PART II
In PART II of the Handbook, you will find brief introductory comments about a variety of issues
that may arise during your appointment as counsel. You will also find a sampling of some of the leading
cases, primarily focusing on the Seventh Circuit, in order to give you a ready departure point for your
research. Obviously, we have not included every case for each issue, though it is our hope that this will help
save you time. Please, remember to check the status of the cases cited herein, as courts are continually
reevaluating civil rights law as applied to prisoner-plaintiffs.
As for the structure of PART II, the subjects follow the order established in PART I of the
Handbook. First, you will find information and case law about assessing the merits of and limits on the
claims made by the prisoner-plaintiff. Please pay careful attention that all parties have been joined and that
there is no danger of the statute of limitations running on the prisoner’s claim.
The next portion of PART II deals with the mechanics of the case, including choosing nonimmune
defendants, discovery of prison records, calculations of and limitations on damages, and general trial
strategies. Much of what is true about civil litigation strategies is true of prisoner civil rights litigation;
however, remember that you are dealing with a large institution that can often move very slowly.
PART II continues with a look at the process of recovery, either via final judgment or settlement.
PART II concludes by discussing what the appointed counsel must do during the course of the
representation to recover costs and expenses. Remember, keep precise records of when and how you
spent money in representing the prisoner-plaintiff.

CHAPTER 1: ASSESSING THE CLAIM
1.

PLEADINGS
(1) Appointed Counsel

Introductory Comment
Once the court has made the appointment, only the court can relieve the attorney of his or her
fiduciary duties to the prisoner-plaintiff. Appointed counsel must represent prisoner-client with the same
skill and care as he/she would use for a paying client.
Decisions
Mallard v. United States Dist. Court, 490 U.S. 296, 109 S. Ct. 1814, 104 L. Ed. 2d 318
(1989) (Although § 1915(e)(1) gives federal district courts the power to “request” an attorney to represent
an indigent in a civil case, it does not authorize a court to compel an unwilling attorney to perform such
work. But other powers, such as a court’s inherent authority, may permit federal court to require an
attorney to serve in civil cases.)
Stanciel v. Gramley, 267 F.3d 575 (7th Cir. 2001) (Prisoner who filed civil suit was not
entitled to retrial on basis that his attorney's performance was so inadequate as to deprive him of fair
opportunity to present his case; although performance of prisoner's attorney was deficient in several
respects, there is no Sixth Amendment right to effective assistance of counsel in a civil case. Proper
remedy for inadequate representation was malpractice action.)
Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir. 1998) (Court must bear in mind, when
counsel has been appointed or recruited for § 1983 action, that usual assumptions about agency
relationship between lawyer and client must be relaxed; thus, in considering dismissal for want of
prosecution, court should satisfy itself that appointed counsel is on the job and should consider
appointing substitute counsel in cases in which fault seems to lie primarily with lawyer.)
Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997) (Denial of prisoner’s request for counsel was
not an abuse of discretion where prisoner was an “able litigant” who submitted comprehensible and
literate documents to district court.)
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992) (Indigent civil litigants
have no constitutional or statutory right to be represented by counsel in federal court. The district
court, however, may in its discretion request counsel to represent indigent civil litigants in certain
circumstances under 28 U.S.C. § 1915(d). In determining whether to appoint counsel, the district
court should consider: (1) the merits of the indigent’s claim for relief; (2) the ability of the indigent
2

plaintiff to investigate crucial facts unaided by counsel; (3) whether the nature of the evidence indicates
that the truth will more likely be exposed where both sides are represented by counsel; (4) the
capability of the indigent to present the case; and (5) the complexity of the legal issues raised by the
complaint.)
Pearson v. Gatto, 933 F.2d 521 (7th Cir. 1991) (District court did not abuse its discretion in
permitting late filing of notice of appeal by appointed counsel whose involvement in numerous
court-appointed cases caused him to miss the filing deadline, particularly as over-commitment was due
to an excess of public service and altruism, rather than mismanaged ambition or desire for financial
gain.)
Di Angelo v. Illinois Dep’t of Public Aid, 891 F.2d 1260 (7th Cir. 1989) (Civil appointment
of attorney to represent prisoner in district court did not carry over on appeal. Counsel need not file
briefs (“Anders” brief) revealing inadequacies of their client’s positions in order to be relieved of the
appointments on appeal.)
(2)

Duty to Investigate and to Eliminate Frivolous Claims

Introductory Comment
In addition to appointed counsel’s duty under FED . R. CIV. P. 11 to investigate the case from
both a factual and legal perspective, a state statute can impose severe sanctions on the prisoner-plaintiff
if a Rule 11 finding of frivolousness is made:
If a lawsuit is filed by a prisoner in an Illinois or federal court against the State, the
Department of Corrections, or the Prisoner Review Board, or against any of their
officers or employees, and the court makes a specific finding that a pleading, motion, or
other paper filed by the prisoner is frivolous, the Department of Corrections shall
conduct a hearing to revoke up to 180 days of good conduct credit by bringing charges
against the prisoner sought to be deprived of the good conduct credits before the
Prisoner Review Board . . . .
730 ILL. COMP. STAT . ANN. 5/3-6-3(d) (West Supp. 2001).
The section defines “frivolous” in detail, tracking the language and case interpretation of Rule
11. The section specifically applies to Section 1983 actions, that is, the typical prisoner case. See 42
U.S.C.A. § 1983 (West Supp. 2001). See also 735 ILL. COMP. STAT . ANN. 5/22-105 (West Supp.
2001), which provides that attorney’s fees and costs imposed against a prisoner in a Rule 11 sanction
proceeding shall be taken from his prison trust fund account.

3

You should also be aware that under the PLRA, a prisoner who accumulates three “strikes” for
filing complaints (or appeals) that are deemed “frivolous” or “malicious” is barred (with certain
exceptions) from filing future suits in forma pauperis. See 28 U.S.C. § 1915(g).
As noted earlier, counsel must not rely on the fact that the district court judge has appointed
counsel to represent the prisoner-plaintiff in determining if the prisoner’s complaint is valid in law or
factually supportable. That is appointed counsel’s obligation. As with any client, but particularly with a
prisoner who will have one or more felony convictions that will affect his or her credibility, appointed
counsel must always seek corroboration for the plaintiff’s version of the facts. This approach is simply
good trial strategy. And as with any client, the prisoner may be mistaken in his or her version of the
facts. Prisoners are moved often, their records are lost or destroyed, and their recollections may be
hazy or incorrect. And, as with any client in the “free world,” they may be lying.
Therefore, use all the formal and informal discovery tools available to you to corroborate your
client’s version of the facts. Push your client for his documents, do an intensive, searching interview,
and move on in the normal way. Most prisoners will welcome the opportunity to cooperate, and most,
if counsel gives them a legitimate opportunity, will be helpful to counsel.
(3)

Necessary Parties

As soon as possible, determine if the proper parties have been named and if parties that
generally are not liable (the IDOC Director or the warden of the prison) have been sued.
Carefully consider the nature of your case. As a rule, officers cannot be liable on the basis of
respondeat superior, that is, simply because they have supervisory responsibility over another IDOC
employee who has acted wrongfully. See PART II, SECTION 12: SUPERVISORY LIABILITY. Virtually all
types of prisoner actions, under current Supreme Court law, require a party’s direct involvement for
liability to attach.
Moreover, prisoners, because of lack of knowledge, will often name the wrong officers (wrong
names or capacities), fail to name the officers who actually harmed them, or both. Note also, officers
and prisoners are often known by their first names only or by nicknames. Prisoners have a difficult time
knowing the correct names of others.
There is a two-year statute of limitations on Bivens suits or federal claims under § 1983! See
PART II, SECTION 4: STATUTE OF LIMITATIONS. (Other federal claims, such as Federal Tort Claims
Act claims, have different limitations periods, as do potential pendant state claims.) Move quickly, even
if it means making an emergency discovery motion before the trial judge. If you act quickly, most
judges will shorten the response time to allow counsel to identify the proper parties if the statute of
limitations will run shortly.

4

After completing your investigation, drop all improperly named parties using an amended
pleading.

2.

FILING FEES : THE PLRA’S AMENDMENT TO THE IN FORMA PAUPERIS STATUTE

The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915 amended the in forma pauperis
statute to require prisoners who file a civil action to pay – over time, if necessary – the full amount of
the court filing fee. A prisoner who is totally indigent may not be prevented from filing suit. A prisoner
who has funds when he files suit, however, must pay an initial partial filing fee. After payment of the
initial fee, the prisoner is required to make monthly payments until the fee is paid. See § 1915(b)(1)(3). The PLRA sets forth three grounds for denying in forma pauperis status to a prisoner plaintiff: the
prisoner has not established indigence; the appeal is in bad faith; or the prisoner has three strikes. See
28 U.S.C. § 1915(a)(2)-(3), (g). If the prisoner has three strikes against him, § 1915(g) requires
prepayment of the entire fee in future cases, unless the prisoner “is under imminent danger of serious
physical injury.”
Decisions
Hall v. Stone , 170 F.3d 706 (7th Cir. 1999) (“Section 1915 does not give prisoners a veto
power over collection–and at all events, once the district court enters an order under the PLRA, a
warden must comply . . . Custodians must remit as ordered under § 1915 without regard to the
prisoner’s wishes. A prisoner’s complaint or notice of appeal is all the authorization needed to debit his
trust account; wardens must follow the statute (and judicial orders) rather than contrary directions from
their charges.”)
Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1999) (Prison Litigation Reform Act provision
barring inmates with three or more prior frivolous cases from proceeding in forma pauperis did not
apply to action filed by inmate before PLRA’s effective date.)
Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997), overruled in part by Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000) and Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) (Much of Newlin
remains good law and provides guidance for many PLRA procedures employed in this circuit. Waiver
of the initial filing fee for a prisoner allowed to proceed IFP is allowed under § 1915(b)(4) only when
the prisoner has “no assets and no means.” A prisoner with periodic income has “means” even when
he lacks “assets.” In cases where the prisoner has been allowed to proceed IFP, the case will not
proceed to decision until the initial partial filing fee has been collected.)
3.

THE COMPLAINT
5

Introductory Comment
When counsel has been appointed, the rules governing prisoner civil rights cases are essentially
the same as for any party represented by counsel. The following decisions represent a variety of
situations that appointed counsel may encounter. Otherwise, research the adequacy of your complaint
as with any other case.
Decisions
Leatherman v. Tarrant County Narcotics Intel. and Coord. Unit, 507 U.S. 163, 113 S.
Ct. 1160, 122 L. Ed. 2d 517 (1993) (The Supreme Court unanimously held that the federal court may
not apply a “heightened pleading standard” for claims brought pursuant to 42 U.S.C. § 1983. The
federal rules establish a liberal system of notice pleading. See also McCormick v. City of Chicago, 230
F.3d 319, 323 (7th Cir. 2000)(reversing district court’s dismissal of plaintiff’s municipal liability claim
as premature given § 1983's liberal pleading standard.)).
Gomez v. Toledo, 446 US. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980) (Two allegations
are required to state a cause of action under § 1983: (1) that some person has deprived plaintiff of a
federal right; and (2) that the person who has deprived him of that right acted under color of state or
territorial law. Qualified immunity is a defense that must be affirmatively pleaded by defendant.)
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (“[A] complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.”)
Davis v. Ruby Foods, Inc., 269 F.3d 818 (7th Cir. 2001) (The dismissal of a complaint on
the ground that it is unintelligible is permitted. “But when the complaint adequately performs the notice
function prescribed for complaints by the civil rules, the presence of extraneous matter does not warrant
dismissal.”)
Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000) (A pro se plaintiff can plead himself
out of court by pleading facts that undermine the allegations set forth in his complaint.)
Johnson v. Univ. of Wisconsin-Eau Claire , 70 F.3d 469 (7th Cir. 1995) (Section 1983
claims must specifically allege a violation of the Constitution. Section 1983 provides a remedy for
constitutional violations, but does not create substantive rights.)
4.

STATUTE OF LIMITATIONS & “RELATION BACK”

Introductory Comment

6

The prisoner-plaintiff often will fail to join the right officer(s) or other prison personnel who
caused the alleged harm. Appointed counsel should act quickly to determine if proper parties have been
joined. The statute of limitations is two years, no more! See 735 ILL. COMP. STAT . ANN. 5/13-202
(West 2001). And no leniency generally is given either the prisoner-plaintiff or appointed counsel in this
regard.
Note that an amended complaint joining the correct parties after the statute of limitations has
run will usually fail, even where the initial complaint named “John Does” or “unknown parties.” See
King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000).
In addition, make certain that each named defendant has been properly served with summons.
Failure to serve a defendant within 120 days of the filing of the action may result in a dismissal without
prejudice. FED . R. CIV. P. 4(m). Although a new action may be filed against the dismissed defendant,
the new pleading must be filed within the two-year statute of limitations.
Decisions
Owens v. Okure , 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989) (The Court
expounded on Wilson v. Garcia, 471 U.S. 261 (1985), requiring courts to borrow and apply to all §
1983 claims a state’s personal injury statute of limitation. Whereas Wilson did not indicate which statute
of limitations applied in states having multiple personal injury statutes, Owens held that in such instances,
courts should borrow a state’s general or residual personal injury statute of limitations.)
Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001) (exhaustion of prison’s administrative
remedies, as mandated by the PLRA, tolls the statute of limitations.)
Bd. of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980)
(Plaintiff’s attempt to exhaust judicial remedies under state law did not toll state statute of limitations
applicable to plaintiff’s § 1983 suit.)
Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) (This case examined the date of accrual for
a § 1983 action alleging inadequate medical care. A prisoner with an untreated hernia sued officers at
Cook County Jail. If the suit was for medical malpractice, the date of accrual would be when plaintiff
discovered he had medical problem. But this was a suit charging that defendants inflicted cruel and
unusual punishment. The refusal to provide medical care continued for as long as defendants had the
power to do something about his condition. “Every day that they prolonged his agony by not treating his
painful condition marked a fresh infliction of punishment that caused the statute of limitations to start
running anew.”)

7

Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001) (In habeas corpus action, statute of limitations
begins to run when the prisoner knows (or through reasonable diligence could discover) the important
facts, not when the prisoner recognizes their significance.)
Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001) (“The correct statute of
limitations for § 1983 actions filed in Illinois is two years as set forth in 735 ILCS § 5/13-202.”)
King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000) (An
amendment to a complaint for purposes of naming the proper party relates back to the original
complaint only when (1) there has been an error made concerning the identity of the proper party and
(2) that party is chargeable with knowledge of the mistake. See Fed. R. Civ. P. 15(c)(3). Here,
plaintiff could not amend the complaint to identify a correctional officer defendant after the limitations
period ran.)
Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993) (Arrestee brought § 1983 action against
village and “unknown police officers,” alleging violations of his constitutional rights. The court affirmed
the district court’s dismissal of the plaintiff’s amended complaint as time-barred. The court held that
FED . R. CIV. P. 15(c)’s “relation back doctrine” was not applicable because the plaintiff’s failure to
name specific police officers was not due to a mistake but rather to a lack of knowledge as to their
identity. The court also held that plaintiff could not claim fraudulent concealment to toll the statute of
limitations. Plaintiff did not set forth affirmative acts or words by defendants which prevented him form
discovering their identity; instead, his failure to obtain names was due to his own lack of diligence.)
5.

PENDENT CLAIMS

Introductory Comment
Appointed counsel, in reviewing the pro se complaints filed by prisoner-plaintiffs in assigned
cases, will often find state law claims related only in an attenuated way to the primary federal claim.
These claims may be “buried” within a verbose version of the federal claim. In many instances, they
may concern the destruction or loss of personal property, clearly not a federal claim if state remedies
are available. See PART II, SECTION 6: EFFECT OF ADEQUATE STATE REMEDY ON CERTAIN
CONSTITUTIONAL VIOLATIONS (PROPERTY DAMAGE OR LOSS).
These claims may remain in the case only if they are “pendent” to the primary or federal claim
which gives the federal court subject matter jurisdiction. The leading case on this issue is United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed 2d 218 (1966), where the
Supreme Court held that a federal court in a federal question case has jurisdiction to hear state claims
only where the state and the federal claims “derive from a common nucleus of operative fact.”

8

Note that the case law doctrines of “pendent” and “ancillary” jurisdiction have been codified at
28 U.S.C. § 1367 under the term “supplemental” jurisdiction:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or intervention of
additional parties.
28 U.S.C.A. § 1367(a) (West 2001).
Often, defendants will not file motions to dismiss these claims. Their presence may come to the
court’s attention only when the typical Northern District pre-trial order is filed. And then, if not earlier,
the court, on its own motion, may question the presence of these unrelated or so-called pendent claims
in the action. We suggest that counsel deal with such claims soon after their appointment to determine
(1) if they should remain in the case; and (2) if so, whether the complaint should be amended to
designate these claims as separate pendent claims.
6.

EFFECT OF ADEQUATE STATE REMEDY ON CERTAIN CONSTITUTIONAL VIOLATIONS —
(PROPERTY DAMAGE OR LOSS )

Introductory Comment
Often a prisoner’s pro se complaint will have a separate claim (or one “buried” in the
complaint) for loss or damage to personal property (clothing, legal papers, etc.) The claim may be
based on negligent or intentional conduct. Unless another constitutional issue can be raised (e.g., denial
of access to the courts or a systemic pattern of destruction), this claim will be subject to dismissal if
there is an adequate state remedy, such as an action for conversion or destruction of property. Counsel
should determine immediately if such a claim has any validity. If not, abandon it.
Decisions
Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (Parratt v.
Taylor applies to intentional as well as to negligent acts so that state employee’s intentional unauthorized
deprivation of property does not violate due process if state provides a meaningful post-deprivation
remedy for the loss.)
Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981) (Negligent
deprivation of prisoner’s property does not violate due process where state has adequate post9

deprivation remedy. Nebraska court of claims procedure deemed adequate. Later overruled by
Daniels v. Williams, 474 U.S. 327 (1986) to the extent Parratt suggests that a negligent act may ever
be sufficient to constitute a deprivation under the Due Process Clause.)
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Defendant officers who confiscated
prisoner’s dentures did not deprive prisoner of life, liberty or property protected by the Fourteenth
Amendment. Intentional deprivation of property does not violate due process so long as adequate state
post-deprivation remedies are available. Wynn had an adequate post- deprivation remedy in the
Indiana Tort Claims Act, and no more process was due.)
Murdock v. Washington, 193 F.3d 510 (7th Cir. 1999) (Prisoner claimed that confiscation
of his property – jeans, carbon paper – violated his due process rights. His § 1983 action was properly
dismissed for failure to state claim, in light of availability of adequate post-deprivation remedy.)
7.

EXHAUSTION OF PRISON GRIEVANCE PROCEDURES

Introductory Comment
Prior to enactment of the Prison Litigation Reform Act (“PLRA”), most courts allowed
prisoners to file § 1983 actions in federal court before they had exhausted the institution’s administrative
grievance procedure. This area of the law has changed dramatically in recent years. The PLRA
provides:
“No action shall be brought with respect to prison conditions under section 1983 of this title, or
any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.”
42 U.S.C.A. § 1997(e)(a)(West. Supp. 2001).1/
One of the first steps you should take as appointed counsel is to determine whether the PLRA’s
exhaustion requirement applies to your case, and if so, whether your client has exhausted all available
administrative remedies. The PLRA’s exhaustion requirement applies to every case brought by a
prisoner “with respect to prison conditions.” (Prison conditions include excessive force cases and
failure to protect cases in addition to traditional conditions cases.) It applies even if the prisoner thinks
that the grievance procedure at his or her particular institution is a meaningless formality. It applies to all
prisoners: state prisoners, federal prisoners, county jail inmates, and juveniles. And it may apply
retroactively to incidents that occurred before the enactment of the PLRA, if the lawsuit was filed after
the enactment of the PLRA.

1/
Elsewhere in the statute, “prison conditions” are defined as “conditions of confinement or the effects of
actions by government officials on the lives of persons confined in prison.” 18 U.S.C. § 3626(g)(2).

10

Note also that a prisoner must pursue internal appeals all the way to the IDOC’s Administrative
Review Board. Letters to prison officials do not satisfy the exhaustion requirement. If your client is a
state prisoner, you should familiarize yourself with the IDOC’s administrative grievance system, which is
set forth in the Illinois Administrative Code. See 20 Ill. Admin. Code 504.810-850 (West Supp.
2001). In Illinois, a grievance must be filed within 60 days after the discovery of the incident,
occurrence, or problem which gives rise to the grievance. A grievance may still be considered after the
expiration of 60 days, but only if the prisoner can demonstrate that a grievance was not timely filed for
good cause.
The Supreme Court recently discussed the scope of the PLRA’s exhaustion requirement in
Booth v. Churner, 121 S. Ct. 1819 (2001). Prisoner Timothy Booth sought money damages for an
alleged beating by prison guards. He argued that the PLRA’s exhaustion requirement was inapplicable
to him because the prison’s administrative grievance mechanism had no provision for recovery of
money damages. The Supreme Court disagreed. After Booth, even if an inmate’s injury lies wholly in
the past and no relief other than money is conceivable, the inmate must first exhaust administrative
remedies before bringing suit in federal court.2/
Just what is an action brought “with respect to prison conditions” within the meaning of the
PLRA? The circuits are split. The latest word from the Seventh Circuit comes from three cases in
which inmates complained of excessive force and harassment by prison guards. In Larkin v. Galloway,
266 F.3d 718 (7th Cir. 2001) and Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001), the court held that
isolated incidents assault by prison officials are “prison conditions” triggering the exhaustion
requirement. Similarly, in Johnson v. Litscher, 260 F.3d 826 (7th Cir. 2001), the court found that
repeated instances of retaliatory harassment by individual officers were subject to the exhaustion
requirement. The Second Circuit has taken a contrary view. See Nussle v. Willette, 224 F.3d 95 (2d
Cir. 2000) (the PLRA’s exhaustion requirement does not apply to allegations of particular instances of
excessive force or assault by prison employees). The Supreme Court has granted certiorari to resolve
the split in authority. See Porter v. Nussle, 121 S. Ct. 2213 (2001).
Decisions
Booth v. Churner, 121 S. Ct. 1819 (2001) (see above)
McCarthy v. Bronson, 500 U.S. 136 (1991) (Complaints about medical treatment in prison
are complaints about “prison conditions” for purposes of the § 1997e exhaustion requirement.)

2/
Note that Booth leaves open a very small loophole. If the administrative procedure in question “lacks
authority to provide any relief or to take any action whatsoever in response to a complaint,” then exhaustion would
not be required. Id. at 1822.

11

McCoy v. Gilbert, 270 F.3d 503 (7th Cir. 2001) (Prisoner alleged that in October 1995 a
gang of guards severely beat him, forced him to strip, and left him naked in a cell overnight. Plaintiff
filed his complaint against the officers who beat him in 1999 – without first attempting to exhaust
administrative remedies. He argued that since the PLRA became effective in April 1996, the
exhaustion requirement did not apply to his case. The Court of Appeals disagreed, holding that the
PLRA’s exhaustion requirement may apply retroactively to incidents that occurred before the
enactment of the PLRA. Although plaintiff missed the opportunity to submit a formal grievance within
twenty-days of the event, BOP regulations provided a hardship exception for prisoners who can
demonstrate a valid reason for not meeting the deadline. Since plaintiff could not show that he
“substantially complied with the institution’s grievance policy,” the case was properly dismissed for
failure to exhaust.)
Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001) (Lawsuit brought by prisoner who was
severely beaten by guards was dismissed for failure to exhaust administrative remedies. Prisoner
appealed, claiming that he did not file an administrative grievance because he feared retaliatory action
by prison officials. The Court of Appeals affirmed, holding that under § 1997(e), prisoner-plaintiff must
exhaust any administrative process that “(1) was empowered to consider his complaint and (2) could
take some action in response to it.”)
Johnson v. Litscher, 260 F.3d 826 (7th Cir. 2001) (Prisoner brought § 1983 action alleging
that he was repeatedly harassed by prison officials in retaliation for winning prior lawsuit. The court
affirmed district court’s dismissal for failure to exhaust. Allegations of harassment by state prison
officials towards inmate were allegations of "prison conditions" requiring exhaustion.)
Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001) (An excessive force lawsuit is a lawsuit “with
respect to prison conditions,” under § 1997 such that a prisoner must first exhaust administrative
remedies before bringing an action alleging excessive force. The court held that requiring exhaustion in
this context will develop the factual record; give prison officials an opportunity to address the situation
internally; and may serve to narrow the scope of litigation.)
Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000) (Prisoner cannot avoid exhaustion
requirement by arguing that administrative remedies are a “sham.” There is no “futility exception” to the
PLRA exhaustion requirement.)
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999) (PLRA does not condition the
applicability of its exhaustion requirement on the effectiveness of the administrative remedy available in a
given case.)
Perez v. Wisconsin Dep’t of Corrections , 182 F.3d 532 (7th Cir. 1999) (Plaintiff brought a
§ 1983 action seeking damages for inadequate medical treatment. The court held that a prisoner cannot
avoid § 1997e(a) by limiting his demand to money damages. The PLRA requires exhaustion when a
12

prisoner seeks financial relief for a continuing violation and the prison’s internal grievance system does
not award money damages. NOTE: To the extent that the court hinted at an exception to this rule, the
exception was foreclosed by Booth v. Churner.)

13

CHAPTER 2: COMMUNICATION WITH CLIENTS

8.

COMMUNICATION WITH CLIENTS

Introductory Comment
In 1997-98, the IDOC put greater restrictions on attorney visits and telephone calls to certain
prisons. For example, at Pontiac Correctional Center, a maximum-security prison on permanent
lockdown, while attorney-prisoner visits are in a private room, the visits are “no contact,” that is, a
sheet of glass separates the attorney from the client and conversation is transmitted by an electronic
speaker. Papers can be transmitted only through the intercession of a correctional officer, a
cumbersome, time-consuming procedure. In addition, subject to the discretion of the warden, visits
may be limited to those two days of the week when visits are allowed generally for that prisoner’s
classification (e.g., prisoners in segregation are permitted visits on Tuesday and Friday and those in
Protective Custody on other days.) At Tamms Correctional Center, telephone calls from an attorney
are permitted only for a “documented emergency.” These limitations have not yet been tested.
In the case discussions that follow, citations from other circuits or districts are cited for
illustrative purposes.
(1)

Attorney Visiting

Mann v. Reynolds , 46 F.3d 1055 (10th Cir. 1995) (The court affirmed the district court’s
decision that the Sixth Amendment was violated when prison officials arbitrarily prohibited contact visits
between death-row and high-maximum security inmates and their attorneys.)
Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993) (When prison officials have legitimate security
concerns, they can prohibit contact visits between high-security prisoners and their attorneys.)
Crusoe v. DeRobertis, 714 F.2d 752 (7th Cir. 1983) (The warden may prohibit a prisoner
from communicating with counsel through a paraprofessional (here, a former prisoner) where the
paraprofessional poses a colorable threat to security.)
Dreher v. Sielaff, 636 F.2d 1141 (7th Cir. 1980) (Prisoners have a constitutional right to
confer with counsel, which may not be abridged unnecessarily. A reasonable accommodation between
the prisoners’ right of access to counsel and a prison’s need to maintain institutional security is
required.)
Illinois Department of Corrections Rule:

14

20 Ill. Admin. Code § 525.40 (West Supp. 2001):
(2)

Attorney Visitation -- Adult and Community
Services Division

Mail

Massey v. Wheeler, 221 F.3d 1030, 1037 (7th Cir. 2000) (Affirming that attorney-client
mail may only be opened in presence of inmate.)
Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (“Merely alleging an isolated delay or
some other relatively short-term, non content-based disruption in the delivery of inmate reading
materials will not support, even as against a motion to dismiss, a cause of action grounded upon the
First Amendment.” In this case, the delays in receiving mail were relatively short-term and sporadic.
Moreover, plaintiff failed to allege that the delays resulted from a content-based prison regulation or
practice.)
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996) (Prisoner stated a claim when he alleged
that prison officials violated First Amendment right of access to the court when officials opened his legal
mail, delayed its delivery, and sometimes lost it. Note: This case pre-dates Lewis v. Casey, 518 U.S.
343, 355 (1996.))
Illinois Department of Corrections Rules:
20 Ill. Admin. Code §§ 525.100-.150 (West Supp. 2001): Mail and Telephone Calls
(3)

Telephone

Introductory Comment
As indicated earlier (PART I, SECTION 8: TELEPHONE PROCEDURES), different institutions have
different telephone policies: some are far more technical (written requests) and formal than others. The
law regarding the more restrictive procedures is not settled.
Decisions
Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000) (Prisoner and his attorney brought
lawsuit alleging that actions of prison staff in restricting inmate's communications with attorney, including
limit on unmonitored telephone calls by inmate, resulted in violation of constitutional rights. Prisoner’s
case was dismissed for failure to exhaust. Attorney lacked third-party standing to allege a violation of
the prisoner’s constitutional rights.)

15

Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (Prison telephone policy limiting
number of persons inmate may call to 10 justified by legitimate penological interest in reduction of
criminal activity and harassment.)
Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997) (No equal protection violation where
prison officials failed to provide hearing-impaired inmate with specially modified telephone.)
Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) (Unreasonable restrictions on a
detainee’s telephone access may violate the First and Fourteenth Amendments. A delay of four days,
for example, before a detainee is allowed access to telephone is potentially unconstitutional.)
Martin v. Tyson, 845 F.2d 1451 (7th Cir. 1988) (As security is a vital concern in prisons,
some monitoring of general telephone use is to be expected, though the prison did offer an unmonitored
telephone line for calls with attorneys.)
Illinois Department of Corrections Rule:
20 Ill. Admin. Code § 525.150 (West Supp. 2001):

16

Telephone Privileges.

CHAPTER 3: FORMULATING A STRATEGY — CHOOSING DEFENDANTS
9.

IMMUNITIES — QUALIFIED OR GOOD FAITH IMMUNITY

Introductory Comment
Qualified immunity from a civil rights action is an entitlement not to stand trial or face the other
burdens of litigation.
Individual correctional officials may be immune from actions for damages if they can establish
that defendant’s conduct was objectively reasonable, that is, the conduct did not violate “clearly
established statutory or constitutional rights of which a reasonable person would have known.”
The qualified immunity defense is often pleaded inconspicuously in an answer or in a motion to
dismiss or for summary judgment or at trial. It is recommended that appointed counsel analyze the legal
and factual basis for such a defense at the earliest possible moment, so that it does not arise in a
surprise move when counsel is not prepared. While there are certainly cases where the defense is
appropriate, often there is no basis for its assertion. In any event, plaintiff’s counsel can test the validity
of the defense well before trial by a motion to strike or for partial summary judgment.
The following decisions illustrate the nature of the principle of qualified immunity, situations
where the defense has and has not been established, and the appealability of a trial court’s denial of the
defense.

(1)

Qualified or Good Faith Immunity in General

Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001) (A qualified immunity defense must
be considered in proper sequence. The initial inquiry is whether a constitutional right would have been
violated on the facts alleged, for if no right would have been violated, there is no need for further
inquiry. If a violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is whether the right was clearly established. The relevant inquiry is whether it would be
clear to a reasonable officer that the conduct was unlawful in the situation he confronted. In excessive
force cases, the second prong of the qualified immunity analysis must be separate and distinct from the
excessive force analysis.)
Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (Whether
an official is protected by qualified immunity turns on the objective legal reasonableness of the action, in
light of legal rules clearly established at the time the action was taken; contours of the right allegedly
violated must be sufficiently clear such that a reasonable official would understand that what he or she

17

was doing violated that right. See also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982.))
Campbell v. Peters , 256 F.3d 695 (7th Cir. 2001) (Inmate articulated a constitutional right in
not being detained for longer than his sentence required, but officials did not violate clearly established
law and therefore were entitled to qualified immunity.)
Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000) (A complaint is generally
not dismissed under Rule 12(b)(6) on qualified immunity grounds because an immunity defense usually
depends upon the facts of the case. “[T]he plaintiff is not required initially to plead factual allegations
that anticipate and overcome a defense of qualified immunity.” Qualified immunity is an issue better
addressed at summary judgment.)
Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) (Qualified immunity is a personal
defense, which does not apply to institutional defendants in suits under federal statutes. See also Owen
v. Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980.))
Knox v. McGinnis, 998 F.2d 1405 (7th Cir. 1993) (Qualified immunity only shields
defendants in their individual capacity from money damages.)
(2)

Qualified Immunity Defense Denied

Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001) (Officials could not have reasonably
believed that complete withholding of out-of-cell exercise from inmate for six months did not violate
Eighth Amendment. Qualified immunity defense denied.)
Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001) (Prisoner with severe chronic asthma
brought an Eighth Amendment claim alleging that he was being exposed to harmful levels of second
hand smoke. Given the Supreme Court’s holding in Helling v. McKinney, 509 U.S. 25 (1993), the
right of a prisoner not to be subjected to a serious risk of his future health resulting from second hand
smoke was clearly established at the time of the incident.)
Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001) (Prison officers were not immune
from individual liability where mentally ill detainee committed suicide, when officers did not check on
prisoner for five hours despite bizarre behavior, a last-will-and-testament note, a warning call from his
mother, and extreme weight loss. “There can be little debate that it was clearly established, long before
1998, that prison officials will be liable under § 1983 for a pretrial detainee’s suicide if they were
deliberately indifferent to a substantial suicide risk.”)
Burgess v. Lowery, 201 F.3d 942 (7th Cir. 2000) (Prison visitors' Fourth Amendment right
not to be strip searched in absence of reasonable suspicion that he or she was carrying contraband was
18

clearly established at time state prison officials searched persons visiting death row inmates, and thus
officials, sued under § 1983, were not entitled to qualified immunity.)
Hill v. Shelander, 992 F.2d 714 (7th Cir. 1993) (The court held that qualified immunity did
not apply in case where an officer was alleged to have grabbed plaintiff’s hair and shoulder, slammed
his head and back against bars, hit him twice in the face and then kicked him in the groin. Clearly
established authority prohibited this excessive force.)
Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir. 1991) (The court denied the defendants
qualified immunity in case in which prisoner complained of absence of heat in cellblock. Defendants
argued that there was no clearly established law since the weather was abnormally cold and the heating
breakdown was unusual. The court held that “contrary to defendants’ assertion, constitutional rights
don’t come and go with the weather,” and in 1982 the law was clearly established on this issue.)
(3)

Qualified Immunity Defense Prevailed

Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001) (Superintendent of state prison’s
disciplinary-segregation unit, who imposed four, consecutive, 90-day denials of prison yard privileges
upon prisoner for violation of prison disciplinary rules, was entitled to qualified immunity in § 1983
action alleging cruel and unusual punishment; there was no case law when official acted indicating that
such "stacking" of sanctions was cruel and unusual punishment and no tenable argument that stacking so
clearly violated the Eighth Amendment that official in superintendent's position would have had to know
that it did.)
Campbell v. Peters , 256 F.3d 695 (7th Cir. 2001) (Former prison inmate failed to show that
clearly established law prohibited prison officials from revoking his good conduct credits after recommitment, and thus officials were entitled to qualified immunity in inmate's §1983 action.)
Fuller v. Dillon, 236 F.3d 876 (7th Cir. 2001) (Prison inmate who had been given
psychotropic medication against his will brought § 1983 action against prison officials and medical
personnel, alleging a violation of his due process rights. Given prisoner’s serious mental illness and in
light of the Supreme Court’s decision in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108
L.Ed.2d 178 (1990), defendants could reasonably have believed that involuntary administration of
medication did not violate inmate's due process rights. See also Sullivan v. Flannigan, 8 F.3d 591 (7th
Cir. 1993.))
Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2001) (Illinois prisoners brought action under §
1983, Sherman Act, and state law challenging the practice by which prisons grant one telephone
company the exclusive right to provide inmate telephone services in exchange for a portion of the
revenue generated. Individual defendants were entitled to qualified immunity given the novelty of the
suit.)
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Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) (Prisoner challenged the prison’s
disclosure of his HIV-positive status and the resulting differential treatment by the institution. Because
there was so little law on disclosure of prisoners’ HIV status, no right was clearly established, and thus
the claim was barred by qualified immunity. Though district cases had held that disclosure of HIV
status violated a prisoner’s rights, the court made it clear that district court decisions cannot render a
right “clearly established” for purposes of determining qualified immunity.)
Scoby v. Neal, 981 F.2d 286 (7th Cir. 1992) (Supervisory officers entitled to qualified
immunity in suit by correctional officers where strip-search procedure did not violate clearly established
right.)
Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992) (A parolee has a constitutionally based
liberty interest in not being subjected to psychotropic drugs as a condition of his parole, except where
there is a determination of medical appropriateness. Defendants’ procedure, whereby the individual
parole agent determined said condition, was violative of due process. However, defendants were
entitled qualified immunity because the parolee’s procedural rights were not clearly established at the
time.)
(4)

Qualified Immunity & Private Parties

Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100 (1997) (Prison guards employed
by a private prison management firm were not entitled to qualified immunity from suit by prisoners
charging a violation of § 1983. History did not reveal a tradition of immunity for private prison guards.
Neither did the immunity doctrine’s traditional purposes warrant immunity for private prison guards.
Mere performance of a government function does not support immunity for a private person. This is
especially true where the private person performs a job without government supervision or direction.
See also Malinowski v. DeLuca, 177 F.3d 623 (7th Cir. 1999); Payton v. Rush Presbyterian St.
Luke’s Med. Ctr., 184 F.3d 623 (7th Cir. 1999.))
Williams v. O’Leary, 55 F.3d 320 (7th Cir. 1995) (Inmate suffering from chronic bone
infection filed suit claiming that defendants were deliberately indifferent to his medical care. At issue on
appeal was whether the defendant-doctors were entitled to qualified immunity even though they were
not state employees. The court noted that private parties may raise the defense of qualified immunity in
certain circumstances. A private party acting under a government contract, as was the case here, may
be granted qualified immunity.)
Sherman v. Four County Counseling Ctr., 987 F.2d 397 (7th Cir. 1993) (A private party
may raise the defense of qualified immunity in certain circumstances: (1) the private party acted under a
government contract fulfilling a government function, (2) the party fulfilled statutorily mandated duties
under a contract, and (3) a private physician acted under court order.)
20

(5)

Appealability of Qualified Immunity Decision

Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996) (Defendant
filed a motion to dismiss on qualified immunity grounds, which was denied. Defendant took the issue up
to the circuit court on interlocutory appeal and lost again. At summary judgment, defendant again
claimed qualified immunity in his pleadings and lost. When defendant attempted to appeal the summary
judgment denial, the Ninth Circuit refused jurisdiction on the grounds that it only had jurisdiction for one
interlocutory appeal regarding qualified immunity.
The Supreme Court reversed, holding that the denial of qualified immunity was immediately
appealable pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The goal of qualified immunity
is to shield government officials from unnecessary litigation, which includes both going to trial and
participating in pre-trial proceedings. Scalia read Mitchell to “clearly establish [ ] that an order rejecting
the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’
judgment subject to an immediate appeal.” Id. at 307. Therefore, the Ninth Circuit’s one-appeal rule
was thrown out. Defendants may appeal a denial of qualified immunity after losing both a motion to
dismiss and after losing a motion for summary judgment.)
Swint v. Chambers County Comm’n, 514 U.S. 35, 115 S. Ct. 1203, 131 L. Ed. 2d 60
(1995) (Pendent appellate jurisdiction could not be used to conduct an interlocutory review of an
otherwise unappealable ruling in this civil rights action against a county sheriff. The district court denied
the sheriff summary judgment on qualified immunity grounds, from which the sheriff filed interlocutory
appeal. The Court ruled that the policy-maker issue did not qualify for treatment under the collateral
order doctrine.)
Mitchell v. Randolph, 215 F.3d 753, 755 (7th Cir. 2000) (If resolution of a claim of
qualified immunity depends on disputed issues of material fact, not only must it await a full trial, but it is
also not a proper subject for an interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 307, 115
S.Ct. 2151, 132 L.Ed.2d 238 (1995); Omdahl v. Lindholm, 170 F.3d 730, 732 (7th Cir. 1999)
(same.))
Burgess v. Lowery, 201 F.3d 942 (7th Cir. 2000) (Denial of prison officials' motion to
dismiss prison visitors' tort claims on ground of qualified immunity was immediately appealable insofar
as undisputed facts subjected officials to threat of damages liability, even though suit also sought
injunctive relief, from which there was no immunity.)

21

10.

ABSOLUTE IMMUNITY

Introductory Comment
Whether an official can be sued or has absolute immunity is not an issue that appointed counsel
should ordinarily face, except in a pleading where an official of state government has been sued in her
or his official capacity. Remember, state officials (including IDOC personnel) cannot be sued for
damages in their official, as opposed to their individual, capacities because of the Eleventh Amendment
to the Constitution, which prohibits actions against the State without its consent. In this context, an
action against a state official in his official capacity is an action against the State.
Official capacity actions for prospective or injunctive relief are not treated as actions against the
State. Such claims are not barred by the Eleventh Amendment. See, e.g., Power v. Summers, 226
F.3d 815 (7th Cir. 2000).
Decisions
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989) (State officials acting in their official capacities are not “persons” who may be sued under §
1983 for damages, although they may be so sued for injunctive relief. To sue state officials for damages
they must be sued in their individual capacity.)
Mireles v. Waco, 502 U.S. 9 (1991) (Discusses judicial immunity.)
Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (The Supreme
Court determined that a state judge was not entitled to absolute immunity in a damage action brought
under § 1983 when his action was “administrative” rather than “judicial” in nature.)
Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985) (Prison
disciplinary committee has qualified, not absolute immunity from inmate suits alleging violation of
constitution rights.)
Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) (The Supreme
Court analyzed the criteria for determining whether public officials were absolutely immune from
damages.)
Anderson v. Simon, 217 F.3d 472 (7th Cir. 2000) (Widow of detainee who committed
suicide could not sue assistant state’s attorney in his individual capacity under § 1983. Absolute
prosecutorial immunity barred the suit.)

22

Biblia Abierta v. Banks, 129 F.3d 899 (7th Cir. 1997) (Discusses absolute legislative
immunity.)
Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir. 1996) (Defendant could not sue members of
prisoner review board for alleged due process violations in revoking his supervised release. Prisoner
review board members were entitled to absolute immunity for activities that are analogous to those
performed by judges, such as decision to grant, deny, or revoke parole, as well as activities that are
inexorably connected with execution of parole revocation procedures and are analogous to judicial
action.)
Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995) (Inmate sued a police officer, alleging that
the officer gave perjured testimony during his trial. The court thoroughly discussed absolute immunity
for witnesses.)
Kincaid v. Vail, 969 F.2d 594 (7th Cir. 1992) (Court clerks were entitled to absolute
immunity against § 1983 action brought by two inmates, who alleged that clerks had deprived them of
their constitutional right to access to courts by refusing to file inmates' civil suit in Indiana Superior
Court; clerks' acts were done at judicial direction, and were nonmechanical functions integral to judicial
process.)
11.

ELEVENTH AMENDMENT IMMUNITY

Introductory Comment
In most cases, this is simply a pleading problem where the prisoner in his or her pro se
complaint has named IDOC officials in their official capacity or in their official and individual capacities.
See PART I, SECTION 3: DECISION TO SUE DEFENDANTS IN THEIR OFFICIAL OR INDIVIDUAL
CAPACITY. Remember, State officials (including IDOC personnel) cannot be sued for damages in their
official capacity, as opposed to their individual capacities because of the Eleventh Amendment to the
Constitution, which prohibits actions against the State without its consent. In this context, an action
against a state official in his official capacity is an action against the State. There may be exceptions
where injunctive relief as opposed to money damages is sought. Counsel should amend the complaint
accordingly.
This issue ordinarily does not arise in actions against a municipality or county. See PART II,
SECTION 13: MUNICIPAL LIABILITY.
Decisions
Vermont Agency of Natural Resources v. U.S. ex rel. Stevens , 120 S. Ct. 1858, 1865
(2000) (Courts should first determine whether the statute in question permits the cause of action it
23

creates to be asserted against States before reaching the Eleventh Amendment immunity issue). See,
e.g., Johnson v. Doe, 2000 WL 1529788 (7th Cir. 2000)(“[B]ecause the IDOC cannot be sued under
§ 1983, we need not reach the constitutional issue.”)
Coll. Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd. , 527 U.S.
666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (A bank sued the state of Florida for false
advertising under the Lanham Act. The Supreme Court held that the suit was barred under the
Eleventh Amendment. As a general rule, Congress may subject non-consenting States to suit in federal
court pursuant to a valid exercise of its power to enforce the Fourteenth Amendment. In this case,
however, the Court held that Congress could not use § 5 of the Due Process Clause to abrogate state
sovereign immunity on the ground that statutory rights are “property” under the Fourteenth
Amendment.)
Will v. Michigan Dep’t of State Police, 491 U.S. 48, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989) (State officials acting in their official capacities are not “persons” who may be sued under §
1983 for damages, although they may be so sued for injunctive relief. To sue state officials for damages
they must be sued in their individual capacity.)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d
67 (1984) (Eleventh Amendment prohibits federal court from ordering state officials to conform their
conduct to state law.)
Hutto v. Finney, 437 U.S. 678 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (In enacting Civil
Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988, Congress intended to override
Eleventh Amendment immunity of the states and authorized fee awards payable by the states when
officials are sued in their official capacities. But see PLRA’s limitation on attorney’s fees, 42 U.S.C. §
1997e(d).)
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Prisoner alleging deliberate
indifference to medical condition may not sue Indiana State Prison; nor may he sue prison officials in
their official capacity. These claims are barred by Eleventh Amendment. Pro se prisoner’s omission of
the phrase "individual capacity," however, does not necessarily render this solely an official capacity
suit.)
Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000) (Under Eleventh Amendment, inmate's
claim, seeking accommodation of his visual disability under ADA, could not be brought against State in
federal court.)
Higgins v. Mississippi, 217 F.3d 951, 953 (7th Cir. 2000) (Eleventh Amendment, which
precludes a citizen from suing a state for money damages in federal court without the state's consent,

24

barred plaintiff’s claims against the Indiana State Prison and the Indiana Department of Corrections,
both state agencies.)
DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000) (For Eleventh
Amendment purposes, Illinois sheriffs are county officers – not state officers – when they manage jails.)
12.

SUPERVISORY LIABILITY

Introductory Comment
Prisoners often name a multitude of defendants in their pro se complaints, including the
Directors of the Department of Corrections, the warden of the prison where the incident in question
occurred, and other supervisory personnel usually not directly involved in the incident. As suggested in
prior sections on the criteria for personal accountability, a defendant must be personally responsible for
the deprivation of a constitutional right or he will not be liable. There is no liability based on respondeat
superior or principal-agent.3/
This issue is carefully discussed in Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998), where the
prisoner-plaintiff sued the warden for failing to protect him from attack by fellow inmates. The
complaint stated that no guards were stationed in the towers on the catwalk overlooking the area where
plaintiff was attacked. Plaintiff claimed that the absence of guards in the towers violated prison policy
and that the warden was liable for this violation since he “[was] the person ultimately in charge of, and
responsible for, all day-to-day operations.” Id. at 741. The Court of Appeals determined that the
warden (and other supervisory personnel) 4/ could be liable under the Eighth Amendment only if he was
aware of a systemic lapse in enforcement of a policy critical to ensuring inmate safety.
“The liability would stem from condoning a constitutional deprivation, and it would be direct,
not vicarious. A warden is not liable for an isolated failure of his subordinates to carry out
prison policies, however — unless the subordinates are acting (or failing to act) on the
warden’s instructions.” Id.
The court affirmed the district court’s dismissal because the complaint failed to make these necessary
allegations.
Appointed counsel should read Steidl carefully. It contains an excellent discussion of recent
decisions and the analysis the court will make of pro se complaints, as well as the necessity for

3/
Distinguish the principles involved here from the liability of a city or county based on policy, etc. See
PART II, SECTION 13: M UNICIPAL LIABILITY.
4/

This principle may also apply to officers of equal rank to the direct perpetrator.

25

appointed counsel to amend pleadings to reflect these legal principles if the facts support them. After
investigation, counsel should dismiss supervisory personnel if the requisite facts are not present.
Decisions
Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001) (A defendant "will be deemed to
have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or if
it occurred with his knowledge or consent." See Chavez v. Illinois State Police, 251 F.3d 651 (7th Cir.
2001). The individual does not have to have participated directly in the deprivation. A supervisor may
be liable for "deliberate, reckless indifference" to the misconduct of subordinates.)
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) ("[S]upervisors who are
merely negligent in failing to detect and prevent subordinates' misconduct are not liable.... The
supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see. They must in other words act either knowingly or with deliberate, reckless
indifference." (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988.))
Gentry v. Duckworth, 65 F.3d 555 (7th Cir. 1995) (The Seventh Circuit reversed the district
court’s grant of summary judgment in favor of the defendant. The court began its decision by noting
that the defendant, the superintendent of the Indiana State Reformatory, could not generally be held
liable unless the plaintiff could demonstrate “some causal connection or affirmative link between the
action complained about and the official sued.” Id. at 561. (citing Wolf-Lillie v. Sonquist, 699 F.2d
864, 869 (7th Cir. 1983)). Although the court admitted that the question was close, the court held that
the plaintiff’s complaint sufficiently alleged that the defendant affirmatively ordered the deprivation of the
plaintiff’s constitutional right of access to the courts.)
Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 (7th Cir. 1985) (Sheriff was
properly dismissed from case where plaintiffs did not allege that the shift sergeant who issued the arrest
order was not properly trained by the sheriff; such an allegation would have established the necessary
direct participation of the sheriff in the arrest.)

13.

M UNICIPAL LIABILITY

Introductory Comment
Where a county or a municipality is sued as a named defendant, special pleading and proof
requirements apply. As the following cases indicate, liability may attach only if the decision maker was
acting pursuant to a policy of the defendant or had the power to establish policy. These are questions
which should be researched carefully. In most cases, the pro se complaint must be amended and
discovery and proof must be adjusted accordingly.
26

In this respect, a tactical decision must be made as to the importance of keeping the municipal
corporation as a defendant as opposed to individual officers, etc. The case may have more jury appeal
if the municipal corporation is a named defendant. However, proof may be difficult and the battle may
be fought on a tougher field.
Note that a § 1983 action against an official in his official capacity is treated as a suit against the
governmental entity that employs the defendant. See Monell v. Department of Soc. Servs., 436 U.S.
658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, if an inmate sues the director
of the Cook County Jail in his official capacity, it will be treated as a suit against Cook County.
Decisions
St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (The City
may not be liable under § 1983 for transfer and eventual layoff of municipal employee, allegedly in
retaliation for exercise of First Amendment rights by supervisors who did not possess final decisionmaking authority with respect to challenged employment decisions, but who, at most, possessed only
authority to effectuate policy made by their superiors.)
Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (A
single improper decision by a municipality may be enough to show liability. On remand, the county was
reinstated as defendant.)
Monell v. Dept. of Soc. Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)
(Local governing bodies may be liable under § 1983 for the unconstitutional execution of a
governmental policy or custom, “whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy . . . .” Id. at 2037. Respondeat superior, however, is not a
proper basis for municipal liability.) (Overruling Monroe v. Pape, 365 U.S. 167 (1961), insofar as that
case held that local governments were wholly immune from suit under § 1983.)
Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001) (In the Eighth Amendment context,
“failure to train” claims may be maintained only against a municipality – not against individuals. See also
Farmer v. Brennan, 511 U.S. at 841, 114 S.Ct. 1970.)
McCormick v. City of Chicago, 230 F.3d 319, 323 (7th Cir. 2000) (“The Supreme Court
has made it very clear that federal courts must not apply a heightened pleading standard in civil rights
cases alleging § 1983 municipal liability. See Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993).” See also Jackson v.
Marion County, 66 F.3d 151 (7th Cir. 1995.))
DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000) (Illinois sheriffs
have final policy making authority over jail operations.)
27

Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995) (A local government is responsible for the
unconstitutional actions of its employees only when the actions are taken pursuant to official policy or
custom. Liability can be imposed on a municipality for consequences arising from a single decision
under appropriate circumstances. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Not all
decision-making by employees, however, will subject the municipality to potential liability. The
municipality will be liable only when the person making the decision has the final authority to establish
policy with respect to the action ordered.)
Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992) (This case presents a discussion of the
issue from the Monell case, as to who qualifies as a policy maker. To hold the municipality liable, under
Monell, the agent’s actions must implement rather than frustrate the governmental policy. Here the
court found that the defendant, not the municipality, was responsible for his actions. Although this case
dealt with the Chicago Police Department, it is instructive on the policy issues raised by the Monell
case.)
Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir. 1988) (Because a municipality may
be liable only for acts that it has officially sanctioned or ordered under Pembaur, a municipality’s liability
can never be premised on a random and unauthorized act causing a tortious loss of property.)
Anderson v. Gutschenritter, 836 F.2d 346 (7th Cir. 1988) (Under Pembaur, evidence of
county sheriff’s and county jail warden’s deliberate and callous indifference in failing to protect pretrial
detainee from being assaulted by jail inmates could be considered evidence of a county policy, such that
the county could be held liable under § 1983.)
Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986) (In situations that call for the
adoption of new procedures, rules or regulations, a municipality’s failure to make such policy may be
actionable under § 1983. Where the City’s custom itself did not establish wrongdoing, the plaintiff
alleging that the City’s inaction resulted in a constitutional violation under § 1983 must present evidence
of the course of events or circumstances that would permit the inference of deliberate indifference or
tacit authorization of offensive acts.)
Hossman v. Blunk, 784 F.2d 793 (7th Cir. 1986) (Complaint filed against a sheriff and his
deputies seeking damages resulting from mistreatment, including beatings administered to the plaintiff
while he was incarcerated in county jail and refusal to provide plaintiff with medical care, adequately
alleged claims for municipal liability under § 1983; read liberally, the complaint and affidavits alleged a
pattern or policy.)

28

29

CHAPTER 4: PREPARATION FOR TRIAL
14.

DISCOVERY

Introductory Comment
Although formal discovery may be pursued pursuant to the applicable Federal Rules of Civil
Procedure (Rules 26, 30, 33, 34, 36, and 37), as well as the Northern District’s local general rules and
rules for civil cases, discovery can be difficult and frustrating, given the nature of prisons, the manner in
which records are kept, and the fact that the Assistant Attorney General assigned to the case must often
work through the office of the General Counsel of the IDOC or with the personnel of a particular
prison, usually many miles away. Moreover, for security and other reasons, the prisoner’s counsel is not
permitted to simply go to the prison records office to “rummage” through records. Often, all you see or
know about the prison’s records is what is mailed to you. As a consequence, you must be creative to
determine that the response given you is an adequate one (as in any litigation.) The following
suggestions are made:
(1)
Study the applicable regulations of the IDOC (and warden’s orders and
directives where available) to determine what records should be kept;
(2)

In depositions of IDOC personnel, interrogate on the same subject;

(3)
Push your client to provide you with whatever records he or she has or can find
in the prison, as these records may suggest what other records should exist;
(4)
Use the rule of “probabilities” of what records should exist; remember, for
many movements of a prisoner from his or her cell to another department, e.g., to or
from the segregation units, there should be a document showing that movement;
(5)
Demand to see a prisoner’s “Master File;” this file follows the prisoner and
should contain every document (perhaps not all medical records) that have been
created regarding the prisoner;
—This request should be on the form supplied by the Prison. See
PART I, SECTION 26: FORMS. To save time, call the records office of
the prison to find out its procedures and if the form you have is correct.
This form must have an accurate description of what you want and must
be signed by your client and witnessed by a person at the prison
(usually a counselor). Sometimes a portion of the medical record
(mental health, for instance) will be in a different department than where
the regular medical records are kept. The records clerk, if dealt with
30

diplomatically, will ordinarily help you. It helps to catch attention by
faxing your request, marking your calendar for about ten days, and then
calling the clerk at the prison to check status, if you have not heard.
Persistence pays off.
(6)
Use Freedom of Information requests to the IDOC in Springfield, Illinois, and
to the particular prison where the incident or conduct in issue occurred.
For written requests of documents, consider the following:
Illinois Department of Corrections Rules:
20 Ill. Admin. Code § 107.310:
20 Ill. Admin. Code § 107.330:

Access To Records.
Release of Clinical Records to Committed Persons and
Authorized Attorneys (Adult Division) — Court
Agreement.

See also PART I, SECTION 26: FORMS.
15.

TRIAL ISSUES

Introductory Comment
There are many similarities between a prisoner’s civil rights trial and the ordinary civil trial.
Appointed counsel should approach preparation for trial and the trial itself essentially in the same
manner as any other trial. However, there are important differences, some of which will be discussed
here and in the decisions cited.
The primary difference is that appointed counsel represents a convicted felon who in most
instances will still be in a penitentiary. The client’s credibility (along with other prisoners who may be
supportive witnesses) starts off in a negative posture. The client may have more than one conviction in
addition to the sentence being currently served, may be in segregation for prison rules violations, and is
appearing in court at a time when many potential jurors will have a decidedly negative bias about
criminals and the courts. Read Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) for some ideas in this
regard. Try to limit the defendants’ use of the prior convictions of the plaintiff and other prisoner
witnesses.
As a consequence, counsel must, if possible, develop proof, either direct or circumstantial, that
corroborates the plaintiff and that emanates from the defendants (as adverse witnesses) or from the
IDOC itself. This latter proof may take the form of official records (incident reports, medical records)

31

or defendants’ failure to file such documents or from other IDOC officials, such as officers from a
subsequent shift. Counsel must use their creative resources in their efforts to develop such proof.
Secondly, everything must be done to humanize the plaintiff in the jury’s eyes. Do whatever is
possible so that the plaintiff’s physical appearance is not that of a convict, from the clothes that he or
she wears to arguing to the trial judge that IDOC correctional officers (who will accompany the plaintiff
to the court) are not permitted to sit around him in court as if he were about to escape. Look to the
United States Marshals assigned to the courtroom to help you in this respect.
Decisions
Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 106
S. Ct. 355, 88 L. Ed. 2d 189 (1985) (The sending correctional institution is responsible for transporting
the prisoner to court; the Marshal’s Service is responsible for the prisoner during court proceedings.)
Haley v. Gross, 86 F.3d 630, 644 (7th Cir. 1997) (Expert testimony from a former prison
warden about the appropriate response to certain prison situations was properly admitted.)
Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995) (Prisoner needed expert medical evidence for
his case contending that the medical care he received while incarcerated violated his Eighth Amendment
rights. The expert physician was in Chicago and the prisoner was incarcerated in Taylorville
Correctional Center, more than 200 miles away, in a prison not connected with his lawsuit. The court
held that pursuant to 28 U.S.C. § 2241, a court may not order a custodian to transport a prisoner
outside the prison to acquire evidence (to be examined by a doctor) in a suit to which the custodian is
not a party. The court would not allow use of 28 U.S.C. § 1651(a), the all writs provision, to bypass
the writ of habeas corpus provision of § 2241.)
Wilson v. Groaning, 25 F.3d 581 (7th Cir. 1994) (The court held that the evidence of an
inmate spitting on corrections officers as well as evidence of prior convictions was properly admitted at
trial to determine whether officers had used excessive force to transport the inmate.)
Woods v. Thieret, 5 F.3d 244 (7th Cir. 1993) (The court held that it was not prejudicial to
the plaintiff for his inmate-witnesses to appear in leg and arm restraints because restraints were
“necessary to maintain the security of the courtroom.” Potential prejudice was eliminated when the trial
court took steps to reduce the visibility of the restraints and gave a curative instruction advising the jury
to disregard the restraints when assessing the testimony. The court held that it was also not prejudicial
for the witnesses to appear in prison clothing because, given that the lawsuit dealt with a § 1983 claim
against prison officials, the jury was aware the witnesses were prisoners no matter what they wore.)
Lemons v. Skidmore , 985 F.2d 354 (7th Cir. 1993) (The magistrate judge abused his
discretion when he did not hold a hearing to determine what restraints, if any, the inmate had to wear in
32

court. An inmate is entitled to the minimum restraints necessary. The judge’s error in relying on an
alleged IDOC policy requiring leg shackles was compounded by the fact that IDOC was the defendant
and that the shackles conveyed a biased impression to the jury about the inmate’s dangerous character,
which was an issue in the civil rights case.)
Gora v. Costa, 971 F.2d 1325 (7th Cir. 1992) (For impeachment purposes, evidence of
defendant’s past crimes is admissible, if relevant, when limited to the crime charged, date and
disposition. See Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987); Green v. Bock Laundry Mach.
Co., 490 U.S. 504 (1989). Evidence of current incarceration cannot be used to impeach, but might be
admissible for other purposes if its probative value outweighs unfair prejudice. Here, evidence of
current incarceration was admissible, because it was not used to impeach and it was relevant.
Objection must be made at trial for improper use of past or present convictions.)
Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir. 1990) (The trial court properly allowed limited
use of the details of plaintiff’s pending offenses and prior convictions. This was a § 1983 case alleging
excessive force by police officers and the officers knew of the plaintiff’s prior criminal history at the time
of arrest; therefore, what they knew was relevant when evaluating their conduct. The trial court had
protected the prisoner-plaintiff from unfair prejudice by allowing only evidence of the “general nature of
the charges and what those charges involved in general terms.”)

33

CHAPTER 5: DAMAGES
16.

DAMAGES — GENERALLY

Decisions
Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) (Inmate in a
Missouri reformatory for youthful offenders brought suit under § 1983 against reformatory guards
alleging that his Eighth Amendment rights had been violated. After a jury verdict in plaintiff’s favor, the
Supreme Court held that punitive damages may be awarded in a § 1983 action when the defendant’s
conduct involves reckless or callous indifference to plaintiff’s rights as well as when defendant acts with
evil motive or intent. Policy of qualified immunity is not sufficient to protect defendants against punitive
damages for reckless conduct. With such immunity, defendant is only “protected from liability for mere
negligence because of the need to protect his use of discretion in his day-to-day decisions in the running
of a correctional facility.” Id. at 55.)
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616
(1981) (Municipalities cannot be held liable for punitive damages under § 1983.)
Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978) (Compensatory
damages cannot be awarded for denial of procedural due process without evidence of actual injury.)
Jutzi-Johnson v. United States, 263 F.3d 753 (7th Cir. 2001) (The Court of Appeals
discussed the difficulty of calculating appropriate pain and suffering awards. The Court suggested in
dictum that "[t]o minimize the arbitrary variance in awards bound to result from ... a
throw-up-the-hands approach, the trier of facts should ... be informed of the amounts of pain and
suffering damages awarded in similar cases.”)
Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995) (Inmate alleged that prison officials had
denied him treatment for a scalp condition, had destroyed his mail, had taken away his radio, and had
wrongfully disciplined him. He appealed the damage award of $550 received in district court. The
appellate court held that federal common law governs § 1983 damage awards, and agreed with the
district court’s calculation of damages. Inmate also wanted punitive damages, which are only allowed
in § 1983 cases when the judge finds that defendant’s conduct was evilly motivated or motivated by
callous indifference. The court found that punitive damages were not warranted in this case.)
Sahagian v. Dickey, 827 F.2d 90 (7th Cir. 1987) (Prisoner who was denied access to legal
materials in violation of due process was entitled to nominal damages of $1 as a recognition of the
violation of his rights. Punitive damages in a § 1983 suit may be available without actual loss to the
plaintiff if a showing is made of aggravating circumstances or malicious intent.)

34

Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986) (The court awarded plaintiff $495,000
for injuries from excessive use of force.)
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) (Jury awards of $25,000,
$30,000 and $60,000 in strip-search cases. Seventh Circuit reduced $60,000 award to $35,000.)
Crawford v. Garnier, 719 F.2d 1317 (7th Cir. 1983) (The court reduced $10,000 award for
“injury to civil rights” after finding of First Amendment violation to a nominal damage award of $1. The
court followed Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982), which allowed only nominal damages
for violation of prisoner’s First Amendment right to access to certain reading materials. The court
distinguished Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983) and Owen v. Lash, 682 F.2d 648 (7th
Cir. 1982) as only “suggesting” that substantial damages may be awarded for certain constitutional
violations without evidence of consequential injuries. See also Corriz v. Naranjo, 667 F.2d 892 (10th
Cir. 1981); Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981.)

17.

DAMAGES & THE PRISON LITIGATION REFORM ACT

Introductory Comment
Although the common law of tort damages has generally applied to § 1983 “constitutional tort”
claims (with some exceptions), the Prison Litigation Reform Act makes a profound change to the extent
that emotional or mental injuries, in the absence of physical injury, are not compensable:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.”
42 U.S.C.A. § 1997e(e) (West Supp. 2001) (emphasis added).
Section 1997e(e) does not require a showing of physical injury in all prisoner civil rights cases –
just those in which mental or emotional injury is claimed. The Seventh Circuit has offered the following
guidance for when the physical injury requirement comes into play:
“[I]f the only form of injury claimed in a prisoner’s suit is mental or emotional (for example, if
the prisoner claimed that the small size of his cell was driving him crazy), the suit is barred in its
entirety. If the suit claims a palpable, current physical injury that is inflicting mental and
emotional harm, the suit is unaffected by the statute. If the suit contains separate claims, neither
involving physical injury, and in one the prisoner claims damages for mental or emotional
suffering and in the other damages for some other type of injury, the first claim is barred by the
statute but the second is unaffected.”
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Robinson v. Page, 170 F.3d 747 (7th Cir. 1999).
Appointed counsel must analyze all damage precedent in light of this section and, in doubtful
cases, carefully analyze the prisoner’s medical records (with the advice of an expert witness where
possible) to demonstrate a “physical injury.”
The following decisions examine what constitutes a “physical injury” and the types of claims to
which § 1997e(e) applies.
Decisions
Cassidy v. Indiana DOC, 199 F.3d 374 (7th Cir. 2000) (Blind prisoner who sued under the
Americans with Disabilities Act was barred by § 1997e(e) from recovering for mental/emotional injury
in the absence of any claimed physical injury.)
Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (A prior showing of physical injury is not
required to bring a First Amendment claim, so long as prisoner does not seek recovery for mental or
emotional injuries.)
Robinson v. Page, 170 F.3d 747, 749 (7th Cir. 1999) (Prisoner’s claim for mental or
emotional injury not barred by § 1997(e) where it was not yet established if prisoner could establish a
physical injury.)
Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) (The physical injury requirement does not
apply to suits filed by ex-prisoner after he is released.)
Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir. 1997) (Rational basis test was appropriate
standard for equal protection challenge to § 1997(e) in civil rights action by prisoners who alleged that
they suffered mental and emotional injuries as a result of exposure to asbestos. The provision passed
the rational basis test. Prisoners could not recover damages for emotional injuries. They may,
however, sue for injunctive relief.)

36

CHAPTER 6: SUBSTANTIVE PRISON LAW
18.

INMATE-ON -INMATE ASSAULTS — DUTY TO PROTECT

Introductory Comment
The key decision on this type of claim is Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994). This unanimous opinion by the Court should be carefully studied to learn
the standards for this frequently filed suit. As you will learn, this type of claim is very fact oriented. It
requires careful investigation and will require, more often than not, reliance on carefully developed
circumstantial evidence to support your client’s version of the facts.
In Farmer, plaintiff, a biological male, had undergone sex change treatment. In prison he
continued to receive hormonal treatment and wore his clothing in a “feminine manner.” He was,
nonetheless, transferred to a male high-security prison and placed in general population. Within two
weeks, he was beaten and raped by another prisoner. He sued for damages and an injunction, alleging
that a transfer under these circumstances violated the Eighth Amendment. The Court reversed the trial
court’s summary judgment for the defendants (affirmed by the Seventh Circuit), holding that prisoners,
in the presence of other prisoners, some of whom are very dangerous, have no real means to protect
themselves. Prison officials cannot close their eyes to the inevitable.
The Court held that the test of liability was “deliberate indifference,” a standard imposed in
different contexts in prison litigation. In this instance, the standard requires something more than mere
negligence and less than maliciousness. The standard, while not self-defining, has a subjective and an
objective element. The standard may be met if prison officials were aware of a risk sufficiently serious
to cover inmates in plaintiff’s category, although they did not know that plaintiff in particular might be
harmed. Moreover, the standard does not immunize a “hear no evil, see no evil” approach. Stated
differently, prison officials may be liable on the basis of circumstantial evidence of an objective nature
from which the trier of fact could conclude that prison officials must have had actual knowledge of the
risk of harm, but failed to take reasonable steps to abate the risk. Thus, the Court stated that in these
circumstances, a prison official cannot escape liability by arguing that “he merely refused to verify
underlying factors that he strongly suspected to be true, or declined to confirm inferences of risk that he
strongly suspects to exist.” Id. at 843 n.8. In these circumstances, a prisoner at risk does not have to
wait until assaulted. Injunctive relief may be appropriate. In addition, failure of the prisoner to
complain is not necessarily fatal if the circumstances indicate that defendants had enough knowledge of
the risk but failed to act. The Court reversed the summary judgment and remanded the cause for trial.
Note that challenges to the effectiveness of a prison’s classification system have fared poorly in
this circuit. In order to prevail against the sheriff for failure to implement a proper classification system,
plaintiff would have to prove that defendants deliberately failed to implement a classification system with

37

the motive of allowing or helping prisoners to injure one another. See Weiss v. Cooley, 230 F.3d 1027,
1032 (7th Cir. 2000).
The following cases are a sampling subsequent to Farmer. You should do further research as
the cases are reported with some frequency.
Decisions
(1)

Inmate Stated or Proved Claim

Mayoral v. Sheahan, 245 F.3d 934 (7th Cir. 2001) (Upon arrival at Cook County Jail,
plaintiff told receiving officer that he had been a gang member, that his crime involved a rival gang
member, and that he feared for his life. He was placed in general population where he was seriously
injured by other inmates. The court reversed district court’s grant of summary judgment on claims
against individual officers. Summary judgment should not have issued where officers knew about
plaintiff’s request for protective custody but nonetheless placed him in general custody where they saw
that other inmates were acting “rowdy” and “seemed to be intoxicated” on prison alcohol.)
Weiss v. Cooley, 230 F.3d 1027 (7th Cir. 2000) (Suspect in highly-publicized rape case was
assaulted by inmates while in county jail. Court reversed district court’s grant of summary judgment.
While a deliberate indifference claim “cannot be predicated merely on knowledge of general risks of
violence in prison,” a plaintiff need not show that defendant had “advance knowledge of every detail of
a future assault.”)
Haley v. Gross, 86 F.3d 630 (7th Cir. 1997) (Prisoner was severely burned in fire set by
cellmate. The court found that the evidence sustained jury determination that prison officials were
deliberately indifferent to safety and welfare of prisoner when cellmate, who had been acting strangely,
set their cell on fire after prisoner's pleas to be moved were ignored and after cellmate was placed on
"deadlock status" which made it more difficult to remove prisoner from cell in emergency.)
Pope v. Shafer, 86 F.3d 90 (7th Cir. 1996) (Where prison officials were aware of threats
made to an inmate’s safety and disregarded those threats by failing to immediately transfer the inmate,
the evidence was sufficient to support a finding that prison officials were deliberately indifferent to the
inmate’s safety. The court affirmed the lower court’s award of $75,000 in compensatory damages.)
(2)

Inmate Failed to State or Prove Claim

Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998) (Warden could not be held liable for an
Eighth Amendment violation based on allegation that he knew or should have known that chances of
inmate-on-inmate violence were greatly enhanced after disappearance of razor blade. Alleged absence

38

of guards in towers and catwalk overlooking prisoner's unit at the time of attack did not give rise to
liability on warden's part.)
Langston v. Peters , 100 F.3d 1235 (7th Cir. 1996) (The court held that prison officials were
not deliberately indifferent to the risk of inmate retaliation after inmate was raped by cellmate. The
court found that prison officials were not sufficiently aware the plaintiff would be subject to inmate
retaliation and evidence showed he was not retaliated against.)
Jelinek v. Greer, 90 F.3d 242 (7th Cir. 1996) (Inmate was brutally beaten by a fellow inmate
after transfer from protective custody. The court held that the inmate failed to state an Eighth
Amendment violation. The court reasoned that although he was removed from protective custody, he
was not transferred to the general prison population but only to a less protective area than protective
custody.)

Illinois Department of Corrections Rules:
20 Ill. Admin. Code §§ 112.10-112.50:
20 Ill. Admin. Code §§ 501.300-.350:
20 Ill. Admin. Code § 503.20:

19.

Internal Investigations.
Protective Custody.
Classification of Committed Persons.

GUARD-ON -INMATE ASSAULTS — EXCESSIVE USE OF FORCE

Introductory Comment
The leading United States Supreme Court case in this category is Hudson v. McMillian, 503
U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), which held, as a general principle, that the use of
force by prison guards violates the Eighth Amendment when it is not applied “in a good-faith effort to
maintain or restore discipline” but, rather, is administered “maliciously and sadistically to cause harm.”
Id. at 7. In evaluating an excessive force claim, Hudson directed trial courts to consider factors such
as: the need for an application of force, the relationship between that need and the force applied, the
threat reasonably perceived by the responsible officers, the efforts made to temper the severity of the
force employed, and the extent of the injury suffered by the prisoner. See id. at 7, 112 S.Ct. 995; see
also DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000).
Hudson also held that the prisoner must demonstrate some injury, although it need not be a
significant one.5/ See also Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir. 2001) (discussing de

5/
Review this issue in light of the Prison Litigation Reform Act which denies recovery for emotional injury in
the absence of physical harm. See PART II, SECTION 17: DAMAGES & T HE PRISON LITIGATION REFORM ACT .

39

minimis injuries in excessive force cases); DeWalt v. Carter, 224 F.3d 607, 619-20 (7th Cir. 2000)
(same).
The defenses in this case are twofold, asserted together or singly. First, expect the claim that
the assault simply did not happen. The plaintiff’s testimony will raise a question of fact. Again,
circumstantial support for the plaintiff’s position will be critical where other officers do not (and rarely
will) support the prisoner. (As stated elsewhere, other prisoner testimony often does not carry weight
with the trier of fact because of the witness’s status as a prisoner and prior felony conviction.) The
second position taken is that even if there was an assault (for example, a gunshot wound), the officer
acted to protect the life or limb of himself (or herself), another officer, or even another inmate.
The typical jury instructions in this type of case are harsh, requiring plaintiff to show that harm
was inflicted by a correctional officer for malicious purposes, for punishment, and not to maintain
security. Read the cases that follow Hudson carefully. Several rulings, particularly from other circuits,
are not quite as harsh as the black-letter rule of law. And as always, be creative in your investigation.
Decisions
(1)

Inmate Stated or Proved Claim

Thomas v. Stalter, 20 F.3d 298 (7th Cir. 1994) (Inmate, under investigation for stabbing of
another inmate, refused to give a court-ordered blood sample. While officers restrained him so that a
lab technician could draw the blood, one officer allegedly punched the prisoner in the mouth, knocking
loose four front teeth which subsequently had to be pulled. The court held that the district court erred
in granting defendants’ judgment notwithstanding the verdict. Test for excessive force is whether force
was applied in good faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm. The court held that the jury could have reasonably found that the prisoner-plaintiff made out a
prima facie case, because nine other people were restraining the prisoner and the punch in face was not
necessary to carry out the court order.)
Hill v. Shelander, 992 F.2d 714 (7th Cir. 1993) (Qualified immunity did not apply in case
where officer was alleged to have grabbed plaintiff’s hair and shoulder, slammed his head and back
against bars, hit him twice in the face and then kicked him in the groin. Clearly established authority
prohibited this excessive force. In addition, plaintiff alleged sufficient facts to show that defendant’s
intent was to punish, thereby meeting the intent requirement necessary to overcome a motion for
summary judgment based on qualified immunity.)
(2)

Inmate Failed to State or Prove Claim

Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir. 2001) (Court granted summary judgment
against prisoner who alleged that guard slammed his hand in cellport door. Eighth Amendment claims
40

based upon de minimis uses of physical force by prison guards are not cognizable unless they involve
"force that is repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10. Here, there could
be no Eighth Amendment claim because either (1) the injury was an accident; or (2) defendant
deliberately and perhaps unnecessarily applied a relatively minor amount of force to achieve a legitimate
security objective, resulting in only superficial injuries. Neither scenario involved a use of force
“repugnant to the conscience of mankind.”)
DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000) (Defendant’s simple act of shoving
DeWalt was the kind of de minimis use of force that does not constitute cruel and unusual punishment.
The shove was a single and isolated act, unaccompanied by further uses of force. Moreover, the
bruising DeWalt allegedly suffered was not particularly serious.)
Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994) (Defendant’s act of pouring a
bucket of water on prisoner and causing the bucket to hit him in the head characterized as de minimis.)
Wilson v. Groaning, 25 F.3d 581 (7th Cir. 1994) (The court held that the evidence of an
inmate spitting on corrections officers, as well as evidence of prior convictions, was properly admitted
at trial to determine whether officers had used excessive force to transport the inmate.)
Kinney v. Indiana Youth Ctr., 950 F.2d 462 (7th Cir. 1991) (Officer did not violate Eighth
Amendment by shooting escaping prisoner where officer acted in good faith. No evidence existed
showing officer acted with the intent to inflict unnecessary pain and the prisoner was on notice that the
officer would shoot him if he attempted to escape.)
Soto v. Dickey, 744 F.2d 1260 (7th Cir. 1984) (Mace, tear gas, and other chemical agents of
like nature are allowed when reasonably necessary to prevent riots, escapes, or to subdue recalcitrant
prisoners, even if the inmate is locked in his prison cell or is in handcuffs.)

20.

M EDICAL CARE

Introductory Comment
In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 785 (1976), the Supreme
Court established that a prisoner could recover under the Eighth Amendment, which prohibits the
unnecessary and wanton infliction of pain, if the prisoner established a “deliberate indifference” to the
serious medical needs of the prisoner. In the scores of cases that have followed Estelle, no “bright line”
has been established as to the meaning of “deliberate indifference” (the same phrase used in the inmate
assault cases, PART II, SECTION 18: INMATE- ON-INMATE ASSAULTS — DUTY TO PROTECT , but with
a different interpretation) or of “serious medical needs.” One thing is clear, however. The prison
administration does not violate the Constitution every time a prison doctor or other official makes a
41

mistake in diagnosing or treating a prisoner. A prison official is deliberately indifferent when he knows
about but disregards an excessive risk to a prisoner’s health. Plaintiff must show that defendant acted
with reckless disregard toward the prisoner’s serious need by inaction or woefully inadequate action.
It is suggested that appointed counsel carefully read Estelle, Wilson v. Seiter, 501 U.S. 294,
111 S. Ct. 2321 (1991) and the cases listed below to obtain a “feel” for the approach the Seventh
Circuit and Northern District judges have taken in these cases. Estelle itself lists three types of cases
which probably cover the types of cases in which counsel is appointed to represent the prisoner: first,
where the prison doctor refused to treat the prisoner after inadequate care or no care had been
rendered by lower ranking staff, such as a medical technician; second, where prison guards intentionally
delayed or denied access to medical care; and third, where guards intentionally interfered with
treatment once prescribed.
It is also suggested that counsel approach this type of case like a medical negligence case with
the understanding that much more is required in an Eighth Amendment action (that is, a subjective state
of mind that indicates deliberate indifference). First, do research in medical textbooks for lawyers at
local law schools (John Marshall Law School has the necessary materials) or local medical schools to
learn the basic terminology and nature of care for the type of injury and treatment involved. Then have
a qualified physician 6/ review the medical records, the client and witness statements, depositions, etc.,
to determine if there has been, at the very least, a deviation from the accepted standard of care required
of physicians, hospitals, or other medical providers in the situation in which the client is involved.
If you can meet the “negligence” standard, then move to the deliberate indifference level.
Again, your expert and medical treatises may establish that the client’s condition was serious and the
treatment needed was obvious to any practitioner or even a lay person; hence, the failure to treat the
serious medical needs of the client was deliberate.
Decisions
(1)

Inmate Stated or Proved Claim

Wynn v. Southward, 251 F.3d 588 (7th Cir. 2001) (Allegations that inmate had suffered
bleeding, headaches, and disfigurement as a result of not having his dentures demonstrated that inmate
had serious medical need, supporting §1983 claims alleging that corrections officials violated his Eighth
Amendment rights through actions depriving him of his dentures.)
Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000) (Grant of summary judgment for defendants
reversed where inmate suffered ruptured appendix after prison medical staff repeatedly refused to take

6/

See PART I, SECTION 16: STATUTORY AUTHORITY FOR AWARDING ATTORNEYS ’ COSTS AND FEES .

42

him to a hospital. An inmate is not required to show that he was “literally ignored” by the staff, but
rather that the official knew of and disregarded an excessive risk to the inmate’s health. “If knowing
that a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and an
enema and sends him back to his cell, a jury could find deliberate indifference although the prisoner was
not simply ignored.”)
Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000) (Despite defense expert’s testimony that nurse
complied with applicable standard of care, there was an issue of material fact as to whether the
treatment provided for appendicitis was a substantial departure from accepted professional practice
where plaintiff was not taken to a hospital until several days after he suffered ruptured appendix.)

Ralston v. McGovern, 167 F.3d 1160 (7th Cir. 1999) (It “bordered on the barbarous” to
withhold doctor-prescribed pain-alleviating medication from a patient suffering from cancer where the
illness caused blistering which made it difficult for the prisoner to swallow food.)
Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) (Inmates were not required to call a medical
expert as witness in § 1983 action against prison guards arising from beatings and the failure to provide
pain medication within first forty-eight hours after the beatings; requiring threshold showing of
“objective” injury would confer immunity from claims of deliberate indifference on sadistic guards, as it
is possible to inflict substantial and prolonged pain without leaving any “objective” traces on body of
victim.)
(2)

Inmate Failed to State or Prove Claim

Sentmyer v. Kendall County, 220 F.3d 805 (7th Cir. 2000) (Guards’ failure to dispense
detainee’s medication for ear infection consistently on schedule did not amount to deliberate
indifference.)
Walker v. Peters , 233 F.3d 494 (7th Cir. 2000) (HIV positive prisoner who exhibited HIVrelated symptoms did not state a deliberate indifference claim against doctors who allegedly refused to
treat him. Prisoner’s refusal to undergo HIV test was fatal to his deliberate indifference claim.)
Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997) (Inmate who contracted tuberculosis claimed
that prison officials were deliberately indifferent to her medical needs when they allowed tuberculosis to
spread in prison. The court found that the defendants had implemented tuberculosis control procedures
recommended by the Center for Disease Control and the American Thoracic Society. Thus, the court
affirmed the lower court’s grant of summary judgment for the defendants.)
Gutierrez v. Peters , 111 F.3d 1364 (7th Cir. 1997) (Inmate’s infected cyst constituted a
“serious medical need.” However, the court held prison officials’ treatment of the plaintiff’s condition
43

did not constitute deliberate indifference. The court noted defendants prescribed antibiotics and sitz
baths to treat the plaintiff’s condition. Thus, the court affirmed the lower court’s judgment for the
defendants.)
Snipes v. DeTella, 95 F.3d 586 (7th Cir. 1996) (Physicians’ failure to anesthetize an inmate’s
toe before removing a toenail did not constitute cruel and unusual punishment. According to the court,
“What we have here is not deliberate indifference to a serious medical need, but a deliberate decision
by a doctor to treat a medical need in a particular manner.” Id. at 591. The court held it was a question
of tort law, rather than constitutional law.)
Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996) (Prisoner sued because he was asthmatic and
the prison ignored his medical needs by repeatedly housing him in cells with smoking prisoners. On
appeal from summary judgment for defendants, the court affirmed, holding the plaintiff’s condition was
not sufficiently serious to implicate Eighth Amendment issues.)
Illinois Department of Corrections Rules:
20 Ill. Admin. Code § 415.20 (1995): Definitions (Mental Health Professional).
20 Ill. Admin. Code § 415.30 (1997): Medical and Dental Examinations and Treatment.
20 Ill. Admin. Code § 415.60 (1995): Review of Placements in a Specialized Mental Health Setting.

21.

M ENTAL HEALTH CARE/ SUICIDE

To state a claim, plaintiffs must prove that officials were deliberately indifferent to the prisoner’s
risk of suicide. Plaintiff must also prove that the suicide was a foreseeable and an actual consequence
of officials’ deliberate indifference. As the cases below demonstrate, this is a very high burden to meet.
(1)

Inmate Stated or Proved Claim

Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001) (Allegations that mentally ill inmate
who had a history of mental illness and suicide attempts, had recently lost nearly one-third of his body
weight, written letters to his mother contemplating his death, written a last will and testament, told
guards that he planned to commit suicide, and covered his cell openings with toilet paper so that it was
difficult to see inside, stated claim that guards were aware of a substantial risk that inmate would
commit suicide, as required for Eighth Amendment claim by inmate's mother after he committed
suicide.)
(2)

Inmate Failed to State or Prove Claim

44

Jutzi-Johnson v. U.S.A., 263 F.3d 753 (7th Cir. 2001) (The estate of Robert Johnson, a
federal prisoner who hanged himself in his cell, brought suit for damages under Federal Tort Claims Act
for negligence in failing to identify him as suicide risk. Before his death, fellow prisoners repeatedly
reported Johnson’s symptoms – poor hygiene, self-mutilation, excessive sleep, extreme nervousness –
to prison personnel. To satisfy its burden, the estate had to prove that Johnson would not have
committed suicide had the staff acted responsibly and that his suicide was a foreseeable as well as an
actual consequence of the staff’s negligence. In this case, the court held, causation was not established.
Even if jail staff had sent Johnson to a psychologist, it was “sheer conjecture” that interview with
psychologist would have produced information to have enabled officials to infer that prisoner was a
suicide risk.)
Estate of Novack v. County of Wood, 226 F.3d 525 (7th Cir. 2000) (Prison officials must
take reasonable preventative steps when they are aware that there is a substantial risk that an inmate
may attempt suicide. Here, jail personnel were not substantially aware that deceased inmate posed a
high risk of suicide and there was no pattern of suicides to suggest that the City was aware that its
policies for treating mentally ill inmates were inadequate. Judge Williams dissented.)
Frake v. City of Chicago, 210 F.3d 779 (7th Cir. 2000) (City was not deliberately indifferent
to the needs of mentally ill pretrial detainees (even though city continued to place detainees in cells
containing horizontal bars) where there was no evidence that anyone had knowledge that detainee was
suicidal, detention facility used thorough screening process, and cells were checked regularly.)
Estate of Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996) (The rights of a pretrial detainee who
committed suicide were analyzed under the Fourteenth Amendment. In the instant case, the court held
prison medical officials were not deliberately indifferent to the serious medical needs of the deceased.
The plaintiff failed to show that the defendants were subjectively aware that the detainee would attempt
to commit suicide. Thus, the court granted the defendants’ motion for summary judgment.)

22.

ACCESS TO THE COURT

Introductory Comment
A prisoner will sometimes charge that he or she does not have adequate help in filing lawsuits,
that the prison has failed to provide access to the law library, that the law library is inadequate, that the
prisoner could not leave the segregation unit to go to the library, or that no inmate law clerk or civilian
paralegal came to the segregation unit to provide help. Under the Supreme Court’s initial leading
decision in this area, Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), relief
could often be obtained — a court would order that the system be improved. However, the Court in
Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996), severely limited the

45

Bounds decision. As a consequence, all “access to the court” cases, as well as decisions written prior
to Lewis, must be considered in light of Lewis.
In Lewis, the Court held that the right of access covers no more than the narrow right to
present a non-frivolous claim to the Court. Only when a prisoner can demonstrate that such a claim has
been frustrated or impeded by prison practices is the right of access violated. Stated differently, to
have constitutional standing to bring an action, the prisoner must demonstrate that the inadequacies in
the system caused him or her concrete injury, that is, for example, that the prisoner was unable to
comply with technical filing requirements or to bring an action at all due to the inadequacies in the
system.
Moreover, Lewis limits the application of the “inadequate access to the law theory” to cases
that involve either a direct appeal of a criminal conviction, a habeas corpus petition, or a civil rights
action challenging conditions of confinement.
The law is still very much developing after Lewis. A number of questions are still unanswered:
What degree of proof establishes that the claim that the prisoner was prevented from pursuing was a
“non-frivolous” claim? Can the requirement be satisfied by a prima facie showing or is there to be a
“trial within a trial?” If a system is truly bad, can there never be injunctive corrective relief if no prisoner
can show specific harm?
Prior to Lewis, Seventh Circuit law on this issue was not consistent, particularly when injunctive
relief was sought. Some of the following Seventh Circuit decisions, although issued prior to Lewis,
anticipated Lewis and can still be helpful.
Decisions
Shaw v. Murphy, 121 S. Ct. 1475 (2001) (Inmate law clerk brought § 1983 action for
injunctive and declaratory relief against state prison employees, alleging that his First Amendment rights,
right of access to the courts, and due process rights were violated when he was punished for sending a
letter containing legal advice to another inmate. Justice Thomas held that inmates do not possess a First
Amendment right to provide legal assistance to fellow inmates.)
U.S. v. Boyd, 208 F.3d 592, 593 (7th Cir. 2000) (Prisoner’s right of access to court was not
violated when defendant-prisoner was offered appointed counsel for appeal but chose selfrepresentation; because inmate chose to forgo access to counsel, right of access to law library was lost
as well. Cf. Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir. 2000) (incarcerated criminal
defendant who chooses to represent self has constitutional right to access law books or other tools to
assist in preparing defense.))

46

May v. Sheahan, 226 F.3d 876 (7th Cir. 2000) (Pretrial detainee sued county sheriff alleging
that prisoners at county hospital were not taken to court on assigned court dates and did not have
access to lawyers, legal materials, and visitors. Plaintiff’s allegation that he was detained longer than he
would have been if he had not missed a court date sufficiently alleged an injury under Lewis v. Casey.)
Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000) (Inmate who was banned from
the law library after he repeatedly filed grievances about inadequate library access stated a claim for
retaliation.)
Hoard v. Reddy, 175 F.3d 531 (7th Cir. 1999) (Inmate could not recover money damages
against prison officials who hindered his efforts to litigate a state court collateral attack on his
conviction. Under Heck v. Humphrey, 512 U.S. 477 (1994), a convicted person may not seek
damages on any theory that implies that his conviction was invalid without first getting the conviction set
aside. The inmate also could not obtain an injunction ordering the state court to re-open his postconviction proceeding.)
Walters v. Edgar, 163 F.3d 430 (7th Cir. 1999) (To establish standing, plaintiff asserting that
he was denied access to the courts must show that “the blockage prevented him from litigating a
nonfrivolous case.” Prisoner need not prove that he would have won his case had it not been for his
being denied access to court.)
Brooks v. Buscher, 62 F.3d 176, 182 (7th Cir. 1995) (Meaningful access was provided to
violent inmate restricted from law library because inmate was given access to library materials through
intermediaries.)
23.

TRANSFERS

Introductory Comment
Transfers from one prison to another within the Illinois Department of Corrections are within the
virtually unchallengeable discretion of the IDOC.7/ The Supreme Court has with increasing frequency
stated that the Due Process Clause is not applicable to most transfers. For example, see Meachum v.
Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Montanye v. Haymes, 427 U.S. 236,
96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976).
There are, of course, exceptions: transfers that retaliate for the exercise of a vested right,
transfers in response to a prisoner’s suit alleging a violation of civil rights, and transfers that put the

7/
Internal prison transfers, for example, from general population to segregation for disciplinary reasons, are
treated separately herein. See PART II, SECTION 25: DUE PROCESS.

47

prisoner at risk because of known, identified enemies at the transferee institution (although within limits
this issue can be resolved often at the administrative level of the IDOC).
Transfers to out-of-state prisons pursuant to agreement with those states and transfers of
mentally ill prisoners raise much more complex issues. The cases cited below touch on these issues and
also provide a good sample of the difficulties in attacking transfers.

Decisions
(1)

In General

Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) (Transfer of
state prisoner from Hawaii to California did not violate due process. A state creates a protected liberty
interest by placing substantive limitations on official discretion. Hawaii’s prison regulations placed no
such limitations on transfer decisions merely by establishing procedures. Procedures standing alone do
not create a substantive interest to which the individual has a legitimate claim of entitlement.)
Meachum v. Fano, 437 U.S. 215, 225 (1976) (There is no constitutional right to remain in or
be transferred to a correctional institution of the inmate’s choosing.)
United States v. Ross, 243 F.3d 375 (7th Cir. 2001) (Brief interruptions in state prison
confinement for the purpose of attending proceedings in federal court do not violate the Interstate
Agreement on Detainers, 18 U.S.C. § 922(g). The IAD was meant to protect prisoners against the
endless interruption of rehabilitation programs because of criminal proceedings in other jurisdictions.
Brief transfers do not hinder rehabilitation efforts.)
Zimmerman v. Tribble, 226 F.3d 568 (7th Cir. 2000) (Inmate who was transferred from
prison which had vocational training and substance abuse programs to one which did not have such
programs did not state a claim of deprivation of a liberty interest in violation of due process on ground
that if he successfully completed such programs, he would earn good time credits under Indiana law,
since even if given the opportunity, it was not inevitable that inmate would earn good time credits.)
Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (Prisoners argued that their transfer to a
more restrictive prison regime constituted an atypical or significant hardship. But it takes more than
limited movement within the prison system to constitute a deprivation of liberty under Sandin.)
Ramirez v. Turner, 991 F.2d 351 (7th Cir. 1993) (Plaintiff’s transfer to Marion Penitentiary
did not violate due process. Plaintiff did state a prima facie bias case from hearing officer’s pre-hearing
statements to plaintiff.)

48

(2)

Retaliation

Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000) (While transfer by itself does not
implicate constitutional rights, retaliatory transfer could give rise to a claim. Here, however, prisoner
pled himself out of court – the transfers took place prior to grievances.)
Brookins v. Kolb, 990 F.2d 308 (7th Cir. 1993) (The court found no retaliation against
prisoner by defendants in transferring him; rather, the transfer was based on prisoner’s violation of
established prison policy.)
Shango v. Jurich, 681 F.2d 1091, 1098 (7th Cir. 1988) (Prison officials have discretion to
transfer prisoners for any reason except in retaliation for the exercise of a constitutionally protected
right.)
Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) (Inmate stated a claim for retaliatory transfer
where his complaint set forth a chronology of events demonstrating that his transfer immediately
followed his filing of four lawsuits against prison officials, permitting an inference of retaliatory animus.)
Ustrak v. Fairman, 781 F.2d 573 (7th Cir. 1986) (Evidence supported finding that warden’s
refusal to transfer inmate to medium security was in retaliation for inmate’s letters complaining of racial
discrimination.)
(3)

Out-of-State Transfer

Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) (State prisoners who wish to challenge
transfers to out-of-state prisons must sue under 28 U.S.C. § 1983 rather than bringing a § 2255 action.
Habeas corpus generally cannot be used to challenge transfer between prisons. See also Falcon v.
United States Bureau of Prisons, 52 F.3d 137 (7th Cir. 1995.))
Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) (Thirteenth Amendment challenge to
Wisconsin statute authorizing prison authorities to enter into contracts with private prisons in other
states was deemed “thoroughly frivolous.” No provision of the Constitution is violated by the decision
of a state to confine a convicted prisoner in a prison owned by a private firm rather than by
government.)
Froehlich v. State Dep’t of Corrections , 196 F.3d 800 (7th Cir. 1999) (Transfer of minor
children’s incarcerated mother to out-of-state prison did not violate due process rights of minor
children; children had no constitutional right to insist that their mother be imprisoned at a convenient
location.)

49

Sayles v. Thompson, 75 Ill. Dec. 446, 457 N.E.2d 440 (Ill. 1983) (Out-of-state transfers of
prisoners pursuant to the Interstate Corrections Compact do not violate the transportation clause of the
Illinois Constitution, ILL. CONST . art. I, § 11.)
Illinois Department of Corrections Rules:
20 Ill. Admin. Code §§ 503.100-.160:

24.

Transfers.

VISITING

Introductory Comment
As with transfers, visits to prisoners may be strictly curtailed based on the reluctance of courts
to interfere with the administration of prisons and the respect given the need for security. Although the
Supreme Court has not yet passed on the question of due process and visits, most commentators
believe that the Court will not interfere with the discretion of prison administrators on this issue.
The Seventh Circuit has held that visiting privileges do not implicate a constitutionally protected
liberty interest. Even if a state law creates a liberty interest in visits from family or friends, it will be
protected only so far as the deprivation of visits imposes an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” See Sandin v. Connor, 515 U.S. 472, 115 S.
Ct. 2293 (1995). Because denial of visiting privileges is well within the terms of confinement ordinarily
contemplated by a prison sentence, most restrictions on visits do not inflict a significant or atypical
hardship. Consequently, a prison official can revoke visiting privileges without a due process hearing.
See Billups v. Galassi, 202 F.3d 272 (7th Cir. 2000).
The following cases suggest that prison authorities may place significant limitations on visitors.
However, certain decisions also suggest that state laws and regulations may create a liberty interest that
could serve as the basis for legal action where visits are arbitrarily denied or abridged.
Decisions
Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984) (Due
process does not require contact visitation--even for low-risk pre-trial detainees.)
Burgess v. Lowery, 201 F.3d 942 (7th Cir. 2000) (Family of death row inmates brought suit
for damages and injunctive relief against prison officials who required them to submit to a strip search as
a condition of visitation. Illinois prison regulations authorize strip searches only if the visitor consents
and there is reasonable suspicion that he is carrying contraband. See 20 Ill. Admin. Code §
501.220(a)(3). Defendants were not immune from suit; the right of prisoners’ family members to be
50

free from strip searches in the absence of reasonable suspicion that they carry contraband was clearly
established at the time the conduct occurred.)
Abu-Jamal v. Price, 154 F.3d 128, 136 (3d Cir. 1998) (Prison official justified in limiting
visitation because prison had legitimate reason to suspect that visitation privileges were being abused so
that inmate could receive more than the permitted number of social visits.)
Bazzetta v. McGinnis, 124 F.3d 774 (6th Cir. 1997) (Prison officials justified in limiting
"contact visits" to family and limited list of nonfamily individuals because of concerns regarding security.)

Illinois Department of Corrections Rules:
20 Ill. Admin. Code § 525.20:
20 Ill. Admin. Code § 525.60:
10.

Visiting Privileges.
Restriction of Visitors.

FREEDOM OF RELIGION

Introductory Comment
The leading Supreme Court opinion, O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct.
1400, 96 L. Ed. 2d 282 (1987), severely limits prisoners’ actions for claimed First Amendment
violations of their freedom to practice the religion of their choice. The case demonstrates that where
actions brought by “free-world” plaintiffs would succeed (such plaintiffs being entitled to strict judicial
scrutiny of government action), these same actions are judged differently in a prison setting, where
issues of security, as in many other areas, cut across such rights. As a general rule, a prison is required
to make "only reasonable efforts" to provide "some opportunity" for religious practice.
In Shabazz, Muslim inmates in a minimum-security classification requested permission to attend
services held in another portion of the prison. Plaintiffs claimed that these services were essential to the
practice of their religion. The good faith of plaintiffs was not disputed, but the request was denied on the
basis of security. The Court upheld the denial, holding that “[w]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.” Id. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 n.2 (1987)). To determine whether
there was such a relationship, the trial court should consider (1) whether there is a logical connection
between the restriction and the governmental interests invoked to justify it; (2) the availability of
alternative means to exercise the restricted right; (3) the impact that accommodation of the right might
have on other inmates, on prison personnel, and on allocation of prison resources generally; and (4)
whether there are “obvious, easy alternatives” to the policy that could be adopted at de minimis cost.

51

The decisions discussed below demonstrate the heavy burden Shabazz places on a prisonerplaintiff in these actions and the heavy discovery appointed counsel must undertake to satisfy the
Shabazz test.
In 1993, the Religious Freedom Restoration Act in essence would have overruled Shabazz.
See 42 U.S.C.A. § 2000bb-1 (West 1994). The Act provides in part:
Government shall not substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability, except as provided in subsection (b)
of this section.
Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person — (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling interest.
Id. at §§ 2000bb-1(a)-(b).
The Act further provided that a person whose rights have been burdened can sue in federal
court and, when successful, can obtain appropriate relief, including damages, an injunction, or both. Id.
at § 2000bb-1(c). While the Act did not remove all obstacles to a prisoner’s religious rights claim
(security has been constructed as a compelling government interest), it did place the burden on the
government to justify the restriction.
In 1997, however, the Supreme Court held the Act unconstitutional, ruling that the Act was
outside of Congress’ power granted by Section 5 of the Fourteenth Amendment. See City of Boerne
v. Flores, 117 S. Ct. 2157, 138 L. Ed. 2d 624, 65 U.S.L.W. 4612 (1997). It would now appear that
for state prisoners, the law on religious freedom reverts to Shabazz. See Sasnett v. Litscher, 197 F.3d
290 (7th Cir. 1999) (discussing the First Amendment rights of prisoners post-City of Boerne). The Act
may still be constitutional and viable for federal prisoners.
The following decisions must be carefully considered in light of the foregoing.
Decisions
Hakim v. Hicks, 223 F.3d 1244, 1249 (11th Cir. 2000) (The free exercise rights of an inmate
who had legally changed his name to a Muslim name were violated by prison policy refusing to follow
dual-name policy for identification card and related services.)

52

Sasnett v. Litscher, 197 F.3d 290 (7th Cir. 1999) (State prison regulation that allowed
inmate to wear cross only when attached to rosary discriminated, without justification, against inmates
of Protestant faith and thus violated First Amendment free exercise principles.)
Rapier v. Harris, 172 F.3d 999, 1006 & n.4 (7th Cir. 1999) (No free exercise violation
when officials failed to provide pork-free food at 3 of 180 meals served to Muslim prisoner because
deprivation was minimal.)
Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) (Inmate brought § 1983 action against
corrections officials, alleging that requiring him to attend religion-based narcotics rehabilitation meetings
violated his constitutional rights. The court held that a prison violates the establishment clause of the first
amendment by making benefits such as parole contingent on receiving religious instruction and
professing religious faith.)
Harris v. Chapman, 97 F.3d 499, 503 (11th Cir. 1996) (No free exercise violation of
Rastafarian inmate's rights by "close custody" facility's hair length rule; rule was warranted by security
interests in escapee identification.)
Richards v. White, 957 F.2d 471 (7th Cir. 1992) (Plaintiff sought one-half hour per day of
silence as required by his religion. The court found that this was unreasonable given the legitimate
security and management concerns of the prison.)
Al-Alamin v. Gramley, 926 F.2d 680 (7th Cir. 1991) (Muslim inmates brought a § 1983 suit
against prison officials alleging deprivation of their religious freedom under the First Amendment. The
district court awarded plaintiffs one dollar in damages and ordered the Director of the IDOC to submit
statewide written guidelines concerning the accommodation of Muslim inmates to practice their faith.
The appellate court reversed, stating that the prison officials satisfied their constitutional responsibility
and made reasonable efforts to afford the plaintiffs an opportunity to practice their religion.)
Young v. Lane, 922 F.2d 370 (7th Cir. 1991) (The prison regulation regarding wearing of
yarmulkes, and other religious practices, was reasonably related to a legitimate penological interests.
Inmates also challenged the State’s refusal to reimburse travel expenses to rabbis, while other clergy
received travel reimbursement. The court stated that the alleged violation was not so “clearly
established” at the time of the conduct so as to remove the official’s qualified immunity. Further, the
court said that the district court did not have jurisdiction to order the state to promulgate statewide
regulations regarding religious practices.)
Hunafa v. Murphy, 907 F.2d 46 (7th Cir. 1990) (Summary judgment was reversed and the
case remanded on the issue of the free exercise rights of a Muslim inmate in disciplinary segregation
who was served meals containing pork. The determination of immunity of prison officials did not have

53

to be made until more facts were presented because plaintiff had a claim for an injunction as well as for
damages.)
Johnson-Bey v. Lane , 863 F.2d 1308 (7th Cir. 1988) (In this case, the prison had two
chaplains — one full-time for Protestant services and one full-time for Catholic services (after the case
had gone to trial, the prison hired one part-time for Islamic services, but not one for Moorish Islamic
services). The court held that, although prisons may employ chaplains, they need not employ ones of
every religion of the prisoners.)

Illinois Department of Corrections Rules:
20 Ill. Admin. Code §§ 425.10-.120: Chaplaincy Services and Practices.
26.

DUE PROCESS

Introductory Comment
The concept of due process, usually procedural due process under the Fourteenth Amendment
to the Constitution, arises in several contexts in prison litigation. This section will separate these
categories as follows: (1) parole, commutation, and work release, (2) disciplinary proceedings, (3)
transfers to mental health institutions, and (4) forced administration of medication.
(1)

Parole Eligibility and Revocation, Pardons/Commutation, and Work Release

Decisions
Ohio Parole Authority v. Woodard, 523 U.S. 272 (1998) (State prisoner under sentence of
death filed suit under § 1983, alleging that Ohio's clemency process violated his Fourteenth Amendment
due process right. The Court held that some minimal procedural safeguards may apply to clemency
proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a
state official flipped a coin to determine whether to grant clemency. The Due Process Clause is not
violated, however, where clemency and pardon procedures do no more than confirm that the clemency
and pardon power is committed to the authority of the executive. Opportunities for early release, such
as parole or pardon, constitute a property or liberty interest only if the state has made a promise.)

Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (Life sentenced prisoner
brought suit against Connecticut Board of Pardons seeking declaratory judgment that Board’s failure to
54

provide him with written statement of reasons for denying commutation violated his rights under the due
process clause. The Supreme Court held that pardon and commutation decisions are rarely, if ever,
appropriate subjects for judicial review. The power vested in the Board of Pardons to commute
sentences conferred no rights on life prisoners beyond the right to seek commutation. A constitutional
entitlement to commutation is not created merely because a discretionary privilege has been granted in
the past.)
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) (Prisoners brought action
against Nebraska State Board of Parole alleging due process violations in the Board’s consideration of
prisoners’ suitability for parole. There is no constitutional right of a convicted person to be released
before the expiration of a valid sentence. A state may establish a parole system, but it has no duty to
do so.)
Morrisey v. Brewer, 92 S. Ct. 2593 (1972) (Parole revocation determination must meet
certain due process standards.)
Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001) (Freedom from confinement
is not necessarily a form of “liberty” under the due process clause. “A judgment of conviction
extinguishes natural liberty for its full length . . ..Opportunities for early release, such as parole or
pardon, constitute either property interests or a form of synthetic liberty, and then only if the state has
made a promise. Unilateral expectations and hopes for early release do not constitute property, which
depends on a legitimate claim of entitlement.”)
Henderson v. United States Parole Comm’n, 13 F.3d 1073 (7th Cir. 1994) (Federal
prisoner’s writ of habeas corpus was denied. The court decided that the hearing conducted by the
disciplinary hearing officer did not violate the prisoner’s due process rights under the Fifth Amendment
because the prisoner was given advanced written notice of the charges, the opportunity to call
witnesses, and a written statement by the fact-finder of the evidence relied on and the reasons for the
disciplinary action.)
DeTomaso v. McGinnis, 970 F.2d 211 (7th Cir. 1992) (Illinois regulations setting out
eligibility requirements for an inmate to be entitled to work release do not create a liberty or property
interest in work release for an inmate who meets the requirements; prison officials have discretion to
choose among eligible inmates.)
Joihner v. McEvers , 898 F.2d 569 (7th Cir. 1990) (The court affirmed district court’s
holding that due process was not violated when the prison refused to transfer the plaintiff to a requested
work camp because there was no protectable liberty interest. The state statutes and regulations
contained no mandatory language and did not limit defendants’ discretion in deciding which eligible
prisoners would be assigned to work camp.)

55

(2)

Disciplinary Proceedings

Introductory Comment
Prisoners are entitled to certain procedural protections before they are deprived of a
constitutionally protected interest in life, liberty, or property. A prisoner who has been deprived of a
protected interest in the course of a disciplinary proceeding without the requisite procedural protections
may bring a due process challenge in federal district court.
It may be helpful to briefly review the nature of disciplinary proceedings. In the typical case, a
prisoner receives a disciplinary report (“ticket”) for violations of IDOC rules and regulations. The
ticket could cover conduct ranging from minor violations, such as stealing a piece of bread, to serious
incidents, such as striking an officer. An adjustment committee within the prison holds a hearing on the
ticket. The warden appoints all of the committee members, who can include a high-ranking officer, such
as a captain or a lieutenant, a correctional officer, a counselor, and in rare incidents, even a civilian.
The hearing, by IDOC rules and case law, should have at least minimal procedural due process. See 20
Ill. Admin. Code §§ 504.30-504.150 (West Supp. 2001).
If the adjustment committee finds the prisoner guilty, it will recommend punishment which could
range from loss of privileges, to loss of good time, transfer to the prison’s segregation unit, or even
transfer to another facility. The matter then goes to the warden for consideration. The warden may
exonerate the prisoner, accept the committee’s recommendation on guilt and punishment, or modify
guilt and punishment. If some form of punishment remains after the warden “signs off,” the prisoner can
then file a grievance with the IDOC’s Administrative Review Board. See 20 Ill. Admin. Code §
504.810-504.870 (2001).
When a prisoner contests the results of a disciplinary hearing in federal district court, the legal
theory upon which the action is based will vary, depending upon the nature of the deprivation. For
example, an action challenging conditions of the disciplinary confinement, such as the loss of a job or
educational opportunities, may be brought under 42 U.S.C. § 1983. An action challenging the duration
or fact of disciplinary confinement, however, must be brought under the applicable habeas corpus
statute. 8/
The Supreme Court has imposed a number of obstacles to a prisoner’s ability to challenge an
adverse disciplinary action. This section looks at two pivotal Supreme Court cases that provide the
background against which you measure your client’s due process claim. The first case, Sandin v.
Connor, will help you decide whether the disciplinary action taken against your client is of the type that

8/
28 U.S.C. § 2254 authorizes federal courts to grant collateral relief to state prisoners "in custody in violation
of the Constitution or laws.” By contrast, 28 U.S.C. § 2255, known as “Motion to Vacate Sentence,” is the habeas
corpus statute that applies to prisoners in federal custody.

56

entitles the client to some sort of due process. The second case, Edwards v. Balisok, provides that
even when the Sandin test is met, certain § 1983 claims must fail if they will improperly invalidate the
result of a disciplinary hearing. Finally, this section discusses the types of procedural safeguards that
are required before certain disciplinary sanctions can be imposed.
(a) Sandin v. Connor: Is Process Due?
The “Atypical and Significant Hardship” Test
In Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the
prisoner-plaintiff was sentenced to thirty days punitive segregation for interfering with a strip search. He
claimed that prison officials refused to let him call witnesses at his disciplinary hearing. He sued under §
1983, claiming that he had been denied procedural due process. The Supreme Court ultimately
affirmed the trial court’s dismissal of his complaint. Writing for the Court, Chief Justice Rehnquist
initially criticized and abandoned the earlier state law “liberty” interest analysis used to determine if
procedural violations were actionable because of the vagaries of state law on a state-by-state basis and
because numerous rulings had allowed actions for very insignificant violations. The Court then ruled
that henceforth, liberty interests that justify due process protection would exist only when the
deprivation or disciplinary sanction exceeded the prisoner’s sentence in an unexpected manner (e.g.,
loss of “good time” that lengthens the sentence or impacts negatively on the chances for parole) or
when the punishment imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 484.
The Court then ruled that the sanction of punitive segregation, as alleged, did not meet this test.
Prisoners generally are subject to a wide variety of discipline, given the normal range of misconduct that
occurs in prison. The punitive segregation did not present a significant departure from the basic
conditions of his indeterminate sentence: the plaintiff was confined to his segregation cell for twentythree hours a day, while prisoners in general population were confined to their cells for twelve to sixteen
hours a day. Moreover, the punishment was not certain to affect the prisoner’s chance for parole,
especially since the warden later expunged the underlying incident from the prisoner’s record.
Many cases have followed Sandin which suggest that the Sandin burden is not insurmountable.
Careful investigation of the conditions of confinement in segregation must be pursued. It is essential that
a comparison be made with the conditions in general population to determine if segregation in the
particular prison at a particular time imposed an atypical and significant hardship in comparison to life in
general population.
Decisions
Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001) (Prisoner brought a § 2254 habeas
action claiming that Indiana prison officials violated the due process clause when it placed him in
segregation and reduced his credit earning class. The court considered whether a prisoner has a liberty
57

interest in credits that have not yet been awarded. To answer this question the trial court must
determine whether the state has created a liberty interest in a particular credit-earning class. Here,
Indiana regulations provided that prisoners are eligible for good-time credit so long as they do not
violate certain rules. These regulations curtailed administrators’ discretion. It followed that Indiana
must afford due process before reducing a prisoner’s credit-earning class. What process is due? Less
than that prescribed in Wolff for parole revocation decisions.)
Webb v. Anderson, 224 F.3d 649, 650 n.1 (7th Cir. 2000) (In this circuit, the loss of good
time credits will support a claim for the deprivation of due process.)
Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (Solitary confinement of 8 years with no
prospect of immediate release, lack of contact with family, and deprivation of education and vocational
activities during confinement was sufficiently "atypical and significant" in hardship to create protected
liberty interest implicating procedural due process guarantees. Cf. Wagner v. Hanks, 128 F.3d 1173
(7th Cir. 1997)).
Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997) (The court affirmed summary judgment
against a Stateville prisoner challenging the due process of a hearing that resulted in segregation time at
Stateville Correctional Center. The prisoner could not show that conditions of confinement were
significantly different from that which a general population prisoner might expect.)
Wagner v. Hanks, 128 F.3d 1173 (7th Cir. 1997) (State prison inmate sought federal habeas
corpus, alleging that inmate's placement in disciplinary segregation violated due process. The Court held
that inmate's claim was to be evaluated by comparing conditions of inmate's confinement in segregation
with conditions of segregation in state's entire prison system, not just inmate's individual prison. The
Court noted the difficulty that any prisoner would have in meeting this standard, and observed that since
Sandin, no court of appeals has found a disciplinary confinement to be a deprivation of liberty.)
Williams v. Ramos, 71 F.3d 1246, 1249-50 (7th Cir. 1995) (Conditions in segregation at
Stateville do not greatly exceed what one could expect from prison life generally; thus plaintiff had no
liberty interest in avoiding confinement there.)
Black v. Lane , 22 F.3d 1395 (7th Cir. 1994) (Prison officials violated inmate’s procedural
and substantive due process rights when they repeatedly filed false and unjustified disciplinary charges
in retaliation for his successful pursuit of administrative complaints.)
Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991) (A regulation allowing prison officials
discretion to act for any reason except discipline does not establish a liberty or property interest for the
purpose of the due process clause. Plaintiff, who was transferred from a prison job paying $100 per
month, to one paying $30 per month, followed the grievance procedure and lost before the Institutional

58

Inquiry Board. Because this action was not disciplinary, he had no liberty or property interest in
keeping a better paying job.)
DeTomaso v. McGinnis, 970 F.2d 211 (7th Cir. 1992) (The court found frivolous, as a
matter of law, plaintiff’s claim that he was denied work release while others with more extensive prison
records were granted work release. Reviewing Joihner v. McEvers, 898 F.2d 569 (7th Cir. 1990), the
court reiterated that the opportunity to be assigned to a work camp creates neither a liberty nor a
property interest.)
(b) Edwards v. Balisok: Would Lawsuit Improperly Invalidate Conviction?
Even when the Sandin test is met, the Supreme Court has imposed other obstacles to due
process actions contesting the validity of a disciplinary hearing. Some background information is in
order. In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), defendant
had been convicted of voluntary manslaughter in state court. He filed a § 1983 action against two
prosecutors and a state investigator, alleging that his conviction was the result of altered and falsified
evidence. His appeals to the Indiana Supreme Court and collateral attacks on his conviction were
denied. The Supreme Court held that the § 1983 complaint was properly dismissed. A claim for
damages for an allegedly unconstitutional conviction, imprisonment, or for other actions whose
unlawfulness would render a conviction or sentence suspect, is not cognizable under § 1983 unless the
plaintiff proves that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal, or questioned by a federal court’s issuance of a
habeas corpus writ.
In Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), the Court
extended the Heck principle to § 1983 damage claims challenging the loss of good time credits in
prison disciplinary actions. The plaintiff-prisoner at a state penitentiary received a ticket for several
internal prison rules violations. The hearing committee sentenced him to ten days in segregation, ten
days in “isolation,” and thirty days loss of good time. Plaintiff filed a § 1983 claim, alleging that he was
denied his procedural due process because the hearing committee denied him the opportunity to
present exculpatory witness statements. The Supreme Court ruled that the principle of Heck was
controlling. Although the plaintiff did not seek restoration of his good time credits, a ruling in plaintiff’s
favor in the § 1983 action that the disciplinary proceedings were tainted would assume that the result of
the hearing (loss of good time credits) was necessarily invalid. Therefore, the Court held, the § 1983
claim was properly dismissed.
Note that the Balisok decision does not bar all § 1983 challenges to disciplinary sanctions. In
DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000), the Seventh Circuit made it clear that Heck and
Balisok do not necessarily bar a prisoner’s challenge under § 1983 to a disciplinary sanction that does
not affect the overall length of confinement (e.g. loss of prison job, placement in segregation, etc.). In

59

other words, a prisoner may bring a suit for damages under § 1983 if federal habeas is unavailable to
challenge that conviction.
Decisions
Spencer v. Kemma, 523 U.S. 1 (1998) (Five justices in concurring and dissenting opinions
attempted to clarify their positions regarding the scope of the Heck rule, suggesting that if a plaintiff has
no recourse to habeas corpus, he may not be barred from bringing a § 1983 action.)
DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (A prisoner alleged that officer-defendants
filed false disciplinary charges and fired him from his prison job because of his race. Since plaintiff did
not challenge the fact or duration of his confinement, but only a condition of his confinement, he could
not pursue a habeas action. The Seventh Circuit held that plaintiff could bring an equal protection claim
for loss of his job, even though the underlying disciplinary sanction was not overturned or invalidated.
Heck and Balisok do not necessarily apply to a disciplinary sanction that does not affect the length of
confinement. The court relied on Spencer v. Kemma, 523 U.S. 1 (1998) for the proposition that a §
1983 action must be available to challenge constitutional wrongs where federal habeas is unavailable.)
Johnson v. Litscher, 260 F.3d 826 (7th Cir. 2001) (Heck and Edwards did not bar
prisoner’s claim that prison officials retaliated against him by imposing extra segregation time and
transferring him to maximum security prison.)
Moran v. Sondalle, 218 F.3d (7th Cir. 2000) (Any decision that determines the fact or
duration of state custody may (and usually must) be challenged under 28 U.S.C. § 2254. But only the
change in credit-earning class may be challenged under § 2254. Disciplinary segregation –which
challenges the severity rather than the duration of custody – must be challenged under § 1983 in the
unusual circumstances when it can be challenged at all.)
Carr v. O’Leary, 167 F.3d 1124 (7th Cir. 1999) (Prisoner brought suit contesting disciplinary
sanction imposing loss of six-months good time. After filing suit, plaintiff was released from prison. The
court held that the sanction was not a bar to a § 1983 suit, even though the suit called into question the
validity of the sanction. Because plaintiff was released from prison after the suit was filed, he could no
longer bring a habeas corpus proceeding. A prisoner who cannot challenge the validity of a sanction by
either appeal or post-conviction procedure can do so by bringing a civil rights suit for damages.)
Lusz v. Scott, 126 F.3d 1018 (7th Cir. 1997) (Summary judgment affirmed where prisoner’s
attack on disciplinary hearing implied the invalidity of adjustment committee sentence. However, the
court suggested that the claim might have been actionable if prisoner had challenged only procedural
due process for denial of his request for a written statement of reasons for the conviction.)
(c) The Procedural Rules Governing Disciplinary Hearings &
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the “Some Evidence” Standard of Review
Prison disciplinary hearings must meet the following requirements to satisfy the Due Process
Clause: (1) written notice of the charge against the prisoner, given at least twenty-four hours prior to the
hearing; (2) the right to appear in person before an impartial hearing body; (3) the right to call witnesses
and to present documentary evidence, when to do so will not unduly jeopardize institutional safety or
correctional goals; (4) a written statement of reasons for the disciplinary action taken. See Wolff v.
McDonnell, 418 U.S. 539 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). Due process
requires not only that Wolff be satisfied, but also that the disciplinary decision be supported by “some
evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
The majority of federal court cases arising out of prison disciplinary proceedings concern loss
of good time credits. The Supreme Court has held that good time credits must not be taken away
without the minimal safeguards of due process, as set forth above in Wolff. See Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974)).
The decision of a disciplinary board to revoke an inmate’s good time credit must be supported
by "some evidence." Hill, 472 U.S. at 455. This is a “lenient standard” which requires “no more than a
modicum of evidence.” Webb v. Anderson, 224 F.3d 649, 651 (7th Cir. 2000). In ascertaining
whether this standard has been met, courts are not required to examine the entire record, or
independently assess credibility, but rather to determine whether the decision has some factual basis.
Decisions
United States v. Gouveia, 467 U.S. 180, 185 n. 1 (1984) ("[I]nmates have no right to
retained or appointed counsel at prison disciplinary proceedings.")
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (If a prisoner
elects to remain silent at his prison disciplinary hearing, that silence may be used against him. A prison
disciplinary hearing is civil in nature and therefore the Fifth Amendment does not apply.)
White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001) (Prison conduct committee
stripped plaintiff of 120 days good-time for dealing drugs. Prisoner brought a § 2254 action claiming
that the prison committee denied him due process of law. The court first held that a prison disciplinary
board is not a "court" whose decision is entitled to deferential collateral review under Antiterrorism and
Effective Death Penalty Act, disapproving language in Evans v. McBride, 94 F.3d 1062, Sweeney v.
Parke, 113 F.3d 716, and Gaither v. Anderson, 236 F.3d 817, so that § 2254(d) did not bar plaintiff
from brining suit. In this case, however, there was no due process violation. Ex parte communications
between the officer who prepared plaintiff’s disciplinary report and the members of the disciplinary
committee did not constitute a violation of due process rights. If the board were a “court,” then ex
61

parte communications would be improper, but non-record discussions between agency staff members
are allowable.)
Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) (A federal prisoner and a state prisoner
challenged the imposition of prison disciplinary measures resulting in the loss of good time credit. If a
case is properly filed as an action under 28 U.S.C. §§ 2241, 2254, or 2255, it is not a “civil action” to
which the PLRA applies. State prisoners who challenge the results of prison disciplinary proceedings
which affect the length of their sentence must proceed under 28 U.S.C. § 2254, not 28 U.S.C. § 2241
or 28 U.S.C. § 1983.)
McPherson v. McBride , 188 F.3d 784 (7th Cir. 1999) (Plaintiff who lost 90 days earned
good time credit brought habeas corpus action claiming violation of due process. The “some evidence”
standard is less exacting than preponderance of the evidence standard, requiring only that decision not
be arbitrary or without support in the record. Here, the prison disciplinary board's decision finding
inmate guilty of violating rule forbidding sexual acts between inmates did not violate due process since it
was supported by officer's incident report that described alleged infraction in sufficient detail.)
Whitlock v. Johnson, 153 F.3d 380 (7th Cir. 1998) (Prisoners faced with revocation of good
time credits have a qualified due process right to call witnesses in their defense. Prison’s policy of
interviewing requested witnesses and summarizing their testimony in an unsworn report did not conform
to the requirements of due process. Prison should instead adopt a case-by-case approach to determine
whether a witness will be permitted to testify. District court could not, however, order defendant to
review past hearings at which the unconstitutional witness policy may have played a role in the
revocation of good time credits. Unlike the prospective part of the court’s injunctive order, an
injunction to restore revoked good-time credits may only be sought in habeas corpus proceedings.)
Meeks v. McBride , 81 F.3d 717 (7th Cir. 1996) (There is no double jeopardy in the context
of prisoner disciplinary hearings. An acquittal in an earlier prison disciplinary hearing is no bar to a
subsequent hearing to consider the very same charge.)
Henderson v. U.S. Parole Com'n, 13 F.3d 1073 (7th Cir. 1994) (In context of disciplinary
proceeding, prisoners do not possess Sixth Amendment rights to confront and cross-examine
witnesses; additionally, there is no due process right to be informed of identity of confidential
informants.)
Row v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994) (The court held that the prison’s policy of
denying prisoners the right to raise self-defense as a complete defense in a disciplinary hearing did not
violate substantive or procedural due process. The policy purportedly advanced prison security by
discouraging all physical violence among inmates.)

62

Abdul-Wadood v. Duckworth, 860 F.2d 280 (7th Cir. 1988) (An Indiana prisoner’s due
process right was not violated by a prison official’s denial of a lay advocate at his administrative
classification hearing.)
(3)

Mentally Ill Prisoner Transfers

Introductory Comment
The transfer of prisoners to other institutions, such as a mental hospital, raises due process
questions different from the disciplinary proceedings discussed above. The leading Supreme Court
decision is Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). In Vitek, the
prisoner was transferred from the prison to a mental hospital pursuant to a Nebraska state statute.
Under the statute, prior to any transfer, there must be a finding by a designated physician or
psychologist that the prisoner could not receive the proper level of care in the current prison
environment. The prisoner attacked the move on procedural due process grounds. The district court
declared the statute unconstitutional as applied to the prisoner. The court cited the lack of adequate
notice to the prisoner, the lack of an adversarial hearing, and the lack of appointed counsel as the
grounds for its decision.
In affirming the bulk of the district court’s decision, the Supreme Court agreed that the transfer
implicated the Due Process Clause of the Fourteenth Amendment. The Court also agreed that notice
and an adversarial hearing were essential for due process; however, the Court balked, in the person of
Justice Powell, as to whether the prisoner was automatically entitled to the appointment of a licensed
attorney, and on this point the district court decision was modified.
Decisions
Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990) (The
Due Process Clause permits the State to treat a prisoner who has a serious mental illness with
antipsychotic drugs against his will, if he is dangerous to himself or others and the treatment is in his
medical interest. Further, the Due Process Clause requires neither a judicial hearing nor representation
by counsel before the State may treat with antipsychotic drugs.)
Zinermon v. Burch, 494 U.S. 113, 100 S. Ct. 975, 108 L. Ed. 2d 100 (1990) (A mental
patient stated claims under § 1983 for violation of his procedural due process rights. Parratt v. Taylor,
451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984) did not preclude his claim because
(1) pre-deprivation procedural safeguards could have prevented the deprivation of liberty, (2) the
deprivation was predictable and foreseeable, and (3) because the State delegated power to deprive
mental patients of their liberty and the duty to initiate procedural safeguards against unlawful
confinement, the defendant-petitioners’ conduct was not random or unauthorized under Parratt and
Hudson.)
63

(4)

Forced Administration of Medication

The forced administration of psychotropic drugs may also raise due process questions. In
Illinois, if an inmate is in need of forced medication, the prison medical staff must follow the guidelines in
Ill. Admin. Code 20 § 415.70 (2000).
Decisions
Washington v. Harper, 494 U.S. 210 (1990) (Mentally ill state prisoner filed civil rights
action challenging prison policy that authorized his treatment with antipsychotic drugs against his will
without judicial hearing. The Court held that treatment of a prisoner against his will did not violate
substantive due process where prisoner was found to be dangerous to himself or others and treatment
was in prisoner's medical interest. Review by administrative panel (as opposed to judicial decision
maker) comported with requirements of procedural due process.)
Fuller v. Dillon, 236 F.3d 876 (7th Cir. 2001) (Prison inmate who had been given
psychotropic medication against his will brought § 1983 action against prison officials and medical
personnel, alleging a violation of his due process rights. Given prisoner’s serious mental illness and in
light of the Supreme Court’s decision in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108
L.Ed.2d 178 (1990), defendants could reasonably have believed that involuntary administration of
medication did not violate inmate's due process rights.
Sullivan v. Flannigan, 8 F.3d 591 (7th Cir. 1993) (Prisoner was forced to take mind altering
drugs against his will for five years and brought suit arguing that he had a due process right to stop
taking the drugs long enough to show that he did not need them. The court held that defendants were
entitled to qualified immunity for pre-1990 (before Washington v. Harper, 494 U.S. 210 (1990))
treatment of the prisoner. The court also held that Illinois’ post-Harper Rule, 20 Ill. Admin. Code §
415.70, was proper as it required the same threshold showing to medicate an inmate as Harper, and its
review procedure, consisting of a two-person “treatment review committee,” afforded the inmate similar
protection. The twenty-four hour drug free period in Harper does not apply to inmates like the plaintiff
who were already on medication that does not wear off in one day; rather, the drug free period was
significant only for inmates challenging forced drugs for the first time, an issue not before the court.)
Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992) (A parolee has a constitutionally-based
liberty interest in not being subjected to psychotropic drugs as a condition of his parole, except where
there is a determination of medical appropriateness. Defendants’ procedure, whereby the individual
parole agent determined said condition, was violative of due process. However, defendants were
entitled qualified immunity because the parolee’s procedural rights were not clearly established at the
time.)

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27.

SEARCHES

A majority of courts agree that prisoners are protected by the Fourth Amendment’s
prescriptions on search and seizure. The scope of the protection, however, is extremely limited.
Note also that a prisoner may challenge an unconstitutional strip search under the Eighth
Amendment’s prohibition against cruel and unusual punishment. See, e.g., Pekham v. Wisconsin Dep’t
of Corrections, 141 F.3d 694 (7th Cir. 1998).
Decisions
Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984) (Due
process does not require that prisoners be present during searches of their cells.)
Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (A prisoner has
no expectation of privacy in his cell and thus the Fourth Amendment proscription against unreasonable
searches does not apply.)
Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (Prisoners retain
some Fourth Amendment rights. However, unannounced cell searches and visual body cavity searches
after contact visitation are not unreasonable and therefore not prohibited by the Fourth Amendment.)
Pekham v. Wisconsin Dep’t of Corrections , 141 F.3d 694 (7th Cir. 1998) (Strip searches
of state prisoner upon prisoner's arrival at facility, return to facility after medical appointment or court
proceeding, and completion of contact visit with non-prisoner, and upon general search of cell block,
did not violate Fourth Amendment or Eighth Amendment, absent any evidence that searches were
performed for purposes of harassment or punishment rather than legitimate, identifiable purposes.)
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) (Female guards keeping watch over naked
male prisoners does not violate the Fourth Amendment because it is a reasonable search to prevent
smuggling and interprison violence. Such surveillance is justified by legitimate penological interests and
equal employment opportunity for female prison guards. In addition, no equal protection violation
arose from the fact that some cell blocks were monitored by female guards and some were not. Cf.
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994.))
Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994) (Upholding digital rectal examinations
in search for drugs. The court provides an excellent overall discussion of the relevant issues.)
Scoby v. Neal, 981 F.2d 286 (7th Cir. 1992) (Supervisory officer entitled to qualified
immunity in suit by correctional officers where strip search procedure of officers did not violate clearly
established right.)
65

Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982) (Allowing female prison guards to conduct
pat-down search of male inmates, excluding genital area, was not unconstitutional.)
Illinois Department of Corrections Rules:
20 Ill. Admin. Code §§ 501.200-.220:
28.

Searches for and Disposition of Contraband.

BLOOD, URINALYSIS TESTING

Introductory Comment
The use of urinalysis testing of prisoners to detect drugs has increased substantially in recent
years. These tests are now often done on a “sweep” basis where tactical teams of correctional officers
(the “orange crush”) from other institutions will make unannounced visits to a particular prison and
examine prisoners (and even staff) in a particular unit or units at the prison. These teams order
prisoners to give urine samples into containers which immediately disclose whether drugs are in the
prisoner’s system and the type of drug. If the prisoner refuses to take the test or fails it, the sanctions
are severe, often immediate transfer to segregation in maximum-security prisons like Stateville and
Pontiac. Sometimes tests are administered without warning on a random basis.
Generally speaking, these tests are permissible when they are conducted in a reasonable
manner. In determining whether a search of a prisoner is reasonable, the court must balance the
significant and legitimate security interests of the institution against the privacy interests of the prisoner.
See Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447 (1979), and give
prison administrators "wide-ranging deference in [their] adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and to maintain
institutional security." Id. at 547, 99 S.Ct. at 1878.
Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992) provides an excellent review of the law for
different types of testing and searches of a prisoner’s body. The case should be carefully reviewed.
The tests may be considered unreasonable if they are not random, if the inmate has been unfairly singled
out, if there are proven inadequacies in the method by which the test was administered, or if the test
was administered for retaliatory reasons.
Decisions
Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984) (The random
urine collection and testing of prisoners is a reasonable means of combating the unauthorized use of
narcotics and does not violate the Fourth Amendment.)

66

Portillo v. U.S. Dist. Court, 15 F.3d 819, 824 (9th Cir. 1994) (Prison order requiring inmate
convicted of theft and awaiting sentencing to submit to urine testing vacated because inmate's crime
bore no correlation to drug usage.)
Gilbert v. Peters , 55 F.3d 237 (7th Cir. 1995) (An Illinois statute requiring all persons
incarcerated for sexual offenses to submit blood specimens to Department of State Police prior to final
discharge was not punitive and therefore did not violate ex post facto clause in its application to persons
convicted of sexual offenses before its effective date.)
29.

GENERAL CONDITIONS CASES

Introductory Comment
Much of the litigation for appointed counsel deals with “conditions of confinement.” These
cases may range from complaints about the nature of segregation cells and the manner of imprisonment
in them to the effects of “second-hand smoking” from other prisoners or staff. Some of the other
sections in PART II relate to so-called conditions cases, such as inadequate medical care, but are
treated separately because the applicable law may be different from the general “conditions” case. See
PART II, SECTION 20: MEDICAL CARE. As a consequence, other portions of PART II should be
reviewed as well.
Virtually all conditions cases are based on the Eighth Amendment’s admonition against cruel
and unusual punishment.9/ The key decision in this section is Wilson v. Seiter, 501 U.S. 294, 111 S. Ct.
2321, 115 L. Ed. 2d 271 (1991). All conditions decisions prior to 1991 must be read in light of this
case which sets up two separate burdens a prisoner-plaintiff must satisfy to prevail. In Wilson, the
prisoner claimed that certain conditions constituted cruel and unusual punishment, including
overcrowding, excessive noise, inadequate heating and ventilation, and unsanitary dining facilities. The
Supreme Court first held that the conditions must be shown to be objectively cruel; and second, that
prison officials had a subjective state of mind that rendered them culpable or liable for the objectively
cruel conditions. In contrast to the guard assault cases (PART II, SECTION 19: GUARD- ON-INMATE
ASSAULTS — EXCESSIVE USE OF FORCE) where maliciousness — intent to inflict punishment — must
be shown, the Court held that in conditions cases, the subjective standard would be the deliberate
indifference standard of inadequate medical care cases. See PART II, SECTION 20: MEDICAL CARE.
Moreover, as indicated by the Court in its subsequent decision of Hudson v. McMillian, 503
U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), in contrast to guard assault cases where an
insignificant injury may violate contemporary standards of decency, in a conditions case, the plaintiff
must show significant injury, as “routine discomfort” is part of the penalty prisoners pay for their
convictions. Plaintiff must show that the conditions caused “extreme deprivations.”

9/

Cases against county jail personnel by pretrial detainees are based on the Fourteenth Amendment.

67

Whether a plaintiff in a conditions case can satisfy these two burdens will vary from case to
case. The decisions below illustrate the wide variety of conditions claims.
Important: Section 1997e(d) of the Prison Litigation Reform Act — “Exhaustion of
Administrative Remedies” — applies to all conditions cases. See PART II, SECTION 6: EXHAUSTION
OF PRISON GRIEVANCE PROCEDURES. See also Appendix C, 18 U.S.C. § 3626(g)(2), for definition of
conditions.
(1)

Conditions of Cells — Cause of Action Stated or Proved

Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997) (In determining whether low temperatures in
a prison cell violate a prisoner’s right to be free from cruel and unusual punishment, the court will
consider: (1) the severity of the cold; (2) its duration; (3) whether the prisoner had alternative means to
protect himself from the cold; (4) whether the alternatives were adequate to combat the cold; and (5)
whether the prisoner endured other uncomfortable conditions as well as cold. Just because low
temperatures force a prisoner to bundle up indoors does not mean that prison conditions violate the
Eighth Amendment. On the other hand, a plaintiff need not prove that he suffered from hypothermia or
frostbite to establish a violation of the Eighth Amendment. The plaintiff must prove that the temperature
was so low that it caused “severe discomfort.” See also Del Raine v. Williford, 32 F.3d 1024 (7th Cir.
1994.))
Jackson v. Duckworth, 955 F.2d 21 (7th Cir. 1992) (In this case, characterized by the court
as a “sub-human conditions case,” Judge Posner reviewed the different aspects of a conditions of
confinement case: particularly, the objective component — the acts which constitute the alleged
constitutional tort — and the subjective component — the intent with which the acts are inflicted.
Because there were facts in dispute on both of these issues, the case was not appropriate for summary
judgment.)
Johnson v. Pelker, 891 F.2d 136 (7th Cir. 1989) (Neither accidental dumping of water on an
inmate nor denial of his request for dry bedding and clothing deprived him of his constitutional rights.
His allegation of being in a cell for three days without running water and with smeared feces on the wall,
while his request of cleaning supplies and running water were ignored, did state a cause of action for a
violation of an inmate’s Eighth Amendment rights.)
Pritchett v. Page, 2000 WL 1129891 (N.D. Ill. 2000) (Inmate’s complaint that his cell was
infested for many months by “hazardous bugs” that regularly bit him stated a claim for relief.)
(2)

Conditions of Cells — No Cause of Action Stated or Proved

Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (A pre-trial
detainees’ presumption of innocence has no application to a determination of the rights of pretrial
68

detainees during their confinement. Conditions of confinement imposed on pre-trial detainees implicate
only the Fourteenth Amendment and may not amount to punishment, whether cruel or unusual or
otherwise.)
Morrissette v. Peters , 45 F.3d 1119 (7th Cir. 1995) (The prisoner’s Eighth Amendment
claim was denied because there was no evidence that the defendants were even remotely aware of the
conditions in plaintiff’s cell, and in any case, the condition complained of did not rise to a constitutional
violation. The court upheld the magistrate’s conclusion that the exposed wiring “was a minor hazard that
was easily avoided” and “was primarily an unpleasant inconvenience.”)
Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994) (Prisoners alleged that they were denied
basic hygiene items, subjected to loud noises, and served poorly prepared food. In retaliation, they
flooded one of the wards and were subsequently shackled to their cells. The court affirmed the district
court’s grant of summary judgment for the defendants and held that the cumulative effect of the
complaints did not add up to a deprivation of a single human need. Restraining prisoners by removing
them and shackling them to their cells for three hours, although uncomfortable, was not unreasonable
given the circumstances and the need to secure the prisoners while the mess from the flood was cleaned
up. Occasional discomfort is part of the penalty of incarceration.)
McNeil v. Lane , 16 F.3d 123 (7th Cir. 1993) (Prisoner-plaintiff’s complaint failed to satisfy
the subjective prong of the Wilson test. The defendants’ failure to remove the asbestos-covered pipes
or to transfer the prisoner to a different cell was not enough to establish “deliberate indifference.” The
court held that the prisoner also failed to satisfy the objective prong of the test because the alleged
conditions were not serious enough. Exposure to moderate levels of asbestos is a fact of life and is not
considered cruel and unusual punishment.)
30.

CONDITIONS OF CONFINEMENT

Introductory Comment
There are several cases that deal with conditions of confinement at the Cook County Jail.
These cases are considered under the Fourteenth Amendment rather than the Eighth Amendment
because prisoners at the jail are pretrial detainees. (Pretrial detainees have not been sentenced to
prison, the basis for application of the Eighth Amendment, and thus, must look for protections
elsewhere in the Constitution.) Some recent decisions are Mayoral v. Sheahan, No. 00-1034 (7th Cir.
2001); Hall v. Sheahan, 2001 WL 111019 (N.D. Ill. 2001); May v. Sheahan, 226 F.3d 876 (7th Cir.
2000); and Antonelli v. Sheahan, 81 F.3d. 1422 (7th Cir. 1996). These cases should be reviewed if
counsel is appointed in an action involving the Jail. In the main, the conditions are the same as in actions
involving IDOC prisons, except that overcrowding is a significant issue at the Jail.
(1)

Cigarette Smoking
69

Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993) (Inmate
stated an Eight Amendment cause of action by alleging that defendants had with deliberate indifference
exposed the plaintiff to environmental tobacco smoke (ETS) at levels that created an unreasonable risk
of serious damage to his future health.)
Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 2000) (Pretrial detainee who was held in
County Jail for four-and-one-half years brought § 1983 action claiming due process violation based
upon injuries sustained as a result of second-hand smoke. As for plaintiff’s claim of present injury, the
court found that complaints (breathing problems, chest pains, dizziness, headaches) were not serious
enough to state a claim. As to plaintiff’s claim of future injury, the court upheld the district court’s grant
of summary judgment. To withstand summary judgment, “plaintiff had to proffer competent and reliable
expert medical testimony that there was a reasonable medical certainty that he himself faces some
defined level of increased risk of developing a serious medical condition and that the increased risk was
proximately caused by his exposure to second-hand smoke at the jail.” Plaintiff did not meet this high
burden.)
Goffman v. Gross, 59 F.3d 668 (7th Cir. 1995) (Inmate who had survived lung cancer
requested non-smoking roommates. The inmate sued the prison under § 1983 when this request was
not met, claiming deliberate indifference. Because the plaintiff did not allege sufficient evidence to state
a claim, the dismissal of the plaintiff’s complaint was affirmed. In addition, the court held that if the
plaintiff was worried about the possible effects of second-hand smoke on his future well-being, rather
than his immediate condition, he should have stated so in his complaint.)
(2)

Showers and Yard

Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001) (Prison official’s imposition of four,
consecutive 90-day denials of prison yard privileges upon prisoner for “serious” violations of prison
disciplinary rules was not cruel and unusual punishment, although prisoner was thereby deprived of yard
time for one full year. Every disciplinary sanction, like every sentence, must be treated separately, not
cumulatively, for purposes of determining whether it is cruel and unusual.)
Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (Lack of exercise may rise to a
constitutional violation in extreme and prolonged situations where movement is denied to the point that
the inmate's health is threatened. In this case, however, prison official's denial of any outdoor exercise
to inmate while he was confined in disciplinary segregation unit for 70-day period did not violate
inmate's clearly established rights under Eighth Amendment. Defendant was entitled to qualified
immunity on inmate's claim of cruel and unusual punishment.)
Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (Appellant alleged that his
exercise area was "about the size of a small house trailer with at least 37 other prisoners,” that inmates
housed in that area were not permitted to recreate for periods of up to seven successive weeks, and
70

that there was no room for exercise in his cell. These circumstances stated an Eighth Amendment
claim.)
(3)

Privacy

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) (Judge Easterbrook held that neither the
Fourth Amendment nor the Eighth Amendment prohibited cross-sex monitoring of prisoners. Id. at
150-51. According to the court, the Fourth Amendment does not protect a prisoner’s privacy rights
within a prison, and cross-sex monitoring does not constitute the “inhuman” treatment prohibited by the
Eight Amendment. But see Chief Judge Posner’s pointed dissent, arguing that further fact finding was
necessary to determine whether the prison had made sufficient efforts to protect what Judge Posner
saw as the prisoner’s Eighth Amendment right to be free from “frequent, deliberate, gratuitous
exposure” of nudity in front of guards of the other sex. (Posner, C.J., concurring in part, dissenting in
part).)
Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) (Prison officials may warn staff or other
inmates about an inmate’s HIV positive status only if those other persons are at risk of infection, and so
long as the warning is not punitive in nature. Disclosure to inmate’s cellmate and to prison barber, for
example, are acceptable.)
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994) (The court, in reversing the lower court’s
dismissal, held that although prisons must be allowed to employ and fully utilize female guards, this does
not mean that inmates are without constitutional protection against invasion of their privacy by members
of the opposite sex. Reasonable accommodations to respect inmates’ privacy (e.g., the installation of
curtains) could have been made here.)
United States v. Whalen, 940 F.2d 1027 (7th Cir. 1991) (Because federal prison requires
inmates to leave personal letters unsealed and that plaintiff did so, he had no expectation of privacy and
his mail was properly inspected. Proper concern for prison security allows officials to read an inmate’s
outgoing mail.)
(4)

Food

Reed v. McBride , 178 F.3d 849 (7th Cir. 1999) (Deprivation of food for repeated three- to
five- day periods stated a claim under the Eighth Amendment, especially where prisoner was already
weakened by illness.)
Pritchett v. Page, 2000 WL 1129891 (N.D. Ill. 2000) (Plaintiff articulated a claim regarding
food preparation where he alleged that he often found “foreign matters” in his food, and he frequently
became physically ill after meals. The discovery of an occasional “foreign object” may be insufficient to

71

support an Eighth Amendment violation, but the constant presence of contaminants rises to the level of
constitutional concern.)
(5)

Drinking Water

Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001) (The court rejected an Eighth Amendment
claim based on lead in the prison’s water. “The Eighth Amendment does not require prisons to provide
prisoners with more salubrious air, healthier food, or cleaner water than are enjoyed by substantial
numbers of free Americans.”)
(6)

Prison Industry

Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) (Prison officials’ failure to protect inmate
whose arm was severed by textile machine while he took part in prison industrial work program did not
rise to the level of deliberate indifference under the Eighth Amendment, where evidence indicated that
officials believed that safety violations had been remedied.)
Vanskike v. Peters , 974 F.2d 806 (7th Cir. 1992) (Illinois inmates are not entitled to
minimum wage under the Fair Labor Standards Act, because there is no constitutional right to
compensation for work in prison.)
(7)

IDOC Regulations

Illinois Department of Corrections Rules:
20 Ill. Admin. Code § 502.20 (1991):
20 Ill. Admin. Code § 502.30 (1987):
20 Ill. Admin. Code § 502.40 (1989):
20 Ill. Admin. Code §§ 502.100-.105 (1987):
20 Ill. Admin. Code § 502.110 (1993):

Menus.
Special Diets.
Sanitation.
Cleanliness and Grooming for Committed Persons.
Cleanliness and Grooming for Committed
Persons — Procedure.
20 Ill. Admin. Code §§ 502.200-.230 (1987):
Clothing, Bedding, Linens

31.

RACIALLY DISCRIMINATORY POLICIES

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (Prisoner claimed that prison officials fired
him from his job because of his race. The fact that plaintiff does not have a liberty or property interest
in his former prison job does not foreclose his equal protection or retaliation claims arising from the loss
of that job.)

72

Jones v. Sandahl, 35 F.3d 568 (7th Cir. 1994) (Plaintiff alleged that defendants discriminated
against black inmates in the assignment of prison jobs. In order to establish an equal protection violation
based on racial discrimination in the delegation of job assignments to inmates, plaintiff must sufficiently
show a discriminatory purpose as the motivating factor; it is not enough to show that employment
practices have a discriminatory impact on black inmates.)
Williams v. Lane, 851 F.2d 867 (7th Cir. 1988) (Although prisoners do not surrender their
rights to equal protection, unequal treatment among inmates is justified if it bears a rational relation to a
legitimate penal interest. State prison’s provisions for programming and living conditions for protective
custody of inmates were unequal in comparison with general population inmates, and were not justified
by security concerns and thus violated the inmate’s equal protection rights.)
David K. v. Lane , 839 F.2d 1265 (7th Cir. 1988) (A preliminary injunction was denied for
prisoner-plaintiffs who alleged that the prison administration’s policy of suppressing only gang
“violence” and not gang “membership” in effect created a class of white non-gang members that was
forced into protective custody. The plaintiffs failed to show that the prison administration harbored a
discriminatory motive in implementing those policies.)
Harris v. Greer, 750 F.2d 617 (7th Cir. 1984) (A complaint that alleged a prison policy of
segregating black and white inmates in a protective custody unit according to cell and job assignments
stated a § 1983 cause of action sufficient to withstand a motion to dismiss; however, prison authorities
have a right to take into account racial tensions in maintaining security, discipline and order in prison.)
32.

DISABLED PRISONERS / APPLICATION OF DISABILITY STATUTES

Pennsylvania Dep’t of Corrections v. Yeskey, 118 S. Ct. 1952, 141 L. Ed. 2d 215, 66
U.S.L.W. 4481 (1998) (The Court held that the Americans with Disabilities Act (ADA) applied to
state prison inmates. The Court held that prisons clearly constituted a “public entity” under the ADA
and that a prisoner could be a “qualified individual with a disability.” Note, however, that the Court did
not address whether the application of the ADA to state prison inmates is a constitutional exercise of
Congress’s power under either the Commerce Clause, or § 5 of the Fourteenth Amendment.)
Erickson v. Bd. of Governors of State Colleges and Universities for Northeastern
Illinois Univ., 207 F.3d 945 (7th Cir. 2000) (abrogating Crawford v. Indiana Dep’t of Corrections,
115 F.3d 481 (7th Cir. 1997) (State university employee sued under ADA and Pregnancy
Discrimination Act. As a general rule, Congress may subject non-consenting States to suit in federal
court pursuant to a valid exercise of its power to enforce the Fourteenth Amendment. Statutes that
create new rights or expand old rights beyond the Fourteenth Amendment’s bounds, however, do not
“enforce” that amendment. Under the Constitution, the rational basis test applies to distinctions on the
ground of disability. Most disability discrimination is rational, and therefore, constitutional, and yet the
ADA forbids it. Since the Equal Protection Clause does not mandate the mandatory accommodation
rules found in the ADA, the Seventh Circuit held that Title I of the ADA does not “enforce” the
Fourteenth Amendment. Consequently, under Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), the
73

Eleventh Amendment bars a private person from bringing a claim pursuant to Title I of the ADA against
a state, or an arm of the state in federal court.)
Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000) (Inmate with impaired vision brought suit
alleging that failure to provide books on tape and brightly lit cell violated ADA. Following Erickson v.
Bd. of Governors for Northeastern Illinois Univ., 207 F.3d 945 (7th Cir. 2000), the court held that
inmate’s ADA claim could not proceed against State in federal court. Where an inmate seeks
accommodation of disabilities–rather than simply requiring government to disregard disabilities–a
private suit against a state entity under Title II of the ADA may not be brought in federal court.)
Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000) (Inmate diagnosed with psychopathy who
alleged that denial of his application to participate in sex offender program violated ADA failed to state
a claim. Distinctions on the ground of disability are permitted as long as they are rational, and
Wisconsin did not act irrationally in excluding psychopaths from its program.)
Cassidy v. Indiana Dep’t of Corrections , 199 F.3d 374 (7th Cir. 2000) (Blind prisoner
alleged that prison officials discriminated against him by denying him access to various programs,
services, and benefits enjoyed by non-disabled prisoners in violation of ADA. The Court held that
PLRA § 1997(e)--the “physical injury requirement”--applies to ADA claims.)
Tesch v. County of Green Lake, 157 F.3d 465 (7th Cir. 1998) (Disabled pre-trial
detainee’s inability to put on jail-issued pants, obtain drinking water from cell sink, and get into bed in
his cell during 44 hours of detention were insufficiently severe to amount to punishment in violation of
detainee’s substantive due process rights.)

33.

CIVIL COMMITMENT OF SEXUALLY VIOLENT PERSONS IN ILLINOIS

A person who is deemed to have a mental disorder that makes it substantially likely that he will
commit further acts of sexual violence may be civilly committed to the custody of the Illinois Department
of Human Services. The Illinois Sexually Violent Persons Commitment Act (“SVPCA”), 725 ILCS
207/1 et seq. sets forth the civil commitment procedure.
The SVPCA applies to “sexually violent persons,” that is, persons who have been convicted,
or found not guilty by reason of insanity, of a sexually violent offense. The SVPCA requires that the
agency having custody of a such a person (typically the Department of Corrections) must notify the
Attorney General and the State’s Attorney for the county in which the person was convicted within 90
days of the person’s release. The Attorney General or State’s Attorney may then petition the court for
74

an order declaring the person to be civilly committed under the Act. If the court or a jury finds the
respondent to be a sexually violent person, the court will order him committed to the care of the
Department of Human Services “for control, care and treatment until such time as the person is no
longer a sexually violent person.” 725 ILCS 207/40. Periodic re-examination is required within six
months after the initial commitment, and once per year thereafter.
If the committed person constitutes a danger, the SVPCA directs that he be held in a secure
facility. The Illinois Department of Human Services contracts with the Department of Corrections to
provide the secure facility. Currently, the facility used to house SVPs is at the Joliet Annex, Joliet,
Illinois.
The SVPCA became effective in 1998, so the case law with respect to this class of persons is
as yet undeveloped. Challenges to the constitutionality of the Act will almost certainly fail since the U.S.
Supreme Court has upheld laws similar to the SVPCA. See Selling v. Young, 121 S. Ct. 727 (2001);
Kansas v. Hendricks, 521 U.S. 346 (1997). To date, persons committed under the Act have
challenged conditions of confinement and inadequate therapeutic treatment, as well as alleged due
process and equal protection violations stemming from their classification as sexually violent persons.
Note the distinctions between the Sexually Violent Persons Commitment Act and the Sexually
Dangerous Person Act (“SDPA”), 725 ILCS 205/0.01 et seq. The latter statute applies to a much
larger group of offenders.10/ A person may be committed pursuant to the SDPA as an alternative to
criminal prosecution, whereas a person deemed to be sexually violent under the SVPCA is generally
committed following a criminal proceeding. The state is obligated to provide care and treatment to both
groups of persons. Sexually violent persons, however, fall under the supervision of the Department of
Corrections, whereas sexually dangerous persons fall under the care of the Department of Human
Services. For a discussion of the difference between the two Acts, see People v. McVeay, 302 Ill.
App.3d 960, 706 N.E.2d 539 (Ill. App. 1999) and People v. McDougle, 3030 Ill.App.3d 509, 708
N.E.2d 482 (Ill. App. 1999).
Decisions
Rogers v. Illinois Dep’t of Corrections , 2001 WL 914490 (N.D. Ill. Aug. 17, 2001)
(Plaintiffs alleged that IDOC’s Special Evaluations Unit, which has authority to petition for postsentence confinement under the SVPCA, selectively recommended African-American offenders who
committed crimes against Caucasian victims. The court held that under the rule in Heck v. Humphrey,
512 U.S. 477 (1994), plaintiffs could not bring § 1983 action since, if successful, the claim would
necessarily imply the invalidity of the confinement. Plaintiffs must first petition for habeas corpus relief.
As for those plaintiffs who were released, however, since they have no remedy under § 2255, they may
sue for damages.)

10/

Cf. 725 ILCS 205/1.01 and 725 ILCS 207/5(f).

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Tineybey et al. v. Peters , 2001 WL 527409 (N.D. Ill. May 16, 2001) (Plaintiff’s claim that
therapeutic program for sex offenders was patently ineffective medical treatment could not survive a
motion to dismiss. Claims for constitutionally ineffective medical treatment require an objectively
serious medical condition and an act of deliberate indifference by defendants, neither of which were
alleged here. In addition, having to shower in the company of homosexuals did not rise to the sort of
sexual harassment or abuse prescribed by the Eighth Amendment.)
Kilbury v. Budz, 2001 WL 845471 (N.D. Ill. July 24, 2001) (Plaintiff alleged that former
security therapist sexually harassed him. No constitutional tort existed where sexual acts were
admittedly consensual and plaintiff suffered no injury.)
Tineybey v. Peters , 2000 WL 705983 (N.D. Ill. May 18, 2000) (Plaintiffs alleged denial of
access to law library. The court held that a prison policy permitting sexually violent persons different
hours of access to library facilities was related to a legitimate purpose. Certain sexually violent persons
may be at risk of harm at the hands of the general population; their presence could be disruptive. These
are sufficient reasons to justify disparate treatment.)

CHAPTER 7: RECOVERY
34.

ENFORCEMENT

Introductory Comment
This is an issue that normally should not arise. The only likely causes for delay in the collection
of a judgment that has become final and is not appealed (or has been affirmed on appeal), is the
availability of funds in the responsible entity’s budget (the State, County or City) for the current fiscal
year. If the funds are currently unavailable, then the judgment (or settlement) will normally be paid as
soon as the next fiscal year budget is funded. This is true even where the action is against State
76

employees (where the State cannot be sued under the Eleventh Amendment), since the State by statute
indemnifies its employees.
However, in the rare instance where the State has refused to defend or indemnify its employee
(a correctional officer) because his conduct is so outrageous, a federal court may order garnishment of
the defendant’s wages. See, e.g., Balark v. Curtin, 655 F.2d 798 (7th Cir. 1981).
Rules and Statutes
28 U.S.C.A. § 2202 (West 2001):
FED . R. CIV. P. 69:
FED . R. CIV. P. 70:
N.D. ILL. LOCAL RULE 37.1:
5 ILL. COMP. STAT . ANN. 350/1-350/2 (West Supp. 2001):
65 ILL. COMP. STAT . ANN. 5/8-1-16 (West 2001):
745 ILL. COMP. STAT . ANN. 10/2-301-302 (West 2001):

35.

Further Relief.
Execution.
Judgment for Specific Acts; Vesting
Title.
Contempts.
State Employee Indemnification Act
Tax to Pay Judgment.
Indemnification of Public Employees

ENFORCEMENT OF CONSENT DECREES AND OTHER EQUITABLE REMEDIES

Introductory Comment
The new issue involving consent decrees is their termination or modification. In general, see the
Prison Litigation Reform Act, 18 U.S.C. § 3626 (West Supp. 2001). The Act provides that “[i]n any
civil action with respect to prison conditions in which prospective relief is ordered,” the court-ordered
relief is terminable “upon the motion of any party or intervener” either:
(i) 2 years after the date the court granted or approved the prospective relief;
(ii) 1 year after the date the court has entered an order denying termination of prospective relief
under this paragraph; or
iii) in the case of an order issued on or before the date of enactment of the Prison Litigation
Reform Act, 2 years after such date of enactment.
You should also be aware that existing consent decrees are subject to immediate termination
under the PLRA if they do not conform to the requirements set forth in the legislation. The Act allows a
defendant to seek termination of any prospective relief if the relief was granted in the absence of a
finding by the court that “the relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the violation of the
Federal right.” See 18 U.S.C. § 3626(b)(2). In addition, this section contains an “automatic stay”
77

provision, which provides that a motion to terminate a consent decree will operate as a stay of the
consent decree, beginning 30 days after the motion is filed.
Decisions
Miller v. French, 120 S.Ct. 2246 (2000) (abrogating French v. Duckworth, 178 F.3d 437
(7th Cir. 1999) (State moved to terminate a remedial order that had been in place at a state prison
since 1975. Plaintiff class challenged § 3626(e)(2) which provides that a motion to terminate a consent
decree “shall operate as a stay” of the consent decree beginning 30 days after the motion is filed and
ending when the court rules on the motion. The Court held that the automatic stay provision did not
violate separation of powers principles; the provision did not unconstitutionally suspend or reopen the
judgment of an Article III court, but merely implemented new standards for the grant of prospective
relief by requiring the trial court to stay any such relief which was granted in absence of findings
required under the PLRA. The Court also held that the automatic stay provision prohibits district courts
from exercising their equitable authority to suspend operation of stay)
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867
(1992) (The court announced a flexible standard for reviewing consent decrees in institutional reform
cases, holding that a clear showing of a grievous wrong evoked by new and unforeseen conditions was
not required by FED . R. CIV. P. 60(b), in order to modify such a decree.)
Harvey v. Schoen, 245 F.3d 718 (8th Cir. 2001) (Mandatory termination provisions of the
Prison Litigation Reform Act did not violate separation of powers principles. See also Ruiz v. U.S., 243
F.3d 941 (5th Cir. 2001); Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000)).
Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999) (Treating subsection of the PLRA
stating prison conditions "relief shall be terminable" on a party's motion as doing no more than setting a
period during which litigants cannot ask the judge to terminate a decree, avoids any possible
constitutional infirmities.)

36.

SETTLEMENT

Introductory Comment
Although settlement is always encouraged and should be explored at an early stage, see PLRA,
18 U.S.C. § 3626(g), it is not an easy process with the IDOC — usually nuisance or a very small
amount, if anything, will be offered. Although appointed counsel will deal with an Assistant Attorney
General, the final decision will be made by internal counsel at the IDOC, often with input from prison

78

officials at the particular prison.11/ In any event, an offer, if any, must be, as with any client, conveyed
to the prisoner-plaintiff who must make the final decision.
A significant offer, if the case has merit, will occur only after meaningful discovery has occurred
and plaintiff’s counsel can bargain from strength, a fact true in most civil litigation generally. Cases, if
they are going to settle, will do so often only with the vigorous intercession of the trial judge at pre-trial
or on the eve of trial.
The amount of settlement, in most instances, will not equal that which would be obtained in
normal tort or personal injury cases because the client will have no special damages (loss of income,
medical bills) and because he or she is a felon, normally still in prison. However, in the appropriate
cases, settlement should still be representative of the harm inflicted.
There are some caveats:
1. Under recent legislation, the IDOC can attach prisoner funds for the cost of past
incarceration. See 730 ILL. COMP. STAT . ANN. 5/3-7-6 (West Supp. 2001). Make sure that in the
settlement documents, the IDOC waives its right to such recovery.
2. Make certain the State otherwise has no pending claims. The settlement can exclude such
claims, if any. (For example, outstanding child support, educational loans, etc.)
3. Try to determine when the funds for the settlement will be received. The administrative
process leading to the State Comptroller’s issuance of the settlement draft can take time. In addition
sometimes, the IDOC’s funds for litigation settlements for the fiscal year may have been exhausted and
the IDOC will take the position that payment must await the next year’s appropriation. Alert your
client to the likelihood of delay in payment. Since judges like to dismiss settled cases immediately, have
the dismissal order provide that the case may be reinstated if payment is not made within a given time
period. Otherwise, enforcement of settlement may require a separate action.
4. Often the State will offer a lump sum, leaving division of the sum between the client’s share
and attorney’s fees to appointed counsel and the client. If you are going to take a fee (which is
proper), work this out carefully and fairly in writing with the client (and signed by the client). Use your
judgment, remembering that you normally will not be compensated at your usual fee rate. Often two
checks will be issued, one for the client’s share and one for attorney’s fees with both sent to the
attorney.
11/
Note that the IDOC is not the defendant, but that the State is the real party in interest in virtually all cases
because of its statutory obligation to represent and indemnify state employees. See 5 ILL. COMP. STAT . ANN. 350/2
(West Supp. 2001). In rare cases, the State will not represent correctional officers if their conduct is truly
outrageous, that is, allegedly outside of the scope of employment. In this instance, union lawyers will represent the
officer(s). However, case law does not favor the State in most instances.

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Statutes
5 ILL. COMP. STAT . ANN. 350/1-350/2 (West Supp. 2001):

80

State Employee Indemnification Act.

CHAPTER 8: ATTORNEYS’ COSTS AND FEES
37.

ATTORNEY’S FEES UNDER 42 U.S.C. § 1988

Introductory Comment
The Civil Rights Attorney’s Fees Awards Act of 1976 provides in part,
In any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the court, in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as a part of the costs.
42 U.S.C.A. § 1988(b) (West Supp. 2001).
Appointed counsel should remember that this statute is a “two-way” street, that is, attorney’s
fees may be awarded to the plaintiff as a prevailing party, but the court may also award attorney’s fees
to the defendant as the prevailing party. However, the standards for the award are different despite the
apparently unambiguous language of the statute: a prevailing plaintiff is presumptively entitled to
attorney’s fees (despite the discretionary language of the statute); however, a prevailing defendant is
entitled to attorney’s fees only if the suit is adjudged frivolous. This latter standard is very close to the
standard employed by Rule 11 of the Federal Rules of Civil Procedure with which every attorney
litigating in federal courts should be familiar. As plaintiff’s counsel, you should continuously review
positions that have been asserted prior to appointment (as well as after appointment) to avoid costs
imposed according to § 1988 and sanctions under FED . R. CIV. P. 11.
Note also that the Prison Litigation Reform Act limits the amount of attorney’s fees that the
prevailing party may recover, 42 U.S.C.A. § 1997e(d) (West Supp. 2001). Under the PLRA,
attorney’s fees may be taxed at a maximum of 150% of the fees paid to a court-appointed defense
counsel, as set by that district. See 42 U.S.C. § 1997e(d)(1) and (3). In the Northern District of
Illinois, the amount set by statute is $75.00 per hour for time spent in court and $50.00 per hour for
out-of-court time. See 18 U.S.C. § 3006A.
In any event, as with costs expended, you should keep detailed time records regarding work on
the case, and maintain the ability to show that the time and costs expended were reasonably necessary
to prosecution of the case. These records are important even when the case ends in settlement. You
may be challenged to support a request for attorney’s fees during settlement discussions with the
Assistant Attorney General assigned to represent the defendants or by the trial judge.
FED . R. CIV. P. 54(d)(2) sets forth the procedures for presenting claims for fees. See also U.S.
DIST . CT . N.D. ILL. LOC. R. 54.3. Be sure to file the fee petition within ninety (90) days of the entry of

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judgment as required by the Rules of the United States District Court for the Northern District of
Illinois. Id.
The following citations discuss who is a prevailing party (plaintiff or defendant) and the amount
of fees awarded.
Decisions
(1)

Prevailing Party — Plaintiff

Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) (A civil rights
plaintiff who recovered only nominal damages qualified as a prevailing party under the civil rights
attorney fee provision; the Court, however, noted that granting such a nominal award to the plaintiff’s
attorney would be “unreasonable” given the very limited degree of success.)
Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S. Ct.
1486, 103 L. Ed. 2d 866 (1989) (The test for determining when a civil rights litigant is a “prevailing
party” and therefor entitled to attorney’s fees under § 1988 is whether the party prevails on “any
significant claim.” When making such a showing, the party must show that the resolution of issues
resulted in “the material alteration of the legal relationship of the parties in a manner which Congress
sought to promote in the fee statute.” Id. at 792. In so holding, the Court rejected the “central issue
test.”)
Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct. 202, 102 L. Ed. 2d 1988 (1988) (Plaintiffs were
not entitled to an award of attorney’s fees under § 1988 where the case was moot before the original
judgment was issued and where the judgment could afford the plaintiffs no relief.)
Maher v. Gagne , 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980) (Plaintiff entitled
to fee even if case is settled before trial.)
Harper v. City of Chicago Heights, 223 F.3d 593, 603 (7th Cir. 1999) (“To determine if a
party is "prevailing," courts ask whether the plaintiff has succeeded on any significant issue in litigation
which achieved some of the benefit the parties sought in bringing suit.... The touchstone of the prevailing
party inquiry must be the material alteration of the legal relationship of the parties in a manner which
Congress sought to promote in the fee statute.”)
Spellan v. Board of Educ. for Dist. 111, 59 F.3d 642 (7th Cir. 1995) (When plaintiffs are
only partly successful in prosecuting their claims, they should not receive full attorney’s fees.)

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Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726 (7th Cir. 1995) (Legal
services organizations that represent prevailing parties in a § 1983 action are entitled to attorney’s fees
based on local market rates.)
Maul v. Constan, 23 F.3d 143 (7th Cir. 1994) (Inmate who received only nominal damages
on his § 1983 suit for denial of procedural due process in the forced administration of psychotropic
medication should not have been awarded attorney fees under § 1988; although inmate prevailed on
significant legal issue, the difference between judgment sought and obtained was great and public
purpose of litigation was minimal.)
Campbell v. Illinois Dept. of Corrections , 2001 WL 289783, *1 (N.D.Ill. 2001) (vacated
and remanded on other grounds) (An attorney who litigates a fee petition in a PLRA case is entitled to
compensation for time spent litigating the fee petition. See also Hernandez v. Kalinowski, 146 F.3d 196
(3d Cir. 1998)).
(2)

Prevailing Party — Defendant

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d
648 (1978) (Fees may be awarded to the defendant only if the district court finds that the plaintiff’s
action was “frivolous, unreasonable, or without foundation even though not brought in subjective bad
faith.” See also Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (stating that fees may be awarded
against the plaintiff if his action was found “vexatious, frivolous, or brought to harass or embarrass the
defendant”); Hughes v. Rowe, 449 U.S. 5, 14-16 (1980)).
Esposito v. Piatrowski, 223 F.3d 497, 501 (7th Cir. 2000) (Unlike prevailing plaintiffs in
Section 1983 actions, who receive attorney’s fees as a matter of course, prevailing defendants in such
actions may recover fees only upon a finding that the plaintiff's action was frivolous.)
Vukadinovich v. McCarthy, 59 F.3d 58 (7th Cir. 1995) (Defendant of frivolous suit may
collect the costs of collecting attorney’s fees if plaintiff refuses to pay them. In addition, less proof as to
the amount is required the smaller the amount claimed.)
(3)

Amount of Fees

Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (The Court held
that the PLRA's attorney fee limitations, see 42 U.S.C. § 1997e(d)(3), apply to any post-judgment
monitoring performed after the PLRA took effect, even if the underlying case was filed prior to the
PLRA’s effective date.)
City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) (The
court upheld a fee award of $245,000, when the plaintiff recovered only $33,000 in damages.)
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Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (To
determine fees, calculate the number of hours reasonably expended multiplied by a reasonable hourly
rate. No fees allowed for work on unsuccessful claims that are “distinct in all respects” from successful
claims; fees should not be reduced, however, when claims are related simply because court did not
adopt each contention raised; but, “where the plaintiff achieved only limited success the district court
should award only that amount of fees that is reasonable in relation to the results obtained.” Id. at 440.)
Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) (Attorney’s fees provision in PLRA limiting
the amount of fees that may be awarded in prison civil rights litigation does not have retroactive effect.)
Wallace v. Mulholland, 957 F.2d 333 (7th Cir. 1992) (The appellants were police officers
appealing, inter alia, an award of attorneys fees to the plaintiffs, granted by Judge Shadur pursuant to
42 U.S.C. § 1988. The plaintiffs had sought payment for 400 hours at $150 per hour. The appellate
court reduced the fees to 288 hours at $150 per hour and awarded $43,200. The Seventh Circuit
upheld the award as based on customary rates for similar legal work, and further, that the fee award
was not required to be proportionately related to the damage award. Id. at 339 (citing Hensley v.
Eckerhart, 461 U.S. 424, 440 (1983)).

38.

ATTORNEY’S FEES UNDER EQUAL ACCESS TO JUSTICE ACT: 28 U.S.C. § 2412

Introductory Comment
The Equal Access to Justice Act (“EAJA”) provides for attorney’s fees in actions against the
United States, not employees of the Illinois Department of Corrections. The relevant section provides
in part:
Except as otherwise specifically provided by statute, a court shall award to a prevailing
party other than the United States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of agency action,
brought by or against the United States in any court having jurisdiction of that action,
unless the court finds that the position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C.A. § 2412(d)(1)(A) (West Supp. 2001) (emphasis added).
For the most part, all of the issues and conditions discussed in the preceding section apply.
Decisions
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Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988) (The
Court vacated and remanded a court of appeals judgment affirming a district court’s award of
attorney’s fees of more than the generally applicable cap rate of $75 per hour under EAJA, because
the district court abused its discretion by noting as “special factors” the novelty and difficulty of the
issues, the undesirability of the case, the work and ability of counsel, and customary fees and awards in
other cases.)
U.S. v. Hallmark Const. Co., 200 F.3d 1076, 1078 (7th Cir. 2000) (The EAJA provides
that a district court may award attorney's fees where 1) the claimant is a "prevailing party"; 2) the
government's position was not substantially justified; 3) no "special circumstances make an award
unjust"; and 4) the fee application is submitted to the court within 30 days of final judgment and is
supported by an itemized statement. The government bears the burden of proving that its behavior
meets the “substantially justified” standard. The government must show that its position was grounded
in: " '(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory
propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced.'
" In making a determination of “substantial justification,” the district court must examine the
government’s conduct in both the prelitigation and litigation contexts. EAJA fees may be awarded if
either the government's prelitigation conduct or its litigation position is not substantially justified.)
Wisconsin v. Hotline Industries, Inc., 236 F.3d 363, 367 (7th Cir. 2000) (The Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), authorizes monetary recovery for attorney's fees
"incurred" as a result of unjustified federal action. The Act, which “aim[s] to check or deter unjustified
governmental conduct, permit[s] parties to be reimbursed for fees actually incurred in achieving
victory.”)
EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) (The
court refused to award fees, even though the defendant’s expert’s testimony was totally flawed, as “a
position can be justified, even though it is not correct . . . if a reasonable person could think it correct,
that is, if it has a reasonable basis in law and in fact.” Id. at 884 (citing Pierce v. Underwood, 487 U.S.
552, 565-66 & n.2 (1988)).
39.

COSTS UNDER 28 U.S.C. § 1920

Introductory Comment
28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1)

Fees of the clerk and marshal;

85

(2)
(3)
(4)
(5)
(6)

Fees of the court reporter for all or any part of the stenographic
transcript necessarily obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and copies of papers necessarily
obtained for use in the case;
Docket fees under section 1923 of this title;
Compensations of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or
decree.
28 U.S.C.A. § 1920 (West 2001) (emphasis added).
Note that the imposition of costs is subject to the discretion of the trial court. The statute is
narrowly construed as to allowable items. These costs differ from reimbursable costs to appointed
counsel. See PART I, SECTION 16: STATUTORY AUTHORITY FOR AWARDING ATTORNEYS’ COSTS
AND FEES.
Again, keep careful track (receipts, bills, etc.) of costs.
See also FED . R. CIV. P. 54 (regarding attorney’s fees); 28 U.S.C.A. § 1921 (regarding United
States marshal’s fees); and 28 U.S.C.A. § 1821(b) (regarding the payment of witnesses).
Decisions
Demarest v. Manspeaker, 498 U.S. 184, 111 S. Ct. 599, 112 L. Ed. 2d 608 (1991) (A
convicted state prisoner testifying at a federal trial pursuant to a writ of habeas corpus ad testificandum
is entitled to the payment of witness fees under 28 U.S.C. § 1821.)
Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964) (A
district court can tax as costs the travel expenses of a witness coming to court from beyond subpoena
range.)
Kulmani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681 (7th Cir. 2000) (Section 1920(4)
the district court to tax as costs "[f]ees for exemplification and copies of papers necessarily obtained for
use in the case.")

86

Cefalu v. Village of Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000) (As long as a
photographic reproduction “furthers the illustrative purpose of an exhibit ... it is potentially compensable
as exemplification.")
Sampley v. Duckworth, 72 F.3d 528 (7th Cir. 1995) (The Illinois Department of Corrections
cannot seek reimbursement of costs associated with complying with a writ of habeas corpus ad
testificandum where IDOC was not a party.)
McGill v. Faulkner, 18 F.3d 456 (7th Cir. 1994) (The court held that the district court did
not abuse its discretion by imposing costs against the inmate following the decision which overturned a
jury award in the inmate’s favor. The prisoner failed to file an objection to the bill of costs, thus waiving
his right to challenge the defendants’ order for payment of costs. In addition, the prisoner failed to
establish that he was incapable of paying the court-imposed costs “at this time or in the future.” The
mere allegation of indigence without documentary support is unpersuasive, and the inmate’s status as
prisoner does not per se establish that he is without funds. The court held, however, that even had the
prisoner timely demonstrated that he was indigent, the district court still would not have abused its
discretion. Thus, indigents are not immune from supposition of costs. See also Badillo v. Central Steel
and Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983)).

87

APPENDIX A
Prison Litigation Reform Act (“PLRA”): 2002 Summary of Key Provisions
28 U.S.C. § 1915(a) - In forma pauperis
•
Prisoner needs an affidavit to proceed in forma pauperis; also a 6 month trust account statement,
certified by trust officer
28 U.S.C. § 1915(b) - filing fees
•
Prisoners required to pay the full amount of the filing fee ($150) in installments. Initial partial
payment formula: 20% of the greater of average monthly deposits or average monthly balance for 6
months immediately preceding the filing of the complaint. Monthly payments of 20% of preceding
month’s income, until the full $150 is paid. Agency with custody forwards payment each month
that the balance exceeds $10.
28 U.S.C. § 1915(e) - appointment of counsel and initial review
•
Court may request an attorney to represent any person unable to afford counsel
•
Notwithstanding payment of the filing fee or any portion thereof, the court shall dismiss the case
at any time if the court determines that the allegation of poverty is untrue, or the action or appeal is
frivolous or malicious, fails to state a claim on which relief may be granted or seeks monetary relief
against a defendant who is immune from such relief.
28 U.S.C. § 1915(g) - three strikes
•
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action if the prisoner
has, on three or more occasions, while incarcerated, brought an action or appeal in a federal court
that was dismissed as frivolous, malicious, or failed to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C § 1915A - initial review
•
the court shall review, before docketing or in any event as soon as practicable after docketing, a
complaint in a civil action in which a prisoner sees redress from a governmental entity or officer or
employee of a governmental entity.
•
the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted or
seeks monetary relief from a defendant who is immune from such relief.
42 U.S.C. § 1997(e)(a) - exhaustion of administrative remedies
•
no action shall be brought with respect to prison conditions by a prisoner until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997(e)(d) - attorney’s fees
•
150 percent of the hourly rate established under section3006A of Title 18, for payment of courtappointed counsel
42 U.S.C. § 1997(e)(e) - physical injury requirement
42 U.S.C. § 1997(e)(f) - telephonic hearings
•
to the extent practicable, all hearings shall be telephonic or through video conference
42 U.S.C. § 1997(e)(h) - definition of prisoner

A-1

APPENDIX B
PRISON LITIGATION REFORM ACT
42 U.S.C.A. § 1997e (West Supp. 2001)
(a) APPLICABILITY OF ADMINISTRATIVE REMEDIES
No action shall be brought with respect to prison conditions under section 1979
of the Revised Statutes of the United States (42 U.S.C. 1983), or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.
(b) FAILURE OF STATE TO ADOPT OR ADHERE TO ADMINISTRATIVE GRIEVANCE
PROCEDUREThe failure of a State to adopt or adhere to an administrative grievance
procedure shall not constitute the basis for an action under section 3 or 5 of this
Act.
(c) DISMISSAL
(1) The court shall on its own motion or on the motion of a party dismiss any action brought with
respect to prison conditions under section 1979 of the Revised Statutes of the United States (42
U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief.
(2) In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the
court may dismiss the underlying claim without first requiring the exhaustion of administrative
remedies.
(d) ATTORNEY'S FEES
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional
facility, in which attorney's fees are authorized under section 2 of the Revised Statutes of the
United States (42 U.S.C. 1988), such fees shall not be awarded, except to the extent that -(A) the fee was directly and reasonably incurred in proving an actual violation of the
plaintiff's rights protected by a statute pursuant to which a fee may be awarded under
section 2 of the Revised Statutes; and
(B) (i) the amount of the fee is proportionately related to the court ordered relief for the
violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the
violation.

A-2

(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of
the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees
awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant.
(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly
rate greater than 150 percent of the hourly rate established under section 3006A of title 18, United
States Code, for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an
attorney's fee in an amount greater than the amount authorized under this subsection, if the fee is
paid by the individual rather than by the defendant pursuant to section 2 of the Revised Statutes
of the United States (42 U.S.C. 1988).
(e) LIMITATION ON RECOVERY
No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.
(f) HEARINGS
(1) To the extent practicable, in any action brought with respect to prison conditions in Federal
court pursuant to section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility, pretrial
proceedings in which the prisoner's participation is required or permitted shall be conducted by
telephone, video conference, or other telecommunications technology without removing the
prisoner from the facility in which the prisoner is confined.
(2) Subject to the agreement of the official of the Federal, State, or local unit of government with
custody over the prisoner, hearings may be conducted at the facility in which the prisoner is
confined. To the extent practicable, the court shall allow counsel to participate by telephone, video
conference, or other communications technology in any hearing held at the facility.
(g) WAIVER OF REPLY
(1) Any defendant may waive the right to reply to any action brought by a prisoner confined in
any jail, prison, or other correctional facility under section 1979 of the Revised Statutes of the
United States (42 U.S.C. 1983) or any other Federal law. Notwithstanding any other law or rule of
procedure, such waiver shall not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply has been filed. (2) The court may
require any defendant to reply to a complaint brought under this section if it finds that the plaintiff
has a reasonable opportunity to prevail on the merits.
(h) DEFINITION
As used in this section, the term `prisoner' means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions
of parole, probation, pretrial release, or diversionary program.

A-3

XXX

A-4

APPENDIX C
PRISON LITIGATION REFORM ACT
18 U.S.C.A. § 3626 (West Supp. 2001)
(a) Requirements for relief.-(1) Prospective relief.-(A) Prospective relief in any civil action with respect to prison conditions shall extend no further
than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court
shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right. The court shall give substantial weight to any
adverse impact on public safety or the operation of a criminal justice system caused by the relief.
(B) The court shall not order any prospective relief that requires or permits a government official to
exceed his or her authority under State or local law or otherwise violates State or local law, unless-(i) Federal law requires such relief to be ordered in violation of State or local law;
(ii) the relief is necessary to correct the violation of a Federal right; and
(iii) no other relief will correct the violation of the Federal right.
(C) Nothing in this section shall be construed to authorize the courts, in exercising their remedial
powers, to order the construction of prisons or the raising of taxes, or to repeal or detract from otherwise
applicable limitations on the remedial powers of the courts.
(2) Preliminary injunctive relief.--In any civil action with respect to prison conditions, to the extent otherwise
authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive
relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that
harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in
paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on
the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1)
for the entry of prospective relief and makes the order final before the expiration of the 90- day period.
(3) Prisoner release order.-(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release
order unless–
(i) a court has previously entered an order for less intrusive relief that has failed to remedy the
deprivation of the Federal right sought to be remedied through the prisoner release order; and
(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.
(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order
shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the
requirements of subparagraph (E) have been met.

A-5

(C) A party seeking a prisoner release order in Federal court shall file with any request for such
relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of
subparagraph (A) have been met.
(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with
respect to prison conditions is pending who believes that a prison release order should be considered may sua
sponte request the convening of a three-judge court to determine whether a prisoner release order should be
entered.

(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and
convincing evidence that–
(i) crowding is the primary cause of the violation of a Federal right; and
(ii) no other relief will remedy the violation of the Federal right.
(F) Any State or local official including a legislator or unit of government whose jurisdiction or
function includes the appropriation of funds for the construction, operation, or maintenance of prison
facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison
as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect
of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding
relating to such relief.
(b) Termination of relief.-(1) Termination of prospective relief.-(A) In any civil action with respect to prison conditions in which prospective relief is ordered,
such relief shall be terminable upon the motion of any party or intervener-(i) 2 years after the date the court granted or approved the prospective relief;
(ii) 1 year after the date the court has entered an order denying termination of prospective relief
under this paragraph; or
(iii) in the case of an order issued on or before the date of enactment of the Prison Litigation
Reform Act, 2 years after such date of enactment.
(B) Nothing in this section shall prevent the parties from agreeing to terminate or modify relief
before the relief is terminated under subparagraph (A).
(2) Immediate termination of prospective relief.--In any civil action with respect to prison conditions, a
defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief
was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends
no further than necessary to correct the violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right.

(3) Limitation.--Prospective relief shall not terminate if the court makes written findings based on the record
that prospective relief remains necessary to correct a current and ongoing violation of the Federal right,
extends no further than necessary to correct the violation of the Federal right, and that the prospective
relief is narrowly drawn and the least intrusive means to correct the violation.

A-6

(4) Termination or modification of relief.--Nothing in this section shall prevent any party or intervener from
seeking modification or termination before the relief is terminable under paragraph (1) or (2), to the extent
that modification or termination would otherwise be legally permissible.
(c) Settlements.-(1) Consent decrees.--In any civil action with respect to prison conditions, the court shall not enter or
approve a consent decree unless it complies with the limitations on relief set forth in subsection (a).
(2) Private settlement agreements.-(A) Nothing in this section shall preclude parties from entering into a private settlement agreement
that does not comply with the limitations on relief set forth in subsection (a), if the terms of that agreement
are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement
settled.
(B) Nothing in this section shall preclude any party claiming that a private settlement agreement
has been breached from seeking in State court any remedy available under State law.
(d) State law remedies.--The limitations on remedies in this section shall not apply to relief entered by a State court
based solely upon claims arising under State law.
(e) Procedure for motions affecting prospective relief.-(1) Generally.--The court shall promptly rule on any motion to modify or terminate prospective relief in a
civil action with respect to prison conditions. Mandamus shall lie to remedy any failure to issue a prompt
ruling on such a motion.
(2) Automatic stay.--Any motion to modify or terminate prospective relief made under subsection (b) shall
operate as a stay during the period-(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under
paragraph (1) or (2) of subsection (b); or (ii) beginning on the 180th day after such motion is filed,
in the case of a motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
(3) Postponement of automatic stay.--The court may postpone the effective date of an automatic stay
specified in subsection (e)(2)(A) for not more than 60 days for good cause. No postponement shall be
permissible because of general congestion of the court's calendar.
(4) Order blocking the automatic stay.--Any order staying, suspending, delaying, or barring the operation of
the automatic stay described in paragraph (2) (other than an order to postpone the effective date of the
automatic stay under paragraph (3)) shall be treated as an order refusing to dissolve or modify an injunction
and shall be appealable pursuant to section 1292(a)(1) of title 28, United States Code, regardless of how the
order is styled or whether the order is termed a preliminary or a final ruling.
(f) Special masters.-(1) In general.--

A-7

(A) In any civil action in a Federal court with respect to prison conditions, the court may appoint a
special master who shall be disinterested and objective and who will give due regard to the public safety, to
conduct hearings on the record and prepare proposed findings of fact.
(B) The court shall appoint a special master under this subsection during the remedial phase of the
action only upon a finding that the remedial phase will be sufficiently complex to warrant the appointment.
(2) Appointment.-(A) If the court determines that the appointment of a special master is necessary, the court shall
request that the defendant institution and the plaintiff each submit a list of not more than 5 persons to
serve as a special master.
(B) Each party shall have the opportunity to remove up to 3 persons from the opposing party's list.
(C) The court shall select the master from the persons remaining on the list after the operation of
subparagraph (B).
(3) Interlocutory appeal.--Any party shall have the right to an interlocutory appeal of the judge's selection of the
special master under this subsection, on the ground of partiality.
(4) Compensation.--The compensation to be allowed to a special master under this section shall be based
on an hourly rate not greater than the hourly rate established under section 3006A for payment of
court-appointed counsel, plus costs reasonably incurred by the special master. Such compensation and
costs shall be paid with funds appropriated to the Judiciary.
(5) Regular review of appointment.--In any civil action with respect to prison conditions in which a special
master is appointed under this subsection, the court shall review the appointment of the special master
every 6 months to determine whether the services of the special master continue to be required under
paragraph (1). In no event shall the appointment of a special master extend beyond the termination of the
relief.
(6) Limitations on powers and duties.--A special master appointed under this subsection-(A) may be authorized by a court to conduct hearings and prepare proposed findings of fact,
which shall be made on the record;
(B) shall not make any findings or communications ex parte;
(C) may be authorized by a court to assist in the development of remedial plans; and
(D) may be removed at any time, but shall be relieved of the appointment upon the termination of
relief.
(g) Definitions.--As used in this section-(1) the term "consent decree" means any relief entered by the court that is based in whole or in part upon
the consent or acquiescence of the parties but does not include private settlements;
(2) the term "civil action with respect to prison conditions" means any civil proceeding arising under
Federal law with respect to the conditions of confinement or the effects of actions by government officials
on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the
fact or duration of confinement in prison;
(3) the term "prisoner" means any person subject to incarceration, detention, or admission to any facility
who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or
the terms and conditions of parole, probation, pretrial release, or diversionary program;

A-8

(4) the term "prisoner release order" includes any order, including a temporary restraining order or
preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or
that directs the release from or nonadmission of prisoners to a prison;
(5) the term "prison" means any Federal, State, or local facility that incarcerates or detains juveniles or
adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law;
(6) the term "private settlement agreement" means an agreement entered into among the parties that is not
subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement
settled;
(7) the term "prospective relief" means all relief other than compensatory monetary damages;
(8) the term "special master" means any person appointed by a Federal court pursuant to Rule 53 of the
Federal Rules of Civil Procedure or pursuant to any inherent power of the court to exercise the powers of a
master, regardless of the title or description given by the court; and
(9) the term "relief" means all relief in any form that may be granted or approved by the court, and includes
consent decrees but does not include private settlement agreements.
XXX

A-9

INDEX
FEDERAL CASES
Abdul-Wadood v. Duckworth, 860 F.2d 280 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Al-Alamin v. Gramley, 926 F.2d 680 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Campbell v. Illinois Dept. of Corrections, 2001 WL 289783 (N.D.Ill. 2001) . . . . . . . . . . . . . . . . . 80
Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Anderson v. Gutschenritter, 836 F.2d 346 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 68
Anderson v. Simon, 217 F.3d 472 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 67, 68
Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Badillo v. Central Steel and Wire Co., 717 F.2d 1160 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . 84
Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Balark v. Curtin, 655 F.2d 798 (7th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Bazzetta v. McGinnis, 124 F.3d 774 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996) . . . . . . . . . . . . . . . . 20
Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) . . . . . . . . . . . . . . 62, 64, 66
Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Biblia Abierta v. Banks, 129 F.3d 899 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Billups v. Galassi, 202 F.3d 272 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Black v. Lane, 22 F.3d 1395 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58
Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227 (1984) . . . . . . . . . . . . . . . . . . . . . . . 48, 62, 64
Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790 (1980) . . . . . . . . . . . . . . . . . . . . . . . 7
Booth v. Churner, 121 S. Ct. 1819 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) . . . . . . . . . . . . . . . . . . . . 43
Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Brookins v. Kolb, 990 F.2d 308 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Brooks v. Buscher, 62 F.3d 176, 182 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Burgess v. Lowery, 201 F.3d 942 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 48
Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) . . . . . . . . . . . . . . . . . 21
Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Campbell v. Peters, 256 F.3d 695 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 68
Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978) . . . . . . . . . . . . . . . . . . . 32
A-10

Carr v. O’Leary, 167 F.3d 1124 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cassidy v. Indiana DOC, 199 F.3d 374 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 71
Cefalu v. Village of Elk Grove, 211 F.3d 416 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Chavez v. Illinois State Police, 251 F.3d 651 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694 (1978) . . . . . . . . . . . . . . . . . . 80
City of Boerne v. Flores, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997) . . . . . . . . . . . . . . . . . . . . . . 50
City of Chicago, 210 F.3d 779 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748 (1981) . . . . . . . . . . . . . . . 32
City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) . . . . . . . . . . 80
Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985) . . . . . . . . . . . . . . . 21
Coll. Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119
S.Ct. 2219 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) . . . . . . . . . . . . . . . . . . . . . . . . 6
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Corriz v. Naranjo, 667 F.2d 892 (10th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Crawford v. Garnier, 719 F.2d 1317 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 71
Crusoe v. DeRobertis, 714 F.2d 752 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Daniels v. Williams, 474 U.S. 327 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Davis v. Ruby Foods, Inc., 269 F.3d 818 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . 23, 26
Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 65
Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Demarest v. Manspeaker, 498 U.S. 184, 111 S. Ct. 599, 112 L. Ed. 2d 608 (1991) . . . . . . . . . . . 83
DeTomaso v. McGinnis, 970 F.2d 211 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 56
DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-39, 57, 70
Di Angelo v. Illinois Dep’t of Public Aid, 891 F.2d 1260 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 3
Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Dreher v. Sielaff, 636 F.2d 1141 (7th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Dunphy v. McKee, 134 F.3d 1297 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) . . . . . . . . . . . . . . 57
EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . 82
Erickson v. Bd. of Governors of State Colleges and Universities for Northeastern Illinois Univ.,
207 F.3d 945 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Estate of Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A-11

Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 785 (1976) . . . . . . . . . . . . . . . . . . . . 39
Estelle, Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321 (1991) . . . . . . . . . . . . . . . . . . . . . . . 40, 65
Evans v. McBride, 94 F.3d 1062 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Falcon v. United States Bureau of Prisons, 52 F.3d 137 (7th Cir. 1995.) . . . . . . . . . . . . . . . . . . . . 47
Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 85 S. Ct. 411 (1964) . . . . . . . . . . . . . . . . . . . . . . 83
Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) . . . . . . . . . . . . . . . 35
Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) . . . . . . . . . . . . . . . . . . 79
Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 62
Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 41
Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) . . . . . . . . . . . . . . . . . 21
French, 120 S.Ct. 2246 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
French v. Duckworth, 178 F.3d 437 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Froehlich v. State Dep’t of Corrections, 196 F.3d 800 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 47
Fuller v. Dillon, 236 F.3d 876 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 61
Gaither v. Anderson, 236 F.3d 817 (7th Cir 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Geitz v. Lindsey, 893 F.2d 148 (7th 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Gentry v. Duckworth, 65 F.3d 555 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . 75
Goffman v. Gross, 59 F.3d 668 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Gomez v. Toledo, 446 US. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980) . . . . . . . . . . . . . . . . . . 6
Goodman v. Carter, 2001 WL 755137 (N.D. Ill. July 2, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Gora v. Costa, 971 F.2d 1325 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Hakim v. Hicks, 223 F.3d 1244, 1249 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Haley v. Gross, 86 F.3d 630, 644 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 36
Hall v. Sheahan, 2001 WL 111019 (N.D. Ill. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Hall v. Stone, 170 F.3d 706 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hansen v. Rimel, 104 F.3d 189 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982.) . . . . . . . 17
Harper v. City of Chicago Heights, 223 F.3d 593 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Harris v. Greer, 750 F.2d 617 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Harvey v. Schoen, 245 F.3d 718 (8th Cir. 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Heck v. Humphrey, 512 U.S. 477 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 56, 73
Helling v. McKinney, 509 U.S. 25 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 67
A-12

Henderson v. Bolanda, 253 F.3d 928 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Henderson v. United States Parole Comm’n, 13 F.3d 1073 (7th Cir. 1994) . . . . . . . . . . . . . . . 53, 60
Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81
Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Hill v. Shelander, 992 F.2d 714 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 38
Hoard v. Reddy, 175 F.3d 531 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Hossman v. Blunk, 784 F.2d 793 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) . . . . . . . . . . 37, 39, 65
Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) . . . . . . . . . . . . 9, 61, 62
Hughes v. Rowe, 449 U.S. 5, 14-16 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Hunafa v. Murphy, 907 F.2d 46 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Hutto v. Finney, 437 U.S. 678 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) . . . . . . . . . . . . . . . . . . . . 23
illiams v. Lane, 851 F.2d 867 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Jackson v. Duckworth, 955 F.2d 21 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Jackson v. Marion County, 66 F.3d 151 (7th Cir. 1995.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Jelinek v. Greer, 90 F.3d 242 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Johnson v. Doe, 2000 WL 1529788 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) . . . . . . . . . . . . . . 20
Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726 (7th Cir. 1995) . . . . . . . . . . . . . . 79
Johnson v. Litscher, 260 F.3d 826 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 58
Johnson v. Pelker, 891 F.2d 136 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 68
Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . 6
Johnson-Bey v. Lane, 863 F.2d 1308 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Joihner v. McEvers, 898 F.2d 569 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988.) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jones v. Sandahl, 35 F.3d 568 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Jutzi-Johnson v. United States, 263 F.3d 753 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 42
Kansas v. Hendricks, 521 U.S. 346 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Kilbury v. Budz, 2001 WL 845471 (N.D. Ill. July 24, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A-13

Kincaid v. Vail, 969 F.2d 594 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000) . . . . . . . . . . . 7, 8
Kinney v. Indiana Youth Ctr., 950 F.2d 462 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Knox v. McGinnis, 998 F.2d 1405 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Kulmani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 83
Langston v. Peters, 100 F.3d 1235 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Leatherman v. Tarrant County Narcotics Intel. and Coord. Unit, 507 U.S. 163, 113 S. Ct. 1160,
122 L. Ed. 2d 517 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 26
Lemons v. Skidmore, 985 F.2d 354 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Lewis v. Casey, 518 U.S. 343, 355 (1996.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 43
Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 66
Lusz v. Scott, 126 F.3d 1018 (7th Cir. 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980) . . . . . . . . . . . . . . . . . . 79
Malinowski v. DeLuca, 177 F.3d 623 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mallard v. United States Dist. Court, 490 U.S. 296, 109 S. Ct. 1814 (1989) . . . . . . . . . . . . . . . . . . 2
Mann v. Reynolds, 46 F.3d 1055 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) . . . . . . . . . . . . . . . . . . . 80
Martin v. Tyson, 845 F.2d 1451 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
Maul v. Constan, 23 F.3d 143 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
May v. Sheahan, 226 F.3d 876 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 67
Mayoral v. Sheahan, 245 F.3d 934 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
McCarthy v. Bronson, 500 U.S. 136 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
McCormick v. City of Chicago, 230 F.3d 319 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 26
McCoy v. Gilbert, 270 F.3d 503 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
McGill v. Faulkner, 18 F.3d 456 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
McPherson v. McBride, 188 F.3d 784 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) . . . . . . . . . . . . . . . . . 45
Meachum v. Fano, 437 U.S. 215 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Mireles v. Waco, 502 U.S. 9 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mitchell v. Randolph, 215 F.3d 753 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978) . . . . . . . . . . . . . . . . . . 26
Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976) . . . . . . . . . . . . . . . 45
A-14

Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55
Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 (7th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . 25
Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Morrisey v. Brewer, 92 S. Ct. 2593 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Morrissette v. Peters, 45 F.3d 1119 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Murdock v. Washington, 193 F.3d 510 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ohio Parole Authority v. Woodard, 523 U.S. 272 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) . . . . . . . . . . . . . . 46
Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Omdahl v. Lindholm,170 F.3d 730 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Outlaw v. Newkirk, 259 F.3d 833 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38
Overruling Monroe v. Pape, 365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Owen v. Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980.) . . . . . . . . . . . . . 17
Owen v. Lash, 682 F.2d 648 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989) . . . . . . . . . . . . . . . . . . 7
O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 1400, 96 L. Ed. 2d 282 (1987) . . . . . . . . 49
Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981) . . . . . . . . . . . . . . . . 9, 61
Payton v. Rush Presbyterian St. Luke’s Med. Ctr., 184 F.3d 623 (7th Cir. 1999.) . . . . . . . . . . . . . 19
Pearson v. Gatto, 933 F.2d 521 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 68
Pekham v. Wisconsin Dep’t of Corrections, 141 F.3d 694 (7th Cir. 1998) . . . . . . . . . . . . . . . . 62, 63
Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) . . . . . 26, 27
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984) . . . . . . . . . . . . . 23
Pennsylvania Bureau of Corrections v. United States Marshals Serv., 474 U.S. 34, 106 S. Ct.
355, 88 L. Ed. 2d 189 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pennsylvania Dep’t of Corrections v. Yeskey, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998) . . . . . . . 70
Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 12
Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988) . . . . . . . . . . 81, 82
Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pope v. Shafer, 86 F.3d 90 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Porter v. Nussle, 121 S. Ct. 2213 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Portillo v. U.S. Dist. Court, 15 F.3d 819 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Power v. Summers, 226 F.3d 815 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pritchett v. Page, 2000 WL 1129891 (N.D. Ill. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 69
Ralston v. McGovern, 167 F.3d 1160 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Ramirez v. Turner, 991 F.2d 351 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A-15

Rapier v. Harris, 172 F.3d 999 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Read Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 41, 81
Reed v. McBride, 178 F.3d 849 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct. 202, 102 L. Ed. 2d 1988 (1988) . . . . . . . . . . . . . . . . . 79
Richards v. White, 957 F.2d 471 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Robinson v. Page, 170 F.3d 747 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Row v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 34
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748 (1992) . . . . . . . . . . . . . . . . . 75
Ruiz v. U.S., 243 F.3d 941 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Sahagian v. Dickey, 827 F.2d 90 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Sampley v. Duckworth, 72 F.3d 528 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 48, 54, 55
Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25, 26, 42
Sasnett v. Litscher, 197 F.3d 290 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Scoby v. Neal, 981 F.2d 286 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 63
Selling v. Young, 121 S. Ct. 727 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Sentmyer v. Kendall County, 220 F.3d 805 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Shaw v. Murphy, 121 S. Ct. 1475 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Sherman v. Four County Counseling Ctr., 987 F.2d 397 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 19
Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Shoats v. Horn, 213 F.3d 140 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) . . . . . . . . . . . . . . . . . . . . 32
Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Snipes v. DeTella, 95 F.3d 586 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Soto v. Dickey, 744 F.2d 1260 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Spellan v. Board of Educ. for Dist. 111, 59 F.3d 642 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . 79
Spencer v. Kemma, 523 U.S. 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
sposito v. Piatrowski, 223 F.3d 497, 501 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) . . . . . . . . . . . . . . 26
Stanciel v. Gramley, 267 F.3d 575 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 46, 71
state of Novack v. County of Wood, 226 F.3d 525 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 43
Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 36
Sullivan v. Flannigan, 8 F.3d 591 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 62
A-16

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) . . . . . . . . . . . . . . . . . . . . . 58, 59
Sweeney v. Parke, 113 F.3d 716 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Swint v. Chambers County Comm’n, 514 U.S. 35, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995) . . . . 20
Tesch v. County of Green Lake, 157 F.3d 465 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989) . . . . . . . . . . . . . . 79
Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 68
Thomas v. Stalter, 20 F.3d 298 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Tineybey et al. v. Peters, 2001 WL 527409 (N.D. Ill. May 16, 2001) . . . . . . . . . . . . . . . . . . . . . . 73
Tineybey v. Peters, 2000 WL 705983 (N.D. Ill. May 18, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
U.S. v. Boyd, 208 F.3d 592 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
U.S. v. Hallmark Const. Co., 200 F.3d 1076 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed 2d 218 (1966)
.............................................................................8
U.S. v. Gouveia, 467 U.S. 180 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
U.S. v. Ross, 243 F.3d 375 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
U.S. v. Whalen, 940 F.2d 1027 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Ustrak v. Fairman, 781 F.2d 573 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 120 S. Ct. 1858 (2000) . . . . . . . . . 22
Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) . . . . . . . . . . . . . . . . . . . 60
Vukadinovich v. McCarthy, 59 F.3d 58 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Wagner v. Hanks, 128 F.3d 1173 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56
Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 59
Walker v. Peters, 233 F.3d 494 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23, 71
Wallace v. Mulholland, 957 F.2d 333 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Walters v. Edgar, 163 F.3d 430 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) . . . . . . . . 18, 61, 62
Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 59
Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Whitlock v. Johnson, 153 F.3d 380 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Will v. Michigan Dep’t of State Police, 491 U.S. 48, 109 S. Ct. 2304 (1989) . . . . . . . . . . . . . . . . . 23
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304 (1989) . . . . . . . . . . . . . . . . . 21
Williams v. O’Leary, 55 F.3d 320 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Williams v. Ramos, 71 F.3d 1246 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Wilson v. Garcia, 471 U.S. 261 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A-17

Wilson v. Groaning, 25 F.3d 581 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 39
Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Wisconsin v. Hotline Industries, Inc., 236 F.3d 363 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 82
Wolff v. McDonnell, 418 U.S. 539 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Woods v. Thieret, 5 F.3d 244 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 23, 40
Young v. Lane, 922 F.2d 370 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46
Zinermon v. Burch, 494 U.S. 113, 100 S. Ct. 975, 108 L. Ed. 2d 100 (1990) . . . . . . . . . . . . . . . . 61
STATE CASES
People v. McDougle, 3030 Ill.App.3d 509, 708 N.E.2d 482 (Ill. App. 1999) . . . . . . . . . . . . . . . . . 73
People v. McVeay, 302 Ill. App.3d 960, 706 N.E.2d 539 (Ill. App. 1999) . . . . . . . . . . . . . . . . . . 73
Sayles v. Thompson, 75 Ill. Dec. 446, 457 N.E.2d 440 (Ill. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 47
FEDERAL STATUTES
18 U.S.C. § 3006A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
18 U.S.C. § 3626(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
18 U.S.C. § 3626(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
28 U.S.C. § 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 58, 59
28 U.S.C § 1915A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
28 U.S.C. § 1915(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
28 U.S.C. § 1915(a)(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1915(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
28 U.S.C. § 1915(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1915(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
28 U.S.C. § 1915(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, A-1
28 U.S.C. § 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 83
28 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 59
28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 59
28 U.S.C. § 2412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
28 U.S.C. §§ 2241, 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
28 U.S.C.A. § 1367(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28 U.S.C.A. § 1821(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
28 U.S.C.A. § 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
A-18

28 U.S.C.A. § 2202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
28 U.S.C.A. § 2412(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
42 U.S.C. § 1997e(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
42 U.S.C. § 1997e(d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
42 U.S.C. § 1997e(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
42 U.S.C. § 1997e(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
42 U.S.C. § 1997e(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
42 U.S.C. § 1997e(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 78
42 U.S.C. § 1997e(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
42 U.S.C. § 1997e(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
42 U.S.C.A. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 54, 78
42 U.S.C.A. § 1988(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
42 U.S.C.A. § 1997e(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
42 U.S.C.A. § 1997e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, A-2
42 U.S.C.A. § 2000bb-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
18 U.S.C. § 3626(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 78, 81
18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
18 U.S.C. § 3626(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

STATE STATUTES
5 Ill. Comp. Stat. Ann. 350/1-350/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 77
5 Ill. Comp. Stat. Ann. 350/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
65 Ill. Comp. Stat. Ann. 5/8-1-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
725 ILCS 205/1.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
725 ILCS 207/40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
725 ILCS 207/5(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
730 Ill. Comp. Stat. Ann. 5/3-6-3(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
730 Ill. Comp. Stat. Ann. 5/3-7-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
735 Ill. Comp. Stat. Ann. 5/13-202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
735 Ill. Comp. Stat. Ann. 5/22-105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
745 Ill. Comp. Stat. Ann. 10/2-301-302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Illinois Sexually Violent Persons Commitment Act (“SVPCA”), 725 ILCS 207/1 . . . . . . . . . . . . . . 72

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