Oil

•

THE NATIONAL PRISON PROJECT

..

Journal

American Civil Liberties Union Foundation

ISSN 1076-769X

Vol. 11 No. 1

Winter 1996

Prisoner Lawsuits
"There are many people in this
nation with grievances large
and small who need
representation, and their
grievances are often minimized,
and sometimes even ridiculed,
by those in positions of
authority".

Han. Jon O. Newman

"Relatively few of the lawsuits
have merit. Many lack
substance and only waste the
courts' time and the taxpayers'
money."

Dan Lungren, Attorney General
of California
"Dry words on paper cannot
adequately capture the
senseless suffering and
sometimes wretched misery
that defendants' unconstitutional
practices. leave in their wake."

Han. The~on E. Henderson,
judge in Madrid v. Gomez, the
Pelican Bay prison case which
began with individual pro se
filings, later consolidated into a
class action.

The Journal seems to spend more time reporting on legislation than
litigation these days and probably will for a while yet. Bills relating to
prisons and prisoners are being introduced, and passed, in state
legislatures and in 'Congress at an 'unprecedented. rate., In the last edition of
the Journal, we wrote about the Prison Litigation Reform Act (formerly the
Stop Turning Out Prisoners Act or STOP). As we print this edition,
PLRAlSTOP is still in limbo. The Commerce, State and Justice
Appropriations Bill to which it is appended was vetoed by the President but
that Appropriations Bill is now part of the omnibus "Continuing Resolution"
designed to provide money for the so-far unfunded departments and
agencies through the end of the fiscal year.
The Appropriations Bill also includes restrictions on the amenities that will
be permitted to federal prisoners. So-called "no-frills" bills are being passed
in many states too, despite strong objections from corrections staff.
The PLRA restrictions on the filing of pro se lawsuits are also being copied
at the state level. For example, New Jersey has just passed a bill that
would take away good time from prisoners filing frivolous law suits. In
addition, any prisoner who was awarded a money judgement as a result of
his suit would have the money taken to pay fines, restitution and penalties.
There has been a great deal of disinformation put out to justify these bills.
All suits filed by prisoners, regardless of merit, are referred to as "frivolous"
and the costs to the state of defending every case involving prisoners, from_
state-wide class actions to the smallest pro se suit, are lumped tC?gether to
give a distorted view of the dollars and resources spent. Attorneys General
in several states have compiled their lists of the ten most frivolous lawsuits,
many of which distort the facts of the case and their outcomes. For
example, the infamous case of "the prisoner who sued because he was
given chunky instead of smooth peanut butter" was not in fact about peanut
butter at all, but about the prison's failure to refund the prisoner money he
was due. The case of "the prisoner who sued over the color of his towels"
was not about the color of towels at all but about the uncompensated loss
of personal property.

Critics of prisoner litigation cite
a "flood" of cases. What do
they expect? There is a flood

of prisoners.
According to the Federal
Bureau of Justice Statistics,
total prison population
(excluding jails) grew by more
than 150% between 1982 and
1994 -- from 413,808 to
1,053,738. Prisoner litigation
has shown a much smaller
increase. Prisoners' filed
57,940 law suits in federal
courts in 1994 - an increase of
less than 9lJO/f, over the 29,303
suits filed in 19'2.

Prisoners are becoming less,
not more, litigious.

The other side to the story of prison lawsuits is rarely heard. Scores
inmates have received damages in recent years in cases about guard
brutality, medical neglect, and other injurious mistreatment. Then there
arethe larger-scale victories, the class actions that have forced the
wholesale reform of entire prisons and prison systems, the upgrading of
prison medical and mental health care, and the curbing of the physical
abuse, racial discrimination, and arbitrary discipline that have characterized
much of American prison life. It's fair to say that litigation (or the threat of it)
has made almost every aspect of prison life more humane.
Accounts of the burden that these cases put on the courts and on the state
attorneys general and municipal and county counsel who rnust defend them
are exaggerated. If a case is genuinely frivolous, the courts will not hesitate
to dismiss it before trial if the defense attorney files a motion to dismiss or
for summary judgment -- which, in a frivolous case, won't take a competent
attorney much time to prepare. Unfortunately, government counsel often do
not proceed timely and competently to get these cases dismissed. In cases
where prisoners do not have lawyers, the states' practice is often to ignore
the case until forced to act, or to file only perfunctory "boilerplate" motions
that do not address the specifics of the prisoner's case and are therefore
not granted by the court. So when we. hear that it tOOK two years of
wrangling to dispose of a prisoner's complaint that he received the wrong
kind of peanut butter, it's hard to avoid thinking that the case was not
defended very efficiently.
Another exaggerated argument is based on the success rate of prisoner
cases, which is very low. From this fact the critics infer that most prison
cases are frivolous. However, many prisoner cases are unsuccessful
because the prisoners cannot get lawyers and can't navigate the
technicalities of the court system by themselves. Often, a prisoner whose
legal rights have been violated will lose simply because he or she sued the
wrong person, or filed in the wrong court, or is not capable of preparing a
coherent response to the state's motion to dismiss. In other cases,
prisoners with valid claims fail to prove them at trial because they cannot
master the mechanics of discovery (obtaining pre-trial disclosure of facts
and documents) or getting witnesses SUbpoenaed to court.
It is also claimed that prisoners file lawsuits for entertainment or out of spite.
It happens, but it's not common. Pursuing litigation is hard work for most
prisoners, who rarely have any legal education and in many cases haven't
even made it through high school. It is true that a small number of
prisoners cause a large amount of trouble by filing multiple lawsuits with
false or repetitive allegations or challenging actions that simply don't violate
the law. However, the courts already have ample tools to deal with these
cases. Most prisoner seek to proceed "in forma pauperis," without paying
the usual filing fee. The courts are permitted to dismiss such cases out of
hand, without even asking for a response from the state, if they obViously
lack "an arguable basis in law or fact." Prisoners who repeatedly abuse the
judicial system can be ordered to cease their abuses, and the orders are
enforceable with sanctions including fines.

2

WINTER 1996

THE NATIONAl PRISON PROJECT JOURNAL

The fact remains that there are a lot of prisoner cases, they take time to
deal with, and most of them are unsuccessful. What can be done to
improve the situation?
First, states can create meaningful prison grievance systems. This means
putting the final decision in the hands of a body that is independent of the
prison bureaucracy and is capable of enforcing its decisions. Prison
systems, like police departments, are simply too insular and self-protective
to deal fairly with prisoners who buck the system. If states provide
grievance systems that are fair and quick, and that provide a full range of
remedies, prisoners will use them, and the number of lawsuits will be
reduced.
Second, legal assistance programs for prisoners should be maintained and,
where necessary, created or expanded. Providing prisoners with legal
advice has several benefits. If a lawsuit is necessary, it is more likely to be
done right and waste less of everyone's time, including the prisoner's. If
there is no basis for a lawsuit, and someone the prisoner trusts explains
why, the lawsuit may not be filed. Finally, if the problem is capable of
resolution without a lawsuit, an attorney is more likely to get it resolved
than "the prisoner on his own, ,Complaintsthatwould ,be.laughedoff or
ignored when made by prisoners are taken much more seriously when they
appear under a lawyer's letterhead.

This review of prisoner
lawsuits was adapted from
an article by David Leven,
Prisoners' Legal Services of
New York, and John Boston,
Prisoners' Rights Project of
the Legal Aid Society.

Finally, everyone concerned should stop viewing prisoner litigation as a
problem to be remedied and acknowledge that it is one part of the system
of checks an balances of our constitutional order. Meaningful and effective
access to our courts is a right guaranteed by the constitution to everyone,
including prisoners, and it cannot be abridged for reasons of administrative
convenience. Power corrupts, and the power that is exercised behind the
walls and locked doors of prisons is no exception. The courts' independent
scrutiny is essential to curbing abuses of power and maintaining minimally
.
decent treatment of prisoners.

The National Prison Project is a special
project of the ACLU Foundation which
seeks to strengthen and protect the
rights of adult and juvenile offenders; to
improve overall conditions in
correctional facilities; and to develop
alternatives to incarceration.

The Journal is published quarterly
by The National Prison Project of
the American Civil Liberties
Foundation Inc.
1875 Connecticut Ave., Ste.410
Washington, DC 20009
Phone: (202) 234-4830
NO COLLECT CALLS
Fax: (202) 234-4890
Email: JenniGains@AOL.COM

The reprinting Qf Journal material is
encouraged with the stipulation that the
National Prison Project Journal be
credited as the source of the material,
and that a copy of the reprint be sent to
the editor.

CONTENTS
Case Law Report
Equal Protection Women's Rights
Other cases of interest
DC Women
News and Events
Highlights of NPP Litigation

Editor: Jenni Gainsborough
Regular Contributor: John Boston

THE NATIONAL PRISON PROJECT

WINTER 1996 3

4
6.
10
15
16

Case Law Report -

Highlights of Most Important Cases

by John Boston
EQUAL PROTECTION
WOMEN'S RIGHTS

A recent Eighth Circuit decision highlights the continuing uncertainty about
the standards governing prisoners' claims of unconstitutional gender discrimination. In Pargo v. Elliott, 49 F.3d 1355 (8th Cir. 1995), the court
vacated and remanded the district court's dismissal of Iowa women
prisoners' claim that programs available to them were so unequal to those
available to male prisoners as to violate the Equal Protection Clause. It did
so in terms clearly intended to limit the application of a 1994 Eighth Circuit
decision, Klinger v. Nebraska Dept. of Correctional Services, 31 F.3d 727
(8th Cir. 1994), cert. denied, 115 S.Ct. 1177 (1995), that appeared drastically to curb such claims.
There are only a few decided cases concerning gender equality in prison.
Most of them involve claims of unequal program opportunities and were
decided at the "heightened" or "intermediate" level of equal protection
scrutiny, using a test that emphasizes "parity of treatment." One court
described this test as requiring prison officials "to provide women inmates
with treatment facilities that are substantially equivalent to. those provided
for men--i.e., equivalent in substance, if not in form--unless their actions ...
nonetheless bear a fair and substantial relationship to achievement of the
State's correctional objectives." Glover V. Johnson, 478 F.Supp. 1075, 1079
(E.O.Mich. 1979); accord, McCoy V. Nevada Dept. of Prisons, 776 F.Supp.
521,523 (D.Nev. 1991); Gloverv. Johnson, 721 F.Supp. 808, 848-49
(E.D.Mich. 1989) (explaining "parity" in more detail), affd in part and rev'd in
part on other grounds, 934 F.2d 703 (6th Cir. 1991); Canterino V. Wilson,
546 F.Supp. 174,210-12 (W.O.Ky. 1982), vacated and remanded on other
grounds, 869 F.2d 948 (6th Cir. 1989); Dawson V. Kendrick, 527 F.Supp.
1252, 1317 (S.D.W.Va. 1981); McMurry V. Phelps, 533 F.Supp. 742, 767-68
(W.O.La. 1982); see also Smith V. Bingham, 914 F.2d 740, 742 (5th Cir.
1990) (upholding separation of sexes in prison as having a "substantial
relationship" to important security objectives).
This approach was taken by the district court in Klinger, which held that
inequities in pay for prison jobs, educational opportunities, court access arrangements, medical and mental health care, and recreation and exercise
opportunities violated the Equal Protection Clause. Klinger V. Nebraska
Dept. of Correctional Services, 824 F.Supp. 1374 (D. Neb. 1993). On
appeal, however, the Eighth Circuit reversed, and did so in a manner that
did not address the nature of and justification for the disparities proven at
trial. Instead, it simply held that female and male prisoners were not
"similarly situated" and therefore there was no viable equal protection claim.
The court cited a laundry list of differences between the genders: 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 in~ates~ ranging from the fact that they are
more likely to be single parents With pnmary responsibility for child rearing

4 WINTER 1996

THE NATIONAL PRISON PROJECT JOURNAL

·... merely subjecting prison
officials' decisions to any
scrutiny is an evil to be
avoided.

to the fact that they are more likely to be sexual or physical abuse victims."
Klinger v. Department of Corrections, 31 F.3d 727, 731-32(8th Cir. 1994).
For these reasons, the court held that the prison programs at issue "reflect
separate sets of decisions based on entirely different circumstances" and
stated that comparing an "isolated number of selected programs" between
the prisons is a "futile exercise." The court's result-oriented agenda then
became explicit as it stated that the decision in Turner V. Safley, 482 U.S.
78 (1987), counsels against holding that male and female prisoners are
similarly situated, because such a conclusion would lead to examination of
the day-to-day administrative decisions of prison officials. In this court's
view,merely subjecting prison officials', decisions to any scrutiny is an evil
to be avoided. Id. at 732-33.
This approach radically repudiates previous case law on gender equality.
Simply changing the level of scrutiny from heightened or intermediate
scrutiny to the lowest level of equal protection analysis, the reasonable relationship test, would have been a major change-albeit one that could have
been rationalized by reference to Turner v. Safley, which adopts a reason- .
able relationship test for other kinds of constitutional claims. Klinger,
however, frees prison officials from haVing to meet any standard of scrutiny.
Moreover, there is no indication that the factors cited to show that the two
'genderswere"notsimiiarlY"situated"actually 'had any' connection with' the
different treatment of the genders. The question was not addressed, and
Klinger's message is that it should not even be asked.
On remand, the district court concluded that the appeals court's ruling had
so undermined the factual basis of the plaintiffs' claim under Title IX of the
Education Amendments of 1972 as to mandate its dismissal. Klinger v.
Nebraska Dept. of Corrections, 887 F.Supp. 1281 (D.Neb. 1995).

The peNersity of Klinger's
approach to equal protection
analysis can best be appreciated by applying it to racial
discrimination.

\
• <

The perversity of Klinger's approach to equal protection analysis can best
be appreciated by applying it to racial discrimination. Using standard
statistical sources, one could establish that African-Americans are not
similarly situated to white Americans: on average, African-Americans eam
less money, have lower educational levels, are more often unemployed or
incarcerated, live in more deteriorated and crime-ridden neighbqrhoods, are
less likely to own their own homes, have higher rates of illegitimate births
, and infant mortality, etc. Under Klinger's logic, this could be the end of the
analysis in a claim of racial discrimination by a governmental agency.
In Pargo, the district court followed Klinger, dismissing the case after trial on
the ground that the genders were not similarly situated. The appeals court
held that this was error because the Pargo plaintiffs took a different approach from those in Klinger. "[t]hey focused on differences in programs
available to men and women with the same types of custody classification
and sentence length." 49 F.3d at 1356. It also acknowledged the Turner v.
Safley rational relationship standard and its principle of deference to prison
officials, but noted: "Not all reviews of prison policies or practices require
judicial deference, however." It cited another circuit's conclusion that
heightened scrutiny rather than the Turner standard governs "general
budgetary and policy choices." Id. at 1357, quoting Pitts v. Thornburgh,866

THE NATIONAL PRISON PROJECT

WINTER 1996 5

F.2d 1450 (D.C.Cir. 1989). With this gentle hint, it remanded for further factual findings and a determination by the district court of the proper standard.
The practical message of Pargo for prisoner advocates is that equal protection claims will have to be pled and proved with much more precise
comparisons of male and female prisoners, requiring greater attention to the
context in which seemingly unequal treatment of the genders takes place.
The broader question of how the courts will treat such claims remains unresolved. On a theoretical level, Pargo distinguishes Klinger and is in harmony with it. But a realistic reading of the opinions is that they are ideologically poles apart. Not surprisingly, the two judges in the Klinger majority were
appointed by President Reagan. The dissenter in Klinger and the unanimous panel in Pargo consist of three judges appointed by Democratic
Presidents and one from the kinder, gentler Republican era of 1970.

Under this analysis, ... there
could never be a successful
equal protection claim by
women prisoners in ...[a]
prison system with only one
or a few women's prisons,
regardless of the nature of
the inequalities.

On remand, the district court in Pargo again ruled for the defendants. It
concluded again that women inmates were not similarly situated to men,
since women of all classifications were contained in a single institution,
unlike male inmates. Under this analysis, it appears that there could never
be a successful equal protection claim by women prisoners in the Iowa
prison system, or any other system with only one or a few women's prisons,
regardless ofthe"nature"ofthe inequalities. '(The court also cited differences in length of incarceration and other factors.) Pargo v. Elliott, 899
F.Supp. 1243 (S.D.lowa 1995) aff'd 69 F.3d 280 (8th Cir. 1995) reh'g
denied, Pargo v. Elliott, 1996 U.S. Ct. of App. Lexis 474 (8th Circ. 1996).
Despite this conclusion, the district court went on to subject all of the
challenged practices to equal protection scrutiny under the rational relationship standard. (It found that there was no challenge to "general budgetary
and policy choices" and therefore no reason to apply heightened scrutiny.)
The court concluded that none of the policies denied equal protection,
repeatedly using the phrases "gender neutral in design and application" and
"substantially similar" in characterizing them. In substance, it found differences in treatment, but not inequality. The court also surveyed the record
for evidence of intentional discrimination, noting that, contrary to Klinger,
other Eighth Circuit precedent supported such an inquiry even if the genders were not similarly situated. Id.

Other Cases Worth Noting

u.s.

COURT OF APPEALS

Qualified Immunityl
ClothinglHygiene

6 WINTER 1996

Williams v. Dela, 49 F.3d 442 (8th Cir. 1995). The plaintiff got into an
altercation in the visiting room. He was summarily placed into "temporary
administrative segregation on limited property status, that is, a strip cell."
He was deprived of his clothes and the water to the cell was shut off; there
was no mattress. The plaintiff was denied a toothbrush and other hygiene
items. These conditions persisted for three or four days and the plaintiff
was then returned to general population. The plaintiff was not deprived of
the" minimal civilized measure of life's necessities." He got "three meals a
day ... and was sheltered from the elements. While he did not have any

THE NATIONAL PRISON PROJECT JOURNAL

clothing or bedding, we have held there is no absolute Eighth Amendment
right not to be put in a cell without clothes or bedding." (445-46) He was
not injured and his health was not impaired.
With respect to the subjective element, the plaintiffs requests for water and
hygiene items "falls short of a showing that [the defendant] knew of and
disregarded an excessive risk to Williams' health and safety." (446) (The
court does not address these factors in discussing the objective component.)
This opinion is an example of the way in which the Supreme Court's focus
in Helling and Farmer on health and safety issues has been taken by some
lower courts to exclude claims based on conditions that are merely disgusting or humiliating. Actually, this court goes further, dismissing its earlier
precedents as "from an earlier era of Eighth Amendment jurisprudence....
Whether the conduct of prison officials 'shocks the conscience' of this Court
is irrelevant. '[T]he objective standard of culpability is out,' and the
'subjective standard of culpability' is in." (446, citations omitted)

Protection from Inmate
Assa ultlClassification

Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995). The plaintiff was
held in the 13 by 20 foot "bullpen" of a county jail along with assorted other
inmates who were not segregated based on their proclivity for violence or
the reasons for their confinement. He was assaulted by other inmates.

Evidence that inmate-inmate violence "occurred regularly when the jail was
overcrowded," as had been the case for two years, and that the violence
was severe enough to require medical attention and even hospitalization on
occasion, was sufficient to establish a "substantial risk of serious harm"
(1583) for purposes of summary judgment.
Evidence that the Sheriff knew of the violence and its consequences,
including expert testimony that given the conditions "it was plainly foreseeable to a reasonable law enforcement official that a violent act was likely to
occur" (1583), sufficiently established the Sheriffs subjective knowledge of
the risk.

-

,

Modification of Judgments!
Mental Health Care

Evidence of the Sheriffs failure to take reasonable measures to reduce the
risk of violence was sufficient to withstand summary judgment. These
measures included classifying and segregating the inmates based on
likelihood of violence; assigning inmates to cells and bunks rather than
letting them choose; adequately training jailers; and adequately supervising
and monitoring the inmates. While the Sheriffs efforts to have a new jail
built could be considered by a jury, they did not entitle him to summary
judgment; liability could be based on the lack of alternative means or interim
measures to reduce the risk.

King v. Gteenblatt, 52 F.3d 1 (1st Cir. 1995). A consent decree provided
that a "Treatment Center for Sexually Dangerous Persons" should be

THE NATIONAL PRISON PROJECT

WINTER 1996 7

operated by the Department of Mental Health; a state statute transferred it
to the Department of Correction. This change constitutes a significant
change in law for purposes of Rufo. The requirement of Department of
Mental Health operation would have been "inconceivable" had state law not
already provided for it when the decree was entered.
The district court should consider whether the proposed modification is
appropriately tailored, giving substantial weight to the views of officials who
must implement it, and relying primarily on its jurisdictional oversight to
ensure the Department of Correction's compliance with the decree.

Medical Recordsl
Privacy

Jarvis v. Wellman, 52 F.3d 125 (6th Cir. 1995). The plaintiffs father, who
had sexually abused her, obtained access to her medical records through
an inmate work program. Her rights were not violated.
There is no general right to privacy from disclosure of personal information.
(The Sixth Circuit is in conflict with several other circuits on this point.)

Legal Assistance Programs

Carperv. DeLand, 54 F. 3d 613 (10th Cir. 1995). The Utah prison system
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." The contract was changed to eliminate general legal assistance in civil matters and to restrict the attorneys' services to initial
pleadings, writs of habeas corpus and challenges to conditions of confinement. The district court held that the state was obligated to provide assistance in civil cases that involved "fundamental rights" and entered an
injunction.
The state's program met constitutional requirements. At 616-17:
. . .. Other than habeas corpus or civil rights actions regarding current
confinement, a state has no affirmative constitutional obligation to assist
inmates in general civil matters.... Further, an inmate's right of access
does not require the state to supply legal assistance beyond the preparation of initial pleadings in a civil rights action regarding current confinement or a petition for a writ of habeas corpus.

Protection from Inmate
AssauItlAIDSlDamages-Assault and Injuryl
Pleading/In Fonna Pauperis!
Pro Se Litigation

Billman v. Indiana Dept. of Corrections, 56 F.3d 785 (7th Cir. 1995). The
plaintiff alleged that prison officials failed to protect him from rape by an
HIV-positive cellmate despite their knowledge of his assailant's propensity to
rape.
The plaintiffs failure directly to allege the personal responsibility of the
defendants was not fatal to his claim.
At 789-90:
The peculiar perversity of imposing heightened pleading standards in
prisoner cases-a course of highly doubtful propriety after Leatherman ..
- is that is far more difficult for a prisoner to write a detailed complaint

8

WINTER 1996

THE NATIONAL PRISON PROJECT JOURNAL

than for a free person to do so, and again this is not because the
prisoner does not know the law but because he is not able to investigate
before filing suit. We think it is the duty of the district court to assist
him, within reason, to make the necessary investigation.
This can be done by appointing counsel for the limited purpose of determining whether the complaint can be amended to name proper defendants.
Or the district jUdge can first direct the plaintiff to make efforts on his own to
obtain counsel. At 790: "If his case is both substantial in money terms and
has· substantial merit, the plaintiff will have a fair shot at obtaining counsel
and if he fails this may indicate that the case has no merit after all."
At 788: Although the plaintiff apparently did not contract HIV, "the fear
caused by the rape itself, and the additional fear of contracting HIV until that
fear was finally dispelled, would be normal items of damages, certainly in a
case such as this of actual rather than merely feared exposure."

DISTRICT COURTS
Food/Cruel and Unusual
Punishment/Personal
Involvement and Supervisory
Liability

Williams v. Coughlin, 875 F.Supp. 1004 (W.D.N.Y. 1995). The plaintiff was
allegedlydenied'food .for two days (i.e., five meals) 'because he failed to
return his used tray as prison rules required. He subsequently passed out.
The court rejects the argument that refusing to return the tray was "deemed"
a refusal of the meal, since the plaintiff made it clear to prison officials that
he was not refusing food.
A twO-day denial of food is sufficiently serious to violate the Eighth Amendment,' and there is precedent for finding that "the withholding of food is
grossly disproportionate punishment for a prisoner's refusal to comply with a
rule requiring the return of food containers to prison guards, when, as in the
present case, the prisoner has not engaged in the kind of conduct that the
rule was designed to prevent." (1013) However, the matter was not so
clear as to support summary judgment for the plaintiff.
The risk of extended deprivation of food is sufficiently obvious t<;> withstand
summary judgment as to the defendants' culpable state of mind, with
.respect to the officer who withheld the food, the Superintendent who
promulgated the policy, and the staff members who investigated the
prisoner's complaint.

Religion/Re,igion-Services
Within Institution/Publications
,

Woods v. Evatt, 876 F.Supp. 756 (D.S.C. 1995). The Religious Freedom
Restoration Act applies to prisons.
Prison officials did not violate the RFRA or the First Amendment by requiring Jumu'ah services to be conducted in a "multipurpose bUilding" rather
than in the visiting room where outsiders could attend, as was the case with
Christian services. Jumu'ah services were conducted on Fridays, when the
visiting room was in use by visitors and was therefore unavailable; Christian services did not take place at the same time as visiting.

THE NATIONAL PRISON PROJECT

WINTER 1996 9

Prison officials did not violate the RFRA or the First Amendment by barring
persons not registered as Muslims from attending the Friday services, sinCE
Friday is a work day for non-Muslims. Those not prepared to register as
Muslims could attend the Muslim study group, held at a different time. The
burden was not substantial.
The lack of a part-time Muslim chaplain at one prison did not violate the
RFRA or the First Amendment; it was temporary, and the defendants were
trying to fill the position.
Differences in support provided to Muslim and Christian activities did nof
violate the RFRA or the First Amendment since they stemmed either from
differences in support received from outside the prison or from differences
in the numbers of adherents of each religion.
The application of a "publisher-only" rule to religious publications did not
deny the RFRA or the First Amendment where it was applied to everyone.
The failure of prison officials to provide incense does not violate the RFRA
or the First Amendment. The court appears to believe that such affirmative
assistance to religious activity would run .afoul of the Establishment Clause.
Denial of access to congregate worship services to administrative segregation inmates did not violate the RFRA or the First Amendment, since it
applied to everyone.
Prisoners were permitted to receive gifts from outside during December.
Refusing to permit receipt of gifts to Muslims during Muslim holidays did no
violate the RFRA or the First Amendment since receiving gifts would was
not "central to the practice of [their] beliefs" and it would result either in
giving the Muslims privileges not enjoyed by other groups or in a "bureaucratic nightmare" of allowing different groups to receive gifts at different
times.
The denial or the right to organize fund raising activities did not violate the
RFRA or the First Amendment where the prisoners had not sought approva
for these activities through the normal channels.

Women

Women Prisoners of the District of Columbia Dept. of Corrections v. District
of Columbia, 877 F.Supp. 634 (D. D.C. 1994) The D.C. jail system gets its
head handed to it once more.

Use of Force/Cruel and
Unusual PunishmentTotality of ConditionsNerbal
Abuse/ Municipalities

(665-66): A pattern of sexual harassment in the D.C. jails violates the
Eighth Amendment. The court refers to rape and other physical touching,
and adds (at 665):
In combination, vulgar sexual remarks of prison officers, the lack of
privacy within CTF cells and the refusal of some male guards to announce their presence in the living areas of women prisoners constitute

10 WINTER 1996

THE NATIONAL PRISON PROJECT JOURNAL

a violation of the Eighth Amendment since they mutually heighten the
psychological injury of women prisoners.
The exposure of prisoners' bodies without justification is also unacceptable.
(The court rules on Eighth Amendment rather than privacy grounds.) The
defendants had sufficient knowledge of the pattern of harassment to hold
them liable under the deliberate indifference standard, and their inadequate
responses to complaints (lack of training, policy and procedure, and inadequate investigations) supported the conclusion. (One administrator said that
"you cannot take adverse or corrective action against the employee because you believe the inmate over the employee.") The municipality is
liable for the "custom" of sexual harassment.
Pregnancy, Childbirth and
Abortion/Pendent and Supplemental Claims/Medical
Care-Standards of Liability/
Communication of Medical
Needs/Medical Privacy/
Access to Outside Care

(667-68): The court adjudi~tes plaintiffs' claim of inadequate obstetrical and
gynecological care under a D.C. statute that "encompasses the common
law rule which imposes upon prison authorities and employees, [sic] a duty
to exercise reasonable care in the protection of prisoners." At 667: In the
area of medical care, physicians owe the same standard of care to prison
confidential sick call procedure.
Extensive remedial provisions are entered (681-84).

Pregnancy, Childbirth and
Abortion/Use of Force--RestraintslCruel and Unusual
Punishment-Proof of Harm

(668;'669): Claims concerning shackling of pregnant women· prisoners, child
visitation,and child placement counselling are adjudicated under Wilson v.
Seiter rather than Estelle v. Gamble. Defendants' manner of shackling
women in their third trimester (leg shackles, handcuffs, belly chain and
"black bOX") is unconstitutional; leg shackles provide sufficient security, and
these must be removed during labor and shortly thereafter.
DEmial of child visiting and lack of child placement counselling together
constitute an Eighth Amendment violation "because they have a mutually
enforcing risk of trauma for women prisoners who have recently delivered
babies. Few events could be more stressful than the forced separation of a
parent from his or her child." They "heighten a mother's anxiety to an
unreasonable leveL" Psychological injury is cognizable under the Eight
Amendment.

Fire Safety/Injunctive
Relief/Negligence, Deliberate
Indifference and Intent

(669-70): Dormitory crowding, a high combustible load, lack of compartmentation, locked fire exits, lack of a fire alarm or sprinkler system, and lack
of regular fire drills each have "a mutually enforcing effect of exposing
residents to an unconstitutionally intolerable risk of injury by fire... The
Court does not have to wait for the Plaintiffs to be incinerated before it can
order the Defendants to raise the level of fire safety...." At 670: "References to litigation costs [in defendants' internal documents proposing
improvements] suggest that the Defendants in this instance will respond
only to court orders."
(671-72): Fire safety issues at one jail are decided based on a D.C. statute.
(670):
The infestation of roaches, tom mattresses, inadequate bathing and
toilet facilities, excessive crowding, lack of mechanical ventilation,
unclean floors, inadequate drainage, inadequate lighting, and uncovered

THE NATIONAL PRISON PROJECT

WINTER 1996 11

II

dumpsters all have been shown to raise the risk of illness and injury to a
constitutionally unacceptable level.
In light of defendants' knowledge of the conditions, their limited remedial
efforts on the eve of trial failed to show that they were not deliberately
indifferent.
A similar recitation is made at another jail (672), including a malfunctioning
heating unit.

Noise/Cruel and Unusual
Punishment--Proof of Hann

Equal Protection/Education
and TrainingIWork Assignments

(671): "... [T]he Court is reluctant to find unconstitutional anything which
simply increases 'stress' unless it is truly egregious. For this reason the
Court does not find that the daytime noise levels significantly threaten the
health of women prisoners. II
(673-78): Title IX of the Education Amendments of 1972 applies to prisons.
No discriminatory intent need be shown because the segregation of men
and women into separate facilities with unequal program opportunities is not
a facially neutral policy. The court compares groups of female and male
prisoners that it finds "similarly situated" by virtue of similar custody levels,
"sentence structures and, purposes of incarceration. The court rejects the
claim that women's "unique needs and characteristics" render the sexes
dissimilar; that approach would prevent men and women from ever being
compared.
Educational access and work assignments are unequal in the women's prisons in some respects. The work release program is unequal because of
sluggish processing of paperwork, lack of transportation to interviews, etc.

Exercise and Recreation

(677): Recreational opportunities and facilities are unequal in some respects.

Religion

(677-78): Women are provided unequal access to chaplains and religious
services.

Hazardous Conditions and
Substances

(678-79): A ban on smoking for women at one jail based on its inconsistency with a substance abuse treatment program involving some women at that
jail did not deny equal protection.

Injunctive Relief

(679-90): An extensive remedial order is entered simultaneous with the
court's liability opinion. An existing special Master is directed to assume
certain monitoring tasks, and other forms of monitoring (e.g., environmental
health and fire safety inspections) are ordered.

Modification of JUdgments!
Judicial Disengagement!
Monitoring and Reporting!
Work Assignments

Hadixv. Johnson, 879 F.Supp. 743 (E.D.Mich. 1995). The defendants
moved to modify the Out-of-Cell Activity Plan, which is intended to ensure
that over 75% of the prisoners have at least seven house of "meaningful"
out-of-cell activity on weekdays and five hours on weekends.
The factual changes cited by defendants, assuming they actually
occurred, did not justify modification because they did not in fact make

12 WINTER 1996

THE NATIONAL PRISON PROJECT JOURNAL

compliance substantially more onerous. For example, a claimed decrease
of interest by prisoners in academic and vocational programs did not support modification given that the defendants were close to compliance and
there were waiting lists for the programs.
Changes in public opinion in opposition to education for prisoners do not
support relief under Rufo. At 749: "A decree is detrimental to the public
interest when there is an increased risk of harm to the public if the decree is
enforced."
Changes in the organization of the prison and its activities are not shown to
have made compliance more burdensome. At 750: "Furthermore, since the
changes were planned and implemented by defendants, they cannot now
claim that their own actions create unforeseen circumstances."
Reductions in violence do not justify modifying the decree, since they do not
make compliance more onerous or unworkable or detrimental to the public
interest. If anything, these changes facilitate compliance with the plan. The
fact that the plan was in part intended to alleviate violence doesn't mean it
should be modified; "it would be perverse to modify the plan simply because it contributed ·toimproving the very conditions that itwas intended to
improve." (750)
Certain requirement of the decree are modified based on changes such as
the closing of particular cell blocks.
The court addresses "finality" in the same way as in the companion opinion
in ,Glover v. Johnson, 879 F.Supp. 752 (E.D.Mich. 1995).
Furnishings/Pest ControU
Heating and Ventilation

Askew v. Fainnan, 880 F.Supp. 557 (N.D. III. 1995). The plaintiff alleged
that he was forced to sleep on the floor at various times, that the jail floor
was infested by mice, roaches and other vermin, and that the floor temperature was about 35 degrees during the" winter months. These conditions, while unsanitary and uncomfortable, do not violate the Eighth Amendment.

NON-PRISON CASES"
Contempt/Consent Judgments

Wilder v. Bernstein, 49 F.3d 69 (2d Cir. 1995). The district court entered an
order that it characterized as an interpretation of a consent decree but the .
defendants said was really an unwarranted modification. If the latter, it was
an appealable order. The court must therefore resolve the merits of the
appeal to determine whether it has jurisdiction.
The all-inclusive language of the decree concerning foster children is not
limited by the fact that a particular category of them was not raised in the
complaint since it didn't exist at that time. The relief that can be granted in
a consent decree is not necessarily limited to the harms alleged in the
complaint; the court gives effect to the decree's broad language. The"
plaintiffs' long delay in seeking relief does not support the narrow construction pressed by the defendants.

THE NATIONAL PRISON PROJECT

WINTER 1996

13

Attorneys' Fees and Costs

Haldennan v. Pennhurst State School & Hospita/, 49 F.3d 939 (3d Cir.
1995). Fee awards in contempt proceedings are determined by a more
generous formula than under § 1988. At 941: "In that setting, the innocent
party is entitled to be made whole for the losses it incurs as the result of the
contemnors' violations, including reasonable attorneys' fees and expenses."
Counsel's dealing with the press and other publicity work is not compensable. Escorting non-testifying experts on site visits was not compensable as attorney time; paralegals could do it.
Experts' fees are compensable in a contempt proceeding regardless of
contrary law under § 1988. However, neither experts' fees nor attorney time
in consulting with non-testifying experts is compensable absent a showing .
of necessity.

Attorneys' Fees

Ki/gourv. City of Pasadena, 53 F. 3d 1007 (9th Cir. 1995). The Supreme
Court's Farrar decision does not preclude the recovery of attorneys' fees
under the catalyst theory. In this case, it was not necessary to invoke a
catalyst theory because the plaintiff obtained an enforceable stipulated
judgment. The district court erred in denying fees on the ground that the
matter would have been settled just as quickly without a lawsuit.

Use of Force/Damages-Assault and Injury/Attorneys'
Fees and Costs

Dunn v. Denk, 54 F. 3d 248 (5th Cir. 1995). Psychological injury may meet
the "significant injury" standard formerly used in Fifth Circuit use of force
cases. This plaintiff presented evidence of post-traumatic stress syndrome
which impaired her recovery from depression (she was out on a weekend
pass from a mental hospital).
The Fifth Circuit's rule that injury must have resulted "directly and only" from
force that was excessive was intended to distinguish between injuries
resulting from excessive force and those resulting from justified force. At
251: "It was not intended to displace the venerable rule that a tortfeasor
takes his victim as he finds him or to immunize the exacerbation of a preexisting condition...." (Footnotes omitted)
The denial of compensatory damages was inconsistent with the finding of
liability (the fury also awarded $10,000 in punitive damages). The court
remands for a new trial on damages only.

John Boston, Director,
Prisoners' Rights Project of
The Lega/ Aid Society of
New York.

Note to prison litigator'S

14 WINTER 1996

An award of $17,500 in attorneys' fees was appropriate despite the fact that
the plaintiff received only $10,000 in damages compared to the $200,000
sought in the complaint. At 252: "This method of weighting the value of
legal services fails to take cognizance of the degree of success obtained."
(Footnote omitted).

In preparation for legal challenges to the Prison Litigation Reform Act, the
NPP is coordinating the development of memoranda and model briefs. If
you would like copies, please contact Jenni Gainsborough at the Project by
mail, phone, fax or e-mail (see page 3).
THE NATIONAL PRISON PROJECT JOURNAL

News and Events
A Vision Beyond SUNival:
A Resource Guide for Incarcerated Women.

Prison Suicide: An Overview and Guide to Prevention

The National Women's Law Center Women in Prison Project has recently
published a compilation of the information gathered and disseminated by
the Women in Prison Project over five years working with women prisoners
in the District of Columbia. The Resource Guide provides women with information, resources and strategies necessary to negotiate the prison system,
stay healthy, maintain family ties, and thrive in the community once they are
released. The Resource Guide provides critical information for women
prisoners and advocates on a wide range of subjects, including sentencing,
parole, sexual harassment, child custody, medical care, HIV/AIDS, drug
treatment, public benefits, housing and job training. While the Resource
Guide identifies resources serving low income women in the Washing DC
area, it also contains information vital to prisoners' advocates and correctional administrators across the nation. The guide costs $40 plus 6.5%
sales tax for DC residents ($25 for non-profit organizations), prepaid and is
available from the National Women's Law Center, 11 Dupont Circle, Suite
800, Washington DC 20036. Phone (202) 588-5180, fax (202) 588-5185.
The· National Center on Institutions andAltematives has released a 108~
page monograph on prison suicide developed by their assistant director
Lindsay Hayes and funded by a grant from the National Institute of Corrections. The OveNiew and Guide prOVides a thorough discussion of the literature, a review of national and state standards for prison suicide prevention,
national data on the incidence and rate of prison suicide, effective prison
suicide prevention programs, and a discussion of liability issues. The
publication is available free from the National Institute of Corrections' Information Center, 1860 Longmont Circle, Suite A, Longmont, CO 80501. The
NCIA also publishes a quarterly newsletter, Jail SuicidelMental Health
Update devoted to various areas of jail suicide prevention,including research training, litigation and technical assistance. The newsletter is
available at no charge from NCIA, 40 Lantern Lane, Mansfield, MA 02048,
phone (508) 337-8806, fax (508) 337-3038.

Prison conference in Maryland

The 1996 National Convocation of Jail and Plison Ministry will be held May
18-22, 1996, at the National4-H Center, 7100 Connecticut Avenue, Chevy
Chase, Maryland. The theme of this year's gathering is "Fear and Violence
in America: Building Bridges in a Prison Society." Keynote speakers,
panelists, and workshop presenters will address the multiple injustices of .
the criminal justice system. There will be a demonstration against the death
penalty at the Supreme Court and congress will be lobbied on issues that
negatively impact victims and offenders. For further information or registration forms, write or phone the National Convocation of Jail and Prison
Ministry, 1357 East Capitol Street, SE, Washington, DC 20003. (202) 5471715.

Note to Journal subscribers

The latest edition of the Annual Status Report on State Prisons and the
Courts will be sent to all Journal subscribers under separate cover. A summary of the report will appear in next quarter's Journal.

THE NATIONAL PRISON PROJECT

WINTER 1996 15

Highlights -

National Prison Project Litigation
The following are major developments in the National Prison Project's
litigation program since October 1995. Further details of any of the
listed cases may be obtained by writing the Project.

Lewis v. Casey

On November 29, oral argument was heard in the Supreme Court on
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. A
number of amicus briefs were also filed, including an amicus by the
Solicitor General supporting the prisoners. The Court's opinion is
awaited.

Onishea v. Herring

In this case challenging the Alabama Department of Corrections' policy
of segregating HIV+ prisoners, the Eleventh Circuit remanded for retrial
plaintiffs' claim that their exclusion from programs and activities violated
the Rehabilitation Act, as well as plaintiffs' legal access claim. In a
decision issued in December, the trial court rejected all of the plaintiffs'
remaining claims. The judge found that the exclusion of HIV-positive
prisoners from all programs and activities is justified by the threat of HIV
transmission as well as by the potential violent reactions of other prisoners. He also found that the legal access provided to the HIV-positive
prisoners was constitutionally adequate. The NPP will appeal the ruling.

Goldsmith v. Dean

In August, the NPP filed a motion for preliminary injunction to end
. physical and sexual abuse of prisoners in Vermont's sex offender
behavior modification program. Affidavits filed by several prisoners
allege that a treatment provider forces prisoners onto all fours and
physically restrains them, simulates raping them anally,· and screams
obscenities at them dUring "role plays" in which prisoners in the program
are required to relive the traumatic sexual.experiences of their childhood. The hearing began in November and a ruling is awaited.

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

16 WINTER 1996

Nonprofit Org.
U.S. Postage

PAID
Washington D.C.
Permit No. 5248

THE NATIONAL PRISON PROJECT JOURNAL