THE NATIONAL PRISON PROJECT

Journal
American Civil Liberties Union Foundation

ISSN 1076-769X

Vol. 12 No. I, Spring/Summer 1997

Prison Litigation Reform Act Update-As we go to press, the Second
Circuit has still not issued its decision
in Benjamin v. Jacobson. Lawyers
for the plaintiffs in Plyer v. Moore
have asked the Supreme Court for a
writ of certiorari.

As promised in the last edition of
the Joumal, we are summarizing here
some ofthe court decisions regarding
the In Fonna Pauperis provisions of
the Prison Litigation Reform Act -PLRA § 804 (amending 28 U.S.c. §
1915). Note: This is not intended to
be a complete list of all the decisions
on these issues.

IN
FORMA
PAUPERIS
PROVISIONS -- PLRA § 804
(amending 28 U.S.c. § 1915)
Three-Strikes Provision, 28 USC
§ 1915(g) -- Constitutionality,
Retroactivity, and Application to
HabeaslMandamus
Abdul-Wadoodv. Nathan, 91 F.3d
1023 (7th Cir. 1996): The court held that
pre-PLRA "strikes" count towards the
three strikes, but only post-PLRA filings
are subject to the three-strikes provision.
(See alsoAbdul-Wadoodv. MacMillillan,
1996 U.S. App. LEXIS 32198 (7th Cir.
Dec. 4. 1996) (reaching merits of appeal
nohvithstanding pre-existing three strikes
because appeal pending at time ofPLRA's
passage); Abdul-Wadood v. Huckins,
1996 U.S. App. LEXIS 31664 (7th Cir.

Nov. 12, 1996) (same).
Adepegba v. Hammons, 103 F.3d
383 (5th Cir. 1996): The court applied
Landgrafto conclude that cases dismissed
before the PLRA's passage count towards
the three strikes. The court undertook no
constitutional analysis.
Arvie v. Lastrapes, 106 F.3d 1230
(5th Cir. 1997): The court declined to
address the merits of an appeal filed by
a "frequent filer" familiar to the court.
Instead, the court remanded the case for
the district court to determine whether the
plaintiffwas a prisoner at the time of his
prior"strikes." The court seems to assume
that the pivotal point in time is the date
on which the Complaint is filed or the
appeal "was taken." ld~ at 1231.
Carson v. Johnson, No. 96-41003,
1997 U.S. App. LEXIS 11392 (5th Cir.
May 15, 1997): The court held that the
three-strikes provision is inapplicable to
habeas petitions under 28 USC § 2254.
Id. at *3-*5. Application of the provision
to § 1983 actions does not violate the right
of court access because filing fees are
unconstitutional in the civil context only
when the litigant has a "fundamental
interest at stake." Id. at *8 (quoting
ML.B. v. SL.J, 117 S. Ct. 555, 562
(1996)). Plaintiffs claim is that he was
improperly· placed in administrative
segregation, and prisoners do not have a
fundamental liberty interest in their
placement except in the rarest of
circumstances not present here. Id. at *9
(citing Sandin v. Conner, 115 S. Ct. 2293,
2302 (1995). Plaintiffs claim that the

proVISIOn imposes "discriminatory
treatment" is subject to rational basis
review because the provision does not
impair a fundamental right (see id.).
"[D]eterring frivolous and malicious
lawsuits, and thereby preserving scarce
judicial resources, is a legitimate state
interest" and "prohibiting litigants with
a history offrivolous or malicious lawsuits
from proceeding IFP will deter such
abuses." Id. at *10. It is equally rational
to draw a distinction between prisoners
and other litigants because prisoners have

Inside
Federal Sentencing Guidelines
Coalition
5
AIDS Project Update ..... 6
Case Law Report
John Boston summarizes
significant prison cases
NPP Publications

7

38

Prison News
39
Prison population growth: the
Supreme Court and RFRA
Highlights from the NPP's
Docket
40

THE NATIONAL PRISON PROJECT Journal·· page 2
substantially more free time than nonprisoners, and are provided with food,
housing, paper, postage, and legal
assistance by the government. ld. They
have abused the judicial system in a
manner that non-prisoners simply have
not." ld. at * II. Finally, the court held
that pre-PLRA dismissals count towards
the three strikes. ld. at *12.
Green v. Nottingham, 90 F.3d 415
(10th Cir. 1996): The court applied
Landgrafto conclude that cases dismissed
before the PLRA's passage count towards
the three strikes. Th~ cowt undertook no
constitutional analysis.
Smith v. Officer Przyblyski, 1997
US. App. LEXIS 5540 (7th Cir. March
19, 1997): The cowt implicitly held that
a dismissal by the district court, and the
dismissal of an appeal from the district
cowt's dismissal, can count as one strike
each. ld. at *8. However, the three-strikes
provision only applies to cases filed after
the three-strikes have been exhausted; it·
does not apply to cases pending before the
district or appellate court at the time the
third strike is reached. ld.
Dalvin v. Beshears, 943 F. Supp. 578
(D. Md. 1996) The comt employed FRCP
60(b) to remove a "strike," because
counting the dismissal as a strike would
be "unduly harsh and inappropriately
punitive" under the circumstances.
Lyon v. Van De Krol, 940 F. Supp.
1433 (S.D. Iowa 1996), appeal pending
(8th Cir. 1997): Judge Longstaff struck
down the "three strikes you're out"
provision ofthe PLRA (§ 804(d), codified
at 28 US.c. § 1915(g», as violative of
equal protection because it treats those
who proceed IFP differently from those
who do not. He subjected the provision
to strict scrutiny because it burdens the
fundamental right of prisoners to file
constitutional claims in federal court. He
found that the standards ofreview set forth
in Turner v. Safley, 482 US. 78 (1987),
Procunier v. Martinez, 416 US. 396
(1974), and Thornburgh v. Abbott, 490
US. 401 (1989), are inapplicable because

they involved "prison administration and
security matters," while § 1915(g) relates
to "federal cowt administration and legal
issues." In applying strict scrutiny, he
found that, even if the interest in deterring
frivolous lawsuits is compelling, § 1915(g)
only stops indigent inmates. Furthermore,
the provision's application is not limited
to frivolous lawsuits. That is, the
provision is both under-and overinclusive, rather than narrowly tailored.
Munoz v. Hjambon, No. 96-2372,
1997 US. Dist. LEXIS 6785 (E.D. La.
May 9, 1997): Judge Marcel Livaudais,
Jr. held that pre-PLRA dismissals count
towards the three strikes. ld. at *2.
Various judges· in the Northern District
ofCaliforniahave dismissed prisoner suits
sua sponte, fmding that § 1915(g) requires
them to consider as "strikes" actions
dismissed prior to, as well as after, the
PLRA' s enactment.
Harris v. Armstrong,. 1997 US. Dist.
LEXIS 4633 (N.D. Cal. March 31,1997)
(Judge Walker);
Hams v. Correctional Officer Mztchell,
1997 US. Dist. LEXIS 4629 (N.D. Cal.
March 31,1997) (Judge Walker);
Cavaness v. San Mateo County, 1997
US. Dist. LEXIS 3264 (N.D. Cal. March
21, 1997) (Judge Smith);
Harris v. Correctional Officer K.
Phillips, 1997 US. Dist. LEXIS 2866
(N.D. Cal. March 6, 1997);
Day v. United States Secret Serv., 1996
US. Dist. LEXIS 18884 (N.D. Cal. Dec.
20, 1996) (Judge Smith);
Lewis v. San Mateo Courts, 1996 US.
Dist. LEXIS 18892 (N.D. Cal. Dec. 20,
1996) (Judge Smith);
Harris v. Standley, 1996 US. Dist.
LEXIS 18298 (N.D. Cal. Dec. 4. 1996)
(Judge Walker);
Harris v. Correc;tional Staff, 1996 US.
Dist. LEXIS 18308 (N.D. Cal. Dec. 4.
1996) (Judge Walker);
Harris v. Carter, 1996 US. Dist. LEXIS
18309 (N.D. Ca. Dec. 4, 1996) (Judge
Walker);

Spring/Summer

199~

Harris v. Horn, 1996 US. Dist. LEXIS
18349 (N.D. Cal. Dec. 4, 1996) (Judgt.
Walker);
Washington v. Gomez, 1996 US. 186T
(N.D. Cal. Dec. 4, 1996) (Judg\.
Henderson);
Washington v. Gomez, 1996 US. Dist
LEXIS 17031 (N.D. Cal. Nov. 15. 19%
(Judge Henderson);
Day v. United States Senate, 1996 U. S
Dist. LEXIS 17033 (N.D. Cal. Nov. 13
1996) (Judge Smith):

Constitutionality of Filing Fee
Provisions, 28 USC § 1915(b)
Hampton v. Hobbs, 106 F.3d 12~
(6th Cir. Feb. 13, 1997): The Sixth Circui
upheld the filing fee requirements, fmdin~
that they do not violate (I) the right 0
access to courts; (2) the First Amendment
(3) equal protection; (4) substantive 0
procedural due process; or (6) the Doubt<
Jeopardy Clause.
Mitchell v. Farcass, USCA No. 96·
3026, 1997US.App. LEXIS 10369(1ltJ
Cir. May 6, 1997): The Eleventh CircUl
held that the PLRA's filing fe,
requirements withstand equal protectiol
review because they are ratiomilly relatec
to curtailing abusive prisoner litigation
and that, to the extent the filing fec
provisions conflict with the federal rules
the PLRA controls.
Nicholas v. Tucker, USCA Dkt. Nos
96-2470.96-2525 (2dCir. May 27. 1997 )
The Second Circuit upheld the PLRA -.
filing fee provisions against an attad
based on equal protection and the Firs
Amendment. The court applied rationa
basis scrutiny because the provisions d,
not ~ access to courts, they simpl:
make access more difficult. ld. at 9. The
court found the "goal of relieving th,
pressure of excessive prisoner filings or
our overburdened federal courts" to be ,
legitimate purpose (ld. at 7), and tha
imposing a filing fee is a rational mean
to accomplish this goal because it \vi!
cause prisoners to think twice before filint'

THE NATIONAL PRISON PROJECT Journal·· page 3
Id. at 8. Prisoners are not similarly
situated to other litigants in this regard
because their essential needs -- food,
clothing, shelter, and medical care -- are
taken care of by the state, leaving them
to pursue litigation as a "recreational
activity." Id. at 8. Finally, the court
declined to undertake any additional
analysis ofthe plaintiff's first amendment
clai~, finding it "subsumed" within his
access to courts claim. Id. at 10.
Roller v. Gunn, 107 F.3d 227 (4th
Cir. Feb. 19,1997): The Fourth Circuit
upheld the filing fee and cost provisions
of the PLRA (§ 804(a), codified at 28
U.S.c. § 1915(l), (2), (3) & (4)). The
court rejected the plaintiffs' challenge
based on the right ofcourt access for three
reasons: First, the right of court access is
subject to Congress' Article III power to
set limits on federal jurisdiction.
"Congress is no more compelled to
gUarantee free access to federal courts than
it is to provide unlimited access to them.':
Id. at 7. Second, courts have generally
upheld the imposition ofpartial fIling fees
on IFP plaintiffs. Id at 8 (citing numerous
cases). Third, the filing fee requirements
are too "mild" to amount to a "burden"
on the right. Id at 9-10, With respect to
equal protection, the court ruled that
prisoners are not a suspect class and the
provisions do not burden any fimdamental
rights, and are therefore reviewed under
rational basis scrutiny. The classification
chosen by Congress -- singling out
prisoners -- was rational because prisoners
are not similarly situated to non-prisoners.
The\" have their basic material needs,
pap~r, postage, and legal assistance
provided at state expense and they often
have free time on their hands that other
litigants do not possess. As a result, there
has been a far greater opportunity for
abuse of the federal judicial system in the
prison setting. Prisoners are also different
from other litigants in that they are under
the control of the state so it is
administratively easier for the courts to
check their finances than it would be for

other IFP plaintiffs. Alegislature may take
one step at a time, addressing itself to the
phase of the problem which seems most
acute. Id. at 11-12.

Retroactivity of Filing Fee
Pr!Jvisions, 28 USC § 1915(b)
Circuits Applying Provisions to
Notices of Appeal Filed Before
Passage:

Spring/Summer 1997
after PLRA's passage, after analyzing
conflict between these requirements and
Fed. R. App. P. 24(a)).

Circuits NOT Applying Provisions
to Notices of Appeal Filed Before
Passage:
Sixth Circuit:
Miles v. United States, 1996 US.
App. LEXIS 30846 (6th Cir. Nov. 2 L
1996): Declining to apply fIling fee
provisions to appeal fIled before
enactment.

Second Circuit:
Covino v. Reopel, 89 F.3d 105, i 08
(2d Cir. 1996): Filing fee provisions
Seventh Circuit:
generally apply to appeals pending at the
Thurman v. Gramley, 97 F.3d 185,
time of the PLRA's enactment.
188
(7th Cir. 1996): The fIling fee
Duamutefv. O'Keefe, 98 F.3d 22,
.
requirements
do not apply where the
24 (2d Cir. 1996); Ramsey v. Coughlin,
Notice
of
Appeal
was filed before the
94 FJd 71, 73 (2d Cir. 1996): Filing
Act's effective date.
fee provisions do not apply to appeals that
were fully briefed before the PLRA's
Tenth Circuit:
passage.
Carter v. Sharp, 1996 US. App.
Rodriguez v. Hynes, 1996 US. App.
LEXIS 31872 (lOth Cir. Dec. 10. 1996);
LEXIS 34450 (2d Cir. Dec. 12, 1996):
Duffy
v. Uphoff, 1997 US. App. LEXIS
Declining to apply fIling fee provisions
3630
(lOth
Cir. Feb. 27,1997); Filmore
to case in which appellants' briefwas fIled
v. Hargett, Case No. 96-6025, 1997 US.
before, but appellees' brief fIled after,
App. LEXIS 2288 (lOth Cir. Feb. 1L
ruling in.Covino.
1997);Hayv. Giles, No. 96-3142,1996
US.
App. LEXIS 21149 (lOth Cir. Aug.
Fifth Circuit:
20, 1996); Johnson v. Andrews, 1996
Ayo v. Bothey, 106 FJd 98 (5th Cir.
US. App. LEXIS 32209 (10th Cir. Dec.
1997): ApplyingLandgrafandconcluding
10,1996); Lacey v. City ofCasper, 1996
thai certification and filing fee
US.
App. LEXIS 28959 (lOth Cir. Nov.
requirements apply to cases in which
5, 1996); Lee v. Fields, 1997 US. App.
appellate briefing completed before
LEXIS 5840 (lOth Cir. March 24,1997):
PLRA's passage. No constitutional
Petrick v. Fields, 1997 US. App. LEXIS
analysis.
1143 (lOth Cif. Jan. 24, 1997);Raine v.
Strickland v. Rankin County
Nelson, 1996 US. App. LEXIS 31874
Correctional Facility, 195 FJd 972 (5th
(10th Cir. Dec. 10, 1996); Schlicher v.
Cif. 1997): Applying Landgraf and
Thomas, III F.3d 777 (lOth Cir. April
concluding that certification and fIling fee
16,1997): Tuckerv. Graves, 1997 US.
requirements apply to cases in which
App. LEXIS 3996 (lOth Cir. March 6.
Notice ofAppeal was filed before PLRA's
passage. No constitutional analysis. See
1997); White v. Gregory, 87 F.'3d 429
also
Moreno v. Collins, 105 FJd 955
(lOth Cir. 1996), cer!. denied. 136 L. Ed.
(5th Cir. 1997) (reaching same result,
2d 415 (1996); Zimmer v. Bork, No. 953337, 1996 US. App. LEXIS 21441
without analysis).
Cf Jackson v. Stinnett, 102 FJd 132
(lOth Cir. Aug. 20. 1996): Ruling without
(5th Cir. 1996) (applying filing fee
analysis, that the PLRA amendments to
28 USC § 1915 do not apply to cases in
requirements to Notice of Appeal filed

THE NATIONAL PRISON PROJECT Journal·· page 4
which the Notice of Appeal was filed
before the Act's effective date.
Washington v. Loving, 1997 US.
App. LEXIS 4714 (lOth Cir. March 13,
1997): Declining to apply filing fee
requirements to appeal filed after the
PLRA's passage because "[a]t this point
in the litigation [on second appeal], it
would be inequitable to reverse the district
court's grant ofleave to proceed in fonna
pauperis on appeal." Id. at *5 n.4.

Third Circuit:

Tenth Circuit:

Madden v. Myers, 102 F.3d 74 (3d
Cir. 1996): Filing fee requirements do not
apply to bona fide mandamus petitions.
Santana v. United States, 98 F.3d
752 (3d Cir. 1996): Filing fee provisions
do not apply..to habeas corpus proceedings.

Green v. Nottingham, 90 F.3d 415
(10th Cir. 1996): Filing fee requirements
apply to mandamus.
Shabazzv. Kaiser,No. 96-6404,1997
US. App. LEXIS 10568 (lOth Cir. 1997):
Vacating district court's application of
filing fee provisions to habeas petition.
Id. at *6.
UnitedStatesv. Simmonds, III F.3d
737 (lOth Cir. 1997): Filing fee
requirements do not apply to habeas
corpus proceedings brought under 28 USC
§ 2254, or to actions brought under 28
USC § 2255.

Fourth Circuit:
Smith v. Angelone, 1997 US. App.
LEXIS 8247 (4th Cir. April 24, 1997):
Filing fee provisions inapplicable to
habeas corpus proceedings.

District Courts:
Rhoden v. DeTella, 1996 US. Dist.
LEXIS 14300(N.D.lll. Sept. 25,1997):
Holding that the PLRA's filing fee
provisions are applicable to motions for
leave to proceed IFP that were pending
at the time of passage.
Rodgers v. Deboe, 950 F. Supp. 1024
(S.D. Cal. Jan. 13, 1997) (Judge
Brewster): Filing fee provisions do not
apply to cases filed before passage.
Sledgev. Guest,CaseNo. 96-CV-208
(RSP/GJD), 1997 US. Dist. LEXIS 5528
(ND.N. Y. April 24, 1997) (Judge Pooler):
Filing fee provisions do not apply to suits
commenced before PLRA's passage. Id.
at *1 n.1.

Application of Filing Fee
Provisions, 28 USC § 1915(b), to
HabeaslMandamus
Second Circuit:
In re Nagy, 89 F.3d 115 (2d Cir.
1996): Filing fee requirements apply to
extraordinmywrits such as mandamus that
seek relief analogous to civil complaints
under 42 USC § 1983, but do not apply
to writs directed at judges conducting
criminal trials.
Liriano v. UnitedStates, 95 F.3d 119
(2d. Cir. 1996): Filing fee requirements
do not apply to § 2244 actions and other
"gatekeeping" motions.
Reyes v. Keane, 90 F.3d 676 (2d Cir.
1996): Filing fee requirements do not
apply to habeas corpus proceedings.

Spring/Summer 1997

Fifth Circuit:
UnitedStatesv. Cole, 101 F.3d 1076
(5th Cir. 1996): Filing fee requirements
do not apply to motions to vacate a
criminal sentence brought pursuant to 28
USC § 2255 ..

Eleventh Circuit:
. Anderson v. Singletary, III F.3d801
(11 th Cir. 1997): Filing fee provisions do
not apply to habeas corpus proceedings.

Seventh Circuit:
Martin v. United States, 96 F.3d 853
(7th Cir. 1996): PLRA not applicable to
mandamus. See also In_re Barnes, 1996
US. App. LEXIS 37141 (7th Cir. Dec.
5, 1996): "[T]he Act does not apply to
petitions for a writ of mandamus filed in
cases where the underlying litigation is a
petition for a writ' of habeas corpus."
Moore v. Pemberton, 110 F.3d 22
(7th Cir. 1997): A person appealing from
the denial of a habeas corpus petition
under § 2254 is not subject to the filing
fee requirements of the PLRA.

Eighth Circuit:
In re Tyler, 1997 US. App. LEXIS
6186 (8th Cir. April 2, 1997): Filing fee
requirements apply to mandamus petition
arising from an ongoing civil rights
lawsuit. The court explicitly left for
another day the question of whether the
provisions would apply if the underlying
litigation were a civil habeas corpus
proceedings.

Ninth Circuit:
Naddiv. Hill, 106 F.3d 275, 277 (9th
Cir. 1997): Filing fee provisions do not
apply to habeas corpus proceedings.

D.C. Circuit:
United States v. Levi, Nos. 96-3083
and96-5200, 1997US. App. LEXIS 9886
(D.C. Cir. May 6, 1997): Filing fee
provisions inapplicable to actions brought
wider 28 USC §§ 2254 and 2255.

District Courts:
United States v. Jones, 1996 U.S.
Dist. LEXIS (N.D. Ill. 1996): Filing fee
requiremeQts do not apply to habeas
corpus proceedings.
Van Doren v. Mazurkiewicz, 935 F.
Supp. 604 (E.D. Pa. 1996): Filing fee
requirements apply to habeas corpus
proceedings.

Miscellaneous IFP Decisions
In re Prison Litigation Reform Ad,
105 F.3d 1131 (6th Cir. 1997): In class
actions, district courts are not to assess
fees and costs to each member ofthe class:
rather, the responsibility to pay the
required fees and costs shall rest with the
prisoner or prisoners signing the complaint
or the notice of appeal. Id. at 1137. A
prisoners who is released while litigation
is pending but before the filing fee is fully
paid is not subject to the PLRA's

THE NATIONAL PRISON PROJECT Journal·· page 5
requirements after his release; rather, his
obligation to pay fees is to be determined,
like any non-prisoner, solely by whether
he qualifies for IFP status. Id. at 1138.
Jeffery v. Unknown Walker, No. 9640709, 1997U.S. App. LEXIS 11715 (5th
Cir. May 14, 1997): The financial
screening and assessment procedures of
the PLRA regarding appellate filing fees
are to be conducted by the district courts.
Id. at *2.
Marks v. Solcum, 98 F.3d 494 (9th
Cif. Oct. 18, 1996): IFP provision that
calls for appeals to be dismissed if they
are fiivolous or malicious, or fail to state
a claim upon which relief may be granted,
is applicable to appeals pending at time
of PLRA.s passage.
McGann v. Commissioner, Social
Security Administration, 96 F.3d 28 (2d
Cir. 196): The partial payments required
by § 1915(b)( 1) are to be made only while
the prisoner remains in prison; upon his
release. his obligation to pay fees is to be
determined, like any non-prisoner, solely
by whether he qualifies for IFP status.
Mitchell v. Farcass, USCA No. 963026 (lIth Cir. May 6,1997): 28 U.S.c.
§ 1915(e)(2) (which set new standards for
dismissal of prisoners' claims) is
applicable to claims pending at the time
of the PLRA's passage becau~e the
provision is "wholly procedural" in nature.
Robbinsv.Switzer, 104F.3d895 (7th
Cir. 1997): Holding that, with respect to
ex-prisoners, pivotal point for determining
applicability of filing fee requirements is
the date of the filing of the Notice of
Appeal. Thus, the filing fee provisions
do not apply to appeals filed by a person
who is released from prison before the
Notice of Appeal is filed. However, they
do apply to cases filed by persons who are
prisoners at the time of the filing of the
Notice of Appeal but who are released
while the appeal is pending.

Summarized by NPP Staff Attorney
Ayesha Khan

Federal SentencingGuidelines-new coalition works for review
On the 10th anniversary of the
adoption of the Federal Sentencing
Guidelines, the National Center on
Institutions and Alternatives (NCIA)
announced the creation of a new
project, the Coalition for Federal
Sentencing Reform, devoted to a
review offederal sentencing practice.
The Coalition will be comprised of
members of the bar (judges,
prosecutors, defense attorneys and
others) as well as organizations,
.individuals and families who wish to
reform the system.
In announcing the project, NCIA
Director Herbert J. Hoelter said, "the
objective is to determine if the
Guidelines are meeting the original
goals enumerated by Congress -- just
punishment,deterrence,incapacitation
and rehabilitation." He expressed
doubts whether this "ten-:year
experiment" has succeeded. The
Coalition plans to develop specific
policy recommendations and to ensure
that people outside of the justice
system understand how this problem
effects everyone as budget cuts in
schools, parks, hospitals and drug
treatment centers are required to meet
escalating corrections budgets. The
Coalition will compile relevant data,
solicit the views of a wide variety of
individuals impacted by the federal
sentencing structure and suggest
reform as needed.
For further information, contact the
Coalition for Federal Sentencing
Reform, c/o NCIA, 635 Slaters Lane,
Suite G-IOO, Alexandria, Virginia
22314.

Spring/Summer 1997

The scope of the problem -Number offederal prisoners in 1987
'

"

41,000

Number offederal prisoners in 1997
·

": 106,600

Number of pages in 1987 Federal
Sentencing Guidelines Manual
·

325

Number of pages in 1996 Federal
Sentencing Guidelines Manual
·

1,/37

Averagenumber offederal Guidelines
Amendments per year
.
"
60
Number offederal sentencing appeals
in 1988
·

,

225

Number offederal sentencing appeals
in 1995 .
.
·
8,731
Percentage offederal trial judges who
say the Guidelines should be modified
so they have more discretion to
impose sentences that are fair .
....................... 86%

Number of federal prisons built
between 1900 and 1980.
.
·
41
Number of federal prisons built
between 1980 and 1995
'"
38
Number of federal prisons currently
under construction
·
10
Percent capacity federal prisons are
currently operating
...................... 125%

Percentage of federal prisoners in
1994 who were sentenced to federal
prison for a nonviolent crime
92%

THE NATIONAL PRISON PROJECT

NPP AIDS Education
Project Update
The use ofcombination therapy,
protease inhibitors and viral load
testing is dramatically changing the
lives ofpeople living with AIDSIillV.
Articles from national magazines have
featured discussions on possible cures
and the end ofAIDS. So far neither
exists. Behind these headlines is the
reality of people managing complex
regimens ofupwards to 40 pills daily,
the dilemma faced by women who
become
pregnant
while
on
combination therapy and the problem
ofthoseunable to resume employment
due to the toxicity of medications.
While these treatments have
become the community standard of
care, their use in correctional facilities
has been inconsistent. Recent letters
from prisoners have identified a
variety of scenarios -- from medical
staff ".informing prisoners these
treatments are still experimental, to
prisoners on combination therapy with
undetectable viral loads, and prisoners
whose combination therapy is
arbitrarily discontinued. The next
issue ofthe AIDS Update will explore
the impact ofthese treatments through
interviews with correctional and
medical staff, prisoners, attorneys and
advocates.

Updates & Resources
Last month members of the
NORA Incarcerated Populations
Working Group met with Sandra
Thurman, Director, of the. Office of
National AIDS Policy to discuss the
obstacles faced by prisoners living
with mY/AIDS.
During this

Journal .. page 6

meeting advocates, former prisoners
and service providers discussed a
range of issues including prevention
/education, standards of care,
discharge planning and compassionate
release. The NORA Incarcerated
Populations Working Group meets
monthly,
members
include
representatives from over 25
organizations and over 20 prisoner
peer educators. To be added to the
mailing list please contact us at (202)
234-4830 (no collect calls).
On April 8 the Presidential
Advisory Council on AIDS issued
recommendationsto President Clinton
on mvvaccine development, medical
marijuana, needle exchange and
prisons. The recommendations on
prisonsaddresscompassionaterelease,
discharge planning, standards ofcare,
protective barriers and substance use.
Contact the Office ofNational AIDS
Policy at (202) 632-1090 to receive
a copy of these recommendations.
The AIDS Counseling and
Education (ACE) program at
Bedford Hills Correctional Facility
will be holding its fifth annual AIDS
walkathon on September 6. An AIDS
walkathon at ACE's sister program
at Taconic Correctional Facility is
slated for September 20. ACE's first
AIDS walkathon was held in 1992 and
raised over $3,000 for the Incarnation
Children's Center. Over 250 women
participated in last year's program
which included a range ofevents from
participants forming a human ree!
ribbon to a memorial ceremony.
Recipients of this year's funds will
include the Incarnation Children's
Center and other AIDS service
organizations. To send pledges or for

Spring/Summer 1997
additional information contact Liz
Mastroieni, ACE Coordinator, at
(914) 241-3100 ext. 4360.
PWA-RAGNewsline has moved
its operations from Georgia to
California. In 1987 Jim Magner;'a
federal prisoner living with AIDS,
founded Prisoners With AIDS-Rights
Advocacy Group and began publishing
the newsletter, Newsline, as a forum
for prisoners living with AIDS/HIV.
After Mr. Magner died of AIDS
related complications, his parents
continued the work ofPWA-RAG and
published the Newsline. Today the
Newsline is distributed to over 12,000
subscribers(free
to
prisoners)
throughout the United States and
Canada. To become a subscriber
contact Bryan Farley, Managing
Editor at 1626 North WilcoxAvenue,
Suite 537, Los Angeles, CA 90028,
(213) 692-6533.
This fall the Correctional HIV
Consortium(CHC)
will
be
sponsoring an educational update,
"Infectious Disease in Small
Facilities". The one-day conference
will be held at De Paul University,
Chicago, Illinois, on Saturday,
September 20 from 8:30 a.m. to 4:30
p.m. The educational update will
include workshops on infectious
disease staffing, prevention/education
and reintegration programs. Register
with CHC at (805) 568-1400/(800)
572-9310 or by using your VISA,
Mastercard, or AmEx. on:'line at
http://www.silcom.com/-chc.
Jackie Walker is the Project's AIDS
It?!ormation Coordinator

THE NATIONAL PRISON PROJECT Journal -- page 7

Spring/Summer 1997

Case Law Report -- Highlights of Most Important Cases
by 101m Boston
Court of Appeals Cases
Grievancesffransfers
Wardv. Dyke, 58 F.3d 271 (6th Cir.
1995). The plaintiff was transferred to
a less desirable prison: defendants
admitted that this was done in part because
he filed I 15 grievances in less than five
months. He was also found guilty of two
major misconduct charges and asked to
change housing units twice.
The
Constitution was not violated. At 274:
"The abaity to transfer a prisoner who is
interfering with prison administration and
staff morale goes to the essence of prison
management." The plaintiff "attempts to
circumvent" Meachum by alleging that
his transfer was inretaliationfor protected
activity. Defendants did not violate the
First Amendment by acting based on his
c:xpressive conduct. At 274: "By
transferring Ward. defendants were able
to maintain the peaceful management of
the prison by reducing the tension between
the staff and Ward without discouraging
him from seeking redress of grievances."
At 274-75: "Ward's failure to adjust was
detrimental to himself and also posed a
potential threat to other inmates and the
staff"
At 275 n. 4:
The court
distinguishes an unpublished case on the
ground that the transfer in that case was
to a higher security prison.

Hazardous Conditions and Substances/
Evidentiary Questions
GOjJman v. Gross. 59 F.3d 668 (7th
Cir. 1995). The plaintiff, who had
previously had a lung removed because
of lung c:ancer and was supposedly cured.
failed to show a serious medical condition
exacerbated by his current exposure to his
cellmates' cigarettes. There was no
medical testimony on record contrary to
the prison doctor's testimony on this point.

At 672: "... [T]he medical effects of
secondhand smoke are not within the ken
of the ordinary person, so ... inmates' lay
testimony [about the plaintiffs breathing
difficulties] cannot establish the showing
of medical causation necessary to sustain
Goffinan's claim." The plaintiff made no
argument based on future risk of cancer,
but only on present breathing problems.

Mental Health Care/Psychotropic/
Medicationffraining/Municipalities/
Evidentiary Questions
Young v. City of Augusta. Ga:
through DeVaney, 59 F.3d 1160 (lith
Cir. 1995). The plaintiff alleged that she
did not receive adequate mental health care
injail and as a result had to be hospitalized
in an overtly psychotic state. She was
returned to jail, where she wound up naked
and chained to a bed among filth and
excrement, subject to macing because of
her violent behavior: she was also beaten
while shackled to a bed.
The district court 'did not abuse its
discretion in refusing to appoint a mental
health expert, since the plaintiffs indigence
would have required the entire cost to be
allocated to the defendants. The court does
not hold that such an appointment would
never be appropriate. Here, there was no
need, since the existence of a material
factual issue was evident.
The plaintiffs allegations that
treatment for her mental health condition
was unduly delayed, that she did not
receive medication as prescribed, and her
treatment in isolation fell below standards
of human decency sufficiently supported
her constitutional claim. Evidence that
some treatment was provided and some
medication was delivered did not entitle
the defendants to summary judgment.
The plaintiff sufficiently supported
a claim of municipal liability. At 1171:

We reject, as a matter oflaw. her
contention that municipal jails
should be equipped to offer onsite, expert psychiatric care for
inmates. . .. [T]he claim that jail
employees are inadequately
selected or trained to recognize
the need to remove a mentally ill
inmate to a hospital or to
dispensemedication as prescribed
is cognizable, however, if the
deficiency reflects deliberate
indifference by City policyrnakers
to the rights ·of inmates and it is
closely related to the ultimate
Injury.

The need for such training is not so
obvious as to put jail officials on notice:
however, a pattern of constitutional
violations inay support a claim of
deliberate indifference.

Searches--Person--ConvictslEx Post
Facto LawslProcedural Due Process/
Personal Involvement and Supervisory
Liability
Rise v. State, 59 F.3d 1556 (9th Cir.
1995). An Oregon statute requiring felons
convicted ofmurder orcertain sex offenses
to submit a blood sample for a DNA data
bank did not violate the Fourth
Amendment. The intrusion is nunimal and
is rationally related to the public interest
in preventing recidivism and in identifYing
and prosecuting murders and sex offenses.
The statute limits the use of the samples
to courts and law enforcement agencies
and prohibits analysis of them for genetic
predispositions to physical or mental
conditions. The coUrt does not reach the
defendants' claim that it is also related to
effective penal administration.
Applying the statute to persons
convicted before the statute was enacted
did not violate the Ex Post Facto Clause

THE NATIONAL PRISON PROJECT Journal .. page 8
because the statute's purpose was not to
punish. Due process did not require a
hearing before being required to submit
a blood sample.

Correspondence--Legal and Official/
Access to CourtslFederal Officials and
Prisons/Qualified Immunity
Bieregu v. Reno, 59 F.3d 1445 (3d
Cir. 1995). The plaintiff alleged that
mailroom employees repeatedly opened
mail from federal judges outside his
presence. A pattern or practice of doing
so "infringes communication protected by
the right of free speech." It also violates
the right ofcowt access, which the court
locates in the right to petition for redress
of grievances. Due process is also a basis
for the right to court access. The Sixth
Amendment is not implicated as to a
convicted prisoner corresponding about
civil proceedings.
At 1455: "... [W]e conclude that
repeated violations of the confidentiality
of a prisoner's incoming court mail are
more central than ancillary to the right of
cowt access, and thus no sho\\1ngofactual
injUIY is necessary for plaintiffto establish
that the right has been infringed." (This
holding is obsolete after Lewis v. Casey.)
However. isolated and inadvertent
instances of mail opening do not violate
the Constitution.
The Turner standard is applicable to
this claim of a pattern and practice as well
as to challenges to prison regulations.
There is no valid, rational connection
between opening legal mail outside the
prisoner's presence and security. There
is no alternative means but the mail for
prisoners to exercise their right of court
access. Opening mail in the prisoner's
presence places no burden on others, since
it is what the regulations have required
since 1985.
The defendants are not entitled to
qualified immunity. Only one federal cowt
of appeals has reached a contrary
conclusion. The cowt weighs the existence

of federal prison regulations, which
undermine any claim that the defendants
were unaware of their obligations.

ProtectionfromInmateAssaultlMedical
Care/Qualified Immunity
Reece v. Groose, 60'F.3d 487 (8th
Cir. 1995). A plaintiff who had been
labeled a snitch and had been placed in
protective custody was subjected to a risk
sufficiently obvious to support a finding
of knowledge. Placement in protective
custody was a reasonable response, but
permitting an inmate to work in that unit
who had a known propensity for violence
may not have been reasonable. Qualified
immunity is defeated.

Law Libraries and Law Books/Class
Actions--Effect of Judgments and
Pending· Litigation
Smith v. Shawnee Library System,
60 F.3d 317 (7th Cir. 1995). Protective
custody inmates were brought to the law
library but kept in mesh enclosures, with
books brought to them by trained inmate
law clerks. They had access three hours
a day, five days a week, by request, with
three of the days reserved for prisoners
with court deadlines.
The plaintiffs were not denied access
to courts. At 322-32:
At least in civil cases such
as § 1983 suits, the right to
access is meant to allow a
prisoner to bring claims through
the preliminary stages in the
courts, not to allow full-fledged
self-representation....
When a prisoner is able to
make his voice heard in the courts
through the right of access,
preserving his claims and
beginning the litigation process,
he can then proceed to hire a
lawyer. fmd one on contingency,
or he can ask that counsel be
appointed for him....
Deciding whether a penal

Spring/Summer 1997
system provides adequate access
means evaluating a legal access
program as a whole, rather than
requiring it to contain any
particular service. . .. There is
no "right to browse"; prison
inmates are not constitutionally
entitled to unfettered direct access
to law libraries....
The plaintiff is required to show both
a failure to provide assistance in obtaining
court access .and "some quantum of
detriment" as a result. He did not sho\'i
prejudice. The restrictions complained
ofwere not unconstitutional. This includes
the practice of requiring prisoners to leave
the library and not come back if they
needed to use the toilet: the defendants
placed cans in the cells to "solve" this
problem.

Use of Force/Consent Decrees/Class
Actions--Effect of Judgments and
Pending LitigationlModification of
Judgments/ Attorneys' Fees and Costs
Gates v. Gomez, 60 FJd 525 (9th Cir.
1995). A consent decree provides that
defendants will provide appropriate
psychiatric treatment for all inmates at the
California Medical Facility. After the
decree was signed, they commenced using
a 37 rom. rubber bullet gun to' extract
violent or agitated mentally ill inmates
from their cells. The defendants argued
that shooting prisoners with rubber bullets
was not treatment and that the decree did
not apply. The plaintiffs said it could have
an adverse effect on appropriate treatment.
The district cowt properly concluded
that use of the gun was covered by the
decree; while what force to use is a security
decision. what force not to use is a medical
decision, and use of contraindicated force
would mean that a patient was not
receiving appropriate treatment.
Compliance with the decree is to be
judged by the language of the decree and
not the Eighth Amendment standard.
At 532: "... [A] specific finding of

THE NATIONAL PRISON PROJECT Journal .. page 9
a past violation of a consent decree is not
prerequisite to an injunction preventing
a future violation." In any case, the court
did find that the decree was violated. The
district court did not abuse its discretion
in adopting a mediator's conclusion and
directing that medical authorization had
to be sought before using the gun.
However, the district court did abuse its
discretion in prohibiting the gun's use to
prevent "imminent substantial property
damage" in the absence of a medical
contraindication.

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 reprinting of 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.
Subscriptions to the Journal are $30 ($2
for prisoners) prepaid by check or
money order. The Journal is published
quarterly by :
The National Prison Project of the
American Civil Liberties Foundation Inc.
1875 Connecticut Ave., Ste.41 0
Washington, DC 20009
Phone: (202) 234-4830
NO COLLECT CALLS

Fax: (202) 234-4890
Email: JenniGains@AOL.COM
NPP Director: Elizabeth Alexander
Journal Editor: Jenni Gainsborough

Regular Contributor: John Boston

The plaintiffs were prevailing parties
as a result ofhaving obtained the consent
decree, entitling them to fees for
monitoring and compliance work.
Procedural Due Process--Disciplinary
Proceedings!Access to
Courts-PunishmentandRetaiiationiGrievances
and Complaints about Prison/Appeal!
Qualified Immunity
Woods v. Smith, 60 F.3d 1161 (5th
Cir. 1995). The plaintiff was told he
should become an informant or else; he
sent a letter of complaint to federal court
and gave copies of it to prison officials.
He was thendisciplinedbothfor "defiance"
for sending the letter and for refusing to
pack to go to segregation, which he said
he did not do.
At 1164: "The law ofthis circuit is
clearly established, and was so in 1990
when the instant disciplinary charges
issued, that a prison official may not·
retaliate against or harass an inmate for
exercising the right ofaccess to the courts,
or for complaining to a supervisor about
aguard's misconduct." (Footnote omitted.)
Favorable termination of· the
disciplinary proceeding is not a requisite
of a retaliatory interference claim. The
court declines to analogize to malicious
prosecution claims; the latter turns on a
groundless prosecution, but a retaliation
claim focuses on whether there has been
an obstruction of the exercise of a
constitutional right. At 1165:
Further, in a malicious
prosecution claim, resolution of
the underlying proceedings
typically is within the province
of a judge, jury, or senior
prosecutor. This differs sharply
from the procedures at bar where
the disciplinary proceedings ·are
conducted solely by corrections
officials. Mindful of that critical
difference, we are not prepared
to require a favorable termination
before exammmg an otherwise

Spring/Summer 1997
legitimate
constitutional
complaint. Such a requirement
would unfairly tempt corrections
officers to enrobe themselves and
their colleagues in what would be
an absolute shield against
retaliation claims. This we will
not do, for as we previously
stated, "the court with which [the
inmate] sought contact, and not
his jailer, will determine the
merits ofhis claim." (Footnotes
omitted.)
To hold otherwise would be to impose a
more stringent exhaustion requirement
than exists for habeas corpus, contrary to
the limited exhaustion requirement of 42
U.S.C. § 1997e.
The court notes that its holding is
contrary to Eighth Circuit authority (n. 13).
At 1165 n. 16: Favorable termination
is an element of a § 1983 claim based
simply on the filing of a false charge
(citing an Unpublished opinion)..
Retaliation claims must be carefully
scrutinized; the plaintiff must allege the
violation of a specific constitutional right
and be prepared to prove that but for the
retaliatory motive the alleged retaliation
would not have occurred, either through
directevidence or achronology from which
retaliation may plausibly be inferred. A
legitimate disciplinary report will be
powerful summary judgment evidence
against the prisoner.
Hazardous Conditions and Substances!
Qualified Immunity!StandinglMedical
Care
Kelleyv. Borg, 60 FJd 664 (9th Cir.
1995). The plaintiff alleged that he asked
to be let out of his cell because of fumes
from nearby construction: defendants did
not let him out. and he passed out.
The defendants need not admit the
truth ofthe plaintiffs allegations to pursue
a qualified immunity defense. At 666:
"The very heart of qualified immunity is
that it spares the defendant from having

THE NATIONAL PRISON PROJECT Journal .. page 10
that transferred intent is not a clearly
to go forward with an inquiIy into the
establishedpartofEighthAmendmentlaw.
merits ofthe case. Instead, the threshold
Bystanding officers who did not state
inquiry is whether, assuming that what the
that they had no chance to intervene were
plaintiff asserts the facts to be is true, any
not entitled to summary judgment.
allegedly violated right was clearly
established."
The right at issue here was the right
Procedural Due Process--Property/
"to have prison officials not be
State-Federal Comity/Mootness
Lucien v. Johnson, 61 FJd 573 (7th
'deliberately indifferent to serious medical
Cir. 1995). The plaintiff complained of
needs,'" which was clearly established.
delay in deciding his property claims by
Rights must be particularized to defeat a
the lllinois Court ofClaims. Although the
qualified immunity defense, but this right
claims he complained about were decided
has been sufficiently particularized. At
667: "To hold that the magistrate judge
after his federal suit was filed, he had
others, and the court holds that the matter
should have defined the right at issue more
is "capable of repetition, yet evading
narrowly, and included all the various facts
review" and therefore not moot.
that Appellants recited in their proposed
In a rather muddled opinion, the court
definition, would be to allow Appellants,
and future defendants, to defmeaway all . holds that the delays did not deny due
process. The plaintiff did not show any
potential claims." (Footnote omitted)
harm from the delays. (The court notes
The fact that the plaintiffdid not cause
that the statute provides for interest, that
the plaintiff a seizure or long-term health
the courts don't really follow the statute,
consequences did not mean there was no
but the plaintiff doesn't complain of the
case or controversy. At 667: Although
failure
to pay interest.) Any remedy the
any damage may have been minimal, "it
plaintiff has for the loss of his property
is inarguable that knocking someone
is against the people who lost it, not the
unconscious constitutes an injury." There
court. Equity and comity "counsel
is no discussion of whether a serious
strongly" against settingdeadlines for state
medical need was. denied.
courts.
Use of Force/Negligence, Deliberate
Medical Care--Standards ofLiabilityIndifference,
Intent/Personal
Deliberate Indifference/Medication
Involvement/ Supervisory Liability
Adams v. Poag, 61 F.3d 1537 (11th
Robins v. Meecham, 60 F.3d 1436
Cir. 1995). The plaintiffs' decedent died
(9th Cir. 1995). When an officer fIred bird
of asthma in prison. To defeat qualified
shot at another prisoner and a ricochet hit
immunity, theplaintiffs "mustdemonstrate
the plaintifI, the officer could be held liable
that the appellants' actions in treating
ifhis actions were malicious and sadistic,
Adams' asthma violated a clear and
regardless ofwhether he intended to shoot
specificstandardand thatsimilarlysituated
the plaintiff. The Eighth Amendment
reasonable health care providers would
requirement of "punishment" does not
have known that their actions violated
require a specific intent to punish a
Adams' constitutional right." (1543) The
particular person. If an act is not intended
defendants' actions in medicating him in
as punishment, ashowingofwantonness--prison rather than admitting him to a
deliberate indifference or malice and
hospital and administering N steroids did
sadism, depending on the. claim--is
not constitute deliberate indifference.
sufficient.
The officers were not entitled to
Since the defendants' practice was to make
qualified immunity based on their claim
notations in the medical chart as soon as

Spring/Summer 1997
possible after any evaluation, treatment,
or reviewofa prisoner's medical condition,
their tracking system did not constitute
deliberate indifference.
Prescribing
medication over the telephone does not
violate the Constitution. Other claims
amount at most to malpractice.
At 1543-44:
Our cases have consistently
held that knowledge of the need
for medical care and an
intentional refusal to provide that
care constitutes deliberate
indifference. . . . Medical
treatment that is "so grossly
incompetent, inadequate, or
excessive as to shock the
conscience or to be intolerable to
fundamental fairness" constitutes
deliberate indifference.... "A
doctor's decision to take an easier
and less efficacious courts of
treatment" also constitutes
deliberate indifference. . . .
Additionally, when the need for
medical treatment is obvious,
medical care that is so cursory as
to amount to no treatment at all
may constitute deliberate
indifference.. " Also, delay in
access to medical care that is
"tantamount to 'unnecessary and
wanton infliction of pain,'" may
constitute deliberate indifference
to a prisoner's serious medical
needs. . . . Some delay in
rendering medical treatment may
be tolerable depending on the
nature of the medical need and
the reason for the delay.
[Citations omitted]
Equal Protection/Grievances and
Complaints about Prison
Rivera v. Senkowsh. 62 F.3d 80 (2d
Cif. 1995). Placement of plaintiff by
officials in one prison in a "limited
privileges company" under more restrictive
conditions than in similar units in other

THE NATIONAL PRISON PROJECT Journal -- page 11
prisons did not deny equal protection, since
the persons responsible for conditions ·in
that company had no authority over the
operation of units at other prisons. The
restrictions in that company did not
constitute cruel and unusual punishment. .
The right to be free of retaliation for
fIling grievances was clearly established
by 1990. The sufficiency of the evidence
to show retaliation is not reviewable on
interlocutory reviewofqualified immunity.
At86: "The district court should recognize
that the preswnption of proper purpose
accorded the acts of prison officials is
particularly strong when officials act
pursuant to a duty imposed by a prison
regulation which IS observed in practice
and is essential to prison discipline and
order."
Pre-Trial DetaineeslMedical Records
Sanderfer v. Nichols, .62 F.3d 151
(6th Cir. 1995). The plaintiffs decedent
died in jail of hypertensive and
arteriosclerotic cardiovascular disease.
The jail doctor's failure to review his
medical history did not constitute
deliberate indifference. The doctor did
treat the decedent for those ailments of
which he complained, and his blood
pressure \vas taken three times and found
to be normal. Therefore the doctor did not
have knowledge of risks which she then
disregarded. Her conduct was negligence
at most.
Procedural
Due
Process-Administrative Segregation
Rimmer-Bey v. Brown, 62 F.3d 789
(6th Cir. 1995). The plaintiff was put in
administrative segregation without due
process. Under Sandin, state regulations
did not create a liberty interest in staying
out of segregation because his placement
was not "atypical and significant hardship
... within the context ofhis life sentence."
(79 L footnote omitted). In any case, he
was given the process due, since he had
had a disciplinary hearing for the incident

on which his reclassification was based.
Pre-TrialDetaineeslMootnesslPersonal
Involvementand Supervisory Liability/
Crowding
Houston v. Sheahan, 62 F.3d 902 (7th
Cir. 1995).
A pre-trial detainee's
injlUlctive claim concemingjail conditions
was moot after his conviction and transfer
to state prison. At 903 (emphasis in
original):
Both the Sheriff and the Warden
must have known the Jail's
crowded state. In an officialcapacity action seeking an
injunction, where the Sheriff and
Warden are stand-ins for the
political bodies they serve, they
could well be ordered to take
appropriate steps ifcrowding has
exceeded the constitutional
limits. . .. Damages do not
follow from knowledge of a
problem; the defendants must
intend to harm the prisoner.
Farmerv. Brennan .... Neither
the Sheriff nor the Warden
designed the JaiL neither has the
ability to build a larger facility;
neither controls the number of
prisoners assigned there. . . .
They cannot be called on to pay
damages ... fortheconsequences
of other persons' decisions.
The statement concerning intent to harm
has been repudiated. See Haley v. Gross,
86 F.3d 630, 641 (7th Cir. 1996).
MootnesslFederalOfficialsand Prisons/
Mental Health Care--Transfer and
Admission to Mental Health Facilities
Phelps v. US Bureau afPrisons, 62
F.3d 1020 (8th Cir. 1995). An insanity
acquittee who had planted pipe bombs
arolUld San Francisco was required under
federal statute to be placed in a "suitable
facility." The Bureau of Prisons' Federal
Medical Center at Springfield, Missouri
was a suitable facility despite its "prison-

Spring/Summer 1997
like conditions" given his criminal history,
his mental diagnosis, and the reluctance
of state officials to accept placement of
someone who will need expensive longterm care.
The plaintiffs claim is not moot
although he has been transferred to another
medical center. The claim is capable of
repetition, yet evading review, since the
defendants said they would probably
continue to transfer him from one medical
center to another "to defuse potentially
explosivesituations and to protect Phelps."
Personal PropertylFederal Prisons and
Officials
United States v. Sanchez-Estrada,
62F.3d 981 (7th Cir. 1995). The district
court was empowered to direct that
criminal defendants' fines be paid out of
their prison earnings despite their
indigence. The fact that such fines may
fall disproportionately on some prisoners
depending on what kind ofjob they get
in the prison system does not call for a
limit on the court's discretion. The
sentencing guidelines require fmes lUlless
the defendant shows that he cannot pay
anything ever. (The federal Inmate
Financial Responsibility Program permits
prisoners to retain the first half of their
earned prison wages regardless offmes.)Pre-Trial DetaineeslProcedural Due
Process--Disciplinary Proceedings
Whitfordv. Bogling, 63 F.3d 527 (7th
Cir. 1995). Violation ofa state procedural
regulation in a disciplinary proceeding did
not amolUlt to atypical and significant
hardship and did not create a liberty
interest.
Six months ofsegregation mayor may
not meet the Sandin standard: additional
fmdings offact are needed. (Transfer to
maximum security did not nor did a loss
of good time that the plaintiff earned
back.)
A notice that the plaintiff was under
investigation for allegedly assaulting a

THE NATIONAL PRISON PROJECT Journal·· page 12
named inmate and that he was charged
with assault, fighting, and intimidation or
threats was sufficient to inform him ofthe
charges against him.
If the officer who prepared the
investigation report sat on the hearing
committee, due process would be violated.
A supervisor who signed the disciplinary
report as shift supervisor was not
disqualified.
The use of confidential informant
testimony without some evidence of
reliability would deny due process, and
the defendants' failure to come forward
with such evidence amounts to an
admission that they did not comply with
legal requirements. (The court notes that
without such evidence there would not be
any evidence against the plaintiff.)
The hearing committee's failure to
provide a reasoned explanation why they
believed the evidence against the plaintiff
rather than exculpatory affidavits that he
submitted raised a due process claim
sufficientto withstandsummaryjudgment.
At n. 4: .Pre-trial detainees cannot be
punished without due process regardless
of state regulations.

EqualProtectionIHomosexuals and
Transsexuals
Brown v. Zavaras, 63 F.3d 967 (lOth
Cir: 1995). The plaintiff's claim,that he
has been provided no treatment for gender .
dysphoria states an Eighth Amendment
deliberate indifference claim.
At 971: "Recent research concluding
that sexual identity may be biological
suggests reevaluating" authority holding
that transsexuals are not a protected class.
However, the court doesn't actually
reevaluate anything because the plaintiffs
allegations are "too conclusory to allow
proper analysis." His allegation that some
prisoners are given estrogen and some are
not, without more, does not raise an.equal
protection claim.

Co rrespon dence--N on-Legal
/PublicationslDeference
Allen v. Coughlin, 64 F.3d 77 (2d Cir.
1995). The New York prison system has
a publisher only rule for newspapers and
treated newspaper clippings in
correspondence as contraband. Under the
Turner standard, the defendant~.should
not have been granted summaryjudgment.
The alleged danger of "inflammatory
material" was not established by a single
example of a dangerous clipping, since
newspapers received directly from
publishers and ordinary correspondence
may also contain inflammatory material.
Alternative means, such as requesting an
iriterlibrary loan or subscribing to
newspapers, were not shown as a matter
of law to be adequate.
At 80:
"Subscriptionsalso require theexpenditure
of personal wealth in circumstances in
which the ability to pay may be the
exception rather than the rule." The need
to read each clipping does not justify
summary judgment; clippings are less
voluminous and bulk)' than whole
newspapers.
Ex Post Facto Laws/Procedural Due
Process
.
Hill v. Jackson, 64 FJd 163 (4th Cir.
1995). A statute provided for annual
parole review ifa prisonerwas not released .
when first eligible, with an unused proviso
for deferral upon reasonable cause. An
amendment authorized deferral for up to
three years for prisoners with life sentences
or particularly long sentences. The
amendment did not violate the Ex Post
Facto Clause because it does not change
either the substantive standards for initial
parole eligibility or the criteria for
determining release and it applies only to
prisoners whose likelihood of release is
remote.
The amendment did not deny due
process. Although there might be a liberty
interest in parole consideration. there is
no liberty interest in state parole

Spri ng/Summer 1997
procedures.

Pre-Trial Detainees/Protection from
Inmate
Assault/Mental
Health
IAppointment of Counsel/Procedural
DueProcess-DisciplinaryProceedings,
Administrative SegregationIWomen
Zarnes v. Rhodes, 64 F.3d 285 (7th
Cir. 1995). The plaintiff was placed in
asegregation cell with a mentally ill inmate
who assaulted her and injured her. This
allegation
adequately
stated
a
constitutional claim given the liberality
with which pro complaints are read,
though it might not have fully stated the
knowledge element of a deliberate
indifference claim.
The plaintiff's unsuccessful efforts
in contacting six attorneys met the
threshold requirement for appointment of
counsel. However, the district court did
not abuse its discretion in denying counsel
despite the plaintiff's distance from the
jurisdiction and her reliance on other
prisoners to help with her pleadings.
The plaintiff's placement in
segregation without a hearing did not
deprive her of due process by punishing
her. since it was a response to a legitimate
security concem. The state standards for
county jails do not establish a liberty
interestbecause they contain no mandatory
language and in any case the analysis of
liberty interests may no longer be
applicable after Sandin. At292: ". ',' [A]s
a pre-trial detainee she could 'not be
punished without due process regardless
of state regulations.'" (Citation omitted).

se

MedicationIMedical Care--Standards
of Liability--Deliberate Indifference
/Medical Care--Standards ofLiability-Serious Medical Needs/Pre-Trial
Detainees
Mahan v. Plymouth County House
ofCorrections.64F.3d 14 (lstCir. 1995).
The plaintiff's prescription medication
(Tegretol) was delivered to the jail the day
ofhis arrest. but he did not receive it for

THE NATIONAL PRISON PROJECT Journal·· page 13
a week despite his repeated requests. Jail
policy prohibited officers from
administering prescribed medications on
days the detainee is scheduled for court
and until permitted to do so by a "medical
officer." He did not see a medical officer
for a week.
The defendants were not deliberately
indifferent. Although they knew he had
a serious medical need (indicated by the
prescription, and assumed by the district
court), and they were aware that he was
notgettinghis prescribedmedication, there
was no evidence that they were informed
of or know about the plaintiffs serious
symptoms (severe depression and anxiety
attacks).
This case in effect holds that a
prisoner who is not able to see medical
personnel promptly must discuss his
medical condition with non-medical staff.
This pre-trial detainee case is
adjudicated under the Eighth Amendment,
app~ently because that is how it was pled.
Procedural Due Process--Disciplinary
Proceedings/Grievances
and
Complaints about PrisonlDeference
Bradley v. Hall, 64 F.3d 1276 (9th
Cir. 1995). The plaintiff filed a grievance
stating that an officer's conduct "shows
her misuse of her authority and her
psychologic":' disorder needs attention....
I suggest you . . . have her act
professionally instead oflike a child." The
officer charged him with Disrespect II and
he was convicted of Disrespect III, which
prohibits use of "hostile, sexual, abusive
or threatening" language.
At 1279:
The right of meaningful
access to the courts extends to
established prison grievance
procedures....The "government"
to which the First Amendment
guarantees a right of redress of
grievances includes the prison
authorities. . .. Moreover, in
some cases a pnsoner may be

required to exhaust the
established prison grievance
procedure before securing relief
in federal court. . . .
We are not persuaded by the
director's
argument
that
punishing a prisoner for the
content ofhis grievance does not
burden his ability to file a
grievance. From the prisoner's
point ofview, the chilling effect
is the same....
The rules against disrespect do not
pass muster under the Turner test as
applied to grievances. Their purposes, to
help prison staff exercise self-control by
preventing prisoners from baiting or
goading them, encouraging respect for
others, and rehabilitation through
insistence on the use ofsocially acceptable
problem-solving means, are legitimate.
However, it is an exaggerated response
as applied to written grievances. "The
threat of punishment for an impolitic
choice ofwords" is an unacceptable burden
on court access. An "obvious, simple
alternative" would be to require grievances
to be in writing and not to have them read
by the officers who deal \\ith prisoners on
a day to day basis. This would serve the
defendants' security interests; their
rehabilitative aims are overshadowed by
the importance of court access. At 1281:
"If there is any time a prisoner should be
permitted to speak freely, it is at the bar
ofjustice." At 1280: "[D]eference does
not mean abdication." (Citation omitted.)
The court leaves open the possibility
that inclusion of criminal threats in
grievances can be punished.
Procedural Due Process--Work
Assignments/Federal Officials and
Prisons
Bulger v. United S'tates Bureau of
Prisons. 65 F.3d 48 (5th Cir. 1995). The

plaintiffs termination from his Federal
Prison Industries job did not deny due
process because he had no liberty mterest

Spring/Summer 1997
in his job assignment. Under Sandin, the
language of governing regulations was
irrelevant because loss of a job was not
atypical and significant. His loss of the
ability to accrue extra good time credits
automatically did not mean that the
duration ofhis sentence would inevitably
be affected.
Sandin did not address property
interests, but the plaintifflacked aproperty
interest in his job as well.
Access to Courts--Postage and
Materials/ Res Judicata and Collateral
Estoppel/ Personal Involvement and
Supervisory Liability
Gentry v. Duckworth, 65 F.3d 555
(7th Cir. 1995). The plaintiffs state postcon.viction relief petition appeal was
dismissed without reaching the merits
because his brief did not conform to rules
regarding typing, binding, color of paper,
etc. His subsequent federal habeas petition
was denied At 558:
. .. While access to law libraries
is the most frequently discussed
element of access to the courts,
part of meaningful access is
furnishing basic scribe materials
for the preparation of legal
papers.... Necessary scribe
materials include paper, some
means ofwriting, staplers, access
to notary services where required
by procedural rules, and mailing
materials. [Footnote omitted]
In a court access case, the plaintiff
must show some detriment from the
alleged denial of access, other than mere
delay. He met that requirement. At 559:
. . . Prejudice to the right of
access to the courts occurs
whenever the actions of a prison
official causes court doors to be
actually shut on a complaint.
regardless of whether the suit
would ultimately have succeeded.
... [T]he right of access to
the courts means the right to rise

THE NATIONAL PRISON PROJECT Journal·· page 14
to the level of being a failure.
The right of access is at its base
a right to be heard. Therefore,
a total loss of the opportunity to
raise one's voice in the courts is
itself the requisite detriment.
The contraI)' holding would require courts
in court access cases to conduct trials
within trials, detennining how a separate
issue would have been decided in a state
court. The prospects of success on the
underlying litigation are relevant to
damages, not liability.
Injunctive
Relief--Preliminary
/Transfers/Communication
and
Expression/Deference
Pratt v. Rowland, 65 F.3d 802 (9th
Cir. 1995). The plaintiff, a former Black
Panther serving a life sentence who
maintains that he was framed by the FBI,
was transferred for a 90-day psychiatric
diagnostic program; he was then
transferred to a lower security facility
rather than being returned to his former
maximum security prison. He was double
celled at the new prison despite his claim,
previously accepted by the defendants, that
he needed to be single-celled for medical
reasons. The district court entered a
preliminary injunction requiring him to
be single celled at a medium security
prison on the ground that the reason for
the transfer was to "retaliate against the
plaintifffor a news interview proclaiming
his innocence.
Prisoners may not be retaliated against
for exercising First Amendment rights
even if the form of retaliation does not
violate an independent constitutional
interest.
However, establishing a
retaliation claim requires a fmding that
the action did not advance legitimate
correctional goals or was not tailored
narrowly enough to achieve such goals.
The plaintiffhas the burden ofproof The
law of retaliation remains good law after
Sandin v. Conner, but such claims should
be evaluated with deference in light of

Sandin's concerns about pnson
management.
The preliminary injunction lacked
adequate factual support. There is little
but timing to support the inference of
retaliatory motive. The legitimate reason
for double ceIling him is that the receiving
prison, and all medium security prisons,
were at double their capacity.
Religion--Practices--Services Within
Institution
Abdur-Rahman v. Michigan Dept.
of Corrections, 65 F.3d 489 (6th Cir.
1995). The defendants' refusal to release
the plaintifffrom work on Friday to attend
Muslim services, allegedly for security
reasons, did not violate his First
Amendment rights. A Muslim chaplain's
testimony established that Muslims may
be excused for services for "reasons such
as sickness and work activities. Therefore,
the prison's policy did not affect an
essential tenet of Rahman's religious
beliefs." (491)
Summary Judgment
Arreolav. Mangaong, 65 F.3d 801
(9th Cir. 1995). SummaI)' judgment may
not be granted against a pro se prisoner
without the district court's giving notice
of the requirements of the summary
judgment rule.·
Use of Force/Damages--Assault and
Injury, Punitive Damages--Conditions
of
Confinement/Administrative
Segregation/Jury Instructions and
Special Verdicts/Qualified Immunity
Blissett v. Coughlin, 66 F.3d 531 (2d
Cir. 1995). The plaintiff alleged that he
had been beaten by officers and placed in
a mental observation cell with no
furnishings that was smeared with feces,
where he remained for eight days. A jury
awarded $75,000 in compensatory
damages plus punitive damages of$5.000
and $10,000 against the various
defendants for excessive force, and

Spring/Summer 199;
awarded punitive damages of$1 0,000 ane
$5,000 against two defendants for the stn r
cell conditions. (The jury instruction saie
that punitive damages could be awardee
without compensatory damages.)
A jury fmding that three defendanL
were liable but awarding punitive damage~
against six did not require reversal of th,
entire verdict; it may have stemmed fron
an ambiguous passage in the instructions
There is no contradiction between the
finding that the plaintiff suffereu
compensable injuries but that they were
not serious enough to "produce death.
degeneration or extreme pain. [be] Iifetbreateningor ... fast-degenerating" (536).
wliich the court used in its instructions or.
the medical care claim.
The compensatory award wa5
supported by the plaintiffs testimon~
about recurring problems with his knee
resulting from the assault and as to hIS
emotional state during and after the
assaults. The award is not out ofline with
other awards. At 537:
Under contemporary standards
of decency, a jury could
justifiably consider incarceration
of a naked pnsoner for several
days in a dark, stuffy, fecessmeared mental observation cell,
without any personal amenities,
following a violent assault at the
hands ofcorrections officers, to
be an additional trauma inflicted
without penological justification,
and thus in violation of Blissett's
Eighth Amendment right to be
free from cruel and unusual
conditions of confinement.
The defendants were not entitled to
raise qualified immunity on the conditions
ofconfmement claim, having raised it onl~
generally in their answer. At 538:
... [B]ecause qualified immunity
is an affirmative defense. it is
incumbent upon the defendant to
plead. and adequately develop,
a qualified immunity defense

THE NATIONAL PRISON PROJECT Journal·. page 15
during pretrial proceedings so
that the trial court can detennine
which claims, if any, may be
disposed of by summary
judgment, or, at least, which facts
material tothe qualified immunity
defense must be presented to the
jUlY to determine its applicability
once the case has gone to trial.
Here, the defense was given the
opportunity to raise qualified immunity
during the trial but failed to do so. The
defense bears the burden both of pleading
and of proof of qualified immunity.
Equal Protection/Use of Forcel
Searches--Person--Convicts/Color of
LawlProcedural
Due
Process-Administrative Segregation/Discovery
Seltzer-Beyv. Delo, 66 F.3d 961 (8th
Cir. 1995). The plaintiff alleged that a
staff member made comments about his
penis· and buttocks and during· strip
searches rubbed his buttocks with a night
stick and asked him if it reminded him of
anything, and that he was placed in a strip
cell for two days without clothing, bedding,
or running water.
The allegation about the strip searches
stated a constitutional claim. The fact that
the officer was alleged to have an
illegitimate purpose did not mean that his
conduct was not under color of law. The
claim ,vas pled under the Fourth
Amendment, though the court does not
explicitly say that this is a proper basis
for it.
The equal protection claim based on
the strip search was properly dismissed
because the plaintiff did not allege that
he was treated differently from other
inmates because he belonged to a protected
class.
Placement in a strip cell did not
deprive the plaintiff of a' state-created
liberty interest. The defendants ·were
entitled to qualified immunity on the
conditions claim. To establish a conditions
claim, the plaintiff must show that "( 1)

the alleged deprivation is sufficiently
serious that it denies "'the minimal
civilizedmeasure oflife's necessities,'" and
(2) the prison officials were deliberately
indifferent to lII an excessive risk to inmate
health or safety.'" (964, emphasis
supplied, citations omitted)
(This
conclusion that there must be a hel!lth or
safety risk to establish an Eighth
Amendment violation is wrong, but
increasingly common. It's not clear that
the court really means it, since it uses "or"
in a similar statement later in the opinion.)
The court has previously held that the
Eighth Amendment does not absolutely
bar placing an inmate in a cell without
clothes or bedding. The defendants were
not shown to have known of a risk to the
plaintiffs health or safety.
The concurring judge says that two
days in a strip cell would likely be
"atypical and significant" under Sandin
ifthere were a state-created liberty interest
at stake.
Procedural Due Process--Disciplinary
Proceedings/Good Time
Gotcher v. Wood, 66 F.3d 1097 (9th
Cir. 1995). A challenge to a disciplinary
proceeding that resulted in a loss of good'
time is not barred by Heck v. Humphrey.
This holding appears to have been
overruled in Edwards v. Balisok.
The plaintiffhas a liberty interest in
good time credits because the relevant
statute creates one. Sandin did away with
the "mandatory language/substantive
predicate" analysis, but preserved the
Woijfholding that an interest of "real
substance" is protected by due process,
and the good time system here is similar
to that in Wolff The fact that state policy
says that it is not intended to create a
liberty interest is not dispositive.
The record is inadequate to determine
whether the plaintiffs disciplinary
segregation deprived him of liberty under
Sandin. The court does not say how long
he was confined.

Spring/Summer 1997
In Forma PauperislPersonal Propertyl
Federal Officials and Prisons
Deutsch v. United States, 67 F.3d
1080 (3d Cir. 1995). A court may dismiss
an in forma pauperis complaint as
frivolous "if, after considering the
contending equities, the court determines
that the claim is: (l) oflittle or no weight.
value, or importance; (2) not worthy of
serious attention: or (3) trivial." The
plaintiffs Federal Tort Claims Act claim
for $4.20 for pens that were taken from
him by prison officials could properly be
dismissed as trivial. However, it was
improper for the district court to rely on
the maxim De minimis non curat lex.
"Triviality" may be found it the record
shows "that a reasonable paying litigant
wduld not have filed the same claim after
cOnsidering the costs of suit." (1089) At
1090: "If, in addition to fmding that the
amount ofdamages in controversy is less
than the court costs and filing fees, the
court is s,atisfied that there is no other
meaningful interest at stake. then the suit
is frivolous within the meaning of §
1915(d)." Id. at n. 11: This inquiry is
restricted to court costs and filing fees and
should not include attorneys' fees and
possible sanctions. At 1090:
We recognize emotions are
intensified in the insular life of
a correctional facility and t~at
prisoners often must rely on the
courts as the only available forum
to redress their grievances, even
when those grievances seem
insignificant to one who is not so
confined. A court must therefore
take into account the unique
nature of each claim presented
and the extent to which the claim
is "meaningful" to one in the
litigant's situation. Hence. iQ
determining whether a claim is
meaningful. a court must protect
the right of indigent persons to
have access to the courts,

THE NATIONAL PRISON PROJECT Journal·· page 16
and Prisons/Sanctions
Sterling v. Wood, 68 F.3d 1124 (8th
Cir. 1995). The plaintiff, a federal
prisoner, was transferred to a Minnesota
state prison and was asked to sign a
transfer agreement including a clause
"Must not become litigious." He then
asked to file a supplemental complaint in
a case against North Dakota officials in
which he complained about actions by the
Minnesota officials. They then transferred
him back to federal custody.
The requirement to "not become
litigious" was not facially invalid. At
1126: "Although the clause could be more
Women/Staffing--SexlRights of Staff
precise, we read it as nothing more than
Tharp v. Iowa Department of
.a condition that the prisoner cannot harass
Corrections, 68 F.3d 223 (8th Cir. 1995).
prison officials or the courts with frivolous
The district court properly granted
litigation, rather than as a prohibition
summary judgment to the defendants in
against even a single meritorious lawsuit.
a Title VII suit by male prison employees
This condition is similarto restrictions this
who objected to a policy that restricted
court has placed on litigious prisoners in
posts in the women's unit to women
the past." (Of course, those prisoners had
employees. The policy addresses imnate
a
record of large amounts of frivolous
privacy concerns, improves rehabilitative
litigation.) The "litigious" clause is a
services to women prisoners, and advances
reasonable cost control method for state
the interests of female employees while
officials who accept federal prisoners,
only imposing minimal restrictions
especially
since the only sanction is
(occasional denial of preferred shifts or
returning the prisoner to federal custody.
posts) to male employees.
The plaintiff's return to federal custody
. was not in retaliation for exercising
Habeas Corpus
constitutional rights. The court fmds that
Littles v. Board of Pardons cmd
the claim he asserted was frivolous, since
Paroles Division, 68 F.3d 122 (5th Cir.
it did not state a constitutional claim.
1995). The plaintiffs claim that he did
The bottom line: a prisoner can be
not receive a statement of reasons for his
transferred under such a clause based on
parole revocation is barred under Heck v.
a single instance oflitigation that a court
Humphrey because he did not allege that
fmds frivolous.
the decision had been reversed, expunged,
set aside, or called into question. This
Appeal
cursory per curiam holding appears to
Koch v. Ricketts, 68 F.3d 1191 (9th
contradict Orellana v. Kyle, 65 F.3d 29
Cir. 1995). The plaintiff sent his notice
(5th Cir. 1995), which reiterates the Fifth
of appeal by regular mail rather than by
Circuit rule that challenges to parole
registered. certified or insured mail. As
procedures thatdo not automatically entitle
a result, there was no record of the date
the petitioner to release are not subject to
ofmailing. The district court held that this
the Heck rule.
made the plaintiff ineligible for the
application
of the Houston v. Lack rule
Access to Courts--Punishment and
that a prisoner's notice is deemed filed
RetaliationffransferslFederalOfficials
Procedural Due Process--Disciplinary
ProceedingslHabeas Corpus
Armento-Beyv. Harper, 68 F.3d215
(8th Cir. 1995). A plaintiff who sought
damages for a defective disciplinary
proceeding, and not restoration of good
time, was not subject to the Heck rule and
did not have to show that his disciplinary
conviction had been reversed. At 216:
"... [T]he Heck court explicitly stated that
Wolffclaims do not 'call into question the
lawfulness of the plaintiffs continuing
confmement'... "

Spring/Summer 1997
when delivered to prison authorities
However, the amendment to Rule 4.
Fed.RCiv.P., to incorporate the Houston
rule did not make such a distinction: it
refers only to "the institution's internal mail
system." Nor did Houston itself include
a requirement that die prisoner use a
mailing system that created a record. This
holding appears to overrule the prior
decision in Miller v. Sumner, but the court
is not explicit.
The plaintiffs affidavit of mailing.
corroborated by another prisoner who had
helped him prepare his notice of appeal.
was sufficient to put the burden of
producing evidence ofdate of mailing on
the defendants.
Protection
from
Inmate
Assault/Personal Involvement and
Supervisory
Liability/Evidentiary
Questions
Taylor v. Michigan Dept. of
Corrections. 69 F.3d 76 (6th Cir. 1995).
The young, small, mentally retarded
plaintiff was transferred to a camp with
dormitory-style barracks. where he was
raped. The appeals court previously held
in an unpublished opinion that even absent
precedent that "it was unlawful to transfer
small, vulnerable-looking prisoners to
unstructured
prison. camps, the
unlawfulness of such an action was
apparent in light of pre-existing
precedent." (78)
The plaintiff raised a material issue
of fact as to the warden's responsibility
for reviewing and approving all transfers
from the prison, "and it was his
responsibility to implement procedures
thatwouldprotectvulnerable inmates from
dangerous transfers." (80) He knew that
the deputy wardens to whom he delegated
authority were redelegating it to lo\ver
echelon
staff
without
explicit
authorization, he was not sure of the
procedures for approval of transfers. and
he had no review procedures to detenninc
whether his authority was being abused.

THE NATIONAL PRISON PROJECT Journal·· page 17
At 81:

In the instant case Foltz is
charged with abandoning the
specific duties of his position-adopting arid implementing an
operating procedure that would
require a review of the inmate's
files before authorizing the
transfers--in the face of actual
knowledge ofa breakdown in the
proper workings of the
department. A jury could find on
the facts that Foltz personally had
a job to do, and that he did not
do it. A jury could fmd that the
fact that Foltz was under constant
pressure to transfer inmates due
to overcrowding would not
excuse his failure to adopt
reasonable policies to insure that
the transferees were not placed
in grave danger of rape....
The lack ofpersonal knowledge ofthe
plaintiffs particular vulnerability is no
defense. At 81: Under Farmer, the
question is "whether he had knowledge
about the substantial risk of serious harm
to a particular class of persons, not
whether he knew who the particular victim
turned out to' be." The defendant testified
20 years ago in a criminal case that small,
youthful prisoners are especially
vulnerable to sexual pressure.
As to the risk of rape at the camp, the
district court appointed an expert to testify
on the subject but granted summary
judgment before receiving his report. The
expert must be given an opportunity to
investigate and report. Even without the
report, there is a material question offact.
At 83: "A review of the record reveals a
prison system in crisis." There was
evidence ofa pervasive problem ofsexual
abuse in the Michigan prisons. and the
warden knew about the more open, less
structured conditions in the camps, which
created an "inherently greater" risk. The
obviousness of a risk can be a basis for
inferring knowledge.

Spring/Summer 1997

Pre-Trial
Detainees!Staffing--Sexi
some unwelcome conditions. " (150) (This
Searches
--DetaineeslNegligence,
is dictum, since this case is about damages
only.)
Deliberate Indifference and Intent
Johnson v. Phelan, 69 F.3d 144 (7th
Judge Posner dissents eloquently. At
Cir. 1995). The plaintiff objected to
152: "We must not exaggerate the
female guards' observation of detainees
distance between 'us,' the lawful ones, the
while they (the detainees) were naked. At
respectable ones, and the prison and jail
145: "Observation is a form of search,
population; for such exaggeration will
and the initial question therefore is whether
make it too easy for us to deny that
monitoring is 'unreasonable' under the
population the rudiments of humane
fourth amendment." Judge Easterbrook
consideration. "
He also disputes
then says that prisoners have no Fourth
Easterbrook's argument on intent: "The
Amendment rights under Hudson v.
motives of prison officials and guards are
Palmer. (This is wrong. Hudson says that
in fact irrelevant.
The relevant
convicted prisoners have no privacy rights
deliberateness is the deliberate adoption
in their cells; it does not say they have no
of a measure that constitutes cruel and
.. privacy rights in their persons, and this
unusual punishment."
opinion ignores the large amount of
authority that says they do.) The fact that
Religion-Practices--Beards,Hair,Dress
Hicks v. Garner, 69 F.3d 22 (5th Cir.
the case is brought under the Due Process
1995). . The Rastafarian plaintiff
Clause and not the Fourth Amendment
challenged grooming regulations that
does not matter; substantive due process
prohibit 'long hair and beards. He
does not trump the Fourth Amendment.
The court raises the Title VII rights of
conceded that the defendants had
legitimate security interests but said an
staff, notes that it has previously upheld
prison officials' prohibition on crossexception should be made because he is
gender supervision against a Title VII
in administrative segregation and has no
desire to leave.
attack, 'and says that in either case courts
The plaintiffs First Amendment claim
should defer to prison officials.
was properly dismissed as frivolous
The court acknowledges Hudson v.
because the defendants' security interests
Palmer's statement that calculated
'were applicable despite his segregated
harassment unrelated to prison needs can
confmement.
violate the Eighth Amendment, and states
that prior law on prisoners' privacy should
be viewed as Eighth Amendment law. In
Procedural Due Process--Property!
Publications! Qualified Immunity
the absence of allegations of particular
AI-Ra'idv. Ingle, 69 F.3d28 (5th Cir.
susceptibility on the part of the plaintiff
1995).
The plaintiff submitted Shi'ite
or a design to inflict psychological injury.
Muslim materials for photocopying; they
At 148: "How odd it would be to find
in the eighth amendment a right not to be . were not returned. The plaintiff had no
procedural due process claim. since the
seen by the other sex. Physicians and
defendants provided adequate postnurses of one sex routinely examine the
conviction remedies through the grievance
other. In exotic places such as California
procedure, and he did not allege that the
people regularly sit in saunas and hot tubs
prison censorship procedures are invalid.
with unclothed strangers." (148)
The defendants were entitled to
The mental state requirement of the
qualified immunity on the plaintiffs
Eighth Amendment applies to systemic
religiousdiscriminationclaimbecausetheir
conditions which affect all prisoners, even
actions were based on the material's
though the result may be to "perpetuate

THE NATIONAL PRISON PROJECT Journal·· page 18
"highly inflammatory and divisive
character." A defendant said that it
"promoted violence and denounced
Christianity as Satanism." (There is no
indication that the court actually reviewed
the material.) Prison rules said that "no
one shall disparage the religious beliefs
of any inmate, or other person," and that
regulation supported the claim ofqualified
immunity.
Grievances and Complaints about
Prison! Transfers/Procedural Due
Process--Disciplinary Proceedings
/Damages--Punitive,
Intangible
Injuries/Attorneys' Fees
Cornell v. Woods, 69 F.3d 1383 (8th
Cir. 1995). Internal affairs officers
interviewed the plaintiff about a staff
violation of the rule forbidding
transactions between prison employees
and prisoners (he had contracted with the
officer to construct a fence around his
wife's house). He was promised freedom
from retaliation. A month later, after the
officer had been forced to resign, the
plaintiffwas disciplined and transferred.
At 1388:
We fmd that the right to
respond to a prison investigator's
inquiries is not inconsistent with
a person's status as a prisoner or
with the legitimate penological
objectives of the correction
system. To the contrary, we
agree with the district court that
truthfully answering questions
concerning
a
misconduct
investigation
against
a
correctional
officer
is
"undoubtedly quite consistent
with legitimate penological
objectives. "
Therefore the plaintiffwas exercising First
Amendment rights.
There was ample evidence of
retaliatory motive for the transfer. There
was also evidence of retaliatory motive
for the discipline. Although the Eighth

Circuit holds that a disciplinary decision
supported by some evidence cannot be
found to be unconstitutional retaliation,
this case is different, since the prisoner
had been promised immunity.
In dictum, the court expresses doubt
that violation of prison disciplinary
regulations would deny due process, citing
Sandin.
Protection from Inmate Assault/Cruel
and Unusual Punishment--Proof of
Harm
Horton v. Cockrell, 70 F.3d 397 (5th
Cir. 1995). At 401:
Thereis no concise definition
ofwhat types ofprison conditions
pose a "substantial risk ofserious
harm" under the Eighth
Amendment.
Instead, we
examine this component of the
test "contextually," making sure
to
be
responsive
to
"contemporary standards of
decency." We must consider
·'whether society considers the
risk ... to be so grave that it
violates contemporary standards
of decency to expose anyone
unwillingly to such a risk." We
also must consider that the Eighth
Amendment is intended to protect
against both present and future
dangers to inmates. Prison
authorities must protect not only
against current threats, but also
must guard against "sufficiently
imminent dangers" that are likely
to cause harm in the "next week
or month or year." [Footnotes
omitted]
Threats of extortion and physical
assault are sufficiently serious to meet this
standard. Although the plaintiff started
one fight, he alleged that he did so in selfdefense because of the prior threats of
assault. Although he was not hurt badly,
he could have been.
The deliberate indifference standard

Spring/Summer 1997
was met, at the initial stage. by allegations
that the plaintiff filed three grievances
about his assailant, made at least one oral
complaint to a guard, and wrote his
counselor, and his assailant allegedly
assaulted other inmates and tried to start
a race riot, all during a two-year period.
The assailant's conduct could show that
he posed an obvious risk even without the
plaintiff's formal complaints.
Transfers/Procedural Due Process-Property/Work Assignments/Personal
Property
Jennings v. Lombardi, 70 F.3d 994
(8th Cir. 1995). The plaintiff, a Missouri
prisoner, was transferred to Arkansas
under the Interstate Corrections Compact
at his own request because he is a former
Missouri corrections officer. In Arkansas,
prisoners are required to work but are not
paid for it; instead they receive good time.
In Missouri, prisoners are paid for
working, and under the ICC's enabling
statute, Missouri prisoners retain the rights
they would have had if incarcerated in
Missouri.
The Interstate Corrections Compact
is not federal law, so the plaintiff must
show that he has a property interest in his
wages to prevail under § 1983. He has
no property interest because Missouri law
does not create a property interest in prison
wages and that law; in combination with
the Compact, does not show an intent to
create a property interest in wages for
prisoners held out of state.
Hazardous
Conditions
and
Substances/Negligence, Deliberate
Indifference and Intent
Wallis v. Baldwin, 70 F.3d 1074 (9th
Cir. 1995). The plaintiff was required to
clean an asbestos-laden area without
protective gear except for an inadequate
face mask. At 1076:
It is uncontroverted that
asbestos poses a serious risk to
human health. See, e.g., 20

THE NATIONAL PRISON PROJECT Journal .. page 19
U.S.c. §§3601(a)(3),4011(a)(3)
(notingthe Congressional finding
that medical science has not
established any minimum level
of exposure to asbestos
considered safe). Wallis' medical
expert declared that forty-five
hours of unprotected exposure
to asbestos is medically serious.
Evidence that the defendants knew
ofthe existence and dangers posed by the
asbestos, consistingofan inspectionreport
from ayear earlier, an order from the state
fire marshal to remove it, etc., established
deliberate indifference. It was not enough
to claim they didn't know the asbestos was
there; the information available to them
created a duty to inspect before sending
work crews there.
Searches-Person-ConvictslDeference

they were entitled to qualified immunity
because they provided some protective
clothing and there was nothing in the
record to show that the employees acted
in "bad faith." They thought coveralls
weren't necessary because they had already
partially cleaned out the area by machine.
Procedural
Due
Process-Administrative Segregation

Luken v. Scott, 71 FJd 192 (5th Cir.
1995). The plaintiff was placed in
administrative segregation because of
alleged gang membership. Placement in
segregation, without more, does not
constitute a deprivation ofliberty for due
process purposes. The opportunity to earn
good time credits (unlike loss ofgood time
credits already accrued) is not a liberty
interest because its effect on release date
is "speculative" and "collateral." The
plaintiff was not denied due process
anyway, since he got a hearing within ten
days and his status is reviewed eveI)' 90
days.

Hayesv.Marriott, 70FJd 1144(lOth
Cir. 1995). The plaintiff alleged that he
was subjected to a body cavity search in
the presence of about 100 witnesses,
including female correctional officers as
well as other"nonessentialpersonnel" such
Searches-Person-ConvictsJUrinalysis/
Qualified Immunity
as case managers or secretaries. The
Sparks v. Stutler; 71 F.3d 259 (7th
district court erred in holding that a single
Cir.
1995). The plaintiff was asked for
such search cannot violate the Fourth
a urine sample after a syringe was found
Amendment. Statements by a prison
in his shoe. He said he could not provide
official that eveI)' effort was made to
minimize the number of female staff . one. He was catheterized in the infirmary
and his bladder was found to be empty.
present do not entitle the defendants to
A urine sample taken later tested positive
summary judgment, since (a) they are
for drugs. The district court awarded
unsworn, and (b) there is no explanation
$5,000 in damages for violation of the
of which female staff members were
Fourth Amendment.
allowed to view the search and why it was
Generally, . prison searches are
necessary, or as to the location of the
evaluated under the Eighth Amendment,
search and the necessity of conducting it
which requires a subjective component;
there.
the district judge's finding that the search
was "egregious" does not meet that
Hazardous Conditions and Substances
requirement. Judge Easterbrook concedes
Goodv. Olk-Long, 71 F.3d314 (8th
that prisoners have some rights under the
Cir. 1995). The plaintiffs were required
Fourth Amendment, which requires only
La clean up raw sewage without adequate
protect-ive clothing. The employees
an objective showing ofunreasonableness.
Introducing drugs or biological materials
lUvolved were disciplined for failure to
into prisoners might violate the Fourth
Drovide the proper clothing. However,

Spring/Summer 1997
Amendment, since Vitek v. Jones says it
violates the Due Process Clause.
Thedefendants areentitledto qualified
immunity. This search could be analogized
either to body cavity searches or to taking
of blood samples, both of which are
constitutional, or to surgeI)', which is not
constitutional for the purpose ofextracting
unimportant evidence. At 261: "... [I]f
doctors must reach their own conclusions
aboutreasonableness, then the lackofclear
substantive rules precludes an award of
damages." Id.: "The existence of such
line-drawing problems calls for immunity:
the rule should be established
prospectively rather than at the expense
of public employees who· predict the
development of the law incorrectly." Of
course, Judge Easterbrook does not go on
to establish the rule prospectively.
Religion-Practices--Names/Qualified
Immunity/Notarial Services

Malik v, Brown, 71 F.3d 724 (9th Cir.
1995). Prisoners have a First Amendment
interest in using their religious' names, at
least in conjunction with their committed
names. Prisoners cannot compel prisons
to reorganize their filing systems tb reflect
the new names. In states where there is
a legal name change process, prisons are
generallyrequired to recognize onlylegally
changed names. This right is clearly
established; the results did -not change
when the Turner standard displaced the
Procunier standard. Allowing a prisoner
to use his religious name next to his
committed name on outgoing mail is an
obvious, easy accommodation under
Turner.
At 729-30: "Because the issue of
religious name changes has been litigated
extensively and courts have consistently
recognized an inmate's First Amendment
interest in using his new, legal name (at
least in conjunction with his committed
name), we find that the law was clearly
established in the absence ofbinding Ninth
Circuit precedent." A reasonable officer

THE NATIONAL PRISON PROJECT Journal·· page 20
Williamsv.Ramos, 71 F.3d 1246 (7th
Cir. 1995). The plaintiff was kept in
segregation for 19 days after his
disciplinary sentence had expired. If he
was in administrative segregation or there
voluntarily, he was not deprived ofliberty.
Even if he was considered to be in
disciplinary segregation, he had not been
deprived of liberty under Sandin,
notwithstanding a regulation that limits
punishment for his disciplinary offense
Searches--Person--Visitors
Spearv. Sowders, 71 F.3d 626 (6th
to 15 days in segregation. The court
dismisses the difference between
Cir. 1995) (en banc). Searches of prison
segregation and general population
visitors require a showing of reasonable
conditions and also notes that at one point
suspicion; that requirement was clearly
the plaintiffrefused to transfer out of the
established by 1990.
Reasonable
segregation unit. The court says that
suspicion "requires only specific objective
Sandin relied on three factors: the
facts upon which a prudent official, in light
similarity of disciplinary segregation to
of his experience, would conclude that
otherforrns ofsegregation, the comparison
illicit activity might be in progress."
of segregation to general population, and
(Footnote omitted)
whether the length of the prisoner's
A report that a confidential informant
sentence was affected.
informed a guard that an inmate with an
The failure by protective custody staff
extensive history of drug possession in
to honor a medical certificate stating that
prison was receiving drugs from a ''young
the plaintiff should be in a bottom bunk
unrelated female" established reasonable
did not violate the Eighth Amendment.
suspicionjustifying a strip and body cavity
No bottom bunks were vacant and the
search of the plaintiff, who was the only
defendants refused to move another
young unrelated female who visited the
prisoner; they offered to return him to the
prisoner.
segregation unit.
The plaintiffalleged that she was told
At 1250: "Prison guards' intentional
she would be detained until a warrant was
. obtained if she did not consent to the . interference with a prescribed treatment
may constitute indifference," but since the
search. At 632: "These circumstances,
if proven true, would vitiate her consent . plaintiff was offered the opportunity to
have a lower bunk in segregation, they did
and would amount to a violation of her
notdeprive him ofmedically recommended
constitutional right to be free from being
treatment.
detained absent probable cause." The
court cannot resolve the legality of the
Hygiene!Administrative Segregation/
search of her automobile without further
factual clarification (e.g., whether there
DisabledlMentalHealthCare!Crueland
Unusual Punishment--Proof of Harm
was a visible sign concerning automobile
Shakkav.Smith, 71 F.3d 162 (4thCir.
searches). Individualized suspicion is not
.
1995).
The plaintiff tore his sink and
necessary for an automobile search.
plumbing off the wall, flooding the floor.
and used a plumbing pipe to break
Procedural . Due Process--Adminiwindows.
A psychologist ordered him
strative Segregation /Procedural Due
placed in another cell without any of his
Process--Disciplinary Proceedings
belongings, including his wheelchair. The
/Medical Care-Denial ofOrdered Care

would not believe it was lawful to punish
an inmate for mailing correspondence with
both names on it.
A notary who refused to notarize a
legal document on which the plaintiffs
signature did not match his prison
identification was entitled to qualified
.. immunity given the state statute
concerning the duties of notaries.
I

Spring/Summer 1997
wheelchair was returned the next day.
During this period, inmates threw feces
and urine into his cell and on him.
Although he was provided with water and
cleaning materials, he was not allowed to
shower.
At 166:
In the context of a
conditions-of-confinementclaUn;'
to demonstrate that a deprivation
is extreme enough to satisfy the
objective component ofan Eighth
Amendment claim, a prisoner
must 'produce evidence of a
serious or significant physical or
emotional injury resulting from
the challenged conditions,' . . . or
demonstrate a substantial risk of
such serious harm resulting from
the prisoner's unwilling exposure
to the challenged conditions....
Compelling a showing of
significant physical or emotional
harm, or a grave risk of such
harm, infuses an element of
objectivity into the analysis, lest
resolution of the seriousness of
a deprivation devolve into an
application of the subjective
views of the judges deciding the
question.
The denial of a wheelchair may
constitute deliberate indifference to serious
medical needs in somecircurnstances; but
not here, where it was undisputed that the
psychologist had it removed for the
protection of the plaintiff and others. The
other defendants lacked the authority to
give it back and if they had might have
been liable for interfering with the
plaintiffs treatment.
The denial of a shower to wash off
other inmates' excrement and urine for
three days was not sufficiently serious to
violate the Eighth Amendment. given the
lack ofevidence of harm and the fact that
he was provided with water and cleaning
materials on request. The court declines
to credit the "obvious" risks of future

THE NATIONAL PRISON PROJECT Journal .. page 21
illness from exposure to human excrement
without proof.
Temporary
ReleaselWork
Assignments! Personal Property
Reimonenq v. Fon, 72 FJd 472 (5th
Cir. 1996). The plaintiff alleged that a
requirement that he contribute ten per cent
of his work-release wages from a private
employer to an "ElderlyNictim
Compensation Fund" violated the Fair
Labor Standards Act.
The court declines to apply the usual
"economic reality" test under the FLSA,
which it finds "unserviceable" in thejailerinmate context. Instead, it holds
categorically that prison custodians are
not employers ofinmates in work-release
programs.
The work-release agreement was not
a contract of adhesion under state law nor
the product ofduress, and the work-release
statute authorized conditioning workrelease participation on the contribution.
Apparentlyno federal constitutionalclaims
were raised in this case.
AIDSlMedical
RecordslHygiene!
Recreation and - Exercise/Qualified
ImmunitylEqual
Protection!
Procedural Due Process
Anderson v. Romero, 72 FJd 518 (7th
Cir. 1995). The HIV-infected plaintiff
alleged that prison officials disclosed his
HIV status and denied him barbering and
yard privileges because of his status.
There is no clearly established right
m the privacy of medical records.
Disclosure of medical information might
violate the Eighth Amendment: "the fact
that the punishment was purely
psychological would not excuse it." (523)
However, such a right was not established
with respect to the acts alleged by the
defendants in 1992. even had it been
established that some medical disclosures
mightbeuncoristitutional. Woodsy. White
does not have precedential value, since it
is a district court decision affirmed without

published opinion. At 525: "... [W]e
hold that warnings to endangered inmates
or staffdo not violate the Constitutionjust
because they are ad hoc" nor because they
violate state law. "Any duty to protect
prisoners from lethal encounters with their
fellows that is derived from the Eighth
Amendment would take precedence over
a state law." ."
At 526:
It is one thing to warn other
prisoners that an inmate is an
HIV carrier; it is another to
"punish" him for being a carrier
by refusing to allow him to get
a haircut or to exercise in the
prison yard. Although this is the
first appellate case in which these
specific modalities of punishing
HIV carriers have been alleged,
it has long been clear that the
Eighth Amendment forbids the
state to punish people for a
physical condition, as distinct
from acts, and that the equal
protection clause forbids the state
to treat one group, including a
group of prison inmates,
arbitrarily worse than another.
If the only reason that the
defendants denied haircuts and
yard privileges to Anderson was
that he was HIV-positive, and
there is. no conceivable
justification for these as AIDSfighting measures. then the
absence of a case involving this
specific form of arbitrary
treatment would not confer
immunity on the defendants. A
constitutional violation that is so
patent that no violator has even
attempted to obtain an appellate
ruling on it can be regarded as
clearly established even in the
absence of precedent.
A state regulation providing that all
prisons "shall provide every committed
person with access to ... barber facilities"

Spri ng/Summer 1997
is sufficient to create an entitlement. At
527: "There is no novelty to this claim
... and therefore no basis for a defense
ofimmunity." However,Sandinv. Conner
will have to be considered on remand.
At 527:
. . . To deny a prisoner all
opportunities for exercise outside
his cell would, the cases suggest,
violate the Eighth Amendment
unless the prisoner posed an acute
security risk if allowed out ofhis
cell for even a short time. . ..
. Prisoners are entitled to
reasonable medical care, and
exercise is now regarded in many
quarters as an indispensable
component
of preventive
medicine. But cases that purport
to recognize a right to outdoor
exercise . . . involve special
circumstances, such as that the
prisoners were confmed to their
cells almost 24 hours a day and
were Rot offered alternative
indoor exercise facilities, ... or
the only alternative offered to the
.prisoners was exercise in the
corridor outside their cells rather
than in an indoor exercise facility
and the lack of outdoor exercise
was merely one of a number of
circumstances that in the
aggregate
constituted the
infliction of cruel and unusual
Wilkerson v.
punishment.
Maggio . .. held that an hour a
day of indoor exercise satisfied
the constitutional minimum.
Transportation to Courts
SampLeyv. Duckworth. 72 F.3d 528
(7th Cir. 1995). District courts lack
authority to impose on the losing plaintiff
the costs to a third party (the state
Department of Corrections) of a writ of
habeas corpus ad testificandum. The
court distinguishes prior authority
imposing such costs because it assumed

THE NATIONAL PRISON PROJECT Journal -- page 22
that the individual defendants--rather than
a third-party agency--had paid for the
transportation.
Religion-Practices/Qualifiedlmmunity
Hayes v. Long, 72 F.3d 70 (8th Cir.
1995). Muslim inmates had a clearly
established right not to handle pork in
1992, based on a district court decision
that they have a right not to be exposed
to food that has been in contact with pork
or pork products. The result might be
different if the defendants had shown that
making the plaintiff handle pork met the
Turner test, but they didn't try.
Searches-~Person, Living Quarters/

Qualified Immunity
Harding v. Vilmer, 72 F.3d 91 (8th
Cir. 1995). The plaintiff alleged that he
was subjected to retaliatory strip and cell
searches in violation of the Eighth
Amendment. It was clearly established
that such searches could violate the Eighth
Amendment. Given the factual disputes
about the searches, there is no appellate
jurisdiction over the defendant's qualified
immunity appeal.
Service of ProcesslProcedural Due
Process/Access to Courts
UnitedStatesv. $184,505.01 in US
Currency, 72 F.3d 1160 (3d Cir. 1995).
Service by the government of a notice of
civil forfeiture proceedings at the address
of the seizure, rather than in prison where
the government knew the claimant to be
incarcerated, denied due process. Service
in prison of a notice of the earlier
administrative proceedings did not provide
notice of the judicial proceedings. Service
on the criminal defense attorney did not
constitute adequate notice, since the
attorney did n.ot at that point represent the
claimant in the forfeiture proceedings.
Habeas Corpus/State-Federal Comity
Simpson v. Rowan, 73 FJd 134 (7th
Cir. 1995). The plaintiff sued for

damages, alleging an unconstitutional
arrest and search and seizure in connection
with his criminal prosecution. These
claims are not barred by Heck because
neither, if successful, would necessarily
undermine the validity of the plaintiffs
conviction.
However, the Younger
abstention doctrine bars the federal court
from going forward until the state
prosecution (now on appeal) is completed,
since the issues in the federal suit might
also be adjudicated in the state proceeding.
The damage claims should therefore be
stayed.
Use of ForcelPro Se Litigation
Eason v. Holt, 73 FJd 600 (5th Cir.
1996). The plaintiff alleged that he was
thrown to the ground, handcuffed, and
kicked byprison staffwithout provocation.
After a Spears hearing, the magistrate
judge dismissed on the ground that he
alleged no injury, or alternatively that the
injury he all~ged was de minimis.
The court improperly ignored the
plaintiffs testimony concerning his
injuries; once a Spears hearing is held, the
testimony elicited becomes "part of the
total filing" and should be 'considered on
a motion to dismiss, even when an
amended complaint has been subsequently
filed.
The alternative gr<;>und, that the injury
was de minimis, is inconsistent with the
allegations in the complaint.
Procedural
Due
Process-Administrative Segregation
Pichardo v. Kinker, 73 FJd 612 (5th
Cir. 1996). Under Sandin, administrative
segregation, without more, does not
constitute a deprivation of a liberty
interest.
Procedural Due Process--Temporary
Release/Ex Post Facto Laws
.
Dominiquev. Weld, 73 FJd 1156(lst
Cir. 1996). The plaintifIhad participated
in work release for almost four years and

Spring/Summer 1997
was permitted to open his own vehicle
repair business. His work release was
revoked "because he remains in denial of
his crime" and had too little accountability
at his repair business. The revocation
followed a highly publicized event
involving another inmate. He is ineligible
to be returned to work release because of
new regulations about sex offenders.
Under Sandin, the plaintiff had no
liberty interest in staying on work release.
It did not affect the duration of his
sentence, and his transfer to a more secure
facility subjected him to conditions "no
differentfrom those ordinarily experienced
by large numbers ofother inmates serving
their sentences in customary fashion."
(1160) Thus, the deprivation did not meet
the "threshold test" of Sandin. The
existenceofa temporary release agreement
does not alter this analysis.
New temporary release regulations
barring sex offenders from work release
until they successfully completed a
treatment program, admitted their offense,
etc., did not violate the Ex Post Facto
Clause. Under Morales, "this change in
the conditions determining the nature of
[the plaintiff's] confinement while serving
his sentence was an allowed alteration in
the prevailing 'legal regime' rather than
an 'increased penalty' for ex post facto
.
purposes." (1163)"
Federal Officials and PrisonslLaw
Libraries and Law Books
UnitedStatesv. Sarno, 73 FJd 1470
(9th Cir. 1995). At 1491: "[T]he Sixth
Amendment demands that a pro se
defendant who is incarcerated be afforded
reasonable access to 'law books, witnesses,
or other tools to prepare a defense. III
(Citations omitted) This right must be
balanced against legitimate security
concerns and resource constraints. This
defendant, who is a law school graduate.
received 120-140 hours in the law library
before trial and about five hours a week
during the trial. He also had an attorney

THE NATIONAL PRISON PROJECT Journal·. page 23
appointed to assist him. His access was
adequate. The five hours a week duiing
trial was justified by resource constraints.
The defendant was not denied access
to witnesses, since they could visit him
on 48 hours' notice and the provision of
minimal personal information, and
approval was given, and since he had
access to unmonitored telephone calls and
had access to his co-defendant at pretrial
hearings and during trial. His inability to
use the telephone during trial (since he was
at court during the hours it was available)
was remedied by letting him use the
courthouse phone at lunch.
Correspondence--Legal and OfficiaV
Correspondence-Non-LegallInForma
Pauperis
Treffv. Galetka, 74 F.3d 191 (lOth
Cir. 1996). The plaintiffclaimed that the
mail room supervisor interfered with his
incoming and outgoing mail, legal and
otherwise. His court access rights were
not violated because in one case the court
accepted his filing that was allegedly late
because of defendants' actions," and in
another case, it was the court's decision
and not the defendants' not to consider it.
At 195: "A refusal to process any mail
from a prisoner impermissibly interferes
with the addressee's First and Fourteenth
Amendment rights." This right is clearly
established.
The costs of service were properly
imposed against an IFP litigant whose
financial status improvedduring the course
of the litigation.
Pre- Trial
Detainees/Habeas
Corpus/Length of Stay
Hamilton v. Lyons, 74 F.3d 99 (5th
Cir. 1996). The plaintiff alleged that an
investigator told him that he would not be
transferred out. of a lousy county jail to
a better one until he gave a statement.
While this allegation might support a Fifth
Amendment claim, it would imply the
invalidity of his subsequent convictions

and sentences and is barred by Heck.
A parolee arrested on a new charge
is not entitled to the benefit of the part of
the Wolfish "punishment" standard that
permits inference of punitive intent from
the lack of a reasonable relationship to
legitimate governmental interests. Rather,
the parolee must prove expressed intent
to punish for the new charge.
Thecourtdoes not remandfor findings
because the alleged three-day denial of
visiting, telephone access, recreation, mail,
legal materials, sheets and showers was
de minimis.
Suicide
PreventionINegligence,
Deliberate Indifference and IntentIPreTrial Detainees
Hare v. City o/Corinth, Miss., 74
FJd 633 (5th Cir. 1996) (en banc). Pretrial detainee suicide cases should be
decided under the same subjective
definition ofdeliberate indifference" used
under the Eighth Amendment. This
conclusion applies both to medical care
and failure to protect claims. At 643:
... [T]he Bell test retains vitality
only when a pretrial detainee
attacks general conditions,
practices, rules, or restrictions of
pretrial confinement. When, by
contrast, a pretrial detainee's
claim is based on a jail official's
episodic acts or omissions, the
Bell test is inapplicable, and
hence the proper inquiry is
whether the official had a
culpable state of mind in acting
or failing to act.
Deliberate indifference is the measure of
culpability for all such episodic acts or
omissions. This doesn't really change the
law, because "a proper application ofBelfs
reasonable relationship test is'fimctionally
equivalent to a deliberate indiffere~ce
inquiry." There is no constitutionally
significant difference between the rights
ofdetainees and convicts to basic human
needs. so the claims of both groups are

Spri ng/Summer 1997
governed by the subjective deliberate
indifference standard. The court justifies
this conclusion by noting that both the
EighthAmendment deliberate indifference
standard and the due process right of
detainees turn on the presence or absence
of "punishment."
To invoke the Bell test, a det~inee
must show that the challenged act or
omission "implement[s] a rule or
restriction or otherwise demonstrate[s] the
existence of an identifiable intended
condition or practice." Otherwise, the
detainee must show that acts or omissions
"were sufficiently extended or pervasive,
or otherwise typical of extended" or
pervasive misconduct by other officials,
to prove an intended condition or practice
to which the Bell test can be meaningfully
applied." (645)
At 645-46: "Formulating a gossamer
standard higher than gross negligence but
lowerthandeliberate indifferenceis unwise
because it' would demand distinctions so
fme as to be meaningless. "
Only one of 17 judges objects to this
conclusion.
Religion--Practices--Beards, Hair,
DresslReligion--Services
Within
Institution
Hamilton v. Schriro, 74 F.3d 1545
"(8th Cir. 1996). The plaintiffs claim
based on religious rights "encompasses
two separate theories: (l) deprivation of
his constitutionally protected First
Amendment right to the free exercise of
his religion; and (2) deprivation of his
statutorily protected right, under RFRA,
to the free exercise of his religion."
The Native American plaintiff
challenged the prison's hair length
regulations and sweat lodge ceremonies.
The plaintiffs First Amendmentclaimfails
under the Turner test. His RFRA claim
fails too.

THE NATIONAL PRISON PROJECT Journal.· page 24
DisabledlProcedural Due Process-Administrative SegregationlMedical
of
Liability-Care--Standards
Deliberate
IndifferencelFederal
Officials and Prisons
Crowderv. True, 74 F.3d 812 (7th
Cir. 1996). Under Sandin, federal prison
regulations do not create a liberty interest
in staying out of administrative
segregation.
Allegations that the paraplegic
plaintiffwas deniedhis wheelchairbecause
it did not fit through the cell doors, denied
physical therapy, and deprived ofexercise,
recreation, hygienic care, and medical care
do not raise an inference of deliberate
indifference to serious medical needs.

District Court Cases
Religion--Practices--Beards, Hair,
DresslReligious Diets
Luckettev. Lewis, 883 F.Supp. 471
(D. Ariz. 1995). The plaintiff is an
"AmbassadorlPriest" of the Freedom
ChurchofRevelationwho complained that
prison rules prevented him from following
various tenets of his faith: maintaining a
Kosherdiet, maintaining a "vow ofpoverty
contract," not cuttinghis hair or beard, and
covering his h~ad with something red,
white, and/or black.
The Freedom Church of Revelation
is a legitimate religion and the plaintiff
is a sincere adherent of it. The court
rejects the"defendants' claim that it is an
"identity" religion, i.e., one which
advocates violence against other religious
or ethnic groups, since the religion
disavows such violence and the defendant
did not present any evidence to the
contrary.
Federal Officials and Prisons/Habeas
Corpus
Zolicoffer v. Federal Bureau of
Investigation, 884 F.Supp. 173 (M.D.Pa.
1995). Federal prisoners, like state
prisoners, are subject to the rule of Heck

Spring/Summer 1997

v. Humphrey that they must get their
premature, since they have not yet
convictions overturned before they can . interfered with any injunction.
pursue civil actions that would if
successful imply that the convictions were
Religion--Services within Institution!
invalid.
Religion--OutsideOrganizationslEquaJ
Protection/Negligence,
Deliberate
Corresponden~Grievances/Accessto
Indifference and Intent
Courts--Punishment and Retaliation!
Shaheedv. Winston, 885 F.Supp. 861
Injunctive Relief/Damages--Punitive,
(E.D.Va. 1995). The requirement that
Conditions of Confinement
Nation ofIslam members sign up before
Sisneros v. Nix, 884 F.Supp. 1313
attending Sunday services, cutting short
(S.D.Iowa 1995). A state regulation
their services, and limiting the minister's
barring delivery of letters in a foreign
access to inmates outside the visiting area
language unless it is the prisoner's only
did not violate the First Amendment
language was not unconstitutional under
because they were reasonably related to
the Turner test as applied to a prisoner
maintaining order and adhere to schedules
who spoke English but wished to
for feeding and moving inmates in a
correspond with relatives who did not.
crowded jail. The prisoners had a
The prisoner had alternatives; he could
reasonable opportunity to worship, and
write in English arid his relatives could get
the defendants had enacted some reforms
the letters translated. There is no obvious,
on a trial basis.
easy alternative, since translators cost
The defendants' negligent failure to
money.
accommodate Ramadan observances in
Theplaintiffhadbeentransferredfrom
1993 did not violate the Constitution: the
Arizona to Iowa; he was transferred back
word "prohibiting" in the Free Exercise
when he filed a grievance and a lawsuit
Clause suggests a conscious act and not
about the language policy. The transfer
negligence.
constituted retaliation in violation of his
The plaintiffs' equal protection claim
. FirstAmendmentrights. The warden said:
fails in the absence of evidence of
"Filingagrievance is not being ungracious, . discriminatory intent. Much of the
it is just being totally obnoxious." (1335)
difference arose because of the different
The defendants are not entitled to qualified
numbers ofChristians and Nation of lsi am
immunity.
adherents. The court does not fmd an
Th~ plaintiff is awarded lost wages
equal protection violation in the "Nurture
plus damages of $5000 (about $10.50 a
Tier"--sometimes known as the "Christian
day) as compensation for the more
Tier"--which required Bible study as part
restrictive conditions he experienced after
of the routine and to which the chaplain
his transfer to Arizona, where he was kept
mostly controlled admission. (Apparently
in protective custody. The award reflects
no EstablishmentClauseclaimwas raised.)
loss ofout-of-cell time, loss ofyard and
exercise opportunities, and loss of access
Evidentiary Questions
to communal activities. Punitive damages
Hodges v. Keane, 886 F.Supp. 352
of $1000 against each defendant are. (S.D.N. Y. 1995). The plaintiff alleged
awarded.
that he was subjected to harassment,
The court enjoins the Iowa defendants
intimidation and retaliation based on his
to use all available efforts to get the
challenges to prison procedures; the
plaintiff transferred back to Iowa. While
defendants alleged that he was mentally
it might be necessary to enjoin Arizona
ill. The court granted a motion for a
officials at some point, the question is
mental examination by defendants' expert.

THE NATIONAL PRISON PROJECT Journal·· page 25
The court now grants the plaintiffs'
motion in limine to bar the results, which
state him to suffer from "Anti-Social
Personality Disorder." His records show
that by 1982 he was free of psychiatric
symptoms, his claim arose five years later,
and the trial will be held 13 years later.
Therefore this evidence is too remote to
be relevant to credibility.
The court also questions how much
of the psychiatric record is admissible
under the exception for medical records,
since some of the material was generated,
e.g., for the Parole Board.
Even if the records were admissible,
they would be unfairly prejudicial.
The records also are so voluminous
and contain so 'many contradictory and
inconsistent diagnoses by over a dozen
practitioners that they would consume an
inordinate amount of a jury's time at the
expense of the events the case is about.
The expert assessment ofthe plaintiff
is also excluded because It largely relies
on "highly prejudicial and suspect
records. "
This decision is subject to reevaluation after the plaintiff testifies.
Procedural Due Process--Disciplinary
Proceedings
McGuinness v. DuBois, 887 F.Supp.
20 (D.Mass. 1995). The denial of
witnesses at a disciplinary hearing was
improperly based on a policy of denying
all requests by segregation inmates for
general population inmates as witnesses.
At 22: "There must be some case-specific
determination supporting the hearing
officer's decisions regarding the denial of
witnesses, rather than rote applications
of a blanket general policy."
UseofforceJPendentand Supplemental
Claims; State Law in Federal Courts/
Evidentiary
. Questions/Qualified
Immunity/ Special Verdicts and Jury
Instructions
Hynes v. LaBoy, 887 F.Supp. 618
(S.D.N. Y. 1995). In a use of force case

involving two incidents, the plaintiff was
awarded $1250 against two officers for
one incident; the jury found for the
defendants and one officer was awarded
$1500 on his battery counterclaim for the
other.
Both verdicts are supported by the
evidence, as are both damage awards. The
plaintiff sustained two cuts and a black
eye. The officer sustained a kick to the
testicles.
The
court
rejects
alleged
inconsistencies in special verdicts and a
claim that the award was a compromise.
The plaintiffs conviction for murder
was properly excluded, since his violent
conduct under other circumstances was
only marginally relevant. His violent
disciplinary record was admitted, but other
disciplinary convictions for verbal
harassment, threats, weapons possession,
etc., were properly excluded.
The
defendants'
workers'
compensation forms and prior use offorce
forms were properly admitted, with the
plaintiffs discipiinary record, under the
Second Circuit's "inclusionary" approach.
They were also proper bases of crossexamination concerning the defendants'
testimony concerning their use of force
history.
The jury was asked whether the force
that each officer used was that which a
reasonable officer would have used under
the circumstances. This adequately put
to the jury the question whether it was
objectively reasonable for the officers to
believe that their actions were lawful,
which is the qualified immunity standard
at the trial stage. (They were separately
asked whether the defendants had acted
maliciously and sadisticaIly.)
The special verdict form is attached
as an appendix.
Procedural Due Process--Disciplinary
Procedures/Grievances/Sanctions/Pro .
Se Litigation
Brown v. Carpenter, 889 F.Supp.

Spring/Summer 1997
1028 (W.D.Tenn. 1995). The plaintiff
was convicted ofdisrespect and placed in
segregation for ten days for bringing a
grievancewithout anyproofofwrongdoing
against the accused staff member.
Chargingaprisonerwith adisciplinary
offense violates no rights: if Wolff
procedures are followed, due process is
not violated. There was some evidence
ofdisrespect, since the accusations "were
without basis and represented a direct
challenge to the authority of the prison
administration." (He accused the officer
of mishandling food, sexual harassment,
and smuggling cocaine.) The plaintiff (at
1033)
has no right to function as a
prison ombudsman, general
He
advocate, or agitator.
.certallIy has no right to abuse the
TDDC grievance system by
making totally unfounded attacks
on prison officials. An inmate
who uses that grievance system
in that way may certainly be cited
for disrespect.
Reasonable
limitations on the use of a prison
grievance. system and rules
requiring inmates to display
respect for staff members in the
use of that system are clearly
related to the core function of
maintaining security in the prison,
and such rules may· be enforced
by prison officials.
The fact that one of the disciplinary
board members worked under the
superviSIOn of the staff member
complained about does not impair the
impartiality of the Board.
A claim of retaliation must be
analyzed as a question of substantive due
process, and "the prison official's conduct
must transcend all bounds of reasonable
conduct and shock the conscience." (1034)
The plaintiff aIleged no chronology from
which retaliation could plausibly be
inferred, and defendants' actions were
permissible anyway.

THE NATIONAL PRISON PROJECT Journal .. page 26
The plaintiff is also ordered to use the
court's fonns for any future complaints,
not to type them in italics or Old English
type, and not to include briefs or cite cases
in them, or file motions, briefs, affidavits,
etc., until the court grants pennission after
the complaint is filed. No new complaints
from him are to be filed by the clerk
without an order from a district judge.
Administrative Segregation/Personal
PropertyNisiting/
Heating
and
Ventilation/Food/Sanitation/Pest
Control

Robinson v.
Illinois State
Correctional Center (Stateville), 890
F.Supp. 715 (N.D. ill. 1995). The plaintiff
was assigned to segregation for a year.
Restrictions onthetypeofcommissary
items that segregation inmates may
purchase does not deny due process or
equal protection or violate the Eighth
Amendment.
A reduction ofvisiting rights from two
hours to one hour for segregation inmates
does not violate the Constitution.
Claims of inadequate heating and
cooling, coupled with allegations that the
plaintiff infonned the defendants, state
an Eighth Amendment claim.
At 720:
Plaintiff also bemoans the
. unsanitary conditions ofthe toilet
area, the existence ofroaches and
bed bugs, and the lack of weekly
bedding supplies. . .. Although
unpleasant, the conditions
plaintiff complains of do not in
themselves rise to the level of a
constitutional violation. . . .
Moreover, Robinson's failure to
allege that he suffered any injury
because of these conditions
defeats any contention of their
objective severity.
An allegation of unsanitary food
preparation conditions does not state an
Eighth Amendment claim without an
explanation of how they present an

immediate danger.
Religion-Services Within Institution!
Protective CustodylPublications/State
Officials and AgencieslRemedial
Principles
Weirv. Nix, 890 F.Supp. 769 (S.D.
Iowa 1995). The plaintiff is found to be
a sincere fundamentalist Christian"despite
his alleged receipt of pornography. At
776: "While conduct inconsistent with
an expressed religious belief may call into
question the sincerity with which that
belief is held, the gap between the ideal
and reality is a universal feature ofhmnan
experience. "
Equal
Protection/Dental
CareiInjunctive Relief--Preliminary
Hogan v. Russ, 890 F.Supp. 146
(N.D.N. Y. 1995). The plaintiff sought
a preliminary injunction requiring
periodontal treatment~ the defendants
offered to pull the teeth or to let him have
periodontal treatment at his own expense.
The plaintiffs equal protection claim,
based on his indigency, is rejected. At
148: "the state's interest in efficiently
distributing its limited resources is
sufficient reason not to provide extensive
specialized medical care for inmates. "
There is no deliberate indifference
claim. At 149: "Defendants did not deny
plaintiff the ability to obtain specialized
medical attention. They merely stated that
it was not prison policy to pay for such
specialized care and that such care would
be made available to plaintiff at his own
expense. This case involves a prisoner
being dissatisfied with the diagnosis of
the prison physician." The fact that the
dentist did not take x-rays before
recommending extraction does not
constitute
deliberate
indifference.
Although the plaintiff submitted some
medical authority that x-rays are necessary
to detennine the extent of bone loss. the
claim is at best for negligence.
The plaintiff is denied a preliminary

Spri ng/Summer 1997
injunction, since he has no likelihood of
succeeding on the merits.
Procedural Due Process--Disciplinary
ProceedingslProcedural Due Process-Programs
McGuinness v. DuBois, 891 F.Supp.
25 (D.Mass. 1995). State regulations
authorizing sentences to the Departmental
Disciplinary Unit for up to ten years do
not violate a state statute that limits
confmement in an "isolation unit" to 15
days, since conditions in a disciplinary unit
are less onerous than those in an isolation
unit.
A disciplinary hearing officer did not
abuse his discretion in refusing to allow
questions of an officer about a previous
altercation between the officer and the
inmate. The fact that an accused inmate
has been placed in a segregation unit does
not permit the blanket denial of witnesses
on the ground that they are not permitted
in the unit. A particularized determination
is required. The refusal to call a staff
witness on the ground that he was injured
and unavailable is not a basis for summary
judgment for the defendants. since
regulations said such requests may be
denied only when a staff member is
unavailable for a prolonged period. This
was compounded by the failure to get an
affidavit from the officer in question. At.
34: The plaintiffs "right to procedural due
process was violated by Sherwin's refusal
or inability to receive evidence from that
officer in any fonn." (34)
The hearing officer's statement that
he received evidence from an officer "in
camera" shifted the burden to the
defendants to show that there was no
improper contact outside the hearing.
A state statute creates a liberty interest
in educational programs. A lawful
disciplinary hearing is sufficient process
to ~ithdraw that interest. (This is
probably overruled by Sandin v. Conner.)

THE NATIONAL PRISON PROJECT Journal .. page 27
Procedural Due Process--Disciplinary
Proceedings
Sanchez v. Roth, 891 F.Supp. 452
(N.D.IlI. 1995). A blanket rule that
\vitnesses are never allowed to be present
at disciplinary hearings would deny due
process. However, this plaintiff's witnesses
were denied because he did not indicate
what inforlnation they would be able to
provide and did not ask that they be
:nterviewedbeforethehearing to determine
•ftheir testimony was necessary. The court
J1so concludes that the witnesses would
.':'t have been helpful to the plaintiff.
Religion--Practices--Beards, Hair,
DressJEqualProtectionIProceduralDue
Process
. Muslim v. Frame, 891 F.Supp. 226
E.D.Pa. 1995). A jail rule prohibited
)risoners from wearing headgear in
:ommonareas. Prisonofficials established
hat the rule served a compelling interest
, security, but whether it was the least
'strictive means ofdoing so was a factual
1uestionnotsubjectto summaryjudgment.
\mong other things, the defendants did
lOt detail the expense of the additional
:earches they would have to conduct.
State law allowing the wearing of
digious ornaments or medals does not
reate a liberty interest in wearing a lcufi,
ince the restriction is not atypical or
ignificant trnder Sandin.
The fact that Christians could wear
rucifixes did not establish an equal
rotection violation absent a showing of
:iscriminatory intent. The jail had
eparate headgear rules and medallion
'lIes, neither of which discriminated
mong religions.
~qual
Protection/Hazardous
:onditions and Substances/Personal
Jroperty/Procedural Due Process-JropertylProgramsandActivitieslDrug
)ependency Treatment!Access to
.~ourts--Punishmentand Retaliation/
;rievances

Spri ng/Summer 1997

Pryor-El v. Kelly, 892 F.Supp. 261
he was assaulted by another inmate who
(D.D.C. 1995). The pro se plaintiffs
asked the defendant officer to open the
second-hand smoke claim is dismissed,
door so he could "f_ that b
up,"
since he does not present scientific or
and had his request granted, despite the
statistical evidence concerning the
fact that Jones had requested that no
likelihood ofinjury, nor does he allege that
inmates be let into his cell because he
the risk is so grave that it violates
feared attack. De'rendants' motion for
contemporary standards of decency to
summary judgment is denied. At 99: "A
subject anyone to it. The plaintiffs
factfmder could readily conclude that
complaint alleged only that people smoked
Banks' decision to open the cell door was
in common areas. There was no showing
an unnecessary and wanton infliction of
of deliberate indifference, since the
emotional pain--or . . . a brutal and
defendants had no-smoking policies,
demeaning attack on Jones' psyche."
.designated smoking areas. signs, etc.
(Footnote omitted). The latter phrase is
The plaintiffs excess property was
the standard the court adopts to defme the
shipped home at his expense without a
former phrase.
hearing after someone said he was
The defendant was not entitled to
hoarding stolen items in his cell. He had
qualified immunity~ the fact that this point
noequal'protection claim, since he
ofdamages was not clearly established
does .not diminish the fact that the
provided only an assertion that he was
treated differently from other inmates, and
substantive right was clearly established.
since there is no allegation of an
impermissible motive for the search. He
Searches--Urinalysis/Procedural Due
also had no due process claim, since it was
Process--Disciplinary ProceedingslRes
Judicata and Collateral Estoppel
.
undisputed that he had property in excess
of that permitted by jail rules. The court
Strauch v. Demskie, 892 F.Supp. 503
applies Sandin to a property interest claim.
(S.D.N. Y. 1995). The plaintiff was
At 271: "Where an inmate's personal
disciplined after a positive urine test. The
property is seized and sent to an address . basis for the test was an earlier positive
of his choosing, such action is not a
test on which he had been acquitted on the
deprivation." The denial of a receipt did
ground that he was working elsewhere at
not deprive the plaintiff of liberty either.
the time ofthe test and could not have been
the source of the urine. A state court held
An allegation. that the plaintiff was
that the officer did not have "reason to
denied equal protection by his exclusion
believe" as required by state regulations,
from a drug treatment program did not
and vacated the conviction.
state a claim in the absence of specific
The defendant is entitled to qualified
allegations of how he was treated
unequally or ofan improper motive. There
immunity because as of 1990 there was
was no liberty interest protected by due
no clearly established right of prisoners
to be free from non-random urine tests
process.
The failure to follow the procedures
without reasonable suspicion. At 506 n.
6: Although three circuits have upheld
of the grievance system did not violate the
random testing, the lawfulness of nonplaintiffs federal rights.
random testing remains undecided.
Protection from Inmate Assault/Cruel' (Storms v. Coughlin, 600 F.Supp. 1214.
i222:-26 (S.D.N.Y. 1984). is not cited.)
and Unusual Punishment--Proof of
The court is not bound by the law of the
Harm/Qualified Immunity
Jones v. Banks, 892 F.Supp. 988
case to follmv another judge's earlier
determination to the contrary.
(N.D.I11. 1995). The plaintiff alleged that

THE NATIONAL PRISON PROJECT Journal·· page 28
Pre-Trial DetaineeslMunicipalities
Smithv. Copeland, 892F.Supp.1218
(ED.Mo.1995). Cities and counties do
not have Eleventh Amendment immunity.
Municipalities, Damages-Punitive (1225): The Supreme Court's
holdingthat a municipalitycannot be liable
for punitive damages does not necessarily
mean that a countY cannot.
Immunity--Legislative
(1225):
County commissioners are entitled to
absolute immunityfor their legislativeacts.
Furnishings (1227): Allegations that
detainees are required to sleep on
mattresses on the floor do not state a
constitutional claim.
Cell Confinement, Telephones
(1227): Locking detainees in during the
afternoon and denying them telephone
access during that time does not violate
the Constitution.
Law Libraries and Law Books
(1228): The allegation that the law library
contained nothing but state statutes fails
in the absence of any assertion of actual
injury or prejudice.
Exercise and Recreation (1228):
Four hours of exercise once every three
weeks would not violate the Constitution
for convicts if they are olit of their cells
for work and meals, but defendants have
not made a showing that the limit is
reasonably related to legitimate objectives
as to these detainees (though the court
expresses skepticism about this claim).
Chemical Agents (1228-29): The
plaintiffs claim that he was maced for no
reason and then physically abused when
he refused to remove his clothing is not
subject to summary judgment; under
plaintiffs version ofthe facts, it amounted
to punishment.
Medical Care (1229): The failure
to provide medical care after the plaintiff
was maced, allegedly resulting in damage
to vision, presented a triable issue under
the deliberate indifference standard.
Food(1229): A diet ofcold food does
not offend the Constitution. At 1232: The

deprivation oflunch on one occasion did
not violate the Constitution.
Suicide Prevention, Clothing,
Bedding, Personal Hygiene, Length of
Stay (1229-30):
The plaintiffs
confinement in isolation without clothing
except for a paper gown, without a
mattress, and without toiletries was
reasonable, as was turning off his water
after he flooded his cell. (It was turned
on three times a day for toilet flushing, and
drinking water was provided with each
meal.) At 1231: A second episode of
removing the plaintiffs clothing in
isolation is deemed reasonable, even
though this one directly followed a
disciplinary offense.
Verbal Abuse (1230): "Gesturesand
abusive language, without more, are not
actionable under § 1983."
Sanitation (1232): An allegation that
the plaintiff was left in a cell with raw
sewage for five days would state a claim
if the plaintiffhad named any defendants
as responsible for it.
Procedural
Due
Process-Disciplinary Proceedings (1233): Prison
discipline does not violate the Wolfish
prohibition on punishment. Absent
allegations of denials of procedural due
process, the plaintiffs claim is subject to
summary judgment.
Visiting (1234): A policy denying
visits to inmates in isolation is reasonable
under Wolfish.
Financial Resources (1234-35):
Allegations that the jail is underfunded do
not make out a constitutional claim in the
absence of any evidence supporting it
(presumably meaning evidence of harm
resulting from underfunding).
Hazardous Conditions and Substances/
Procedural Due Pro.cess--Property
Austin v. Lehman, 893 F.Supp. 448
(E.D.Pa. 1995). The refusal to provide
the plaintiff with the free tobacco ration
provided most prisoners does not violate
the Eighth Amendment which does not

Spring/Summer 1997
shield "an activity as marginally related
to prisoners' basic well-being as cigarette
smoking." (452) Any pain resulting from
nicotinewithdrawal was reasonably related
to a legitimate purpose; the defendants
thought the plaintiff was using the
cigarettes for barter.
There is no liberty interest under
Sandin in smoking tobacco. Assuming
there is a property interest the plaintiff
received all the process due because the
defendants acted in contravention to state
procedure and post-deprivation remedies
were available for their random and
unauthorized act. The grievance procedure
was an adequate remedy; never mind that
the 'plaintiff got no relief.
Grievances and Complaints about
Prison/ Procedural Due Process-Disciplinary
Proceedings
/Correspondence --Legal and Official
Riley v.' Kurtz, 893 F.Supp. 709
(E.D.Mich.1995). The court rejects earlier
rulings that retaliation for exercise ofFirst
Amendment rights must "shock the
conscience" or amount to an "egregious
abuse of governmental power." Filing,
or threatening to file, complaints against
an officer with appropriate governmental
bodies (the prison administration or the
courts) is protected by the First
Amendment.
A prisoner's. conviction of a
disciplinary violation does not bar a
subsequent claim that the charges were
false and brought for a retaliatory purpose.
The court rejects the analogy to malicious
prosecution cases. Federal courts should
not be bound by factual detenninations
of prison hearing officers, since they use
a much lower standard of proof than
reasonable doubt. and more importantly,
criminal defendants have much more
substantial procedural protections. As a
policy matter. allowing a guilty finding
to insulate prison staff from subsequent
legal action would place unwarranted
pressure on the hearing officers.

THE NATIONAL PRISON PROJECT Journal·· page 29
An allegation that the plaintiff's legal
mail was read by prison staffstated a claim
under the First Amendment, the right of
access to the courts, and possibly
deprivation of a constitutionally protected
liberty interest given state regulations'
protection ofconfidential correspondence.

Procedural Due Process--Disciplinary
Proceedings
Winnie v. Clarke, 893 F.Supp. 875
ID.Neb. 1995). The plaintiff got his
disciplinary conviction reversed and
',:punged in state court, but prison
officials refused to reimburse the wages
he had lost. There is no constitutional
right to prison wages, and state regulations
io not create a property right in them
'lI1der these circumstances.
The plaintiff's chosen representative
:ailed to appear at his hearing and another
·epresentative was substituted. Due
Jfocess was not violated.
A blanket rule that only eyewitllesses
'ould be called at disciplinary hearings
lppears to deny due process, and
lefendants are not entitled to qualified
mmunity. (The plaintiffhad been charged
vith refusing to give a urine sample and
he witnesses were a psychologist's
.ssistant and a physician's assistant.)
On reconsideration after Sandin v.
'onner, the court does not decide whether
le plaintiffhad a liberty interest in staying
ut of disciplinary segregation, but
;verses its determination that defendants
Ie not entitled to qualified immunity on
1e witness issue, without explanation.
VomenJEqual Protection
Pargo v. Elliott, 894 F.Supp. 1243
).D.Iowa 1995), on remandfrom 49 F.3d
355 (8th Cir. 1995), affd, 69 F.3d 280
)th Cir. 1995). The court adheres to its
revious conclusion that women inmates
re not similarly situated to men, since
omen of all classifications are contained
1 asingle institution, unlike male inmates.
nder 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 of the nature of the
inequalities. (The court also cites
differences in length ofincarceration and
other factors.) Despite this conclusion,
the court goes on to subject all of the
challenged practices to equal protection
scrutiny under the rational relationship
standard. (It finds that there was no
challenge to "general budgetary and policy
choices" and therefore no reason to apply
heightened scrutiny.) The court concludes
that none of the policies deny equal
protection, repeatedly using the phrases
"gender neutral in design and application"
and
"substantially
similar"
in
characterizing them. In substance, it finds
differences in treatment, butnot inequality.
The court also surveys the record for
evidence of intentional discrimination
(finding none), noting that, contrary to
Klinger, other Eighth Circuit precedent
supports such an inquiry even if the
genders were not similarly situated.
Access to Courts--Services and·
Materials/Evidentiary
Questions
/Procedural Due Process--Property
lMootness
Kirsch v. Smith, 894 F.Supp. 1222
(ED.Wis. 1995). Defendants' "ink tube
policy,"whichpermitspunitivesegregation
inmates to use only the plastic tube from
inside ballpoint pens, is not
unconstitutional. One plaintiff's claim that
he couldn't write with the ink tube because
ofprior injuries is too conclusory because
he did not describe his injuries and because
he provided no specific factual allegations
of prejudice, e.g., "no evidence of court
dates missed,inability to make timely
filings, denial oflegal assistance or of loss
of a case which could have been won."
(1230) The other plaintiff was not
subjected to a "substantial and continuous
limitation" because lack of a decent pen

Spring/Summer 1997
did not keep him from doing preliminary
research and determining pleading
requirements. Therefore he is required to
show prejudice, which he failed to do.
Even ifhe had shown prejudice, the policy
would have been upheld under Turner.
At 1232: "As Dr. Hannibal Lecter
demonstrated in The Silence o/the Lambs,
even a seemingly innocent tool can be
tumed into a deadly weapon. "
State regulations concerning pens did
not give the plaintiff a property interest
in a complete pen.
The injunctive claim ofaprisoner who
had been transferred to another prison was
moot. So was the injunctive' claim of a
prisoner who had been released from
segregation. Although he had been in
segregation eight out of ten years of
confinement, "the mere possibility that he
,viII be returned to such confinement" did
not save his claim.
Use of ForcelEvidentiary Questions/
Damages--Assault and Injury, Punitive
Grimm v. Lane, 895 F.Supp. 907
(S.D.Ohio 1995). The plaintiffs, who had
tried and failed to escape, were sent to a
maximum security prison. On admission,
they were told not to cause any trouble and
then beaten with hands and nightsticks.
They were then threatened with reprisals
if they reported the assault.
The record supported liability of
several defendants for failure to protect
against the assault and against subsequent
reprisals, applying the deliberate
indifference standard. The court does not
make clear exactly what these defendants
did.
Evidence that the guards discussed
the plaintiffs' arrival and their need for an
"attitude adjustment" supported the
plaintiffs' conspiracy claims, as did
evidence of a post-beating cover-up.
The plaintiffs' failure to give 90 days
notice that a witness would testify as an
expert was not unduly prejudicial. since
the defendants knew for six months that
<I

THE NATIONAL PRISON PROJECT Journal·· page 30
she would testify and what she would
testify about. She is a senior research
associate for the Correctional Institution
Inspection Committee who prepared a
report about the prison; apparently she
testified about the risk of reprisals. Her
report, which "provided background for
the atmosphere at SOCF," was admissible.
Damages of$75,000 and $115,800
in compensatory damages are not
excessiveforprisoners beaten in handcuffs
who sustained bruising, swelling, a lump
on the head, blood in the urine, mental
injury requiring medication, and fear of
reprisal for several months. Punitive
awards of$52,500 against an officer who
beat the plaintiffs and $15,000 to $37,500
for others (e.g., an officer who handed the
main defendants the keys to the cells) were
not excessive.
Religion--J,>ractices--Beards, Hair,DresslPublicationslProcedural Due
Process--Administrative Segregation
/Recreation and Exercise/Serious
Medical Needs/ Medical Care--Access
to Outside CarelPersonal Hygiene
/Food
May v. Baldwin, 895 F.Supp. 1398
(D.Ore. 1995). Denial of access to the
prison's general library did not violate the
Constitution.
. A denial of out-of-cell recreation
privileges for several weeks did not violate
the Eighth Amendment. He could exercise
in his cell and had the opportunity to leave
his cell for a ten-minute shower three times
a week.
The refusal to let the plaintiffs
purchase over-the-counter items for his
dry skin did not violate the Eighth
Amendment, since medical personnel had
examined him, determined that no
treatment was required, and adVIsed him
to drink more water. He did not have a
serious medical need.
The refusal to take the plaintiff to
medical visits unless he unbraids his hair
did not violate the Constitution. He needed

follow-up treatment for avocal cord tumor.
The denial of shampoo, conditioner
and body lotion did not violate the Eighth
Amendment; the plaintiffhad towel, soap,
comb and toothbrush.
The plaintiff's generalized allegations
that food items like milk, cheese, pork and
chicken are processed so as to make them
lethal to consumers did not support an
Eighth Amendment claim as to the prison
food. The same is true ofhis claims about
the allegedly unhealthy drinking water.
Confmement for 24 hours to undo his
braids did not violate the Eighth
Amendment; the Eighth Amendment does
not forbid briefdeprivations of television,
telephone and day room privileges. The
lack ofa hearing did not deny due process
under Sandin.
Religi 0 n/Pu bIicati 0 ns/Q ualified
Immunity
VanDykev. Washington,896F.Supp.
183 (CD.IlI. 1995). The plaintiffbecame
an adherent ofthe Church ofJesus Christ,
Christian, the religious arm of the Aryan
Nation. He was not permitted to change
his
religious
preference
to
"Dualist/Identity" and the defendants
declined to recognize the church.
Publications from it were rejected.
It was not established in 1992 and still
is not established that the Church ofJesus .
Christ Christian is a bona fide religion.
so the defendants were entitled to qualified
immunity. The plaintiff's injunctive claims
were mooted by his transfer, since
decisions concerning recognition of
religious groups are made by each
institution.
There is no constitutional right to a
grievance procedure.
The defendants did not violate
plaintiffs First Amendment rights in
rejecting publications that contain "overt
negative racial commentary. constant use
of pejorative racial terms, constant
reinforcement of a 'them against us'
philosophy. and a 'call to action' regarding

Spring/Summer 1997
protection of the Aryan race." Such
"inflammatory" material can be excluded
without evidence of actual racial
confrontation. (The court does not have
the actual publications to review, but the
parties submitted other material from the
church which the court reviewed.)
The publications were rejected base.
on a complete ban of Church of Jesus
Christ Christian publications. Later, the
rule was revised to provide for case by case
review. The plaintiffcannot challenge the
new regulation absent evidence that he was
denied publications under it.
DisabledlEqual Protection
Rewolinski v. Morgan, 896 F.Supp
879 (E.D.Wis. 1995). The deaf plaintiffs
complaint that he was denied the abilit;.
to watch closed-captioned videos, denied
a sign language interpreter for disciplinaI'}
hearings and medical appointments, is not
givenenough visiting time to communicate
in sign language, cannot utilize the
telephone device for the deaf after 9:00
p.m., misses counts because he doesn't
have a visual alarm clock, and is in danger
of fire because there are no visual fire
alarms. His claims are not frivolous under
the Americans with Disabilities Act. Nor
are they frivolous under the equai
protection clause, though his claim is an
"uphill one" since the disabled are not a
suspect class.
Publications/ReligionlSearches--Persor
-Living QuarterslProcedural Due
Process--Property/Access to Courts-Punishment and Retaliation
Reimann v. Murphy, 897 F.Supp. 398
(E.D.Wis. 1995). The defendants denied
plaintiff newspapers from the "Church or
the Creator" because they advocated the
taking of human life and violence against
non-white races: the plaintiff alleged that
books concerning COTC had been taken
from his cell.
The claim that the denial of plaintiffs
newspapers. the ransacking ofhis celL and

THE NATIONAL PRISON PROJECT Journal·· page 31
other actions were retaliation for a lawsuit
is not supported factually.
Claims regarding theft, loss of
property and undocumented searches are
without merit as long as state remedies
exist.
Access to Courts--Punishment and
RetaliationlPersonal Involvement and
Supervisory LiabilitylProcedural Due
Process/Correspondence--Legal and
OfficiaV Confiscation and Destruction
of Legal Materials/Correspondence-Postage and Materials/ Standing
Pachecov. Comisse,897F.Supp.671
(N.D.N. Y. 1995). Prison officials refused
to send the plaintiffto a court appearance.
They said it was because he had refused
to take a tuberculosis test and was in
"quarantine"~ he said it was retaliation for
his complaints and lawsuits. The plaintiff
produced sufficient evidence that the
official reason was pretextual to withstand
summary judgment (e.g., evidence of
inconsistent and irrational application of
the policy and failure to use other means
to test plaintiff for TB). The plaintiffs
right to petition government for the redress
of grievances was established in 1992.
TheCommissionercouldbeheldliable
based on four letters from the plaintiff to
him setting out his factual allegations and
no evidence that he 'did anything about it.
The defendants refused to mail some
ofplaintiffs legal correspondence because
the recipients were not in the New York
Lawyer's Diary or a defendant's personal
list oflawyers and legal organizations; this
was done to enforce a change in policy of
refusing free postage for non-legal mail.
The plaintiffdid not have a liberty interest
based in state regulations' definition of
legal mail because under Sandin
defendants' actions did not pose an atypical
and significant hardship. At 68 L "...
[T]o prevail on a claim ofinterference with
legal maiL a plaintiff must show that a
pending or anticipated legal action was
prejudiced by the alleged interference."

Spring/Summer 1997

The same is true of the complaint that the
plaintiffs letter to the Malcolm X Legal
Foundation was opened outside his
presence. The defendants were entitled
to qualified immunity as to their refusal
to mail a letter to someone not mentioned
in the New York Lawyer's Diary. They
were not entitled to qualified immunity
as to the Malcolm X Legal Foundation.
The prohibition on receiving stamps
through the mail is constitutional.
The confiscation oflegal papers with
the plamtiffs name on them from another
prisonerdid not violate the plaintiffs rights
and he did not have standing to complain
about it.

Equal
Protection/Temporary
ReleaselEqual Protection
Vargas v. Pataki, 899 F.Supp. 96
(N.D.N.Y. 1995). A prohibition against
granting work release to inmates convicted
ofhomicide did not deny equal protection.
since it was rationally related to
minimizing the risk to public safety. The
fact that homicide convicts already 'on
work release were permitted to remain on
it did not establish an equal protection
violation. The prohibition does not violate
the Ex Post Facto Clause because it affects
a privilege rather than a right and because
it is not intended to punish but to regulate
participation in the work release program.

Procedural Due Process--Disciplinary
Proceedings
Stone-Bey v. Swihart, 898 F.Supp.
1287 (ND.Ind. 1995). The court declines
to extend Heck v. Humphrey to prison
disciplinary proceedings; the plaintiffneed
not get the disciplinary proceeding
reversed to seek relief under § 1983.
The accusing officer's failure to sign
his reports, get his supervisor's signature,
and properly document his reports did not
deny due process or make the evidence
inadmissible. The "spartan" notice the
plaintiff received was sufficient given the
simplicity of the ~legations against him.
A recanted witness statement could suffice
as some evidence ifthere is some evidence
ofreliability. Allegations ofcorroboration
by a voice stress analysis and a witness
statement are insufficient absent evidence
that these actually existed; there was a
material factual question on that point.
The hearing officer must explain why
he chose to reject the witness's recantation;
he may not arbitrarily refuse to consider
exculpatory evidence because other
evidence suggests guilt. The explanation
that he relied on a voice stress analysis and
a witness statement was sufficient
assuming these actually existed.

DisabledlProcedural Due Process-Disciplinary ProceedingslProcedural
Due ProcesslEqual Protection /Women
/Medical Care-Standards ofLiability-DeliberateIndifference/Medical Care-Refusal QfTreatment/ Medical Care-Communication of Medical Needs/
Programsand Activities/Rehabilitation
Clarkson v. Coughlin. 898 F.Supp.
1019 (S.D.N. Y. 1995). The plaintiffs. a
class 'ofhearing-impaired state prisoners.
are entitled to summary judgment under
the Americans with Disabilities Act and
the Rehabilitation Act, as to the following:
-- The failure to provide information
concerning the protections of the statute
adn the existence and location ofaccessible
services. activities and facilities.
-- The denial. failure to respond. or
failure to respond timely to requests for
auxiliary aids and services.
-- The failure to evaluate programs and
facilities for ADA compliance. (They've
done physical plant and personnel but not
inmate housing. programs or services. and
they admit that they don't have the staff
to do it.)
The failure to create and maintain a
coherent procedure for making and having
granted requests for accommodations and
services. (Grievances resulted in a referral
to someone else or a statement that the

THE NATIONAL PRISON PROJECT Journal.· page 32
assistance sought was not available.)
-- The failure to provide interpretive
services
during
reception
and
classification.
-- The failure to provide telephone
.devices for the deaf and closed caption
decoders wherever other inmates have the
right to use telephones and televisions, and
the failure to provide safety alanns
adequate for deaf inmates.
-- The failure to provide proper
accommodations for vocational and
academic education and alcohol and drug
rehabilitation counseling.
-- The failure to provide interpretive
services during disciplinary, grievance and
parole proceedings (this also denies due
process) (1050).
Transfer from the Sensorily Disabled
Unit for disciplinary, safety, and/or
medical reasons to units without necessary
accommodations. Placement in the SDU
is a "conditional" accommodation, which
the statute forbids.
The exclusion of deaf inmates from
education programs denied due process
by depriving them of their state-created
interest in education (which is limited to
no education or education "grossly
unsuited to the goals of a particular
inmate's socialization and rehabilitation"
(1048». This is aproperty interest (1041).
The absence of interpret~rs during
medical encounters denies deaf inmates
the due process right to avoid the unwanted
administration of medical treatment and
to informed consent, and constitutes a
"systemic pattern of inadequacy of
treatment . . . which is causing class
members unwarranted suffering." (1049)
At 1042: "Repeated examples of delay
or denied medical care, haphazard or ilIconceived medical practice can serve to
demonstrate deliberate indifference by
prison officials. " The use of persons as
interpreters who are not under a duty to
maintain medical confidentiality violates
plaintiffs' privacy rights.
The absence of a Sensorily Disabled

Unit for women denies equal protection.
The larger number of male than female
deafinmates does notjustify this disparity;
nor do allegations of administrative
convenience or savings oftime, money and
effort. The court endorses the "parity"
standard (1043).

Spring/Summer 1997

not refute plaintiffs' allegations of
disgusting conditions and health problems
resulting from the toilets, which use toxic
substances. At 797: "The manner in
which the inmates at SECC must dispose
oftheir bodily waste results in a condition
ofconfmement more bestial than human:
or to put it in constitutional terms, the use
of the chemical toilets at SECC is
Procedural Due Process--Temporary
'indecent' and 'uncivilized.'" There are
Release
Williams v. Moore, 899 F.Supp. 711
triable issues as to defendants' knowledge
(D.D.C. 1995). The plaintiff had no
and therefore their deliberate indifference.
liberty interest based on D.C. regulations
Plaintiffs are not entitled to summai)'
in admission to a work furlough program;
judgment as to fIre safety in a prison that
though the regulations contained rigorous
lacks automatic locks and a functioning
criteria for eligibility, they did not contain
sprinkler system. At 799: "A court may
mandatoi)' language requiring admission
look to state codes with respect to prison
ofthose who met the criteria. The court
hazards in its effort to determine society's
questions whether Sandin would bar this
standard ofdecency, but these standards
claim, noting that work release provides
do not necessarily reflect the constitutional
benefits "that relate not only to the terms
minimum."
Plaintiffs are not entitled to summary
of confmement itself but to life outside
the prison." (713) However, it need not
judgment on their· claim that water
reach this question because of its
provided to them in pitchers is discolored
conclusion that the plaintiff loses under
and has a disagreeable taste and smell.
the pre-existing liberty interest analysis.
since defendants said that water tests were
This approach indicates that the Sandin
favorable. There is a triable issue.
standard adds to rather than replaces the
Plaintiffs ar~ not entitled to summary
liberty interest analysis.
judgment on their claim of exposure to
friable asbestos, since the defendants said
there wasn't any. There is a triable issue.
Res
Judicata
and
Collateral
Plaintiffs are not entitled to summary
EstoppellHygieneIPlumbing/Negligence,.
judgment on their claims of vermin
Deliberate Indifference and IntentJFire
infestation, but there is a triable issue.
SafetylFood/HazardousConditionsand
Substances
Masonoffv. DuBois, 899 F.Supp. 782
Correspondence--Legal and Official/
(D. Mass. 1995). Prior consolidated state
Access to Courts--Postage and
court actions raising similar issues to the
Materials/ Procedural Due Process-present suit did not preclude this suit either Disciplinary Proceedings
by claim preclusion or issue preclusion,
Dawesv. Carpenter, 899 F.Supp. 892
(N .D.N. y. 1995). The elimination of free
since the named plaintiffs were not parties
to the prior suit and it was not a class
postage for non"'privileged mail "did not
action. This conclusion is reached under
overly restrict most prisoners' ability to
Massachusetts law.
conduct non-privileged communication
The use of chemical toilets which
with people outside the prisons," since
prisoners must empty into slop sinks
prisoners may still receiving incoming mail
violates the objective test of the Eighth
and visitors and buy stamps with money
Amendment. Summai)' judgment is
earned in prison. At 899:
granted for the plaintiffs. Defendants do
Like free citizens. inmates have

THE NATIONAL PRISON PROJECT Journal .. page 33
a constitutionally protected
interest in conducting non-legal
correspondence. . .. However,
the Constitution does not require
the State to subsidize inmates to
permit such correspondence to
be conducted by mail when other
means of communication are
available to the general prison
population. [Citations omitted]
The court notes that the policy has
been relaxed to permit one free stamp a
month to inmates who have no money
because they are confined in special
housing, but says that the failure to notifY
the plaintiff was not unconstitutional
because this stamp is not constitutionally
required. The regulation says "may," so
there is no entitlement to it.
A defendant hearing officer is not
entitled to qualified immunity for denial
of an assistant. since the defendants
provide no information as to his state of
mind, precluding the court from
determining whether his beliefs as to the
legality of his conduct ""ere reasonable.
The court also rejects the claim that
additional pre-deprivation procedures
could not have prevented the deprivatiOll,
since the hearing officer could have
postponed the hearing or obtained the
information that the plaintiff wanted for
the hearing. .
The plaintiff was properly excluded
from one hearing, since he had threatened
violence before it. Exclusion from the
hearing of the plaintiffs \\itnesses did not
deny due process.
The refusal to comply \\ith procedures
for naming \\itnesses constituted a waiver
of the right.
Restitution penalties supported by no
evidence deny due process. The court
rejects defendants' claim that additio.nal
process could not have altered the result.
since the defendants could have put more
evidence in at the hearing. A standardized
schedule of costs would meet the some
evidence standard.

Procedural Due Process--Disciplinary
Proceedings/ Qualified Immunity
Delany v. SelsJ.y, 899 F.Supp. 923
(ND.N.Y.1995). Even where disciplinary
confmement is similar to administrative
confinement,
... [AJn inappropriate duration
ofdisciplinary confinement still
raises due process concerns....
This Court is not prepared to say
that as a matter oflaw, 365 days'
SHUconfmement is a sufficiently
typical and insignificant hardship
on Mr. Delany, relative to the
ordinary incident of life in the
Coxsackie Correctional Facility,
to permit the State to deprive him
of procedural protections before
imposing that sanction.
However, a decision reducing the duration
to 197 days would probably result in
summary judgment for the defendants,
. except for the plaintiffs conditions
complaint: because he is almost seven ~eet
tall. the bed was too short. and he only got
out for an hour a day. he had "back
problems."
The defendants are not entitled to
qualified immunity: the fact that the law
changed in 1995 does not indicate that it
was unclear in 1991.

Procedural Due Process--Disciplinary
Proceedings/ Mental Health Care
Zamakshari v. Dvos/,:in, 899 F.Supp.
1097 (S.D.N.Y. 1994). At 1106: "The
impact of Sandin on cases ofdisciplinary
confmement for a period greater than 30
days, however, remains unclear at this
time." The loss ofgood time in this case
means that the question need not be
reached.
The failure to provide a gallery listing
in the plaintiffs disciplinary hearing did
not deny due process: the listing was
"unavailable" and the plaintiffs assistant
secured the testimony ofthe five witnesses
the plaintiff requested.
The failure to consider a prisoner's

Spring/Summer 1997
mental health status did not violate clearly
established law as of 1988.
Themagistratejudgerecommends that
a claim of 60 days of segregation be
considered
barred
by
Sandin.
Alternatively, defendants are entitled to
qualified immunity, since a failure to take
-mental health professionals' testimony in
camera did not violate clearly established
law in 1990. At 1110: "The mere fact that
an inmate informed [the Commissioner}
of an alleged constitutional violation by
letter is insufficient to support a finding
that he had notice of that deprivation."
Besides, the affirmance of plaintiffs
conviction was signed by the Director of
Special Housing and not by the
Commissioner.
. The failure to track down a witness
who had left the employ of the prison
system and who had written a statement
describing the incident was at most
harmless error.

Pre-Trial Detainees/Protection from
Inmate AssaultlUse of ForcelPre-Trial
Detainees
Fickes v. Jefferson County. 900
F.Supp. 84 (E.D.Tex. 1995). The court
notes the conflict among Fifth Circuit
opinions as to whether pre-trial detainees
must meet the Eighth Amendment
deliberate indifference standard in failure
to protect cases. The issue need not be
resolved in this case. The defendant
officer was not liable under either the
deliberate indifference or the Wolfish
standard for leaving mops and brooms
with inmates after a cell area was flooded,
even though they used them to beat the
plaintiff. The plaintiffs allegation that
the officer saw the beating but walked by
and let it resume raises a triable issue of
fact.
The plaintiff was told by jail medical
personnel that he suffered from anxiety
related to the beating. He asked to be sent
out and was diagnosed with two herniated
disks, a perforated eardrum and permanent

THE NATIONAL PRISON PROJECT Journal .. page 34
nerve damage to his inner ear resulting in
his having to use a hearing aid. However,
he did not sufficiently allege a municipal
policy, and he did not name the right
individual defendants.
The plaintiff's allegation that he was
placed in a headlock and kept in one after
he told the officers he had a neck injury,
and that he was beaten sufficiently to leave
him unconscious for an hour, barred
summary judgment for the defendants.

qualified immunity because it was
reasonable for them to believe that the
plaintiffwas obligated to comply with the
order to comply with the subpoena. In this
case the order was connected with a
security interest, since the subpoena was
part of an internal investigation of prison
drug trafficking. It was reasonable not to
permit the plaintiff to consult with his
la\\-yer, since the right to counsel does not
attach until the filing of formal charges.

Ex Post Facto Laws
Shabazzv. Gabry, 900 F.Supp. 118
(E.D.Mich. 1995).
Administrative
regulations changing the frequency of
parole hearings are "laws" for purposes
of the Ex Post Facto Clause, since they
are promulgated after an opportunity for
public comment and have the force oflaw.
Internal procedures and policy directives
of the Department of Correction and the
parole board are not "laws" for Ex Post
Facto purposes. The plaintiffs failed to
show that all discretion to modify them
was lost. Also, it is unlikely that these
internal policies would play any significant
role in influencing public expectations,
and extending Ex Post Facto scrutiny to
them would only discourage the
formulation and publication of such
policies.

Procedural Due Process--Disciplinary
Proceedings,
Administrative
Segregation
Jones v. Moran, 900 F.Supp. 1267
(N.D.Cal. 1995). The plaintiff was sent
to Pelican Bay SHU for a determinate
period after a disciplinary conviction and
was retained there pending transfer to a
mental health facility after a psychiatric
examination.
Sandin adds a threshold test (the
atypical and significant standard) to the
previous liberty interestanalysis. Sandin
leaves open the possibility that under
different circumstances, freedom from
segregation might constitute a liberty
interest. The Court's comparison between
segregation and other· levels of
confmement"suggests that the significance
of a particular type of deprivation may
very from one state's prison system to
another." (1273) Sandin may do "no more
than add the 'significant and atypical'
threshold test ... to the Hewitt analysis
to ensure that due process protection is
applied only to interests of 'real
substance.'" Id The court concludes that
this is the case, based largely on Justice
Breyer's opinion.
. The court does not reach the question
whether there is a liberty interest in
avoiding segregation in California. There
is suffici~nt limitation ofofficial discretion
in placement in segregation. but there is
no factual record to determine whether it
sufficiently disrupted the plaintiffs
environment under Sandin. The court

Procedural Due Process--Disciplinary
Proceedings/ Access to Courts-Punishment and Retaliation!Attorney
Consultation
Lazoda v. Maggy, 900 F.Supp. 596
(N.D.NY 1995). Theplaintiffwas shown
a subpoena for his fingerprints and a
handwriting exemplar and refused to
comply until he had time to speak \\'ith his
attorney and c~mtest the subpoena's
validity. He was then disciplined for
refusing a direct order.
Although the plaintiff had a "clearly
established constitutional right of access
to the courts free from retaliation by prison
officials." the defendants were entitled to

Spring/Summer 1997
therefore decides the merits and determines
that no liberty interest was taken because
the regulations provide for retention in
SHU past a previously set release date if
releasewould endanger the lives ofinmates
or staff, and the plaintiff received Hewitt
process". A written statement of reasons
is not required. "Some evidence" will
support the decision.
Pre-Trial Detainees
Chaney v. City of Chicago. 90 I
F.Supp. 266 (N.D.Ill. 1995). The plaintiff
alleged that he had surgery on his feet
immediately before he was arrested in
December 1992, and that the necessary
aftercare he requested was not provided
until November 1993. resulting in
suffering and the deterioration of his
condition.
He sufficiently alleged
deliberate indifference to his serious
medical needs. At 270: "Surgery on the
feet is inherently a serious matter, and
failure to provide necessary aftercare and
follow-up could result in a lingering
disability. "
Procedural Due Process--Temporary
Release
Hollingsworth v. Robinson. 90 I
F.Supp. 565 (E.D.N.Y. 1995). The
plaintiff was arrested and j ailed while in
a work release program. All charges were
dismissed. He was then transferred to
another prison \\'ithout notice or hearing.
He did not get a hearing until two months
later, after he filed suit in state court. The
court rejects defendants' claim that no
hearing was necessary because his failure
to return to the work release center created
a rebuttable presumption of absconding:
the failure to return must be voluntary.
which is not the case when the participant
is in jail.
The fact that the deprivation was
ultimately corrected by administrative
appeal was no defense. since authority to
that effect did not involve "a constitutional
deprivation analogous to the removal of

THE NATIONAL PRISON PROJECT Journal·. page 35
an inmate without notice from a Work
Release Program." (572) Sandin is not
discussed.

Procedural Due Process--Disciplinary
Proceedings
Lee v. Coughlin, 902 F.Supp. 424
(S.D.N.¥. 1995). The plaintiff was
charged with assault. He was convicted
and sentenced to two years in SHU. His
administrative appeal was denied. He got
the conviction reversed in an Article 78
proceeding after he had served 376 days.
At 431: "In relation to the ordinary
incidents ofprison life, I find that plaintiff
Lee's confmement for 376 days in SHU
imposed an atypical and significant
hardship onplaintiff." Sandin was decided
while this motion was pending. Id. n. 9:
"I am hard pressed to believe that 376 days
in SHU would not constitute an 'atypical
and significant hardship' as defmed by
Sandin and I assume that is why
defendants did notseek to supplement their
papers." The court invites a motion for
reconsideration, which was granted, and
the issue is now being litigated.
The plaintiffdesignated several staff
members as employee assistants, but the
defendants assigned someone else, and
after the plaintiffsaid he would rather have
an assistant ofhis choice, the designated
assistant did nothing. The plamtiff did
not waive his right to assistance. He asked
for assistance three times during a hearing
that was adjourned five times over aperiod
of25 days, but was not given assistance,
and no reason was given. The hearing
officer could not be said to have played
both roles, given that state regulations
provide both for an impartial hearing
officer and an assistant. In any case, an
assistant is supposed to prepare a defense,
not just assist after the hearing begins.
At 433: "Were I to adopt defendants'
position that a hearing officer and an
inmate assistant could be the same person,
the confmed inmate's right to an assistant
and an impartial hearing officer would be

rendered meaningless."
The court does not reach whether the
state court determination is binding. It is
"persuasive evidence" of the lack of
meaningful assistance. At 433: "As did
the state court, I find that there were many
issues raised by the reports relating to the
underlying assaultcharges against plaintiff
which an assistant could have aided
plaintiff in investigating."
The defendant hearing officer is not
entitled to qualified immunity.

Women/Visiting/Injunctive Relief-Preliminary/Ripeness
Bazzetta v. McGinnis, 902 F.Supp.
765 (E.D.Mich. 1995). The prison system
instituted visiting restrictions forbidding
visitors under 18 who are not children,
step-children or grandchildren; forbidding
visiting with natural children if the
prisoner's parental rights have been
terminated for any reason; limiting the
visiting list to only 10 people who are not
"immediate family": requiring minor
children to visit only with an adult legal
guardian with proofoflega! guardianship;
limiting "members of the public" to only
one prisoner's visiting list (i.e., "activists
cannot visit more than one prisoner");
permitting denial of all visiting except
from clergy and attorneys based on two
major misconducts involving substance
abuse; barring all former prisoners from
visiting anyone except "immediate
family."
The court granted a temporary
restraining order but denies a preliminary
injunction. It concludes that prisoners
have no FirstPunendment right offreedorn
of association and that the right to family
integrity does not extend to prison visiting
with persons other than immediate family.
The court assumes that there is a
fundamental right of parents and
grandparents to associate with immediate
family members in prison, but upholds the
regulations under the Turner standard.
Members of the public have no First

Spri ng/Summer 1997
Amendment right to VISIt because
alternative means of communication are
available.
The challenge to disciplinary
deprivation ofvisiting is not ripe because
it is discretionary and hasn't happened yet.

Procedural Due Process--Disciplinary
Proceedings
Priest v. Gudmanson. 902 F.Supp.
844 (E.D.Wis. 1995). A 20-day extension
of the plaintiffs mandatory release date
is actionable under the due process clause
under Sandin. The plaintiffs claim oflack
of an impartialdecision-maker, since one
of the hearing panel members was a
witness to the incident, was not frivolous.
Searches--Urinalysis/Procedural Due
Process-Administrative Segregation,
Disciplinary ProceedingsNisiting
McDifftttv. Stotts,. 902 F.Supp. 1419
(D.Kan.1995). Repeatedurinalysistesting
based on individualized suspicion
concerning drug use does not violate the
Fourth Amendment.
The plaintiffs placement in
segregation after a positive urinalysis did
notdeny due process: "Sandin makes clear
that an inmate's segregated confmement
is not [an atypical and significant]
deprivation. "
The failure to follow prison
regulations during disciplinary hearings
does not deny due process.
Holding a hearing, withdrawing the
finding of guilt. then proceeding with a
second hearing does not violate the Double
Jeopardy Clause.
A 90-day deprivation ofcontact visits
after a positive drug test does not violate
the Constitution.

THE NATIONAL PRISON PROJECT Journal .. page 36
Procedural Due Process--Transfers/
Publications/Law Libraries and Law/
Books/Emergency Protection from
Inmate AssaultNerbal Abuse/Access
to Courts--Punishment and Retaliation!
Deference/Procedural Due Process-Disciplinary Proceedings
..
Knechtv. Collins, 903 F.Supp. 1193
(S.D.Ohio 1995). Transfers between
prisons do not deprive prisoners ofliberty
under Sandin.
The plaintiff spent "months" in
disciplinary segregation; his disciplinal)'
proceeding was initially reversed because
the appeals officer was not provided with
a complete file, then affirmed when the
file twnect up after the 30-day time limit
for issuing decisions. The court cannot
determine on this record whether the
plaintiffsuffered an atypical or significant
hardship.
Under the Turner test, defendants
improperly censored an issue of Prison
News Service which "does not incite unrest
or an overthrow of the penal system, but
insteadencourages peaceful protests" (e.g.,
letters to the Governor or prison officials).
A second issue stating that "[t]he
of
self
affirmative
defense
defense/justification should be a viable
option for the Brothers to illustrate that
the conditions were so oppressive that the
takeover was necessary to save their lives," .
and another advocating that prisoners
"break the walls down," were properly
censored. An article encouraging people
to "act" and "resist" and overthrown the
white supremacist regime, which includes
prison authorities, was properly censored.
An issue for which no reason for
censorship was given should be given to
the prisoner.
Another publication
described as "anti-government" and "antiestablishment," which allegedly "could
provoke violence," was improperly
censored since none of the articles incite
violence. At 1200:
The substantial deference
accorded
prison officials,

however, does not relieve federal
courts from their duty to ensure
that prison officials' actions are
not exaggerated responses to
prison concerns. . .. This is
especially true in the First
Amendment area, where prison
officials may attempt "to
or
eliminate
unflattering
unwelcome opinions [and] apply
their own personal prejudices and
opinions...." Additionally. the
First Amendment plays a: unique
and special role in the prison
environment. Such freedoms
taken for granted in the free
world, assume great significance
behind bars. Prisoners of ten
remain in their cells between
fifteen and twenty hours a day
with vel)' little to do. The
opportunity to read and write
allows a prisoner to remain in
tough with the outside world, and
provides the opportunity for a
prisoner to nourish his mind
despite the bleakness of his
environment. Most importantly,
it allows prisoners to channel
tensions and frustrations into
something positive and peaceful.
Two paralegals and a paging systel!1
provide adequate law libral)' access for
"administrative control" inmates. A denial
of all access to the library, without
paralegal assistance, would have been
ordinal)'
unconstitutional
under
circumstances, but since it occurred during
a post-riot lockdown, it was not.
Allegations that two staff members
have issued death threats and harassment
to the plaintiffs and have told other
inmates that they are snitches state a claim
when it is alleged that these actions were
done in response to plaintiffs' filing
lawsuits and writing newspaper articles.
The allegation that the plaintiffs were
labelled snitches is actionable under
Farmer v. Brennan.

Spring/Summer 1997
At 1204: "Prison authorities cannot
frame and then improperly discipline
prisoners for exercising their constitutional
rights."

Rights ofStafflEvidentiary Questions
Sagendorf-Teal v. County oj
Rensselaer, 904 F.Supp. 95 (N.D.N.Y.
1995). Past and present jail employees
are not equally available to plaintiff and
defendant in a case where the plaintiff is
a former jail employee suing over her
discharge. At 97: "Testimony described
corrections officers as a group to be close
and binding. "
The officers "bore
in
significant interest a favorable outcome
for the defense: through their support of
. former co-workers and through their own
personal involvement."

Protection from Inmate Assault
Knowles v. New York City Dept. oj
Corrections, 904 F.Supp. 217 (S.D.N. Y.
1995). The plaintiff, a segregation inmate.
was slashed in the jail yard. Allegations
that prison officials were aware ofa "war"
between Jamaican and Hispanic inmates.
that a Hispanic inmate who had been cut
had been transferred to the jail where
plaintiff was held, and that the plaintiff.
"due to his physical characteristics and
accent, belonged to an identifiable group
of prisoners for whom risk of ... assault
[was] a serious problem of substantial
dimensions." (222, citations and internal
quotation marks omitted)
The court notes that "the defendants
have failed to come forward with some of
the most obvious evidence to attempt to
show that there is no genuine issue of
material fact," e.g., no "affidavit from any
guard or prison official explaining the
circumstances ofthe attack on the plaintiff
and attesting to the lack of awareness of
the particularized risk to the plaintiff. ...
The defendant appears to seek to take
advantage of the pro se plaintiffs failure
to obtain the evidence from the prison
guards." (222)

THE NATIONAL PRISON PROJECT Journal _. page 37
Religion--Services Within Institution
Muhammadv. CityofNew YorkDept.
of Corrections, 904 F.Supp. 161
The plaintiffs
(S.D.N. Y. 1995).
complained of restrictions on their
religious practice as members of the
Nation of Islam. The City defended by
emphasizing its policy of "generic
services."
Under the Religious Freedom
Restoration Act, plaintiffs must show a
"substantial burden" on their religious
rights, i.e., pressure to commit an act
forbidden by the religion or prevention of
conduct or experience mandated by the
religion.
The failure to employ a Nation of
Islam minister does not substantially
burden free exercise, since there are
numerous Muslim imams and various
Muslim religious accommodations.
Inmates may have personal visits from
Nation of Islam clergy, NOI "personal
development workshops" are provided,
and NO! clergy have appeared as guest
speakers.
The failure to have separate NO!
services does not substantially burden free
exercise: althoughNOI beliefs are different
from orthodox Muslim beliefs, the plaintiff
failed to show that the generic service
"offends or ignores particular practices
or beliefs that are mandated by NOI
teachings." (191, emphasis in original)
The court fmds no factual support for
various other claims of burdens on
religious exercise.
The logistical. administrative and
security concerns underlying the policy
of generic services are compelling and
justify the defendants' practices.
The plaintiffs' First Amendment
claims fail a fortiori for the same reasons
as the RFRA claims. At 196: "[T]here
does not appear to be a clear consensus
in the courts as to whether RFRA's
heightened standard is limited in
application to statutory claims brought
pursuant to RFRA itselfor whether it also

applies to constitutional claims brought
under the First Amendment."
The defendants' decisions as to what
religions they recognize and provide
services for do not. violate the
Establishment Clause.
The plaintiffs' state law and city
regulations claims are also rejected.
False Imprisonment
Hoover v. Snyder, 904 F.Supp. 232
(D.DeI. 1995). Claims challenging state
court interpretations and applications of
state court sentencing statutes are not
cognizable under § 1983.
Disabled
Staples v. Virginia Dept. of
Corrections, 904 F.Supp. 487 (E.D.Va.
1995). The Americans with Disabilities
Act does not apply to prisons.
A paraplegic's pro se claims are
dismissed. The plaintiff did not respond
to the swornary judgment motion and his
complaint was not sworn to, so the court
relies on the defendants' statements that
their medical treatment of him was
appropriate, that· delays in helping him
defecate and cleaning him up were his own
fault because he didn't go during the
daytime when more staff were available,
and that his medical and physical therapy
treatment are appropriate.
Rights of Staff/C1assification--Race
Wittmer v. Peters, 904 F.Supp. 845
(CD.IlI. 1995). In a challenge by white
staff to the race-based promotion of an
Afiican-American staff member in a boot
camp, the defendants argued that given
the
60-70%
African-American
composition of the inmate population, the
ope.rational needs of the camp provided
a compelling interest that was served by
the promotion. The court says the
defendant's consideration of race in the
promotion was prudent but that this
conclusion is not sufficient to support
swornary judgment as to the necessity of

Spri ng/Summer 1997
consideration ofrace under strict scrutiny.
However. they are entitled to qualified
Immunity.
The court declines to order the next
available promotions for the plaintiffs
because there was no evidence that any
of them would have been promoted in
place of the African-American had race
not been a factor.
Procedural Due Process--Disciplinary
ProceedingsfUse of Force/Discovery
Carter v. Carriero, 905 F.Supp. 99
(W.D.N. Y.
1995).
Disciplinary
confmement in special housing does not
deny liberty under Sandin because the
restrictions involved are imposed on all
SHU inmates, whether or not they are there
for disciplinary purposes. The fact that
the plaintiff was sentenced to 360 days,
with 90 suspended, did not matter because
it did not exceed similar administrative
confinement.
The prisoner was not denied due
process in any case. The hearing officer's
refusal to ask witnesses particular
questions about the incident was
appropriate becaUsethewitnesses said they
had no personal knowledge ofthe incident.
The failure to produce a baton at the
hearing did not deny due process because
there was no,claim that the prisoner broke
it. The plaintiffs claim that the hearing
officer was biased is unsupported.
ProceduraIDueProcess--OassificationJ
Procedural Due Process--Temporary
ReleaseOassification/EqualProtectionJ
Negligence, Deliberate Indifference and
IntentIRehabilitation/Ex Post Facto
Laws
Neal v. Shimoda. 905 F.Supp. 813
(D. Haw. 1995). Under Sandin, there is
no liberty interest in furlough or in freedom
from being labeled as a sex ·offender.
The Sex OffenderTreatment Program
does not deny equal protection. At 819:
Given the high probability
that an untreated sex offender will

THE NATIONAL PRISON PROJECT Journal·· page 38
commit another offense, the
state's policy of denying parole,
furlough and minimmn security
classification to untreated
offenders is rationally related to
the government's interest in
protecting the public. Denying
untreated offenders placement in
minimmn facilities also furthers
the state's interest in maintaining
safety and security in its prison
facilities.
The fact that the program extends to
persons who were not convicted of sex
offenses, based on the "offense facts," does
not make it unlawfully overinclusive. Id.:
"The consequences ofreleasing untreated
sex offenders back into society is the same,
regardless of whether they have been
convicted of the offense. "
Requiring that sex offenders "not be
in denial about their crimes" does not
violate the Fifth Amendment prohibition
against self-incrimination, since the
program is not a proceeding in which the
answers might subsequently incriminate
him.
The sex offender program does not
violate the Eighth Amendment. Under
LeMaire, since prison officials must
balance other important responsibilities
against the plaintiff's rights, they must be
shown to have acted maliciously and
sadistically. Here, they have acted with
concern for his welfare.
The sex offender program is not an
ex post facto law with respect to its
prohibition on placing untreated offenders
in minimum custody, since it was created
to treat inmates, not to pWlish them. It
is also not a "law"; rather, it is a nonbinding policy.

John Boston is the Director of the
Prisoners' Rights Project. Legal Aid
Society of New York. He regularly
contributes this column to the NPP
Journal.

Spring/Summer 1997

Project

1997 AIDS in Prison Bibliography

The National Prison Project Journal,
a quarterly publication, $30/year ($2
for prisoners), send check or money
order to the NPP.

NEW EDITION -- revised and
greatly expanded, lists resources on
AIDS in prison available from the
NPP and other sources, including
corrections policies on AlDS,
educational materials, medical and
legal articles, and r~cent AIDS studies.
$25 prepaid from NPP.

National .Prison
Publications

The Prisoner Assistance Directory,
identifies and describes various
organizations and agencies that
provide assistance to prisoners. Lists
national, state and local organizations
and sources of assistance including
legal, AlDS, family support and exoffender aid. 11 th Edition, published
July 1996. Paperback, $30 prepaid
from NPP.

A Primer for Jail Litigators is a
detailed manual with practical
suggestions for jail litigation. It
includes chapters on legal analysis,
the use of expert witnesses, class
actions, attorneys' fees, enforcement,
discovery, defenses' proof, remedies,
and many practical suggestions. 1st
Edition, February 1984 (case citations
and correctional standards updated
1995). 180 pages, paperback, $20
prepaid from NPP. (Note: this is not
a "jailhouse lawyers" manual.)

AIDS in Prisons: The Facts for
Inmates and Officers is a simply
written educational tool for prisoners,
corrections staff and AlDS service
providers. The booklet answers
comrnonlyaskedquestionsconcerning
the meaning of AlDS, the medical
treatment available, legal rights and
responsibilities. Also available in
Spanish. Single copies free, call for
bulk order pricing -- 202/234-4830.

TB: The Facts for Inmates and
Officers answers commonly-asked
questions about tuberculosis (TB) in
a simple question-and-answer format.
Discusses what tuberculosis is, how
it is contracted, its symptoms,
treatment and how HIV infection
affects TB. Single copies free, call
for bulk order pricing -- 202/2344830.

ACLU Handbook, The Rights of
Prisoners. Guide to the legal rights
of prisoners, parolees, pre-trial
detainees, etc., in question-and
answer-form, contains citations. 4th
Edition, 1988, paperback, 136 pages,
$7.95 plus shipping. NOT available
directly from the National Prison
Project. Order fr'om the ACLU by
phone, 1-800-775-ACLU, or through
the ACLU web site: www.aclu.org.

NPP and ACLU On-Line
For information on National Prison
Project publications, current cases and
other items of interest, visit the NPP
web page: www.NPP.org.
For
, information about other activities of
the ACLU, visit the ACLU web page:
www.ACLU.org

THE NATIONAL PRISON PROJECT Journal·· page 39

Spri ng/Summer 1997

lower rate than other states. Changes
spending for corrections outpaced
in policing strategies, demographics,
higher education by a margin of four
the drug trade, and other factors
to one.
The Sentencing Project issued appear to be more promising
The report, Trading Classrooms
a new international study in June
explanations.
for Cell Blocks: Destrnctive Policies
which reveals that Russia and the
The report also looked at the
Eroding D. C. Communities, can be
United States have reached record
impact ofeducation in prison on crime
obtained from The Justice Policy
levels of incarceration and are far .' control. Surveys have shown that
Institute, 2208 Martin Luther King,
ahead of other nations in their use of 41 % of state prisoners have not
Jr. Ave., SE, Washington, DC 20020.
imprisonment. In 1995, the rate of
completed high school or obtained a
incarceration in Russia was 690 per
GED, and that participation in prison
The Supreme Court ruled on
100 000 and in the US. 600 per
education programs leads to
RFRA, in City ofBoerne v. Flores,
100:000, about 6-10 times that of reductions in recidivism. Despite this,
65 US.L.W. 4612 (June 25,1997).
other industrialized nations and an allprison education programs have been
The Court struck down the 1993
time high. Drug offenders constituted
reduced substantially, due to
Religious
Freedom Restoration Act
more than a third (36%) of the
Congressional action in cutting Pell
which was enacted by 'Congress in
increase in state prisoners in the US.
grants for prisoners in 1994 and, in
response to the Supreme Court's
from 1985 to 1994 and more than
16 states, through state budget
earlier decision in Employment
two-thirds (71 %) of the increase in
actions.
v. Smith. Under R.FRA, the
Division
federal prisoners.
The full report, AmericansBehind
government must provide a
The study also found that a 92%
Bars:
and International Use of compelling justification whenever it
increase in the US. rate of Incarceration, 1995, is available for
places a burden on religion.' The
incarceration had little overall iI:npact
$8 from The Sentencing Project, 918
Court
saw RFRA as an attempt to
on crime rates in the ten-year period
F Street, NW, Washington, DC
supersede the constitutional ruling in
between 1985 and 1995. Despite
20004; (202) 628 0871.
Smith
--which held that the Free
declines in crime in the last several
Exercise Clause did not require strict
years, overall crime rates in 1995
The Justice Policy Institute scrutiny under those circumstances
remained virtually the same as in 1985
reported that from 1987 to 1995, state
--and thus beyond the scope of
and violent crime was up by 23%. The
corrections spending increased 30%
congressional authority under § 5 of
relationshipbetween incarceration and
while spending on higher education
the Fourteenth Amendment. While
crime rates has been inconsistent with
decreased 18%. 1995 marked the firstacknowledging that Congress has
an increase in crime from 1985 to .
year in which money spent on building
broad authority to enforce the
1991, and a decrease for 1991-95,
prisons
exceeded
university . Fourteenth Amendment under § 5, it
despite a continuous rise in
construction funds. Between 1994
may not "enforce a constitutional right
incarceration.
and 1995, construction funds for
by changing what the right is." While
The report also examined the
higher education dropped by $954
the
decision takes RFRA away from
dramatic reductions in crime in New
million, while prison construction
state prisoners, there is some
York City in recent years and found
increased by $926 million.
.
argument
that it may still be applicable
no indication that an increase in
The situation was particularly
to federal prisons. Discussions have
imprisonment was responsible.
bleak in the District of Columbia
begun in Congress about introducing
During the 1990-95 period when
where in the 1980's alone, correction
a new version ofRFRA, but there will
crime was declining in New York the
expenditures increased at a rate
undoubtedly
be a strong move to deny
jail population in the city act~ally
almost seven times that of higher
prisoners coverage under any new act.
declined and the state pnson
education spending and the per capita
population increased at a substantially

Prison News

u.s.

THE NATIONAL PRISON PROJECT Journal·· page 40

Highlights from the
Prison Proj ect' s
Docket
Following
are
some
new
developments in our litigation over
the past few months.

Youngv. Hmper--OnMarch 18, the
U.S. Supreme Court, in a unanimous
opinion written by Justice Thomas,
affirmed the opinion of the Tenth
Circuit that preparole was sufficiently
like parole to entitle a program
participant ~o the procedural
protections set forth in the earlier
landmarkcase ofMorrissey v. Brewer.
Oklahoma prisonerErnest Harper had
participated successfully in a
prerelease program for five months
(living at home and working at two
jobs) when his participation in the
program was abruptly terminated
because the governor decided that he
.was not eligible for parole.

Harper maintained that the
circumstances of the prerelease
program created a liberty interest
protected under the 14th Amendment
which entitled him to a due process
hearing, and he should not have been
summarily returned to prison. He lost
his case in the district court but won
on appeal.
The NPP was appointed to
represent Harper before the Supreme
Court for the case that was argued on
December 9, 1996.

Amatel v. Reno--On August 12, a
judge in U.S. District Court for the
District of Columbia found that new
Federal Bureau ofPrisons' regulations
banning sexuallyexplicit materials (the
so-called "Ensign Amendment") are
unconstitutional. The NPP, together
with lawyers from Jenner & Block and
the ACLU National Office, filed suit
in April on behalf of three Federal
prisoners, the publishers of Playboy
and Penthouse magazines, and a
publishers' trade association.

Spring/Summer 1997
Following plaintiffs' request for
a preliminary injunction, the judge
granted a peffilanent injunction against
enforcement of the new regulations
by the Bureau of Prisons.

Shumate v. Wilson-- The NPP.
together with local counsel, filed suit
in April 1995 on behalf of over 5,000
women prisoners at the Central
California Women's Facility and the
California Institution for Women,
charging that prisoners with serious
illnesses were being denied crucial
medical care and were suffering
needlessly. Prisoners with HIV and
AIDS claimed that policies and
practices resulted in routine disclosure
of their mv positive status.
On July 1997, just before trial was
scheduled to begin, the parties agreed
on a co~prehensive settlement. Ifthe
settlement is approved by the court,
an Assessor will monitor health care
in the two prisons with the assistance
offour medical experts over a sixteen
month period to determine ifthe state
is in compliance with requirements.

National Prison Project
American Civil Liberties Union Foundation
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Washington, D.C. 20009
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