ALL DIRECTORS’ TRAINING
2015
PRISON LEGAL ISSUES
Kathleen M. Kenney
Assistant Director/General Counsel
Federal Bureau of Prisons
TOPICS
Failure to Protect
 Death Penalty
 Restrictive Housing
 Gender Dysphoria
 Marriage
 Religion
 Hepatitis C
 Mental Health
 Misc. 9th Circuit Cases
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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
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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 STATES
NINETEEN STATES (AND THE DISTRICT OF COLUMBIA) HAVE ABOLISHED THE DEATH PENALTY
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Michigan (1846)
Wisconsin (1853)
Maine (1887)
Minnesota (1911)
Alaska (1957)
Hawaii (1957)
Vermont (1964)
Iowa (1965)
West Virginia (1965)
North Dakota (1973)
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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
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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
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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)
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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
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(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)
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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
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Virginia policy mandates that all persons who receive a
death sentence are housed on death row with no
possibility of reclassification
BALL V. LEBLANC,
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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)
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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
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DAVIS V. AYALA
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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
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General conditions of confinement in BOP’s restricted housing
units meet national standards
Recommendations for restricted housing:
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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”
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PRESIDENT OBAMA VISITS FCI EL RENO
LEGISLATIVE INITIATIVES
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Solitary Confinement Study & Reform Act 2015
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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
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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
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Latest version of DSM changed terminology to Gender
Dysphoria
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PREA regulations have specific requirements
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No longer Gender Identity Disorder (GID)
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 (1
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ST
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
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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.)
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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.)
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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
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 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)
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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
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MARRIAGE POLICIES
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Review current policies to consider affording
inmates in same-sex marriages the same rights
and privileges as those in opposite-sex
marriages
 Program
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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)
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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.))
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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)
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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)
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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)
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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
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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
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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)
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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
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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
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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
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New drugs have cure rate of 95 percent
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Prevalence in community is two 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.)
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Prisoners’ Legal Services filed class action lawsuit
against the Massachusetts DOC, alleging the state
is withholding treatment for Hepatitis C from
inmates
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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
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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
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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:
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 Harvoni
 Viekira
Pak
 Sofosbuvir and either Simeprevir or Ribavirin
MENTAL HEALTH CASES
SILVERSTEIN V. BOP,
559 F. APP’X 739 (10TH CIR. 2014)
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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
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“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)
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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)
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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”
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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)
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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:
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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):
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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)
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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.
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AMBAT V. CITY AND COUNTY OF SAN FRANCISCO
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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 audiomonitoring 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.

Kathleen M. Kenney
Assistant Director/General Counsel
Federal Bureau of Prisons
THANK YOU