| | | | | | | | | | JAIL AND PRISON LIABILITY THE JAGGED EDGE | | | | | | | | CHARLES DUNN Law Offices of Charles Dunn Lubbock National Building 1001 Main Street, Suite 504 Lubbock, Texas 79401 Telephone: (806) 763-1944 Telefax: (806) 763-1945 Copyright © 2002 Charles Dunn All Rights Reserved | | | | | | | | Presented to the State Bar of texas SUING & DEFENDING GOVERNMENTAL ENTITIES July 25-26, 2002 Galveston | | | | | | | | | | | | | | | | | |
| | | | | | | | | | CHARLES DUNN 1001 Main Street, Suite 504 P.O. BOX 311 LUBBOCK, TEXAS 79408-0311 (806)763-1944 TELECOPIER (806) 763-1945 | | | | | | | | Charles Dunn practices in the area of plaintiff s personal injury litigation in Lubbock, Texas. He is past President of the South Plains Trial Lawyers Association, previously served as a director of the Texas Young Lawyers Association and the Lubbock County Bar Association and is Board Certified in Personal Injury Trial Law. He is a member of the Texas Trial Lawyers Association and the American Trial Lawyers Association. | | | | | | | | | |
| | | | | | | | | | Jail and Prison Liability - The Jagged Edge__________________________________________________________Chapter 23 Table of Contents I. INTRODUCTION .............................................................................. 1 II. RECENT CASES................................................................ 1 A. Porter v. Nussle_____U.S.____, (February 26, 2002) ............................... 1 B. Correctional Services Corp. v. Malesko___U.S.___(November 27, 2001).............. 1 C. Shaw v. Murphy___U.S.___(April 18, 2001)..................................... 1 III. EXCESSIVE FORCE ........................................................... 2 A. Pretrial Detainees............................................................ 2 B. Prisoners ................................................................... 2 IV. MEDICAL CARE............................................................... 2 V. INMATE CLASSIFICATION ..................................................... 3 VI. JAIL CONDITIONS, FOOD AND EXERCISE...................................... 3 VII. VISITATION.................................................................. 4 VIII. SUICIDE.................................................................... 4 IX. MAIL, READING MATERIALS AND ACCESS TO COURTS......................... 4 X. PROCEDURAL DUE PROCESS FOR INMATES .................................... 5 XI. THE PRISON LITIGATION REFORM ACT....................................... 5 A. Attorneys Fees............................................................... 5 B. Exhaustion of Administrative Remedies ......................................... 5 C. Personal Injury.............................................................. 5 D. Filing Fees..............................................................___ 6 E. Three Strikes Provision ....................................................... 6 XII. CONCLUSION................................................................ 6 | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge | | | | | | | | | JAIL AND PRISON LIABILITY - THE JAGGED EDGE | | | | | | | | I. INTRODUCTION The purpose of this article is to provide a summary of the current issues in jail and prison litigation. The article will focus on recent developments in this area of the law in addition to the areas of litigation likely to be faced by the plaintiff or defense attorney. The article will not attempt to cover topics addressed by other speakers such as sovereign immunity, qualified immunity, municipal liability and the Texas Tort Claims Act. Although prison/jail litigation necessarily interacts with those areas of the law, it is beyond the scope of this paper to address them. II. RECENT CASES A. Porter v. Nussle____U.S.____, (February 26, 2002) Mr. Nussle was a state prison inmate who sued the Connecticut Department of Corrections for violation of the Eight Amendment ban on cruel and unusual punishment. The suit alleged that the prison subjected him to a sustained pattern of harassment and intimidation and had singled him out for a severe beating. The Connecticut Department of Corrections maintained and operated an inmate grievance system, but Nussle sued without first exhausting his administrative remedies. The District Court dismissed citing the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997 e(a), that directs: No action shall be brought with respect to prison conditions under section 1983, or any other Federal law, by a prisoner until such administrative remedies are available are exhausted. The Second Circuit reversed the District Court and held that the PLRA does not cover single issues that immediately affect prisoners such as excessive force and that the PLRA only applies to prison conditions in general. "" " Justice Ginsburg, writing for the Court, reversed and held that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve special circumstances or particular episodes, and whether they allege excessive force or some other wrong. Therefore, in order to sue under §1983, a prisoner must first exhaust his administrative remedies regardless of the nature of the suit. | B. Correctional Services Corp. v. Malesko___ U.S.___(November 27,2001) Mr. Malesko was a prison inmate with a medical condition that prevented him from walking up stairsTHe was asilgneTa^eTrontnTSrlElIoor of a private jail facility operating under contract with the Bureau of Prisons to house federal inmates. The policy of the private corporation was that all inmates below the sixth floor were required to use the stairs rather than" the elevator. Because"of Malesko^s "meoicarcondition"Ke~was exempt from the policy and was allowed to use the elevator. One day, a Correctional Services employee prevented Malesko from using the elevator and he was forced to use the stairs. While climbing the stairs, Malesko suffered a heart attack which caused him to fall and injure himself. Malesko brought a Bivens cause of action against the corporation foF~violation of his constrtul]^ fxlend™T~^^nF°cause of action for damages to rmyjateientr^ held thar^tliF^ulposeof Bivens was to deter individual federal officers, not the agency, from committing constitutional violations. Therefore, the court found no reason to extend Bivens to cover private corporations. This case follows a ten year trend of cases limiting the application of Bivens. C. Shaw v. Murphy___U.S.___(April 18,2001) Inmate Murphy sent a letter to a fellow inmate offering to assist him with his .defense tqjprison charges of assaulting a guard. His letter was Intercepted m accordance withprison policy. The prison, according to policy, sanctioned Murphy for interfering with the due process hearings of the grievance system. Murphy sued under §1983 alleging that the disciplinary action violated his First Amendment right to provide legal assistance to inmates. The Supreme Court held that inmatesjdo not^rjrocess a special First Amendment right to provide legal assistancerlonfeUb^TSSBStesr^^e^ ngjrtsjofgriso^ rights j>fjndjiyj^^ "Alnendment rights are jirioojny5i^ __ qgrrggl^ objectives, citing Pell v. Procunier, 417 U.S. 817322(1974). | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge______________ III. EXCESSIVE FORCE A. Pretrial Detainees The due process clause rather than the Eighth Amendment applies to pretrial detainees. The Supreme Court first recognized that substantive due process prohibits arbitrary, capricious abuses of government power. It protects persons from egregious conduct such as pumping a suspects stomach so as to uncover illicit drugs, Rochin v. California, 342 U. S. 165 (1952). If the abuse of power is not such that it rises to the level of a constitutional violation, the Supreme Court has held that it is a mere "common law tort" and that the violation of state law without more, does not state a claim under the Constitution. Pretrial detainees who have been detained in an investigatory stop pursuant to Graham v. Conner, 490 U. S. 386 (1989) need not prove malice to have an excessive force claim. The Fourth Amendment applies to such action and the claimant need only prove a significant injury which resulted directly, and only fromj&eJass-Q£iQrj£.e that was clearly excessive to the need and that the excessiveness was objectively unreasonable. If the pretrial detainee is in"jail"lioweverTtrien the Fourteenth Amendment applies. If excessive force is applied in a non-emergency situation, then the standard is "deliberate indifference" to the rights of the person injured, County of Sacramento v. Lewis, 523 U.S. 833 (1988), If the excessive force arises from a situation in which the officer is acting without time to deliberate, the Eighth Amendment applies. Therefore, if you are representing a pretrial detainee on an excessive force claim, you must first determine the location where the force occurred. If it occurred during an investigatory stop, the Fourth Amendment applies. If it occurred during a non-emergency situation in a jail, the Fourteenth Amendment applies. If the excessive force occurred in an emergency situation in a jail, the Eighth Amendment applies. You must plead the specific ..constitujaojial vio^^j^o^^to defeat a motion lor summary judgement. | _____________________Chapter 23 significant injury must be shown, the prisoner still must show more than a de minimis physical injury. In Gomez v. Chandler, 163 F3d 921 (5th Cir. 1999) the Court held that a prisoner who was knocked down so that his head struck the concrete floor, his face scraped against the floor, he was repeatedly punched and kicked by the officers and as a result, suffered cuts and contusions, that his injuries were de minimis. Because the standard in the Fifth Circuit is so high regarding the proof required to get a case to a jury in which a prisoner alleges a violation of the Eighth Amendment right to be free from the use of excessive force, the practitioner would be better served focusing his efforts on those cases involving pretrial detainees. Only the most obvious egregious excessive force cases will survive summary judgement in the Fifth Circuit if the Eighth Amendment test is applied. IV. MEDICAL CARE An Eighth Amendment claim with respect to medical care requires a showing of delibegaje^ .indifference. Farmer v. Brennan, 114 S. Ct. 1970 (1994). It is a two prong test which requires official and actual knowledge of an excessive risk to an inmate and the conscious disregard of the risk. In the Farmer case the Court did not require that the prisoner prove actual advance notice to the prison administration of the risk, but allowed it to be shown by subjective awareness. TheFifth Circuit has added an additional level of^rooTln^additiorTlo coristrrutionaT^ner^^^ozfl v. ~Lyna^gE^VW~T2U Inmates will not be subjected to Eighth Amendment violations regarding the standard of medical care received, the type of treatment afforded the inmate or the choice of medicines afforded the inmate unless the prison administration has a "culpable state of mind." A culpable state can be shown by such actions as withholding medical care on purpose, delaying treatment with the intent to harm the inmate or knowingly interfering with treatment. The courts generally allow prison administration officials broad use of their discretion regarding medical treatment. In Burnell v. Griffith, 158 F.R.D 104 (E.D. Tex. 1994) an inmate sued because a jail physician changed the treatment recommended by a hospital physician. The Court held that the jail does not guarantee that prisoners receive absolutely correct medical treatment, as there is no such thing. The Court recognized that | | | | B. Prisoners The Eighth Amendment applies to prisoners. In Hudson v. McMMian, 503 U.S. 1 (1997), the Supreme Court rejected the significant injury requirement of excessive force and specified that it be "unnecessary and wanton" and that it must be "maliciously and sadistically" applied for the purpose of causing harm in order to meet the standard of an Eighth Amendment violation. However, the Fifth Circuit has held that even if no | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge | | | | | | | | | the practice of medicine is an art and not a science and that everyone takes a risk as to diagnosis and treatment. From a practice standpoint, if a defense attorney receives a case filed by a prisoner under the Eighth Amendment regarding inmate medical treatment, a motion for summary judgment should be immediately filed. The Courts will likely grant the motion because current law requires that in order for a denial of medical treatment to rise to the level of a constitutional violation the inmate must show that the prison official was deliberately indifferent to a serious medical need, Estelle v. Gamble, 429 U.S. 97 (1976). From a plaintiff standpoint, the attorney representing the inmate should obtain the complete medical record which reflects sick calls, requests for examinations, diagnosis, medications recommended or ordered but not given and any other documents which would rebut a motion for summary judgment. A plaintiff should also attempt to obtain the jail policy and guidelines regarding medical treatment of serious medical conditions and use any deviation from the policy guidelines to show deliberate indifference. "~------*"** | do extensive pretrial discovery to show a pattern of abusive classification decisions. Poor pre-trial discovery on a classification case which fails to show a pattern of classification abuse is a recipe for a quick summary judgment in favor of the defense. Because pretrial detainees are treated differently under the Constitution, they must be separated from convicted persons to the extent reasonably possible. However, in Bell v. Wolfish, 441 U.S. 520 (1979) the Supreme Court held that pretrial detainees may be classified as justified to meet the needs of the jail administration which includes effective management, security, order and discipline. The Fifth Circuit has even allowed convicted persons to be housed with pretrial detainees if it addresses a specific institutional violation and is not excessive in light of that violation, Jones v. Diamond, 636 F. 2d 1364,1376 (5th Cir. 1981). Race based housing of prisoners remains controversial. The Fifth Circuit has held that mere fear of racial violence is not sufficient justification for a broad policy of racial segregation when the fear is generalized or vague, Sockwell v. Phelps, 20 F3d 187 (5th Cir. 1994). However, Courts have allowed race based housing of prisoners on a short term basis to allow prison officials to address identifiable security concerns, White v. Morris, 832 F Supp. 1129 (S.D. Ohio 1993). Prison officials are required to take into consideration any health problems of a prisoner when classifying inmates. VI. JAIL CONDITIONS, FOOD AND EXERCISE There have been numerous cases litigated over the quality and quantity of food provided to prisoners. Few appellate decisions have addressed the issue with published opinions. Of the few published opinions available, the Courts have stated that prison food must be nutritionally "adequate" and must not present an "immediate" danger to the health of the prisoner, Ramos v. Lamm, 639 F2d 559 (10th Cir. 1980). The question remains as to whether the Constitution is violated if the food poses a danger that is not immediate. What if the food appears adequate and tastes good but later is found to contain hepatitis? The Courts have held that food which is infested by vermin or foreign objects is not a constitutional violation unless the prisoner can show deliberate indifference over a period of time despite complaints from the prisoners served the food, Summers v. Sheahan, 833 F Supp. 1163 (N.D. 111. 1995). | | | | "^"""T^ernardetainee medical claims are scrutinized under the du&-^em._daas£s^ftlhe„ Fourteenth Amendment instead of the Eighth -Alniendirientr~ThTTifth Circuit has stated that the pretrial detainee is entitled to "reasonable medical care" unless the failure to suppTy^lEe^c^e is "reasonably related to a legitimate government objective, Cubit v. Jones, 835 F2d (5th Cir. 1987). V. INMATE CLASSIFICATION Although prisons have an affirmative obligation under the Eighth Amendment to protect inmates from violence, the Courts have been reluctant to enforce such obligations when faced with the prevention of unforseen attacks, especially if the inmate being attacked is in anyway responsible for the attack. In a rare moment of judicial frankness, the trial court in Hadley v. Peters, 841 F. Supp. 850 CD. 111. (1994) stated that "violence is unfortunately endemic in American prisonsT^^TTie^ourtwei^ra to^SHTEatplisoirolfjHaircould not be responsible for problems caused by the plaintiffs own aggressive nature. The Fifth Circuit Court has held that an inmate has no right to a particular classification unless the classification is "unreasonable or arbitrary", McCordv. Maggio, 910 F2d 1248 (5th Cir. 1990). If the practitioner contemplates a suit against a prison under the Eighth Amendment for placing a non-violent inmate in a unit with a known violent inmate, it is important to | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge ___________ What about withholding food as punishment? The Supreme Court has not ruled on this issue but has found that putting prisoners on a restricted diet as punishment is constitutional, Hutto v. Finney, 437 U.S. 678 (1978TTnTFfmTCircuit has held that as long as meals meet recognized daily food requirements, two meals, instead of three are. sufficient,Green v. Ferrell, 801 F. 2d 765 (5th CirTT58^)7~ThT7ittirCircuit has also allowed prisons to refuse to provide inmates with special diets based upon religious needs if it would place an undue burden on the prison system both financially and administratively, Udey v. Kastner, 805 F2d 1218 (5th Cir. 1986). Many courts have held that regular exercise is crucial for the health and well being of inmates. However, great latitude is accorded prison officials to determine what constitutes adequate exercise, Spain v. Procunier, 600 F. 2d 189 (9th Cir. 1979). The Fifth Circuit has held that there is no constitutional requirement for outdoor exercise, Dailey v. Byrnes, 605 F. 2d 858 (5th Cir. 1979). To determine if a constitutional claim is presented for denial of exercise, the courts will consider several factors. It is clear that inmates must not be denied movement to the point that their muscles suffer atrophy or their individual health threatened, French v. Owens, 111 F. 2d 1250 (7th Cir. 1985). If the prisoner is given a reasonable opportunity for exercise and does not allege any physical problems because of inactivity, no constitutional claim is presented, Buffington v. O'Leary, IAS F. Supp. 633 (N.D. III. 1990). VII. VISITATION The Constitution creates no liberty interest in prison visitation, Evans v. Johnson, 808 F. 2d 1427 (11th Cir. 1987). Therefore, visiting restrictions, which are a common form of prison discipline, will generally be upheld unless the prisoner can show that the discipline itself was not warranted, Bell v. Wolfish, 441 U. S. 520 (1979). A particular visitor may also be denied visitation because such a denial is within the terms of confinement ordinarily contemplated by a prison sentence, Hewitt v. Helms, 459 U. S. 460 (1983). In general, prison officials have discretion to terminate visitation and inmates have no absolute right to visitation as long as visitation policies meet legitimate penological interests, Caraballa-Sandoval v. Honstead, 35 F. 3d 521 (11th Cir. 1194). Although the Supreme Court in Block v. Rutherford, 468 U.S. 576 (1984) stated that prisons may restrict contact visits for security reasons, inmates have a fundamental right to | _____________________________________Chapter 23 counsel. A prisoner's right to counsel and a prisoner's right of access to the courts includes visits with his lawyer, Block, 468 U.S. at 586-87. VIII. SUICIDE Jail suicide cases fit into the same category as other prison litigation in that the plaintiff must show that the prison officials acted with deliberate indifference. They are considered under the Eighth Amendment with the same standard as medical care cases. In Plasko v. City of Pottsville, 852 F. Supp. 1258 (E.D. Perm. 1994) the Court required the plaintiff to establish (1) detainee had a particular vulnerability to suicide (2) the officer knew or should have known of the vulnerability, (3) the officer acted with reckless indifference to the vulnerability. In the context of jail suicide, deliberate indifference includes a question of whether a defendant was deliberately indifferent to both an individual's mental condition as well as the likely consequences of that condition, Wright v. Wagner, 641 F. 2d 239 (5th Cir. 1981). Violent cells, sometimes called padded cells or safety cells, have been a constant source of litigation in Federal Courts. In Anderson v. Kern, 45 F. 3d, 310 (9th Cir. 1995), inmates brought suit alleging that the use of violent cells violated the Eight Amendment. The test articulated in Kern is whether the placement of mentally disturbed or suicidal inmates in safety cells constituted an infliction of pain or a deprivation of basic human needs and if so, whether the prison officials acted with the requisite culpable intent. IX. MAIL, READING MATERIALS AND ACCESS TO COURTS In 1977, the United States Supreme Court held that prisoners must be afforded adequate law libraries or adequate assistance from those trained in the law, Bounds v. Smith, 430 U.S. 817 (1977). After Bounds, the Courts struggled with the concept of meaningful access and whether or not an inmate had to show an actual injury to prevail. In Lewis v. Casey, 116 S. Ct. 2174 (1996), the Supreme Court reviewed a lower court ruling that found shortcomings regarding prison library facilities. The Supreme Court stated that an inmate must show that the inadequate library facilities or legal assistance program caused him "actual injuries." ,In order to pursuejiis ckim_lhe inmate musL^hnaL-that»4he, -inadequate accessjhindered his_effojlsjjo^afsti€>his legal claim or de^mTejn^ojnejnainei. '^~^fhbrnbT^hv. Abbott 490 U.S. 401 (1989) the Supreme Court held that in order for prison | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge____________ censorship to be constitutional, it must be "generally necessary" to protect a governmental interest. In general, prison regulations restricting mail to prisoners from outside sources is analyzed under a reasonableness standard and are valid if the restrictions are reasonably related to a legitimate penological interest. Unjustified censorship of incoming mail violates the constitutional right of access to courts and freedom of speech and association. In other words, the prison administration may censor mail but not simply eliminate "unflattering or unwelcome" opinions, Thomburgh at 415-16. Outgoing mail from prisoners should be unrestricted unless it falls into categories that present a threat to prison security or order, Thomburgh at 415-16. In addition to considerations regarding mail, other reading materials may be limited if they are limited on a content neutral basis and for a legitimate penological interest. A regulation is content neutral if it prohibits behavior based on a reason other than the particular content or viewpoint contained in the material, R.A. V. v. City of St. Paul, 505 U.S. 377 (1992). Pornography cannot be banned absolutely. However, under certain circumstances, prison officials may disallow sexually explicit materials. If the material is obscene, it can be excluded. The test for obscenity is set forth in Miller v. California, 413 U.S. 15 (1973): 1. The work, taken as a whole, appeals to the prurient interest in sex; 2. The work must portray sexual conduct in a patently offensive way; and 3. The work, taken as a whole, must not have any serious literary, artistic, political or scientific value. Even if the sexually explicit material does not rise to the level of "obscenity," prison officials may still limit access to it but only if they follow two important steps. First, prison officials can reject any publication for good reason pursuant to specific criteria, but they must review each issue separately. Second, the regulations must serve a legitimate penological interest. Sexually explicit publications have been found to negatively impact valid penological interests because they could exacerbate problems ofnon-consensual homosexual acts within the prison, Thompson v. Patterson, 985 F. 2d 202 (5th Cir. 1993). "^-^^_______...... .__^ | _____________________________________Chapter 23 X. PROCEDURAL DUE PROCESS FOR INMATES The Due Process Clause of the Fourteenth Amendment protects procedural rights. While it is fundamental to the Constitution that the state cannot hold and physically punish an individual except in accordance with due process of law; in the prison context, the Supreme Court has held that prisoners liberty interest extends only to the point wherein the restraint imposes "significant and atypical hardships" on inmates, Sandin v. Conner, 515 U.S. 472. XI. THE PRISON LITIGATION REFORM ACT A. Attorneys Fees The Prison Litigation Reform Act 42 U.S.C. §1997e was passed by Congress in 1995 to regulate lawsuits filed by prisoners contesting the conditions of their confinement. The PLRA substantially reduces attorneys fees recoverable by a prisoner who successfully litigates a civil rights action against the state and its agents. Through the passage of the fee cap provision of the PLRA, Congress has singled out prisoner civil rights litigants and purposefully denied them the recovery of fees awarded to all other civil rights plaintiffs who successfully litigate their claims. B. Exhaustion of Administrative Remedies §1997 e(a) requires inmates asserting civil rights or constitutional claims to exhaust all administrative remedies which are available at the prison level before bringing suit under Federal law. The Supreme Court, as discussed elsewhere in this paper, has expanded the coverage of the act to cover all suits filed by a prisoner to address a civil rights claim under Federal law. Therefore, before any suit by a prisoner may be entertained alleging a violation of Federal law, the prisoner must proceed through the steps of his prison grievance system and exhaust his administrative remedies. C. Personal Injury The act requires that the inmate show a "physical" injury before he can maintain suit, 42 U.S.C. §1997e(e). The question remains whether this portion of the act violates .the well settled constitutional right to seek redress for constitutional violations such as intrusious upon liberty. For example, a person deprived of the right to practice his religion may suffer no physical injury in the | | | | | | | | | | |
| | | | | | | | | | | Jail and Prison Liability - The Jagged Edge sense of bodily harm but few would argue he has not suffered an injury. In several cases, complaints about threats of violence or exposure to a risk of violence from others have been dismissed because no actual violence occurred. See Tapia v. Sheahan, 1998 WL 919709 at *5 (N.D. 111. 1998), Flannery v. Wagner, 1998 Wl 709762 at *1 (D. Kan. 1998),which dismissed claims that prison officials spread rumors that subjected the plaintiffs to a risk of assault, which did not occur. The Courts have rej ected claims as being barred for failure to show physical injury which were based upon placement in or conditions of segregated confinement, being housed with a mentally disturbed prisoner, refusing to take a TB test because of religious grounds, psychological injury resulting from segregated confinement, psychological injury from being held in a high security unit, and a claim that bodily fluids were thrown at plaintiff. As these cases illustrate, the Courts have strictly interpreted the injury requirement and are quick to dismiss these sorts of claims at the trial court level. D. Filing Fees A prisoner who desires to file a civil suit in forma pauperis must submit certified statements of his prison funds for the preceding six months and is required to pay the entire filing fee in monthly installments. Even if the fee is paid in full, cases may be dismissed if there has been a false allegation of indigency, if the action is deemed frivolous, if the complaint fails to state a claim or if it seeks money damages from a defendant who is entitled to claim immunity from suit. E. Three Strikes Provision Prisoners, under the PLRA, may not proceed in forma pauperis in civil actions or appeals if, while they were incarcerated or detained, they have brought three or more prior actions or appeals in a court of the United States that were "dismissed as frivolous, malicious, or for failing to state a claim". The only exception to this rule is when the inmate is "under imminent danger of serious physical injury" 28 U.S.C. §1915. The "three strikes" rule has been upheld in Rodriguez v. Cook, 163 F 3d 584 (10th Cir. 1998) which rejected due process, equal protection, access to Courts, Ex Post Facto Clause and separation of powers arguments. XII. CONCLUSION Since the attack of September 11, the United States Government has spent billions of dollars in | ________________t_________________________Chapter 23 the war against domestic terrorist attacks. Future jail litigation in the area of pretrial detainees will explode in the coming years. The practitioner in this area should be prepared for the law to rapidly change and evolve as the courts decide the scope of the sweeping powers granted law enforcement to fight terrorism. | | | | | | | | | | |
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