§3 Constitutional Rights of Pre-Trial Detainees and Prisoners


All pre-trial detainees and prisoners have constitutional rights recognized by the courts that cannot be abridged by prison officials without creating personal and civil liabilities. The use of extreme force and corporal punishment to enforce prison discipline is very limited to maintaining the security of the institution.

Prisoners have an Eighth Amendment right against cruel and unusual punishment. In the event of personal, bodily injury prisoners have the right to seek damages in a 42 U.S.C. §1983 civil rights action.

Prisoners have the right to protect themselves in self-defense against an assault by another and to intervene in the protection of another. Prisoners have the right to receive visitors at the discretion of the facility and the use of mail and telephone. Prisoners have the right to rehabilitation programs, medical aid and food.

Prison officials can limit these constitutional rights by regulations promulgated to maintain discipline or the security of the institution. Prison officials must balance the State interests of the institution against the constitutional rights of the prisoners. Prison officials have administrative discretion in many matters, but very limited authority to censor inmate mail and none whatsoever over confidential legal mail. A prisoner must be notified if a prison official decides to censor or not deliver personal mail.

The First Amendment does not protect the rights of prisoners to receive any pornography or materials that incite lawless action. The First Amendment does protect a prisoners right to the free exercise of their religion of choice. Conjugal visits between husband and wife and press interviews are not deemed constitutional rights of prisoners.

Prisoners have the right of access to the courts, the right to petition, the right to seek legal counsel or have access to a prison law library. Prisoners have the right to make a claim of retaliation should officials punish a prisoner for exercising a constitutional right.

A. Pre-Trial Detainees

Pre-trial detainees constitute a special category of inmates entitled to the same rights as other citizens except to the extent necessary to assure their appearance at trial and the security of the institution. Bell v. Wolfish, 441 U.S. 520, 60 L.Ed.2d 447, 99 S.Ct. 1861 (1979).

Although a pre-trial detainee may be subject to some of the same restrictions as convicted prisoners, the restrictions are not unconstitutional unless they amount to punishment. Occhino v. United States, 686 F.2d 1302 (8th Cir. 1982). Some appellate courts have held that for pre-trial detainees, restrictions on visitor access must be justified by a compelling interest. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3rd Cir. 1979).

Johnson recognized the existence of two competing interests in the area of corrections: (1) legitimate exercise of control by prison officials; and (2) constitutionally protected rights of prisoners. Where an irreconcilable conflict exists, prison officials rather than the inmate, must alter their practices. See, McKinney v. DeBord, 507 F.2d 501 (9th Cir. 1974).

Johnson established the right of an inmate to receive legal assistance from a fellow inmate as affirmed in Bounds supra. Broad rules that prohibit inmates from giving or receiving legal assistance on habeas corpus or other general legal matters are invalid. However, reasonable rules governing time and place are within the discretion of prison officials.

Inmates have the constitutional right to waive counsel and act as their own lawyers, but this does not mean that a non-lawyer must be given the opportunity to acquire a legal education. Hatfield v. Bailleax, 290 F.2d 632,(640-41 (9th Cir. 1961).

All inmates in the institution must be permitted to seek legal counsel of choice. Communications with the court is unrestricted including confidential legal mail. “All inmates are presumed to be confined under valid judgments and sentences.” Hatfield, at 632.

B. Access to the Courts

All incarcerated defendants have the right of adequate access to the courts including extra law library time and typewriters in their living quarters for those defendants electing self-representation or proceeding pro se. I would argue that defendants have this right with or without the appointment of counsel.

If the case is deemed “complex” then motion the court for a continuance of the trial date and order extra law library time if the detention centers denies your request. Subpoena the warden or his representative if necessary to show cause why denial of the request is justified to maintain discipline or the security of the institution.

Often policy dictates that if you are not proceeding pro se then it is up to the administrative discretion whether or not to provide additional access. Appointment of counsel is generally deemed adequate access to the courts and most facilities provide a minimum of 5 hours per week for all pre-trial detainees.

Federal facilities usually have better law libraries than county or state facilities many of which are useless. There are institutional restrictions but many can be overcome by proceeding pro se. While prisons are often mindless bureaucracies, rule-bound, inflexible and non-responsive, most institutions are suddenly accommodating if put on notice of civil liabilities arises to due to inaction or the violation of constitutionally protected rights of defendants and established case law.

Denial of adequate access to the courts is a violation of basic constitutional rights the Supreme Court addressed in Johnson v. Avery, 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969) and more recently Bounds v. Smith, 430 U.S. 817, 52 L.Ed. 2d 72, 97 S.Ct. 1491 (1977); See, Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981).

Despite court’s stating that the provision of counsel without regard to effectiveness may satisfy the requirements of Bounds supra, the defendant can argue that his Sixth Amendment rights are violated when requests for access to the courts is denied by prison officials due to the fact that he must proceed pro se to be granted access.

The Second Circuit ruled that a prisoner’s right of access to the courts, guaranteed by the Due Process and Equal Protection Clauses, is satisfied by the appointment of counsel, without regard to counsel’s effectiveness. Bourdon v. Loughren, No.03-0196 (2nd Cir. 2005). In Benjamin v. Fraser, 264 F.3d 175 (2nd Cir. 2001), the Second Circuit stated that the provision of counsel can be a satisfactory means of satisfying the constitutional requirement of access to the courts and observed that several other federal circuits have applied Bounds to reach the same conclusion.

The right to effective assistance of counsel is guaranteed by the Sixth Amendment, whereas the right of access to the courts is derived from the equal protection and due process guarantees of the Fifth and Fourteenth Amendments, as well as the Petition Clause of the First Amendment and Article IV’s Privileges and Immunities Clause.

The right of effective assistance of counsel applies only to a defendant’s trial and first appeal as of right while the right of access to the courts require that all prisoners defending against criminal charges, appealing convictions or conditions of confinement “not be impeded from presenting those defenses and claims for formal adjudication by a court.”

The Supreme Court discussing Bounds holding in Lewis v. Case, 518 U.S. 343, 135 L.Ed.2d 606, 116 S.Ct. 2174 (1996), said Bounds “guaranteed no particular methodology but rather the conferral of a capability…. When any inmate…shows that an actionable claim…which he desired to bring has been lost or rejected …, because this capability of filing suit has not been provided,” the Lewis court said, unless “he demonstrates that the State has failed to furnish ‘adequate law libraries or adequate assistance from persons trained in the law.'”

To prevail in a claim of the denial of right of access to the courts after appointment of counsel, the prisoner must show he was prejudiced by the counsel’s performance; that counsel did not obtain law library materials as requested; that counsel did not capably present issues to the court; and that prison officials impeded his access to the appointed counsel.

C. Jailhouse Lawyer Rendering Legal Assistance to Fellow Inmates

A jailhouse lawyer is an inmate who, through self-education, has acquired minimum legal skills and, notwithstanding prison restriction, offers legal advice and counseling to fellow inmates without compensation. Denial of access to the courts is a violation of a basic constitutional right that.the Supreme Court began to address in Johnson v. Avery, 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969) by allowing an illiterate prisoner to receive legal aid from a fellow prisoner in the preparation of a writ of habeas corpus.

Johnson recognized the existence of two competing interests in the area of corrections: (1) legitimate exercise of control by prison officials, and; (2) constitutionally protected rights of prisoners. Where an irreconcilable conflict exists, the prison officials, rather than the inmate, must alter their practices. See, McKinney v. DeBord, 507 F.2d 501 (9th Cir. 1974). Broad rules that prohibit inmates from giving or receiving legal assistance on habeas corpus or other general legal matters in jail are invalid. However, reasonable rules governing the time and place are within the discretion of prison officials.

If inmates cannot safely store legal materials in their cells, arrangements and procedures for storage is required. Inmates can receive legal materials from other sources other than attorneys and publishing houses, subject only to screening for security purposes and contraband. Where there is no “reasonable alternative,” all inmates must be permitted to seek legal counsel from the jailhouse lawyer. Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974); Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981).

The uncontrolled discretion of a prison official as to who may receive legal counseling has been invalidated when not subject to established standards. Johnson established the right of an inmate to receive legal assistance from a fellow inmate. Bounds v. Smith, 430 U.S. 817, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977). This does not apply to receiving legal assistance through the mail from an inmate in another prison.

In recent court rulings, prison regulations cannot forbid the jailhouse lawyer from having the papers of another inmate in their cells until such time as the petition was complete. See, Gilmore v. Lynch, 319 F.Supp. 105 (N.D. Cal 1970), affirmed sub nom, Younger v. Gilmore, 404 U.S. 15, 30 L.Ed.2d 142, 92 S.Ct. 250 (1971). Prison officials may not refuse to forward a document to the courts on the grounds that it is improperly prepared. This determination is for the courts, not prison officials.

The Supreme Court held that inmates do not possess a special First Amendment right to provide legal assistance to fellow inmates that enhances the protections otherwise available. Turner v. Safley, 482 U.S. 78, 96 L.Ed.2d 64, 107 S.Ct. 2254 (1987). Inmates have a right to receive legal advice from other inmates only when it is a necessary means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts. Shaw v. Murphy, 532 U.S. 223, 149 L.Ed.2d 420, 121 S.Ct. 1475 (2001).

The type of legal assistance received by a fellow inmate is not restricted to habeas corpus petitions. Federal courts have expanded the right to include other legal petitions including a civil rights action under 42 U.S.C. §1983. A prison regulation prohibiting inmate assistance in the drafting of pro se legal papers constituted a “deprivation of due process of law, where no ‘reasonable alternative’ was available to furnish legal advice.” Williams v. Department of Justice, 433 F.2d 958 (5th Cir. 1970).

The Supreme Court held in Wolff that Johnson was not limited to cases involving the preparation of habeas corpus petitions, but also applied to civil rights actions. In cases relating to this issue, it is clear that some measure of professional assistance must be made available if prison officials intend to suppress the activities of the jailhouse lawyer and that the assistance is adequate to meet the needs of the inmates.

Although prison officials may regulate the manner in which an inmate conducts his research, they may not engage in wholesale confiscation of significant legal documents or remove them without consulting the inmate about their relevance. In Bounds supra, the Supreme Court took an affirmative view towards the responsibility of prison authorities to provide prisoners with adequate law libraries or viable sources of legal knowledge. Recently, the Supreme Court case of Lewis v. Casey, 518 U.S. 343, 135 L.Ed.2d 606, 116 S.Ct. 2174 (1996) has had a substantial impact on all aspects of legal services as well as legal materials that must be made available to prisoners.

The law is clearly established that a prison official may not retaliate against or harass an inmate for exercising the right of access to the courts. The necessary elements of a retaliation claim are: (1) a prison official acted under color of law; and (2) intentional retaliation for the exercise of a constitutionally protected activity. See, Gibbs v. King, 779 F.2d 1040 (5th Cir. 1986), cert.denied, 476 U.S. 1117 (1986).

A court may dismiss an in forma pauperis complaint as “frivolous or malicious” within the meaning of 28 U.S.C. §1915(d if the court determines the claim is: (1) of little weight or no weight, value, or importance; (2) not worthy of serious attention; or (3) trivial. A court must consider whether the prisoner is filing the suit to pursue a meaningful activity, such as harassment or entertainment, or merely to hone litigation skills. See, Cruz v. Beto, 405 U.S. 319, 31 L.Ed.2d 263, 92 S.Ct. 1079 (1972).

Specifically, Congress enacted the in forma pauperis statute to ensure that administrative court costs and filing fees, both of which must be paid by everyone else who files a lawsuit, would not prevent indigent persons from pursuing meaningful litigation. Neitzke v. Williams, 490 U.S. 319, 104 L.Ed.2d 338, 109 S.Ct. 1827 (1989); See, Denton v. Hernandez, 504 U.S. 25, 118 L.Ed.2d 340, 112 S.Ct. 1728 (1992).

In conclusion, the prison administration in order to comply with constitutional standards and to avoid court action, must either allow the jailhouse lawyer to practice or to implement an effective legal services program. The program must provide assistance to any inmate wishing to file habeas corpus, civil rights, or pro se petitions sufficient to meet the needs of the inmates without undue delay. Allowing the jailhouse lawyer to practice appears to be a less costly alternative.

D. Legal Research and Document Preparation

The criminal defendant must have a plan from indictment through direct appeal and post-conviction relief within a short time frame if he/she expects to prevail on any meritorious legal issues raised in the district court. This requires a defendant to take primary responsibility for directing their case either by proceeding pro se with standby counsel or with defense counsel.

For the novice untrained in the law without any prior legal education this is a daunting task. But for those criminal defendants with the motivation to learn, read, study and comprehend the law and proper procedure under a pressure-cooker of time constraints, legal research and document preparation is not an insurmountable task.

If being indicted by the federal government is not motivation enough, I don’t know what it will take to ignite the flame of desire. Your life is at stake and so is your freedom. So gather your wits, focus your mind and get yourself in the law library as often as possible and dedicate yourself full-time to your defense. You cannot rely solely on appointed counsel to do it for you.

Initially you’ll have to read and understand the indictment thoroughly and the elements of each crime you’re charged with. The government has the burden of proof and either they must prove each element or you must admit them. Then you’ll have to evaluate the discovery and facts the government has against you, the strengths and weaknesses of both the government’s case and your own defense.

Calculate the estimated United States Sentencing Guidelines (U.S.S.G.) sentence if convicted of all charges. Then evaluate the risks between: (1) going to trial; and, (2) negotiating a plea agreement. Identify any meritorious legal issues pertinent to your case. Develop a defense theory of the case then file any pertinent motions before the district court.

The process of legal research and document preparation may seem complex, but with a few fundamentals and four years of legal education crammed into three months you’ll be able to aid significantly in the preparation and defense of your case.

Work hard, study long hours and learn from other jailhouse lawyers who’ve already been engaged in legal research and document preparation along with any advice and guidance from appointed or standby counsel. Manage your time effectively and read, read, read. Take cogent notes and photocopy all legal research relevant to your case.

After you identify meritorious issues for direct appeal, if any, then build your entire case backwards from U.S. Supreme Court and Court of Appeals rulings and mandatory authority, which is the law of the case, to the U.S. District Court. This is where legal research begins.

Shepardize good case law and legal precedents that apply to the facts in the instant case. Build meritorious issues for reversal or remand by filing motions or making objections in the record of the district court. Preserve these issues for direct appeal or post-conviction relief or they could be waived.

Although most legal issues are already well-settled law, there may be legal issues still in dispute in the Court of Appeals where there’s a conflict between the Circuit Courts, or an issue of “first impression” in the Court of Appeals where the U.S. Supreme Court has not definitely ruled.

Raise each and every meritorious, not frivolous, legal issue in a separate motion. Give the district judge the opportunity to rule on the merits of each issue separately by filing separate motions. If not waived in a plea agreement, these issues are preserved for direct appeal.

Although most issues must be raised pre-trial to preserve the issue for direct appeal, jurisdictional defects are not waived. Jurisdictional defects in the indictment, failure to state an offense, personal or subject matter jurisdiction are issues never waived and can always be raised on direct appeal or post-conviction relief.

Jurisdictional defects are not waived by entering a guilty plea or plea agreement.

Jurisdictional defects, if demonstrated, guarantee a reversal or remand.

Jurisdictional defects include:

  • Lack of Personal or Subject Matter Jurisdiction
  • Lack of Venue for Offenses Charged or Territorial Jurisdiction
  • Failure to State An Offense Where Essential Element Not Charged

Legal research begins with the basics including:

  • Indictment as True Bill
  • Indictment Sufficient as Charging Instrument
  • Indictment Includes All Elements of the Crime
  • Government’s Theory of the Case and Supporting Facts Alleged
  • Government’s Legal Arguments and Merits of the Case
  • Grand Jury Minutes Requested
  • Bill of Particulars Requested to Clarify Indictment
  • Legal Authorities Supporting Offenses Charged (U.S. Supreme Court and Circuit)
  • Shepardizing Legal Authorities to Confirm Current Law
  • Researching U.S.C.A. and Supplemental Authorities Cited
  • Facts of Instant Case with Time Line and Affidavit/Statement/Declaration
  • Application of Law to Facts in Instant Case
  • Defense Theory of Case Including Meritorious Legal Issues
  • Filing Motions and Responses Timely (Before Motion Deadline)
  • Making Objections in the Record Timely
  • Calculate the Guidelines Sentence (U.S.S.G.)
  • Evaluate Trial Versus Plea Agreement

After determining which of the above are relevant to the instant case, begin by researching any legal issues regarding the indictment: (1) indictment as true bill; (2) indictment sufficient as charging instrument; (3) indictment includes all elements of the offense. If the indictment requires clarification request a bill of particulars or inspect the grand jury minutes.

Next, research any legal issues regarding the statutory offenses charged in the “United States Code Annotated” and any points and authorities of both U.S. Supreme Court and Court of Appeals rulings and decisions.

Shepardize the statutes and points and authorities to insure that the cases cited are current and good law. “Shepards United States Citations” is a multi-part citations indexing tool that allows users to determine the precedent value of their legal authorities and to retrieve comprehensive lists of cases that have cited their authorities.

When you’ve been charged on the indictment with a particular statutory offense, use Shepard’s statute citation volume to pinpoint relevant case law, statutes or other authorities. U.S. Supreme Court cases are indexed in separate volumes and includes parallel reference tables for each of three publishers:

  • “United States Reports” (U.S.)
  • “United States Supreme Court Reports, Lawyer’s Edition” (L.Ed., L.Ed.2d)
  • “Supreme Court Reporter” (S.Ct.)

When researching current and good law for the Circuit Court of Appeals rulings and decisions, there are separate volumes for the “Federal Reporter” system which are also Shepardized:

  • “Federal Reporter” (F., F.2d, F.3d)
  • “Federal Appendix” (F.Appx)
  • “Federal Supplement” (F.Supp)

After completing legal research and analysis, a legal document should be written that summarizes the legal argument and synthesis. The legal document should be as “brief” as possible without sacrificing necessary content. Redundancy, wordiness, adjectives and adverbs are the hob-goblins of brevity in legal writing.

Legal writing should be readable. Simplicity is the hallmark, while elegant variation, negatives, passive voice and legalese are the antithesis of legal writing. Legal writing must be accurate–checked and double-checked. Avoid vague words and phrases as well as vague or overstated references.

Write a rough draft of the legal brief, memorandum of law or motion, then edit, revise and rewrite a final draft before submission.

Good legal writing includes:

  • Changing passive verbs to active
  • Eliminating adverbs and adjectives
  • Eliminating redundancies
  • Using simple words, phrases, sentences and concepts
  • Consistency in person, place, point of view and tense
  • Shortening long sentences and paragraphs
  • Turning prepositional phrases (“of the,”by the”, etc.) into possessives (“its”)
  • Eliminating any words, phrases, sentences or paragraphs causing a problem

An outline of a legal brief or memorandum of law will include:

  • Introduction
  • Statement of Facts (or Background)
  • Law (or Points and Authorities)
  • Argument (Application of Law to Facts)
  • Conclusion

An outline of a motion will include:

  • Notice of Motion
  • Motion
  • Memorandum in Support (see above)
  • Declaration
  • Exhibit
  • Certificate of Service

E. Legal Research Methodology and Synthesis

Legal analysis occurs before legal research. Legal analysis begins with asking pertinent questions. A specific question is important because it limits and defines the scope and bounds of the legal research. Without limiting the legal research and the 2,000,000 law books published in the Library of Congress, you’ll drown in irrelevance and paperwork.

What is essential to the instant case? How does this law apply to these facts? Are they the same or distinct? Is this current law or outdated law? What are the legal issues, if any, in the instant case? How will the government argue the issue?

How will the defense argue the issue? How will the court decide? Does the court have jurisdiction?

Legal analysis includes:

  • Identifying Questions
  • Statement of Facts in the Case
  • Law to Apply in the Case
  • Legal Issues in the Case
  • Government’s Argument
  • Defendant’s Argument
  • How Will the Court Decide
  • Does the Court Have Jurisdiction
  • Answers to the Questions

Legal analysis may include raising issues of the constitutionality of a statute or the plain meaning and intent of Congress when the statute was enacted. The law includes not only the statutes Congress enacts, but case law and court decisions that interpret the law. HOW are various agencies implementing the statute?

Read the plain language of the statute, study its legislative history in the U.S.C.A. and the Congressional Record and Statutes-at-Large if you can gain access to these materials. Are there other related statutes? What does the statute not say? Find any relevant definitions as they apply to the particular statute. Apply the canons of statutory construction when interpreting the statute.

Find any relevant case law and court decisions by the U.S. Supreme Court and Court of Appeals rulings, particularly in your Circuit, that apply to the statute. Write a brief on the merits of the legal issues or a structured summary.

Legal analysis and interpretation of a statute includes:

  • Plain Language of the Statute
  • Definitions (Law Dictionaries and Statutory)
  • What the Statute Doesn’t Say?
  • Compare to Language in Other Statutes
  • Regulations and Agency Rules Interpreting Statute
  • Legislative History and Intent of Congress
  • Canons of Statutory Construction

Legal synthesis is the process of harmonizing multiple legal points and authorities to each other and in the instant case.

There are four methodologies of legal synthesis including:

  • No Synthesis
  • Arguing Conflicting Points and Authorities
  • Harmonizing Multiple, Seemingly Contradictory Sources
  • Arguing for a Change in Law Based on Legal Trends

The “No-Synthesis” method is often used by novices without legal education or prior experience and lazy professional attorneys and paralegals. The legal researcher simply sets out the meritorious legal issues, states current points and authorities and leaves the legal synthesis and conclusion to the judge as it applies to the facts in their case.

The “Arguing Conflicting Points and Authorities” method argues both sides of a legal issue, both the government’s and the defense position, using law sources favorable to each side of the argument. Inherent in this method is the strategy that the judge will reasonably adopt one legal authority over the other from conflicting or contradictory sources.

The extracting of a rule “Harmonizing Multiple, Seemingly Contradictory Sources” is the essential method of a fine legal synthesis. A district court or Court of Appeals may identify the harmonizing rule in its own decision or it can be pointed out clearly in the brief or memorandum of law. This method leads the judge into deciding in favor of the defendant because the judge is boxed into the pronouncements and rulings of the highest court in the jurisdiction.

The “Arguing for a Change in Law” method demonstrates good cause why the present law should be changed due to a trend in the law or overwhelming public opinion. Inherently, there are conflicts of law even in decided and well-settled cases. With a political change or new justice on the U.S. Supreme Court, long settled issues might be up for reevaluation and reconsideration. Many, many laws currently on the books were decided on 5-4 margins with dissenting opinions that could be reconsidered.

In a constitutional Republic the law must adapt, even if slowly, to changing times and political climates. Justice should be administered fairly and consistently and the same standards of justice should apply to the people and the government. Although the institutional and bureaucratic tendency is toward the maintaining status quo, not initiating change, and favors the government over the people, work must be done for justice. It is a complex undertaking to argue for a change in the law based on legal trends.

Some of these might include:

  • Limiting, Instead of Expanding Federal Jurisdiction
  • Restricting, Instead of Expanding Commerce Clause Incursions Into the States
  • Guaranteeing a Republican Form of Government in the States
  • Separation of Powers Between Executive, Legislative and Judicial Branches
  • Dual Sovereignty Between Federal and State Government
  • Restricting Regulatory Power of Administrative Agencies
  • Restoring Distinction Between State and Federal Citizenship

F. Civil Rights Actions

Federal courts have the power to award damages for violation of constitutionally protected interests resulting from the conduct of government officials. These civil rights actions are brought pursuant to 42 U.S.C. §1983 and include prison officials who violate the constitutional rights of pre-trial detainees or sentenced prisoners.

Cognizable claims under section 1983 include deliberate indifference to medical needs, deprivation of legal papers and meaningful access to the courts, the provision of all basic necessities and First Amendment rights not inconsistent with status as prisoner.

Mere conclusory allegations without specific reasons are not cognizable claims. Property damage and losses are not cognizable claims in section 1983 actions as there are administrative tort remedies available for the deprivation of property.

“Where federally protected rights have been invaded, the courts will be alert to adjust their remedies so as to grant the necessary relief.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L.Ed.2d 619, 622, 91 S.Ct. 1999 (1971). “Where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bivens, at 622. “The essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Bivens, at 622.

Although Bivens supra held that a violation of the Fourth Amendment’s command against unreasonable searches and seizures, by a federal agent acting under color of federal authority, gave rise to a federal cause of action for damages consequent upon the agent’s unconstitutional conduct, section 1983 civil rights actions also apply to any other violation of a constitutional rights of a criminal defendant with a cognizable claim.

A constitutional right “operates as a limitation upon the exercise of federal power …” Bivens, at 621. This applies to prison officials, government employees, federal agents and law enforcement officials.

Deliberate indifference to serious medical needs is sufficient to state a claim for violation of the Eighth Amendment proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 50 L.Ed.2d 251, 97 S.Ct. 285, 291 (1976); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). Such indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Hunt v. Dental Department, 865 F.2d 198 (9th Cir. 1989) (delay of three months in providing dentures to inmate suffering serious dental problems appears to have been more than an isolated occurrence of neglect, from the facts it could be reasonably concluded that the delay was deliberate; summary judgment reversed and remanded).

The due process clause guarantees prisoners a constitutional right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977); Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1989); Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir. 1981). The Second Circuit has stated that the denial of access to legal documents prepared by a pro se inmate constitutes a violation of the constitutional right to meaningful access to the courts. Morello v. James, 810 F.2d 344 (2nd Cir. 1987).

Prison officials must provide all prisoners with the basic necessities of life including food, clothing, shelter, sanitation, medical care and personal safety. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985).

A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections. Pell v. Procunier, 417 U.S. 817, 822, 41 L.Ed.2d 495, 94 S.Ct. 2800 (1974); Storseth, at 1355-56.

The provision of the Prison Litigation Reform Act limits attorney fee awards in prisoner suits to 150 percent of money judgment pursuant to 42 U.S.C. §1997e(d). This applies in all civil rights action filed while the plaintiff was incarcerated.

Liberty interests protected by the due process clause may be created by state law of regulation which places substantive limitations on the discretion of officials. Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed.2d 303, 107 S.Ct. 2415 (1987). In Toussaint v. McCarthx, 801 F.2d 1080, 1098 (9th Cir. 19861, denied, 481 U.S. 1069 (1987), the court found that California has created a liberty interest in freedom from administrative segregation. The court concluded that when prison officials initially determine whether a prisoner is to be segregated for administrative reasons due process only requires the following procedures: (1) prison officials must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated; (2) prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation; (3) prison officials must allow the prisoner to present his views. Toussaint, at 1100-1101.

Besides these Fifth Amendment due process rights there is no federally protected right not to be placed in administrative segregation. Hewitt v. Helms, 459 U.S. 460, 468, 72 L.Ed.2d 675, 103 S.Ct. 864, 869 (1983). Any other claims are not cognizable in section 1983 civil rights actions.

If the actions of prison officials are in retaliation for filing any legal action including a civil rights action, then retaliation for the exercise of constitutionally protected right is itself a violation of constitutional rights. Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985)(transfer in retaliation for exercise of first amendment rights states a claim where inmate alleges that official actions were retaliatory and were arbitrary and capricious and therefore, not a reasonable exercise of prison authority and did not serve any legitimate correctional goal); Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir. 1978), cert.denied, 440 U.S. 916 (1979)(retaliation against prisoner for exercising his right of access to the courts).

Defendant may be required to exhaust his or her administrative remedies.

4 thoughts on “§3 Constitutional Rights of Pre-Trial Detainees and Prisoners

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  2. It is unfortunate despite so many rights, so many people who are in custody do not exercise his/her rights due to a plea bargain that will let the defendant out of custody, while leaving a lingering conviction.

  3. antitrust legal malpractice,rising to warring and treason in concerted acts to convict viol.3-1.1c as ineffective councel anticipates the plea as the defence us supreme ct opinions courts acts being tools of unfairness courts loose juristiction and rulings are void the words sound great but reality in san diego is status quo rico assemly line convictions treason all void but who knows


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