A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL 10, NO.1, WINTER 1994/95 ~.ISSN 1076-769X

"Corrections-Industrial Complex" Expands in u.s.
ed Goins, a securities
analyst at Branch,
Cabell & Co. in
Richmond, Va. spent a
weekend last spring reading
through every detail of the
federal Crime Bill and
watching the debate on
C-Span. He then came up
with a list of "theme stocks of·
the 90s."
Goins' highest recommendation went to the Nashville-based
Corrections Corporation of
Features:
America (CCA)-the nation's
• Stab protection - to 81.1
~~~~~~~~'t~~e:~~~;li.
most successful operator of prifomia Correctional Standard.
vate prisons-whose stock had
• Slash protection f.chjeved
with space-age titanium.
recently hit an all-time high.
• Blunttrauma protectio nyOU'll barely feel the blows.
CCA's chief financial officer was
• Aama protection with fir~~
retardant Nomett' covenng.
quoted as saying that the Crime
The S.T.A.R. vest gives you a maximum range
of motion for close confrontaUons.
Bill was "very favorable to us."!
I-_~"I Don't Get Stuck With Anything Less.
_.-.=0CCA's success is but one example
1ft",."Int Blank '85",,00 A.. Ami""" NY 11101
of the profits to be made by a rapidly growr@J
BODYARMOR (800)64S4443"lnNY.(516)842.3900
ing constituency of architects, private prison
operators, vendors, labor unions, developers, financiers, and other entrepreneurs.
complex," cautions against the spread of a
Most recently, defense contractors, who
system of crime control in which ethical
have been hyrt by cuts in military spending,
questions are suppressed and efficient manhave been searching for opportunities in the
agement supplants justice. 2
corrections industry.
Will the economic motives of business
The combination of these lucrative busiconflict with the objectives of providing
ness opportunities, political posturing, the
decent conditions of confinement? Will
war on drugs, and deep social divisions
prison businesses maintain high occupancy
within the United States have created a rapid
rates even in the absence of demonstrated
expansion of the "crime control industry."
need? And, as Malcolm Feeley asks, to
The buyers and sellers of prison goods and
what extent does privatization expand and
space are lining up to cash in.
transform the state's capacity to punish?3
Critics warn, however, that the econOlnic
That the United States is moving full steam
interests of industry will always be on the
ahead to expand this system is unquestionside of oversupply of prison space rather
able. In 1980 the total state and federal
than undersupply, establishing an extraordisentenced inmate population was 329,821.
narily strong force for expansion.
At midyear 1994 that total had risen to
Renowned Norwegian criminologist Nils
1,012,851. 4 The 1994 federal Crime Bill
Christie, one of the most outspoken critics
provides nearly $9 billion for state prison
of the emerging "corrections industrial
construction. During FY 1993-94 state pris-

T

ons added at least 105,219 beds, an
increase of 13% from the 1992-93 totals
of 92,028 beds.
Some of the biggest names in finance

have become involved: Goldman Sachs &
Co., Prudential Insurance Co. of America,
Smith Barney Shearson Inc. and Merrill
Lynch & Co. Many of the companies work
to underwrite prison construction with
private, tax-exempt bonds which require
no voter approval.
A Shoppers' Guide

Private companies are now available
to provide consulting, personnel management, architecture and building design,
vocational assessment, medical services,
drug detection, transportation, food service
and management to state prison systems.
Other businesses have been formed to sell
specialized products such as body armor,
closed circuit television systems, mechanical
and electronic locks, perimeter security and
motion detection systems, tamper-proof
furniture, fencing, flame-retardant bedding,
heavy duty furniture, shatter proof plastic
panels, plastic bunks, tamper-proof fasteners, and clog proof waste-disposal systems. One company sells high-security fire
sprinklers designed so that inmates cannot
hang themselves.
Aquick look through the advertisements
in any issue of Corrections Today, the ACA's
glossy magazine, reveals a certain talent for
wordplay:
• Coastal Correctional Healthcare, Inc.:
Put a Lock on Healthcare Problems. Are
correctional healthcareproblems on
the loose in yourfacility? Let usput the
cuffi on them. "

• Santana (plastic toilet compartments):
"Igot 10years, but Santana is in here
for life!"
• AT&T: Strike Three! 3-way call detect
system stops your inmatesfrom getting
out. And it's proven 93% effective. "
• Point Blank BodyArmor: "Some
inmates would love to stab, slash,
pound, punch and burn you. But they,.
won't getpastyour S. TA.R. (Special .
TacticalAnti-Riot Vest).
The lobbying power of these companies;
especially defense contractors with lobbyists
in Washington and long-term relationships
on Capitol Hill, distorts the dialogue that
should be taking place about the effectiveness of incarceration as a policy and drowns
more reasonable voices.
"We're not going to be able to lock up
everyone," said Bobbie 1. Huskey, president
of the ACA. "The absence of a noticeable
reduction in adult crime rates as incarceration rates have climbed raises serious
questions about the efficacy of America's
sentencing policies."5
Yes, In My Back Yard
For many years prison officials faced the
"NIMBY" problem: when communities
heard about plans for a new prison, the
outcry was "Not In My Back Yard!" Times
have changed.
"Communities started looking for any
kind of economic growth," says Bill Patrick
of the Federal Bureau of Prisons. "They
started realizing we were a recession-

proof, environmentally clean, attractive,
safe industry.,,6
Financially strapped communities are now
begging for prisons to be built in their back
yards. Town leaders in Coleman, Florida,
the former "Cabbage Capital of the world,"
population 854, lobbied aggressively for a
new Bureau of Prisons site. The new prison
is now partially completed.
In Texas, some communities have offered
free memberships in local country clubs to
top officials of any prison that comes to
town. Dick Lewis., spokesman for the
state jail divisioQ Of the Department of
Corrections, said, "Fifteen years ago, if you
wanted to place a prison in a locale, you
would have major opposition. Now the turnaround is 180 degrees. They are seeking
these prison units. The local media calls it
the prison derby."l
Braham, Minnesota is trying to purchase
about 300 acres to donate the land to the
state for an $80 million, 800-bed, close
custody prison. (The BOP requires that land
for a prison be donated by the state.)
James Bruton, the state's deputy commissioner for institutions, said he could
understand why small towns like Braham
seek the prison for economic salvation.
But he worries about the long run. "We can-

Editor: Jan Elvin
Editorial Asst.: Jenni Gainsborough
Regular Contributors: John Boston,
Russ Immarigeon
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connecticut Ave" NW, #410
Washington, DC 20009
(202) 234-4830 FAX (202) 234-4890
The National Prison Proiect is a tax-exempt foundation-

funded project of the AClU Foundotion which seeks to
strengthen ond protect the rights of odult ond juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judicial channels; and to develop alternatives to
incarceration.

The reprinting of JOURNAL moteriol is encouroged with
the stipulation that the Notional Prison Proiect JOURNAL
be credited with the reprint, ond that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publicotion quorterly by
the National Prison Proiect. Materials and suggestions
are welcome.

"Remember, we're notjust making money. We're buildingprisons. "

2

WINTER 1995

The NPP JOURNAL is available on 16mm
microfilm, 35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.
THE NATIONAL PRISON PROJECT JOURNAL

not build ourselves out of the crime problem," says Bruton. "Every state that's tried it
has failed miserably. You'll never see a
reduction in the crime rate by building
more prisons. What you're going to find out
is that you can't afford to operate what
you've built."

r

I"

I!

II
IIII
i

Privatization
Cornell Cox, a private firm in Houston,
entered the California market by bUying the
state's largest private prison firm, Eclectic
Communications, Inc. Cornell Cox is
backed by Wall Street investment houses
Dillon, Reed & Co. and Charterhouse. Since
1988, Eclectic has received contracts worth
more than $50 million. The former owner,
Arthur McDonald, sold the company for
more than $10 million, according to the Los
Angeles Times. "Crime pays. I hate saying
that, but it really does," said McDonald from
retirement in South Dakota. 8
The two largest companies in the field are
Corrections Corporation of America (CCA)
and Wackenhut Corrections Corporation.
CCA recently entered the inmate transportation business by purchasing TransCor
America. "One of TransCor's biggest expenses is overnight housing of prisoners on
transcontinental routes," said Doctor
Crants, CCA chairman and chief executive
officer. "CCA's network of facilities will
give TransCor ready access to quality,
secure beds, while CCA will gain incremental occupancy."
Tennessee's $60 million contract with
CCA is currently under review by the
state legislature.
CCA has come under fire from government audits in Texas of two of their privately
run prisons. The 1990 report disclosed that
"inexperienced" prison employees had used
excessive force on inmates. Additionally,
inmates were not getting the services which
were requlred under the state contracts and
intended to help inmates return to society.9
Another U!]favorable report was issued by
the Prison Officers' Association in the United
Kingdom in 1987, alleging cruelty to
inmates at the CCA facility at Silverdale and
abhorrent conditions. 10
As of now, fewer than 2% of the nation's
prisoners are incarcerated in private facilities, but the new Republican crime bill presently before Congress will add $10 billion for
prison construction, some ofwhich will go to
private prisons.

Six states have a corrections operating
budget of over one billion dollars.
California's tops the list with a budget of
over $3.6 billion. Here are some examples
of what that has meant for Californians:
• In the last ten years the DOC's share of
the State's General Fund rose from 3.9%."
to 8.2% while higher education's share"
declined from 14.4% to 9.3%.
• The multi-billion dollar prison and socalled crime control expansion wiQ force
cuts in education, job training, youth
counseling and other social services, the
very programs that address the root
causes of crime;
• The Los Angeles District Attorney's Office
says that three out of four offenders who
get life sentences under Proposition 184
("Three Strikes You're Out") will be
non-violent offenders, at a cost of $48
billion over 20 years for Los Angeles'
prisoners alone.
• Based on information provided by the
DOC, increases in California's prison population will result in additional state operating costs of about $200 million in 199596, and will grow by several hundred million each year until the full impact is realized in about 32 years. By the year 2003,
the additional costs will reach about $3
billion, and will grow to about $6 billion
annually by the year 2026. The DOC predicts that it will incur one-time costs of

about $20 billion over the next 32 years
to construct new facilities.
Connections
Corrections has traditionally operated
without political advantage, but can now
benefit from the lobbying skills of many
private providers.
"An urge for expansion is built into
industrial thinking," says Dr. Christie.
But the prison industry is one with particular advantage because it provides "weapons
for what is o~n seen as a permanent war
against crime,'The crime control industry
is like rabbits in Australia or wild mink
in Norway-there are so few natural
enemies around."
With the boom have come lobbyists who
have an economic interest in keeping sentences harsh and long, so that prison populations continue to soar.J1 Thus, we see a
system developing where the deprivation of
liberty is powered in large part by the profit
motive. Christie warns, "You get private lobbying for prisons and you get private capital
interested in building more prisons, in
expanding that system ...The industry has no
interest in its own abolition." •

Jan Elvin is the editor ofthe NPP Journal.
Continued on next page

State spending
According to a survey of 47 states for
Fiscal Year 1994-95, the average DOC budget
is around $507 million per system, up
from an average of $447 million per system
in :IT 93-94.
THE NATIONAL PRISON PROJECT JOURNAL

WINTER 1995

3

....

from page 3
1 Paulette Thomas, "Making Crime Pay," The
Wall Streetjournal, May 12, 1994, p. AI.
2 Nils Christie, Crime ControlAs Industry:
Towards Gulags, Western Style, London and
New York: Routledge, 1993.
3 Malcolm M. Feeley, The Privatization of
Prisons in Historical Perspective, Criminal
Justice Research Bulletin. Sam Houston State
University 1991, vo1.6 No.2 pp.l-lO.
4 Bureau ofJustice Statistics, U.S. Department
ofJustice.
5 Criminaljustice Newsletter, Vo1.26, No.1,
Jan.3, 1995, p.5.
6 Meddis and Sharp, "Prison Business is a
Blockbuster," USA Today, Dec. 13,1994, p. lOA
7 Edward Walsh, "Strapped Small Towns Try to
Lock Up Prisons," The Washington Post,
December 24, 1994, pA3.
8 Dan Morain, "Privately Operated Prisons a
Potential Growth Industry," LosAngeles Times,
October 19, 1994, p. A15.
9 Mike Ward, "Private prisons faulted on services, discipline," TheAustinAmericanStatesman, Wednesday, May 16,1990.
10 "The State and Use of Prisons in England
and Wales," Written Evidence to the Inquiry of
the Home Affairs Select Committee of the House
of Commons, February 1987.
11 "Politicians who support prison construction receive money from one of the biggest beneficiaries-the California Correctional Peace
Officers Association," from the Los Angeles
Times, Oct. 16, 1994. The union gave more
than $900,000 to Governor Pete Wilson's 1990
run for governor.

"Crime pays. I hate

-Arthur McDonald
after selling the c
"There's no bigg
than the correction

-State Senator;
"Prison constructi

-Jim Hawthorne,
"Americans' fear of
complex, an infrastruc
state and local dollars."

-The Wall Street;
"The [prison indu
industrial complex'
war, there is luc .
of Wall Street un
and developers."
-Peter Pringle
"I already se
state like Texas w

-RodRyan, rep
. "We try to keep

-Melissa Crane
financing team.
"Corrections has
consultants, lobbyi
industry. Like any spe
its empire growing."

-Texas Comptro
prison system as ((
''What can I say, i

-Larry Solomo
ersfood topriso

PRJ Members Confer on UN
Prison Standards

,'This

is not, in fact, a very popular
theme." With classic Dutch understatement Winnie Sorgdrager, the
Netherlands Minister ofJustice, introduced
the major conference on prison standards
held in The Hague last November by Penal
Reform International (PR!), and funded by
her government.
PRl members from five continents
described a world where standards for prisoners, and penal reform in general, are
indeed very low on the public agenda. We
heard a dispiriting picture of rising crime,
outstripped only by rising fear of crime, of
public and political pressure towards more
4

WINTER 1995

imprisonment, set against tight budget constraints. Above all, of the proven ineffectiveness of treating prisoners badly as a way of
reducing crime. "Today's convict is tomorrow's ex-convict," Professor Monika Platek
of Warsaw University summed up. "The better we treat prisoners, the safer is society."
Hence the main task of the conference: to
prepare a manual that would update the
1955 United Nations Standard Minimum
Rules (SMRs) for the Treatment of
Prisoners. The rules are in many respects
badly out of date-drawn up before equal
opportunities, or drugs or AIDS.
Nevertheless, international penal reformers

(including senior UN officials) are convinced that a new set of rules would get
nowhere today. Indeed, UN member states
would not agree to new SMRs laying down
even the 1955 standards. (As one participant pointed out, about half the member
countries of the UN today use torture.)
During three days' hard committee work,
three points in particular became clear.
First, despite vast differences in wealth and
culture, basic prison standards should be
universal. Participants from the developing
world did not want adjustments downwards, they wanted firm principles as a
lever in the struggle to raise standards.
Second, prisons are a reflection of how
much the world is shrinking. Participants
from western countries stress the growing
proportion of their prison population who
are foreign nationals. Immigration
detainees-asylum seekers in particular-

Continued on page 16
THE NATIONAL PRISON PROJECT JOURNAL
~~'1iII6£-'lIIlII!r~-lIIIlll'-_.lIlIE'

11

Status Report: State Prisons and
The Courts January 1, 1995

,
I

II

SUMMARY
Thirty-nine states plus the District of
Columbia, Puerto Rico, and the Virgin
Islands are under court order or consent
decree to limit population and/or improve
conditions in either the entire state system
or its major facilities. Thirty-three jurisdictions are under court order for overcrowding or conditions in at least one of their
major prison facilities, while nine jurisdictions are under court order covering their
entire system. Only three states have never
been involved in major litigation challenging
overcrowding or conditions in their prisons.
The following list gives the current status of
each state.
Note: There is some overlap between the
second and fourth categories because, in
some states, one or more facilities are
under court order while other facilities in
that state are presently being challenged
(e.g., Illinois). Also, Oklahoma is listed in
both the second and third categories
because the McAlester facility is still under
the court order entered in Battle v.
Anderson but is no longer under active
court supervision.

Entire Prison System Under Court /-'
Order or Consent Decree
.\!'
9 jurisdictions: Alaska, Delaware,
Mississippi, New Mexico, Rhode Island,
South Carolina, Texas, Puerto Rico, V)tgin
Islands.
Major Institution(s) in the State/
Jurisdiction Currently Under Court
Order or Consent Decree
33 jurisdictions: Arizona, California,
Colorado, Connecticut, Florida, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Missouri, Nevada,
New Hampshire, New York, North Carolina,
Ohio, Oklahoma, Oregon, Pennsylvania,
South Dakota, Utah, Virginia, Washington,
West Virginia, Wisconsin, District of
Columbia.
Formerly Under Court Order or Consent
Decree or Currently Released from Active
Supervision of the Court
7 jurisdictions: Alabama, Arkansas, Georgia,
Oklahoma, Oregon, Tennessee, Wyoming.

'."-,:< .~:. ,. ,-.~ .....

THE NATIONAL PRISON PROJECT JOURNAL

Pending Litigation
11 jurisdictions: California, Colorado,
Connecticut, Georgia, Montana, Nebraska,
New York, North Carolina, Ohio, Utah,
Vermont.

'~-

Special Masters/Monitors/Mediators
Appointed (present and past)
24 jurisdictions: Alabama, Alaska,
. Arizona, Arkansas, California, Florida,
Georgia, Hawaii, Idaho, Illinois, Kansas,
Louisiana, Mi~higan, Nevada, New Mexico,
New York, Ohio, Pennsylvania, Rhode
Island, Tennessee, Texas, Washington,
District of Columbia, Puerto Rico.
Prison Systems or Major Facilities
Under Court Order and Cited for
Contempt (present and past)
8 jurisdictions: Alabama, Michigan,
Mississippi, Rhode Island, Texas, Virginia,
District of Columbia, Puerto Rico.
Not Involved (to date) in Overcrowding
or Conditions Litigation
3 jurisdictions: Minnesota, New Jersey,
North Dakota.

Thefull Status Report, with details on '
the litigation in each state, will be sent
to Journal subscribers under separate
cover. For non-subscribers thefull Status
Report is availablefor $5 prepaidfrom
the NPp, 1875 ConnecticutAvenue,
Suite 410, Washington, DC 20009.

... ---

WINTER 1995

5

1
A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL 10, NO.1, WINTER 1994/95 • ISSN;J076-769X

Highlights of Most
Important Cases
Habeas Corpus/Exhaustion
of Remedies
During the 1993-94 term, the Supreme Court
finally addressed a long-standing ambiguity in the
relationship between 42 U.S.C. §1983 and the federal habeas corpus statutes in cases where prisoners seek relief related to the fact or duration of
their imprisonment. In Heck v. Humphrey, 114
S.Ct. 2364 (1994), the Court definitively clarified
the matter for prisoners who allege that their
criminal convictions or sentences are defective.
However, the waters remain murky for prisoners
challenging disciplinary, parole, or other administrative decisions affecting the time they must serve.
Heck addressed what one commentator has
called "the Preiser puzzle." Schwartz, "The
Preiser Puzzle: Continued Frustrating Conflict
Between the Civil Rights and Habeas Corpus
Remedies for State Prisoners," 37 DePaulL.Rev.
85 (1988). In Preiser v. Rodriguez, 411 U.S. 475
(1973), the plaintiffs brought suit under §1983 to
get back "good time" (time off for good behavior)
that had been taken from them in prison disciplinary proceedings. The Court ruled that when a
state prisoner challenges "the very fact or duration
of his physical imp}jsonment, and the relief he
seeks is a determination that he is entitled to
immediate release or a speedier release from that
imprisonment, his sole remedy is a writ of habeas
corpus." 411 U.S. at 500. The Court reasoned that
challenges to custody represent the "core of
habeas corpus," 411 U.S. at 487, and that allowing such challenges under §1983 would let prisoners evade the statutory mandate of exhaustion
of state judicial remedies. See 28 U.S.C.
§2254(b).
The scope of the Preiser holding has been a
source of persistent controversy. Preiser explicitly
stated that a prisoner seeking damages "is attacking something other than tlle fact or length of his
confinement, and he is seeking something other
than immediate or more speedy release;" accordingly, damage actions do not require prior
6

WINTER 1995

exhaustion of state remedies. 411 U.S. at 494. The
follOwing year, in Wolffv. McDonnell, 418 U.S.
539 (1974), a §1983 suit alleging that prison disciplinary proceedings denied due process, the
Court held, "Preiser expressly contemplated that
claims properly brought under §1983 could go
forward while actual restoration of good time
credits is sought in state proceedings," and that
the plaintiffs could also obtain a federal court
declaratory judgment addressing the adequacy of
the procedures used and an injunction prospectively enjoining invalid regulations. 418 U.S. at
554-55. The Court added, "One would anticipate
that normal principles of resjudicata would
apply in such circumstances." Id. at n. 12.
It is this distinction among remedies that sets
up the "Preiser puzzle." If Wolffand Preiser
mean what they say, then a litigant can get a ruling
on the merits of an action that affects his or her
release date, along with damages, a prospective
injunction, or a declaratory judgment. The litigant
can then go back into state court armed with the
federal court judgment and demand the restoration oflost good time, rescinded parole date, etc.,
clainling resjudicata or collateral estoppel or
both. Insofar as Preiser was about federalism,
this procedure-which would reduce the state
courts to a "me too" role-does not seem to
serve its concerns. Even if the federal judgment
is not preclusive in state court, the potential
result is highly unsatisfactory: contradictory
judgments in different courts concerning the
same subject matter.
In cases involving criminal convictions or sentences, federal courts have consistently refused to
hear suru claims, regardless of the relief sought,
unless the litigant has previously exhausted state
judicial remedies. See, e.g.,Johnson v. State of
Texas, 878 F.2d 904, 906 (5th Cir. 1989) (damage claim for speedy trial violation and the use of
perjured testimony in a criminal proceeding may
not be pursued without exhaustion of state remedies); Hadley v. Werner, 753 F.2d 514,516 (6th
Cir. 1985) (a federal court should not make a ruling on a §1983 damage claim which might imply
that a state conviction was illegal). In cases involving administrative decisions-discipline, parole,
release date calculation-there has been a spectrum of approaches, discussed below.
Heck arose from a criminal conviction. The

plaintiff sought damages, but not release, based on
allegations that the defendants (county prosecutors and a state police investigator) had engaged
in an "unreasonable" and "arbitrary" investigation, destroyed exculpatory evidence, and used an
unlawful voice identification procedure at trial.
The court of appeals had held that the claim was
barred by Preiser.·It had gone on to hold that the
case should be dismissed, rather than stayed,
pending the exhaustion of state judicial remedies.
The appeals courts were in conflict on this point,
which is important because a dismissed claim can
become time-barred during the state exhaustion
process. See, e.g., Young v. Kenny, 907 F.2d at
878 (9th Cir. 1990); Prather v. Norman, 901
F.2d 915,919 (11th Cir. 1990).
The Court did not directly resolve this procedural issue. Rather, it held that Mr. Heck had no
claim cognizable under §1983. Because §1983
creates a "species of tort liability," the Court
looked to the law of malicious prosecution. The
Court deemed this the common-law tort most
nearly analogous to the plaintiffs claims because·
it "permits damages for confinement imposed
pursuant to legal process." The Court noted that
an element of that tort is termination of the prior
criminal proceeding in favor of the accused. 114
S.Ct. at 2371. Adopting this tort rule, it held that
the plaintiff would not have a cognizable claim
unless and until he got his conviction reversed,
which can only be done through exhaustion of
state judicial remedies with subsequent resort to
federal habeas corpus if necessary.
This holding does away with the "Preiser puzzle" for claims involving convictions and sentences. It also makes the stay versus dismissal
question a non-issue: if the claim does not accrue
until the conviction is reversed, the statute of limitations cannot run during the exhaustion process.
114 S.Ct. at 2373-74. Heck also resolved any
doubt-not that any existed-about prisoners'
inability to get around the exhaustion requirement
by seeking other forms of relief against their criminal convictions or sentences.
The Preiser rule, however, is not limited to
criminal judgments; it also applies to administrative actions such as prison disciplinary proceedings, parole decisions, and the calculation of
release dates. For prison litigators, the important
question is what application the malicious proseTHE NATIONAL PRISON PROJECT JOURNAL

.cution analogy may have for such administrative
matters-especially disciplinary proceedings.
The answer should be "none." The tort of malicious prosecution was traditionally limited to judicial proceedings, which prison disciplinary hearings are not. Some states maintain this "courtsonly" rule. See Greer v. DeRobertis, 568 F.Supp.
1370, 1376 (N.D.I1L 1983) (holding that prison
disciplinary proceedings cannot support a malicious prosecution suit under 1llinois law);
Kerpelman v. Bricker, 329 A.2d 423,427-28
(Md.Ct. Special Appeals 1974). Other states permit some malicious prosecution claims based on
administrative proceedings. Even these states have
generally done so in instances, such as professionallicensing and discipline proceedings, that were
much more like judicial proceedings than is a
prison disciplinary hearing. See, e.g., Toft v.
Ketchum, 113 A.2d 671,673-74 (N.]. 1955)
(ethics and grievance committee proceeding
against attorney); Kauffman v. A.H Robins Co.,
448 S.W.2d 400, 403 (Tenn. 1969) (license revocation proceeding before state board of pharmacy
with to subpoena witnesses and administer oaths).
Research reveals only one decision addressing
directly and in any detail whether a malicious
prosecution claim can arise from a prison disciplinary hearing. In Treacy v. State, 131 Misc.2d
849,501 N.Y.S.2d 1005 (N.Y.Ct.C!. 1986), ajj'd
on othergrounds sub nom. Arteaga v. State, 72
N.Y.2d 212,532 N.Y.S.2d 57,527 N.E.2d 1194
(N.Y. 1988), the court held that New York's rule
allowing claims for malicious prosecution in
administrative proceedings applied only to proceedings "which provide for a 'hearing and trial of
the issues on evidence and testimony under oath,
with the right of cross examination' ...." Aprison
disciplinary hearing "is not a full-scale adversarial
hearing" because it is governed only by the minimal requirements of Wolffv. McDonnell, without
a right to confrontation or the assistance of counsel and with only a qualified right to call witnesses.
501 N.Y.S.2d at 1006. Therefore Treacy held no
malicious prosecution claim could lie.
More fundamentally, a malicious prosecution
claim is completely different in concept and structure from a dis.ciplinary due process claim.
Malicious prosecution claims are brought against
the complainant in the case, not the court or other
tribunal that hears it. They are based on the lack
of probable cause for making the charges, not on
violations of procedural rights. W. Page Keeton et
al., Prosser and Keeton on The Law ofTorts §119
(5th ed. 1984). By contrast, a claim that the complainant falsely or baselessly filed disciplinary
charges is exactly what federal courts will not hear
in connection with prison discipline. See, e.g.,
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.
1989); Freeman v. Rideout, 808 F.2d 949,95153 (2d Cir. 1986), cert. denied, 485 U.S. 982
(1988). Viable disciplinary due process claims
are brought against the disciplinary hearing officer
or committee members, and they allege that these
officials failed to follow the procedures required
THE NATIONAL PRISON PROJECT JOURNAL

by due process in deciding the case against
the prisoner.
Nothing in Heck is to the contrary. Heck's discussion of malicious prosecution focuses explicitly
on criminal convictions and sentences, with no
suggestion that it is intended to govern disciplinary
proceedings or other administrative matters-/;'
which were, after all, not before the Court. .
Although Heck makes Preiser and Wolffirr¢levant to cases challenging criminal judgments, the
Court did revisit these decisions in passing.
Unforttmately, its comments, which are almost
certainly dicta, do little to clarify Preiser's application to administrative actions.
Before Heck, some courts held, or simply
assumed, that Wolff permitted them to grant any
relief not directly affecting a prisoner's release or
parole date. l Others held that no relief could be
granted under § 1983 if it would require a ruling
on whether good time was properly taken, parole
was properly revoked or denied, etc. 2 One variation of the latter approach permits prisoners to
obtain rulings under §1983 requiring officials to
follow proper procedures in connection with
future proceedings concerning their good time,
parole, etc., because such rulings do not directly
entitle the prisoner to earlier release. 3 Amore
restrictive view of this substance/procedure distinction holds that no relief can be granted under
§ 1983 based on a challenge to an individual prisoner's hearing affecting her release date; only
"broad-based attacks on general rules and procedures" can be heard without exhaustion of state
remedies, and even a "broad-based attack" may
be barred if it would resolve issues that would
automatically entitle the prisoner to release.4
Another appeals court similarly held that §1983
may not be used to decide an "underlying issue,"
even one of a general nature, that would indirectly
entitle the prisoner to immediate or earlier
release. s
Heck does little to narrow this diversity of views.
The Court wrote:
...Petitioner contends that [the plaintiffi
in Wolff were authorized] to recover damages
measured by the actual loss ofgood time. We
think not. In light ofthe earlier language
characterizing the claim as one of"damages
for the deprivation ofcivil rights, " rather
than damagesfor the deprivation ofgoodtime credits, we think that thispassage recognized a §1983 claimfor using the wrong
procedures, notfor reaching the wrong result
(i.e., denying good-time credits). Nor is there
any indication in the opinion, or any reason
to believe, that using the wrongprocedures
necessarily vitiated the denial ofgood-time
credits. Thus, the claim at issue in Wolff did
not call into question the lawfulness ofthe
plaintiffs continuing confinement...
Thus, the questionposed by §1983 damage
claims that do call into question the lawfulness ofconviction or confinement remains
open....

114 S.Ct. at 2370.
This passage continues to obscure the question
whether Preiser's application turns on the remedy
sought or the claim presented. The distinction
between "damages for the deprivation of civil
rights" and "damages for the deprivation of goodtime credits" is largely specious as a practical matter, as is the distinction between "a § 1983 claim
for using the wrong procedures" and one "for
reaching the wrong result (i.e., denying good-time
credits)." Damages are awarded for the actual
loss to the plaintiff, monetary or otherwise, and
not for the abstfact value of constitutional rights.
Memphis Community SchoolDistrict v.
Stachura, 477 U.S. 299, 310 (I986).In procedural due process cases, the plaintiffs loss cannot
be assessed without determining whether the same
penalty, or any penalty, would have been assessed
after a procedurally correct hearing. See Carey v.
Piphus, 435 U.S. 247, 261-67 (I978).1f "reaching the wrong result" is excluded from the damages calculation, the damage remedy is trivialized;
if it is not, it is difficult to know what the above
quoted passage from Heck could mean.
Heck's statement that "there is [no] indication
in the [Wo{ff] opinion, or any reason to believe,
that using the wrong procedures necessarily vitiated the denial of good-time credits" simultaneously
raises and begs the same question: whether the Preiser rule is invoked by the legal claim asserted
or by the remedy sought. Under Carey and its
progeny, the district court is obliged to find as a
fact whether using the wrong procedures caused
the improper imposition of a penalty. It is precisely this kind of determination that is barred by
existing case law in some federal circuits. Heck's
subsequent reference to "call[ing] into question
the lawfulness of the plaintiffs continuing confinement" also clarifies nothing. There are several levels of specificity at which the lawfulness of a penalty such as good time deprivation can be
assessed-a ruling that good time was improperly
taken, that it was taken in a defective proceeding,
or that it was taken in a system that follows defective rules or procedures. These distinctions correspond to the varying interpretations of Preiser in
the lower courts.
Not surprisingly, the lower courts have
already begun to disagree about Preiser as interpreted by Heck, along the same lines as their
pre-Heck conflict.
In Whitman v. Ventetuolo, 25 F.3d 1037
(Table), 1994 WL 246063 (1st Cir.,]une 7, 1994)
(per curiam), a prisoner alleged that he had been
improperly excluded from a blood donor program
that would have yielded good time credits. The
court held that all his claims for relief, and not just
those bearing directly on his release date, were
barred because adjudicating them "would invariably require a federal court to address the question of the constitutionality of state procedures utilized to determine eligibility for the blood donor
program." This holding is consistent with the
views of Preiser expressed in Serio v. Members of
WINTER 1995

7

Louisiana State Board ofPardons and Offett v.
Solem, cited in notes 4 and 5.
The plaintiffs in Best v. Kelley, _ F.3d_,
1994 WI. 558377 (D.C.Cir., Oct. 14, 1994), challenged the tennination of a drug treatment program through which they had expected to earn
good time credits. The appeals court upheld the
dismissal of their claim for denial of good time,
but it held that the Preiser/Heck rationale did not
support the dismissal of the other claims, such as
the claim for deprivation of the drug treatment
itself-even though adjudication of these claims
would require a federal court to address the constitutionality of the program's tennination, the
question which also underlies the good time
claim. This holding is consistent with the view of
Preiser expressed in Thomas v. George State
Board ofPardons andParoles, cited in note 3.
Thus, the Preiser puzzle has now become the
Preiser/Heck puzzle. The most pressing question
for prisoner advocates will be whether disciplinary
proceedings involving loss of good time in addition to other sanctions are subject to the Preiser
rule. The circuits are presently in disagreement on
this point, compare Sisk v. CSO Branch, 974 F.2d
116, 118 (9th Cir. 1992) and Viens v. Daniels,
871 F.2d 1328, 1333-34 (7th Cir. 1989) with
Bressman v. Farrier, 900 F.2d 1305, 1306-07
(8th Cir. 1990), cert. denied, 111 S.Ct. 1090
(1991), and Heck does not resolve their conflict.

Suicide PreventionlDeliberate
Indifference
In Farmer v. Brennan, 114 S.Ct. 1970 (1994),
a case about protection from inmate-inmate
assault, the Supreme Court significantly clarified
its prior rulings concerning the Eighth
Amendment deliberate indifference standard.
Randall C. Berg of the FloridaJustice Institute in
Miami has pointed out that Farmer appears to
overrule a major prop of existing law concerning
jail and prison suicides.
Most federal courts have adopted some version
of the rule that "a finding of deliberate indifference requires that officials have notice of the suicidal tendency of the individual whose rights are at
issue in order to be-held liable for the suicide of
that individual." Tittle v.jifferson County
Commission, 10 F.3d 1535, 1539 (11th Cir.
1994) (en banc) (emphasis in original). In
Tittle, the panel opinion held that a history of suicides from horizontal bars in jail cells, with no
corrective action by jail officials, created a triable
factual issue of deliberate indifference regardless
of their knowledge of individuals' suicidal tendencies. 966 F.2d 606,612 (11th Cir. 1992) ("It is
true that prison officials are not required to build
a Suicide-proof jail. By the same token, however,
they cannot equip each cell with a noose.") The
en banc court rejected this theory of liability.
In Farmer, the Court explicitly rejected the
notion that prison officials must have notice of the
danger to a particular individual to be held liable.
8

WINTER 1995

Dear Prison Project...
Dear Prison Project:
I am currently out on parole, and the
parole boat'd has recently informed me
that I have violated the conditions of my
parole atld that the board will take
"appropliate action." Do I have any pro"
tection against the board revoking my
parole?
Parole Pending
Dear Parole Pending:
Revocation of parole requires two hearings: (1) a preliminary heating to determine whether there is probable cause or
reasonable grounds to believe that the
parolee has violated the terms of parole;
and (2) a final hearing to decide any contested facts and to determine whether
revocation is warranted. Morrissey v.
Bl'ewer, 408 U.S. 471, 480-82, 92 S.Ct.
2593 (1971)
The preliminary hearing is held before
a detached and neutral body at or near
the place of the alleged violation. At the
preliminary hearing, you are minimally
entitled to (1) a written notice of the
alleged violations; (2) disclosure of the
evidence against you; (3) an opportunity
to be heard by the board in person; and,
(4) a written decision containing the facts
and reasoning for a finding of probable
cause. You have the right to confront and
question those who have presented information against you unless the hearing
officer decides that the witness would be
subject to a risk of harm if his identity is
revealed.
At the final hearing, you are also guaranteed (1) the right to present witnesses

The question under the Eighth Amendment
is whetherprison officials, acting with deliberate indifference, eJ<posed aprisoner to a
sufficiently substantial "risk ofserious damage to hisfuture health, "...and it does not
matter whether the risk comesfi'Om a single
source or multiple sources, any more than it
matters whether aprisonerfaces an excessive
risk ofattackfor reasons personal to him or
because allprisoners in his situationface
such a risk.
114 S.Ct. at 1982 (citation omitted).
Since tlle lisk of plison suicide, like exposure to
communicable disease, unsafe dlinking water,
exposed \viling, deficient firefighting measures,
and the lisk of assault, are all aspects of plison
officials' general duty to provide "reasonable safety," see Helling v. McKinney, 113 S.Ct. 2475,

2480-81 (1993), there is no apparent reason why
suicide lisks should be treated any differently from
lisks of assault by others in applying the deliberate
indifference standard. Farmer strongly suggests
that the restrictive individual-specific rule of the jail
suicide cases is history, and that jail officials are
under a general duty to protect all plisoners-not
just those already identified as suicide-pronefrom unreasonable lisks of suicide.
I See, e.g., Sisk v. Gsa Branch, 974 F.2d 116, 118
(9th Cir. 1992); Clark v. State ofGeorgia Pardons and
Paroles Board, 915 F.2d 636,6308-39 (llth Cir. 1990)
(claim for damages for parole denial based on unconstitutional grounds and for an injunction barring future
consideration of those grounds could be heard under §
1983 since the plaintiff did not seek release); Smith v.
Maschner, 899 F.2d 940, 951 (lOth Cir. 1990) (claim

THE NATIONAL PRISON PROJECT JOURNAL

for good time was subject to habeas exhaustion requirement, but damage claim about same disciplinary proceeding could go forward under §1983); Viens v.
Daniels, 871 F.2d 1328, 1333-34 (7th Cir. 1989) (if
"significant sanctions" other than loss of good time are
imposed, the prisoner may resort to §1983 without
exhaustion).
2 See, e.g., Sheppard v. State o/la. Board a/Parole,
873 F.2d 761,762 (5th Cir. 1989) (Preiser rule
barred prisoner whose parole was revoked from challenging the constitutionality of a parole revocation statute
even though he sought only damages and a declaratory
judgment).
30ffett v. Solem, 823 F.2d 1256, 1258-60 (8th Cir.
1987) (barring §1983 challenge to good time statute);
accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07
(8th Cir. 1990) (holding that O.ffett rule bars all federal
court challenges to disciplinary proceedings in which
good time was taken, regardless of the relief sought) ,
cert. denied, 111 S.Ct. 1090 (I 991).
4Serio v. Members a/Louisiana State Board 0/
Pardons, 821 F.2d 1112, 1118-19 (5th Cir. 1987).
50.ffettV. Solem, 823 F.2d 1256, 1258-60 (8th Cir.
1987) (barring §1983 challenge to good time statute);
accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07
(8th Cir. 1990) (holding that O.ffett rule bars all federal
court challenges to disciplinary proceedings in which
good time was taken, regardless of the relief sought),
cert. denied, 111 S.Ct. 1090 (1991).

Other Cases
Worth Noting
u.s. COURT OF APPEALS

The plaintiff's claim of denial of due process in
disciplinary proceedings should not have been
dismissed. His claim that he was repeatedly subjected to false and unjustified disciplinary charges
amounts to the claim that they were unsupported
by "some evidence."
.
The plaintiff's allegations of false disciplinary";
charges stated a substantive due process claim. At
1402: "Issuing false and unjustified disciplinari"
charges can amount to a violation of substantive
due process if the charges were in retaliation for
the exercise of a constitutional right." At 1402 n.
11: The court explicitly rejects the view that such
allegations do not state a constitutional claim if
Wolffis complied with and there is some evidence. "The fact that Black alleges retaliation for
the exercise of a constitutional right ...is a decisive
distinction" from prior authority.

Procedural Due Process-Disciplinary
Proceedings
Walker v. Bates, 23 F.3d 652 (2d Cir. 1994). A
prisoner whose disciplinary conviction was
administratively reversed after he had served two
months of punitive segregation was not barred
from pursuing a claim for denial of due process.
At 658-59:
The rule is that onceprison officials
deprive an inmate ofhis constitutionalprocedural rights at a disciplinary hearing and
theprisoner commences to serve apunitive
sentence imposedat the conclusion ofthe
hearing, theprison official responsiblefor
the due process deprivation must respond in
damages, absent the successful interposition
ofa qualified immunity defense.

Suicide Prevention
Hare v. City ofCorinth, Miss" 22 F.3d 612 (5th
Cir. 1994). The defendants were not entitled to
summary judgment on qualified immunity grounds
in a jail suicide case in which the record was
"replete with evidence that the custodial officers
knew or should have known of Tina Hare's vulnerability to suicide" (615) yet they placed her in a
cell in which she could not be seen or reached by
the trustee or dispatcher on duty and then left her
hanging for an ipdeterminate time.

Classification-RacelProcedurai Due
Process-Disciplinary Proceedings
B!t«;k v. Lane, 22 F.3d 1395 (7th Cir. 1994).
The plaintiff filed a complaint of racial discrimination. He had previously filed an administrative
complaint with the Office of Civil Rights
Compliance of the Department ofJustice, which
sustained his complaint and led to a resolution
agreement concerning job discrimination. After six
years of proceedings, including a trip to the
appeals court, the defendants defaulted in answering the amended complaint, and the court denied
their motion to vacate the default four months later.
The magistrate judge held a hearing on damages
and awarded $50 after dismissing substantial parts
of the complaint for failing to state a claim.
THE NATIONAL PRISON PROJECT JOURNAL

Procedural Due Process-Disciplinary
Proceedings
Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994).
The administrative reversal of the plaintiff's disciplinary conviction did not cure any due process
violations at his hearing.

Access to Courts
Holloway v. Hornsby, 23 F.3d 944 (5th Cir.
1994). At 946:
It is very important to our treasured system ofjustice that our courts be open to anyone with a case or controversypresenting a
justiciable claim. Ready access to our court
system, including access by those who are
incarcerated, is recognized as a valuable
constitutional right, one to be carefully
guarded Complaints about the validity of
incarceration or the treatment accorded
inmates are entitled to timely and meaningful consideration.

sequent complaints of pain, difficulty eating, and
bleeding gums.
These allegations raised a disputed issue of
material fact. The plaintiff conceded that removing
the wrong tooth did not violate the Constitution,
but the allegation that the dentist refused repeated
requests for treatment for two and a half weeks
and then refused to see the plaintiff again after
learning he had filed a malpractice action.

Law Libraries and Law Books
Clayton v. Tansy, 26 F.3d 980 (lOth Cir.
1993). The plaiiitiff, convicted in Oklahoma and
transferred to Ne\v Mexico pursuant to the
Interstate Corrections Compact, sued New Mexico
officials for denying him Oklahoma legal materials. At 982: "In the context of denial of access
claims, the general rule imposes upon the sending
state authorities the responsibility for ensuring
their prisoners incarcerated in sister state facilities
are afforded access to state courts." The court
rejects dicta from another circuit indicating that
the receiving jurisdiction shares the responsibility,
since in that case the prisoner was transferred to a
federal prison. The district court properly denied
permission to amend, since the only defendant
who could have saved his case is an Oklahoma
official not subject to service of process in New
Mexico. The plaintiff must pursue his case against
the proper defendant in the proper venue.

Pre-Trial Detainees/AIDSlPrivacy
A.LA. v. West Valley City, 26 F.3d 989 (lOth
Cir. 1994). The plaintiff was arrested for passing a
bad check; the arresting officer found a piece of
paper in his wallet indicating (erroneously) that
he was mv positive, and told his sister, his housemates, and at least one other witness about it. The
officer had no basis to believe that the plaintiff
engaged in sexual activity or N drug use with these
people. He also told the jailer, though there was
no basis to believe the plaintiff had done anything
to put anyone else at risk. As a result, his friends
and family shunned him and refused to visit him;
he suffered harassment and discriminatory treatment in jail; he was treated for depression as a
result of these events.
At 990:
There is no dispute that confidential medical information is entitled to constitutional
privacyprotection.... We believe...that the
actual validity ofthe HIVtest results discovered in Plaintiffs wallet is entirely irrelevant
to whether he has a reasonable expectation
ofprivacy in the results, or whether he suf
fered an "injury infact" as a result ofthe
unlawful disclosures. [Citations omitted]

Pre-Trial Detainees/Use of Force
Dental Care
Kinney v. Kalfus, 25 F.3d 633 (8th Cir. 1994).
The plaintiff alleged that he complained of various
dental problems, and the dentist first extracted the
wrong tooth and then refused to deal with his sub-

Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir.
1994). The Due Process Clause, rather than the
Fourth Amendment, governs a claim based on a
police shooting of a person escaping from custody
dUring transportation from one holding cell to
WINTER 1995

9

another. At 457: "Once an individual has been
arrested and is placed into police custody, and
surely after the arresting officer has transferred the
individual to a jail cell, the individual becomes a
pretrial detainee, protected against excessive force
by the Due Process Clause." Otherwise escapees
would receive more protection than detainees who
peacefully remained in their cells. (The dissent
argues that this view is inconsistent with the
extended duration of Fourth Amendment protections acknowledged in Albright v. Oliver, 114 S.Ct.
807 (1994).)
Under the due process standard-which in the
Fifth Circuit is identical to the Eighth Amendment
standard-the shooting was not unlawful.

Non-English LanguageslPublications
Kikumura v. Turner, 28 F.3d 592 (7th Cir.
1994). Federal prison officials denied the plaintiff
incoming books, magazines, newspapers and
letters on the ground that they "could be detrimental to the security, good order and discipline
of the institution" because they were "printed
in Japanese and, therefore, can not [sic] be
monitored or reviewed by institution staff."
The relevant regulations mentioned publications
written in code but not those written in nonEnglish languages. Prison officials made no
attempt to try to find a translator or otherwise
screen the material until the plaintiff sued; then
they found an employee in another prison who
was profiCient in Japanese.
The defendants were entitled to qualified immunity. There is only one case in point (Ramos v.
Lamm) , it is from another circuit, and the
Supreme Court has relaxed the relevant legal standard anyway.
In general, voluntary cessation of allegedly
illegal conduct does not moot a case. The burden
of proving mootness, which is on the defendant,
is a heavy one. When the defendants are public
officials, ''we place greater stock in their acts of
self-correction, as long as they appear genuine."
(597, internal quotes and citation omitted).
Here, where the defendants' policies "have apparently ebbed and flowed throughout the course of
the litigation," the g.overnment failed to meet its
burden of proof.
The court frames the question ''whether the
prison's alleged de facto policy of summarily
rejecting foreign language publications without
making any effort to translate or screen such
material is constitutionally permissible." (597,
footnote omitted) The court notes that
Thornburgh v. Abbott emphasized the individualized nature of the determination in upholding federal censorship practices, and there were no particularized findings in these cases.

Federal Officials and Prisons/Use
of Force
Munzv. Michael, 28 F.3d 795 (8th Cir. 1994).
Astate prisoner released to federal marshals pursuant to a writ of habeas corpus ad testifican10

WINTER 1995

dum was a convict subject to the Eighth
Amendment and not a pre-trial detainee.
Allegations that the plaintiff was beaten while
restrained and then beaten again while in a
padded cell raised a triable factual issue despite
the fact that he had been convicted in a jury trial of
destroying government property based on his
destruction of the inside of the patrol car, and
injuries limited to rib contusions. The defendants ..'
were not entitled to qualified immunity based on,
these allegations.

Psychotropic
Medications/Administrative Segregation
Walkerv. Shansky, 28 F.3d 666 (7th Cir.
1994). The defendants were entitled to qualified
immunity from the plaintiff's due process claims of
involuntary administration of Haldol because these
claims were not suffiCiently well defined before
Washington v. Harper. They were not entitled to
qualified immunity from the Eighth Amendment
claim, since the deliberate indifference standard
applicable to medical care cases was well established. However, the use of Haldol did not violate
the Eighth Amendment in light of the plaintiff's violent and uncooperative behavior and the defendant
doctor's behavior. If he had presented evidence
from a medical profeSSional disputing the diagnosis, or if he had disputed the facts on which the
defendant doctor based his medical opinion, there
might have been a factual issue sufficient to withstand summary judgment.
Prolonged administrative segregation may violate the Eighth Amendment. "Whether such confinement does in fact violate the Eighth
Amendment depends on the duration and nature
of the segregation and the existence of feasible
alternatives." The plaintiff's claim of ten plus "several" months, combined with allegations that he
was denied exercise, that sometimes he had no
water for a week, and he was physically abused
raised a triable issue of fact.

Procedural Due ProcessClassification/Administrative
Segregation
Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994).
The plaintiff remained in administrative segregation for 117 days after a recommendation that he
be released to general population, in part because
oflack of bed space.
Michigan regulations create a liberty interest in
being released from segregation when the justification has expired, either because the inmate is
"cleared" of the original reason, or because the
prisoner's behavior and attitude has changed.
Lack of bed space would constitute a defense; if
there was sufficient bed space, the court must
determine whether the failure to release the plaintiff was the result of ''willful and wanton behavior."
(1092) The defendants are not entitled to qualified immunity because Hewitt v. Helms and Sixth
Circuit precedent clearly established the "particularized" right "not to be arbitrarily kept in admin-

istrative segregation for 117 days after
the reason for [the] original confinement
there expired." (1094)

Appeal
Oliverv. Commissioner ofMass. Dept. of
Corrections, 30 F.3d 270 (1st Cir. 1994). The
plaintiff's notice of appeal was late. He alleged that
he left it in his cell door for prison officials to
mail, although he was aware that only certified,
registered, insured, COD or express mail was officially recorded. At 272: "By failing to take advantage of the prison mMlog system, Oliver undermined the 'bright-lin~ rule' rationale on which the
Supreme Court inHouston relied and made it
more difficult for this court to 'avoid uncertainty
and chicanery.' ..." (Citation omitted) The court
does not hold that the plaintiff is not entitled to the
benefit of the Houston rule, but concludes that the
district court's finding that he failed to submit a
timely notice of appeal was not clearly erroneous.

Use of Force
Mclaurin v. Prater, 30 F.3d 982 (8th Cir.
1994). The plaintiff was hit in the face by an officer who was accusing him of stealing another
inmate's cigarettes. The district court correctly
found an Eighth Amendment violation; no force
was needed since the officer was not acting to protect himself or others or to serve any legitimate
penological interest, and the officer acted solely
and purposely to harm the plaintiff. The plaintiff
"suffered pain, which is a sufficient injury to allow
for recovery for an Eighth Amendment violation."
(984)
Plaintiff's counsel orally moved to include state
law claims of assault, battery and outrage on the
day of trial, and the district court declined after the
trial to entertain them because they were not
raised by amended complaint. This reason does
not fall within the four bases for declining supplemental jurisdiction in 28 U.S.C. § 1367, and the
court had discretion to permit an amendment to
conform to the evidence; the case is remanded for
a ruling on that request.

Women
]eldness v. Pearce, 30 F.3d 1220 (9th Cir.
1994). Title IX of the Education Amendments of
1972, which prohibits gender discrimination in
educational programs receiving federal funding,
applies to prisons. So do the regulations of the
Department of Health and Human Services implementing the statute.
The language of the statute suggests that the
standard is one of "equality" and not "parity."
However, it does not require gender-integrated
classes in prisons. At 1229:
Strict one{or-one identity ofclasses may
not be required by the regulations. But there
must be reasonable opportunitiesfor similar
studies at the women'sprison and women
must have an equal opportunity to participate in educationalprograms....
THE NATIONAL PRISON PROJECT JOURNAL

It may not be necessary to offer as many
classes in a small women's prison as in the
larger men'sprisons. But the number of
classes offeredshouldat least be proportionate, notjust to the total number ofinmates,
but to the number ofinmates desiring to
take educationalprograms. And the inmates
must be made aware ofthe opportunityfor
participation in variousprograms before
their interests can be assessed. In order to
give women "equal opportunity, " there may
need to be a higher number ofcourses
offered so that women have comparable variety in course selection.
"Penological necessity" is not a defense to Title
IX; it is "just one concern to be considered in how
the equality principles of Title IX are to be applied
in prison." (1230) Efficiency and cost effectiveness are not valid security concerns; they are cost
and management concerns.
Paying men but not women for vocational
training participation violated Title IX. The
absence of a discriminatory motive did not make
this a non-discriminatory policy; it amounted to
disparate treatment, not a neutral policy with
disparate impact.

Procedural, Jurisdictional and
Litigation Questions
Caldwell v. Amend, 30 F.3d 1199 (9th Cir.
1994). The plaintiff's motion for judgment
notwithstanding the verdict was subject to the
Houston "prison mailbox" rule that it was timely
filed if delivered to prison authorities for mailing
within the relevant time limit. The prisoner's
sworn declaration that he did so, while not necessarily sufficient to prove the date of filing, shifts the
burden to the opposing party to produce evidence
to the contrary such as a legal mailbox log or a
date-stamped envelope. The fact that the plaintiff
did not use the more expensive certified mail procedure did not matter, since he utilized the prison's legal mail procedure.

DISTRICT COURTS
Pre-Trial De.taineeslfelephones
George v. Carusone, 849 F.Supp. 159
(D.Conn. 1994). At a police station, nearly all
incoming and outgoing calls were taped. An
arrestee's claim under the Omnibus Crime Control
and Safe Streets Act of 1968 was not barred by
express or implied consent because there was no
evidence that he knew of the recording. The conversations were "intercepted" for purposes of the
statute when they were taped, not when or if they
were listened to. The exception for recording by a
law enforcement agent "in the ordinary course of
his duties" does not apply where the recording is
done surreptitiously.

Procedural Due Process-Disciplinary
Proceedings
Nix v. Evatt, 850 F.Supp. 455 (D.S.C. 1994).
THE NATIONAL PRISON PROJECT JOURNAL

The plaintiff was charged with possession of an
excessive amount of money and canteen items and
.asked to call witnesses including his cellmate, who
allegedly would have testified that some of these
items were his. He said he asked his assigned
assistant (an inmate) to procure the witnesses, but
he failed to do so, and when he asked at the hear";ing, the hearing officer said such requests must be.
in writing-a requirement both he and the assis~
tant said they had not been informed about.
At 458:
... [T]his courtfinds that it is clear that
once aprisoner is placed in administrative
segregation, he is then incapable ofinterviewing or obtaining statementsfrom potential witnesses. Thus, this court concludes that
at the time ofplaintiffs hearing there was a
clearly established constitutional right to suf
ficiently competent representation when a
prisoner in administrative segregation isfacing a disciplinary hearing.

Use of Force/Searches-PersonArrestees/Pre-Trial DetaineeslHygiene
Huffman v. Fiola, 850 F.Supp. 833 (N.D.Cal.
1994). The plaintiff's complaint of sexual assault
in a booking cell in the guise of a search stated a
constitutional claim under the Fourth Amendment.
Jail personnel who watched and refused to stop
the alleged assault could be held liable under the
deliberate indifference standard.
At 837: "Under ordinary circumstances denial
of a shower for three days would not be actionable. However, due to the nature of the Plaintiff's
allegations and Defendants alleged knowledge of
the sexual assault, the denial reaches the level of a
cognizable claim in this case."
Allegations that the plaintiff was hog-tied, her
head was bashed against awell, and an officer
stomped on her bare feet stated use of force
claims. The court previously stated that this case
was being decided under the Due Process Clause.
At 838: "Even where one has no entitlement to
a benefit, one cannot be deprived of it in retaliation for the exercise of constitutional rights. "
Allegations that the plaintiff was denied a shower
because she reported the assault and had her bare
feet stomped on because she said she was going to
file suit stated constitutional claims.

WomenILegal Assistance Programs
Glover v.johnson, 850 F.Supp. 592 (E.D.Mich.
1994). Prison officials unilaterally reduced funding to Prison Legal Services of Michigan, which
provides legal assistance to women inmates pursuant to a prior court order, and excluded
parental rights matters from PLS' services contrary
to that order, after the Sixth Circuit Knop decision
holding that the right of court access did not
extend to parental rights matters in a case involving male inmates. This court had previously determined that women inmates, because of their backgrounds, were entitled to the assistance of attorneys (though not necessarily representation in

court), and not just law libraries, because they
do not have male inmates' "history of 'self-help'
in the law."
The court holds the defendants in contempt and
grants a preliminary injunction requiring the continuation of services consistently with prior orders.
The court holds that women inmates are constitutionally entitled to continuation of the relevant
legal services; the Knop decision did not address
the equal protection violation previously found for
women inmates. At 596: "Equal protection is not
the same as identical treatment, for identical treatment may indeed'result in very unequal protection." (Citation onlitted) The court then proceeds
to find that BOlfnds requires assistance of attorneys for women inmates because of the structure
of the probate, juvenile and circuit courts and the
informal procedures required to get a hearing in
them as well as the prisoners' lack of access to the
telephone. The court also concludes under the
Matthews v. Eldridge test that due process
requires legal assistance in parental rights matters.
At 600: "The structure of the various courts as well
as the regulations of the Department constitute a
barrier to the plaintiff class' exercise of a fundamental right."

Religion
Rust v. Clarke, 851 F.Supp. 377 (D.Neb.
1994). The plaintiffs are devotees of "Asatru,"
which they say is an "Icelandic word/term for the
ancient religion of the Teutonic people of
Northern Europe ...also known as 'Odinism' or
'Troth.'" They claimed unequal treatment with
respect to other religious groups.
The Religious Freedom Restoration Act "was
specifically intended to apply to state prisons (and
other institutions of state and federal government)
and in the prison context was designed to overrule
the Supreme Court's decision in O'Lone v. Estate
ofShabazz..." (380) Since the defendants' summary judgment motion is addressed primalily to
the O'Lone standard rather than the RFRA, the
court denies the motion without actually addressing the merits.
The RFRA "does not appear to have waived the
[Eleventh Amendment] immUnity of the states,
either.... While Congress could abrogate the
immunity of the states, it must express itself without equivocation, and it has not done so here."
(This is completely wrong. The statute says that
plaintiffs can sue "Governments" including "a
State, or a subdivision of a state." How unequivocal can you get?)
The individual defendants are entitled to qualified immunity.
At 378 n. 1: "Defendants do question whether
certain practices are necessarily a part of the
Asatru religion. In the future, Plaintiffs would be
well advised to document why Plaintiffs believe a
particular practice is part of the Asatru religion,
such as by referring to published theology texts or
similar objective sources." This is blatantly wrong.
See Thomas v. Review Board, 450 U.S. 707, 715WINTER 1995

11

16, 101 S.Ct. 1425 (1981) (religious freedom "is
not limited to beliefs which are shared by all of the
members of a religious sect"); Thacker v. Dixon,
784 F.Supp. 286, 295 (E.D.N.C. 1991) ("Except in
the most extreme cases, a court must confine itself
to a determination of whether the practice in question has a basis in religious belief as the individual sees if') (emphasis supplied), affd, 953 F.2d
639 (4th Cir. 1992).

Attorneys' Fees
Kersh v. Board ofCounty Commissioners of
Natrona County, 851 F.Supp. 1541 (D.Wyo.
1994). plaintiffs' counsel's efforts in connection
with a successful contempt motion "constituted
reasonable post-judgment work that was necessary
to secure the improvements anticipated by the
1990 ConsentDecree." (1543) In addition, they
were prevailing parties in the contempt motion.
Plaintiffs' attorney is awarded fees at the rate in
his community (Denver) rather than the site of the
litigation (Casper, Wyoming), since there is no
indication that any Wyoming attorney has ever filed
a "totality of conditions" case or would consider
doing so. In addition, expertise in the field of litigation was necessary, and it was reasonable for this
attorney to handle the contempt motion given that
he had obtained the underlying consent decree.

Access to CourtslLegai
Assistance Programs
Carperv. Deland, 851 F.Supp. 1506 (D. Utah
1994). Utah provides legal assistance to prisoners
by contract with local attorneys; there are no law
libraries and inmates are not allowed assistance
from "writ writers." The contract was changed to
eliminate general legal assistance in civil matters
and to restrict the services to writs of habeas corpus and challenges to conditions of confinement.
The court previously granted a preliminary injunction to the named plaintiffs and to several additional prisoners. Aclass was certified of "all current and future inmates in the Utah prison system
who seek to exercise certain legal rights." (151011) The court here grants summary judgment to
the plaintiffs and issues an injunction.
At 1517-18:
...Ifdefendants are correct that increased
legal services will result in a decrease in educationaland otherprograms, that is unfortunate. However, the court is unpersuaded by
defendants' argument that budgetary considerationsjustify limiting the scope oftheir
duty to the levelprovided under the current
contract.
While it is true that economicfactors may
be considered in determining the method
used toprovide meaningfulaccess to the
courts, the cost ofprotecting the right of
access cannot be used tojustify its denial...
[citations omitted]
..Althoughproviding suchprograms is a
legitimatepenological objective, defendants
may not choose to provide them at the
12

WINTER 1995

expense ofa constitutional right.
Furthermore, the decision whether tofund
suchprograms is a questionfor the legislature, notfor the court.
The right of court access extends to the purSuit
or defense of actions to adjust family relationships,
including initial papers opposing the termination /,.
of parental rights, including a request for the
appointment of counsel, and preparing petitions :.
for divorce or the initial response to divorce pe~­
tion. It does not extend to enforcement or contempt or modification proceedings in divorce
cases. Assistance in adopting a prisoner's spouse's
children is not required.
Workers' compensation claims are included in
the right of court access. Although the tribunal is
administrative, "such proceedings are judicial in
nature and provide the only means by which an
eligible inmate may obtain worker's compensation
benefits." (1523)

Religion/Standing
Scarpino v. Grosshiem, 852 F.Supp. 798 (S.D.
Iowa 1994). The Iowa Civil Liberties Union has
taxpayer standing to challenge the prison system's
"The Other Way" program, a twelve-step rehabilitation program alleged to violate the Establishment
Clause.
The claim of a prisoner who had been released
from the institution and then reincarcerated is not
moot because given the twelve to sixteen-week
duration of the program, it is "capable of repetition yet evading review." The claim of a prisoner
on parole is moot.
The court distinguishes earlier authority holding that an M-type program was not religious on
the ground that this program not only refers to
God and a higher power, but also because it
involves group prayer, individual pressure to
accept religion as the solution to addiction, and
the use of religious video tapes.
Establishment Clause claims are not governed
by the Turner reasonableness standard because
they involve the insistence that public money cannot be spent to support religion rather than an
assertion of inmates' rights to do something.
Under Lemon v. Kurtzman, prison officials could
have believed that this program did not violate the
Establishment Clause, and they are entitled to
qualified immunity from damages.

HygienelNegHgence, Deliberate
Indifference and Intent
Masonoffv. DuBois, 853 F.Supp. 26 (D.Mass.
1994). The plaintiffs complained that they did not
have access to toilets in their cells; when they did
not have access to a bathroom area, they had to
use portable chemical toilets and a pitcher of
water. Official policy was that the bathroom area
. was supposed to be opened at any time on
request, but there was evidence that these orders
were not followed by all officers with respect to
all inmates.
At 29:
Having a sanitaryplace to dispose ofone's

bodily waste is one such "minimal civilized
measure oflife'S necessities. "...
The plaintiffs havepresentedevidence that
some inmates have been barredfrom the
shanty-the oneplace at the entireprison
which hasflush toilets available to inmates.
These inmates, when they are out oftheir
cells, are left with noplace to deposit their
bodily waste. The Constitution does notpermitprison offiCials toforce inmates to
undergo such indignities.
The plaintiffs have thus shown a likelihood of
success on the question of whether they have
met the objective 'requirement of an Eighth
Amendment claim. However, there is not
presently enough evidence to support afinding
of deliberate indifference, in the absence of a
showing that the defendants had actual knowledge of the violations. At 29:
The representations made in affidavits and
otherwise in connection with thepresent
motion are sufficient, however, to put the
defendants on notice that Superintendent
Bissonette's order toprovidefull access to the
shanty is not being diligently carried out. The
court will take into consideration, in any
future motionfor injunctive reliefregarding
access to the shanty, that the defendants have
had such notice.

Grievances and Complaints
About Prison
Hines v. Gomez, 853 F.Supp. 329 (N.D.Cal.
1994). At 331: "... [F]iling an inmate appeal [Le.,
grievance] falls within the plaintiff's first amendment right to petition the government for redress
of grievances."

Searches-Person-Convicts
Castillo v. Gardner, 854 F.Supp. 724 (E.D.
Wash. 1994). Conducting digital rectal probes
without "cause predicate" is not reasonably related to legitimate penological goals and is unconstitutional under Turner. However, the defendants
are entitled to qualified immunity on this claim.

Religion-PracticeslInjunctive
Relief-Preliminary
Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y.
1994). State prison officials are preliminarily
enjoined from prohibiting plaintiffs from wearing
their Santeria beads under their clothing or placing
beads on their non-publicly displayed shrines.
Apreliminary injunction is appropriate. At 204:
"Ordinarily, violations ofFirstAmendment rights are
recognized as constituting an irreparable injury."
The balance of hardships favors plaintiffs, since they
have no other way of practicing their religious
beliefs, but the defendants have other ways ofprotecting security besides burdening the plaintiffs' religious practice.
The Religious Freedom Restoration Act applies
to prisoners and displaces the O'Lone/furner reasonable relationship standard for prisoners' reliTHE NATIONAL PRISON PROJECT JOURNAL'

gious claims in favor of a compelling interesVieast
restrictive means standard. Security is a compelling interest. At 207: "However, defendants
cannot merely brandish the words 'security' and
'safety' and expect that their actions will automatically be deemed constitutionally permissible conduct." The court defers to defendants' assessment
of the prison gang situation and the role of beads
as gang identifiers, but notes that this argument
fails to address why the beads cannot be worn
under clothing. At 208: "I am troubled by defendants' complete rejection of plaintiffs' proposal
based on what defendants speculatively describe
as an 'enforcement problem.''' These enforcement
problems are the same for Santeria beads as for
crosses and crucifixes, which are allowed. The
defendants also failed to show that gangs have
actually used Santeria beads or that gang beads
resemble Santeria beads. The fact that Santeria
beads might be used in this fashion sometime in
the future is "pure speculation," which cannot justify burdening the plaintiffs' constitutional rights.
"I am not required, on a motion for preliminary
injunction, to indulge DOCS' whims and anxieties
about prospective hypothetical situations." (209)
The court reaches the same conclusions under
the O'LonelI'urner test. There is no rational relationship between prohibiting wearing beads
underneath clothing and the purpose of minimiz.ing gang affiliation and violence. The plaintiffs
have no alternative to exercise this particular tenet
of their religion. The impact of permitting wearing
beads under clothing will be "constitutionally
insignificant," and this practice is an "obvious,
easy alternative."

police officers without any justification while
handcuffed in a police car stated a claim for
excessive force under the Fourth Amendment.
Summary judgment could not be granted based on
the lack of injury where the plaintiff had not had
the opportunity to take discovery. The question is
for the jury if the plaintiff can establish "that force
was used and some injury was sustained."

Pre-Trial DetaineeslFederal Officials
and PrisonslProcedural Due ProcessDisciplinary Proceedings
Collazo-Leon v. u.s. Bureau ofPrisons, 855
F.Supp. 530 (D.P.R. 1994). The petitioner was
convicted at a disciplinary hearing of attempted
escape and offering a bribe to an officer; he was
sentenced to a total of 90 days and loss of visiting
and telephone privileges for six months.
Wolfish forbids the punishment of detainees.
The Bureau of Prisons disciplinary regulations by
their terms are intended to punish. In addition,
"the severity of the sanction itself upon a pretrial
detainee charged with misconduct, as to whom no
attempt is made to deal with his disciplinary problem by means of less drastic actions, compel the
conclusion that the purpose in segregating is to
punish." (533) The court rejects the view that the
petitioner's pUnishment is necessary to provide for
an orderly environment, since upon his release he
will present the same security hazard as when he
was placed in segregation.
The court grants the writ of habeas corpus and
orders his discharge from segregation and restoration of his visiting and telephone privileges.

WomenlPrivacy
Use of Force
Messina v. Mazzeo, 854 F.Supp. n6 (E.D.N.Y.
1994). An allegation that all of the named police
officers participated in excessive force was sufficient to state a claim. Discovery should determine
the exact role of each officer, and a motion for
summary judgment can be made based on lack of
personal involvement.
An allegation that the plaintiff was slapped by

Galvan v. Carothers, 855 F.Supp. 285
(D.Alaska 1994). The female plaintiff alleged that
she was placed in an all-male wing and that she
was subjected to sexual harassment. The court
previously granted her a preliminary injunction
requiring officials to find her alternative housing.
The plaintiffs claim meets the objective prong
of Eighth Amendment analysis. At 291:
Defendants contend that there is no evi-

Court~Decides

Landmark Class Action Case
in Favor of Pelican Bay Prisoners
nJanuary 11, ChiefJudge Thelton
Henderson of the U.S. District
Court, Northern District of California
ruled substantially in favor of prisoners at
Pelican Bay State Prison in their class
action lawsuit against state prison officials
(Madrid v. Gomez). The suit claimed that
conditions at the facility, the state's first
"supermax" prison, violate prisoners'
constitutional rights. 1
The judge, in his 345 page decision, wrote

O

THE NATIONAL PRISON PROJECT JOURNAL

that "dry words on paper cannot adequately
capture the senseless suffering and sometimes wretched misery" caused by the
defendants. "In this landmark decision,
Judge Henderson found that the California
Department of Corrections is operating in
flagrant disregard of the U.S. Constitution,"
said David Steurer, a partner in Wilson
Sonsini Goodrich & Rosati who tried the
case together with fellow partner Susan
Creighton and attorneys Donald Specter
and Steve Fama of the Prison Law Office
in San Quentin.

dence regarding minimal standards ofpriva0' and decen0'for a woman inmate. The
courtfinds this statement to befantastic ....
The courtfinds that minimal standards of
privaq and decen0' include the right not to
be subject to sexual advances, to use the toilet without being observed by members ofthe
opposite sex, and to shower without being
viewed by members ofthe opposite sex.
There is sufficient evidence that the defendants knew or should have known ofthe
potential risks inherent in placing afemale
inmate in ait\all male maximum security
prison wing:'.: (292).
(This opini.on antedates Farmer v. Brennan,
which held that "should have known" doesn't cut
it under the Eighth Amendment.)

Federal Officials and Prisons
Lloyd v. Corrections Corporation ofAmerica,
855 F.Supp. 221 (W.D.Tenn. 1994). Aprivate
prison housing federal prisoners acted under
color of federal law and not state law, and the
plaintiffs complaint therefore must be construed
as a Bivens action and not a § 1983 claim.

Communication with Media/Injunctive
Relief-Preliminary
Pratt v. Rowland, 856 F.Supp. 565 (N.D.Cal._
1994) . The plaintiff, a former Black Panther
leader, was transferred after agreeing to be interviewed by a television station and double celled
immediately after the interview was aired. Medical
evidence showed that various physical and psychological afflictions he had were aggravated when he
was double celled, and prison officials had generally acknowledged these.
The court concludes that the plaintiff was subjected to retaliation for being interviewed, based
on evidence that suggests an extremely incompetent cover-up, and grants a preliminary injunction
requiring him to be single-celled.

Continued on page 17

The suit originated in 1991 after the U.S.
District Court received more than 300 petitions from Pelican Bay prisoners alleging
civil rights violations during the first two
years of the facility's existence. Apanel of
federal judges referred the matter to the Pro
Bono Committee of the San Francisco Bar
Association which asked Wilson Sonsini
Goodrich & Rosati to investigate the case. A
lawsuit originally filed on behalf of one
inmate eventually became a class action and
trial took place from September 17 through
December 15, 1993.
Ainong the constitutional violations found
byJudge Henderson were a pattern of
excessive guard brutality, a failure to provide
Continued on nextpage
WINTER 1995

13

For the Record
• The American Correctional Association (ACA) believes the federal crime h'
signed into law by President Clinton last September deserves a "mixed review" ace
ing to a statement to ACA members released in October. The ACA opposes mandato
minimum sentencing, including "three-strikes-you're-out' because it believes that'
not reasonable or cost-effective to keep such persons in prison until they die" andi
concerned about the "inevitable ptison crowding" the measure will cause. Overall
believe the crime bill "places too much emphasis on incarceration as a solution to
crime". They also opposed the ending of Pell grants for prisoners.
The ACA supported the Family Unity Demonstration Project which authorizes g
for the establishment of community-based residential correctional facilities in whi
offenders can live with their young children. ACA President Bobbie Huskeysaid ,
are encouraged to see in the final bill a greater emphasis placed on children youth
families, because ACA believes that we will need to intervene early in the lives of the
families if we are ever going to reduce future crime". Unfortunately, it is these veryp
visions that the crime bills introduced into the new session of Congress by the
Republican majority sets out to dismantle.
• Prison journalist and editor of the Angolite, Wilbert Rideau has become aspe
correspondent for the critically acclaimed "Fresh Air" series hosted by Terry Gro
NationalPublic Radio. Rideau and Angola Warden John Whitley view it as an educa.
alprogram toletthe public know what ptison life is really like. The first segmellt£
es .on literacy and self-educationbehind bars. The payment which "Fresh Air" typic
makes to its freelance contributors will, at Rideau's suggestion, be made to the
Spaceman Foundation, a non-profit foundation. Rideau's. childhood dream wasto
spaceman and he has dedicated the Foundation to the proposition "that allchil<it:e
should have. dreanls, should. be able to achieve them and become productive mernh
of society. The child who has hopes and dreamsJor his future ,vill not end up ina
prison cell~"
• Journalist Gary E.Goldhammer left his newspaper job.in California and set()
across the United States to explore the facts, .emotions and politics surrounding sap
punishment. Heinterviewed the people most affected by the death penalty - priS()
on Death Row, their families, victim's families,. jailers·and advocates. He has publi~
these interviews and described his experiences in Dead End, a personal and comp
discovery of the costs-human, social and financial-of our continued use of thi~
bariepunishment. DeadEnd can be obtained from Biddle. Publishing Company, PQ
1305,#103, Brunswick, ME 04011, for $10.95 plus $2.00 shipping.
• Prison Information Service, Inc.. of Sioux Falls have distributed all theircopi
the AboriginalHandbooks and the Bibliography ofSelected Prison· Cases andc
fulfill anymore requests forthese books at the moment. They hope in time to rais~
ficient funds to reprintand send copies to everyone who is on their waiting list. Fq
more information, contact Roger Flittie at PrisonInformation Service, Inc., POHo:x:
616,SiouxFaYs, SD 57101

Bill Seeks to Strip Courts of
Power in Prison Cases
mong the package of new federal
crime bills passed by the House of
Representatives is the Stop Turning
Out Prisoners Act ("STOP"), Title III of HR
667. STOP is not part of the. "Contract With
America," yet it was pushed through the
Judiciary Committee and onto the floor of
the House without hearing or testimony and

A
14

WINTER 1995

virtually without notice to the public. Asimilar bill has been introduced into the Senate
as S. 400. The proponents of STOP are trying to rush the bill through Congress without debate because the "facts" upon which
it is based are bogus and the "solutions" it
offers are fraudulent.
The STOP bill violates the guiding princi-

from page 13
minimal medical and mental health care,
and confinement in conditions that are
likely to cause or increase psychosis in
many of the inmates in the prison's supermax facility. Pelican Bay's caging and hogtying of prisoners, its routine resort to
'i lethal force, and its pattern of staff assaults
on inmates caused Judge Henderson to
conclude that the evidence "painted a picture of a prison that all too often uses
force, not only in good faith efforts to
restore and maintain order, but also for the
very purpose of i1¥licting punishment and
pain." In concluding that the defendants
had failed to proVide minimal medical or
mental health services, Judge Henderson
observed that "some of defendants' comments, actions, and policies show such disregard for inmates' pain and suffering that
they shock the conscience." With regard to
conditions in the Security Housing Unit
(SHU) section of the prison, Judge
Henderson wrote that "many, if not most
inmates in the SHU experience some
degree of psychological trauma in reaction
to their extreme social isolation," and that
defendants "cross the constitutional line
when they force certain subgroups of the
prison population, including the mentally
ill, to endure the conditions in the SHU."
The court ordered the parties, under the
supervision of a court-appointed Special
Master, to negotiate a plan to make Pelican
Bay meet constitutional standards.
"The court's decision is absolutely correct," said Donald Specter of the Prison
Law Office. "Without an injunction tl1ere is
no doubt that the brutality and lack of proper treatment would continue indefinitely."
Judge Henderson could find "no serious or
genuine commitment" by the defendants to
"remedying the constitutional violations
found herein." •
IFor more details about the Pelican Bay
State Prison, see NPPJournalVol. 7, No.4,
Fall 1992, "Isolation, Excessive Force Under Attack
at California's Supermax" and "The Marionization
ofAmerican Prisons"; and Vol. 8, No.2, Spring
1993, "Pelican Bay-The Effects ofIsolation."

pIe of this country that all people, even the
least deserving, are protected by the
Constitution. The bill sets a dangerous
precedent for stripping civil rights from
those in public disfavor. If this bill is successful in placing adult and juvenile prisoners beyond the full protection of the laws,
the path will be clear to target other groups,
such as ethnic minorities, the mentally ill,
and gay people, for similar treatment.
The bill is a dangerous assault on federal
court power to remedy civil rights violations,
and thereby runs afoul of the separation of
powers doctrine, which the "Framers of our
THE NATIONAL PRISON PROJECT JOURNAL

Constitution viewed ... as the central guarantee of a just government," Freytag v.
Commission, 111 S. Ct. 2631, 2634 (1991),
and "a bulwark against tyranny," United
Statesv. Brown, 381 U.S. 437, 443 (1965).
This bill works a gaping hole in that bulwark.
The lack of deliberation given to the bill
accounts for the serious practical and constitutional problems with the legislation, which
are discussed in more detail below.
Section (b)(l), Termination of
Prospective ReliefAfter 2- Year Period: This
section calls for judgments to terminate two
years after issuance or two years after passage of STOp, whichever is later, even when
constitutional violations remain. For example, a court could not continue to enforce a
judgment even in the face of a continuing
threat to staff and prisoners. In institutional
reform cases, it typically takes years of effort
by state officials and supervision by the
court to fix the major problems that are the
subject of such litigation. Since the law
already requires termination when constitutional requirements are met, Board ofEduc.
v. Dowell, 111 S. Ct. 630, 637 (1991), the
perverse effect of this section would be to
require termination when constitutional violations persist.
This provision also violates the separation
of powers doctrine. The Framers criticized
legislative efforts to vacate judicial proceedings, suspend judicial actions, and annul or
modify judgments, see M.].C. Vile,
Constitutionalism and the Separation of
Powers 153 (1967), and the Constitutional
Convention rejected several proposals to
allow legislative revision of judgments. 1M.
Jensen, The Documentary History of the
Ratification of the Constitution 246-47
(1976). In light of this historical background, the Supreme Court has struck
down statutes that revise or suspend judgments. Hayburn's Case, 2 U.S. (2 Dall.)
409 (1792); Chicago &Southern Air Lines,
Inc. v. Waterman Steamship Corp., 333
U.S. 103, 11~ (1948).
Section (b)(2), Immediate Termination
ofProspective Relief. This section requires
the termination of all settlement agreements
("Consent Decrees") that were approved
without a finding of a constitutional or statutory violation. This would render almost all
existing Decrees void because, by their
nature, they are approved without such findings. Prison officials usually seek to operate
their prisons in a safe and professional
manner because they do not want to put
their staff at risk of the riots that can result
from intolerable conditions. Acourt order is
often necessary to get the resources that
they need to do this.
By legislative fiat, this bill would indiscriminately undo decrees that playa vital
THE NATIONAL PRISON PROJECT JOURNAL

role in protecting the health and safety of
prisoners and staff. Moreover, by preventing
settlements, this provision forces parties to
costly trials in all cases. Forbidding a state
from entering into a settlement agreement
encroaches on state autonomy and raises
serious federalism concerns. Furthermore('
by requiring a lengthy trial in every case,'
this section increases the burden on the
federal judiciary.
Section (a) (1), Limitations on
Prospective Relief This section limits the
power of the federal courts to grant relief in
prison conditions cases. To the extent that
this provision prevents a court from issuing
emergency interim relief, such as a temporary restraining order, it violates due
process. Cf Phillips v. Commissioner, 283
U.S. 589, 596-97 (1931). If, for example,
a prison is in imminent danger of a tuberculosis outbreak, a court must retain the discretion to issue an emergency order prior
to a hearing.
Section (c)(2), Automatic Stay When
Motion Pending: This section calls for an
automatic stay of decrees and judgments
after a defendant files a motion to modify or
terminate, regardless of whether a constitutional violation is ongoing. In effect, this
provision gives a defendant the temporary
power to overrule a federal court. An automatic stay also deprives a court of its traditional power to balance the equities involved
in a stay application.
Section (e), SpecialMasters: This provision requires courts to use Magistrates in
place of special masters. This usurps the
power of the judiciary in two ways. First, it
abrogates Fed. R. Civ. Proc. 53, which
authorizes courts to appoint special masters. The Supreme Court, rather than
Congress, is empowered to modify the
Federal Rules. 28 U.S.C. § 2072. Second,
over and above the authority granted by
Rule 53, "there has always existed in the
federal courts an inherent authority to
appoint masters." Kaufman, Masters in the
Federal Courts: Rule 53, 58 Colum. L.R.
452,462 (1958).
Section (j), Attorney's Fees: This provision modifies 42 U.S.C. § 1988 by changing the standard for an attorney fee award
in prison conditions cases. The passage
of sections 1983 and 1988 was motivated
by a commitment to the civil rights of all
citizens. Singling out one group for lesser
protection sets a dangerous precedent
for other groups that fall into disfavor.
The bill also prevents a state from entering
into a settlement that includes a fee award,
forcing states to risk a far greater fee award
after trial. In the name of states' rights,
the bill actually limits the freedom of a
state to determine its own best interests. •

Forfurther information contactjoan
Dolby, jan Elvin orjenni Gainsborough at
the National Prison Project ofthe ACLU at
(202) 234-4830, Fax (202) 234-4890.
Text ofH.R. 667, Title III, "Stop
Turning Out Prisoners Act"

Sec. 301. APPROPRIATE REMEDIES FOR
PRISON CONDITIONS.
(a) In General.-Section 3626 of title 18,
United States Code, is amended to read as
follows:
'\
"Sec. 3626. Appropriate remedies with
respect to prison conditions
"(a) Requirements for Relief."(1) Limitations on prospective
relief.-Prospective relief in a civil
action with respect to prison conditions
shall extend no further than necessary
to remove the conditions that are causing the deprivation of the Federal rights
of individual plaintiffs in that civil
action. The court shall not grant or approve any prospective relief unless the
court finds that such relief is narrowly
drawn and the least intrusive means to
remedy the violation of the Federal
right. In determining the intrusivenessof the relief, 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.
"(2) Prison population reduction
relief.-In any civil action with respect
to prison conditions, the court shall not
grant or approve any relief whose purpose or effect is to reduce or limit the
prison population, unless the plaintiff
proves that crowding is the primary
cause of the deprivation of the Federal
right and no other relief will remedy
that deprivation.
"(b) Termination of Relief."(1) Automatic termination of
prospective relief after 2-year period.In any civil action with respect to prison
conditions, any prospective relief shall
automatically terminate 2years after the
later of"(A) the date the court found the
violation of a Federal right that was
the basis for the relief; or
"(B) the date of the enactment of the
Stop Turning Out Prisoners Act.
"(2) Immediate termination of
prospective relief.-In any civil action
with respect to prison conditions, a
defendant or intervenor shall be
entitled to the immediate termination
of any prospective relief, if that relief
was approved or granted in the absence
of a finding by the court that prison
Continued on nextpage
WINTER 1995

15

jrompage15
conditions violated a Federal right.
"(c) Procedure for Motions Affecting
ProspectiveRelieE--"(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.
"(2) Automatic stay.---Any prospective relief subject to a pending motion
shall be automatically stayed during
the period--"(A) beginning on the 30th day after
such motion is filed, in the case of a
motion made under subsection (b);
and
"(B) beginning on the 180th day
after such motion is filed, in the
case of a motion made under any
other law;
and ending on the date the court enters
a final order ruling on that motion.

"(d) Standing.---Any Federal, State, or
local official or unit of government--"(1) whose jurisdiction or function
includes the prosecution or custody
of persons in a prison subject to; or
"(2) who otherwise is or may be
affected by;
any relief whose purpose or effect is to
reduce or limit the prison population shall
have standing to oppose the imposition or
continuation in effect of that relief and
may intervene in any proceeding relating
to that relief. Standing shall be liberally
conferred under this subsection so as
to effectuate the remedial purposes of
this section.
"(e) Special Masters.---In any civil action
in a Federal court with respect to prison
conditions, any special master or monitor
shall be a United States magistrate and shall
make proposed findings on the record on
complicated factual issues submitted to that
special master or monitor by the court, but

shall have no other function. The parties
may not by consent extend the function of
a special master beyond that permitted
under this subsection.
"(f) Attorney's Fees.---No attorney's fee
under section 722 of the Revised Statutes
of the United States (42 U.S.C. 1988) may
be granted to a plaintiff in a civil action
with respect to prison conditions except to
the extent such fee is--"(1) directly and reasonably incurred
in proving an actual violation of the
plaintiff's Fedeil;ll rights; and
"(2) proportionally related to the
extent the plaintiff obtains court
ordered relief for that violation."
"(g) Definition.---As used in this section--"(1) 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;
"(2) the term 'relief' means all relief
in any form which may be granted or
approved by the court, and includes
consent decrees and settlements agreements; and
"(3) the term 'prospective relief'
means all relief other than compensatory monetary damages."
(b) Application of Amendment.---Section
3626 of title 18, U.S. Code, as amended
by this section, shall apply with respect to
all relief (as defined in such section)
whether such relief was originally granted
or approved before, on, or after the date
of the date of the enactment of this Act.
(c) Clerical Amendment.---The
table of sections at the beginning of
the subchapter Cof chapter 229 of title 18,
United States Code, is amended by striking
"crowding" and inserting "conditions." •

Ayesha Khan is a staffattorney with The
National Prison Project.

jrompage4
were singled out as a group lacking any
appropriate protection. Third, the overwhelming threat to decent prison standards
is overcrowding.
The revised rules now go back to the UN
for consideration. What was particularly fascinating at the meeting was the opportunity
(in the gaps between the committee work)
to learn how two traditional leaders in the
world incarceration competition--- Russia
and South Africa---are reacting to the universal penal dilemma. Their divergent paths
demonstrate vividly how prisons are both
the product and the barometer of a coun16

WINTER 1995

try's civic health.
At the last PRI general meeting three years
ago, a former dissident, Valery Abramkin,
described a situation of appalling hardship.
But he felt the underlying trend was towards
improvement. At The Hague last November,
however, he and other gave details that show
this trend in reversal.
Public anger and fear of crime in Russia
have contributed to delaying both the new
penal code and the new code of criminal
procedure. Long and undifferentiated sentences remain in force for many everyday
offenses, and prisoners have no effective
protection or redress against abuses.

Human rights guarantees in the new Russian
constitution (1993) are not, in reality,
implemented. The PRI members from
Moscow said they repeatedly received
letters from prisoners describing beatings
to extract confessions dUring the pretrial
investigation period. Contact with the
outside world, including with lawyers,
is higWy restricted.
Overcrowding is again rocketing.
Official figures put the prison population at
886,000---proportionately 530 per 100,000
population. (Unofficial estimates are far
higher.) No one who has visited the main
urban prisons for pretrial detainees leaves
THE NATIONAL PRISON PROJECT JOURNAL

any doubt that ghastly conditions have got
even more ghastly (See the NPPJournal,
Vol. 8, No.2, Spring 1993). Abramkin said
that dormitories which had been overcrowded in Stalin's days with 80 occupants
now held 140. He had seen prisoners with
skin ulcers "like an apple." In the distant
colonies for convicts, food was in short supply. TB was increasing again.
But the Russian prison authoritieswho allow westerners access to their
prisons-readily admit they have problems.
One official was an active participant at
the conference.
The status of the participants who came
from South Africa is an indicator of the
political priority given by this country to
penal reform. The Minister of Correctional
Services, Mr. Sipo MZimela, was there;
also the Commissioner, the chief administrator of correctional services, General].].
Bruyn, who as a young prison guard had
worked on Robbin Island. He told me,
"President Mandela is a man who always
commanded respect."
South Africa is facing the worldwide penal
crisis in acute form. The public-black as
well as white-demands a stop to a plague
of crime. But prisoners are deeply disillusioned that a flat six-months' amnesty did
not bring them all immediate release. The
prison population remains high proportionally third after the Russian
Federation and the US with a rate of about
350 per 100,000. Immense changes are
nevertheless underway.
In February 1995 the constitution comes
up for debate and, according to a senior
South African academic at the conference,
the expectation is that the death penalty will

frompage 13
NON-PRISON CASES

Personal Iqvolvement and Supervisory
Liability
Maldonado-Denis v. Castillo-Rodriguez,
23 E3d 576 (Ist Cir. 1994). At 581-82:
Although a superior officer cannot
be held vicariously liable under 42
u.S.C. §1983 on a respondeat superior
theory, ... he may befound liable
under §1983 on the basis ofhis own
acts or admissions....
One way in which a supervisor's
behavior may come within this rule
is byformulating apolicy, or engaging
in a custom, that leads to the challenged occurrence....Thus, even if
a supervisor lacks actual knowledge
ofcensurable conduct, he may be
liablefor theforeseeable consequences
THE NATIONAL PRISON PROJECT JOURNAL

be abolished. Reforms had already started
before last year's elections: no executions
had been carried out since 1989; solitary
confinement, corporal pUnishment and
reduction of diet had all been banned.
Aseparate penal approach for juveniles has
now been drafted. But full racial integration
of a justice system designed and run by .
whites is causing great tensions.
From the United States, there were neither
politicians nor prison administrators. .
As Alvin Bronstein, Executive Director of the
National Prison Project, pointed out: "U.S.
officials don't come to this sort ofmeeting."
Bronstein's description of "hot-racking"
to be introduced in Mississippi to accommodate more prisoners, and the state's
ban on all possessions that might make
prison tolerable, confirmed fellow PRI
members' feeling that the U.S. is not the
model to follow. As Bronstein summed
up: "The U.S. is marching firmly into the
19th century."
Penal Reform International celebrated its
fifth birthday in The Hague. It now has over
300 members in 75 countries. It is helping
local non-governmental organizations set
up programs in East Europe and subSaharan Africa and-funding allowinghas plans in Asia and Latin America. It is
most of all an astonishing worldwide network of individuals who share a commitment to fairer and more humane penal justice. Without PRI, many individuals would
be operating in total isolation. •

Jennifer Monahan is a Britishfreelancejournalist and member ofPenal
Reform International.

ofsuch conduct ifhe would have
known ofit butfor his deliberate
indifference or willful blindness, and
ifhe had thepower and authority to
alleviate it....
To succeed on a supervisory liability
claim, aplaintiffnot only must show
deliberate indifference or its equivalent, but also must affirmatively connect the supervisor's conduct to the
subordinate's violative act or omission....This causation requirement
can be satisfied even ifthe supervisor
did notparticipate directly in the conduct that violateda citizen's rights;jor
example, a sufficient causal nexus
may befound ifthe supervisor knew
oj, overtly or tacitly approved oj, or
purposely disregarded the conduct....
Consequently, deliberate indifference
to violations ofconstitutional rights

canforge the necessary linkage
between the acts or omissions of
supervisorypersonneland the misconduct oftheir subordinates....
A causal link may also beforged if
there exists a known history ofwidespread abuse sufficient to alert a
supervisor to ongoing violations. WlJen
the supervisor is on notice andfails to
take corrective action, say, by better
training or closer oversight, liability
may attach.
':.~

Pleading ....
Tompkins v. Vickers, 26 E3d 603 (5th Cir.
1994). The court declines to adopt the D.C.
Circuit's variation of the heightened pleading"
that requires a plaintiff whose claim depends
on the state of mind of a defendant to plead
direct, rather than circumstantial, evidence of
that state of mind.
Municipalities
Chew v. Gates, 27 E3d 1432 (9th Cir.
1994). Aclaim against the mUnicipality based
on an allegedly unconstitutional policy does
not tum on the lawfulness of the conduct of
the mUnicipal employee involved.
At 1445:
A city cannot escape liabilityfor the
consequences ofestablishedand ongoing departmentalpolicy regarding the
use offorce simply bypermitting such
basicpolicy decisions to be made by
lower level officials who are not ordinarily consideredpolicymakers....
[IJfthe city infact permitteddepartmentalpolicy regarding the use of
canineforce to be designed and implementedat lower levels ofthe department, ajury could, iind should, neverthelessfind that thepolicy constituted
an established municipal "custom or
usage" regarding the use ofpolice dogs
for which the city is responsible.
... [MJunicipalliability could
[alsoJ befound under the "deliberate
indifference"formulation ofMonell
liability. ... WlJere the city equips its
police officers withpotentially dangerous animals, and evidence is adduced
that those animals inflict injury in
a significantpercentage ofthe cases
in which they are used, afailure to
adopt a departmentalpolicy governing
their use, or to implement rules or
regulations regarding the constitutionallimits ofthat use, evidences a
"deliberate indifference" to constitutional rights. •

John Boston is the director ofthe
Prisoners' Rights Project, LegalAid
Society ofNew York.
WINTER 1995

17

te
Segregation in
Alabama
Alabama Revisited: Separate
But Equal?
n 1988 the National Prison Project,
along with the Southern Center for
Human Rights and local private lawyers,
brought a class action suit, Harris v.
Thigpen, (now Onishea v. Herring) which
challenged the Alabama Department of
Corrections' policy of mandatory testing and
segregation of HIV-positive prisoners. Since
then the Eleventh Circuit Court of Appeals
affirmed the DistrictCourt's ruling to uphold
both policies, but remanded issues of programming and legal access. While awaiting
the latest decision we explore the experiences of three women housed in the
Medical Isolation Unit (MIU) at]ulia
Thtwiler Prison for Women and one resident
of Limestone Correctional Facility's MIU.

I

Small Changes
In 1986 M.W. became the first HlV-positive prisoner isolated at Julia Thtwiler Prison
for Women. HlV-positive prisoners during
this period were housed on death row with
a quarantine sticker, required to disinfect
telephone receivers after use and given
meals served on paper plates. M.W. recalls
waking up covered with maggots because
correctional staff refused to empty her
garbage. After 13"months M.W. was transferred to administrative segregation with a
small group of newly diagnosed women.
During the next two years M.W. received
access to segregated Adult Basic Education
(ABE)/General Equivalency Diploma (GED)
preparation and college courses. When she
returned in 1993 she found limited programming. GED preparation classes were
sporadic, while college courses were nonexistent. In commenting on the policy's
impact, M.W. says, "We do more time just
because we're positive and can't receive the
same programs as general population."
B.C. entered Mill in 1987 and has
observed changes through three periods of
incarceration. She recalls the medical staff
greeted her wearing masks and gloves and
18

WINTER 1995

being instructed she would have
to wear the same whenever she
left Mill. Her daily life included
few activities beyond watching
television, crocheting or knitting. Reflecting on these days
E.C. remembers, "I felt like an
animal placed in a cage and just
left there."
Her second incarceration in
1992 brought some changes,
though. B.C. took college courses from an inmate tutor and
attended some programs separate from general population.
Since returning in 1994 B.C. has
participated in the Substance
Abuse Program taught by an
inmate tutor. By comparison,
general population pnsoners
have access to a residential subThanksgiving Dinner in the HIV Isolation Unit,
stance abuse program coordinated
by a certified counselor. In commenting
Transforming the Anger
on the need for drug treatment programs
Alester Moore is serving his second
B.C. explains, "Drugs is the reason I came
prison stint, one he hoped would provide
back to the Unit. Instead of talking about
rehabilitation. Aformer bridge builder once
my problems I turned to drugs. Being in a
employed by a large construction firm, Mr.
substance abuse program helps me to talk
Moore hoped to continue learning building
about it."
trades at Limestone Correctional Facility. He
Carrie White has experienced two very
soon learned that being HIV-positive was
different periods at Julia Thtwiler Prison
enough to be excluded from vocational and
for Women. During her first incarceration
other programming including the Interstate
in the mid-Seventies Ms. White participated
Commerce Compact, which he inquired
in a variety of programs from completing
about in order to be transferred closer to
her GED and numerous college courses,
his family. Although a segregated drafting
to commercial sewing and bookkeeping.
class has recently been offered, other vocaIn addition to these accomplishments she
tional programs continue to be denied.
participated in furlough programs and was
Moore has channeled his dissatisfaction
employed in a "downtown job" with the
into being a lay minister and serving as
Department of Corrections. She remembers
coordinator of education for Citizens On
that the current site of the Medical Isolation
Prevention and Education (COPE), a prisUnit once housed prisoners who worked in
oner run HlV/AIDS program. Founded by
the healthcare unit.
Unit prisoner Matthew Coleman, COPE
Upon returning to prison in 1993 Ms.
members provide a 12 week training proWhite was placed in Mill after testing HlVgram in HlV/AIDS education, conduct
positive, a status she now shares with two
monthly seminars on HlV/AIDS issues, corsons incarcerated at Limestone Correctional
respond with the families of prisoners and
Facility's Mill. Today Ms. White's daily rouvisit sick prisoners in the infirmary. Mr.
tine primarily consists of crocheting and
Moore says, "Being segregated and denied
cleaning up the MIU area. Her inquiries
equal programming takes the sentencing
regarding college courses all return to an
judge's decision to another level. We're just
exclusion based on her HlV-positive status.
asking DOC to open up the door. If they
For future Mill prisoners Ms. White has only
one desire, "I hope other women won't have
don't open the door to programs it will just
cause more problems." •
to go through what I'm going through.
Sitting back here and deteriorating."
THE NATIONAL PRISON PROJECT JOURNAL

1990

ublications
Bibliography of Material on
-----'---- Women in Prison

1990 AIDS in Prison
_-,-_ Bibliography lists resources
on AIDS in prison that are
available from the National Prison
P1'9ject and other sources,
il)qluding corrections policies on
AIDS, educational materials,
medical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

lists information on this subject
available from the National Prison
Project and other sources
concerning health care, drug
treatment, incarcerated mothers,
juveniles, legislation, parole, the
death penalty, sex discrimination,
race and more. 35 pages. $5
prepaid from NPP.

_-,-_ APrimer for Jail Litigators

$2/yr. to prisoners.

The Prisoners' Assistance
Directory, the result of a

1B: The Facts for Inmates
_---'-__ and Officers answers
commonly-asked questions about
tuberculosis (TB) in a simple
question-and-answer format.
Discusses what tuberculosis is,
how it is contracted, its symptoms, treatment and how mv
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25.500 copies/$100.
1,000 copies/$150 prepaid.

The National Prison Project
Status Report lists by state

QTY. COST

those presently under court order,
or those which have pending
litigation either involving the
entire state prison system or
thajor institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.)
Updated January 1994. $5 prepaid from NPP.

Fill out and send with check payable to:

Name

The National Prison Project
1875 Connecticut Ave., NW #410
Washington, D.C. 20009

Address

THE NATIONAL PRISON PROJECT JOURNAL

a simply written educational tool
for prisoners, corrections staff,
and AIDS service providers. The
booklet answers in an easy-toread format commonly asked
questions concerning the
meaning of AIDS, the medical
treatment available, legal right~
and responsibilities. Also
available in Spanish. Sample
copies free. Bulk orders: 100
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.

is a detailed manual with practical
suggestions for jail litigation. It
includes chapters on legal analysis, the use of expert witnesses,
class actions, attorneys' fees, enforcement, discovery, defenses'
proof, remedies, and many practical suggestions. Relevant case
citations and correctional standards. 1st Edition, February 1984.
180 pages, paperback. (Note: This
is not a "jailhouse lawyers" manual.) $20 prepaid from NPP.

The National Prison
Project JOURNAL, $30/yr.

national survey, identifies and
describes various organizations and
agencies that provide assistance
to prisoners. Lists national, state,
and local organizations and
sources of assistance including
legal, AIDS, family support, and
ex-offender aid. 10th Edition, published January 1993. Paperback,
$30 prepaid from NPP.

AIDS in Prisons: The Facts
_-,-_ for Inmates and Officers is

(order
from
ACLU)

QTY. COST

ACLUHandbook,The
Rights of Prisoners. Guide to
the legal rights of prisoners,
parolees, pre-trial detainees, etc.,
in question-and-answer form.
Contains citations. $7.95; $5 for
prisoners. ACLU Dept. L, P.O. Box
794, Medford, NY 11763.

.

_

City, State, ZIP
WINTER 1995

19

he following are major developments
in the National Prison Project's litigation program since September 30,
1994. Further details of any of the listed cases
may be obtained by writing the Project.

T

Carty v. Farrelly-Agreement has been
reached in this lawsuit contesting conditions
of confinement at the CriminalJustice
Complex in St. Thomas, U.S. VIrgin Islands.
The complaint filed inJune 1994 alleged
severe overcrowding, unconstitutional environmental and fire safety conditions and
grossly deficient medical and mental health
care. The agreement, which has the same
force as a court order, provides for improvements in all these areas, including limits on
population, improved and expanded medical
services, with testing and treatment for tuberculosis, and separate housing for mentally ill
prisoners. Prisoners will have recreation for
tlrree hours daily with a maximum cell lockin time of twelve hours daily. The agreement
also contains several important provisions for
monitoring. The BOC is also prevented from
instituting another facility-wide lockdown
without the court's permission.
Casey v. Lewis-This statewide class
action suit, filed on behalf of Arizona state
prisoners in January 1990, challenges legal
access, health care and asSignments to segregation. In November 1992, the court held
unconstitutional the state's policies restricting
prisoners' access to the courts. The Ninth
Circuit Court of Appeals heard oral argument

National Prison Project
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830

in November and on December 27, in a
unanimous decision, upheld the trial court's
ruling that the Arizona Department of
Corrections denies prisoners access to the
courts. The ruling affirmed virtually all of the
trial court's order, and applies to all 15,000
prisoners in the Arizona system. The order,
however, will not be implemented until the
Supreme Court decides whether to grant
review of the decision because in May 1994
the Supreme Court, with four Justices dissenting, granted a stay of the trial court decision.

Knop v.johnson-involves four
Michigan prisons. The case was filed in 1984
after the original comprehensive consent
decree reached by the Department ofJustice
and the state of Michigan in United States v.
Michigan was replaced with a modified fivepage, non-enforceable consent decree.
The new lawsuit, Knop v. Johnson, raised the
same claims as U.S. v. Michigan as well as
some additional ones. In 1992, the Sixth
Circuit affirmed the trial court's finding of a
denial of access to the courts but remanded
to the trial court to revise the remedy. In June
1993 the defendants filed their legal access
plan which the plaintiffs opposed. In March
1994 the district court held oral argument on
the plan. On December 22, 1994Judge
Enslen issued an order rejecting the defendants' plan and requiring them to implement
a revised plan at the Michigan Reformatory
on a trial basis. After evaluation of the plan at
the Reformatory, it will be ordered implemented at all the Knop facilities.

Onishea v. Herring-(originally Harris
v. Thigpen) challenges the Alabama
Department of Corrections policy of testing
all state prisoners for HIV, segregating all
those who test posit,ive and preventing them
from taking part ilJ)Nork, educational, recreational and other programs available to nonsegregated prisoners. The plaintiffs sought
relief on various constitutional claims and
under §504 of the Rehabilitation Act. In 1991
the Eleventh Circuit Court of Appeals vacated
and remanded the dismissal of plaintiffs'
§504 claim challenging this blanket exclusion, and the dismissal of the plaintiffs' legal
access claims. Years of settlement discussions
finally proved fruitless, and the issues were
retried before Judge Varner in November
1994. We are waiting for the court's decision.
Sandin v. Conner-The NPP filed an
amicus curiae brief on behalf of the respondent in this case before the Supreme Court.
Conner, a Hawaii state prisoner, claimed that
he was punished with 30 days of solitary confinement without an adequate due process
hearing after allegedly resisting a stripsearch. The Ninth Circuit Court of Appeals,
overturning the trial court's ruling in favor of
prison officials, held that the prisoner had a
right not to be arbitrarily subjected to punitive segregation. The Supreme Court granted
prison officials' petition for certiorari from
that decision. Oral argument is scheduled for
February 28, 1995.•

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U.S. Postage

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Printed on Recycled Paper

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WINTER 1995

THE NATIONAL PRISON PROJECT JOURNAL