legal memo 法律备忘录(19)

legal memo

exercise unless precluded by "circumstances, or disciplinary needs." Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (Kennedy, J.) ("There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates."); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) (finding plaintiff claim of lack of exercise survived summary judgment motion based on defendant's admission that he restricted Keenan's exercise to "8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third"). However, the amount and

conditions by which a person has access to outdoor activity can be determined or curtailed based on the individuals own behavior or misconduct. LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993). This could undermine Mr.

Daniels allegations that he should be allowed outside "without shackles to his hands and feet." Comp. 28(ii).

∙"Lights remain on 24 hours a day;" Comp. 28(v). Adequate lighting is a "fundamental" attribute of "adequate shelter[.]" Keenan v. Hall, 83 F.3d at 1090. The practice of "constant illumination" is "unconstitutional" and does not comport with any "legitimate penological justification" that requires inmates to suffer through that type of "physical and psychological harm[.]" Id. at 1090-91 (concluding that the plaintiff's claim that the practice of shining large,

florescent lights directly in front of his cell 24 hours a day such that he could not tell if it was day or night was a

disputed issue of material fact sufficient to survive summary judgment).33

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the First Amendment include:

∙"No phone calls;" Comp. 28(ix). Inmates have a right to access to a telephone subject to reasonable security limitations. Id. at 1092.

∙Denial of ability to attend church services even by electronic means. Comp. 28(xi). The right to free exercise of religion is not absolute and may be "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." Sanders v. Ryan, 484 F. Supp. 2d 1028, 1036 (D.

Ariz. 2007), quoting O'Lone v. Shabazz, 482 U.S. 342 (1987). The inmate must show the defendant "substantially

burdened the practice of his religion[.]" Sanders, 484 F. at 1036. To show substantial burden, the interference with the free exercise of religious practice or conduct has to be "more than an inconvenience" and cannot be sporadic, "an

isolated incident or short-term occurrence[.]" Id. at 1037. In determining whether there is a violation of the

Establishment Clause, the Ninth Circuit will consider the following the factors: "1) Whether the regulation has a

logical connection with a legitimate government interest; 2) Whether alternative means of exercising the right at issue were available; and 3) The impact accommodating the right would have on prison resources." Tremayne v. Crow,

2007 U.S. Dist. LEXIS 57121, 13-14 (D. Wash. 2007), citing Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997).

Significantly, a prisoner may exercise his religious practice or access religious content through electronic means if

amendable with correctional policy. Sanders, 484 F. Supp. 2d 1028 (holding that a correctional policy that limits the number of audio recordings of Baptist sermons an inmate can possess in his cell was not a substantial burden since the inmate was only burdened by number and not access).34

However, there are some conditions alleged in Mr. Daniels' complaint that have been adjudicated and found not to be benefits to which a prisoner is entitled. An incarcerated person has no constitutional right to access to a particular person or visitor. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). Similarly, there is no constitutional right to watch television. But see Sanders, 484 F. Supp. 2d at 1039 (holding that although a prisoner has "no constitutional right to watch television[,]" one can "infer discriminatory animus" in violation of the ADA when the Arizona Department of Corrections failed to provide a hearing impaired prisoner with "bi-aural headphones" for the television that he was authorized to use in his cell. In Sanders, the district court ultimately ruled that under the "Constitutional Prong"iii35there had been no violation of a constitutional right. The court dismissed the inmate's argument that "t.v.7 [sic] was a window to the freeworld through which information flowed to him." Id. Similarly, unreasonable seizures, at least with respect to civilly confined sexual predators do not fall in the category of conditions of confinement. Johannes v. Alameda County Sheriff's Dep't, 2006 U.S. Dist. LEXIS 63378, 30 (D. Cal. 2006) (ruling that searches are not treated in the same manner as "other conditions of confinement" and recognized "that institutional security concerns need not be ignored for SVPs").36

D. Mr. Daniels should be able to establish the fourth element; that he was deliberately excluded from public benefits and intentionally discriminated against because of his TB.

Having established that the conditions of confinement that he has requested are benefits and programs to which he is otherwise qualified, Mr. Daniels will have to show that the exclusion or denial of these benefits was by reason of his disability/TB and therefore discrimin …… 此处隐藏：3670字，全部文档内容请下载后查看。喜欢就下载吧 ……