours. If you have not received an answer within 48 hours, proceed to the next step. See Correctional Managed Care Policy 38.1. 2. Make an I-60 request—If you are not seen after placing a sick call, complete an I-60 requesting medical care. An I-60 is a request to prison officials, and the form is available on your housing unit. Clearly describe the problem, and state you have already completed a sick call. Tell the person who will read the I-60 that you want to be seen by medical staff. Again, there is no need to use legal jargon. 3. Contact TDCJ Health Services directly—The Health Services Division’s Office of Professional Standards investigates prisoners’ complaints about health care. Their address is: Texas Department of Criminal Justice Health Services Division 3009-A HWY 30 West Huntsville, Texas 77340-0769 If you have a friend or family member in the free world, they can call Health Services directly at (936) 437-4271. Health Services may require you to sign a medical release before they can talk with your friends or family. This is to protect your medical privacy. You can get the release form from the medical department on your unit. (The form needs to be renewed and updated every six months.) 45 See Texas Civil Practices and Remedies Code, Chapter 74. 46 Texas Civil Practices and Remedies Code, § 74.351. 47 Id. 14 A friend or family member can also contact the TDCJ Ombudsman at (936) 437-6791. The Ombudsman will also likely require your family to have a medical release to protect your privacy. Make sure to document each of the above steps by saving copies of the forms or writing in a diary when you made the requests. If you need to file a lawsuit, this will all be evidence of “deliberate indifference.” If you can afford to be seen by a free world doctor, you have a right to have one evaluate you. 48 You will have to pay all the costs associated with this visit, however, and will have to find a doctor willing to come to the prison to visit you. LEGAL RIGHTS OF DISABLED PRISONERS Special laws protect disabled people. Two federal laws protect disabled people’s rights: the Rehabilitation Act 49 and the Americans with Disabilities Act (ADA). 50 If a program gets money from the federal government, the Rehabilitation Act applies. 51 The ADA applies to all government programs. 52 Texas state law also protects disabled prisoners. 53 The ADA and Rehabilitation Act are the same in most ways. 54 The major difference between the two laws is how they waive the state’s immunity from lawsuits, which is discussed below. You can use cases about the Rehabilitation Act in lawsuits brought under the ADA, and vice versa. Definition of a Disability The ADA and Rehabilitation Act define “disability” as: (A) a physical or mental impairment that substantially limits one or more of the major life activities …; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 55 48 Correctional Managed Health Care Policy E-44.2. 49 29 U.S.C. § 794(a). 50 42 U.S.C. § 12101 et seq. 51 Supra, note 55. TDCJ gets federal money. 52 42 U.S.C. § 12131. 53 See Texas Human Resources Code, Chapter 121. 54 Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 455 (5th Cir. 2005). 55 42 U.S.C. § 12102(2). 15 A “physical or mental impairment” can include: hearing loss, vision problems, mental illness, physical disabilities, certain diseases, and many other conditions. “Major life activities” include seeing, hearing, breathing, working, walking and many other everyday activities. Courts usually look at the facts of each lawsuit to decide if a person is legally disabled. 56 Be sure to tell the court exactly what your condition is, and what things it prevents you from doing. Enforcing Disabled Prisoners’ Legal Rights Title II of the ADA says that: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 57 To bring a lawsuit under the ADA and/or the Rehabilitation Act, you must show three things. First, you must be legally disabled. Second, you must qualify to participate in the program you want to enter. And third, you cannot participate in the program because of your disability. 58 Under the Rehabilitation Act, you must also show TDCJ receives federal funding. 59 You will have to show the court you tried to participate in the program. Then you will have to show you were eligible for the program. 60 You will also have to show you could not get in the program because of your disability. 61 What Rights Can Be Enforced? 56 Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (impaired vision in one eye is not always a disability under the ADA; rather, courts must usually determine on a case-by-case basis whether the plaintiff’s major life activity is substantially limited). 57 42 U.S.C. § 12132. 58 42 U.S.C. § 12132; 29 U.S.C. § 794(a). 59 29 U.S.C. § 794(a). You can do this by sending a Request for Admission to TDCJ asking TDCJ to admit it accepts federal funding. 60 Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) (“An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap”). 61 See, e.g., Lue v. Moore, 43 F.3d 1203, 1205, 1206 (8th Cir. 1994) (blind inmate denied access to vocational training programs may bring claim for damages and affirmative relief under Rehabilitation Act, but denying relief because inmate failed to prove he had applied to programs or requested accommodations). 16 Disabled prisoners have sued to get equal access to facilities, programs and services. Prisoners in wheelchairs have sued to use prison showers and toilets. 62 Deaf prisoners have sued to get sign language interpreters for prison programs. 63 Disabled prisoners have challenged being put in isolation and segregation units. 64 One court ruled prison officials discriminated against a prisoner in a wheelchair who could not access the dining hall, recreation area, visitation church, and the library. 65 Prisoners with mental illnesses who are not receiving treatment for their mental illness are also protected by the ADA and Rehabilitation Act. 66 Sovereign Immunity “Sovereign immunity” is the State’s right not to be sued. The government can give up sovereign immunity by passing a law. The ADA and Rehabilitation Act give up the state’s immunity under certain conditions. Unlike Section 1983, the ADA and Rehabilitation Act allow you to sue TDCJ directly. When you bring an ADA or Rehabilitation Act lawsuit, you do not need to sue the individual official. Your lawsuit can name TDCJ.67 62 United States v. Georgia, 546 U.S. 151 (2006); Kaufman v. Carter, 952 F. Supp. 520, 523-24 (W.D. Mich. 1996) (denying defendants' summary judgment motion in suit challenging failure to provide access to bathrooms and showers). 63 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) (reversing grant of summary judgment for defendants on deaf inmate's Rehabilitation Act claims that prison officials' failure to provide skilled interpreters foreclosed participation in programs for which he was otherwise qualified); Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) (same, for combination of Rehabilitation Act and ADA claims); Clarkson v. Coughlin, 898 F. Supp. 1019, 1027-32 (S.D.N.Y. 1995) (granting summary judgment to deaf plaintiffs claiming that prison officials violated ADA and Rehabilitation Act by failing to provide accommodations for participation in classification hearings, HIV-AIDS counseling, educational and vocational programs). 64 Carty v. Farrelly, 957 F. Supp. 727, 741 (D.V.I. 1997) (prison officials violated ADA by housing inmate not suffering from mental illness with mentally ill prisoners because his cane was considered security threat). 65 Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996). 66 See, e.g., Gordon v. Texas Department of Criminal Justice, No. 4:06-cv-02790, slip op. at 6 (S.D. Tex. Sept. 30, 2009) (prison system may be liable for “failing to afford [a prisoner] the same level of care that is given to prisoners who are not similarly disabled”). 67 Remember, if you also have constitutional claims, you will need to name those individual officials. 17 Congress passed the ADA, and Congress can only waive a state’s sovereign immunity in limited situations. One situation where Congress can waive a state’s immunity is to prevent the state from violating the constitution. Thus, whether the ADA waives sovereign immunity in your case will depend on to what degree your constitutional rights are also violated. 68 The ADA may also waive TDCJ’s sovereign immunity when the ADA would “remedy and deter violations of rights guaranteed … by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by [the Constitution’s] text.” 69 It is not clearly established how far beyond the limits of the Constitution extend in this manner in prison. The difference between the ADA and Rehabilitation Act is that States consent to be sued when they accept federal money from Congress under the Rehabilitation Act. If you bring your lawsuit under the Rehabilitation Act, you will not need to worry about sovereign immunity if you can prove TDCJ accepts federal money. LIFE ENDANGERMENT Prisons must protect prisoners from other inmates. Prison officials, however, are not responsible every time a prisoner is injured by a fellow inmate. Prison guards cannot use excessive force against prisoners. But a prison official’s use of force usually does not violate the Constitution. Protection from Prisoner Assault Prison officials violate the constitution when they are “deliberately indifference” to a prisoner’s safety. You will need to show two things. You will need to show prison officials knew you were at substantial risk of serious harm. You will also need to show the prison officials ignored that risk. 71 70 Even if you are harmed after you tell prison officials about a risk, your rights are not violated if they responded reasonably to the risk. 72 There are two ways to try to show your rights have been violated if you have been assaulted. One is showing prison officials’ did not act reasonably after learning about a specific threat. 73 The other is when prison conditions create a dangerous situation for prisoners in general. 74 Sometimes both ways may work at the same time. 68 United States v. Georgia, 546 U.S. 151 (2006). 69 Tennessee v. Lane, 541 U.S. 509 (2004). 70 See Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970, 1978-79 (1994). See id. at 847, 114 S. Ct. at 1984. See, e.g., Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990). 72 Farmer, 511 U.S. at 844-45, 114 S. Ct. at 1982-83. 73 See, e.g., Longoria v. Texas, 473 F.3d 586 (5th Cir. 2006) (prisoner threatened after telling prison authorities about gang activities); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (putting sex offender in unsupervised holding cell). 74 See, e.g., Hutto v. Finney, 437 U.S. 678, 682 n. 3 (1978) (prison rape was so common prisoners would refuse to sleep and “spend the night clinging to the bars nearest the guards’ station”). 18 71 You must also show a connection between what prison officials did or failed to do and the harm that occurred. 75 Thus, courts have imposed liability on guards who observed an assault or knew of a risk to a prisoner, but did nothing; 76 or on supervisors who made or failed to make polices, or failed to act on risks they knew about. 77 Courts will require you to show how each defendant is personally responsible for causing the assault. Use of Force by Prison Staff Prison staff violate the Eighth Amendment when they use force “for the very purpose of causing harm.” They can use force “in a good faith effort to maintain or restore discipline.” 78 An inmate must show the force used was not required to manage the prison, or was completely out of proportion to that need. 79 Whether a court will find force excessive depends heavily on the facts of the case. Generally, the force used by prison staff must be more than “de minimis” (very small or insignificant) to violate the Eighth Amendment. 80 Courts disagree on how much force is de minimis. 81 In some cases, prison staff can use serious and even deadly force. 82 You do not need to show a serious or permanent injury, however, to show your rights were violated. The seriousness of the injury is just one factor to consider. 83 RELIGIOUS RIGHTS OF PRISONERS The Constitution protects your right to have religious beliefs. But it only protects “sincerely held” beliefs. Courts often disagree about what qualifies as a religion. Christianity, Islam, and Judaism, are always understood to be religions. Less well-known faiths have less success in the courts. Rastafarian, Native American religions, and various Eastern religions are sometimes protected. Other religions have even less success. While the Supreme Court has never defined the term “religion,” lower courts have asked whether a belief system addresses “fundamental 75 See Longoria v. Texas, 473 F.3d 586 (5th Cir. 2006) See, e.g., Cantu v. Jones, 293 F.3d 839 (5th Cir. 2002); Hale v. Townley, 45 F.3d 914 (5th Cir. 1995); Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 14 (1st Cir. 1990); Edwards v. Mendoza, 2008 U.S. Dist. LEXIS 101231 (S.D. Tex. 2008). 77 See, e.g. Thompkins v. Belt, 828 F.2d 298 (5th Cir. 1987). 78 Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 999 (1992), quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 1085 (1986). 79 See Hudson, 503 U.S. at 5-6, 112 S. Ct. at 998-99 (convicted prisoners). 80 See Hudson, 503 U.S. at 9-10, 112 S. Ct. at 1000. 81 Compare Hudson, 503 U.S. at 10, 109 S. Ct. at 997, 1000 (kicks and punches resulting in bruises, swelling, loosened teeth, and a cracked dental plate not de minimis) and Riley v. Dorton, 115 F.3d 1159, 1168 (4th Cir. 1997) (sticking pen a quarter of an inch into a detainee’s nose, threatening to rip it open and using medium force to slap his face is de minimis). See also Payne v. Parnell, 246 Fed. App’x 884 (5th Cir. 2007). 82 See, e.g., Whitley v. Albers, 475 U.S. 312, 322-26, 106 S. Ct. 1078, 1085 (1986) (use of shotgun in riot/hostage situation). 83 See Hudson, 503 U.S. at 7-9, 112 S. Ct. at 999-1000. See also ` Payne v. Parnell, 246 Fed. App’x 884 (5th Cir. 2007) 19 76 and ultimate questions,” is “comprehensive in nature,” and presents “certain formal and external signs.” 84 You must also convince a court your belief is sincerely held. Courts will look to how long you have believed something and how consistently you follow your beliefs. 85 Just because you haven’t believed something your whole life doesn’t automatically mean that a court will find you are insincere. 86 But if you have recently converted you will probably have a harder time convincing a court that you are sincere. You have an absolute right to believe anything you want. You do not, however, always have a constitutional right to do things just because of your religious beliefs. The Constitution does not excuse anyone from complying with a “neutral” rule (one not intended to restrict religion) of “general applicability” (one that applies to everyone in the same way). 87 Just because a rule only applies to prisoners does not mean it is not generally applicable. But a rule that applies only to a religious group, is not generally applicable. 88 Prison officials may restrict inmates’ religious practices if the restrictions are important to managing the prison. 89 Courts defer to prisons under this standard. You may have success if you can show some religions are treated more favorably than others. 90 Congress passed The Religious Land Use and Institutionalized Persons Act in 2000 (RLUIPA). 91 RLUIPA says prison rules cannot substantially burden your religion unless there is a compelling reason for the rule. The rule must also be the least restrictive means of achieving its purpose. 92 RLUIPA is to be read broadly to protect religious exercise. 93 Some prisoners have had success in requiring TDCJ to change policies under RLUIPA. 94 84 Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981); see also Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir. 1986). 85 See Sourbeer v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986); Vaughn v. Garrison, 534 F. Supp. 90, 92 (E.D.N.C. 1981). 86 See Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988); Weir v. Nix, 890 F. Supp. 769, 775-76 (S. D. Iowa 1995). 87 See Employment Division v. Smith, 494 U.S. 872 (1990). 88 See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 89 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). But see Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir. 2001) (upholding injunction forbidding prison administrators from disciplining Muslim inmates for missing work to attend hour-long Friday Sabbath services). 90 See Freeman v. Arpaio, 125 F.3d 732, 734, 738-39 (9th Cir. 1997); Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009). 91 42 U.S.C.S. § 2000cc et seq. 92 42 U.S.C.S. § 2000cc-1(a). 93 42 U.S.C.S. § 2000cc-3(g). 20 Texas state law also protects your right to practice your religion. The Texas Religious Freedom Restoration Act has the same protections as RLUIPA. 95 EXCESSIVE HEAT/COLD What rights do prisoners have to be free of excessive heat? Excessive heat (or cold) may violate the Constitution. 96 You will have to show three things. First, prison officials must be aware of the heat. Second, the heat must be a substantial risk to your health.97 Third, the prison must not do anything to fix the problem. When have courts found excessive heat violates the Eighth Amendment? When the heat index is over 90 degrees for long periods prison conditions may violate the Constitution.98 But a complaint that the temperature was “well above” or “well below” room temperature is not a constitutional violation.99 Cases dealing with excessively cold conditions may help make an argument about excessive heat.100 “Prisoners have a right to protection from extreme cold.” 101 A prison 94 See, Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009) (policy banning prisoners from access to chapel); Mayfield v. Texas Department of Criminal Justice, 529 F.3d 599 (5th Cir. 2008) (access to Odinist runestones); Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (Native American allowed to grow long hair); Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007) (kosher diet). 95 See Texas Civil Practice and Remedies Code, Chapter 110. See Gates v.Cook, 376 F.3d 323, 339 (5th Cir. 2004) (heat index above 90 degrees may be a violation of the Eighth Amendment). Note that it is best to frame your argument in terms of “excessive heat” rather than a lack of air conditioning. 97 Farmer v. Brennan, 511 U.S. 825 (1994). The prisoners in Gates had a doctor testify when the heat index consistently went over 90 degrees it was “very likely” “an inmate will die of heat stroke or some other heat-related illness.” 376 F.3d at 339. 96 98 Gates v. Cook, 376 F.3d 323 (5th Cir. 2004); Valigura v. Mendoza, 265 Fed. App’x 232, 235 (5th Cir. 2008) (“temperatures into the nineties and hundreds” when combined with other conditions can state an Eighth Amendment violation). 99 Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996). 100 See Boulds v. Miles, 221 Fed. App’x 322 (5th Cir. 2007) (“allowing a prisoner to be exposed to extreme temperatures may violate the Eighth Amendment”); Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir. 1988) (finding prisoners stated an Eighth Amendment claim when they alleged missing window 21 that did not provide blankets despite low temperatures would violate the Eighth Amendment. 102 EXPOSURE TO ENVIRONMENTAL HAZARDS OR TOXIC MATERIALS What rights do prisoners have? Exposing prisoners to dangerous conditions or poisons may violate the Constitution. Prison officials violate the Constitution when they knowingly expose a prisoner to a condition that poses an unreasonable risk of serious damage to that prisoner’s health. 103 Prison officials must know of and disregard a substantial risk of serious harm to the prisoner’s health. 104 This violates the Eighth Amendment because it amounts to “unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” 105 What types of conditions violate the Eighth Amendment? Allegations of polluted water 106 and exposure to toxic fumes 107 have both been held to state an Eighth Amendment claim. Prison officials cannot expose prisoners to sewage or human waste for panes exposed them to winter weather); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (finding a prisoner stated an Eighth Amendment claim when he alleged that because large window panes were left empty he was subjected to below freezing temperatures during the winter); Foulds v. Corley, 833 F.2d 52, 54 (5th Cir. 1987) (finding a prisoner stated an Eighth Amendment claim when he alleged he was forced to sleep on the floor of an extremely cold cell while rats crawled over him). 101 Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997). Wilson v. Seiter, 501 U.S. 294 (1991). 103 Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993). See also Volk v. Gonzalez, 1997 U.S. Dist. LEXIS 22197 (W. Dist. Tex. 1997) (“[D]irecting a prisoner to catch live rattlesnakes with his bare hands is not only a monumentally dangerous act but also such a clear violation of the Eighth Amendment’s prohibition on cruel and unusual punishment that, absent extraordinary circumstances … no one could rationally conceive of such an action as ‘objectively reasonable.’”). 102 104 Farmer v. Brennan, 511 U.S. 825 (1994). 105 Helling, 113 S. Ct. at 2480. 106 Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (finding an allegation that drinking water was polluted was not a frivolous claim); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). 107 Johnson-El v. Schoemehl, 878 F.2d 1043, 1054-55 (8th Cir. 1989) (holding a prisoner had an Eighth Amendment claim when he alleged that pesticides were sprayed into housing units so that prisoners had to breathe the fumes); Cody v. Hillard, 599 F. Supp. 1025, 1032 (D.S.D. 1984) (finding inadequate ventilation of toxic fumes in inmate workplaces was unconstitutional), aff’d in part and rev’d in part on other grounds, 830 F.2d 912 (8th Cir. 1987) (en banc); Murphy v. Wheaton, 381 F. Supp. 1252, 1261 (N.D. Ill. 1974) (finding an Eighth Amendment claim where inmates were exposed to noxious smoke fumes created by other inmates burning blankets); but see Givens v. Jones, 900 F.2d 1229, 1234 (8th 22 significant periods of time. 108 Exposure to materials that cause cancer has also been held to violate the Eighth Amendment. 109 Exposure to second-hand tobacco smoke may violate the Eighth Amendment as well. 110 Courts have held that exposure to asbestos can constitute deliberate indifference to prisoners’ medical needs. 111 However, at least one court has held that exposure to “moderate levels of asbestos” did not violate the Eighth Amendment. 112 What types of conditions have not been held to violate the Eighth Amendment? Some courts have suggested dangerous conditions do not violate the Constitution if workers in the surrounding community work in the same conditions. For example, requiring a prisoner to work in heavy corn dust without a mask, causing nosebleeds, hair loss, and sores on his face, did not violate the Eighth Amendment unless “the practice clearly differed from that of the surrounding agricultural community or violated a clearly established law.” 113 Similarly, exposure to a pesticide did not violate the Eighth Amendment when the exposure was not any different from practices in the surrounding agricultural community. 114 Cir. 1990) (holding no Eighth Amendment violation where inmate suffered migraine headaches as a result of noise and fumes during three week long housing unit renovation). 108 Gates v. Cook, 376 F.3d 323, 341 (5th Cir. 2004) (“exposure to waste may constitute cruel and unusual punishment”); Wheeler v. Walker, 303 Fed. App’x 365 (7th Cir. 2008) (exposure to human waste for two weeks can violate the Eighth Amendment); Burton v. Armontrout, 975 F.2d 543, 545 n. 2 (8th Cir. 1992) (ordering prison officials to provide inmates with protective clothing when cleaning sewage); Fruit v. Norris, 905 F.2d 1147, 1150-51 (8th Cir. 1990) (finding an Eighth Amendment violation where prisoners were ordered to clean raw sewage facility in 125 degree temperatures without the protective clothing or equipment called for by the operations manual); Despain v. Uphoff, 264 F.3d 965, 977 (10th Cir. 2001) (exposure to flooding and human waste violates Eighth Amendment). 109 Clark v. Taylor, 710 F.2d 4, 9-11 (1st Cir. 1983). But see Burleson v. Texas Department of Criminal Justice, 393 F.3d 577 (5th Cir. 2004) (prisoner’s Eighth Amendment rights were not violated because he could not demonstrate cancer-causing agents he was exposed to actually caused his cancer). 110 Helling v. McKinney, 113 S.Ct. 2475, 2480 (1993) (finding inmate stated an Eighth Amendment claim where his cellmate smoked 5 packs of cigarettes a day). 111 Herman v. Holiday, 238 F.3d 660 (5th Cir. 2001) (exposure to enough asbestos to cause an unreasonable risk of serious harm violates the Eighth Amendment); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). 112 113 114 McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1994). Jackson v. Cain, 864 F.2d 1235, 1245 (5th Cir. 1989). Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982). 23 Are prisons required to comply with free-world environmental regulations? The Constitution does not require prisons to comply with all civilian environmental regulations. 115 However, these regulations may be enforced by various government agencies, and a prisoner may be able to use these regulations to argue that they are evidence of contemporary standards of decency. If you have a case involving dangerous conditions or toxic substances, it may be helpful to complain to state or local health departments, the federal Occupational Safety and Health Administration (OSHA), or other relevant agencies. State or local regulations may be enforceable in state courts. DISCIPLINARY SANCTIONS Prisoners may challenge disciplinary sanctions imposed on them under the Due Process Clause of the Fourteenth Amendment. 116 The Fourteenth Amendment of the United States Constitution protects against deprivation of life, liberty, or property by the state "without due process of law." 117 Procedural due process is examined in two steps: (1) first you look at whether an existing liberty or property interest has been interfered with; and then (2) whether the procedures that interfered with your liberty or property interest were constitutionally sufficient. 118 Do you have a liberty or property interest sufficient to require due process? Under Sandin v. Conner, 119 prisoners do not have a protected liberty interest in their conditions of confinement unless the conditions place an "atypical and significant hardship" on the prisoner. After Sandin, prisoners must present factual evidence that the restraint at issue creates an "atypical and significant hardship" and that a state regulation or statute grants prisoners a protected liberty interest in 115 Franklin v. Kansas Department of Corrections, 160 Fed. App’x 730, 736 (10th Cir. 2005) (“The Eighth Amendment generally does not constitutionally embrace workplace safety regulations”); French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985) (finding a prison does not need to comply with OSHA or state regulations). 116 Prisoners may choose to base their challenges on state law grounds, citing state prison regulations or statutes. State prisoners seeking to invalidate an unlawful criminal conviction or sentence must generally first exhaust their state court remedies, then seek federal court relief through a writ of habeas corpus. Only if the conviction or sentence is overturned may the prisoner-plaintiff then pursue a damages action for an unlawful conviction or sentence under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 2372 (1994). 117 Parratt v. Taylor, 451 U.S. 527, 537 (1981). 118 Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 462 (1989). 119 515 U.S. 472 (1995). 24 remaining free from that restraint. 120 In order to meet the Sandin "atypical and significant hardship" standard, prisoners must present evidence of the actual conditions of the challenged punishment as compared to ordinary prison conditions. 121 In Edwards v. Balisok, 122 the Supreme Court made it even harder to successfully challenge prison disciplinary convictions. The Court held that prisoners cannot sue for monetary damages under 42 U.S.C. § 1983 for loss of good time until they get their disciplinary conviction set aside through the prison appeal system or in state court by filing a writ of habeas corpus. 123 Texas prisoners have a protected liberty interest in their earned good time credits. 124 If you want to challenge a disciplinary conviction in federal court, you must use a writ of habeas corpus through 28 U.S.C. § 2254. Texas courts do not hear cases challenging prison disciplinary cases. To maintain an action under § 2254, you must first exhaust state habeas remedies. 125 In this situation only, prisoners’ state remedies are exhausted when the prisoner goes through TDCJ's grievance procedures. 126 The deadline for filing a writ to challenge a prison disciplinary case is one year from the disciplinary conviction. 120 See, e.g., Franklin v. District of Columbia, 163 F.3d 625 (D.C.Cir. 1999); Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997); Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997); Sweeney v. Parke, 113 F.3d 716 (7th Cir. 1997); Beverati v. Smith, 120 F.3d 500 (4th Cir. 1997); Driscoll v. Youngman, 105 F.3d 393 (8th Cir. 1997); Madison v. Parker, 104 F.3d 765 (5th Cir. 1997); Williams v. Fountain, 77 F.3d 372 (11th Cir. 1996); McGuinness v. DuBois, 75 F.3d 794 (1st Cir. 1996); Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1995). 121 Ayers v. Ryan, 152 F.3d 77 (2d Cir. 1998); Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir. 1996); Williams v. Fountain, 77 F.3d at 374 n.3. 122 520 U.S. 641 (1997). 123 A “writ of habeas corpus” allows courts to review a criminal conviction or prison disciplinary sanction. See the State Counsel for Offenders Legal Manual for information about filing a writ of habeas corpus. 124 Teague v. Quarterman, 482 F.3d 769 (5th Cir. 2007). 125 See Serio v. Members of the Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) ("If a prisoner challenges a single hearing as constitutionally defective, he must first exhaust state habeas remedies."). 126 See Gartrell v. Gaylor, 981 F.2d 254, 258 n.3 (5th Cir. 1993) (when challenging a prison disciplinary hearing in habeas corpus, "we have required prisoners to exhaust the TDCJ grievance procedures"); Spaulding v. Collins, 867 F. Supp. 499, 502 (S.D. Tex. 1993) ("Because this case involves a prison disciplinary action, it is not reviewable by state courts and is properly brought by federal habeas corpus petition to this court" after exhaustion of the TDCJ grievance procedure); see also Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5th Cir. 1980); Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir.1978). 25 Under the current state of the law, prisoners do not have liberty interests in a reduction in class status, or a direction that a prisoner remain at the same line class for a set period of time; 127 custodial classification because it will not "inevitably affect the duration of his sentence;" 128 placement in administrative segregation; 129 loss of commissary privileges; 130 loss of recreation privileges; 131 temporary cell restrictions; 132 job assignments; 133 or prison unit assignments. 134 Furthermore, there is no constitutional right to parole in Texas, because whether a prisoner will be released on parole is entirely at the discretion of the Board of Pardons and Parole. 135 Did you get due process? The opportunity to be heard is the fundamental requirement of due process and must be granted at a meaningful time and in a meaningful manner. 136 To satisfy due process requirements, prison disciplinary action must meet these minimum procedures: (1) the prisoner must be given advance 127 Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996). 128 Luken, 71 F.3d at 193. 129 Broussard v. Johnson, 918 F.Supp. 1040, 1044, n.1 (E.D. Tex. 1996) citing Sandin v. Conner, 115 S.Ct. 2293, 2302 (1995). 130 Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). 131 Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); see also Meachum v. Fano, 427 U.S. 215, 224 (1976) (holding that the Due Process Clause does not protect every change in the conditions of confinement having a substantially adverse impact on a prisoner). 132 Smith v. Cockrell, 2002 U.S. Dist. LEXIS 5309 (N.D. Tex. March 28, 2002). 133 Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995). 134 See Meachum v. Fano, 427 U.S. 215, 224 (1976) ("The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution."); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995) (finding that a Texas prisoner failed to demonstrate that state law created a liberty interest created a liberty interest requiring his transfer from county jail to TDCJ); David v. Carlson, 837 F.3d 1318,1319 (5th Cir. 1988) (holding that a court may not order the transfer of an inmate where there is no clear duty on the part of the prison to transfer said inmate). The only exception to this rule is assignment to a “Supermax” prison, as described in Wilkinson v. Austin, 545 U.S. 209 (2005), where conditions were considerably more restrictive than at other prison units. Before prisoners can be placed in a “Supermax”-type unit, they are entitled to some procedural due process. 135 Madison, 104 F.3d at 768; Malchi, 211 F.3d at 957. 136 Parratt. 451 U.S. at 540. 26 written notice of the charges against him; (2) evidence against the prisoner must be disclosed to him; (3) the factfinders must give a written statement of the evidence relied on and the reasons for the disciplinary action; (4) the prisoner should be afforded the opportunity to be heard in person and to present witnesses and documentary evidence in his own defense as long as doing so will not jeopardize institutional safety or correctional goals; 137 and (5) the prisoner should be given the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontation. 138 Because "federal courts cannot retry every prison disciplinary dispute," the courts may act only where "arbitrary or capricious action is shown." 139 This means that prison disciplinary proceedings will be overturned only where there is no evidence whatsoever to support the decision of the prison officials. 140 Sufficient support for a finding of guilty is provided by "some facts" or "any evidence at all." 141 A disciplinary hearing officer's decision will satisfy the due process requirements if there is "some evidence" in the record to support the decision. 142 137 The right to attend a disciplinary hearing is an essential due process protection, but it is not absolute or guaranteed. See Moody v. Miller, 864 F.2d 1178, 1181 (5th Cir. 1989) (if a prisoner, through no fault of prison officials, is unable to attend a disciplinary hearing, due process requires nothing more than that the hearing be held in accordance with all of the other requirements of due process that are called for under the circumstances). 138 Wolff v. McDonnell, 418 U.S. 539, 559 (1979); Morrissey v. Brewer, 408 U.S. 471, 489 (1972). 139 Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 455 U.S. 992 (1982). 140 Smith, 659 F.2d at 545; Reeves v. Pettcox, 19 F.3d 1060 (5th Cir. 1994). 141 Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986); Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (officer's report standing alone provides some evidence of guilt). 142 Superintendent v. Hill, 472 U.S. 445, 455 (1985). 27
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