Recent Legal Developments:
Correctional Case Law: 2011
James E. Robertson
1
Abstract
This annual survey examines important prisoners’ rights cases decided by the U.S. Courts of Appeals
during 2011. These cases addressed constitutional questions about inmate-on-inmate violence, lock-
downs, delayed medical care, custodial suicide, gender identity disorder, excessive staff force, unsoli-
cited mail, religious dress and diets, impermissible staff retaliation, cross-gender searches, and
proceduraldue process. In addressingthese constitutionalquestions, the U.S.Courts of Appeal created
new law and/or applied clearly established law. Because theU.S. Supreme Court will only rarelygrant
certiorarito appellants, the U.S. Courts of Appealsremain the de facto courts of last resortfor all but a
few prisoners who challenge the constitutionality of the manner of their confinement.
Keywords
prisoners’ rights, U.S. Courts of Appeals
The 13 United States Courts of Appeals cast a long shadow over correctional case law in 2011. Their
importance rests on two functions they have performed since the demise of the hands-off doctrine:
applying clearly established correctional law to fact-specific cases and creating new law (Cooper &
Berman, 2000). Both tasks are made necessary by the infrequency in which the U.S. Supreme Court
grants certiorari in matters of prisoners’ rights. In the Supreme Court’s 2010–2011 term, the justices
decided only two cases directly addressing prisoners’ rights, Brown v. Plata (2011) and Swarthout v.
Cooke (2011).
In keeping with previous installments, this annual survey examines select prisoners’ rights cases
decided by the U.S. Courts of Appeals during 2011 and recommended for full-text publication in the
Federal Reporter, Third Series. The author chose these cases because they addressed persistent,
important, or emerging constitutional issues about confinement in jails and prisons. Because a sum-
mary judgment for a dismissal for the defendants in these cases typically led to an appeal by the
plaintiffs, the factual summaries of cases discussed herein reflect the practice of the U.S. Courts
of Appeals in such instances to view all facts and draw all inferences in the light most favorable
to the plaintiffs. As in past, this installment examines only constitutional issues raised before the
U.S. Courts of Appeals and thus does not address statutory interpretation.
1
Minnesota State University, Mankato, MN, USA
Corresponding Author:
James E. Robertson, Minnesota State University, 113 Armstrong Hall, Mankato, MN 56001, USA
Email: james.robertson@mnsu.edu
Criminal Justice Review
37(2) 281-294
ª2012 Georgia State University
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DOI: 10.1177/0734016812438850
http://cjr.sagepub.com
