Part two: case summaries by major topics.

• Position: Case overview

1. ACCESS TO COURTS

   U.S. Appeals Court EVIDENCE DAMAGES

   Abascal v. Fleckenstein, 820 F.3d 561 (2d Cir. 2016). A state prisoner brought a pro se [section] 1983 action against corrections officers, alleging that he was deprived of meals and was physically assaulted in violation of his Eighth Amendment rights. The district court denied the officers' motion to vacate a jury verdict or for remit-titur, and entered judgment, upon the jury verdict, in favor of the prisoner. The judge awarded one dollar in nominal damages and $150,000 in punitive damages. The officers appealed. The appeals court vacated and remanded. The appeals court held that a report authored by the Correctional Association of New York regarding conditions at the correctional facility where the prisoner was incarcerated was hearsay, was not admissible under the business records exception to the hearsay rule, was not admissible under the public records exception to the hearsay rule, and the admission of the report was not a harmless error. The court noted that the report included statements by other inmates alleging abuse at the facility, as well as the unidentified report's authors' views about the pervasive culture of abuse at the facility. According to the court, the report showed a lack of trustworthiness because it was not issued until six months after a visit to the facility, there was no showing as to when the interviews with inmates were conducted, and the report was not made by someone with personal knowledge of underlying information as it was unclear who authored the report. (Attica Correctional Facility, New York)

   U.S. District Court IN FORMA PAUPERIS PLRA--Prison Litigation Reform Act

   Aruanno v. Davis, 168 F.Supp.3d 711 (D.N.J. 2016). A detainee who was civilly committed in a special treatment unit under the New Jersey Sexually Violent Predator Act brought three civil rights actions against the state and the assistant superintendent of the special treatment unit, based on alleged violations of his privacy rights and denial of access to a law library and materials for legal research. The detainee sought to proceed in forma pauperis. The district court denied the motion. The court held that: (1) the court would apply the provision limiting the number of frivolous in forma pauperis petitions to the detainee's actions; (2) the detainee's allegations were insufficient to demonstrate that he was in imminent danger of serious physical injury; (3) the court would not appoint a guardian to represent the detainee; and (4) the former civil rights actions brought by the detainee were not improperly dismissed. (Special Treatment Unit under the New Jersey Sexually Violent Predator Act)

   U.S. District Court IN FORMA PAUPERIS PLRA-Prison Litigattion Report Act

   Aruanno v. Davis, 168 F.Supp.3d 719 (D.N.J. 2016). A detainee who was civilly committed under New Jersey's Sexually Violent Predator Act filed application to proceed in forma pauperis in two civil rights actions against a civil commitment unit supervisor, and a petition for a writ of mandamus against the State of New Jersey. The district court denied the application. The court held that the detainee failed to establish that the imminent danger exception to the discretionary "three strikes" bar applied, and that the detainee was not entitled to the appointment of a guardian ad litem. (Special Treatment Unit under the New Jersey Sexually Violent Predator Act)

   U.S. District Court. PLRA--Prison Litigation Reform Act

   Finkle v. Ryan, 174 F.Supp.3d 1174 (D. Ariz. 2016). A state prisoner brought a [section] 1983 action against a state and prison officials and employees, for allegedly violating his Eighth Amendment rights by failing to place him in protective custody. The prisoner moved to seal the record, and the defendants moved for summary disposition and for summary judgment. The district court held that: (1) the prisoner's failure to respond to defendants' motion for summary judgment did not warrant granting the motion; (2) the prisoner's claims against a deputy warden were time-barred; (3) the prisoner failed to exhaust his available administrative remedies against corrections officers, as required by the Prison Litigation Reform Act (PLRA); (4) prison officials were not deliberately indifferent to a substantial risk of serious harm to the prisoner due to threats from other prisoners, precluding his Eighth Amendment claims; and (5) the prisoner did not have compelling reasons or good cause to seal any part of the record. The court found that prison officials responded reasonably to any threats against the prisoner from other inmates and prison gangs by investigating the prisoner's requests for protective custody and choosing alternative measures to protect him, eventually placing the prisoner in protective custody once they determined that a credible threat against him existed. Prior to his placement in protective custody the prisoner was given an alternative placement and had inmates added to his "Do Not House With" list. (Arizona State Prison Complex)

   U.S. District Court TELEPHONE ACCESS TO ATTORNEY

   Lyon v. U.S. Immigration and Customs Enforcement, 171 F.Supp.3d 961 (N.D. Cal. 2016). Immigration detainees brought a class action against United States Immigration and Customs Enforcement (ICE), among others, challenging the restrictive telephone communications policies of California facilities where they were detained. The parties cross-moved for summary judgment. The district court granted the motions in part and denied in part. The court held that: (1) the Immigration and Nationality Act (IN A) did not provide detainees a general right to investigate and gather evidence in advance of and in preparation for a removal hearing; (2) the detainees who were incarcerated pending removal hearings for three weeks to 36 days failed to establish a substantive due process claim based on prolonged detention; (3) there was sufficient evidence of prejudice to the detainees as a result of the telephone restrictions to establish a real risk that the restrictions may affect the outcome of their removal proceedings, as required to satisfy the injury requirement for a procedural due process claim; and (4) summary judgment was precluded by fact issues, including whether there was a risk of depriving the detainees of their rights to access to counsel and to a full and fair hearing as a result of the telephone restrictions. The restrictive polices alleged by the detainees included high rates and fees for paid calls, limits on hours of telephone access, lack of privacy, and the inability to receive incoming calls or timely messages. (Yuba County Jail, Rio Cosumnes Correctional Center in Sacramento County, West County Detention Facility in Contra Costa County, Mesa Verde Detention Facility in Bakersfield County, California)

   U.S. District Court PLRA--Prison Litigation Reform Act

   Mckinney v. Prack, 170F.Supp.3d 150 (W.D.N.Y 2016). A prisoner brought a [section] 1983 action against prison officials, alleging that he was denied his constitutional rights when he was sentenced to segregated confinement for non-violent offenses and claiming that the policy of the New York State Department of Corrections and Community Supervision (DOCCS) on the use of lengthy terms of isolation and solitary confinement as punishment was cruel and unusual. Prison officials moved for summary judgment. The district court granted the motion, finding that: (1) the prisoner failed to exhaust his administrative remedies prior to bringing his [section] 1983 action; (2) the prisoner failed to demonstrate that the prison grievance process was unavailable to him; (3) the prisoner failed to demonstrate that prison officials forfeited their affirmative defense of non-exhaustion; and (4) the prisoner failed to demonstrate that any special circumstances existed that excused his failure to exhaust his administrative remedies. (Great Meadow Correctional Facility, New York)

   U.S. District Court RIGHT TO COUNSEL SELF-INCRIMINATION

   Tarapchak v. Lackawanna County, 173 F.Supp.3d 57 (M.D. Pa. 2016). A pretrial detainee, proceeding pro se, brought a [section] 1983 action against judges, a county, the director of the county's house arrest program, and others, after the detainee's release on bail was revoked, without judicial hearing, for violation of the house arrest program. The defendants moved to dismiss. The district court granted the motions in part and denied in part. The court held that: (1) the judges were entitled to absolute judicial immunity; (2) the detainee failed to state claims for conspiracy to deprive her of equal protection of laws; (3) the detainee adequately alleged direct involvement by the director, as required to state a claim for deprivation of the detainee's due process rights; and (4) the detainee adequately alleged a municipal liability [section] 1983 claim for a due process violation against the county. The court found that the detainee's right to counsel did not attach to her alleged interrogation in a prison hallway, by the director of the county house arrest program, regarding the detainee's bail violation, where the alleged interrogation had nothing to do with separate criminal charges leading to the detainee's subsequent conviction and sentencing. According to the court, the alleged interrogation did not violate detainee's Fifth Amendment right against self-incrimination, even if the interrogation violated Miranda because it occurred after the detainee requested counsel, where no one used the detainee's coerced statements during a criminal trial.

   The court held that the detainee adequately alleged direct involvement by the director of the county house arrest program, as required to state a [section] 1983 claim for deprivation of the detainee's due process rights in connection with the revocation of the detainee's release on bail, without a judicial hearing, for violation of a house arrest condition. The court noted that the...