A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 10, NO.2, SPRING 1995 • ISSN 1076·769X

Spread ofTB Poses Danger to Prisoners and Staff

The resurgence of tuberculosis in jails and prisons will affect prisoners,
correctional officers, and the community.

f an evil genius set out to design an
ideal breeding ground for tuberculosis, prison would be it. Prisons and
jails are frequently overcrowded and poorly ventilated, conditions which encourage
the spread of TB, an airborne disease.
Moreover, prisoners are also frequently
at the greatest risk for the disease. Those
most likely to develop TB are the poor,
substance abusers, immigrants, people
who receive inadequate nutrition, or have
compromised immune systems. l These are
the very same people who make up the
population that is found in our prisons
and jails.
Prison officials routinely do a very poor
job of screening for tuberculosis and treat-

I

ing and isolating prisoners who have the
disease. Procedures to screen for TB are
not complicated and treatment protocols
are well known, which leaves little excuse
for prison and jail administrators' inattention to this public health threat.
This article is intended to prOVide practical information to lawyers who wish to
evaluate TB issues for possible litigation.
Some basic science of the disease, as well
as prevention measures, is discussed. An
expert evaluation is necessary to definitively determine whether litigable TB issues
exist in a particular case.
Tuberculosis and the D.C. Jail
The following brief discussion of litiga-

tion involving the District of Columbia
illustrates how D.C. corrections officials

have resisted the implementation of basic
prevention and isolation measures.
As part of the ongoing litigation involving the conditions at the Jail, ,a courtappointed expert completed a review of
health services, including the District's
program for screening and treating TB on
September 15,1993. The expert found
an alarming situation:
• Prisoners with active, infectious, multidrug-resistant tuberculosis were not
being identified and isolated;
• Tuberculosis skin tests were being read
dUring the middle of the night, in the
dark, by unqualified personnel;
• Prisoners with active tuberculosis
were being given inappropriate and
ineffective treatment. 2
The expert concluded:
Active tuberculosis is common in the
[Jail] and often goes unrecognized and
untreated or is inappropriately treated. 1
have reviewed documented cases of failure
to diagnose and treat tuberculosis from
1990, 1991, 1992, and extending to the
present. There are no adequate isolation
facilities for patients with tuberculosis at
[the Jail].3
In response to this report, United States
Judge William Bryant ordered, inter alia,
that the Department of Corrections perform a skin test and chest X-rayon every
prisoner upon intake to the Jail and that
prisoners with active tuberculosis be isolated. For months following this Order the
Department of Corrections, by its own
admission, failed to fulfill these requirements. Many prisoners did not receive a
chest X-ray. Instead of isolating infectious
prisoners, they were sent to a locked
ward at the District of Columbia General
Hospital, which has no respiratory isolation capacity;4 In early 1994, two prisoners
developed active TB while on the locked
ward, presumably having been infected by
another patient.; These infections caused
plaintiffs' counsel and the Special Officer
to step up efforts to have the Court's Order
implemented.
Finally, in April of 1994, five months
after entry of the court's order, the
Department of Corrections promulgated
a TB control policy. Unfortunately, they
failed to implement the policy and
the court was forced to impose a schedule
of automatic fines for future violations.
Only the threat of substantial fines
has resulted in any improvement in the
District's compliance.
Among the most troubling aspects of this
case was the District's lack of concern
about the public health threat created by
the spread of TB in the Jail. Efforts to
appeal to public health officials to compel
2 SPRING 1995

'health offiCials
ined that their
lion ended at the
prison gate.
the Department of Corrections to address
TB were totally unsuccessful. Consistently,
health officials maintained that their jurisdiction ended at the prison gate.
The Tuberculosis Epidemic

Tuberculosis is caused bv a slowgrowing bacillus that ordin'arily, but not
exclusively, infects the lungs. 6 The bacillus
which causes the illness is transmitted in
the moisture of the breath of a person with
active infection. It is spread by the sharing
of air in close quarters. 7 The bacillus
can live for a prolonged period of time in
moist air. s
There are three types of tuberculosis
infection. In the first type, a person can be
infected with the bacillus (Le., have the
organism in her or his system), but neither
be ill with the disease nor infectious. This
is sometimes called "latent disease."
Not all persons who become infected with
the disease develop an active infection.
Most persons with competent immune
systems are able to fight off the disease
and thus never become ill. Someone with
latent TB will ordinarily have antibodies to
the disease and will, as a result, have a
reaction to a TB skin test.
In a minority of cases, the immune system cannot contain the disease and a person becomes ill with tuberculosis. 9 This
second type is known as "active infection"
or "TB disease." An untreated person with
active disease is ordinarily infectious,
meaning that the disease can be spread to
others. However, a person may have active
TB, receive a course of antibiotic therapy,
and no longer be infectious.
An alarming aspect of the re-emergence
of TB has been the development of high
rates of "MDR-TB," or multi-drug resistant
TB, the third type of infection. For example, 14% of the cases diagnosed in New
York State, 12.4% of the cases diagnosed
in Massachusetts, and 10.5% of the cases
diagnosed in Rhode Island were resistant
to the antibiotic most commonly used to
treat TB. 10 Because the TB bacillus is very
slow growing, the patient must remain on
medication for very long periods, sometimes several years. Intermittent treatment
permits the bacillus to become resistant to
the medications being used. 11

Tuberculosis rates are disproportionately high in prisons and jails. In some states,
as many as 14% of all TB cases
are fou~d among prisoners. Tuberculosis
has increased in prisons and jails for
two reasons: first, due to the failure of corrections officials to properly screen, isolate, and treat prisoners with TB and, second, due to a high rate of HIV infection
among prisoners.
HIV infection and TB interact in two
important ways: first, persons with HIV disease are at a much greater risk for developing active tuberculosis than nonimmunocompromised persons, and TB in
an HIV-infected person is much more
likely to result in death. Second, because
the skin test commonly used to identify TB
infection is a test for an immune response,
a person with HIV infection may have negative results on a skin test despite active
disease, Thus, it is much harder to screen
for tuberculosis in a prison population
where HIV infection rates are very high.
Litigation

In the D.C, Jail litigation, four areas of
concern dominated:

OURNAL
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 Notional Prison Project is a tax-exempt foundationfunded project of the AClU Foundotion which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judiciol channels; and to develop altematives to
incarceration.
The reprinting of JOURNAL material is encouraged with
the stipulation that the Notional Prison Project JOURNAL
be credited with the reprint. and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materials and suggestions
are welcome.

The NPP JOURNAL is available on 16mm
microfilm, 35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI48106-1346.
THE NATIONAL PRISON PROJECT JOURNAL

• the failure to screen prisoners and
staff;
• the failure to isolate infectious
prisoners;
• the failure to provide proper treatment;
and
• the need for enhanced ventilation and
other structural modifications to prevent transmission.
1. Screening
The identification of prisoners with TB
infection or disease is the cornerstone of
an effective prevention program. Historically, screening has been done by skin test
upon admission to the q>rrections system.
Screening should be performed by the
Mantoux skin test ("PPD").12 All positive
PPDs should immediately be followed by a
chest X-ray to rule out active disease. In
addition, because of the risk of a false
negative skin test, all persons infected
with HIV, or who are at risk for HIV and
whose HIV status is unknown, should be
screened by chest X-ray. In urban settings
where HIV infection rates among prisoners
are high, routinely screening all prisoners
by chest X-ray may be advisable. Repeat
screening should be performed annually
on all prisoners and staff. 13
Screening of persons who have been in
contact with a known infectious case is
also required. The Centers for Disease
Control (CDC) recommend screening all
close contacts, with a repeat screening
10 to 12 weeks after exposure. These
contact investigations should be performed as part of routine policy and
should be documented.
2. Isolation
Anyone suspected of having tuberculosis, or who has known active disease,
must be isolated in proper respiratory
isolation. 14 Isolation must include negative
air pressure (Le., air flows into the room
when the door is opened), venting of air
directly out-of-doors,
six or more air
exchanges per hour,
ultraviolet lighting,
and a vestibule with a
sink for hand washing. 15 Isolation should
continue until samples of sputum (flUid
from the lung) test
negative for bacillus
on three consecutive days. 16
3. Treatment
Aperson with active disease must
remain on multiple antibiotics for months,
possibly years. In addition, anyone with
latent disease may be eligible for prophylactic drug therapy that lasts at least six
THE NATIONAL PRISON PROJEO JOURNAL

months. It is essential that once started
on medication, the
course of treatment
is completed so as
to avoid relapse and
the development
of drug resistance.
As a result, directly
observed therapy
(individual dose
delivered to the
patient with ingestion
monitored by trained
staff) is recommended by the CDC. 17
Moreover, correctional medical staff
need to be trained to
diagnose and treat
TB. Multidrug resistance, for example,
can be created by the
misprescription of
drug therapy.
Aparticular problem for prisoners,
s: I:==--:--,:~~
especially in the jail 9::
setting, is the contin- ~
uation of treatment ~
after release. Close :>
coordination should
be maintained
between corrections
medical staff and
public health
Units like this one at Rikers' Island in New York City have
officials.
been added on to house inmates with contagious diseases
4.· Ventilation and
such as lB.
other preventive
tions have on the community outside the
measures
Transmission of T8 is, fortunately, relaprison walls. The failure to combat TB in
tively easy to prevent. Intake sites should
prisons will certainly spread the disease
have good ventilation; prisoners should
to members of the free world. Infected
correctional officers will carry it home
not be placed into general population until
at night and infected prisoners will be
they have been screened. Medical units
should also have
released. lUberculosis is but a clear examample ventilation
ple of a greater truth, that despite the
prison walls, prisoners remain part of the
and be equipped
greater community.•
with ultraviolet light,
which kills TB bacilli.
Sputum induction
jonathan M. Smith is the Executive
and other tests which
Director ofthe D. C. Prisoners'Legal
require prisoners to
Services Project.
cough should only be
performed in areas
'See, Ted Hammet and L. Harrold. "Tuberculosis in
designed to reduce
Correctional Facilities"· National Institute ofJustice.
(January 1994); J. Elvin, (TB Comes Back, Poses
the risk of transmission. 18 Thus, simple
Special Threat to Jails, Prisons.·· NPP JOURNAL, Vol.
technology, such as fans and ultraviolet
7, No.1. (Winter 1992.)
lighting, can have a substantial impact on
2Cambell v. McGruder, C.A. No. 1462-71 (Bryant,
stopping the spread of the disease.
j.), in Robert Cohen, M.D., "Review of Medical
The resurgence of T8 in prisons and
Services in the Central Detention Facilitv (CDF).··
jails offers a unique opportunity for advo(September 15, 1993.)
.
lId. at 80. In addition, plaintiffs were able to
cates to show the impact that prison condiSPRING 1995 3

document that corrections officials did not report
TB cases to appropriate public health officials
despite an express statutory obligation to do so.
'Two Hundred and Seventeenth Report to the
Court, Campbell v. McGruder. C.A. No. 1462-71
(D.D.C.) (Bryant, J.).
;Both of these prisoners had a history of negative TB
skin tests and were sent to the locked ward for treatment of other AIDS-related infections. During their
stay in the hospital, a patient with active TB was
housed in the locked ward. One of these prisoners
died from TB. These prisoners were identified
because they were both clients of the D.C. Prisoners'
Legal Services Project.
6R. Berkow, ed., The Merck Manual ofDiagnosis
and Therapy (Sixteenth Edition). (992)
7U.S. Department of Public Health, Public Health
Service, "Control of Tuberculosis in Correctional
Facilities: AGuide for Health Care Workers,"
("Control ofTB in Correctional Facilities"), 0992.)
s"Guidelines for Preventing the Transmission of

Mycobacterium Tuberculosis in Health Care
Facilities, 1994," ("Health Care Facilities
Guidelines"), Vol. 43, No. RR-13, Centers for Disease
Control and Prevention. (October 28, 1994.)
9Approximately 10% of those infected with tuberculosis develop active disease. "Health Care Facilities
Guidelines." (I 994.)
IO"Tuberculosis Case Rates by State: United States,
1993,"
"TB Case Rates" Centers for Disease Control and
Prevention. (October 1994.)
lIAlDS Action Foundation. "Tuberculosis and HlV
Public Health Policy: ADual Challenge." (March
1992.)
IlThe PPD is performed by injecting a small amount
of protein from the coating of the TB bacillus under
the skin. Aperson infected with TB will have an antibody response to the injected material and will
develop a raised hard lump at the site of the injection. The multiple puncture, or tine test, historically
used to screen school children is not as accurate as

Bill Seeks to Stop Courts From
Protecting Basic Rights
ine children in South Carolina who
were confined to the state training
school attempted suicide and were
transferred to the state mental hospital.
Each child was subjected to long periods
of isolation and injected by state doctors
with drugs as part of "aversive therapy."
Some were bound hand and foot (fourpoint restraints) to their beds while naked
or in paper gowns.
The "STOP" bill (Stop Turning Out
Prisoners Act), passed by the U.S. House
of Representatives and now pending before
the Senate, would permit this kind of
abuse to go unchecked. In essence,
"STOP,"-Senate Bill400-would deprive
the courts of the power to remedy proven
constitutional violations in adult and juvenile prison conditions cases. It violates the
basic principle that all people, even the
least deserving, are protected by the
Constitution.
Alawsuit was filed on behalf of the
youths in South Carolina, resulting in a
consent decree in which the use of
restraints and isolation were limited and
the use of drugs as aversive therapy prohibited. The STOP bill, if passed, would
invalidate this consent decree, making
abuses once again possible.
While on the surface the bill targets prisoners, in reality it represents an attack on
the power of the courts to protect fundamental human rights. It also strikes a blow
against the authority of state and local
officials to address and remedy severe

N

4 SPRING 1995

health and safety problems in their own
institutions.
We urge the rejection of the STOP bill
for the follOWing reasons:
• STOP would limit afederal court's
time to remedy unconstitutional
prison conditions to two years after
judgment. ACalifornia judge found that
prisoners, while restrained by guards
or in shackles, were beaten on the
head, kicked and hit with batons, had
teeth knocked out, and were burned by
scalding water. Prison administrators
knew about the guard brutality and
ignored it. The judge ruled the beatings
unconstitutional and ordered officials
to develop a plan to end them. Under
the STOP bill the order would end in
two years, even if the abuses continue.
• STOP would strip the courts ofthe
power to grant preliminary or emergency relief, even in the face ofmajor
crises. In Pennsylvania, prison officials
were ordered by the court, on an
emergency basis, to implement tuberculosis screening and control because
of evidence of the existence of TB. The
STOP bill would have prevented the
emergency order, thereby endangering
the health of prisoners, correctional
officers, their families, and the
larger community.
• STOP is based upon the spurious
premise that the federal courts have
responded to lawsuits challenging
prison overcrowding by "turning

the Mantoux, and is thus disfavored. The CDC recommends that correctional institutions screen by use
of the Mantoux, and not the tine. "Control of TB in
Correctional Facilities."
1.IId. at 5.
14/d at 8.
\;"Guidelines for Health Care Facilities" at 29-30;
"Control of TB in Correctional Facilities" at 8.
l6The only definitive test for TB is to culture a sample
of fluid from the patient. Since TB is slow growing,
cultures can take up to six weeks. However, TB is
one of a category of organisms called acid fast bacilli
("AFB"). AFB can be identified by staining a sample
and viewing it under a microscope. Thus, a positive
skin test, chest X-ray and sputum, although not
definitive, strongly suggest a diagnosis of tuberculosis. "Guidelines for Health Care Facilities" at 24.
17Id.
ISSee "Guidelines for Health Care Facilities" at
69-95.

out" prisoners. Prisoners are only
released if state officials elect to meet
constitutional requirements through
releases rather than by building new
facilities or considering alternative
sentencing options.
• STOP makes settlement agreements
void, hampering state government
officials who want to settle meritorious prison conditions lawsuits before
trial. In Ohio, a consent decree prohibiting juveniles from being housed
in a jail where a IS-year old girl was
raped by a guard, would be terminated
by STOP.
• STOP should not be confused with the
'Jrivolous prisoner lawsuits bill. "
That bill, entitled "Stopping Abusive
Prisoner Lawsuits," (Title II of House
Bill 667) is intended to control
frivolous lawsuits filed by individual
prisoners without attorneys.
State officials do not want to run their
prisons concentration-camp style, nor do
they want to put their staff at risk of injury
or disease. STOP would prevent them from
entering into consent decrees, and would
have the unintended consequence of forcing states to bear the expense of long and
costly trials. To pass STOP would be a
grave mistake for all concerned. It would
also be the beginning of a dangerous trend
that prevents the courts from reviewing
human rights violations.•
Alvin J Bronstein is the Executive
Director ofthe National Prison Project
ofthe American Civil Liberties Union
Foundation, Inc.
Chase Riveland is the Secretary ofthe
Department ofCorrections, State of
Washington.
THE NATIONAL PRISON PROJECT JOURNAL

'Three Strikes' Laws
Won't Reduce Crime

problem, American politicians have
given us political demagoguery at its
worst. Professor Philip Heymann, former
number two official at the Clinton Justice
Department said, "One should never
underestimate the capacity of politicians to
fool a frightened constituency and perhaps
themselves as well."
Legislators in about one half the states
have introduced "three strikes" or similar
bills, most of which have been enacted.
Georgia and South Carolina have actually
passed "two strikes" legislation.
Leading the charge on the "three strikes
and you're out" trend was Washington
state and the National Rifle Association
(NRA). In the fall of 1993 the National
Rifle Association sponsored the three
strikes bill in Washington in its effort to
stress incarceration as an alternative to
gun control. The initiative got on the ballot
with lots of help from the NRA, and passed
overwhelmingly. In November 1993
Washington state voters approved an initiative calling for life sentences for anyone
convicted three times from a list of more
than 40 serious crimes.
"A young man's game"

"

play balH," "Safel," and "Strike
three-YOU're out!" are all phrases
that bring to the minds of most
Americans warm summer breezes, hot
dogs and good clean fun. After all,
baseball is (once again) America's
national pastime.
But during the past year we have heard
the phrase "three strikes and you're out"
in a different context. It has been appropriated by lawmakers and political pundits
to mean something else entirely, and this
game is not so pleasant. It means that anyone who is convicted of a felony for
the third time will spend the rest of his or
her days behind bars. Three strikes and
you're out (or rather, in) with no hope of
parole, ever.
Across the country "three strikes and
you're out" legislation has seized the public imagination. While attention has been
focused on the federal crime bill passed
last year, which includes a "three strikes"
measure, state legislatures have also
moved quickly to pass similar legislation.
Rhetoric vs. reality
Crime rates in the United States have,
contrary to popular belief, remained
relatively static over the last 10 years
(although crime is significantly higher
than it was 30 years ago).1 The public's
THE NATIONAL PRISON PROJEG JOURNAL

fear of crime, however, is at a fever pitch,
fueled largely by two things, the press
and the politicians. First of all, the media
make a practice of sensationalizing many
crimes. Ahandful of particularly frightful
and tragic events have dominated the airwaves and print media in recent years, for
example, the Willie Horton furlough case,
the Florida tourist killings, the murder of
12-year old Polly Klass in California, and
the Long Island RailRoad shootings. While
these were all horrible crimes and frightening in their randomness, they are
nonetheless atypical events and present
a distorted view of the actual risks.
Second, politicians, responding to public demand and acting out of their own
desire to get reelected, ignore the facts
about the crime problem and its possible
solutions. Candidates for reelection seem
to view a "tough on crime" attitude as the
key to career advancement. Most politicians, aware that the public's perception
of a crime wave far outpaces the actual
incidence of crime, nevertheless have no
qualms about using inflammatory rhetoric
to increase public apprehension. As
Marc Mauer, associate director of The
Sentencing Project, says, "The data don't
have much impact on the debate."
Offering no leadership, no real solutions, nor even an understanding of the

Get-tough laws ignore the most powerful crime-reducer of all, however: age.
"Crime is a young man's game," says
Wilbert Rideau, a lifer in the Louisiana
State Penitentiary. Research shows that
criminals commit fewer crimes as they
grow older. According to FBI data, violent
crime arrests rise rapidly in the teens,
peak at 18 and taper off through the 20s.
By 35 most adults "mature out" of crime
and actually commit crimes at a lower rate
than 13-year olds.
Given current sentencing trends, Federal
and state governments will be left housing
aging prisoners who are well beyond
their criminogenic years; U.S. prisons will
before long look like geriatric wards.
"Three-time losers" can never be released,
even when they are 80,90, or 100, in a
wheelchair or in a coma. Mammoth medical expenses may well bankrupt state governments already strapped for funds, as
the cost of incarceration rises from an
average of $20,000 per year for a younger
prisoner to more than $60,000 to care for
an elderly one.
Perry Johnson, the immediate pastpresident of the American Correctional
Association, says, "The idea of sentencing
every three-time offender in their midtwenties to life without parole is ludicrous.
The last 40 years of the sentence buy
almost nothing for the public safety, but
have an incredible cost to the taxpayer."
Continued on nextpage
SPRING 1995 5

Signs of uneasiness

According to recent press reports,
some state legislators are getting
cold feet and rethinking the "three
strikes you're out" fad because of the
financial cost.
There are also early signs that the
public, seeing the impact up close, may
not have the stomach for "three strikes"
for humane reasons:
• In San Francisco, the 71-year old
victim whose car had been burglarized
refused to testify in court because she
felt the sentence of life with no possibility of parole was too severe.
• In Los Angeles, a jury was deadlocked
on a routine burglary charge because
jurors believed that life in prison was
too harsh for a non-violent crime.
• One of the first offenders sentenced
under Washington State's three strikes
and you're out law was 35-year old
Larry Fisher, whose third strike
involved robbing a sandwich shop of
$151 by pretending that his finger in
his pocket was a gun. His two previous
strikes involved pushing his grandfather
down and taking $390 from him; and a
$100 pizza parlor robbery with no
weapon.
Financial costs

The only real beneficiary of these
repressive and costly laws will be the
prison construction industry, which is
already enjoying a boom in business, due
to stiff mandatory minimum sentences
already in effect. The California Department of Corrections estimates that the new
"three strikes" legislation will add 58,518
inmates to the projected base of 165,000

by the year 1998. By the year 2028 it will
add 275,000 more at a cost of $5.7 billion.
To give a more human face to these huge
numbers, consider that for the past six

years, the percent change in California's
state appropriations for corrections was
almost three times greater than its appropriations for primary school education.
A million behind bars already

Nearly one and a half million people are
locked behind bars in the United States, a
three-fold increase over 1980 and an
annual rate of increase of 8.5 percent.
In the 1970s the incarceration rate was
110 people per 100,000. In the 1980s it
skyrocketed to between 300 and 400 per
100,000 and it is now over 500. By contrast, over the last 20 years, murder rates
have remained flat, robbery has grown by
1 percent, and burglary has declined
somewhat. Alfred Blumstein, a professor at
Carnegie-Mellon University in Pittsburgh,
says, "[Incarceration] has had no clear
impact on crime rates."
Drug offenders, most non-violent firsttime offenders, now make up 46 percent
of new prison admissions. With the enactment of the "three-time loser" laws, more

An Analysis of Drug Testing in Prison
BY J.D. DOLBY AND DTHI S. WES'I'COn

r

ests for the presence of illegal drugs
are often used as evidence in prison
disciplinary hearings. Based on
the test results, disciplinary committees
make decisions regarding probation and
parole revocation, loss of good time, loss
of parole, and segregation for individual
inmates.
Drug testing methods

There are several types of urinalysis
technologies: (1) Enzyme Multiplied
Immunoassay Technique (EMIT); (2)
Radioimmunoassay (RIA); (3)

and more scarce prison space, which
should be reserved for those who pose a
real threat to public safety, will be taken
up by lower-level recidivists.
Crime is too complex an issue to try and
resolve with a baseball slogan. Three
strikes measures may make people feel
better in the short run, but they offer only
empty promises. The problem of crime can
only be addressed through long-term initiatives which require consideration of
many factors-individual, family and community. The current narrow and highly
politicized debate only intensifies the public's fears and leads to disappointment.
In any event, prison is a mop-up operation, as one prisoner put it. Lawmakers
would make better use of taxpayers'
money by emphasizing front-end, crime
prevention approaches than back-end,
reactive tactics such as "three strikes and
you're out." •

Fluorescence Polarization Immunoassay
(FPIA); (4) Gas-ChromatographylMassSpectrophotometer (GClMS); and (5) Thin
Layer Chromatography (TLC).
A"false positive" result indicates a
positive for a given drug when that drug is
actually absent in a urine sample, or present in concentrations below the designated cutoff level. To avoid testing errors,
confirmation of initial immunoassay positives by an alternative method-preferably
GCIMS-is recommended. Since the GClMS
testing is so expensive, however, prisoners
may be subjected to disciplinary action

Jan Elvin is the editior ofthe National
Prison ProjectJOURNAL.
1According to a recent report done by The
Sentencing Project, crime rates in the United States
are not substantially higher than in other industrialized nations, contrary to popular belief. Acomprehensive study of victimization rates in the third world
conducted by the Dutch Ministry ofJustice Statistics
show that rates of property crimes and some
assaultive crimes do not differ significantly among
comparable nations. A20-nation survey showed that
four countries (New Zealand, the Netherlands,
Canada and Australia) exceeded the United States
rate of victimization for II crimes, which included
robbery, burglary and car theft. Marc Mauer,
Americans Behind Bars: The International Use of
Incarceration, 1992-1993. Washington, D.C.: The
Sentencing Project (September 1994).

because of inaccuracies in other
technologies.
Legal issues
A. Fifth Amendment

The Fifth Amendment privilege against
compulsory self-incrimination is not violated when a positive urine sample is used
against a prisoner at a disciplinary hearing, nor does the Fifth Amendment prohibit prison officials from using a prisoner's
refusal to provide a urine sample as evidence against him.
The Fifth Amendment protects an accused
only from being compelled to testify
against himself, or from otherwise providing the State with evidence of a testimonial
nature. In Schmerber v. California, 384
Continued on page 17

A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOl. 10, NO.2, SPRING 1995 • ISSN 1076-769X

Highlights ~f Most
Important Cases
BY JOHN BaSION
PELICAN BAY: Use of Force, Medical
Care and Mental Health Care
In January 1995, a California federal court
issued the long-awaited decision in the
Pelican Bay litigation, and it was largely
favorable to the plaintiffs. Madrid v. Gomez,
No. C90-3094-THE, Findings of Fact,
Conclusions of Law, and Order (N.D.Cal.,
January 10, 1995) ("Opinion").
Pelican Bay State Prison, touted as a hightech, state-of-the-art maximum security facility, generated large numbers of serious complaints from the time it was opened in 1989.
The prison contains a 2000-inmate general
population maximum security unit, a small
minimum security unit, and a Security
Housing Unit (the "SHU") holding 1000 to
1500 inmates. The SHU is characterized by
extreme social isolation and lack of environmental stimulation; the prisoners are held in
windowless cells for 22 hours a day. It is the
SHU that generated some of the most lurid
allegations of mistreatment.
The case was properly treated as a major
piece of litigation by plaintiffs, defendants
and the court. The trial court heard testimony
from ten experts and 57 lay witnesses and
received more than 6000 exhibits and thousands of pages of deposition excerpts. The
district court's decision is 345 pages long.
The defendants have already filed a notice of
appeal, despite the apparent lack of an
appealable order.
The most important single issue in the case
was probably the misuse of force by staff. The
record included incidents in which an inmate
was beaten on the head with a gun butt, an
officer broke an inmate's arm while it was
extended through the cell food slot, and an
inmate was punched in the head while in
handcuffs and leg irons. Amentally ill prisoner was hospitalized with second- and thirddegree burns over a third of his body after he
THE NATIONAL PRISON PROJECT JOURNAL

was placed by officers in a bathtub of scalding water. Prisoners were left in "fetal
restraints" for hours, sometimes chained to
toilets or other fixed objects, for punitive
purposes, and in other instances were left
naked in outdoor holding cells during.
inclement weather. Forcible cell extractions
were conducted even when there was no
imminent security risk, and often with an
extremely high degree of force, including use
of batons, taser guns, and gas. Firearms were
used unnecessarily and sometimes recklessly,
in some cases because administrators failed
to prOVide staff with alternative weapons.
The court made no finding about the number of incidents of excessive force. Indeed, it
observed that such a finding was impossible
in view of the "code of silence" among staff,
the inadequacy of the prison's incident
reports, and the fact that some incidents went
entirely unreported. Opinion at 68. However,
the court concluded that "the instances of
force being used excessively and for the purpose of causing harm are of sufficient scope,
variety and number to constitute a pattern.
Plaintiffs have convincingly documented a
staggering number of instances in which
prison personnel applied unjustifiably high
levels of force, both pursuant to, and in contravention of, official prison policies."
Opinion at 69-70.
The court attributed the pattern of excessive force to a series of defaults by prison
authorities with respect to written policies
governing the use of force, supervision of the
use of force, investigation of possible misuses
of force, and the discipline of officers who
misused force. Written policies were found to
be incomplete and inconsistent, with little
attention paid to them in practice. Prison
administrators were found to have "abdicated
their responsibility" for supervising the use of
force by permitting or encouraging staff to
submit overly general incident reports and by
"turn[ing] a blind eye when an incident
report clearly calls for further inqUiry, such
as when it indicates that an inmate sustained
serious injuries that are either unexplained
or suspiciously explained." Opinion at 87.
The court made similar findings about
reports on shooting incidents. Internal Affairs

Division investigations of uses of force were
described as "counterfeit investigation [s]
pursued with one outcome in mind: to avoid
finding officer misconduct as often as pOSSible ... [N]ot only are all presumptions in
favor of the officer, but evidence is routinely
strained, twisted or ignored to reach the
desired result." Opinion at 99. Finally, in
three of the four incidents in which Internal
Affairs found that excessive force had been
used, the Warden acted to minimize or eliminate any adverse action against the staff.
In reaching its conclUSions, the court repeatedly questioned the credibility of assertions by the defendants and their employees,
both on the witness stand and in internal reports. The court also explicitly acknowledged
the undeniable presence ofa "code
ofsilence" at Pelican Ba)'... IT/his
unwritten but widely understood
code is designed to encourage prison
emplo)!ees to remain silent regarding
the improper behavior oftheir fellow
employees, particularly where excessive force has been alleged. Those
who defY the code risk retaliation
and harassment.
Opinion at 6.
In its legal analysis, the court had to determine what standard governed the plaintiffs'
claim. The defendants-the prison's warden,
deputy warden, and chief medical officer,
and the director of the state prison systemargued that they could not be held liable
unless they were shown to have acted maliciously or sadistically, the standard that the
Supreme Court has applied "whenever prison
o'fficials stand accused of using excessive
physical force." Hudson v. McMillian, 112
S.Ct. at 199. However, the court observed
that these defendants were not charged with
misusing force but with "conduct of a completely different nature: abdicating their duty
to supervise and monitor the use of force and
deliberately permitting a pattern of excessive
force to develop and persist." Opinion at 252.
In that situation, the court held, the rationale
for the malicious and sadistic standard
does not apply. There is no need to balance
prisoners' interest in being free of excessive
force against competing administrative
SPRING 1995 7

concerns for safety and order, and there
is no need to make decisions hastily and
under pressure. These factors were cited as
the reasons for adopting the malicious and
sadistic standard in the first place. See
Whitley v. Albers, 475 U.S. 312, 320 (986).
In their absence the court applied the deliberate indifference standard that governs
"prison conditions" cases. fd. at 253-56.
In reaching this conclusion, the court
threaded its way between two seemingly contradictory Ninth Circuit precedents. In jordan
v. Gardner, 986 F.2d 1521, 1529 (9th Cir.
1993) (en bane), the court held that a
search practice, even though nominally security-related, was not governed by the malicious and sadistic standard because its security justification was not legitimate, it had not
been adopted under time constraints, and it
routinely inflicted pain on prisoners. Id. at
257. In LeMaire v. Maass, 12 F.3d 1444,
1453 (9th Cir. 1993), the court (per a judge
who had dissented in jordan) held that
prison policies related to security are governed by the malicious or sadistic standard,
explicitly rejecting the view that the need to
make decisions hastily and under pressure is
essential to invoke that standard.
The Madrid court followed jordan and
not LeMaire. It distinguished LeMaire, first,
because that case addressed security measures applied by prison administrators to a
particular inmate's "extreme and dangerous
conduct," and second, because it challenged
the facial validity of the prison regulations
under which those measures were taken.
Opinion at 255-56 n.198. While these
distinctions are not altogether convincing, the
district court can hardly be faulted,
since jordan and LeMaire are virtually
irreconcilable.
The court went on to reject the defendants'
argument that the plaintiffs had to show that
each incident of staff violence on which they
relied was done with malicious or sadistic
motivation. Because the liability of individual
officers was not at issue, and the plaintiffs
sought only injunctive relief against highranking administrators, findings as to individual officers' liability were not necessary.
Their actions were not weighed for the purpose of assessing their mental state, but only
as part of the inquiry into the objective component of the Eighth Amendment claim-i.e.,
whether the force was "objectively 'excessive,'" which the court defined as "unnecessary or grossly disproportionate to the
circumstances." Opinion at 262.
In other words, prison administrators'
duty with respect to the use of force is not
discharged by ensuring that their staff do not
act maliciously and sadistically. If an officer
uses excessive force "because of lack of
training and supervision, rather than out of
8 SPRING 1995

malice," the officer may not be liable, but
those charged with training and supervision
may be, and that determination is governed
by the deliberate indifference standard.
The court did hedge its bets on both of
these holdings. With respect to the administrators' state of mind, the court concluded
that the extent of misuse of force and the "flagrant and pervasive failures in defendants'
systems for controlling the use of force reveal
more than just deliberate indifference: they
reveal an affirmative management strategy to
permit the use of excessive force for the purpose of punishment and deterrence." This
conduct meets the malicious or sadistic test.
Opinion at 259. With respect to the individual
officers' state of mind, the court found the
record "replete" with instances where the

record showed that force was used "maliciously for the purpose of causing harm, i.e.,
with a knOWing willingness that harm occur."
Opinion at 265.
The deliberate indifference standard that
the court applied requires a showing of actual knowledge of a substantial risk. Farmer v.
Brennan, 114 S.Ct. 1970, 1979 (994). The
Madrid opinion is one of the first to apply
this requirement to a systemic injunctive
case. The court found that the defendants
were aware of "serious problems concerning
excessive force" because these problems
were evident from the internal reports that
the defendants routinely reviewed and that
also formed the basis of expert testimony
about the prevalence of excessive force. The
court added that "the continuing and substantial risk of serious injury to inmates in a
prison where misuse of force is prevalent is
so obvious that defendants did, in fact, know
of this risk." Opinion at 116. Moreover, it
concluded that:
... [Dfefendants consciously disregarded the risk ofharm, choosing
instead to tolerate and even encourage abuses offorce by deliberately
ignoring them when they occurred,
tacitly accepting a code ofsilence,
and, most importantly, failing to
implement adequate systems to control and regulate the use offorce,
despite their knowledge that such

systems are important to ensuring
that the use offorce is effectively
controlled.
Opinion at 258.
By the time of trial the defendants had
made changes in some of the challenged
practices, and they alleged that these constituted a sufficiently "reasonable response" to
preclude a finding of deliberate indifference.
See Farmer v. Brennan, 114 S.Ct. at 1983.
However, the court noted that the changes
all post-dated the filing of the litigation, the
defendants had never acknowledged that
there was a use of force problem to be
addressed, they proffered other reasons to
explain the changes, and they offered no
assurances that the changes would persist.
Accordingly, it found that they were not
sufficient to avert a finding of liability.
The court also found an Eighth Amendment
violation in the prison's system of medical
and mental health care. Its condemnation
was brief, blunt and sweeping. It described
medical staffing levels as having progressed
only from "abysmal" to "still insufficient,"
and used similar language with respect to
mental health staff. Training and supervision
of staff, particularly when medical technical
assistants decide whether inmates may see a
doctor, were "almost nonexistent." Intake
health screening was "woefully inadequate"
and screening for communicable diseases
was "poorly implemented." The court cited
significant delays in medical treatment and
both delays in and failures to provide mental
health treatment, particularly for inmates
referred to other institutions for mental
health reasons. The court cited the lack of
protocols or training for dealing with emergencies or trauma, and the lack of effective
procedures for managing chronic illness. It
described medical recordkeeping as "utterly
deficient." It cited the lack of programs to
ensure the quality of care: "no working quality control program, no genuine peer review,
no death reviews." Opinion at 278-79.
In light of this record, the court had no
difficulty in finding that the defendants were
deliberately indifferent. It stated: "Defendants
knew that the plaintiffs had serious medical
needs, knew that the medical system at
Pelican Bay was inadequate to serve those
needs, and nevertheless failed to remedy
the gross and obvious deficiencies of the system." Opinion at 155-56. Their "abundant"
knowledge "is reflected in records of complaints by prisoners and staff, audit reports,
and budget requests that allude to the risk of
harm (and of litigation) if conditions are not
ameliorated." Opinion at 158. With respect to
mental health care, the court stated: "It is
certainly 'known' that there are inmates with
serious mental disorders 'throughout' the
California prison population," that it is
THE NATIONAL PRISON PROJECT JOURNAL

"obvious" that a prison like Pelican Bay
would generate a substantial need for mental
health services, and that it is equally obvious
that the lack of such services would cause
"considerable pain and suffering." The court
added that '·these facts are so obvious that we
find that defendants clearly knew of them."
Opinion at 191.
Two aspects of the court's analysis of the
system are of particular interest. One is its
emphasis on the lack of internal mechanisms
to monitor the quality of medical services. It
stated: "Defendants' callous and deliberate
indifference to inmates' needs is particularly
evinced by their failure to.institute any substantial quality control. Quality control pro-

n:

~

.

cedures represent the first critical steps of
self-evaluation that could help defendants
remedy widespread deficiencies ... " Opinion
at 281. This conclusion was amply supported
by the record, since defendants' own medical
expert agreed that quality assurance programs are "standard practice in virtually any
health care faCility in the country" and a
"fundamental part" of the provision of health
care." Opinion at 145. The court found that
.. [f] ailure to institute quality control procedures has had predictable consequences:
grossly inadequate care is neither disciplined
nor redressed." Id. at 146.
This discussion of medical care parallels
the court's observation that the defendants

,.

.,..

had "fail[ed] to implement adequate systems
to control and regulate the use of force,
despite their knowledge that such systems are
important to ensuring that the use of force is
effectively controlled." Opinion at 258. It also
meshes with the evidence of prison staff's
concern-described by one expert witness as
"an almost obsessive preoccupation"-that
inmates are malingering or manipulating in
their dealings with the medical and mental
health system. Realistically, some degree of
this adversary tension between patients and
medical providers is inescapable in a prison
setting, especially one that is designed to house
the prisoners labelled as most problematic.
In this context, the court's insistence on formal

.. support a, claim of a.constitutional violation under the Eighth
.' Amendment. SeePattersi:m p. Pearson, 19 F.3d 439 (8th Cir..
1994); Huntv. DentalDept., 865E2d 198 (9thCir. 1989);
and Fields v. Gander; 734 F.2d 1313 (8th Cir. 1984).
Even if the.action, or inaction, of prison personnel does not .'.
rise to constitutional dimensions, the prisoner may bring a
malpractice suit in state court, Of a tort claim in state court.
TID.s would be appropriate in cases where the mistreatment
...,' by prison officials is uladvertent,or the result of negligence.
However, even simple negligence may constitute "deliberate·
indifference," and thus be a constitutional violation if a pah
tern of ~'repeatedexamples ofrtegligent acts" by prison offi~ .
, cialscan be established. Ramos v. Lamm,639 E2d 559 .
(lOth Cir. 1980).
Prior to taking action in federal or state court, you should
'use,anyintemal procoouresthatare available, such as filing a.,
grievance. The next step is to either me a §1983 civil rights .
. suit inJederal court or a malpractice or tort action in state··
court.
A§ 1983 action may be brought prose by filing a complaint
in the district court where the problem arose or where the
. defendant lives. The complaint must cOlltainall the facts,in .
simple and straightforward terms, that have led you to believe '. .
that your constitutional rights have been violated. Additionally, ".
the,complaint must identify all ofthe defendants whose
.
actions have violated your rights, and the relief requested
(such as the performance of the treatment and money dam.' ages). Pro se civil rights complaint forms can be provided by
. the district court if you askfor them.
. The ffiing of a malpractice or tort suit in state court will
differ from state to state. It is important that you go to the bw
library in your facility or ask for legal assistance to find out
what the procedures ate for filing a state lawsuit. These state
suits are beneficial because you do not have to show "deliberate indifference" by prison officials. In such suits, decisions
can be based on the finding of a violation of the state constitu.tion,a state law or regulation,.or of the federal Constitution.•

6 the Supreme Court ruled tha~ the government must
medical care for those whom itpunishes by incarcer.stated that <'deliberate indifference" to an inmate's .
or injury constitutes cruel and unusual punishhAmendment. Estelle v.Gamble, 97
.·oU$.illn~sorjnjuryjsconsidered to .
ne~d.'!~at isso'obviou~that alay per'eas yrecognize e necessity fora doctor's atten- .
mos v.Lamm,639 E2d 559,575 (10th Cir. 1980).
on "been-treated with "deli
difference" .
USC §1983
.slhe may bring an action
ftheconstittitional . .,
cted from
nsuaipunishment. Th
eexamples of
ere courts have found that prjson ()fficials have·,
"deliberate indifference:" (l)delayot demalof
edical attention, Miltier. v. -Beotn, 896:F.2d 848
990); Estelle v.Gamble, 97"S.Ct. 185; (2) denial of
nledicai-personnel qualified
cise judgment
.culatmedical problem,
. ms v. Edwards,
(Stheix: 1977); (3)failnretoinquireinto ...
t are necessary to make a professional judgio.v.Warren, 901 F.2nd 274 (2dCir.1990); Tillery
,719 F.Supp. 1256 (W.D.Pa. 1989); (4) interference
dical judgment by non~medical fattors, Westv.
lOB S.Ct. 2250 H988);Hamilton v.Endell, 981 F.2d
Cir. 1992); and (5)failureto carry outmedical
tS,Estellev. Gamble, 97 S.Ct. 285, .
·ntal care, in·partitular,has beeltrecognized as "one of
important medical needs ofinmates." Ramos v.
; 639 F.2d559 (10th Cir. 1980). Evidence of dew
Kathi S. Westcott is a law clerk with the Prison Project.
'delay in dental treatment, for a painful condition, may

THE NATIONAL PRISON PROJECT JOURNAL

SPRING 1995 9

procedures for the review of medical care is
no more than a common sense acknowledgment of reality.
The court also focused on the relationship
between mental illness and the institutional
nature of Pelican Bay. It noted that a prison
designed for particularly violent and problematic prisoners will inevitably end up with
a disproportionate number of the mentally
ill, since they often violate rules and cause
management problems. Moreover, for some
inmates, the severity of conditions in the
SHU exacerbates previously existing mental
illnesses or results in the development of
psychiatric symptoms that had not been previously observed. Yet despite the obvious need
for substantial mental health services at
Pelican Bay, the prison was allowed to
open with no psychiatrist on staff, and staff
remained grossly inadequate up to the time of
trial. Moreover, the court noted that mental
health staff in practice have no input into
housing decisions, even in cases where a
change in housing conditions-e.g., removal
from the SHU-is necessary to effective mental
health treatment. Opinion at 179.
Not surprisingly, the court revisited this
subject in discussing the plaintiffs' challenge
to the conditions of confinement in SHU. The
court held that the SHU's extreme isolation,
idleness and lack of stimulation are not unconstitutional as applied to all prisoners,
even if they have adverse psychological
effects. However, if segregation conditions
"inflict a serious mental illness, greatly
exacerbate mental illness, or deprive inmates
of their sanity, then defendants have deprived
inmates of a basic necessity of human
existence-indeed, they have crossed into
the realm of psychological torture. " Opinion
at 292.
The court found that the defendants had
indeed crossed this line with respect to certain categories of inmates for whom SHU
conditions presented a high risk of severe
damage to mental health: persons who are
already mentally ill and those with borderline
personality disorders, brain damage or mental retardation, impulse-ridden personalities,
or a history of prior psychiatric problems or
chronic depression. "For these inmates, placing them in the SHU is the mental equivalent
of putting an asthmatic in a place with
little air to breathe." Opinion at 296. While
these inmates may be segregated, the defendants "simply can not segregate them under
conditions as they currently exist in the
Pelican Bay SHU."
The plaintiffs were less successful on their
other claims. The court ruled that prison
staff's failure to assess inmates' prior
assaultive record before assigning them to
double cells was not shown to have caused a
sufficiently pervasive risk of assault to violate
10 SPRING 1995

the Eighth Amendment and that the defendants were not shown to have known enough
about the risk to be found deliberately indifferent. (The court did, however, note that
its opinion would provide them with actual
knowledge that might support their liability in
future litigation.) Nor did plaintiffs show
that commingling inmates of different security
levels created a pervasive risk of harm.
The court also rejected the plaintiffs' due
process challenges to the segregation of
prisoners believed to be gang members or
associates; since their placement was deemed
to be administrative rather than punitive, the
defendants' compliance with the minimal
requirements for administrative segregation
placement satisfied due process. There was
one exception. The court agreed with the
plaintiffs that the defendants must make a
record when they reject a particular piece of
evidence as failing to support gang membership; the failure to do so creates a risk that
the discredited evidence will be relied on in
the future.
The court did not enter an injunction with
its opinion. Rather, it appointed a Special
Master (Thomas F. Lonergan, who has served
in that capacity in several West Coast jail and
prison cases), and directed the parties to
meet with him to develop a remedial plan.
The plan is to be submitted within 120
days, with the Special Master to make recommendations concerning remaining areas of
disagreement.
The defendants have taken some remedial
action since the opinion was issued. Cell
extractions are now videotaped, the outdoor
holding cells have been removed from the
yard, and the deadly force regulations have
been modified.

Other Cases
W~rth Noting
u.s. COURT OF APPEALS
WomenlEqual Protection
Klinger v. Department ofCorrections, 31
F.3d 727 (8th Cir. 1994). The district court
found an equal protection violation in the
relative lack of program opportunities at the
state's women's prison.
The appeals court reverses on the ground
that women prisoners are not "similarly situated" to men. At 731: "Absent a threshold
showing that she is similarly situated to those
who allegedly receive favorable treatment, the
plaintiff does not have a viable equal protection claim." Women are not similarly situated
because the women's prison is smaller than
the men's prisons, the length of stay for men
is longer, the women's prison has a lower

security classification than some of the men's
prisons, and women prisoners have "special
characteristics distingUishing them from male
inmates, ranging from the fact that they are
more likely to be single parents with primary
responsibility for child rearing to the fact that
they are more likely to be sexual or physical
abuse victims." <731-32)
For these reasons, prison programs
"reflect separate sets of decisions based on
entirely different circumstances." Comparing
an "isolated number of selected programs"
between the prisons is a "futile exercise."
Besides, Turner v. Safley counsels against a
holding that male and female prisoners are
similarly situated because plaintiffs' claim
involves the day-to-day administrative
decisions of prison officials.
The result of the "not similarly situated"
analysis is that gender differences are not
required to meet any standard of scrutiny,
and the question whether the differences in
programs actually do reflect different circumstances is not even to be asked. The court
denied rehearing of this decision.

Pre-Trial Detainees/Crowding!
Negligence, Deliberate Indifference
and Intent/State Officials and
Agencies
Harris v. Angelina County, Tex., 31 F.3d
331 (5th Cir. 1994). The district court
imposed a population cap on a county
jail. Liability is affirmed under the Eighth
Amendment, the court noting that if pre-trial
detainees are subjected to cruel and unusual
punishment, they are certainly punished within the meaning of the Fourteenth Amendment.
While design capacity is not always equivalent to constitutional capacity, it is "relevant"
to the constitutional inquiry (334). The fact
that the Texas Commission on Jail Standards
issued a remedial order limiting the population to the same figure as the design capacity
is "instructive." (335) Liability was supported
by evidence that crowding compromised
staffing, supervision, management and
classification, and that when the population
exceeded the design capacity, inmates had to
sleep on the floors' in day rooms. There was
testimony concerning incidents "that the district court could have found were the result
of, or at least were exacerbated by, the overcrowding at the jail." (335)
The subjective element of an Eighth
Amendment claim was "established against
the County." (335) Reports from the Texas
Commission on Jail Standards, various incident reports, evidence brought to the county's
attention through this litigation and testimony
from the sheriff and jail administrators
showed that the county was aware of the
crowding and its consequences. The county
defendants' decisions to pick up prisoners, to
THE NATIONAL PRISON PROJEG JOURNAL

release them or to detain them, as well as
staffing, classification and other decisions,
support a finding of deliberate indifference.
The court rejects the defense that the county
had done what it could do and the problem
was out of its hands, since the county could
delay acting on arrest warrants (and had
done so) and could have used other means
induding probation, other facilities and
electronic monitoring. At 336: "While such
approaches may not be ideal from a public
policy standpoint, they demonstrate that
alternatives were available to address the
unconstitutional conditions at the jail."
At 336: "Even if a cost «efense were recognized, we would find it inapplicable here,
since the evidence did not establish that
additional funding was unavailable from the
taxpayers to address the overcrowding."

Procedural Due ProcessAdministrative Segregation!Access
to Courts-Punishment and
Retaliation!Attorney Consultation
Barnett v. Centoni, 31 F.3d 813 (9th Cir.
1994). Due process was not violated by the
plaintiff's reclassification for writing an abusive letter to a witness in his criminal case
because he received some notice of the
charges and an opportunity to present his
views to the decision-maker. The court
assumes without deciding that the plaintiff
has due process rights in this context.
Because there was some evidence to support the reclassification, and therefore a
legitimate penological purpose, summary
judgment was properly granted on the plaintiff's claim that his reclassification was in
retaliation for filing litigation.
The denial of contact visits and telephone
contact with the plaintiff's attorney was not
shown to be reasonably related to legitimate
penological interests; summary judgment for
the defendants was therefore erroneous.

Heating and Ventilation
Del Raine v. Williford, 32 F.3d 1024 (lth
Cir. 1994). The district court should not
have granted summary judgment on the plaintiff's allegation of confinement in a "bitterly
cold cell." At 1035: "To only find an Eighth
Amendment violation from inadequate housing when the inmate's health is endangered
suggests that frostbite, hypothermia, or a similar infliction is an absolute requisite to the
inmate's challenge. Not so." The allegation
that the plaintiff was held in a cell with broken windows at a temperature not much higher than the outside temperature, with a wind
chill of forty or fifty degrees below zero, met
the objective prong of the Eighth Amendment
standard. The fact that prison officials provided the plaintiff with one blanket did not
defeat the claim as to deliberate indifference.
THE NATIONAL PRISON PROJEG JOURNAL

Classification-RacelRights of Staff
Moyo v. Gomez, 32 F.3d 1382 (9th Cir.
1994). Aprison officer who claimed that he
was fired for refusing to follow the practice of
letting white inmates but not black inmates
take showers after work stated a claim of
retaliation under Title VII of the Civil Rights
Act. Whether inmates were "employees"
under that statute was irrelevant; requiring
an employee to discriminate is an unlawful
employment practice. In any case, this
court has held that inmates may under
some circumstances be "employees" for
Title VII purposes.
Allegations that the officer was subjected to
an offensive work environment, "one polluted
by racial discrimination," would state a claim
of racially-based harassment under §
703 (a) (I) of Title VII.

Use of Force-Restraints/Access to
Courts-Punishment and Retaliation
Davidson v. Flynn, 32 FJd 27 (2nd Cir.
1994). The plaintiff complained that prison
staff placed restraints on him too tightly in
retaliation for his litigation activities. He complained that his ankle had a scar and numbness and his wrists were numb for several
months, in addition to other short-term pain.
These allegations met both the objective
and subjective components of the Eighth
Amendment standard. The fact that the plaintiff might have been restrained tightly anyway
because he is an escape risk did not support
summary judgment on his claim that the
restraints were excessively tight. Aretaliatory
motive constitutes wantonness.
The allegation that the plaintiff was intentionally denied medical care for the injuries
caused by the tight restraints was suffiCient to
state a constitutional claim.

Religion-Practices
Thomas v. Gunter, 32 FJd 1258 (8th Cir.
1994). The plaintiff alleged that he was not
permitted daily access to the sweat lodge for
prayer, while Muslims and Christians had
daily access to an "equivalent location" for
prayer. Under the Turner standard, the
defendants' "simple and unelaborated assertion" that their decisions were based on
"security-related limitations" did not justify
summary judgment under the Turner standard. Until the interests the defendants rely
on are delineated, the court cannot assess
their relationship to the challenged practices.
The plaintiff alleged that the sweat lodge
was the only appropriate place for his
prayers, so he had no alternative means
of exercising his rights.
It is clearly established that inmates must
be provided with reasonable opportunities to
pursue their religions comparable to other
prisoners who adhere to conventional reli-

gious precepts. In the absence of a rational
justification for the distinction made by the
defendants, they are not entitled to qualified
immunity.

Modification ofJudgments/Contempt
Cooper v. Noble, 33 F.3d 540 (5th Cir.
1994). In reviewing a contempt finding and a
denial of a modification motion in a jail consent decree case, the appeals court is "mindful that our deference to the magistrate
judge's exercise of his discretion is heightened in cases such as the one before us,
which involve consent decrees directed at
institutional reform ... We owe substantial
deference to the magistrate judge'S many
years of experience with this matter." (543,
citing O'Connor's concurrence in Rufo and
Hutto v. Finney respectively).
Changed factual circumstances by themselves do not justify modifying judgments;
"the [Supreme] Court insisted that the
petitioning party must 'ma[k]e a reasonable
effort to comply with the decree. '" (544,
citing Rufo) At 544: They must
(I) show that these changes affect
compliance with, or the workability
or enforcement of, the final judgment, and (2) show that those
changes occurred despite the county
officials' reasonable efforts to comply with the judgment... [The officials} do not adequately explain how
increased inspections and changes
in the number and diversity of
inmates affect the workability ofthe
final judgment, compliance with the
judgment, or enforcement ofthe
judgment. Neither do they show that
those changes, many or all ofwhich
were changes made by the county
officials [footnote omitted], occurred
despite their reasonable efforts to
compZJI with the judgment.
[Emphasis in original]
The magistrate did not err in finding the
defendants in contempt; they argued that they
were in substantial compliance because all
they were violating were the provisions that
they thought should be modified.

Searches-Person-Visitors
Daugherty v. Campbell, 33 FJd 554 (6th
Cir. 1994). At 556: ..... [R]easonable suspicion must exist before a strip search is authorized for prison visitors." An anonymous tip
relayed by a correctional officer does not
meet that standard. At 556:
Generalized suspicion ofsmuggling activity does not justify a strip
search... Instead, reasonable suspicion required individualized suspicion, specifically directed toward the
person targetedfor the strip search...
SPRING 1995 11

Reasonable suspicion exists only if
the information contained in the
tip is linked to other objective facts
known by correctional authorities...
[Citations omitted]
Searches-Person-Visitors
Spear v. Sowders, 33 F.3d 576 (6th Cir.
1994) (per curiam). Searches of prison visitors are governed by a reasonable suspicion
standard. At 581: " ... [R]easonable suspicion must support the scope of a search as
well as the initiation of it."
Areport that a confidential informant
informed a guard that an inmate Was receiving drugs from a "young unrelated female"
did not establish reasonable suspicion justifying a strip search of the plaintiff even though
she was the only young unrelated female who
visited the prisoner. The fact that all inmates
are strip searched after their visits "vastly
reduces the necessity to invade the privacy of
a visitor, and it correspondingly narrows the
circumstances in which it is reasonable to
subject a visitor to a strip search," as does
the degree of surveillance and the limitation
of contact during the visits (582).
It is "absolutely clear" that there was not

12 SPRING 1995

reasonable suspicion to search the plaintiff's
car, and even if there had been, contraband
in the car would not have been delivered to
the prisoner and was therefore not subject to
the "prison visitor exception to the warrant
requirement." (582)
The defendants were not entitled to qualified immunity.

In Forma Pauperis
Carney v. Houston, 33 F.3d 893 (8th Cir.
1994). The district court's sua sponte dismissal under Rule 12(b)(6) was improper.
District courts should dismiss frivolous in
forma pauperiS complaints out of hand; if
the complaint is not frivolous, they should
grant IFP status and order issuance and service of process. Once IFP status is granted,
the complaint should be treated like any
other "paid complaint." The district court's
local rule is inconsistent with these
requirements.
Access to Courts-Postage and
Materials
Hershberger v. Scaletta, 33 F.3d 955
(8th Cir. 1994). Administrative segregation
inmates were forbidden to earn money from

prison jobs and were not provided any
allowance for stamps or other incidentals.
They were allowed to go into debt for stamps
for legal mail, but were charged 50 cents a
month service charge for a negative balance,
and after the balance reached $7.50, they had
to show "exceptional need," determined in
officials' unfettered discretion.
The magistrate judge enjoined the service
charge and the "exceptional need" standard
and directed the provision of at least one free
stamp and envelope a week for purposes of
legal mail. The appeals court affirms. At 956:
"While...an inmate alleging denial of access
to the courts must show actual injury or prejudice, ... a systemic denial of inmates' constitutional rights of access to the courts is such
a fundamental deprivation that it is an injury
in itself." (Footnotes and citations omitted)

CrowdingIPre-Trial Detainees
Hall v. Dalton, 34 F.3d 648 (8th Cir.
1994). The plaintiff was jailed for 40 days,
confined to a windowless room for 24 hours
a day, in a two-person cell containing four
people which provided 14.22 square feet of
space per person. He was required to sleep
on the floor. Aprior class action judgment

THE NATIONAL PRISON PROJEG JOURNAL

held these jail conditions unconstitutional.
Since there was no dispute that the conditions
were the same in both cases and the class
action court properly applied prior Eighth
Circuit law, the plaintiff need not have made
"a further, individualized showing" to establish that his constitutional rights were violated.

Correspondence-Legal and
Official/Access to Courts
.I1uhammad v. Pitcher, 35 F.3d 1081 (6th
Cir. 1994). Mail from the state attorney general's office is confidential and the inmate
recipient is entitled to have it opened only in
his presence. Inmates mllY correspond with
the attorney general "to inquire about legal
remedies, to negotiate about future prosecutions, to complain about prison conditions,
etc." (1083) In addition, some divisions of
the attorney general's office (those dealing
with civil rights, consumer protection, etc.)
might take action on a prisoner's behalf or
based on information supplied by a prisoner.
At 1083: "... [C] ourts have consistently recognized that 'legal mail' includes correspondence from elected officials and government
agencies, including the offices of prosecuting
officials such as state attorneys general. ..
We can find no case that reaches a contrary
conclusion."
The fact that the particular item of mail the
defendants opened was not confidential did
not mean that the plaintiff did not show
injury. That argument "overlooks the chilling
effect that the challenged policy has on
inmates who desire to correspond confidentially with the state Attorney General."
(1083) The court treats the question of
injury as an element of the access to courts
claim as equivalent to the "injury in fact" test
of standing.
The policy of treating mail from the attorney general as ordinary mail does not pass
muster under the Turner test. The defendants did not show that a large volume of
mail was involved or that it would be more
burdensome to open it in the inmates' presence than elsewhere, especially since it was
already opening other legal mail in their
presence. The court concludes that the
incremental cost would be de minimis and
the policy was not rationally related to saving
resources. The plaintiff had no alternative
means of exercising his rights. To say he
could file lawsuits missed the point, since
there was no alternative way of communicating with the attorney general.

Telephones/Federal Officials
and Prisons
Washington v. Reno, 35 F.3d 1093 (6th
Cir. 1994). The federal prison system converted from a collect telephone system permitting unlimited calls to a direct dial system
THE NATIONAL PRISON PROJECT JOURNAL

paid for by credits purchased in the commissary and limiting calls to a list of 20 approved
persons who had to fill out an intrusive
questionnaire. Many prisons had policies that
automatically rejected calls to courts and
elected officials, and one rejected calls to the
news media. The district court granted a preliminary injunction based on these concerns,
the Bureau of Prisons' failure to comply with
the Administrative Procedures Act in amending the telephone regulations, the view that
the pre-existing telephone regulations probably created a liberty interest, a probable violation of the appropriations law pertaining to
the use of inmate trust funds, discrimination
against indigent inmates, and linking of
telephone privileges to participation in the
Inmate Financial Responsibility Program.
The district court also certified a nationwide class of federal prisoners.
At 1100: "... [F] ederal court opinions
have previously held that persons incarcerated in penal institutions retain their First
Amendment right to communicate with family
and friends, ... and have recognized that
'there is no legitimate governmental purpose
to be attained by not allowing reasonable
access to the telephone, and ... such use is
protected by the First Amendment.'''
(Citations omitted) (The case cited for the
latter proposition is a pre-trial detainee
case.) Telephone use is subject to rational
limitation in the face of legitimate security
interests. At 1100 n. 8: The court does not
reach the question whether the Turner
standard applies or whether a stricter standard applies because communication with
non-prisoners is involved.
The Bureau of Prisons' final rule increased
the list of numbers to 30, permitting more
based on individual situations; abandoned the
intrusive questionnaire; provided a minimum
of one collect call per month, exclusive of
legal calls, for indigents; exempts $50 in
funds sent to prisoners from outside from the
Inmate Financial Responsibility Program for
use for telephone calls, and increased the
number of calls permitted to inmates not in
the program to one a month. On appeal, the
court was informed that barring courts,
elected officials and the media was no longer
permitted without justification.
The district court did not abuse its discretion in granting a preliminary injunction barring the use of Commissary Fund monies for
paying salaries and other expenses associated
with installing the telephone system, since the
relevant rules earmarked these funds for purposes "accruing to the benefit of the inmate
body, as a whole." The plaintiffs have standing to complain about the method of funding
even if they don't have a right to any particular distribution of the funds. As to the
rest of the injunction, changes in regulations

and policy obviated the need for it. The
injunction serves "the public interest in
having governmental agencies abide by the
federal laws that govern their existence and
operations." (1103)

Suicide Prevention/Qualified
ImmunitylMedical Care-Standards
of Liability
Hare v. City ofCorinth, Miss., 36 F.3d
412 (5th Cir. 1994). The decedent committed
suicide in an isolated cell in jail after the
defendants had been given ample notice of
her suicidal tendencies. In addition, when
she was found hanging by a trusty who did
not have a cell key, the only deputy on duty
could not leave his post to cut her down
under jail procedures, so they left her hanging until another deputy who was not present
at the jail could get there.
II was clearly established that pre-trial
detainees must be provided with "reasonable
care for serious medical needs, unless the
deficiency reasonably served a legitimate
governmental objective." (416, footnote
omitted) Deliberate indifference need not
be proved. On these facts, the defendants
were not entitled to summary judgment.

Medical Care-Standards of
Liability-Deliberate Indifference
Hathaway v. Coughlin, 37 F.3d 63
(2nd Cir. 1994). The plaintiff's complaint
of continuing pain resulting from broken
pins after hip surgery constituted a serious
medical need.
Ajury could infer deliberate indifference
from evidence that the defendant doctor
never informed the plaintiff that he had two
broken pins in his hip ("information that
would give most people pause to consider
surgery") and never raised the possibility of
surgery with him, and from evidence of a
two-year delay between the discovery of the
broken pins and the time the defendant
asked that the plaintiff be evaluated for
surgery (the referral was not made until the
plaintiff filed suit).
The fact that the defendant frequently
examined the plaintiff did not negate deliberate indifference. At 68: "A jury could infer
deliberate indifference from the fact that
Foote knew the extent of Hathaway'S pain,
knew that the course of treatment was
largely ineffective, and declined to do anything more to attempt to improve Hathaway'S
situation." (68)

Appeal
Koch v. Ricketts, 38 F.3d 455 (9th Cir.
1994). The plaintiff's notice of appeal
arrived nine days late; he said he had given it
to an officer collecting regular mail three
days before the deadline. He did not use regSPRING 1995 13

istered, insured, or certified mail, which are
logged by prison authorities.
The plaintiff was not entitled to the benefit
of the "mailbox rule" of Houston v. Lack
because he did not use one of the available
means of mailing it that would result in a
written record, even though they would have
cost him more. At 457: "... [I]f a prisoner
just sends the notice on its way, without
providing some reliable evidence of the
date on which he relinquished control, he
bears the risk of delay just like any other
party." The plaintiff did not assert that he
lacked the money for registered, certified or
insured mail.

Use of Forceljury Instructions and
Special Verdicts
Baker v. Delo, 38 F.3d 1024 (8th Cir.
1994). Ajury awarded $1 in compensatory
damages and $100 in punitive damages from
each defendant based on allegations that the
defendants had dragged him back to his cell
from the medical unit.
Jury instructions that referred to the
"unnecessary and wanton infliction of pain"
but did not use the words "maliciously
or sadistically" were not plain error,
although an earlier case said "maliciously
or sadistically" is required as a matter
of law. The defendants proffered a similar
instruction.
Grievances
Dixon v. Brown, 38 F.3d 379 (8th Cir.
1994). The plaintiff alleged that a false
disciplinary charge that was dismissed was
brought in retaliation for his use of grievance
procedures. The district court erroneously
dismissed on the ground that the plaintiff
showed no injury. At 379: "Because the
retaliatory filing of a disciplinary charge
strikes at the heart of an inmate's constitutional right to seek redress of grievances,
the injury to this right inheres in the retaliatory conduct itself."
DISTRICT COURTS

CrowdingIModification ofJudgments
Small v. Hunt, 858 F.Supp. 510 (E.D.N.C.
1994). Aconsent decree prOVided for 50
square feet of dormitory liVing space and 25
square feet of dayroom space per inmate at
49 of the state's 92 prisons, to be complied
with by fixed dates. The settlement was
reached by a Settlement Committee including
representatives of the governor and several
legislators as well as counsel and prison officials. The decree was approved by the state
legislature, which passed a statute to that
effect. The defendants sought modification of
the 50-square-foot standard, claiming unforeseen increases in population. There had been
14 SPRING 1995

a number of emergency releases of prisoners
pursuant to a state statute that apparently
contains an overall population cap.
The court finds that although increases in
population were foreseen, the extent of the
increases were not, and the defendants are
entitled to some relief. The court rejects the
view that it must accept or reject the defendants' position; instead, it tailors the relief
itself. The court also rejects the view that any
court-mandated early release of prisoners
poses an unacceptable public risk, noting
that prisoners are released early because of
good time, parole, and other aspects of state
law. The court also notes that the public has
an interest in "having the state abide by the
terms of agreements made on its behalf' and
in having institutions operated in a fiscally
responsible way (523).
The court allows newly constructed dormitories to be occupied at 125% of capacity, but
not 130% (a difference of three or four
inmates), because they had been occupied
at 125% pending full compliance with the
decree and conditions remained better than
constitutional minima. The court declines to
rewrite the decree to the constitutional
floor and also because lack of experience
means that the effects of a 130% occupancy
are unknown.
The court declines the request to permit
the older dormitories to house inmates at
140% of capacity, noting that they are configured with a center row of bunks that blocks
vision, increasing the risk of assault, and
reduces space. The court viewed one of these
units "and concludes that although it was
acceptable for the interim period, it must not
be perpetuated."
The court notes that part of the problem is
the escalating rate of misdemeanant admissions, which has resulted from the state's
policy decision that it would rather use postadmission alternatives (such as boot camps)
rather than diversion from prison, and is
therefore "largely within the state's control."
This fact gives the court "some pause,"
but a different policy with misdemeanants
"could not have prevented the situation
now facing the state and does not preclude
the state from obtaining some relief." (519,
emphasis supplied)

Color of Law/Qualified Immnnity
Manis v. Corrections Corp. ofAmerica,
859 F.Supp. 302 (M.D.Tenn. 1994). Aprivate
corporation and its employees operating a
prison pursuant to contract are not entitled
to qualified immunity. At 305:
Aprivate party that petforms a
government function for afee, however, is not faced with the conflict of
public officials, for it is notprincipally interested in the good ofthe

public at large... In the case ofa
private for-profit corporation hired
to petform a public function, there
is an increased risk that the corporation's actions will diverge from the
public interest. Unlike public officials, corporate officers and employees are hired to serve the interests of
the corporation, and, more specifically, its stockholders, whose principal interest is earning afinancial
return on their investment...
.. .Affording the shield ofqualified
immunity to a private corporation
and its employees in these circumstances would directly contradict the
policy behind qualified immunity:
instead ofpromoting the public good
by freeing public officials "to make
decisions that are.. .above all ...
informed by considerations other
than the personal interests ofthe
decisionmaker, " ... it would simply
free a private corporation to maximize its profits, even at the cost of
citizens'rights.

Use of Force/Pre-Trial Detainees
Bieros v. Nicola, 860 F.Supp. 226 (E.D.Pa.
1994). At 231: "... [A]fter the arrest had
been completed and the individual is placed
into police custody, then the individual
becomes a pretrial detainee and is subject to
the Fourteenth Amendment." The court
declines to construe Albright v. Oliver as
implying otherwise. The due process standard applies to force used in a vehicle transporting the prisoner to a preliminary hearing.
The use of force against an arrestee simply
because he refused to sign his Miranda warnings and asked to make a telephone call
would be objectively unreasonable under the
Fourth Amendment. The same conduct would
shock the conscience under the due process
standard. The force concerned included hitting the plaintiff with a soccer ball to coerce
him into signing the Miranda warnings. At
232-33: "Use of even minor physical force
against a person in a police officer's custody
without provocation is actionable under section 1983 even if the injuries are not severe
or permanent... Further, any amount of
force used during an interrogation violates
one's constitutional rights."
Correspondence-Legal and Official
O'Keefe v. Murphy, 860 F.Supp. 748
(E.D.Wash. 1994). Aprisoner's correspondence "sent to government agencies or
officials as a grievance, is protected by his
First Amendment right to petition the government for redress of grievances." (751, footnote omitted). The omitted footnote (n. 8)
adds: "note that the grievance need not be
THE NATIONAL PRISON PROJEG JOURNAL

related to his incarceration." At 752: "To
permit prison officials to read prisoners'
'grievance mail' would cause the same chilling of meritorious petitions as with officials'
reading mail to attorneys or courts." Such
mail may be opened and inspected in the
prisoner's presence, and the mail may
be inspected "noninvasively" outside the
prisoner's presence.
The prison's policy of reading "grievance
mail" to government agencies and personnel
is invalid under the Turner standard. While
there is a security interest in inspecting such
mail, there is no security interest in reading
it. There are also alternatives such as using
non-invasive investigative techniques, requiring such mail to be marked "grievance" or to
be addressed to an administrative complaint
department, or inspecting in the prisoner's
presence.
This initial decision addresses outgoing
mail. With respect to incoming mail, the
court later determines that the defendants
cannot impose on correspondents a requirement that they label the mail "grievance
mail." Such a requirement is valid only if the
labelling is under prisoners' control, e.g., by
requiring inmates to add to their return
addresses the phrase "grievance mail" or
"legal maiL" (764)
The court grants summary judgment to the
plaintiff although only the defendants moved
for summary judgment.
On reconsideration, the court acknowledges that efficiency is a government interest
supporting the reading of grievance mail.
However, it reiterates that the plaintiff has no
alternative means of exercising his right; even
though he is permitted to send privileged
mail courts and attorneys and to file grievances within the prison, "[t] he First
Amendment grants an unrestricted right to
petition the government for redress of grievances" (760), and defendants' suggestions do
not address this unrestricted right. The court
characterizes the added expense (which
amounts to hiring one employee) as "slight";
the defendants' characterization of it as
"significant" does not entitle them to relief.

Access to Courts-Postage
and Materials
Hershbergerv. Scaletta, 861 F.Supp. 1470
(N.D.Iowa 1993), affd in part, 33 F.3d 955
(8th Cir. 1994). Prison policy denied free
postage to indigent inmates, applied a monthly service charge of 50 cents to inmates
who had negative account balances because
they had borrowed for legal postage, and
set a presumptive limit of $7.50 on the
amount of debt that prisoners could incur
for legal postage.
The denial of free postage for legal mail
and the 50 cent service charge (for which no
THE NATIONAL PRISON PROJECT JOURNAL

service was actually provided) are enjoined
as unconstitutional. The defendants are
directed to prOVide at least one free stamped
envelope a week for legal mail.The limit on
debt is unconstitutional as applied to legal
mail but not personal mail.
Prisoners may be required to pay for legal
mail if they also pay for personal mail. However, indigents may not be denied postage for
personal mail.
There is no requirement of a shOWing of
prejudice when a court access claim involves
systemic deprivations.
The foregoing holdings were affirmed on
appeal.

Access to Courts-Punishment and
RetaliationlMedical Care-Denial of
Ordered CarelPrison Records
Lowrance v. Coughlin, 862 F.Supp. 1090
(S.D.N.Y. 1994). The plaintiff was transferred
repetitively-17 times in seven years, nine
times after being at a prison less than 90
days, etc.
Retaliatory transfer and segregation
claims are governed by the Mt. Healthy
standard, under which once the plaintiff
has shown that constitutionally protected
conduct was a substantial motivating factor,
the defendants must show that they would
have taken the same action without the
improper motivation.
The court finds that nine out of 17 transfers and four of six placements in segregation
were retaliatory, sometimes motivated by
speculation about protected activity the plaintiff might engage in, and sometimes based
pretextually on expunged misconduct reports.
The Commissioner is found liable for some
transfers that he had notice were retaliatory
(1104,1108,1112,1113).
The failure over two years to provide
surgery for the plaintiff's knee, and subsequently to prOVide physical therapy, in the
face of actual knowledge of a serious medical
need, violated the Eighth Amendment.
Although there was no evidence of permanent injury, the plaintiff is entitled to recover
for additional pain and suffering during the
period of delay.
At 1119: "Plaintiff has a clearly established
constitutional right to have accurate information in his prison file when such information
is relied on in a parole hearing." Violation
of this right entitles the plaintiff to a new
parole hearing.
Damages are awarded of $98,000 for retaliatory transfers, at $6000 per defendant per
transfer, with an additional $2000 for transfers that were "particularly egregious because
of the core rights at stake." (1120) The court
awards $100 a day for 115 days in segregated
confinement, $2500 for a retaliatory cell
search, and $20,000 for pain and suffering

from delayed medical care. Punitive damages
of $25,000 are awarded jointly and severally
against the Commissioner and various
Superintendents.

Disabled/Qualified Immunity
Torcasio v. Murray, 862 F.Supp. 1482
(E.D.Va. 1994). The "morbidly obese" plaintiff (5'7", 460 pounds) asserted that numerous conditions of confinement violated his
rights under the Eighth Amendment, the
Rehabilitation Act, and the Americans with
Disabilities Act.
Under the ADA, the Department of
Corrections "is reqUired to make its facilities
and programs readily accessible to individuals with disabilities" and "make reasonable
modifications in policies, practices or procedures" unless it can demonstrate that these
would "fundamentally alter the nature of the
service, activity or program." (1492) There
was a question of fact whether the defendants
had made reasonable accommodations with
respect to showers (no chair), housing unit
tables (no appropriate chair), narrow cell
doors, inadequate recreational opportunities,
lack of non-skid matting in the building lobby
and dining hall, inadequate chairs and tables
and long waiting times in the dining hall,
inadequate medical transportation, lack of
personal aid, lack of seating at commissary
and pill line, placement in a housing unit too
far from services, an inadequately large cell,
and inadequate infirmary conditions.
The court assumes that qualified immunity
applies to these claims without discussion of
who the defendants are or whether they are
sued in their individual or official capacities.
The defendants' summary judgment motion is
granted as to several claims on the ground
that they could reasonably have believed that
their accommodations were reasonable, and
denied as to others.
\O\l·PRISON CASES

Modification ofJudgments
Ensley Branch, N.A.A.C.P. v. Seibels, 31
F.3d 1548 (1Ith Cir. 1994). At 1563:
Rufo normall)1 permits modifica. tion ofa consent decree only to
accommodate new factual or legal
circumstances. The sorts offactual
changes that may qualify include
unanticipated developments that
render continuation ofthe decree
"inequitable," ... or that, 'jor reasons unrelated to past discrimination or to the fault ofthe parties, "
make it extremely difficult or
impossible to satisfy obligations
that, while imposed by the decree,
are not part ofits fundamental
purpose... However, a district court
SPRING 1995 15

should not modify "long-standing
goals in consent decrees merely
because the goals have not been
achieved." [Citations omitted]
At 1564: "The court may not modify a
decree in a way that would 'violate the basic
purpose of the decree,' and must under
no circumstances 'create or perpetuate a
constitutional violation. '" [Citationomitted I

Modification ofJudgments
Juan F. by and through Lynch v. Weicker,
37 F.3d 874 (2nd Cir. 1994). A § 1983 class
action challenging aspects of the Connecticllt
child-welfare system was settled by a consent
judgment. The consent judgment called for
the preparation of a manual for each section
of the decree. The manuals were negotiated
under the aegis of a court-appointed mediation panel and were then adopted as court
orders. Their features included timetables,
staffing requirements, qualifications, and
caseload standards for investigative and
treatment staff. (876)
The plaintiffs moved for further relief as a
result of budget cuts that threatened the
defendants' ability to comply; in response, the
court set timetables for the hiring of staff and
for other actions required by the manuals.
At 879: This action, which "simply ensured
compliance with the time frame originally
established," was within the district court's
discretion. Relief that is directed towards
enforcing a prior order is not a modification
of that underlying order and need not meet
the standards applied to motions for modification under Rule 60, Fed.R.Civ.P. (879)
The court cites but does not make its holding
dependent on the existence of "continuing
jurisdiction" language in the consent decree.
The order would have been proper even
under the Rule 60 standards, since the
budget cuts "constitute[dl a significant
enough factual change to justify the changes
ordered by the district court. Those modifications were necessary to ensure timely
implementation of the decree and provide
for the plaintiff class the protections and
services originally agreed to by the parties
and ordered by the court." (879)
Contempt
National Organization for Women v.
Operation Rescue, 37 F.3d 646 (D.C.Cir.
1994). An injunction barring "trespassing
on, blockading, impeding or obstructing
access to or egress from" abortion clinics as
well as "[inciting), directing, aiding or abetting others in any manner, or by any means,"
to do so, was a "complex injunction" under
Bagwell and prospective fixed contempt fines
were therefore criminal in nature, except to
the extent that parts of them may have been
compensatory. The district court must make
16 SPRING 1995

"an express determination as to the existence, nature, and extent" of any compensable damages for such fines to be compensatory; any other fines must be assessed after
a criminal proceeding. At 661: "And a mixed
civil and criminal contempt proceeding must
afford the alleged contemnor the protection
of criminal procedure."

Class Actions-Certification of
Classes
Comer v. Cisneros, 37 F.3d 775 (2d Cir.
1994). The court notes the district court's
delay in addressing the plaintiffs' class certification motion and notes that this practice is
likely to result in mootness in cases involving
fluid classes. The court directs class certification and holds that it relates back to the
time of filing the complaint. Voluntary cessation of the challenged conduct does not moot
the plaintiffs' claims. The defendants did not
meet their burden of "demonstrating (1) with
assurance that there is no reasonable expectation that the conduct will recur, ... and (2)
interim relief or events have completely and
irrevocably eradicated the effects of the
alleged violation ... " (800, citations omitted,
emphasis in original)
FEDERAL RULES DECISIONS

Class Actions-Certification of
ClasseslPre-Trial Detainees
Hiatt v. County ofAdams, Ohio, 155
F.R.D. 605 (S.D.Ohio 1994). The court certifies a class of all inmates held in a county jail
at present or in the future. The average population of the jail is about 38, but the population is flUid, with a length of stay of about 15
days, yielding over 900 persons passing
through in a year. At 608: "The transient
and fluctuating nature of the jail population
makes joinder impracticable." Also, the
short terms of incarceration means that individual plaintiffs would soon lose standing,
making the claim capable of repetition yet
evading review.
ContemptIModification ofJudgments
Benjamin v. Malcolm, 156 F.R.D. 561
(S.D.N.Y. 1994). At 574: "A change in circumstances does not ordinarily warrant
modification if it was actually anticipated at
the time the consent decree was entered into,
or if the change of circumstances was deliberately brought about by the moving party."
The city's change of heart about the economic
merits of a plan it had put forward to meet its
obligation under a court order did not
justify modifying the order.
Under an order providing per diem fines
for violations of court-ordered "work plans,"
the proper measure of the fine is the delay
that the city's actions cause in providing

cook/chill food service to the plaintiff class.
The city is held in contempt because it
has "not diligently attempted in a reasonaWe
manner to comply" with the obligation to
consummate the original plan. In addition.
the court cites the city's failure to inform the
court until after the decision even though
it had been under consideration for two
months. This failure "violated the consultative
compliance process which the parties to this
case and the court have created with arduous
effort." At 568: "This litigation, which has
endured for longer than either of the
parties or the court desires or believes is
healthy, will never reach its objective if
either of the parties unilaterally disregards
its commitments."

ContemptIModification ofJudgments
Hurley v. Coughlin, 158 F.R.D. 22
(S.D.N.Y. 1993). Aconsent decree placed
limitations on strip search practices. The
plaintiffs documented "wholesale violations"
of it. They moved for contempt and the
defendants moved to modify.
The defendants' belief that the law permitted them more discretion in strip searching
than does the consent decree is irrelevant,
since "nothing prevents parties from waiving
their rights to secure some other objective,
...and settlement of this protracted controversy seemed more attractive than the cost and
burden of continuing the litigation, and once
entered the consent decree became binding
and conclusive." (29)
Neither subsequent changes in the law, nor
lack of foresight, "nor the expansion of
DOCS, which makes compliance with the
decree more onerous, justify noncompliance." (30) The defendants' proposed modification is denied. The plaintiffs' proposed
modifications, however, are designed to monitor more efficiently. The court appoints a
master, since the defendants had broken
away from their previous cooperative attitude,
ignoring some provisions and interpreting
others so as to render them null and void or
superfluous. The defendants are given "one
last opportunity" to show that monetary sanctions are not necessary.
The defendants are held in contempt. •

John Boston is the director ofthe
Prisoners'Rights Project, LegalAid
Society ofNew York. He regularly contributes this column to the NPPJOURNAL.

THE NATIONAL PRISON PROJECT JOURNAL

DRUG TESTING • continuedfrom page 6

U.S. 757, 760-61 (1960), the Supreme
Court held that the State could force a
defendant to submit to a withdrawal of
blood, and the use of its analysis at a
criminal trial did not violate the Fifth
Amendment privilege to "be compelled in
any criminal proceeding to be a witness
against himself." Similarly, in Ferguson v.
Cardwell, 392 ESupp. 750, 752 (D. Ariz.
1975), the court held that the taking of
blood samples from prisoners to test for
the presence of narcotics did not violate
the Fifth Amendment.
Furthermore, the courts have held that
introducing a defendant's refusal to submit
to a blood-alcohol test, or to a breathalyzer, does not violate his or her Fifth
Amendment right. See Welch v. District
Court ofVermont Unit, Etc., 594 E2nd
903 (2d Cir. 1979), and South Dakota v.
Neville, 459 U.S. 553 (1983).
In view of these rulings it seems clear
that the privilege against self-incrimination
provides no constitutional basis to object
to either drug tests, or to their use in disciplinary proceedings.
B. Fourth Amendment
The Fourth Amendment ensures "the
right of the people to be secured in their
person against unreasonable searches
and seizures." In asserting their Fourth
Amendment rights, prisoners usually
allege that the State did not have probable
cause to require a urine sample, that the
seizure and the use of the test results
intruded on a prisoner's reasonable
expectation of privacy, that the test itself
is unreliable, or that prisoners were
arbitrarily chosen to provide a sample.
Prisoners have limited Fourth
Amendment rights. In Hudson v. Palmer,
468 U.S. 517 (1984), the Supreme Court
held that Fourth Amendment protections
do not extend to prison cells. In Bell v.
Wolfish, 441 U.S. 520 (1979), the Court
upheld body-cavity searches of prisoners
after every contact visit without the support
of probable cause.
In Storms v. Coughlin, 600 F.Supp.
1214 (S.D.N.Y. 1984), the court questioned whether the taking of a urine sample was more "offensive and degrading"
than the visual body-cavity searches in
Bell and thus would require Fourth
Amendment protection. The court found
that urinalysis was not entitled to a higher
scrutiny than body-cavity searches, and
prison officials were allowed to obtain
urine samples without probable cause or
reasonable suspicion.
In Forbes v. Trigg, 976 E2d 308 (7th
Cir. 1992), cert. denied, 113 S.Ct. 1362
THE NATIONAL PRISON PROJECT JOURNAL

(1993), the court ruled that urine tests
are searches for Fourth Amendment purposes; however, noting the widespread use
of narcotics in prisons, the court said the
use of urine testing was a reasonable
means to combat this, and a prisoner's
refusal to participate when given adequate
notice is punishable by loss of good time.
Even though a prisoner retains an expectation of privacy, this privacy interest is limited by the security needs of the institution.
Furthermore, random testing of prisoners
is acceptable if adequate notice is provided, and if the person who chooses which
inmates to test is unaware of their identity.
Storms v. Coughlin, 600 ESupp. 1214 .
(S.D.N.Y. 1984).
C. Due Process
The major challenges concerning due
process as it relates to drug testing in
prison include the reliability of the urinalysis, confirmation of the test result, "chain
of custody," loss of good time, and the
failure of prison officials to preserve the
urine sample for possible independent
testing by the prisoner.
Manufacturers of immunoassay technologies and toxicologists recommend
that positive results be confirmed using
an analytically different technology.
Unfortunately, most courts have accepted
retesting of positive specimens a second
time using the same technology. See
Harmon v. Auger, 768 E2d 270 (8th Cir.
1985);jensen v. Lick, 589 ESupp. 35
(D.N.D. 1984); Vasquez v. Coughlin, 499
N.Y.S. 2d 461 (Sup. Ct. App. Div., 1986);
Peranzo v. Coughlin, 608 ESupp. 1504
(S.D.N.Y., 1985).
In Wykoffv. Resig, 613 ESupp. 1504,
1513 (D.C. Ind. 1985), and Higgs v.
Wilson, 616 ESupp. 226, 232 (W.D. Ky.
1985), the courts held that disciplinary
punishment could not be imposed based
only on the results from a single EMIT test.
However, in Peranzo, the court stated that
while prisoners have a substantial due
process interest in the accuracy of the
drug testing procedures used by prison
officials, "due process is not synonymous
with a requirement of scientific exactitude
or error-free procedures." 608 ESupp. at
1507. Furthermore, prison officials had a
legitimate penological interest in denying
the request of the inmate for an additional
test at his own expense, because alternate
tests would involve the use of prison personnel and not every inmate can afford
such tests. Pella v. Adams, 723 E Supp.
1394 (D. Nev. 1989).
"Chain of custody" encompasses procedures that govern (1) the collection, handling, storage, testing and disposal of a
urine specimen in a manner that ensures

that the specimen is correctly matched to
the person who was reqUired to provide it
and is not tampered with or substituted in
any way, and (2) the documentation that
these procedures have been carried out.
In Wykoff, the court was presented with
the issue of whether chain of custodY
proof was required in the handling of a
urine sample. The court held that Wolf.!v.
McDonnel, 418 U.S. 539 (1974), created
a legitimate liberty interest for prisoners in
the processing and handling of their samples. This liberty interest created for a
prisoner a "right to expect minimal due
process safeguards to insure that samples
are not mishandled bv correctional officers." Wykoff, 613 ESupp. at 1513.
The Supreme Court also recognizes that
prisoners have a liberty interest in good
time and that the revocation of good time
must follow some due process gUidelines.
The Supreme Court held in Superintendent, Mass. Corr. Institution v. Hill, 472
U.S. 445, 454 (1985), that the disciplinary
record must contain for the federal court's
review "some evidence to support the
decision to revoke good time." The definition of "some" is very little in reality. Asingle positive EMIT test was "some evidence," sufficient to satisfy due process
and support a finding of guilt. Harrison v.
Dahm, 911 E2d 37 (8th Cir. 1990).
Finally, the inability to produce a urine
sample cannot be punished with the loss
of good time. Kingsley v. Bureau of
Prisons, 937 E2d 26 (2nd Cir. 1991).
Whether a prisoner might be incapable of
urinating in view of a correctional officer
was also discussed in Storms. After four
hours of trying to urinate, prison officials
sent the inmate for a psychiatric evaluation. The psychiatrist stated that "it was
wholly understandable that a prisoner
might be unable to urinate in the presence
of others." 600 ESupp. at 1222 n.6. As a
result, the prison officials dropped the
disciplinary charges.•

JD. Dolby is a staffassociate at the
Prison Project.
Kathi S. Westcott is a law clerk at the
Prison Project.

SPRING 1995 17

te
Florida to Open
Prison AIDS
Care Unit
he Florida Department of
Corrections recently unveiled plans
for an AIDS Care Unit. Since the
segregation of prisoners with HIV/AIDS is
often hidden behind the premise of providing better health care, I viewed the plans
with a skeptical eye. Many county jails, in
fact, still practice segregation based on
ignorance of transmission routes. Therefore, a healthy amount of suspicion of the
motives behind a unit which houses only
AIDS prisoners is well-founded.
On the other hand, few prison doctors
are prepared to handle the acute needs of
end-stage prisoners with AIDS. In many
cases access to an infectious disease
specialist is preferable to being shuttled
between the prison infirmary and local
hospitals. Availability of properly trained
medical personnel along with the spiraling
medical costs for HIV/AIDS treatment within the system sparked the development of
Florida's proposed AIDS Care Unit.
According to John Burke, chief of Health
Services Administration for the Department
of Corrections in Florida, AIDS has been
the leading cause of death among Florida
prisoners since 1987. It is estimated
that of the current prison population of
60,000,7.9% of men and 14.4% of women

T

18 SPRING 1995

prisoners are HIV-positive. Over time, the
number of actual AIDS cases within the
system has reached a high of 1.1 % and
now hovers around 1%.
The Florida Department of Corrections
utilizes a four-level system to categorize
and track prisoners with HIV/AIDS. This
system ranges from Levell (HIV-positive,
asymptomatic) to Level 4 (AIDS with
acute care needs). Both Levels 2 and 3
are intermediate, where patients are
symptomatic, usually without serious
complications.
Currently, most Level 4 AIDS patients
receive care and treatment at the North
Florida Reception Center hospital.
Prisoners with AIDS who reach Level 4
status will be identified in two ways: either
through screening at the North Florida
Reception Center or after an unexpected
crisis at the institution; these prisoners
may have short-term life expectancy.
Prisoners with a consistent Level 4 status
indicating terminal care will be housed
permanently.
According to Burke, the AIDS Care Unit
would also offer the possibility for better
implementation of the state's conditional
medical release law. Data provided by
Merle Davis, director of Parole Services at
the Florida Parole Commission, indicate
that the release law has been implemented
fairly conservatively: since being signed
into law in 1992,40 of 150 conditional
medical release applications have been
approved.
"AIDS is the single biggest problem,"
says Burke. "We're attacking the largest
problem first. We're already moving forward to consolidate services within the

system with six clinics specialiZing in
chronic illnesses. The idea is to have two
or three institutions designated for chronically ill prisoners."
Women prisoners have been overlooked
in the hospice plans. In Florida prisons, as
in many other state systems, the HIV seroprevalence rates for women prisoners are
considerably higher than those for men.
Despite these figures the AIDS Care Unit
was conceptualized as a hospice for male
prisoners. "We average one female death a
year," according to Burke. "Women usually get out of the system earlier. If these
projections double we'll have to make
adjustments. As of now the Unit will only
house male prisoners."
Calls for the segregation of all prisoners
with HIV/AIDS have come from correctional officer unions and legislators in a number of states, but Burke is quick to admit
that a separate facility for non-acute cases
of HIV/AIDS would not be cost-effective.
"The intent is to provide high quality treatment at the minimum cost. All around the
country there are specialty facilities for
cancer, diabetes and other illnesses.
People will have to take a 'wait and watch'
attitude. There will always be doomsayers."
Prisoner rights advocacy groups are taking a cautious approach. Peter Siegel, staff
attorney for the Florida Justice Institute,
says, "In general, if this specialized facility
is not used to quarantine people, but is
used to provide medical care, I think it's a
good idea. The fear is it will be used for
people who don't need to be there." •

jackie Walker is the Project's AIDs
Information Coordinator.

THE NATIONAL PRISON PROJECT JOURNAL

blications

The National Prison
Project JOURNAL, $30/yr.
$21yr. to prisoners.
The Prisoners' Assistance
Directory, the result of a
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.

QTY. COST

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.

on AIDS in prison that are
available from the National Prison
Project and other sources,
including corrections policies on
AIDS, educational materials,
medical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

TB: The Facts for Inmates
and Officers answers

QTY COST

Fill out and send with check payable to:

Name

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

Address

THE NATIONAL PRISON PROJECT JOURNAL

1990 AIDS in Prison
Bibliography lists resources

AIDS in Prisons: The Facts
for Inmates and Officers is

-...----- A Primer for Jail Litigators
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
Status Report lists by state
those presently under court order,
or those which have pending
litigation either involving the
entire state prison system or
major 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 1993. $5 prepaid
from NPP.

Bibliography of Material on
Women in Prison

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 HIV
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25. 500 copies/$100.
1,000 copies/$150 prepaid.

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 rights
and responsibilities. Also
available in Spanish. Sample
copies free. Bulk orders: 100
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.
(order
from

ACLUHandbook, The
Rights of Prisoners. Guide to

ACLU)

the legal rights of prisoners,
parolees, pre-trial detainees, etc..
in question-and-answer form.
Contains citations. $7.95; $5 for
prisoners. ACLl Dept. i. i'.lI iso'
-9-1. Medford. \Y II-(),

OTY COST

City, State, ZIP
~1995

-

he following are major developments in the National Prison
Project's litigation program since
December 31, 1994. Further details of any
of the listed cases may be obtained by
writing the Project.

T

Lambert v. Moria/-The NPP filed suit
last July against the city of New Orleans on
behalf of women detained at the South
White Street jail (SWS). The complaint
alleged severe overcrowding, dangerous
environmental conditions, grossly inadequate fire safety precautions, deficient
medical and mental health care and
obstruction of legal access to attorneys
and courts. In December, the sheriff stipulated to the extension of all the remedial
orders in the original conditions case
against the city's Parish Prison (Hamilton
v. Moria!) to the female facilities.
Accordingly there is no need to litigate
medical, psychiatric, or many security/
operational and conditions claims
resolved by the Hamilton litigation. These
issues are being monitored for compliance, and enforcement motions have been
filed. The remaining claims challenge legal
access and conditions unique to the
female population and their environment.
These include privacy and sexual misconduct issues which are expected to go to
trial later this year. The issues of sexual
misconduct include accusations from
many of the women about correctional

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

officers extracting sexual favors from
female prisoners, sexually assaulting and
harassing them, and inappropriately fraternizing with prisoners. In addition, the
women claim that correctional officers
allow male inmate trustees to extract
sexual favors from female prisoners.
The privacy issues raised by the women
include the placement of closed-circuit
cameras in shower areas with monitors
visible to all visitors to the facility, male .
correctional officers and other staff entering the dormitory areas without warning
and being permitted to observe the women
nude or partially nude.
Austin v. Lehman-The settlement
agreement in the state-wide Pennsylvania
prison case was approved by U.S. District
Judge Jan DuBois on January 17 (see
the]OURNAL, Vo1.9, No.4 for details of
the agreement). In his Memorandum, the
judge described the settlement as "an
outstanding accomplishment by counsel
and... of manifest importance to all
citizens of the Commonwealth of
Pennsylvania."
Duran v.johnson-In December,
plaintiffs' attorneys in the New Mexico
case asked the court to hold the state in
contempt over living conditions at the
Main Facility at the Penitentiary of New
Mexico in Santa Fe, and sought fines
against the state of $10,000 for every day

that prisoners continued to be housed in
substandard conditions. In March, they
agreed to drop the motion in return for an
agreement from the state to replace the
aging Main Facility by October 1997. The
state has also agreed to make fire safety,
sewer and other improvements by October
of this year as interim measures to
improve living conditions while the new
prison is being built.
Kay Many Horses v. Racicot-This case
was filed in April 1993 on behalf of female
prisoners in Montana alleging that the
women were denied adequate medical and
mental health care, discriminated against
because of their disabilities, denied comparable progranlming and services offered
to male prisoners, denied meaningful
access to courts, denied sanitary and safe
housing, and denied due process. While
preparations for trial, were taking place
the defendants announced a plan to transfer the women to a new facility. Our expert
toured the new facility and reported that it
would offer much improved environmental
conditions. The women have now been
transferred. The parties negotiated about
the timetable to implement necessary programs at the new facility, and they have
now stipulated to an interim agreement on
the health care, environmental safety and
access to courts issues.•

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20 SPRING 1995

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