,.

THE NA TIONAL PRISON PROJECT
JOURNAL
A project of the American Civil Liberties Union Foundation, Inc.
Vol. 10, No.4, Fall 1995· ISBN 1076-X

As you can see, this quarters edition of the National Prison Project Journal is rather more subdued
than usual -- missing our red mast head, glossy paper and even photographs. This last quarter has been
a particularly difficult one for the NPP. We have been telling you for the past six months about the
legislation currently before Congress known in different bills as the "Stop Turning Out Prisoners Act" or
the "Prison Litigation Reform Act". As we go to press we do not know which of these bills, if either, will
pass, when they will become law or precisely what their impact will be on our work. We do know that
they will have a significant impact (the details of the legislation and the nature of that impact are
explained in the article below). While we wait to see exactly what is going to happen and how best we
can adjust to the radically changed circumstances in which we will be working, we are limiting our
expenditures to basic necessities. Providing information to our Journal subscribers is certainly a
necessity - the color printing and the glossy papers we can forgo. We hope by our next edition we will
be producing something that looks rather more like the Journal you are used to.

The Prison Litigation Reform Act
The "Stop Turning Out
Prisoners Act" (STOP),
which passed the House as
Title III of HR 667 and was
before the Senate Judiciary
Committee as S.400, became part of the State, Justice and Commerce Appropriations Bill (H.R. 2076)
this fall, added by the Appropriations Sub-Committee
Chair (and aspiring Republican presidential candidate)
Phil Gramm.
When the bill reached
the floor of the Senate, Senator~ Orrin Hatch and Bob
Dole (another aspiring presidential candidate) substituted their Prison Litigation Reform Act (PLRA) for the
STOP language and this
version passed the Senate
by a voice vote on September 29. As the Journal
goes to print, the bill is due
to come before the joint

Senate-House Conference
Committee. When a compromise has been worked
out between the House and
Senate bills, H.R. 2076 will
either be sent to President
Clinton for signature as it
stands, or it will be joined
together with other bills and
sent to him as part of a
long-term Continuing Resolution to provide funds to
run the govemment until the
detailed budget is worked
out.
The PLRA is in some
respects even worse than
STOP. While proponents of
the bill have been talking a
great deal about "frivolous"
prisoner lawsuits as though
they were the only target of
this legislation, the reality is
that the PLRA will impact
meritorious lawsuits involving serious constitutional
issues. It will severely limit

the federal courts in remedying abuses suffered by
prisoners in all cases, even
those that seek to enjoin the
rape of juvenile and women
prisoners by prison guards,
the sadistic beatings of prisoners, and the failure to provide prisoners with minima'Iy adequate medical and
mental health care.
Among many provisions
the bill would Prevent states from entering
Into consent decrees by
requiring a finding of a violation before a court could
issue any relief in a prison
conditions case, thereby
effectively prohibiting courtenforceable consent decrees. If plaintiffs counsel
are not agreeable to a nonenforceable settlement
agreement, which will be the
case in most circumstances,
the bill forces prison offiCIals

to choose between (1) going
to trial and risking a finding
of liability, even in a case
that they believe they will
lose; or (2) making an admission of liability.
Call for the immediate termination of all existing consent
decrees, upon motion by the
defendant, unless the court
holds a trial and makes a
finding of a current violation
of a federal right. The provision destroys all the work
that has been done by both
sides in reaching agreement
and could lead to conditions
in every prison and jail that
is currently operating under
a consent decree declining
to their previous unconstitutional state.
Render emergency relief all
but ineffective by requiring a
preliminary injunction to terminate 90 days after entry
unless the court makes the
injunction final within the 90
days. The parties would
therefore have to complete
discovery and the court
complete a trial and issue a
decision within the 90-day
period, an extremely unrealistic time frame. Preliminary
injunctions are designed to
address emergencies, often
involving life and death situations, that cannot wait for
the length of time required
to conduct a full trial. Termination of a preliminary injunction, without attention to
whether there is good cause
for the injunction to remain
in effect, deprives a court of
the power to prevent a defendant from returning to life
threatening practices.
Require any relief that is the
sUbject of a pending motion
to go out of effect 30 days
after the filing of a motion.
2

FALL 1995

This provision is particularly
damaging given that the bill
requires a court to terminate
all existing consent decrees,
unless the court conducts a
trial and finds a violation of
federal law. Thirty days is
simply not an adequate
amount of time for the parties to engage in discovery
and the court to hold a trial
and issue a ruling. This
provision allows defendants
to revert to practices that
were found by a court to be
unconstitutional, simply because the court has not had
time to retry the case.
Render special masters ineffective by limiting a
master's powers to making
findings based on the record, essentially making a
master a second judge or
Magistrate. The most useful
purposes served by masters
relate to formulation and
implementation of injunctions, mediation of disputes between the parties,
and reporting to the court on
compliance with a court's
orders. The bill prevents a
court from appointing a
master to serve in these
capacities. The bill also limits the compensation of special masters so severely that
it will be very difficult to find
suitably qualified experts to
undertake the work.
Drastically limit the availability of attorney's fees by preventing a court from awarding attorney's fees in all settled cases and for work
done by plaintiffs counsel
during the remedial stage of
litigation. With no compensation payable for monitoring, defendants would be
insulated from any oversight
of their compliance with a

court's orders. This would
make the orders worth little
more than the paper they
are written on because defendants could fail to obey
them with impunity.
The bill also severely
limits attorney's fees for all
other prison litigation work,
tieing them to CJA Act
rates, despite the fact that
prison litigation fees are
contingent on winning the
case and have to cover all
the fees and expenses for
experts.
Deny prisoners damages for
mental or emotional injUry
that leaves no physical
scars effectively allowing
prison guards to torture prisoners without being liable
for damages provided that
the torture does not cause
"physical injury."
In addition to its impact
in class action suits, the bill
also imposes new restrictions on pro-se filings (described in the "Dear Prison
Project" box on page 15)
and prohibits some amenities, such as weightlifting
equipment and in-cell televisions, in federal prisons.
Taken together, the rrovisions of this bill constitute
the latest and most destructive steps in the current
movement towards the
harsher and more meanspirited treatment of prisoners -- a movement that has
been condemned by corrections officials as well as
prisoners' rights activists.
Of course, a number of the
provisons are of questionable constitutionality and WIll
be challenged in the courts
However, final resolution of
those challenges will take
some time.

THE NATIONAL PRISON PROJECT JOURNAL

Case Law Report --

Highlights of Most Important Cases

by John Boston
ACCESS TO COURTS
As the Supreme Court
prepares to review a prison
court access case for the
first time in 18 years, see
Casey v. Lewis, 43 F.3d
1261 (9th Cir. 1994), cert.
granted, 115 S.Ct. 1997
(1995), two federal appellate
courts have issued strikingly
regressive decisions concerning the scope of the
right. Both decisions are
notable not only for their
results but also for their reliance on catchphrases from
prior case law in preference
to any analysis of the nature
of the right to court access.
Prisoners' right of ac. cess to courts was first
acknowledged in Ex parte
Hull, 312 U.S. 546 (1941),
which struck down a state
regulation requiring official
approval before prisoners
could file habeas corpus
petitions, and in Johnson v.
Avery, 393 U.S. 483 (1969),
which invalidated a disciplinary rule forbidding prisoners
to assist one another in preparing legal papers. Both
Hull and Johnson rested
largely on "the fundamental
importance of the writ of
habeas corpus...." Johnson,
393 U.S. at 485.
In Bounds v. Smith, 430
U.S. '~17, 828 (1977), however, the Supreme Court
held that there is a more
general "constitutional right
of access to the courts" and
that prison officials are required not only to refrain
from obstructing it but affirmatively to "assist inmates
in the preparation and filing
THE NATIONAL PRISON PROJECT

of meaningful legal papers
by providing prisoners with
adequate law libraries or
adequate assistance from
persons trained in the law."
In Comett v. Donovan,
51 F.3d 894 (9th Cir. 1995),
the question presented was
"whether the constitutional
right of access to the courts
requires a state to provide
legal assistance beyond the
pleading stage." It arose at
an Idaho state mental hospital, which did not provide a
law library but--after being
sued--contracted with the
county public defender to
provide limited legal services to its patients. (The
courts have treated the
court access rights of the
civilly committed or detained
as generally equivalent to
those of prisoners. See,
e.g., Ward v. Kort, 762 F.2d
856, 858 (10th Cir. 1985);
Orantes-Hemandez v.
Smith, 541 F.Supp. 351,
384 (C.D.Cal. 1982) (immigration detainees).)
The Comett court held
that the obligation to provide
legal assistance did not extend beyond the pleading
stage. It supported this
conclusion primarily by marshalling out-of-context
phrases from Supreme
Court cases. For example,
it cited as "the most direct
statement on the subject"
the observation in Wolff v.
McDonnell, 418 U.S. 539,
576 (1974), that "the Fourteenth Amendment due process claim based on access
to the courts ... has not
been extended by this Court

to apply further than protecting the ability of an inmate
to prepare a petition or a
complaint." However, this
statement was mdde in the
course of upholding the inspection of legal correspondence in the prisoners presence, against a claim that it
could not be inspected at
all. The question of legal
assistance beyond the
pleading stage was not presented, and indeed Bounds
v. Smith, the first systematic
statement of the right of
court access, had not even
been decided. The Wolff
Court also held that prisoners had the right to seek
assistance from one another
in civil rights actions as well
as in habeas corpus proceedings. Referring to this
discussion, the appeals
court in Comett cites references to "present[ing) '"
allegations" and "articulat[ing) their complaints" as
supporting its view that assistance is required only at
the pleading stage. But
here, too, the quc5tion WJS
not presented in Wolff and
the Court did not purport to
address it. Comett makes
similar use of sound bites
from Bounds v. Smith.
The Ninth Circuit is not
the first federal appeals
court to take this approach
The Tenth Circuit held some
years ago that the right to
court access extends no
further than the filing of a
complaint or petition.
Nordgren v. Milliken, 762
F.2d 851,855 (10th Clf),
cert. denied, 474 U.S 1032
FALL 1995

3

(1985). This view is actually
more restrictive than the
Ninth Circuit's; Cornett does
define the "pleading stage"
slightly more broadly than
the initial filing, so as to include the reply to a counterclaim or the answer to a
cross-claim if one is asserted. 51 F.3d at 899. The
other circuit to rule on this
question took an even
broader view of the pleading
stage. In Knop v. Johnson,
977 F.2d 996, 1000 (6th Cir.
1992), cert. denied sub
nom. Knop v. McGinnis, 113
S.Ct. 1415 (1993), the Sixth
Circuit held that the state "is
not obligated to do anything
more than assist inmates at
the pleading stage," 977
F.2d at 1007 (quoting the
district court). However, it
had earlier stated that
meaningful court access,
"as the [district] court correctly noted, entails not only
the drafting of complaints
and petitions for relief but "
also the drafting of responses to motions to dismiss
and the drafting of objections to magistrates' reports
and recommendations." Id.
at 1000 (citing the same
passage from the district
court). Presumably, then,
the Sixth Circuit includes
this motion and objection
practice as part of the
"pleading stage."
The rationale for the
Cornett holding is the perceived necessity to
distinguishO between the
constftutionalrightof
access to the courts and
the constftutional right to
counsel. .... The right of
access is designed to
ensure that a habeas
petition or a civil rights
4

FALL 1995

complaint of a person in
state custody will reach
a court for consideration.
Once the claim reaches
a court, an indigent institutionalized person is in
the same position as an
indigent noninstitutionalized person filing, for
example, a civil rights
claim.... The court can
determine whether the
claim warrants appointment of counsel to represent the plaintiff. If so,
the court may request
an attorney to represent
an indigent plaintiff.
51 F.3d at 899 (citations
omitted).
This reasoning is questionable on two grounds.
First, it ignores reality to
claim that institutionalized
indigents ever are in the
same position as those who
are not physically confined.
As another court pointed
out:
[This} argument
overlooks the fact that
an unincarcerated indigent person is free to go
to an attorney, explain
his claim, and try to convince the attorney to
accept the representation. Furthermore, if an
unincarcerated person
chooses to represent
himself, he can go to a
law library to do legal
research and education
himself on how to prepare his petftion or complaint.
Carper v. Deland, 851
F.Supp. 1506, 1522 (D.Utah
1994), rev'd, 54 F.3d 613
(10th Cir. 1995). Add to this
the unwillingness of many
lawyers to deal with prisoners, plus the fact that an

incarcerated person faces
substantial restrictions in
attempting to locate and
interview witnesses and otherwise gather evidence in a
factually contested proceeding, and the absurdity of
Cornett's view becomes apparent.
The other prong of
Cornett's reasoning-that
once a proper pleading is
before the court, the court
can determine whether to
appoint counsel--is also at
odds with reality. The widespread practice in the federal courts is seriously to consider the merits of a request
for counsel only after the
case has survived dispositive motions. Very often the
relevant motion will be a
motion for summary judgment and not a motion to
dismiss. Summary judgment does not appear to be
included even in Knop's ex.panded definition of "the
pleading stage." Thus, under Cornett's and Knop's
reasoning, the prisoner
would not be entitled either
to the use of a law library or
the assistance of legally
trained persons at this crucial point in the case.
In addition, courts can
only request attorneys to
represent indigent prisoners,
see Mallard v. U. S. District
Court for the Southern District of Iowa, 490 U.S. 296,
104 L.Ed.2d 318 (1989),
and the supply of willing
lawyers is inadequate. (For
example, even in the Southern District of New York,
with its concentration of lawyers, its strong pro bono
tradition, and its well-organized counsel appointment
system, there is a very large

THE NATIONAL PRISON PROJECT JOURNAL

backlog of cases in which
the courts have ruled that
counsel should be assigned
but no attorney has been
found.)
A different question
about the scope of Bounds
is presented in Carper v.
DeLand, 54 F.3d 613 (10th
Cir. 1995). Carper arose in
the Utah prison system,
which--Iike the mental hospital in Cornett--provides legal
assistance through a contract with local attorneys;
there are no law libraries in
the prisons and inmates are
not allowed assistance from
"writ writers."
Several Utah prisoners
filed suit when the contract,
formerly of broad scope,
was changed to eliminate
general legal assistance in
civil matters and to restrict
the attorneys' services to
writs of habeas corpus and
challenges to conditions of
confinement. The federal
district court granted a preliminary injunction to the
named plaintiffs and to several additional prisoners preserving the existing level of
services to those individuals. A class was then certified of "all current and future
inmates in the Utah prison
system who seek to exercise certain legal rights."
Carper v. DeLand, 851
F.Supp. 1506, 1510-11 (D.
Utah 1994). The court upheld some aspects of the
Utah 'system but granted
summary judgment to the
plaintiffs on several issues
and issued an injunction.
The applicability of
Bounds to civil proceedings
had not previously been
addressed by the federal
courts in any consistent or
THE NATIONAL PRISON PROJECT

systematic fashion. In Jackson v. Procunier, 789 F.2d
307, 311 (5th Cir. 1986), the
court stated generally that
the right extended to civil
claims, but the case at hand
involved only an appeal
from an adverse civil judgment. The same court had
earlier stated that the right
applies to "general civil legal
matters including but not
limited to divorce and small
claims." Corpus v. Estelle,
551 F.2d 68, 70 (5th Cir.
1979). Two courts had held
that the right is "strongest"
with respect to "direct and
collateral appeals of criminal
convictions"; it is "also
strong" in civil cases involving fundamental constitutional rights; and it is "weaker" when the case does not
raise any constitutional
claims. Cofield v. Alabama
Public Service Commission,
936 F.2d 512, 517 (11th Cir.
1991); accord, In re Green,
669 F.2d 779,785 (D.C.Cir.
1981); see Straub v. Monge,
815 F.2d 1467, 1470 (11th
Cir. 1987) (Bounds right
applies to civil forfeiture proceeding). The Sixth Circuit
adopted a more restrictive
bright-line rule in John L. v.
Adams, 969 F.2d 228,23437 (6th Cir. 1992), holding
that the Bounds v. Smith
right of "affirmative assistance" applies only to civil
actions related to prisoners'
incarceration. With respect
to other kinds of civil actions, this court held, prison
officials' obligation is limited
to refraining from imposing
barriers or impediments to
court access..
The district court in
Carper took the approach of
the Eleventh and District of

Columbia Circuits and applied it with specificity to a
number of types of civil
claims. The court distinguished between claims that
it thought raise "fundamental
interests" and those that do
not. Thus, it concluded that
the state must provide assistance in opposing proceedings to terminate parental rights and in divorce
proceedings, relying on the
importance--and the legal
protections--that the Supreme Court has accorded
to them in cases such as
Boddie v. Conecticut, 401
U.S. 371 (1971) (exempting
indigents from costs and
fees in divorce proceedings), Stanley v. l!Iinois, 405
U.S. 645 (1972) (requiring
hearings for unwed fathers
before termination of parental rights), and Little v
Streater, 452 U.S. 1 (1981)
(requiring free blood tests
for indigents in paternity
proceedings).
The Carper district court
similarly held that assistance is required in woriters'
compensation matters.
which it analogized to the
welfare benefits at issue In
Goldberg v. Kelly. 397 U .s
254 (1970), and ·for small
claims involving property
taken or destroyed by per·
sons acting under color of
state law. However, it held
that other small claims,
name change proceedings.
personal injury and other
tort cases, breach of contract claims, and collection
matters do not invoke the
Bounds holding. Interestingly, the court also held
that the obligation with respect to family law matters
"would not extend to matters
FALL 1995

5

involving enforcement or
contempt proceedings or
modification proceedings in
divorce cases." 851
F.Supp. at 1506.
The district court's analysis can be faulted. It is not
clear that distinctions made
for purposes of requiring
hearings, eliminating filing
fees, and ensuring adequate
fact-finding can be imported
wholesale into the Bounds
analysis. Nor is it clear why
a claim for workers' compensation for an injury
should be treated differently
from a claim for tort compensation for the same injury sustained off the job,
since either award may provide the only means of sustenance for the injured person and his or her family.
Nonetheless, the Carper
district court opinion is the
most substantial effort by
any court to explore the implications of Bounds for civil
proceedings.
On appeal, the Tenth
Circuit responded to this
laborious analysis by dismissing it out of hand, citing
previous circuit authority
that stated, e.g., that ''we
are persuaded that we
should not hold that the
right of access to the courts
requires more than the assistance of counsel through
completion of the complaint
for a federal habeas or civil
rights action." Carper v.
Deland, 54 F.3d 613 (10th
Cir. 1995), quoting Nordgren
v. Milliken, 762 F.2d 851,
855 (10th Cir.), cert. denied,
474 U.S. 1032 (1985).
The appeals court's
statement that "settled precedent" requires reversal of
the district court's decision
6

FALL 1995

is simply false. Like Cornett
v. Donovan, it marshals outof-context sound bites from
previous opinions while ignoring the fact, explained in
detail in the district court's
opinion, that the question of
Bounds' applicability to civil
proceedings was not actually presented in Nordgren
and the other Tenth Circuit
cases. Rather, these decisions focused on the question whether the right extends to assistance beyond
the pleading stage (discussed above). Similarly,
references in Supreme
Court cases, e.g., to "original actions seeking new
trials, release from confinement, or vindication of fundamental rights," Bounds v.
Smith, 430 U.S. at 427,
were made in the course of
describing the issues before
the Court in the particular
case, not in defining the
reach of prisoners' court
access rights.
By its misplaced reliance
on prior dicta, the appeals
court was able to avoid the
need for any actual analysis
of the issues before it,
which were substantial. The
question of the proper
scope of the Bounds right
can be answered only by
starting with a clear understanding of the nature and
purpose of the right to court
access.
This may seem like a
hard task in theory, given
the vagueness of the origins
of the right, which have
been found variously in the
Due Process Clause, the
Equal Protection Clause, the
First Amendment, and the
Privileges and Immunities
Clause of Article IV of the

Constitution. See, e.g.,
Murray v. Giarratano, 492
U.S. 1, 11 n. 6,109 S.Ct.
2765 (1989); John L. v. Adams, 969 F.2d 228, 231-32
(6th Cir. 1992). But common sense provides ample
guidance. The purpose of a
court system is presumably
to provide for the fair resolution of disputes. It follows
that meaningful access to
that system does not end
with the filing of a pleading
that then goes nowhere.
See Bonner v. City of
Pritchard, Ala., 661 F.2d
1206, 1212-13 (11th Cir.
1981) (right of court access
was not satisfied by permitting prisoner to file a complaint and then dismissing
his case until the end of his
ten-year sentence); NAACP
v. Meese, 615 F.Supp. 200,
206 n. 18 (D. D.C. 1985)
(right of court access extends past pleading stage).
Instead, it entails "all the
means a defendant or petitioner might require to get a
fair hearing from the judiciary." Gilmore v. Lynch, 319
F.Supp. 105, 111 (N.D.Cal.
1970), aff'd sub nom. Youngerv. Gilmore, 404 U.S. 15
(1971) (per curiam). Such
means include, among others, the ability to respond to
motions directed to the
pleadings, to respond to or
make motions for summary
judgment or default judgment, to pursue discovery
and to engage in discovery
motion practice when necessary, to obtain the appearance of necessary witnesses, to prepare the pretrial submissions required by
modem courts, to address
issues of evidence and of
jury procedure and instruc-

THE NATIONAL PRISON PROJECT JOURNAL

tions that arise at the trial,
to pursue or defend appellate proceedings, and to
enforce or defend against
the enforcement of judgments.
Restricting court access
rights to habeas and civil
rights proceedings is also
insupportable if the right is
viewed as one of meaningful access to society's institutions for fair dispute resolution. The reason the state
has an affirmative obligation
to facilitate prisoners' court
access is that incarceration
limits their ability to act for
themselves. Compare
DeShaney v. Winnebago
County Dept. of Social Services, 489 U.S. 189,200
(1989) (holding that the
state's Eighth Amendment
duties to a prisoner arise
'.'from the limitation which it
has imposed on his freedom
to act on his own behalf.")
The consequences of being
locked up are the same
whether one is pursuing a §
1983 action or a tort claim
or defending a divorce or
contract proceeding, and the
risk of denial of a fair hearing and resolution of one's
claim or defense is likewise
the same.
It is worth noting that,
although the right of court
access is generally viewed
as an aspect of liberty, the
legal claims that a court
system is designed to protect·are "a species of property protected by the Fourteenth Amendment's Due
Process Clause." Logan v.
Zimmerman Brush Co., 455
U.S. 422, 429 (1982). This
long-settled principle is reinforced by more recent decisions holding that "[t]he hallTHE NATIONAL PRISON PROJECT

mark of property ... is an
individual entitlement
grounded in state law, which
cannot be removed except
'for cause'''--a description
that is broad enough to cover the right to use established adjudicatory procedures, and to assert defenses as well as claims for relief. Id. at 430-31 (citations
omitted).
Holdings that a criminal
sentence broadly extinguishes a prisoner's liberty interests during the term of confinement, see Meachum v.
Fano, 247 U.S. 215, 224
(1976), do not extend to
property interests, since
criminal convictions in the
United States do not automatically impair or extinguish these. Forfeiture or
confiscation of a convict's
property must be specifically
authorized either in the
criminal sentence itself (e.g.,
by fine or restitution order)
or by a separate statute or
judgment.
For these reasons, a
court access system that
provides for the filing of
pleadings, but not for the
fair opportunity to prosecute
and to try the underlying
claims, runs counter to the
due process concems that
the right of court access is
designed to satisfy. The
same is true of a court access system that extends to
some legal claims but not to
others.
These broad principles
apply no matter what kind of
court access system a state
elects to provide. However,
as a practical matter, it is no
accident that the regressive
holdings of Comett and
Carper were both asserted

in cases involving legal assistance programs and not
law libraries. Once an insti~
tution has bought and installed a law library, it
makes little sense--and it
would probably be unworkable--to limit its use to prisoners working on pleadings.
Similarly, the same expensive sets Of case reporters
and digests are required for
research on criminal and
civil rights matters as for
other kinds of civil proceedings; once these are purchased, it is hardly practical
to restrict the kinds of issues that can be researched, and the additional
cost of a few treatises and
form books for civil matters
is relatively low.
By contrast, when
Bounds is satisfied by hiring
lawyers, the cost of the program will be directly related
to the services rer')dered.
Many prisoner advocates
are a little cynical about reliance on law libraries, which
confer great benefits on the
glib and the clever but, without more, do very little for
the majority of prisoners,
many of whom are poorly
educated, inarticul::tte, illiterate, or not fluent in English.
But Carper and Cornett
show that a lawyer-baSed
court access system may
come with so many strings
attached that the seeming
advantage of professional
assistance is ultimately illusory.

FALL 1995

7

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Hazardous Conditions and
Substances
Weaver v. Clarke, 45 F .2d
1253 (8th Cir. 1995). The
plaintiff was double-celled with
a heavy smoker and complained of various medical consequences. The defendants
did nothing effective about it
until a doctor ordered that he
be transferred. Aithough the
events occurred before Helling
v. McKinney, the plaintiff alleged the violation of a clearly
established right under Estelle.
since the defendants were allegedly indifferent to his present medical needs and not just
his future needs.
Communication/Expression
Jones v. Coughlin. 45 F.3d
677 (2d Cir. 1995). The
plaintiffs allegation that he was
"subjected to false misconduct
charges as retaliation for his
exercise of a constitutional
right such as 'petitioning the
government for redress of his
grievances" states a substantive due process claim. It
should not have been dismissed as conclusory on this
record, since the plaintiff had
had no discovery, and since
his testimony that one of the
defendants made retaliatory
threats, as well as the time
sequence of events, would
support an inference of retaliation.
Use of Force
Melendez v. City of
Worcester. 870 F.Supp. 11
(D.Mass. 1994). Allegations
that police officers forced an
arrestee in a holding cell to the
floor and left him hog-tied for
40 to 45 minutes supported a
claim of unconstitutional misuse of force.
8

FALL 1995

Searches-Person-Arrestees
Kel/y v. Foti, 870 F.Supp.
126 (E.D.La. 1994). The plaintiff was arrested after making
an illegal turn and being unable
to produce her driver's license.
A visual body cavity search of
her violated the Fourth Amendment. Her lack of a picture 10
and failure to post a low cash
bond did not create reasonable
suspicion justifying the search.
Standing/Class Actions-Certification of Classes
Hvorcik v. Sheahan, 870
F.Supp. 864 (N.D.IIl. 1994).
The Sheriff failed to implement
safeguards to ensure that invalid or obsolete arrest warrants were purged from the
computer. The court distinguishes Lyons and holds that
there is standing, since the
threat of recurrence of the conduct O.e., baseless arrest) is
greater, and since a class had
been certified. unlike either
Lyons or O'Shea v. Littleton.
The question is whether the
class has can demonstrate
sufficient stake to establish
standing.
Mental Health Care
Judicial Disengagement
Taylor v. Wolff. 158 F.R.D.
671 (D.Nev. 1994). A consent
decree concerning mental
health care was entered in
1984; in 1988, the court found
that the defendants had complied with only two of the provisions. The court appointed a
monitor.
The court makes a "finding
of compliance" ("in the dynamic
sense"). However. it finds that
compliance with requirements
concerning transfer of inmates
needing inpatient care to a new
regional facility has now been
accomplished. but that the
maximum security inmates
moved there are subject to
lock-in and strip search re-

quirements that preclude the
quality of treatment required in
an inpatient facility. The court
states that continued compliance will require satisfactory
progress toward resolving this
problem to provide effective
mental health care in a safe
environment. Until this is done
the case will not be closed
even if the one-year period for
additional monitoring expires.
Discovery/Sanctions
Cal/wood v. Zurita, 158
F.R.D. 359 (D.V.1. 19994).
After the defendants in a police
misconduct case filed by a pro
se prisoner failed to reply to his
discovery requests and motions despite several court orders, the court deems the
complaint's allegations established, precludes them from
asserting any defense or presenting any evidence or argument refuting the admissions
they had failed to respond to,
and precludes them from
amending their answer to assert any counterclaims and
from filing any dispositive motions.
Protection from Irvnate Assaul
Hobbs v. Lockhart, 46 F 3d
864 (8th Cir. 1995). The plaintiff. who was supposed to be
kept isolated from other inmates, was attacked wht:1I i:1II'
other inmate was released
while he was outside his ce.
The magistrate judge ordered a
"pre-jury hearing" (citing the
Fifth Circuit case Spears v.
McCotter) and then concluded
that no reasonable jury could
have found in his favor; the
district judge dismissed the
complaint.
This procedure was improper. Spears hearings are
intended to determine whether
a plaintiff is permitted to proceed in forma pauperis. and
that issue had been decided.
It was not a hearing on a rna-

THE NATIONAL PRISON PROJECT JOURNAL

The "unclean hands" of
those class members who absconded from the drug facility
did not provide the city a defense, since the class of plaintiffs as a whole did not act in
bad faith.
Contempt/Release of Prisoners/Consent Judgments
Harris v. City of Philadelphia, 47 F.3d 1342 (3d Cir.
1995). The defendants unilaterally changed their procedure
for designating prisoners for
release under a consent decree. They could not be held
in contempt for doing so, since
the decree did not require obtaining court approval. The
change reduced the number of
inmates eligible for release by
eliminating several categories:
inmates with "other holds," inmates with state or federal
detainers, and inmate who are
"a danger to themselves or
others" (Le., have bail over
$75,000 or need mental health
treatment). The defendants
cannot be held in contempt for
the first category absent an unambiguous provision requiring
their eligibility. The contempt
finding is upheld with respect
to the other two categories. At
1352: "While prior practice
may be of assistance in interpreting a contract for purposes
other than contempt, prior
practice does not provide the
clarity of language that precedent informs us is a predicate
for any contempt ruling."
Protection from Inmate AssaultlJI,Jry Instructions and
Special Verdicts
Randle v. Parker, 48 F.3d
301 (8th Cir. 1995). The plaintiff and his assailant were on
each other's "enemies list" after a fight; they were twice let
out into each other's presence
contrary to prison policy and
the plaintiff was assaulted both
times. The plaintiff received
THE NATIONAL PRISON PROJECT

injuries to his groin and eye
and required surgery. A jury
awarded him $3500.
A jury verdict for the plaintiff based on instructions that a
defendant could be held liable
based on what he should have
known was erroneous under
Farmer and requires reversal.
The jury instructions are quoted as to all the elements of an
Eighth Amendment claim.
Recreation and Exercise
Allen v. Sakai, 48 F.3d
1082 (9th Cir. 1995), amending
40 F.3d 1001 (9th Cir. 1994).
The plaintiff alleged that while
in segregation he was permitted only 45 minutes a week of
outdoor recreation. The defendants had a "goal" of five hours
a week but said they didn't
meet it because of the "logistical difficulties" of taking one
inmate at a time to the yard.
Deprivation of regular outdoor exercise has been previously defined as a basic
human need. The subjective
requirement of the Eighth
Amendment is met by the
defendants' awareness of their
own goal of five hours a week.
Vague references to logistical
problems cannot entitle the defendants to summary jUdgment.
At 1088: "A rational fact-finder
after hearing the evidence
might determine that the defendants acted with at least deliberate indifference to Smith's
basic human needs ... by placing inconsequential logistical
concerns that might be no
more than matters of convenience above Smith's need for
exercise."
Since the plaintiff was subject to harsh conditions and
indefinite and potentially longterm segregation, in light of
Spain v. Procunier the defendants were not entitled to qualified immunity. LeMaire v.
Maass did not benefit them
because in that case the plain-

tiff had been deprived of outdoor exercise because of his
misconduct in segregation.
Pro Se Litigation/Pleading
Simmons v. Abruzzo, 49
F.3d 83 (2d Cir. 1995). The
district court should not have
dismissed the plaintiffs corrplaint for violation of the requirement of Rule 8,
Fed.R.Civ.P., of a short and
plain statement of the claim
and concise and direct averments. The complaint gave
fair notice of the claims asserted: that medical staff falsely
recorded plaintiffs high temperature as normal, that defendants refused to give him prescribed medication for his
pneumonia, and that they repeatedly exposed him to cold
ambient temperatures that increased his breathing difficulties. It indicated the general
time period and the locations of
the events and ascribed many
acts to identified individual defendants. The existence of
additional unclear material did
not make the complaint inadequate. (After all, the defendants had already answered
the complaint.) These allegations were also sufficient to
state a claim.
Religion--Practices--Hair and

S havingiReligion-Services
Within Institution
Werner v. McCotter, 49
F.3d 1476 (10th Cir. 1995).
The district court erred in relying on the Turner standard. At
1479:
... The recent passage of
the Religious Freedom
Restoration Act of 1993 ...
legislatively overturned a
number of recent Supreme
Court decisions, including
Turner and Shabazz, by
defining a statutory (if not a
constitutional) right to the
exercise of religion. ... While we have yet
FAll1995

11

to interpret the Act, our
fellow circuits have determined that the claims of
prisoners fall within its
broad language, ... and
that the Act is to be applied retroactively.... This
interpretation accords both
with the plain language of
the statute and with the
legislative history of the
Act, ... and we see no reason to disagree.
RFRA explicitly mentions
Yoder, and the court reads into
the Act Yoder's "threshold requirements" for a Free Exercise claim. At 1479 n. 1:
First, the governmental action must burden a religious belief rather than a
philosophy or a way of
life.... Second, the burdened belief must be sincerely held by the plaintiff.... A plaintiff, however,
need not hew to any particular religious orthodoxy; it
is enough for the plaintiff to
demonstrate that a government has interfered with
the exercise or expression
of her or his own deeply
held faith.
The plaintiff in a RFRA
case must show a "substantial
burden" on religious exercise
or expression. At 1480:
.... To exceed the "substantial burden" threshold, government regulation must
significantly inhibit or constrain conduct or expression that manifests some
central tenet of a prisoner's
individual beliefs,...; must
meaningfully curtail a
prisoner's ability to express
adherence to his or her
faith; ormust deny a prisoner reasonable opportunities to engage in those
activities that are fundamental to a prisoner's religion. ... Thus, reasonable
time, place, or manner restrictions upon communal
12

FALL1995

religious gatherings would
often not necessitate the
identification of a compelling state interest; however,
regulations that, for example, prevented a devout
Muslim from observing daily prayers would be subject
to the "compelling interest"
test.... Similarly, the Act
need not drive a prison to
employ clergy from every
sect or creed found within
its walls; however, the failure to provide or allow reasonably sufficient alternative methods of worship
would, in the absence of a
compelling state interest,
run afoul of the Act. [Citations and footnote omitted]
The plaintiff made out a
prima facie case with respect
to the denial of access to a
sweat lodge; the fact that the
plaintiff is a high-security inmate, by itself, provides inadequate basis to balance the
competing interests. Summary
judgment for defendants was
erroneous. The same is true
for possession of medicine
bags, since the defendants
relied on the "now-abandoned
'reasonable relationship' test,"
although the court suggests
that the defendants are probably entitled to win on this issue
because high security inmates
are more apt to use the bags
for smugg6ng drugs.
The absence of a Cherokee religious advisor did not
violate the plaintiffs rights; the
prison had six nondenominational part-time chaplains and
two Native American spiritual
advisors, who were Lakota
Sioux.

Women/Programs and Activities
Parga v. Elliott, 49 F .3d
1355 (8th Cir. 1995). The district judge dismissed a claim
that prison programs for women were not unconstitutionally

unequal to men's programs,
citing Klinger, but making no
findings. At 1356: "Klinger does
not stand for the proposition
that women and men prison
inmates can never be similarly
situated for purposes of equal
protection analysis.." In this
case, unlike Klinger, the plaintiffs focused on differences in
programs with:n the same
types of custody classification
and sentence length.
The case is remanded to
the district court for findings
about the various programs
and services, whether men and
women were similarly situated
in terms of any particular program area, the differences In
the programs, and the reasons
for them. The trial court should
also address whether the Turner standard or "heightened
scrutiny" is applicable. The
court cites with seeming approval Pitts v. Thornburgh,
which holds that heightened
scrutiny applies to prison gender cases involving "general
budgetary and policy chOICes"
rather than day-to-day prison
management.

DISTRICT COURTS
Protection from Irmatlt Assault/Appointment of Counsel
Tabron v. Grace. 871
F.Supp. 227 (M.D.Pa 1994)
The plaintiffs allegation that he
was assaulted after making
known to prison officials that
he was in danger from a partICular prisoner had sufficient
merit to support the appointment of counsel. The
plaintiffs lack of legal education, the conflict of his work
hours with the prison library
hours, and the need for dISCOVery support appointment of
counsel. The fact that there
are credibility issues in a case
where state of mind is a cnhcal
element supports the appointment of counsel. The dlf-

THE NATIONAL PRISON PROJECT JOURNAL

ficulty of finding counsel to
take the case does not militate
against appointing counsel.
The plaintiffs allegation is
sufficient to withstand summary
jUdgment; the court notes that
summary judgment is particularly inappropriate given issues of credibility and state of
mind.
Medical CarelProcedural Due
Process-Disciplinary Proceedings
McCorkle v. Walker, 871
F.Supp. 555 (N.D.N.Y. 1995).
The allegation that the plaintiff
has asthma and the defendants ignored a medical order
to house him on a lower tier
until after he had had an asthmatic attack stated a claim; the
court is unimpressed by the
defense that the plaintiff was in
keeplock so it didn't matter
where he was housed.
An undisputed allegation
that the plaintiff was disciplined
on the basis of false charges
stated a claim for denial of
substantive due process.
The plaintiffs allegation
that he was denied counsel
during a custodial interrogation
stated a claim; the defendants
submitted no evidence contesting its characterization as custodial. The lack of actual injury
went to damages and not to
the existence of a claim.
The defendants were not
entitled to summary judgment
on the plaintiffs claim that he
was not provided legal materials while in keeplock. Records
that showed that materials
were signed out for him failed
to show
. , that he received them.
Medical Care-Denial of Ordered Care
Starbeck v. Linn County
Jail, 871 F.Supp. 1129
(N.D.lowa 1994). The plaintiff
had a herniated disc; two doctors recommended corrective
surgery.
THE NATIONAL PRISON PROJECT

The plaintiffs back condition constituted a serious medical need.
Evidence that one defendant had said that surgery
would not be permitted because the state did not want to
pay the cost of guards for the
plaintiff during his recuperation
raised a material question of
fact barring summary judgment
as to defendants at one prison.
Defendants at another prison
were not entitled to summary
judgment in the absence of any
explanation why they did not
carry out the course of treatment recommended by the
consulting doctors. In the absence of such evidence, their
claim that this case is about a
difference of medical opinion is
insubstantial.
Procedural Due Process-Disc~
plinary ProceedingsllmmunityProsecutorial and Judicial
Payne v. Axelrod, 871
F.Supp. 1551 (N.D.N.Y. 1995).
Disciplinary hearing officers are
entitled only to qualified immunity, not absolute immunity.
A claim that false disciplinary charges were filed in reta&ation for the plaintiffs prior report of officer misconduct
states a claim for violation of
the right to petition for redress
of grievances.
Heating and VentilationISanitationiUse of Force
Miller v. Fairman, 872
F.Supp. 498 (N.D.lII. 1994).
Allegations that a jail was improperly ventilated and that
after inmates broke windows to
obtain ventilation, they were
not replaced during the winter,
and the jail was so cold that
the plaintiff had to wear his bed
linens and could see his
breath, involved core Eighth
Amendment requirements and
a fortiori violated the Due Process Clause. Allegations that
the defendants knew about the

problem sufficed to state a deliberate indifference claim.
At 504: "This court fails to
see how having a pretrial detainee sleep in a flooded area
on a wet mattress infested with
insects and mice furthers any
legitimate governmental interest in maintaining the detention
facility." The court believes
that these allegations would
not pass muster under the
Eighth Amendment, which the
Seventh Circuit has held require "extreme" deprivations.
At 505: "Pretrial detainees
have a Fourteenth Amendment
due process right against being
SUbjected by jail guards to excessive force that amounts to
punishment. "
Medical Care-5tanctards of
Liability-5erious Medical
Needs
Carnell v. Grimm, 872
F.Supp. 746 (D.Haw. 1994).
At 755: "A 'serious' medical
need exists if the failure to
treat the need could result in
further significant injury or
'unnecessary and wanton infliction of pain.'" (Citation omitted)
Ponce officers who had information that would lead a reasonable person to believe that
a person in their custody had
just been raped would have
been confronted with a serious
medical need. At 756. "...
[AJn officer who has reason to
believe someone has been
raped and then fails to seek
medical and psychological
treatment after taking her into
custody manifests de6berate
indifference to a serious medical need." Where there w~s
evidence that the defendants
had such knowledge, they
were not entitled to qualified
immunity.
Correspondence-Non4sgaL/Procedural Due ProcessDisciplinary Proceedings
Gee v. Ruettgers, 672
FALL 1995

13

F.Supp. 915 (D.Wyo. 1994).
The plaintiff wrote to his brother making allegations about the
conditions of his confinement,
alleging retaliatory actions by
prison officials, and stating that
he might die because of stoppage of his medication and dehydration. The letter was confiscated and the plaintiff was
convicted at a disciplinary
hearing with providing false
information to the public.
The defendants are not
entitled to summary judgment,
having failed to explain how
allegedly untruthful information
mailed to a family member outside the jail could threaten institutional security and order.
The correspondence rules
are not unconstitutionally
vague. The prohibition on providing "false information to any
official, court, news media,
penitentiary employee, or the
general public" is not unconstitutionally vague on its face,
but it is vague as applied to letters to a prisoner's immediate
family. (The overbreadth of the
rule was apparently not raised.)
Habeas Corpus
Parisie v. Morris, 873
F.Supp. 1560 (N.D.Ga. 1995).
A claim attacking the process
employed by the parole board
and not its decision can proceed under § 1983 without exhaustion of state remedies,
notwithstanding Preiser. Heck
v. Humphrey did not alter that
rule, established by precedent
in this circuit. A judgment in
the plaintiffs favor "would not
have the result of shortening
his stay in prison (although this
may be the ultimate effecf)...."
(1566, emphasis supplied)
Education and Training
Nichols v. Riley, 874
F.Supp. 10 (D. D.C. 1995). The
provision of the 1994 Violent
Crime Control and Law Enforcement Act prohibiting the
14

FALL 1995

use of Pell Grant funds for federal or state prisoners does not
deny equal protection. The
rational basis test applies, under which "courts look to
whether there are plausible
reasons for congressional action; if so, jUdicial inquiry is at
an end." (13) Budgetary constraints, the desire to maximize
available funding for law-abiding students, the conclusion
that other sources of educational funding for prisoners are
available, the desire to eliminate fraud, "the notion that
prisoners and nonprisoners are
not similarly situated with regard to the contemporaneous
need for higher education," or
a desire to shift these costs to
the states could all provide a
sufficiently rational purpose.
Substantive due process was
not violated; all that was required is "a reasonable fit between governmental purpose
and the means chosen to advance that purpose." (14)
Swnrnary JudgmentJReligionServices Within Institution
Campbell-EI v. District of
Columbia, 874 F.Supp. 403
(D. D.C. 1994). The plaintiff, a
Grand Sheik of the Moorish
Science Temple, was held in
maximum security for protective custody, and was SUbject
to 23-hour a day lock-in and a
rule that limited gatherings,
inclUding group prayer, to ten
or twelve inmates.
The 23-hour lock-in is not
unconstitutional; it was justified
by security and in any case it
was voluntary.
The court can not determine whether the limit on gatherings of inmates passes muster under the Religious Freedom Restoration Act and the
First Amendment. Although
the defendants cited security
concerns, a factual record is
necessary.

Hazardous Conditions and
Substances
Gonyer v. McDonald, 874
F.Supp. 464 (D.Mass. 1995).
The plaintiffs' claim of freefloating asbestos fibers in the
prison environment met the
Eighth Amendment's requirement of objective seriousness.
Allegations that the prison had
been cited for health code violations for these violations supported this claim. At 466:
"With respect to prison health
hazards, state health codes
reflect established public attitudes as to what those standards are." The danger of cancer from exposure to asbestos
is sufficient to support an
Eighth Amendment claim.
Allegations that the pnson
warden knew of the asbestos
problem for several years sufficiently met the subjective
prong of the Eighth Amendment.
Procedural Due Process
Browning v. Vernon, 874
F.Supp. 1112 (D.ldaho 1994).
The plaintiffs are assigned to
Idaho's "Rider Program,· under
which courts may retain jurisdiction of persons convicted of
felonies and place them in prison initially for purposes of baing evaluated for potential release on probation. Under the
relevant procedures, poson
staff prepare and notify the
inmates of the initial recommendation and permit them to
read (but not keep) all evaluations; anybody with a negative
recommendation is immediately
placed in segregation. About
24 hours later, the inmate is
given a hearing and allowed to
rebut any information or recommendation, calling members of
the staff and other inmates as
witnesses. A final report is
then sent to the sentencing
court.
The plaintiffs alleged that
these procedures violate due

THE NATIONAL PRISON PROJECT JOURNAL

process because 24 hours is
not sufficient notice, they are
not given copies of the relevant
documents to help them prepare for the hearing, and their
placement in segregation
means they cannot speak to
their attorneys, contact witnesses, or have access to the
law library.
The lack of written regulations governing the procedures denies due process because it exposes the plaintiffs
to a high risk of arbitrary deprivation.
The placement of riders
with an adverse tentative recommendation in segregation is
left to future resolution on this
summary judgment motion.
However, the defendants must
proVide staff assist~nce and
access to a telephone for
counsel calls. If staff assistance is unavailable, defendants must ensure some other
way of contacting witnesses.
Staff witnesses must be made
available. The defendants can
require that plaintiffs summarize witnesses' testimony in
advance so that cumulative or
irrelevant testimony can be
excluded.
Riders must be given natice that they have the right to
call witnesses at the rebuttal
hearing. Riders are entitled to
a copy of all materials that
come before the decision-maker (staff evaluations, chronological reports, etc.), including
psychological evaluations normally not provided to sex offenders.
An impartial fact-finder
must .b~ guaranteed by a prohibition against ex parte contact
with the decision-maker and
there must be guidelines for
who may serve on the committee.

Dear Prison Project
Dear Prison Project:
I understand that the Prison Litigation Reform Act
going through Congress will make a big difference to the
filing of pro se suits as well as to the class actions that
your office does. What effect is it going to have?
Pro se litigant

Dear Pro Sa
The Prison Litigation Reform Act (part of HR 2076 -the Commerce, State and Justice Appropriations Bill) has
a number of provisions designed to limit the filing of pro
se suits. These include -• requiring that prisoners exhaust all administrative
grievance procec;fures (with no time limit given)
empowering courts to summarily dismiss any suit
that is "frivolous, malicious, fails to state a claim
upon which relief can be granteq, or seeks monetary relief from a defendant who is immune from
such relief'
barring claims for mental or emotional injuries, unless a physical injury is first proven
• providing for hearings to be held in the prison, or
by telephone or video conference
• allowing defendants to waive answering complaints, unless the court finds that the plaintiff has
a reasonable opportunity of prevailing on the
merits
requiring payment of at least partial filing fees and
court costs by prisoners and establishing a. garnishment procedure for pnsoners' accounts
banning further filings by any prisoner who has
had three or more cases dismissed as frivolous,
malicious or failing to state a claim (unless there
is imminent danger of serious physical injury)
allowing the court to revoke a federal prisoners
good time credits as a punishment for filing "malicious" or "harass[ing)" claims.
Remember, these new rules are not yet in effect but
they are almost certainly going to be passed by Congress
and may be in effect by the end of the year (or even
sooner) - we'll give you an update in our next issue.

John Boston is the director of
the Prisoners' Rights Project,
Legal Aid Society of New York.
THE NATIONAL PRISON PROJECT

FAll1995

15

Highlights --

National Prison Project Litigation

The following are major developments in the National
Prison Project's litigation
program since July 1, 1995.
Further details of any of the
listed cases may be obtained by writing the Project.
Casey v. Lewis --In May
1995, the Supreme Court
granted certiorari to the defendants for review of the
trial court's ruling that the
Arizona Department of
Corrections' policies unconstitutionally restrict prisoners'
access to the courts. The
trial court's ruling was made
in November 1992 and upheld by the Ninth Circuit
Court of Appeals, in a unanimous decision in November
1994. The court affirmed
virtually all of the trial court's
order which applies to all
15,000 prisoners in the Ari- '
zona system. Oral argument in the Supreme Court
is scheduled for November
29, 1995. The parties have
filed their briefs. A number
of amicus briefs were also

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

t.,..,

16

FALL 1995

filed, including an amicus by
the Solicitor General supporting the prisoners.
Dulany v. Camahan -- In
. June, the NPP, together with
the local ACLU affiliate, filed
a class action suit on behalf
of the women prisoners in
the Chillicothe Correctional
Center and the Renz Correctional Center, the women's
prisons in Missouri, alleging
inadequacies in the medical
care delivery system, including inadequate emergency
care and treatment for women with chronic health problems. Defendants responded
by filing a motion to dismiss
and a motion for summary
judgement. A hearing will
be held on these motions on
November 21, 1995.
Goldsmith v. Dean -- The
NPP filed a motion in federal
court on August 25 asking
the judge to issue a preliminary injunction to end physical and sexual abuse of prisoners in Vermont's sex

offender behavior modification program. Affidavits filed
by several prisoners allege
abusive treatment during the
drama therapy sessions including simulated rape.
Vermont's behavior modifIcation program for sex offenders allegedly includes other
techniques which the NPP is
challenging as unconstitutional as part of its overall
conditions of confinement
case filed in. A hearing on
the preliminary injunction will
be held in November.
Shumate v. Wilson -- The
NPP, together with the
Northern and Southern
ACLU and local counsel,
filed suit in April alleging that
women at the Central California Women's Facility at
Chowchilla and the California Institution for Women at
Frontera received constitutionally inadequate medical
care. The court held oral
argument on the class action
motion on September 14
and subsequently announced its intentior:l to certify the class.

Nonpr')fit Org.
u.s. Postage

PAID
Washington D.C.
Permit No. 5248

THE NATIONAL PRISON PROJECT JOURNAL