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The 10th Circuit minced no words: “The Supreme Court’s “abrogative process of Bivens has been ‘gradual, but relentless, such that the “‘right answer’ to whether to recognize a Bivens cause of action will always be no… Bivens is now all but dead.”
Dustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.
Or used to.
On November 19th, the 10th Circuit held that under the 2022 Supreme Court decision in Egbert v Boule, John’s case presented an application of Bivens that was different from the situations recognized as raising a valid Bivens claim. Given the “expressed caution about extending the Bivens remedy, even significant parallels to one of the Court’s previous Bivens cases” may not be enough to show that a case arises in the same context,” the 10th said Dustin could not seek damages for any 8th Amendment violations he had suffered.
Dustin’s case was materially different from the one prior case that SCOTUS – back in its salad days – had held raised a valid Bivens claim. In the decision in Carlson v. Green, the record showed that the inmate victim had died because of deliberate indifference. “Small differences can easily satisfy the new-context inquiry,” the 10th said.
He was dead, Dustin. You’re not. Viva la difference.
The 10th’s holding drives a stake through virtually any Circuit Bivens8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).
Rowland v. Matevousian, Case No. 23-1343, 2024 U.S.App. LEXIS 29406 (10th Cir., November 19, 2024)
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TO SLEEP, PERCHANCE TO DREAM
You think you have it bad…
Mike Garrett has been in the Texas prison system for 30 years. For the last ten years, his prison units have afforded him at most 3½ hours of total sleep— and at most 2½ hours of continuous sleep per night. Bedtime is 10:30 pm and wakeup is at 2 am, with a count at 1 am during which inmates must be awake to call out their names.
After his complaints fell on deaf ears, Mike sued, invoking the 8th Amendment’s ban on cruel and unusual punishment. The district court threw out the suit, holding that Mike didn’t prove a substantial risk of serious harm because he didn’t show a cause-and-effect relationship between the sleep deprivation and his health complaints (migraines, seizures, vertigo, a skin condition, edema, hypertension and kidney disease). Second, the district judge said Mike hadn’t established deliberate indifference by prison officials because the schedule was based on a legitimate penological interest.
There’s little doubt that sleep deprivation is hazardous to heart. Last October, Michele Deitch and Alycia Welch with the University of Texas Prison and Jail Innovation Lab gave a presentation to the International Corrections and Prisons Association on the harmful sleeping conditions in prisons, the Texas Observer reports. There, the researchers previewed findings from a forthcoming report entitled, “The Nightmare of Sleep in Prison.” Among their recommendations was an increase in dedicated sleep time. They defined a healthy amount as at least six hours nightly.
Last week, the 5th Circuit reversed, holding that to satisfy the objective component of an 8th Amendment claim, “a prisoner need only show a substantial risk of serious harm—not actual harm. Second, the district court held that, because the Dept had “legitimate penological purposes” for implementing the schedule, and because the Department did not engage in conduct designed to intentionally inflict sleep deprivation on inmates, Garrett failed to satisfy the subjective element of his 8th Amendment claim. But the Supreme Court has clarified that a prison’s penological purpose has no bearing on whether an inmate has shown deliberate indifference for purposes of an 8th Amendment claim.”
Garrett v. Lumpkin, Case No 22-40754, 2024 U.S. App. LEXIS 6934 (5th Cir., March 22, 2024)
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THREE WINS AND A LOSS AT THE 6TH CIRCUIT
On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio)habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.
On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.
Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.
In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.
“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”
Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”
Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241habeas corpus petition.
Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.
Finally, the Court held that
“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”
This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.
That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.
Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)
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4TH CIRCUIT HOLDS OFFICIAL’S KNOWLEDGE OF POLICIES AND DENIAL OF GRIEVANCES CAN ESTABLISH 8th AMENDMENT DELIBERATE INDIFFERENCE
The 4th Circuit handed down a fascinating 8th Amendment opinion last week that established a prison’s obligation to treat hepatitis C, as well as expanding on the universe of officials subject to 8th Amendment claims.
For those of you who dozed through high school government class, the 8th Amendment prohibits cruel and unusual punishment. The Courts have defined that over the years to include the deliberate indifference of prison officials to serious medical needs of inmates.
Carl Gordon, a Virginia state inmate, had hepatitis C. The Virginia prison system had a policy of not treating hep C in people eligible for parole or close to the door, purportedly because they might leave in the middle of treatment, which posed a risk to their health. Carl was eligible for discretionary parole in 2008, despite the fact his actual “out” date was in 2028, 20 years later. He repeatedly filed administrative grievances demanding treatment for hepatitis C and warning of the deadly effects of the disease if left untreated.
The prison health director, who was familiar with the Virginia policy on hep C treatment, kept denying Carl’s grievances, telling Carl simply to go to sick call (despite the fact the director knew that at sick call, Carl would be refused hep C treatment because of the policy).
Finally, this “dog chasing its tail” saga reached federal court.
“By the very nature of the health director’s position,” the Circuit said, “he was personally involved in reviewing and enforcing the policy that prevented Carl Gordon from receiving HCV treatment… And the health director’s consistent failure to revise the Guidelines to remove the parole-eligibility exclusion constitutes personal involvement in the denial of HCV treatment for Gordon… it is inconsistent with the 8th Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”
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THE SHORT ROCKET
Inmate has Right to Video at DHO
The 4th Circuit held last week that an inmate defending himself in a disciplinary proceeding, where he could lose good time as a punishment, has a qualified right of access to BOP video surveillance evidence and the qualified right to compel official review of such evidence. The Court relied on Wolff v. McDonnell, a 1974 Supreme Court decision defining the extent of inmates’ procedural due process rights in disciplinary proceedings.
Lennear v. Wilson, 2019 U.S. App. LEXIS 25340 (4th Cir. Aug. 23, 2019)
Transgender Inmate Has 8th Amendment Right to Surgery
The 9th Circuit last week held that an Idaho state inmate had shown that he suffered from gender dysphoria (believed he was a different gender than his body reflected), that his need for surgery to change his gender was a serious medical need, and that prison authorities had not provided that treatment despite knowledge of his ongoing and extreme suffering and medical needs. The Court rejected the State’s position that there was a “reasoned disagreement between qualified medical professionals. The Court emphasized that its analysis was individual to the inmate plaintiff, “and rested on the record of this case.”
The 9th Circuit last week also held that 2nd-degree murder (18 USC §§ 1111 and 1153) is not a crime of violence that can support an 18 USC § 924(c) conviction. The Court held that because 2nd-degree murder can be committed recklessly, it does not categorically constitute a “crime of violence” under the elements clause (924(c)(3)(A)), and under the Supreme Court’s June United States v. Davisdecision, the crime likewise cannot constitute a crime of violence under the residual clause.
The 2nd Circuit ruled last week that a supervised release condition that a defendant perform 300 hours of community service a year during supervision exceeded the Guidelines and was not reasonably related to any of the applicable purposes of sentencing listed at 18 USC § 3553(a), and involved a “greater deprivation of liberty than needed to effectuate the goals of sentencing.” The Court concluded that USSG §5F1.3 advised sentences to not call for more than 400 hours of community service as a condition of supervised release.
What’s more, the community service, imposed on a defendant convicted of insurance fraud, was not reasonably related to any relevant sentencing factor and involved a greater deprivation of liberty than is reasonably needed to achieve the purposes of sentencing. The district court observed the defendant lived with his parents, has a young daughter, worked as an Uber and Lyft driver, and “was convicted of two serious crimes of fraud which adversely impacted the community at large.” But, the 2nd Circuit complained, the sentencing court did not explain how the defendant’s “particular circumstances‐‐his criminal history, his cooperation, the nature of his offense‐‐reasonably related to the need for community service.”
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DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?
Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy bloglast week.
Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”
In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.
SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.
This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”
Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.
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DISTRICT COURT HOLDS COLORADO SEX REGISTRATION VIOLATES 8TH AMENDMENT
The registration systems for ex-inmates with sex offenses is state based. Congress decreed in the Sex Offender Registration and Notification Act (SORNA) that every state would have a system, and then imposed a federal requirement on people convicted of sex offenses that they must register under penalty of law.
The public loves state registration laws, because they like to identify and shame ex-offenders for crime committed years before, running them out of housing, hounding them out of jobs, and even trying to break up their families. Sounds like punishment? The Supreme Court said not, in Smith v. Doe, which in 2004 held that Alaska’s Sex Offender Registration Act (“SORA”) was not punitive.
For a decade since it was handed down, Smith v. Doe shut down constitutional challenges to state SORAs. In the last few years, however, federal courts have been willing to recognize that the landscape has changed.
A little more than a week ago, a Colorado district court recognized what anyone who has faced the burdens, obstacles, and dangers of life on the offenders registry already knows: the punitive impact of the state’s SORA far outweighs any value it might have in protecting the public. The district judge held that Colorado’s registration statute violates the 8th Amendment by imposing cruel and unusual punishment, and violates a registrant’s 14th Amendment procedural and substantive due process rights.
The Colorado court held that Smith v. Doe’s “words ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case.” The Supreme Court “did not foresee the development of private, commercial websites exploiting the information made available to them and the opportunities for ‘investigative journalism’ or “the ubiquitous influence of social media.”
The district court noted that Justice Kennedy, who wrote Smith v. Doe, said in last spring’s Packingham v. North Carolina decision that “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is… not an issue before the Court.” But it was in front of the Colorado district court, which said, “the evidence demonstrates that the very real restraints on Plaintiffs’ abilities to live, work, accompany their children to school, and otherwise freely live their lives are not simply a result of the crimes they committed, but of their placement on the registry and publication of their status…” Colorado’s SORA looks “far more like retribution for past offenses” than a public safety regulation, the Court said.
This decision joins similar court ruling in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania. Given the significance of SORNA and the state schemes, Supreme Court review within the next few years is probable.
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TWO INTERESTING D.C. CIRCUIT RULINGS END LAST WEEK
The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, waswidely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.
D.C. CIRCUIT SAYS 924(C) SENTENCE IN BLACKWATER CASE VIOLATES 8TH AMENDMENT
The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.
The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.
Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.
In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.
“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”
The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.
D.C. CIRCUIT SAYS FOIA RIGHTS CANNOT BE WAIVED BY PLEA AGREEMENT
The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.
Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.
The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”
While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”
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7th CIRCUIT SAYS KIDNAPPING NOT CRIME OF VIOLENCE
Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.
Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.
Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”
The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”
Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”
For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.
Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.
Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.
But even an average lawyer should know how to count…
While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”
The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.
The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.
The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”
The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.
Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).
Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.
In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.
The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.
The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.
The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”
Dustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.
The 10th’s holding drives a stake through virtually any Circuit Bivens 8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).
In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 
