THE NATIONAL PRISON PROJECT

ISSN 1076-769X

Journal ..

Vol. 12 No.2, Fall 1997IWinter 1998

Drug Treatment in Prison Are we at last beginning a rational debate
on the treatment ofdrug offenders in the
United States? After a decade ofharsher
punishment and longer prison sentences
driving incarceration rates to an all-time
high, a few straws in the wind may signal'
at least a change in emphasis, if not
direction. While there is little evidence
of an end to the "war on drugs," there is
a growing consensus that drug treatment
programs, in and outside prison, will be
far more effective than harsher
punishment in reducing crime and
recidivism rates. Among the welcome
SIgnS -

Joseph A. Califano, President of
The National Center on Addiction and
Substance Abuse at Columbia
University (CASA) and strong supporter
of criminal sanctions for drug use,
released Behind Bars: Substance Abuse
and America's Prison Population, the
'"
results ofa three-year
investigation into
connections between drugs and alcohol
and increases in U.S. incarceration rates. 1
On January 8, 1998, Califano,
accompanied at a press conference by
Drug Czar General Barry McCaffrey and
Charles Colson of Prison Fellowship,

I For further information contact: The
National Center on Addiction and
Substance Abuse at Columbia University,
152 West 57th Street, New York, N.Y.
10019-3310 or call212-841-5200.

rethinking our priorities?

called for increases in spending for drug
and alcohol treatment for prisoners and
constructive aftercare services that aid
and encourage ex-offenders to stay off
drugs.
CASA estimates that 80% or 1.4
million ofthe men and women in prisons
and local jails are locked up because of
crimes linked to drugs or alcohol. Some
ofthe 1.4 million prisoners were regular
substance abusers and faced charges of
drug possession or dealing, while others
were arrested for stealing to support their
drug habit. Many crimes, including violent
crimes, were committed by individuals
under the influence of drugs or alcohol.
The study also found strong
connections between substance abuse and
recidivism. In state prisons 81 % of
prisoners with five or more convictions
were found to be regular drug users
compared to only 41 % of first time
offenders. Despite these statistics most
prisoners leave prison without receiving
proper treatment for their addiction. As
a result, the cycle of abuse and crime
continues after they are out.
Comprehensive addiction programs
are severely lacking in state and federal
prisons. Unfortunately, investments in
these services continue to be cut while the
number of prisoners in need grows. In
1996 over 840,000 prisoners required
drug treatment but only 150,000 received
any service. The number of prisoners

obtaining treatment decreased by more
than 18,000 from 1995.
The report also recommends a
stronger emphasis on rehabilitation for
non-violent drug offenders rather than
increasing spending for bed space.
Effective treatment could stabilize the
lives of hundreds of thousands of exoffenders and dramatically reduce their
chances of returning to prison.
Additionally, substance abuse prevention
programs targeting young people, before
they have an opportunity to turn to drugs,
can save many lives and taxpayer dollars.
The CASA report describes a plan
ofaction to cut taxpayer costs and reduce
recidivism and calls its agenda 'The
Second Front in the War on Crime." In
addition to drug treatment in prison for
all who need it and incentives (reduced
prison time) for successfully completing
treatment, CASA supports the abolition
of mandatory sentences for nonviolent
offenders, treatment alternatives to
incarceration, pre-release planning for
treatment and aftercare services, job
placement services and help for parolees
in fmding drug-free housing, literacy
training and social services.
The National District Attorneys'
Association (NDAA)whose membership
includes state and local prosecutors in
all 50 states, issued a statement
supporting CASA's findings. "Simply
warehousing prisoners without regard to

THE NATIONAL PRISON PROJECT Journal -- page 2
addressing and dealing with the
underlying problem of substance abuse
produces unending taxpayer costs.
Longer prison terms without treatment,
training and follow-up make matters even
worse. Such practices breed the statistics
that feed the system. They don't prevent
or seek to put an end to crime."
The NDAA's spokesperson at the
press conference said of the report,
"BehindBars should mark a turning point
in the war on drugs. It provides the
ammunition - hard facts and clear
analysis - for what many of us in law
enforcement believe is the key to victory:
education and treatment.
President Clinton, responding to the
CASA report, issued an executive order
imposing tougher requirements on the
states in reporting the level of drug use
in prisons. However, the order also
allows states to use federal funds
allocated for prison construction to be
used for drug treatment programs instead.
In addition, the President has asked for
$200 million in the next Federal budget
to be eannarked for drug testing and drug
treatment in state prisons.
Chiefs ofpolice and prison wardens
have been clear for a while about the need
to change our approach to drug offenders.
Chiefs of police surveyed in 1996 called
overwhelmingly (85%) for major changes
in the way we deal with the drug
problem. 2 By a margin of two to one,
police chiefs said that putting drug users
in court-supervIsed treatment programs
is more effective than prison or jail time.
In a survey at the end of 1994, wardens
urged a more intelligent use of prison
space. 3 92% said that more use should

be made ofalternatives to incarceration,
including residential drug treatment
programs, and 89% favored the expansion
ofdrug treatment programs inside prison.
Now it seems that their message is beiftg
heard more widely.
The National Rifle Association's
Crime Strike project has been one of the
strongest voices supporting increased
imprisonment. Now even they have
softened their official line. While still
calling for more prison construction and
an end to parole, the NRA now says that
longer prison sentences are not the
solution for non-violent drug offenders.
More emphasis must be placed on drug
treatment and other rehabilitative
measures to help people stay out of
prison. 4
John Dilulio, professor of politics
and public affairs at Princeton University
and for many years the favorite academic
ofpoliticians calling for more prisons and
longer sentences, seems also to have seen
the light. Modifying his often stated
position that the huge increase in prison
populations are a result of the
incarceration of violent and repeat
offenders, Dilulio now finds that 25%
ofnew inmates entering prison New York
state are "drug-only" offenders with no
record of other types of crimes. If that
estimate is borne out by further research,
he says, the criminal justice system is
doing "a worse and worse job ofdiverting
drug-only offenders" into alternative
programs that would be less expensive
and where drug users might be more likely
to get treatment. 5
Now ifwe can just get Congress to
listen..... Unfortunately, legislation

Drugs and Crime Across America:
Police Chieft Speak Out, Peter D. Hart
Research Associates, 1996

Crime Strike Director Elizabeth
SwaZey, on Power Point, NPR Radio,
March 15, 1998.

3 U.S. Senate Judiciary Committee's
Subcommittee on the Constitution, survey
published December 21, 1994.

5 "As Crime Rate Falls, Number of
Inmates Rises," Fox Butterfield, New York
Times, January 19, 1998,

2

4

Fall 1997/Winter 1998
currently under consideration still focuses
on mandatory minimum sentence,
increasing funding for prison construction
and decreasing expenditure on prevention
programs. Of the seven bills currently
before Congress to deal with the
disparities in crack vs. powder cocaine
sentencing, six propose longer sentences
for offenses involving powder cocaine.
An unfortunate side effect of the current
strong economy is the lessening of fiscal
pressure to reduce prison building. We
can only hope that some state legislatures
will show greater wisdom than the federal
government, and allocate some of their
increased tax revenues to rehabilitation,
and in particular drug treatment, rather
than continue to fuel the correctional
industrial complex.

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
1875 Connecticut Ave., Ste.410
Washington, DC 20009
Phone: (202) 234-4830
Fax: (202) 234-4890
Email: JenniGains@AOL.COM
NO COLLECT CALLS
NPP Director: Elizabeth Alexander
Journal Editor: Jenni Gainsborough
Editorial Assistant: Kara Gotsch
Regular Contributor: John Boston

J

THE NATIONAL PRISON PROJECT

Journal -- page 3

Fall 1997/Winter 1998

Case Law Report -- Highlights of Most Important Cases
by John Boston
U.S. Supreme Court Cases:
1996-97 Term
Color of Law/Qualified Immunity
Richardson v. McKnight, 117 S.Ct.
2100 (1997). Employees of a private
prison are not entitled to qualified
immunity. The Court previously held in
Wyattv. Cole that private defendants who
had invoked state judicial processes later
declaredunconstitutionalwere notentitled
to qualified immunity. There is no firmly
rooted tradition of immunity applicable
to privately employed prison guards. The
rationale of protecting public officials
from distraction and inhibition in
performing their duties does not apply
to private companies that are subject to
market constraints (i.e., damage awards
will hurt their competitiveness, but guards
who are too timid will make them
vulnerable to replacement by firms that
do a better job). Other features of
privatization, including the use of
insurance and indemnification of
employees and the lack of civil service
constraints on salaries and benefits,
further differentiate private prison staff
from public.
The Court leaves open the question
whether the detendant officers actually
acted under color of state law; it cites
Lugar v. Edmondson Oil Co. but not
West v. Atkins. It notes the decision is
limited to the context of a private firm,
systematically organized to assume a big
and long administrative task with limited
direct supervision by the government,
acting for profit and potentially in
competition with other firms. The Court
also does not exclude the possibility of
a "good faith defense."

Procedural Due Process
Young v. Harper, 117 S.Ct. 1148
(1997). A "pre-parole" program which
was virtually identical to parole is subject
to the same due process constraints on
revocation as is parole. The court rejects
the view that pre-parole is really just a
lower level of custody.
Transfer and Admission to Mental
Health Facilities/Ex Post Facto Laws
Kansasv. HendriCks, 117 S.Ct. 2072
(1997). A Sexually VioleQt Predator Act
establishes procedures for the civil
commitment of persons who because of
a "mental abnormality" or a "personality
disorder" are likely to engage in
"predatory acts of sexual violence."
"Mental abnormality" is defined as a
"congenitaloracquiredconditionaffecting
the emotional or volitional capacity which
predisposes the personto commit sexually
violent offenses in a degree constituting
such person a menace to the health and
safety of others." The statute applies to
prisoners convicted of sexually violent
offenses scheduled for release, persons
charged with such offenses but
incompetent to stand trial, and persons
found not guilty by reason of insanity or
just not guilty ofsuch an offense. Ajury
found Hendricks to fit the statutory terms
after testimony in which he substantially
confessed to them.
The
definition of "mental
abnormality" satisfies substantive due
process requirements. A finding of
dangerousness, supplementedbya finding
of a volitional impairment rendering the
person "dangerous beyond [his or her]
control," suffices to support indefinite
incarceration. The phrase "mental illness"
has no talismanic significance and such
a finding is not required.
The statute does not impose criminal

liability, a conclusion the Court bases in
part on the fact that it applies to people
who have been acqUitted. Nor does it
operate as a deterrent; persons committed
under it are treated like involuntarily
committed persons and not like prisoners
(i.e., in a separate unit in the prison
system run by non-Department of
Correction personnel). Thus, it is not
punishment. The fact that safeguards
equivalent to those in a criminal trial are
used does not make the proceeding
criminal in nature.
The alleged lack of meaningful
treatment does not make the statute
punitive. Incapacitation is a legitimate
purpose if a disorder is untreatable, and
in any case Hendricks got some treatment
(per facts not legitimately in the record).
Since the statute is not punitive, there
are no claims under either the Double
Jeopardy Clause or the Ex Post Facto
Clause. As to the latter, the statute has
no retroactive effect but acts upon a
determination of the person's current
condition.
Good Time/Crowding/Ex Post Facto
Laws
Lynce v. Mathis, 117 S.Ct. 891
(1997). Pursuant to a 1983 statute,
Florida awarded "provisional credits" to
prisoners hastening their release dates as
a result of overcrowding. The petitioner,
convicted in 1986, was released and then
returned to prison after the state attorney
general issued an opinion stating that a
1992 statute rescinded all such credits.
The retroactive cancellation of the
petitioner's credits violated the Ex Post
Facto Clause. This prohibition is "only
one aspect of the broader constitutional
protection against arbitrary changes in
the law." (895) Whether the credits at
issue were intended to reward good

THE NATIONAL PRISON PROJECT Journal·· page 4
conduct or relieve overcrowding was
secondary; the question is whether the
new statute objectively lengthened
petitioner's prison time. The Court rejects
the argument that crowding-related gain
time is not "part ofthe sentence."
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Edwards v. Balisok, 117 S.Ct. 1584
(1997). A prisoner who sued over a
disciplinary conviction could not proceed
under § 1983 without first getting the
conviction set aside via state proceeding
or federal habeas corpus because success
on his claim would necessarily imply the
invalidity ofthe conviction. The plaintiff
complained that he was denied the right
to put on a defense by calling witnesses.
At 1588: "This is an obvious procedural
defect, and state and federal courts have
reinstated good time credits (absent a new
hearing) when it is established." ld.:
Respondent's claim, however,
goes even further, asserting that
the cause ofthe exclusion ofthe
exculpatory evidence was the
deceit and bias of the hearing
officer himself. . .. The due
process requirements for a prison
disciplinary hearing are in many
respects less demanding than
those for criminal prosecution,
but they are not so lax as to let
stand the.. decision of a biased
hearing officer who dishonestly
suppresses
evidence
'of
innocence.
At 1589: "We conclude, . . . that
respondent's claim for declaratory relief
and money damages, based on allegations
of deceit and bias on the part of the
decisionmaker that necessarily imply the
invalidity ofthe punishment imposed, is
not cognizable under § 1983."
The district court should not have
stayed the case while the plaintiff sought
restoration ofgood time credits through

state remedies. If a case is not legally
cognizable under § 1983, it should be
dismissed.
The concurring Justices (Ginsb~rg
joined by Souter and Breyer) "agree_that
Balisok's claim is not cognizable under
42 U.S.c. § 1983 to the extent that it is
'based on allegations of deceit and bias
on the part of the decisionmaker,'" but
note that there are other procedural
defects including failure to provide a
statement of reasons. Defects like this
do not necessarily imply the invalidity of
the good time deprivation and are
immediately cognizable under § 1983.
NON-PRISON CASES
Equal Protection
ML.B. v. s.L.J, 117 S.Ct. 555
(1996). Refusal to permit indigents to
appeal in forma pauperis from
termination of parental rights is
unconstitutional. The Court analogizes
the case to Griffin, involving criminal
appeals, and not to cases involving other
kinds ofcivil proceedings, because of the
importance of the interest at stake and
the fact thatthe state is proceeding against
the individual. The Court notes that the
Griffin line of cases reflect both equal
protection and due process concerns and
that no "precise rationale" has been
composed; the Court suggests that equal
protection is more germane. Justice
Thomas, with Justice Scalia concurring,
says he would overrule Griffin and its
progeny if the question were presented.
Even Rehnquist doesn't buy this.
Sexual Abuse/Qualified Immunity
United States v. Lanier, 117 S.Ct.
1219 (1997). A state court judge was
convicted of criminal civil rights
violations for sexually assaulting judicial
employees and litigants. The Sixth
Circuit held that in the absence of a
Supreme Court decision finding a right

Fall 1997/Winter 1998
to be free from unjustified assault or
invasions of bodily integrity in a
"fundamentally similar" situation, the
defendant had insufficient notice that his
conduct was prohibited by the statute.
The ap~eals court used the wrong
standard. A:Supreme Court decision is
not necessary; in qualified immunity
cases, court of appeals cases may
establish the law. The "fundamentally
similar" standard is unnecessarily high;
the "clearly established" standard of civil
liability is sufficient. At 1227:
This is not to say, of course,
that the single warning standard
points to a single level of
specificity sufficient in every'
instance. In some circumstances,
as when an earlier case expressly
leaves open whether a general.
rule applies to the particular type
ofconduct at issue, a very high
degree of prior factual
particularity may be necessary.
. . . But general statements of
the law are not inherently
incapable ofgiving fair and clear
warning, and in other instances
a general constitutional rule
already identified in the
decisional law may apply with
obvious clarity to the specific
conduct in question, even though
"the very action in question has
[not] previously been held
unlawful," ...
MunicipalitieslUse of Force

Board ofCounty Commissioners of
Bryan County, Oklahoma v. Brown, 117
S. Ct. 1382 (1997). The plaintiff was
injured by a police officer who had been
hired despite his misdemeanor record
which included assault and battery,
resisting arrest and public drunkenness.
At 1388: n . . [A]n act performed
pursuant to a 'custom' that has not been
formally approved by an appropriate

THE NATIONAL PRISON PROJECT
decisionmaker may fairly subject a
municipality to liability on the theory that
the relevant practice is so widespread as
to have the force oflaw." Id:.:
. . . [I]t is not enough for a §
1983 plaintiffmerely to identify
conduct properly attributable to
the municipality. The plaintiff
must also demonstrate that,
through its deliberate conduct,
the municipalitywas the "moving
force" behind the injury alleged.
That is, a plaintiff must show
that the municipal action was
taken with the requisite degree
of culpability and must
demonstrate a direct causal link
betweenthe municipal action and
the deprivation of federal rights.
At 1389: "... [P]roof that a
municipality's legislative body or
authorizeddecisionmakerhasintentionally
deprived a plaintiff of a federally
protected right necessarily establishes that
the municipality acted culpably." By
contrast, "[w]here a plaintiff claims that
the municipality has not directly inflicted
an injury, but nonetheless has caused an
employee to do so, rigorous standards of
culpability and causation must be applied
to ensure that the municipality is not held
liable solely for the actions of its
employee." Past cases where the Court
has recognized municipal liability based
on a single d~cision have been of the
former sort, where evidence that the
municipality had acted and the plaintiff
had been deprived offederal rights "also
proved fault and causation. "
The Court distinguishes cases
involving a "program" of inadequate
training; if the training does not prevent
constitutional violations, municipal
decisionnmakers may eventually be put
on notice that a new program is needed.
Continued adherence to an approach that
they know or should know has failed to
prevent tortious conduct may establish

Journal .. page 5

the necessary deliberate indifference. The
existence ofa pattern oftortious conduct
by inadequately trained employees may
show that lack oftraining is the moviifg
force behind a plaintiffs injury.
The analogy between failure to train
cases and failure to screen cases is not
convincing. Canton said a plaintiffmight
prevail on failure to train without showing
a pattern of violations since the violation
may be a "highly predictable consequence
of a failure to equip law enforcement
officers with specific tools to handle
recurring situations." (1391) However,
the consequences of a single hiring
decision are not so easily predictable;
showing that inadequate scrutiny of an
applicant's background would make a
violation of rights more likely does not
support an inference that failure to screen
a particular applicant produced a specific
constitutional violation. Liability must
be based on "a finding that this officer
was highly likely to inflict the particular
injury suffered by the plaintiff." (1392)
This hiring decision could not have been
deliberately indifferent unless, in light of
the record the Sheriffdid not look at, the
officer's use ofexcessive force would have
been a plainly obvious consequence of
the hiring decision.
Municipalities
McMillian v. Monroe County, Ala.,
117 S. Ct. 1734 (1997). An Alabama
sheriff is a policymaker for the state, not
the county, when acting in his law
enforcement capacity. This conclusion
does not necessarily apply to actions by
the sheriff in other capacities.
Modification of Judgments
Agostini v. Felton, 117 S.Ct. 1997
(1997). The Supreme Court's overruling
of constitutional precedent in this case
entitles the defendants to reliefunder Rule
60(b)(5). The lower courts, however,
should not reject the application ofdirect

Fall 1997/Winter 1998
precedent even if it appears that that
precedent has been overruled by
implication.

State Officials and Agencies
Idaho v:: Coeur d'Alene Tribe of
Idaho, 117 S.Ct. 2028 (1997). A suit
by an Indian tribe alleging ownership of
lands under a treaty and seeking
declaratory and injunctive relief was the
functional equivalent of a quiet title
action, and was barred by the Eleventh
Amendment; the Court declines to apply
the Ex parte Young fiction in these
circumstances.
Justice Kennedy's
majority opinion at §§ Il.B-II.D sets out
a revisionist view ofEleventh Amendment
jurisprudence calling for a case-by-case
inquiry into whether Ex parte Young
should be applied depending on the weight
ofthe state's interests. This is too much
even for Justices O'Connor, Scalia, and
Thomas, who concur in all but those
sections ofthe opinion, leaving Kennedy
and Rehnquist alone on that point.
State Officials and Agencies
Regents of the University of
Californiav. Doe, 117 S.Ct. 900 (1997).
The fact that a state agency will be
indemnified by the federal government
does not exempt a suit against it from the
Eleventh Amendment's prohibition.
Remedial Principles
Lawyerv. DepartmentofJustice, 117
S.Ct. 2186 (1997). In a redistricting case,
the state Attorney General's office agreed
to a settlement, which one ofthe plaintiffs
didn't like. It was not necessary for the
court to have declared the original plan
unconstitutional for it to approve the
settlement. Approving the settlement was
not inconsistent with the principle that
a state should have the opportunity to
make its own redistricting decisions; the
state took that opportunity by having its

THE NATIONAL PRISON PROJECT Journal .. page 6
Attorney General submit a settlement
proposal.
The court was not precluded from
approvingthe settlementby the opposition
ofone party; that party had the right to
be heard at the settlement approval
proceeding. The settlement did not
improperly dispose ofthe plaintiff's claim
by cutting him offfrom a remedy; it gave
him an element ofthe reliefhe had sought.
The fact that he didn't have a judgment
was irrelevant where he had the substance
of relief. The fact that he didn't have the
remedy he wanted is, apparently,
irrelevant since the remedy the court
imposed by settlement is not
unconstitutional.
Class Actions--Certification of Classes,
Settlement of Actions
Amchem Products, Inc. v. Windsor,
117 S.Ct. 2231 (1997). When a class
action is filed simultaneously with a
settlement proposal, the court's review
ofthe settlement should be accompanied
by a review of the propriety of class
certification, although in that context the
court need not consider the manageability
of the trial that the parties propose to
avoid. All the other requirements ofRule
23 must be met.
The proposed class, a national class
ofpersons exposedto asbestos who would
otherwise bring suit separately under the
tort laws of the various states, including
persons falling into different categories
(ill, merely exposed, etc.), did not meet
the requirement of Rule 23(b)(3) that
common issues predominate over
individual issues. There are also potential
conflicts of interest compromising
representational adequacy. Finally, there
are major problems of notice to persons
without current symptoms, as well as to
future spouses and children who may have
consortium claims. The court questions
whether sufficient notice could ever be
given "to legions so unselfconscious and

amorphous. "
Standing
..
Raines v. Byrd, 117 S.Ct. 2312
(1997). This is the Line Item Veto Act
case, which holds that federal legislators
lack standing to challenge the statute.
Standing boilerplate is succinctly recited

Court of Appeals Cases
Temporary ReleaseJWork Assignments!
Personal Property
Reimonenq v. Foti, 72 F.3d 472 (5th
Cir. 1996). The plaintiff alleged that a
requirement that he contribute ten per cent
ofhis 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 ofadhesion under state law nor
the product of duress, and the workrelease statute authorized conditioning
work-release participation on the
contribution. Apparently no federal
constitutional claims were raised in this
case.
AIDSlMedicai RecordslHygiene/Recreation and Exercise/Qualified ImmunitylEquai Protection/ Procedural
Due Process
Anderson v. Romero, 72 F.3d 518
(7th Cir. 1995). The IDV-infected
plamtiff alleged that prison officials
disclosed his mv status and denied him
barbering and yard privileges because of
his status.
There is no clearly established right
in the privacy of medical records.

Fall 1997/Winter 1998
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 \n 1992, even had it been
established that some medical disclosures
might be unconstitutional. Woods v.
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 Constitution just 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
clearthat 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 ofa case involving this

THE NATIONAL PRISON PROJECT Journal -- page 7
specific fonn 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 ofprecedent.
A state regulation providing that all
prisons "shall provide every committed
person with access to . . . barber
facilities" is sufficient to create an
entitlement. At 527: "There is no novelty
to this claim . . . and therefore no basis
for a defense of immunity." However,
Sandin v. Conner will have to be
considered on remand.
At 527:
. . . To deny a prisoner all
opportunitiesfor exerciseoutside
his cell would, the cases suggest,
violate the Eighth Amendment
unless the prisoner posed an
acute security risk ifallowed out
of his 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
circlll11S1:a.Q.ces, such as that the
prisoners were confined to their
cells almost 24 hours a day and
were not 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 ofoutdoor exercise
was merely one of a number of
circumstances that in the
aggregate constituted the
infliction of cruel and unusual

punishment.
Wilkerson v.
Maggio ... held that an hour a
day of indoor exercise satisfied A
the constitutional minimum.
The court then adds: "But these are
matters for the district judge to consider
in the first instance."
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
thatthe individual defendants--ratherthan
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 ifthe defendants had shown that
making the plaintiffhandle pork met the
Turner test, but they didn't try.
Searches--Person, Living Quarters
/Qualified Immunity
Hardingv. Vilmer,72 F.3d 91 (8th
Cir. 1995). The plaintiffalleged that he
was subjected to retaliatory strip and cell
searches in violation of the Eighth
Amendment. It was clearly established
that such searches couldviolate the Eighth
Amendment. Given the factual disputes
about the searches, there is no appellate
jurisdiction over the defendant's qualified
immunity appeal.
Service of Process/Procedural Due
Process/Access to Courts

Fall 1997/Winter 1998
UnitedStatesv. $184,505.01 in U.S
Currency, 72 F.3d 1160 (3d Cir. 1995).
Service by the government of a notice of
civil forfeiture proceedings at the address
ofthe seizure, rather than in prison where
the government knew the claimant to be
incarcerated,'henied due process. Service
in prison of a notice of the earlier
administrativeproceedingsdidnotprovide
notice ofthejudicial proceedings. Service
on the criminal defense attorney did not
constitute adequate notice, since the
attorney did not at that point represent
the claimant in the forfeiture proceedings.

Habeas Corpus/State-Federal Comity
Simpson v. Rowan, 73 F.3d 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
plaintiff's 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 Force/Pro Se Litigation
Eason v. Holt, 73 F.3d 600 (5th Cif.
1996). The plaintiffalleged that he was
thrown to the ground, handcuffed, and
kicked by prison staff without
provocation. After a Spears hearing, the
magistratejudge dismissed on the ground
that he alleged no injury, or alternatively
that the injury he alleged was de minimis.
The court improperly ignored the
plaintiff's 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

THE NATIONAL PRISON PROJECT Journal·· page 8
amendedcomplainthas beensubsequently
filed.
Thealternative ground, thatthe injury
was de minimis, is inconsistent with the
allegations in the complaint. The court
does not elaborate.
Procedural
Due
Process-Administrative Segregation
Pichardov. Kinker, 73 F.3d 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
Dominique v. Weld, 73 F.3d 1156
(1st Cir. 1996). The plaintiff had
participated in work release for almost
four years and 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 subje2ted him to conditions "no
different from those ordinarily
experienced by large numbers of other
inmates serving their sentences in
customary fashion." (1160) Thus, the
deprivation did not meet the "threshold
test" of Sandin. The existence of a
temporary release agreement does not
alter this analysis.
New temporary release regulations
barring sex offenders from work release
until they successfully completed a
treatmentprogram, admitted their offense,
etc., did not violate the Ex Post Facto

Clause. The court notes the dispute
among circuits as to whether a regulation
constitutes a "law" for this purpose, j>Ut
holds that in any case there is no violation.
Under Morales, "this change ii) the
conditions determining the nature of [the
plaintiffs] confinement while serving his
sentence was an allowed alteration in the
prevailing 'legal regime' rather than an
'increased penalty' for ex post facto
purposes." (l163)
Federal Officials and Prisons/Law
Libraries and Law Books
UnitedStatesv. Sarno, 73 F.3d 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.'" (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 appointed to assist
him. His access was adequate. The five
hours a week during 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 Official/Correspondence--Non-Legal/In
Forma Pauperis
Treffv. Galetka, 74 F.3d 191 (lOth

Fall 1997/Winter 1998
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 claim is
rejected because the defendant was not
shown to be involved in any deprivation
and the deprivation was not shown to have
occurred. The plaintiffs main evidence
is that his mail was not responded to.
The costs of service were properly
imposed against an IFP litigant whose
financial status improved during the
course of the litigation.
Pre-Trial Detainees/Habeas Corpus
/Length of Stay
Hamilton v. Lyons, 74 F.3d 99 (5th
Cir. 1996). The plaintiffalleged 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
ofthe Wolfish "punishment" standard that
permits inference of punitive intent from
the lack of a reasonable relationship to
legitimategovernmental interests. Rather,
the parolee must prove expressed intent
to punish for the new charge. At 106:
In [detainee] cases, a fmding
that the government intended to
punish the detainee is equivalent
to a finding that the government

THE NATIONAL PRISON PROJECT
intended to punish the detainee
for the pending charge. Thus,
an inference that governmental
intent was punitive is equivalent
to an inference that the
challenged
condition
IS
unconstitutional.
However, such an inference
is not warranted in the case of
the detained parolee. Unlike the
typical pretrial detainee, the
justification for the detention of
a detained parolee is dual. . . .
[T]he detention and subsequent
reincarceration of a parolee are
only triggered by the new arrest;
detention and reincarceration are
justified
by
the
prior
conviction. . .. For detained
parolees, the due process right
to be free from punishment for
a pending charge is not
equivalent to the right to be free
from punishment altogether.
The court does not remand for
findings because the alleged three-day
denial of visiting, telephone access,
recreation, mail, legal materials, sheets
and showers was de minimis. (If that's
true, why did the court engage in the
preceding theoretical exercise?)
Suicide
Prevention/Negligence,
Deliberate Indifference and Intent/PreTrial Detainees
Hare v. City ofCorinth, Miss., 74
F.3d 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
ofpretrial confinement. When,

Journal·· page 9

Fall 1997/Winter 1998

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 ofmind 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 of
Bell's reasonable relationship test is
functionally equivalent to a deliberate
indifference inquiry." There is no
constitutionally significant difference
between the rights of detainees and
convicts to basic human needs, so the
claims of both groups are governed by
the subjective deliberate indifference
standard. The court justifies this
conclusion by noting that both the Eighth
Amendment deliberate indifference
standard and the due process right of
detainees turn on the presence or absence
of "punishment."
To invoke the Bell test, a detainee
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: "Formulatingagossamer
standard higher than gross negligence but
lower than deliberate indifference is
unwise because it would demand
distinctions so fine as to be meaningless."
Only one of 17 judges objects to this
conclusion.
Religion--Practices--Beards,

Hair,

Dress/Religion--Services
Within
Institution
Hamilton v. Schriro, 74 F.3d 1545
(8th Cir. 1996). The plaintiff's claim
based on religious rights "encompasses
two separa~. theories: (1) deprivation of
his constiriItionally 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 plaintiff's First Amendment claim
fails under the Turner test. His RFRA
claim fails too. Although RFRA was
intended to displace 0 'Lone, it was not
intended to impose a standard more
rigorous than that in effect before 0 'Lone.
That case law incorporated the same
principle of deference recognized in
o 'Lone. Its"[restrictions] no greater than
necessary" principle is "functionally
synonymous" with the least restrictive
meansprongofRFRA. (1554) However,
prison officials must offer more than
conclusory statements and post hoc
rationalizations for their conduct. (1554
n. 10) The usual security justifications
for hair length regulations (concealment
of contraband and gang identification)
are sufficient. The sweat lodge ceremony
could be prohibited because it would
provide an opportunity for assault,
escape, drug use and homosexual conduct
outside the view of prison guards, and
other prisoners might consider it
favoritism for the Native Americans to
get their own religious facility. The
defendants had offered less restrictive
alternatives (i.e., ceremonies not inside
an opaque structure), but the plaintiff had
rejected them.
The dissenting judge objects to the
majority's dismissal of the 1975 case of
Teterudv. Burns, which struck down hair
length regulations, and extensively

THE NATIONAL PRISON PROJECT
discusses the constitutionality of RFRA.
Disabled/Procedural Due Process-Administrative Segregation/Medical
Care--Standards
of
Liability-Deliberate Indifference/Federal 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
plaintiff was denied his wheelchair
because it did not fit through the cell
doors, denied physical therapy sessions,
and deprived of exercise, recreation,
hygienic care, and medical care do not
raise an inference of deliberate
indifference to serious medical needs.
Religion--Services
Within
Institution/State
Officials
and
Agencies/Pendent and Supplemental
Claims
Ganther v. Ingle, 75 F.3d 207 (5th
Cir. 1996). The plaintiffalleged that he
had been permitted to conduct meetings
in the yard ofthe House Hold Faith Full
Gospel Church, with himself as pastor,
but when he asked to hold services in the
chapel, his request was denied and his
yard meetings were terminated.
The plaintiffs damage claim against
the defendants for intentional infliction
of emotional distress was properly
dismissed under the Eleventh Amendment
because Texas has not waived its
sovereign immunity as to such claims.
(This makes no sense.)
The plaintiff's injunctive claim was
improperly dismissed under the Eleventh
Amendment, since there was one original
defendant who was still in his position
and in any case the successors of the
others were automatically substituted as
official capacity defendants.
The defendants were entitled to

Journal·· page 10

qualified immunity. At the time of the
challenged conduct, the law did not
require equality of resources for ~ss
populous denominations, and under the
Turner standard the defendants brpught
forward sufficient reasons for stopping
his yard meetings. (These included:
administrative and space limits and the
policy of not holding denominational
services; the belief that allowing a
prisoner to lead services violated "the
spirit of RUiz," presumably referring to
giving inmates positions ofauthority; and
the danger that inmate groups could meet
for other purposes in the guise ofreligious
services.)
The district court should not have
refused to hear the plaintiff's RFRA claim
on the ground that it was a new claim;
his assertion of RFRA in his summary
judgment motion should have been taken
as a request to amend the complaint, and
should have been granted.
Pre-Trial Detainees/Procedural Due
Process--Disciplinary Proceedings/
Searches--Living Quarters/Procedural
Due
Process/Damages--Punitive
/Mootness
Mitchel/v. Dupnik, 75 F.3d517 (9th
Cir. 1995). A search ofthe plaintiff's cell,
including his legal papers, outside his
presence does not violate the Fourth
Amendment. A jail policy excepting legal
papers from such searches did not create
a liberty interest under Sandin. The fact
that the plaintiff is a detainee and not a
convict does not make a difference in this
case.
A blanket prohibition on witness
testimony during disciplinary proceedings
for inmates in administrative segregation
denies due process.
The court
distinguishes between a prisoner's right
to cross-examine and confront adverse
witnesses (which is nonexistent) and his
right to call his own witnesses (at issue
here). The fact that the plaintiff is a

Fall 1997/Winter 1998
detainee renders Sandin inapplicable,
since Sandin is based on "the expected
parameters of the sentence imposed by
a court of law." Pre-trial detainees are
entitled to a due process hearing before
they are restrained for reasons other than
to assure th~ir appearance at trial. Wolff
v. McDonnell applies.
The district court should not have
granted summary judgment based on the
failure to tape-record a hearing. The fact
that a new hearing resulted in a shorter
sentence does not show that the failure
to tape-record caused the injury.
Punitive damages cannot be awarded
against defendants in their official
capacities.
The plaintiffs injunctive claim is
moot since he is no longer in the jail. The
district court initially noted that stays in
the jail were "typically" only 38 days.
meeting the "evading review" requirement
to avoid mootness. At the time, the
plaintiff was expecting to be back in the
jail for a post-conviction proceeding,
meeting the "capable of repetition"
requirement; but since that proceeding
is over, the claim is now moot.
ProceduralDueProcess--Classificationl
Exhaustion ofRemedies/Habeas Corpus

Miller v. Indiana Dept. of
Corrections, 75 F.3d 330 (7th Cir. 1996).
Heck v. Humphrey applies to
administrative rulings as well as court
judgments. The plaintiff, who alleged that
he was denied good time credits as a result
ofa classification decision that denied due
process, was barred from proceeding in
federal court because he had failed to
"vindicate the challenge through the
proper means." (331) The court does
not say what the proper means is.
Procedural Due Process--Disciplinary
Proceedings
McGuinnessv. DuBois, 75 FJd 794
(1 st Cir. 1996). An across-the-board

THE NATIONAL PRISON PROJECT Journal·· page 11
policy of denying live testimony from
inmate witnesses in disciplinary hearings
held in the segregation unit did not deny
due process in this case, though the court
leaves open the possibility that on other
facts it might. Since the plaintiff never
made clear what the witnesses' testimony
would have added to their written
statements, the refusal to call them based
on the policy was not arbitrary or
capnclous.
Procedural Due Process--Disciplinary
Proceedings/ Statutes of Limitations/Personal Involvement and
Supervisory Liability
Black v. Coughlin, 76 F.3d 72 (2d
Cir. 1996). A prisoner's claim of
unlawful disciplinaryproceedingsaccrued
for limitations purposes on the date that
the convictions were reversed by a state
court, not the date they were
administratively affirmed. The court
adopts the reasoning of Heck v.
Humphrey on this point without
addressing whether the rest of Heck--the
proposition that there is no claim until
and unless a state court or agency
reverses---applies to prison disciplinary
proceedings.
is
not
The
Commissioner
automatically personally involved in
administrative appeals of disciplinary
proceedings; evidence of involvement in
the specific c~se is required.
Injunctive Relief--Preliminary/Medical
Care--Isolation/Length of Stay/
Religion--Practices/Administrative
Segregation/ Negligence, Deliberate
Indifference and Intent/Exercise
Jolly v. Coughlin, 76 F.3d 468 (2d
Cir. 1996). The Rastafarian plaintiff
refused to take a screening test for "latent"
tuberculosis and pursuant to DOCS
policy was placed in "medical keeplock,"
released only for one ten-minute shower
a week. Medical keeplock does not

involve respiratory isolation; a prisoner
who was found to have latent TB would
neither be keeplocked nor be isolat~.
The plaintiffhad been in medical keeplock
for three and a half years befor~ the
district court granted a preliminary
injunction. The district court granted a
stay pending appeal, which the appeals
court initially continued but vacated after
oral argument.
A preliminary injunction is generally
granted on a showing ofirreparable harm
and either likelihood of success on the
merits or sufficiently serious questions
going to the merits to make them a fair
ground for litigation, and a balance of
hardships decisively in the movant's favor.
Where a movant seeks to enjoin
"government action taken in the public
interest pursuant to a statutory or
regulatory scheme," the moving party
must show likelihood of success on the
merits. When the injunction would alter
the status quo or give the movant
substantially all the relief sought, which
cannot then be undone, there must be a
"clear" or "substantial" showing of
likelihood of success. The plaintiff is
required to meet the highest of these
standards, and does.
First Amendmentfree exercise claims
are governed by 0 'Lone but RFRA
claims are governed by the compelling
interest test. The plaintiffs religious
rights are "substantially burdened" by the
requirement that he take a PPD test. The
court rejects the defendants' claim that
his rights are not burdened because the
test involves a naturally derived protein
rather than an artificial substance; courts
may review the sincerity and religious
nature of beliefs but lack the power to
examine their verity. A substantial
burden exists whenever there is
"substantial pressure" to violate one's
beliefs, and the choice of submitting to
the test or being keeplocked meets this
standard.

Fall 1997/Winter 1998
There is no compelling interest in
putting the plaintiff to this choice.
Although preventing the spread of TB is
a compelling interest, medical keeplock
does not serve it, since it does not isolate
prisoners respiratorily, and those
prisoners w~o are found to have latent
TB and refuse to take their medication
are not keeplocked or isolated. Nor does
it serve the interest in administering an
effective screening program as applied
to the plaintiff, since he has already
refused for three and a half years and
further keeplock is unlikely to yield the
necessary information. There is no
evidence that letting him out would
undermine the deterrent effect of medical
keeplock.
Medical keeplock is not the least
restrictive alternative. The defendants
could treat the plaintiff as if he were
known to have latent TB by making him
submit periodically to chest x-rays and
sputum samples.
At 477: "... [W]e have previously
held that correctional officials have an
affirmative obligation to protect inmates
from infectious disease."
The plaintiff showed a likelihood of
success on his Eighth Amendment claim.
Three years keeplock with only ten
minutes a week out of cell was a serious
deprivation of the right to exercise, and
the fact that defendants then proposed to
permit an hour ofexercise daily and three
showers a week did not eliminate the
Eighth Amendment violation in light of
his prior length ofstay and the possibility
of indefinite further confinement.
Deliberate indifference was shown by the
defendants' knowledge of the plaintiffs
undisputed conditions and the harm it
caused; the issue was not defendants'
intent in having a testing policy but their
intent in keeping the plaintiff locked up.
At 482: "The district court . . .
properly relied on the presumption of
irreparable injury that flows from a

THE NATIONAL PRISON PROJECT Journal _. page 12
violation of constitutional rights. In any
event, it is the alleged violation of a
constitutional right that triggers a finding
of irreparable harm." The violation of
free exercise rights under RFRA is also
irreparable harm. Also, the plaintiff
claimed physical injury (headaches, hair
loss, rashes, difficulty walking).

Personal Property/Procedural Due
Process--Property
Mahers v. Halford, 76 F.3d 951 (8th
Cif. 1996). The defendants automatically
apply 20% of all money received by
prisoners to their restitution obligations.
Prisoners have a property interest in
money received from outside sources.
However, they are not entitled to complete
control over their money while in prison.
Applying partoftheir money to restitution
obligations does not absolutely deprive
them ofthe benefit of it, since it lessens
the debts they will owe on release. The
court cites Beeks v. Hundley, 34 F.3d 658
(8th Cif. 1994), which upheld application
ofa § 1983 damage award to a restitution
order.
The policy did not deny due process.
Each prisoner had been protected by the
due process of a criminal trial or plea
proceeding and a sentencing hearing, with
the opportunity to raise inability to pay,
before a restitution order was entered.
This met the requirement of predeprivation process. Individual restitution
plans developed by the defendants could
be reviewed by the state courts. There
is no requirement of further predeprivation process before deductions are
made. At subsequent stages, where a debt
had already come into existence, notice
of the 20% policy and the continued
opportunity to contest payment plans
provided the process due.
More recent state legislation provides
for a pre-deprivation hearing for the
deductions at issue, in response to a state
court decision on due process grounds.

Procedural Due Process--Classification/ Summary Judgment
Samuels v. Mockry, 77 F.3d 34J2d
Cir. 1996). The plaintiff was placed in
a"limited privileges" program for refusing
a work assignment, which he disputed.
The district court should not have granted
summary judgment based on conclusory
allegations, not based on personal
knowledge, of the reason for his
placement.
Sandin v. Conner is retroactive. The
district court should consider whether
Sandin bars the plaintiffs claim, which
may require fact-finding the district court
had no opportunity to conduct.
Hazardous
Conditions
and
Substances/Medical Care--Standards
of Liability--Serious Medical Needs
Oliverv. Dees, 77 FJd 156 (7th Cir.
1996). The plaintiff alleged that he had
asthma but was housed with cellmates
who smoked. He had been housed with
non-smoking cellmates in other prisons
and a doctor issued a similar instruction
when he arrived at his current prison.
The plaintiff did not have a serious
medical need and was not denied "the
minimal civilized measure of life's
necessities." He "was asthmatic and
showed signs of distress. A few fellow
inmates said smoke made Mr. Oliver
wheeze and that he showed other signs
of discomfort. That's it." (160) He had
been transferred from the prison and
prison policy had subsequently been
changed to accommodate non-smokers'
preferences more fully. He got plenty of
medical care and never required
hospitalization; his records describe his
asthma as "mild." The doctor denied that
he had "ordered" that the plaintiff not be
celled with a smoker.
The dissenting judge points out that
the majority brushes off substantial
evidence of the seriousness of the
plaintiffs condition.

Fall 1997/Winter 1998
Telephones / Pre-Trial Detainees/
Federal Officials and Prisons
United States v. van Poyck, 77 F.3d
285 (9th Cir. 1996). Here's another
criminal
defendant
who
made
incriminating statements over the
telephonesbfa federal jail, despite signing
a form consenting to routine monitoring
and taping, and despite the notice over
the telephone that calls may be monitored.
The defendant had no expectation of
privacy under the circumstances. Even
if he thought his calls were private, "no
prisonershould reasonably expect privacy
in his outbound telephone calls."
(Footnote and citations omitted) Even
if there were a reasonable expectation of
privacy, security concerns justifY such
recordings and render them reasonable
under the Fourth Amendment. . The
defendant also consented to the taping by
signing the form, reading the signs, and
reading the prisoner's manual warning
of the recordings.
The taping and monitoring does not
violate the Omnibus Crime Control and
Safe Streets Act of 1968. It falls within
the "law enforcement exception" under
which telephones being used by an
"investigative or law enforcement officer
in the ordinary course of his duties" are
excluded from the statute's coverage.
Consent also vitiates the statutory claim.
The taping policy does not apply to
"properly placed" calls to attorneys.
Use of Force/Habeas Corpus
Fierro v. Gomez, 77 F.3d 301 (9th
Cir. 1996). Execution by lethal gas as
practiced in California is cruel and
unusual. The district court's conclusions,
after an eight-day trial, that cyanide gas
execution hurts too much and takes too
long (i.e., several minutes) are dispositive.
There was no need for the district court
to engage in analysis of legislative trends.
The means ofcarrying out a sentence
ofdeath may be challenged via § 1983;

THE NATIONAL PRISON PROJECT Journal -- page 13
plaintiffs are not required to proceed via
habeas corpus because they are not
challenging the fact or duration of their
sentences. At 305: "Methodofexecution
challenges are analogous to challenges
to conditions of confinement. "
Procedural Due Process--Disciplinary
Proceedings
Williams v. Fountain, 77 F.3d 372
(11th Cir. 1996). The use ofconfidential
infonnants in disciplinary proceedings
must be supported in the record by
documentation of some good faith
investigation and findings as to their
credibility and the reliability of the
infonnation they have provided. The
failure to do so here does not render the
plaintiffs conviction invalid because the
plaintiffs own admission that he was
involved in a fight provided "some
evidence" to support it, even though he
denied the accusation that he used a
weapon.
(The defendants "tread
precariously close to the due process line"
here.)
At 374 n. 3: The court assumes that
sanctions including a year ofsolitary are
atypical and significant under Sandin.
Use of Force/Chemical Agents/
Restraints/Hygiene/Procedural Due
Process
Williams v. Benjamin, 77 F.3d 756
(4th Cir. 1996J. The plaintiffalleged that
he was sprayed with mace, confined in
four-point restraints on a bare metal bed
frame and not allowed to wash off the
mace, and left there for eight hours
without medical care or access to a toilet.
At 761: "Although an inmate
asserting an excessive force claim is thus
required to meet this more demanding
standard with regard to the subjective
component of Eighth Amendment
analysis, the objective component of an
excessive force claim is less demanding
than that necessary for conditions-of-

confinement or inadequate medical care
claims."
As to the subjective component, ttle
court applies the factors set out in Whitley
v. Albers (762):
[ I] the need for application of
force, [2] the relationship
between that need and the
amount of force used, [3] the
threat "reasonably perceived by
the responsible officials," and [4]
"any efforts made to temper the
severity ofa forceful response. "
The use of mace did not violate the
Eighth Amendment. The plaintiff had
thrown water out of his cell and then
refused to remove his arm from the food
service window, along with several other
inmates. (The court attempts to state the
standard for use of chemical agents
favorably to prisoners while ruling against
this one.)
The decision to use four-point
restraints, made minutes after the gassing,
does not by itself support an inference
of wantonness.
Leaving the plaintiff restrained for
eight hours without access to a toilet,
medical attention, or the ability to wash
offthe mace may have violated the Eighth
Amendment, since there was no evidence
that the plaintiff had done anything
threatening (even verbally) after being
restrained, and the defendants did not
dispute that he was "hollering with pain. "
At 765: "Deference to prison officials
does not give them constitutional license
to torture inmates."
Compliance with the prison system's
restraint policy would be powerful
evidence that the officers acted in good
faith, noncompliance with it could be
evidence to the opposite effect.
Defendants' compliance with the
requirement of medical review and of
leaving prisoners restrained for no longer
than necessary was disputed.
Placement in four-point restraints is

Fall 1997/Winter 1998
an "atypical and significant hardship"
under Sandin." Regulations providing
that four-point restraints will not be
imposed except as a last resort to prevent
hann and with medical approval arguably
create a libertY interest. However, there
'.was no due process violation. The
plaintiff made no argument as to what
sort ofprocess was due, and the restraints
were imposed after a disturbance, when
process is not possible. Post-deprivation
process is adequate. But (at 769 n. 10):
at some point the continuation of
restraints would require due process. The
court declines to say when and also does
not examine the possible contradiction
between this statement and its holding
about post-deprivation process.
Procedural,
Jurisdictional
and
Litigation Questions/Sanctions
Long v. Simmons, 77 F.3d 878 (5th
Cir. 1996). The plaintiff alleged that he
was placed in a cell with a prisoner
against whom he had testified in a murder
trial, who stabbed him. His case was
dismissed because the plaintiff did not
return a form sent to him under new
district court procedures. He filed a
motion to reinstate, and then filed a notice
of appeal before it was acted on, then
sought voluntary dismissal ofthe motion
to reinstate.
The appeal was timely because the
motion to reinstate was filed timely. The
courtapplies the revised rule, which refers
to timely filing rather than timely service,
retroactively.
Thedistrictcourtabused its discretion
in dismissing the case (de facto with
prejudice becausethe statuteoflirnitations
had run) absent evidence that the plaintiff
failed to return the form to delay or out
of conturnaciousness, and without trying
lesser sanctions first.

THE NATIONAL PRISON PROJECT Journal .. page 14
Habeas Corpus/Res Judicata and
Collateral Estoppel
Simmons v. O'Brien, 77 F.3d 1093
(8th Cir. 1996). The plaintiffs allegation
that he was not given Miranda warnings
and that his interrogation was coercive
and involved physical and psychological
duress is not barred by Preiser and Heck
because if successful, the suit would not
necessarily invalidate his conviction.
However, his claim was barred by issue
preclusion because it was necessarily
litigated at the suppression hearing in the
criminal proceeding.

Procedural Due Process/Use of Force
Boninv. Calderon, 77F.3d 1155 (9th
CiT. 1996). There is no liberty interest
under California law in choosing between
execution by lethal injection and the gas
chamber, since state law says that if one
ofthese methods is held invalid, the other
shall be applied. The gas chamber had
been held invalid.

Use of Force/Evidentiary Questions/
Pendent and Supplemental Claims;
State Law in Federal Courts
Hynes v. Coughlin, 79 FJd 285 (2d
Cir. 1996). The plaintiff alleged two
incidents of excessive force. A jury
awarded $1250 compensatory and no
punitive damages on incident 1 and
awarded a defendant $1500 in
compensato~ damages on incident 2 on
his counterclaim. The plaintiffappealed.
The plaintiff is entitled to a new trial
on incident 2. The district judge abused
his discretion by admitting parts of the
plaintiffs disciplinary history. If the
plaintiff had put his intent at issue, e.g.
by saying that he had kicked the officer
unintentionally, it might have been
admissible, butthe plaintiffdenied kicking
the officer at all. It might have been
relevant to the reasonableness of the
defendants' actions if they had presented
evidence that they were aware of his

disciplinary record, but they dido't. It was
not relevant to show a pattern ofconduct,
"for the proper purpose of padtrn
evidence is principallyto show the identity
of the perpetrator or the absence of
mistake." (292) In addition, the record
is "replete with defense statements
revealing precisely and explicitly that the
records were intended to show Hynes'
'character"'--exactly what Rule 404(b)
is intended to prevent. The error was not
harmless given the defense's "relentless
emphasis" on them.
The district court did not abuse its
discretion in excluding cross-examination
indicating that one of the defendant
officers had been criticized for her dealing
with fellow employees, since this was not
sufficiently relevant to her treatment of
inmates, and it was not admissible to
show a "temperament problem." Crossexamination indicating that a defendant
made a false workers' compensation claim
and was once suspended for giving false
information should have been permitted
because it is probative of the witness's
truthfulness.
A use of force report recounting
incidents that the writer did not observe
was inadmissible. The present-sense
impression exception applies only to
statements made at the time of the
perception. The public records exception
is also generally limited to matters
observed. The report may be admissible
as a business record, but defendants need
to lay the proper foundation by showing
that the information was "transmitted by
a person with knowledge."

Punitive Segregation
O'Leary v. Iowa State Men's
Reformatory, 79 F.3d 82 (8th Cir. 1996).
The plaintiffs were placed on a
"progressive
four-day
behavior
management program" after committing
disciplinary offenses in the segregation
unit. On the first day, the prisoner is

Fall 1997/Winter 1998
deprived of underwear, blankets and
mattress, exercise and visits but not
normal diet, sanitation and hygienic
supplies; he can read but not retain his
mail. The items are gradually restored.
Ifthe prisqner misbehaves on a day, he
must repeat that day. (The deprivation
of unde,rwear was not a complete
deprivation of clothing; they kept their
jumpsuits.)
This program did not deny "the
minimal civilized measures of life's
necessities" or represent official
knowledge and disregard of "an excessive
risk to plaintiffs' health or safety."

Appeal
Benavides v. Bureau ofPrisons, 79 F.3d
1211 (D.C.CiT. 1996). A prisoner who
did not receive timely notice ofthe denial
of a motion, in part because he was
transferred five times in less than a month,
could get the time for appeal reopened
months. The seven-day "filing window"
of Rule 4(a)(6), triggered when a party
receives notice from the clerk or another
party of the entry of judgment, did not
open when the plaintiff was told by an
attorney representing him on another
matter that his motion had been decided.

Statutes ofLimitations/Protection from
Inmate Assault
Soto v. Brooklyn Correctional
Facility, 80 FJd 34 (2d Cir. 1996). The
plaintiff sued the jail, but no individuals,
because he was placed back in the same
housing area as inmates who had
previously assaulted him, and who
assaulted him again. His failure to name
the correction officers involved was a
"mistake concerning the identity of the
proper party" that relates back to the
filing ofthe complaint under Rule 15(c),
Fed.R.Civ.P., which applies to mistakes
of law as well as fact. (This rationale
may not apply to a litigant who knows
he has to name individuals but fails to

THE NATIONAL PRISON PROJECT
name all ofthem or the right ones.) The
parties being added appeared to have the
knowledge required by Rule 15(c). At
36: "Since government officials are
charged with knowing the law . . . any
BCF corrections officers who were aware
of a lawsuit arising out of the attack on
Soto 'knew or should have known' that
they, not BCF, were subject to
liability.... " The district court must
determine on remand whether the officers
had the notice required by the rule, and
should first permit reasonable discovery
for identification of the officers. The
district court "might also wish to
reconsider Soto's request for appointment
of counsel." (37)
Publications
Montcalm Publishing Corp. v. Beck,
80 F.3d 105 (4th Cir. 1996). Two
prisoners sued over the censorship of
Gallery, apparently a Penthouse knockoff, and the publisher--who learned ofthe
suit when one ofthe prisoners asked for
a refund on his subscription---intervened.
The publisher has a constitutional
interest in communicating with its inmatesubscribers, and it is entitled to some
process when its publication is censored;
the court suggests sending it the same
notice that the prisoners get, but leaves
it to the district court to decide the form
of remedy. At 109: "An inmate who
cannot even see the publication can hardly
mount an effective challenge to the
decision to withhold that publication, and
while the inmate is free to notify the
publisher and ask for help in challenging
the prison authorities' decision, the
publisher's First Amendment right must
not depend on that." The court notes that
Thornburgh v. Abbott explicitly cited a
notice-to-sender provision in upholding
the federal censorship regulations.
Telephones
United States v. Workman, 80 FJd

Journal -- page 15

688 (2d Cir. 1996). The criminal
defendant's telephone conversations frq;n
a state prison were taped and the tapes
used in his federal criminal prosecution.
A sign near the telephone indicating that
conversations "are subject to electronic
monitoring," combined with statements
in an inmate orientation handbook and
state prison regulations, gave sufficient
notice that his use ofthe telephone despite
these warnings constituted consent for
purposes of Title III of the Omnibus
Crime Control and Safe Streets Act of
1968. The fact that none of these
statements explicitly said that using the
telephone constituted consent did not
matter. Nor did the fact that none ofthe
warnings mentioned recording. Therewas
no violation of the Fourth Amendment
rights ofthe non-prisoner who was also
recorded, since the consent ofthe prisoner
was sufficient to render the taping
reasonable.
Use of Force/Pleading!Administrative
Segregation/ Emergency/Totality of
Conditions Length of Stay/Medical
Care--Standards of Liability--Serious
MedicaINeedslProceduralDueProcess-Disciplinary Proceedings/Restraints/
Procedural,
Jurisdictional
and
Litigation Questions
Mitchell v. Maynard, 80 F 3d 1434
(10th Cir. 1996). The plaintiff, along
with other prisoners, was transferred after
a riot in which hostages were taken. The
district judge dismissed his claim as
frivolous, and was reversed; he then
granted judgment as a matter of law to
the defendants rather than submitting the
case to a jury.
Evidence that showed that the
plaintiff, who was naked and shackled,
fell to the ground and was beaten by
several guards who shouted racial epithets
at him, could support a jury finding of
malicious and sadistic behavior even if
the situation at the receiving prison could

Fall 1997/Winter 1998
be characterized as an emergency.
However, the plaintifffailed to name the
officers in his complaint, and naming
them in a brief is not sufficient.
The plaintiff was stripped of his
clothing, p4,tced in a concrete cell with
no heat, provided with no mattress,
blankets, or bedding ofany kind, deprived
ofhis prescription eyeglasses, not allowed
out-of-cell exercise, not provided with
writing utensils, not provided adequate
ventilation or hot water, and allowed
minimal amounts of toilet paper. These
conditions variously continued for days,
weeks or months. At 1442:
The combination ofthese factors
is a significant departure from
the
"healthy
habilitative
environment" the state is required
to provide its inmates. . .. In'
Ramos, we recognized "a state
must provide [an inmate with]
reasonably adequate ventilation,
sanitation, bedding, hygienic
materials, and utilities (i.e., hot
and cold water, light, heat,
plumbing)."
A reasonable jury could find that a
warden who denied the plaintiff's
grievance had knowledge of these
conditions and condoned them.
The warden said, "I made the decision
to deprive them ofcertain things until they
showed me that they were going to act
like men and not become disruptive and
tear up another unit and cause my staff
problems." At 1443: "We agree that the
opinions of prison administrators carry
great weight; however, their discretion
is not absolute." Id.:
In a case such as this, where
the alleged deprivations are
numerous and inhumane, we
cannot blindly acquiesce to [the
warden's] authority. . .. In
particular we are troubled by the
lack of heat combined with the
lack ofclothing and bedding, the

THE NATIONAL PRISON PROJECT Journal -. page 16
deprivation of exercise for an
extended period oftime, the lack
ofhot water, the denial of toilet
paper, the removal of his
prescription eyeglasses, the lack
ofadequate ventilation and the
denial of writing utensils.
Once the jury decided whom to believe
about the length oftime these were denied
(24 hours to five and a half months,
depending on the item), it could have
found an Eighth Amendment violation.
The plaintiff's medical care claim is
rejected because he shows no knowledge
on the part ofany named defendant ofhis
condition or that he requested and was
denied medical care; when someone did
notice his condition, he received
treatment. The fact that he didn't ask for
medical care undermines his claim that
his needs were serious.
Due process was not violated; the
plaintiff signed a waiver of the right to
call witnesses and have a staff assistant.
There was some evidence to sustain the
conviction. (ill fact, this appears to have
been an egregiously trumped-up
disciplinary proceeding.) Failure to
comply with defendants' own rules
concerning who could be a hearing officer
did not deny due process.
Shackling a prisoner plaintiffat trial
is within the court's discretion. ill this
case, since the case never went to thejury,
the plaintiff ~as not prejudiced.
The plaintiff's claims of retaliation
for protected conduct were properly
dismissed, since he cited only the Eighth
Amendment in his pre-trial order.
The court directs that the case be
assigned to another district judge on
remand given the original judge's stated
view that the plaintiff's Eighth
Amendment claims were a waste oftime.
Religion--Practices, Services Within
Institution/Equal Protection
Mackv. O'Leary, 80 F.3d 1175 (7th

Cir. 1996). At 1179:"
[A]
substantial burden on the free exerc~e
of religion, within the meaning of.the
[Religious Freedom Restoration] Act, is
one that forces adherents ofa religion to
refrain from religiously motivated conduct
or expression that manifests a central
tenet of a person's religious belief, or
compels conduct or expression that is
contrary to those beliefs." The court
adopts this "more generous definition"
while noting that other courts have held
that a "substantial burden" must compel
the religious adherent to do something that
is forbidden or prevent him from doing
something that is required. The "decisive
argument" in favor of the broader
definition is "the undesirability ofmaking
judges arbiters of religious law," which
is unfeasible in the case ofnonhierarchical
religions. Courts will still have to
"separate center from periphery in
religious disputes," butthat "sociological"
inquiry is more manageable than is taking
sides in religious disputes about what is
mandated. One plaintiff's claim of
failure to accommodate the needs of
Ramadan observation should not have
been dismissed on the pleadings. The
other plaintiff's claim that adherents of
the Moorish Science Temple were not
permitted to have a banquet for their
founder's birthday. Prison officials had
grouped the 300 religious denominations
into four umbrella groups (Catholic,
Jewish, Muslim and Protestant), each of
which is allowed one or two picnic days
a year, which they can use for sacred
feasts, and it is obviously impossible to
permit 300 feasts a year.
At 1180: "The prison officials do not
have to do handsprings to accommodate
the religious needs of inmates, and the
less 'central an observance is to the
religion in question the less the officials
must do. " One plaintiff's claim under
the Equal Protection Clause, alleging that
prisonofficialsweremoreaccommodating

Fall 1997/Winter 1998
to Christians than Muslims, should not
have been dismissed on the pleadings.
This claim could also be described as a
First Amendment claim. The RFRA does
not displace it. At 1181: "... [A] statute
cannot either enlarge or contract the
Constituti~b.. "
Procedural Due Process--Disciplinary
Proceedings,WorkAssignments/Prison
Records
Frazierv. Coughlin, 81 F.3d 313 (2d
Cir. 1996). A prisoner who was confined
in special housing for 12 days before a
disciplinary hearing failed to show that
the conditions of his confinement were
"dramatically different" from prison
conditions generally. Therefore the
deprivation was not atypical and
significant under Sandin.
Theplaintiff'sconfinementina"Close
Supervision Unit" did not deprive him of
a liberty interest, since there was no
difference in lock-in time from general
population, and since the only other
substantial differences involved exclusion
from certain prison jobs and the
assignment of more correctional officers
to supervise the unit. Prisoners do not
have a liberty interest in particular job
assignments or in the deployment of
prison staff.
The court does not reach the claim
of a due process right to be free of
erroneous information in prison records
because the information at issue was not
erroneous, even though it related to the
underlying allegations of a disciplinary
conviction that had been expunged.
Religion--Names
Fawaadv. Jones, 81 F.3d 1084 (lIth
Cir. 1996). Requiring a prisoner to use
both his Muslim name and the name he
was committed under on his
correspondence did not violate his rights
under the Religious Freedom Restoration
Act. The state has a compelling interest

THE NATIONAL PRISON PROJECT Journal·· page 17
in prison security, and an efficient
identification system for correspondence
is part of that.
Procedural Due Process--Disciplinary
Proceedings/ Searches--Urinalysis
Meeks v. McBride, 81 F3d 717 (7th
Cir. 1996). A prisoner was accused by
an officer of smoking marijuana and
received a disciplinary charge. Five days
later he was subjected to a urine test. His
toxicology report was positive and he
received a second charge based solely on
it. The first charge was dismissed for
insufficient evidence. The second charge
resulted in conviction and loss of good
time.
The toxicology report did not meet
the "some evidence" standard because
there were two instances of unreliable
identifying information in the report and
the plaintiffshowedthatthere was another
prisoner with the same name who had
been confused with him in prior
disciplinary proceedings. The state can't
rely on the evidence from the first
proceeding because that had been rejected
at a hearing as unpersuasive. The state
submitted no evidence of the number of
urine samples taken on the day in question
or the proper identifying information for
the other Mr. Meeks, which would permit
some assessment of the likelihood of
error, and there is no indication in the
record of why the disciplinary board
rejected the plaintiffs exculpatory
evidence.
Under the "some evidence" standard,
the court does not weigh exculpatory
evidence unless it "directly undercuts the
reliability of the evidence" against the
prisoner, in which case there must be
sufficient evidence of reliability of the
latter evidence, and an explanation ofwhy
the exculpatory evidence is rejected.
The plaintiffs double jeopardy claim
is without merit, since there is no evidence
that the two charges stemmed from the

same alleged use of marijuana, and more
fundamentally because the DouWe
Jeopardy Clause does not apply to prison
disciplinary proceedings. At 722:
... [T]o apply double jeopardy
protection to prohibit a
subsequent disciplinary hearing
after acquittal would impose an
extreme burden on prison
administrators. If an acquittal
in an earlier hearing were to
preclude a subsequent hearing
on the same charge, the
overriding interest of prison
administrators to act swiftly to
maintain institutional ordercould
be compromised in the interest
of developing the evidence
needed to obtain a conviction.
Pre-Trial Detainees/Service of Process
Antonelli v. Sheahan, 81 F3d 1422
(7thCir.1996). At 1426: "TheMarshals
Service's failure to complete service, once
furnished with the necessary identifying
information, is automatically 'good cause'
requiring an extension oftime under Rule
4(m)." Thedefendantofficers'lastnames
and their specific posts at the jail were
sufficient information, even if more than
one officer with a particular last name
worked at the jail.
At 1428: "A prison official violates
the constitutional rights of a pretrial
detainee only when he acts with deliberate
indifference."
Personal
Involvement
and
Supervisory Liability (1428-29): Even
if complaints were directed personally to
the County Sheriff and Director of
Corrections, "neither could realistically
be expected to be personally involved in
resolving a situation pertaining to a
particular inmate unless it were of the
gravest nature. However, [they] can be
expected to know of or participate in
creating systemic, as opposedto localized,
situations. "

Fall 1997/Winter 1998
Negligence, DeliberateIndifference
and Intent (1429): Even though the
plaintiff generally pleaded deliberate
indifference, he specifically mentioned
negligence in connection with certain
allegations,\and these must therefore be
dismissed. :
Crowding (1430): An allegation that
the plaintiff was forced to sleep on the
floor for one night because of
overcrowded conditions does not state a
constitutional claim.
Procedural Due Process--Property
(1430):
Allegations of property
confiscation by staff, not alleged to take
place according to established state
procedure, and without an allegation of
inadequate post-deprivation procedures,
did not state a constitutional claim.
Procedural
Due
Process;
Emergency; Cell Confinement (1430):
Allegations ofarbitrary lockdowns do not
state a constitutional claim because there
is no liberty interest in out-of-cell
movement.
Correspondence--Legal (1430):
Allegations of opening, delaying and
stealing legal mail, without indication
ofdetriment to the plaintiff's court access,
do not state a constitutional claim.
Grievances (1430): There is no
substantive rightto a grievance procedure,
and state procedures do not give rise to
a liberty interest.
Prisoners
and
Unsentenced
Convicts Held in Jails, Good Time,
Rehabilitation (1431): The failure to
transfer a prisoner from a detention
facility to a penitentiary after his
conviction does not state a claim, despite
the loss ofopportunity to earn good time
andenterrehabilitationprograms, because
"there is no due process right to the
correctional facility of his choice" and
no such right to earn good time credits.
Pest Control (1431): An allegation
that the prison was sprayed twice by a
pest control service during 16 months

----------

. _ ...

_-

THE NATIONAL PRISON PROJECT Journal·· page 18
does not negate deliberate indifference
in light ofallegations ofcontinuing severe
infestation. The court tries to distance
itself from earlier precedent dismissing
infestation claims as trivial.
Correspondence; Legal (1431-32):
Allegations of deliberate obstruction of
mail delivery meet the deliberate
indifference standard. "The district court
was correct that prison employees can
open official mail sent by a court clerk
to an inmate without infringing on any
privacy right." However, allegations that
"legal mail" was opened, possibly
including privileged mail to and from
attorneys, and that mail was sometimes
stolen, sufficiently alleged violations of
free speech and association.
Food (1432):
Allegations of
nutritionally deficient food state a
constitutional claim.
Exercise and Recreation (1432):
"Lack of exercise may rise to a
constitutional violation in extreme and
prolonged situations where movement is
denied to the point that the inmate's health
is threatened." Allegations that the
plaintiffs unit was not called for up to
seven weeks and at most was called for
an hour once every two weeks, in an area
without room to recreate, sufficiently
alleged a constitutional claim.
Mental Health Care, Medication
(1432): Allegations that the plaintiffs
"pleas" for psychological treatment were
"ignored" state a claim, as do allegations
of denial of necessary medication.
Publications, Lighting (1433): "To
the extent that Mr. Antonelli may be
suggesting that he has the right to leave
his cell to go to a general reading library,
he 4as no claim." However, an allegation
that "his access to reading material was
greatly circumscribed" states a claim
under the First Amendment and the Due
Process Clause, though not the Eighth
Amendment. "Any right to access to
printed materials protected by the First

Amendment and (in the case ofa pre-trial
detainee) the Due Process Clause,. is
necessarily implicated where there is
objectively insufficient lighting to enable
reading." Insufficient lighting may also
violate the Eighth Amendment.
Noise (1433): Allegations that
excessive noise "occurred every night,
often all night, interrupting or preventing
[plaintiffs] sleep," stated a constitutional
claim.
Ventilation and Heating (1433):
Exposure to extremely cold temperatures
through failure to provide blankets states
a constitutional claim.
Classification--Race (1433): An
allegation that the plaintiffwas deprived
ofout-of-eell movement permittedto other
prisoners because he is white stated an
equal protection claim.
Medical Care
Steele v. Choi, 82 F.3d 175 (7th Cir.
1996). Three sets of doctors diagnosed
the plaintiff as overdosing on Percocet,
despite the lack ofevidence ofdrug abuse
and the negative drug test; almost a week
later, after continuing serious symptoms,
he was sent to a hospital where he was
diagnosed with a brain hemorrhage
resulting from an aneurysm. He sustained
substantial brain damage.
The main defendant was not
deliberately indifferent, since he did not
know the plaintiffhad a hemorrhage and
did not know of a risk of such. The
defendant cannot be held liable on the
ground that the risk was "obvious." Two
other sets of doctors reached the same
misdiagnosis. The claim that a minimally
competent doctor would have properly
diagnosed the hemorrhage is an objective
approach, rather than the subjective
apprOach required by Farmerv. Brennan.
There is no evidence that the symptoms
were consistent only with hemorrhage,
or that the doctor was ignoring the
plaintiffs needs. At 179:

Fall 1997/Winter1998
If the symptoms plainly called
for a particular medical
treatment--the leg is broken, so
it must be set; the person is not
breathing, so CPR must be
administered--a
doctor's
delibeiate decision not to furnish
the treatment might be actionable
under § 1983. If Steele's chart
had page after page documenting
a heart condition, and he came
in with a set of symptoms
consistent with heart attack, it
is possible that the Farmer
standards might be met.
Juveniles/Crowding/Totality of Conditions/Negligence,
Deliberate
Indifference and Intent/Protective
Custodyl Access to Courts--Law
Libraries and Law Books
Nami v. Fauver, 82 F.3d 63 (3d Cir.
1996). The plaintiffs are protective
custody inmates at a ''Youth Correctional
Facility." They alleged that they were
double celled in 80-square foot cells with
only one bed, so one inmate had to sleep
on the floor by the toilet; that the cells had
solid doors and it was difficult to summon
help; that inmates were double celled with
others who had psychiatric problems,
were violent, or who smoked; that the
ventilation system was inadequate; that
double ceIling had resulted in rapes and
other assaults; that they were confined
to their cells except for recreation and
half-hour to hour job assignments, and
recreation was limited to one two and a
halfhour period twice a week; that they
were not allowed access to bathrooms
during recreation; that they were provided
less access to jobs and educational
programs, as well as drug and alcohol
programs required by the parole board,
than general population inmates; that
general population inmates worked in
protective custody despite a statute to the
contrary; and that they must wear the

THE NATIONAL PRISON PROJECT Journal·· page 19
"black box" when transported to other
locations such as medical appointments.
The district court erred in failing to
consider the relation of crowding to the
other conditions alleged, especially the
increased risk of rape and assault. It
erred in holding that there was no
allegation of deliberate indifference,
despite the allegation that "letters have
been written to the [administration]. . . .
All requests for administrative remedies
were refused." (67) This allegation of
actual notice is sufficient to state a claim.
The district court improperly
dismissed allegations of disparate
treatment of protective custody inmates,
since these were raised as Eighth
Amendment claims, and should have been
considered as such, and in connection with
the crowding claim.
The plaintiffs alleged that they were
denied the assistance of paralegals or
others trained in the law, a defendant
frustrated their attempts to file court
papers by delaying return of documents
and failing to make copies, a policy
prevents PC inmates from helping each
other by talking thro~gh the doors and
passing items between cells, and they can
only obtain legal materials by submitting
requests for specific items, with no means
of identifying the items they need. The
district court erred in failing to assess the
entire "legal resource package" and in
crediting an a.tfidavit filed in another case
that contradicted the complaint's
allegations.

taken action, e.g., by prohibiting smoking.
The district court properly gran~d
summary judgment on the claim thatthe
housing unit leaked in bad weather,
forcing him to move his mattress to the
floor to stay dry.

Fire Safety/Environment
Standish v. Bommel, 82 F.3d 190
(8th Cir. 1996). An allegation that the
defendants were deliberately indifferent
to the risk offire stated a claim under the
deliberate indifference standard, but there
was no showing ofdeliberate indifference,
since the only recent fires were mattress
or bedding fires, no one had been injured
by fire or smoke, and prison officials had

Procedural Due Process--Property/Federal Officials and Prisons
Armendariz-Mata v. V. S. Dept. of
Justice,
Drug
Eriforcement
Administration, 82 F.3d 679 (5th Cir.
1996). The Administrative ProcedureAct
waives sovereign immunity for actions
seeking reliefother than damages against
the government. An equitable claim for
return of seized currency was properly

Grievances/Correspondence--Legaland
Official/Access to Courts
O'Keefev. Van Boening, 82 F.3d 322
(9th Cir. 1996). The refusal to treat
grievances sent to state officials as
privileged legal mail did not violate the
First Amendment. Even if this practice
had a chilling effect on First Amendment
rights, it withstands the Turner test. It
was related to legitimate interests. At
326: "It would be possible for a prisoner
to utilize alleged grievance mail to plan
escapes or to commit other crimes. A
prisoner could also create a mail ruse by
having an outside confederate send mail
that threatens prison security under the
guise of a grievance response." (How is
this different from any other kind of
privileged mail?) The plaintiff had
alternatives because he could still write
to other state officials. Treating this mail
as privileged would create an
administrative burden. There is no
alternative that has de minimis cost to
security interests.
At 325:
"Prisoners have a
constitutional right to petition the
government for redress of grievances,
which includes a reasonable right of
access to the courts."

Fall 1997/Winter 1998
before the court, but claims for seizure
of other property were barred because
the remedy was money damages.
The plaintiffdid not receive adequate
notice of forfeiture proceedings against
him, as a result either of a notice sent to
his home while he was in jailor a notice
sent to the jail that was returned to sender
rather than delivered. At 683: "Where
the government seeks the traditionally
disfavored remedy of forfeiture, due
process protections ought to be diligently
enforced, and by no means relaxed."
ProceduralDueProcess--Classification/
Administrative Segregation--High
Security
Keenan v. Hall, 83 F.3d 1083 (9th
Cir. 1996). The plaintiff served a
disciplinary segregation sentence ancrwas
then sent to the "Intensive Management
Unit" for six months as a result of a
classification hearing. The court remands
for consideration under Sandin v. Conner.
The "atypical and significant" standard
is not synonymous with the Eighth
Amendment standard.
Recreation and Exercise (1089):
"Deprivation ofoutdoor exercise violates
the Eighth Amendment rights of inmates
confined to continuous and long-term
segregation." An undisputed allegation
that for six months plaintiff was able to
exercise only in a space with a "wall of
perforatedsteeladmitting sunlightthrough
only the top third" presents a triable
claim.
Noise (1090): "[P]ublic conceptions
of decency inherent in the Eighth
Amendment require that [inmates] be
housed in an environment that, if not
quiet, is at least reasonably free ofexcess
noise." (Citation omitted) Allegations
of continuous noise caused by other
inmates present a triable claim.
Heating and Ventilation (1090):
"Inadequate 'ventilation and air flow'
violates the Eighth Amendment if it

THE NATIONAL PRISON PROJECT Journal .. page 20
'undennines the health of inmates and the
sanitation ofthe penitentiary. III (Citation
omitted.) "If the air was in fact saturated
with the fumes offeces, urine, and vomit,
it could undennine health and sanitation."
There is a triable issue. At 1091: "The
Eighth Amendment guarantees adequate
heating." However, complaints that the
temperature was "well above" or "well
below" room temperature suggest only
discomfort and do not present a triable
Issue.
Lighting (1090): "Adequate lighting
is one of the fundamental attributes of
'adequate shelter' required by the Eighth
Amendment. ... Moreover, '[t]here is
no legitimate penological justification for
requiring [inmates] to suffer physical and
psychological harm by living in constant
illumination.
This practice is
unconstitutional." (Citations omitted.)
The allegation that large fluorescent lights
directly in front of and behind the
plaintiffs cell were left on 24 hours a day
created a triable issue.
Hygiene (1091): "Indigent inmates
have the rightto personal hygiene supplies
such as toothbrushes and soap." The
allegation that plaintiff was denied such
items except when he could pay for them,
and that the indigency standard forced
him to choose between hygiene items and
legal supplies, stated a claim.
Food (1091): "Adequate food is a
basic human need protected by the Eighth
Amendment." It must be "adequate to
maintain health." (Citations omitted)
"Foodthat is spoiled and water that is foul
would be inadequate to maintain health."
PersonalSpace(1091): Confinement
in a 54-square foot cell is not
unconstitutional.
Verbal Abuse (1092): Verbal
harassment generally does not violate the
Eighth Amendment, and there is no
evidence that the comments at issue were
"unusually gross even for a prison setting
and were calculated to and did cause [the

plaintiff] psychological damage." There
..
is no triable issue.
Restraints (1092): Placement ora
segregation inmate in restraints does not
violate the Constitution; the plaintiff
alleges no "discomfort beyond that
inherent from movement in restraints."
Visiting (1092): Denial ofvisits from
anyone other than immediate family did
not violate the Constitution.
Personal Property (1092): Denial
of canteen products such as birthday
cards did not violate the Constitution.
Telephones (1092): "Prisoners have
a First Amendment right to telephone
access, subject to reasonable security
limitations." The defendants said the
plaintiffhad some telephone access, and
the plaintiff did not say whether the
alleged denial ofaccess was total, partial,
or occasional, and did not allege a specific
emergency denial or call to his lawyer on
an occasion of special need; there was
no triable issue.
Religion--Outside Organizations,
Standing (1092): The plaintiff alleged
that defendants refused to let a Native
American spiritual leader enter the unit
and speak with the inmates; but since the
plaintiff did not say he adhered to this
religion or had ever requested such
religious guidance, he lacked standing to
complain.
Publications (1093): The prison's
"publisher only" rule may be
unconstitutional; Bell v. Wolfish upheld
such a rule that applied only to hardcover
books. The plaintiffs complaint about
the limited prison library, segregation
inmates' lack of access to it and to the
state library, and the ban on inmates'
passing books to one another are all part
of the plaintiffs overall claim of
deprivation of reading material.
Law Libraries and Law Books
(1093):
The defendants provided
segregation inmates with a cell delivery
system that responds within 24 hours and

Fall 1997/Wi nter 1998
indexes to help select materials to request,
with weekly assistance from inmate law
clerks. At 1094: "Although an inmate
in segregation may prevail on a denial of
access claim if he has a particular need
for more access than that allowed him,
and that de~ial has.caused him actual
harm, such asystem as that afforded here
in a high security unit has been upheld
as generally adequate."
Access to Courts-Notarial Services,
Services and Materials (1094):
Complaints that photocopy and notary
services are too slow and expensive do
not raise a constitutional issue absent a
specific instance of actual injury.
Attorney Consultation, Visiting-Contact Visits (1094): The Constitution
protects contact visits with counsel, but
these may be restricted for high-risk
inmates, and the plaintiff alleged no
prejudice.
Correspondence-LegalandOfficial
(1094): "Mail from the courts, as
contrasted to mail from a prisoner's
lawyer, is not legal mail." The court
raises but does not decide the question
whether a rule that requires mail to be
labelled "Legal Mail" in order to be
treated as such may be applied to mail
that is obviously from counsel but lacks
the precisely correct label.
Procedural
Due
Process-Disciplinary Proceedings (1094-95):
The court rejects the claim that the
plaintiffs disciplinary sanction violated
the state's regulations on state law
grounds without discussing whether the
claim presented a federal question.
Disabled/Summary Judgment
Bryantv. Madigan, 84 F.3d 246 (7th
Cir. 1996), rehearing denied, 91 F.3d
994 (7th Cir. 1996). The plaintiff, a
paraplegic, alleged that defendants had
refused his request for guardrails for his
bed and that he had broken his leg as a
result, and that he was denied pain

THE NATIONAL PRISON PROJECT Journal·· page 21
medication after the operation.
The district judge erred in failing to
explain to the pro se plaintiff the
consequences of failing to respond to
evidence tendered in a summary judgment
motion.
The court does not reach the question
whether the Americans with Disabilities
Act applies to prisons andjails. At 248:
It is very far from clear that
prisoners should be considered
'qualified individual[s]' within
the meaning of the Act. Could
Congress really have intended
disabled prisoners to be
mainstreamed into an already
highly restricted prison society?
. . . Judge-made exceptions ...
to laws ofgeneral applicability
are justified to avoid absurdity.
Even if the ADA applied, it would
not govern the plaintiffs claim for denial
of medical care, which does not allege
that he was treated worse because he was
disabled. At 249: "... [I]ncarceration,
which requires the provision of a place
to sleep, is not a 'program' or activity.'
Sleeping in one's cell is not a 'program'
or 'activity.'" The ADA does not provide
a malpractice remedy for the disabled.
Protection
from
Inmate
Assault/Summary Judgment
Hayes v. New York City Dept. of
Correction, 84 E.3d 614 (2d Cir. 1996).
The plaintifftestified at a deposition taken
when he was proceeding pro se that he
did not identify by name the inmates of
whom he was afraid to prison staff. After
counsel was appointed, he gave testimony
that was arguably contradictory in a
seconddeposition. Counsel for the parties
agreed that the prior deposition "does not
exist."
The district court erred in dismissing
the case on the ground that the second
deposition contradicted the first
deposition. While a party may not escape

summary judgment by submitting an
affidavit that contradicts prior deposition •
testimony, that rule does not apply to a.,
conflict of deposition testimony elicited
long before the summary judgme"rlt
motion. The first deposition was bri~f
and conducted while the plaintiffwas pro
se. The depositions were only arguably
contradictory, since defense counsel did
not ask questions sufficient to establish
or negate a direct contradiction. The
district court in effect engaged in a
credibility assessment on a summary
judgment motion.
The district court improperly relied
on the conclusion that the plaintiffdid not
name his enemies to the defendants. At
621:
First, we note that the issue is
not whether Hayes identified his
enemies by name to prison
officials, but whether they were
aware of a substantial risk of
harm to Hayes. Although a
prisoner's identification of his
enemies is certainly relevant to
the question of knowledge, it is
not, necessarily, outcome
determinative.
The district court erred in holding
defendants' response to the plaintiffs
complaint--which did not include
transferring him---adequate as a matter
of law.
There was contradictory
testimony whether it is standard practice
to relocate any inmate who states that his
life is in danger. Also, the defendants did
not issue a timely separation order and
allowed him to move without an escort
even though he was in segregation.
Pro Se Litigation
Lucas v. Miles, 84 F.3d 532 (2d Cir.
1996). The court denied the plaintiffs
motions to file supplemental complaints
without prejudice to his filing such a
complaint limited to specified allegations
within 60 days. He missed the deadline

Fall 1997/Winter 1998
by about 39 days but otherwise complied
with the order. Months later, after the
defendantshadansweredthesupplemental
complaint, the judge dismissed the
supplemental complaint because of the
missed deadline.
The dismrssal was an abuse of
discretion. The'delay was not significant
in context of prejudicial to defendants;
the pro se plaintiff was never warned of
the possibility of dismissal; the delay did
not contribute materially to court
congestion; no lesser sanctions were
contemplated.
Procedural Due Process/Injunctive
Relief
Ellisv. District ofColumbia, 84F.3d
1413 (D.C.Cir.1996). Sandinv. Conner
does not overrule Greenholtz or Boarc;l
of Pardons v. Allen, and those cases
should continue to be applied, even though
their reasoning appears to be suspect in
light of Sandin. Using these cases'
analysis, the court holds that there is no
liberty interest of D.C. prisoners in
obtaining parole. (At 1425-26: the
concurring!dissenting judge argues that
Greenholtz and Allen do and should
survive Sandin, and notes Sandin's
citation of Allen with approval.)
A "small but significant number" of
cases in which parole revocation hearings
are not held within 90 days, as required
by Morrissey, does not support injunctive
relief against the Parole Board. Such
relief may be granted only based on "a
pervasive pattern ... flowing from a
deliberate plan by the named defendants."
(1424, citing Rizzo v. Goode.) Plaintiffs
must show either that the defendants were
directly responsible for the violations or
that "the incidence of such misconduct
was more severe than elsewhere. . . ."

Id.

THE NATIONAL PRISON PROJECT

District Court Cases
Procedural Due Process--Disciplinary
Proceedings
Lee v. Coughlin, 902 F.Supp. 424
(S.D.N.Y. 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 confinement for 376 days in SHU
imposed an atypical and significant
hardship on plaintiff." 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 defined by Sandin and I
assume that is why defendants did not
seek 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 plaintiff said he would rather
have an assistant of his choice, the
designated assistant did nothing. The
plaintiff did not waive his right to
assistance. He asked for assistance three
times duringa hearing that was adjourned
five times over a period of 25 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 confined inmate's

Journal -- page 22

Fall 1997/Winter 1998

right to an assistant and an impartial
hearing officer would be renqered
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 assault charges against
plaintiff which an assistant could have
aided plaintiff in investigating."
The defendant hearing officer is not
entitled to qualified immunity.
t

WomenlVisiting/Injunctive Relief-Preliminary/Ripeness
Bazzetta v. McGinnis, 902 F.Supp.
765 (B.D.Mich. 1995). The prison
system instituted visiting restrictions
forbidding visitors under 18 who are not
children, step-ehildren or grandchildren;
forbidding visiting with natural children
ifthe 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 proofoflegal guardianship;
limiting "members ofthe 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
haveno First Amendment rightoffreedom
of as~ociationand 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 underthe Turner standard.
Members of the public have no First
Amendment right to visit because
alternative means of communication are
available.
The \hallenge to disciplinary
deprivatioh ofvisiting is not ripe because
it is discretionary and it hasn't happened
yet.
In Forma Pauperis/Procedural Due
Process--Disciplinary Proceedings
Priest v. Gudmanson, 902 F.Supp.
844 (B.D.Wis. 1995). The plaintiff was
indigentfor IFP purposes, having received
some $700 in "legal loans" over the past
year, having made $6 every two weeks
at his prison job, and having $4.48 in his
account.
A 20-day extension ofthe plaintiffs
mandatory release date is actionable under
the due process clause under Sandin. The
plaintiffs claim of lack of an impartial
decision-maker, since one of the hearing
panel members was a witness to the
incident, was not frivolous.
Religion--Practices--Beards, Hair,
Dress/Equal Protection/State-Federal
Comity/Pendent and Supplemental
Claims; State Law in Federal
Courts/Immunity--Absolute Immunities --Legislative
Abordo v. State of Hawaii, 902
F.Supp. 1220 (D.Haw. 1995). The
challenge ofthe Native American plaintiff
to prison restrictions on hair length and
beards, with no religious exemtpions,
stated a claim under the Religious
Freedom Restoration Act. The policy did
not create a liberty interest under Sandin.
Allegations that "Hawaiians" (who
plaintiff contends constitute a religious
sect) and women were permitted to wear
long hair and Muslims were permitted
to wear beards stated an equal protection
claim.

THE NATIONAL PRISON PROJECT Journal·· page 23
The plaintiffs state law claims both
for money damages and for injunctive
relief against defendants in their official
capacities are barred by the Eleventh
Amendment under Pennhurst. Individual
capacity state law claims are not barred,
but the claims have no merit because they
are duplicative ofthe federal law claims,
and in the case of intentional infliction
ofemotional distress, he failed to allege
sufficiently "extreme and outrageous
conduct." (1227)
Defendants who participated in
formulating the challenged policy, but not
enforcing it, are entitled to absolute
immunity. "Such actions involve the
formulation of policy and apply to the
prison community at large." (1228) This
application of legislative immunity to
prison officials is unique to my
knowledge.
The defendants are entitled to
qualified immunity under RFRA, since
it was not apparent that the challenged
policy violated it.
RFRA is constitutional and does not
violate the separation of powers
(extensive discussion).

Searches-Urinalysis/Procedural Due
Process-Administrative Segregation,
Disciplinary Proceedings/
Visiting
McDifJettv. Stotts, 902F.Supp.1419
(D.Kan. 1995)... Repea~ysis
testing based on individualized suspicion
concerning drug use does not violate the
Fourth Amendment. The plaintiffs
placement in segregation after a positive
urinalysis did not deny due process;
"Sandin makes clear that an inmate's
segregated confinement 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 ofguilt,
then proceeding with a second hearing

does not violate the Double Jeopardy
~
Clause.
A 90-day deprivation ofcontact visi~l
after a positive drug test does not violate
the Constitution.

Procedural Due Process--Transfers/
Publications/Law Libraries and Law/
Books/Emergency Protection from
Inmate AssaultlVerbal 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 disciplinary
proceeding was initially reversed because
the appeals officer was not provided with
a complete file, then affirmed when the
file turned 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 ofthe penal system, but
instead encourages peaceful protests"
(e.g., letters to the Governor or prison
officials). A second issue stating that
"[t]he affirmative defense of self
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

Fall1997/Winter 1998
publication described as "antigovernment" and "anti-establishment,"
whichallegedly "couldprovoke 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 often remain in their
cells between fifteen and twenty
hours a day with very 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 system
provide adequate law library access for
"administrative control" inmates. A
denial ofall access to the library, without
paralegal assistance, would have been
unconstitutional
under
ordinary
circumstances, but since it occurred
during a post-riot lockdown, it was not.
Allegations that two staff members
have issued death threats and harassment

....

THE NATIONAL PRISON PROJECT Journal .- page 24
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.
At 1204: "Prison authorities cannot
frame and then improperly discipline
prisoners
for
exercising
their
constitutional rights."
Rights of Staff/Evidentiary Questions
Sagendorf-Teal v. County of
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
significant interest in 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. of
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
problemofsubstantial dimensions." (222,
citations and internal quotation marks
omitted)
The court notes that "the defendants
have failed to come forward with some
ofthe most obvious evidence to attempt

to show that there is no genuine issue of
material fact," e.g., no "affidavit 1lbm 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 ofthe pro se plaintiffs failure
to obtain the evidence from the prison
guards." (222)
Religion--Services Within Institution
Muhammadv. CiryofNew York Dept.
of Corrections, 904 F.Supp. 161
(S.D.N.Y. 1995).
The plaintiffs
complained of restrictions on their
religious practice as members of the
Nation oflslam. 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
ofconduct 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 NOI clergy have appeared as guest
speakers.
The failure to have separate NOI
services does not substantially burden free
exercise; although NOI beliefs are
different from orthodox Muslim beliefs,
the plaintifffailed 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 finds no factual support
for various other claims of burdens on

Fall 1997/Winter 1998
religious exercise.
The logistical, administrative and
security concerns underlying the policy
of generic services are compelling and
justify the defendants' practices.
Th.e plaintiffs' First Amendment
claimsfail afortiori 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 itself or 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.Del. 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.Ya.
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 summary 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 staffwere available,
and that his medical and physical therapy
treatment are appropriate.
Rights of Staff/Classification--Race

THE NATIONAL PRISON PROJECT Journal _. page 25
Wittmer v. Peters, 904 F.Supp. 845
(C.D.TIl. 1995). In a challenge by white
staff to the race-based promotion of an
African-American staff member in a boot
camp, the defendants argued that given
the
60-70%
African-American
composition ofthe inmate population, the
operational 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
summary judgment as to the necessity
of consideration of race 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 ofthe African-American had race
not been a factor.

Procedural Due Process-Disciplinary
Proceedings/Use of Force/Discovery
Carter v. Carriero, 905 F.Supp. 99
(W.D.N.Y. 1995).
Disciplinary
confinement 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 because the witnesses said
they had no personal knowledge of the
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 the hearing officer was biased

is unsupported.
The court declines to grant summflY
judgment to the warden on the plaintiffs
claim that he tolerated misuse offorce' by
officers, pending a magistrate judge's
consideration of whether the officers'
personnel files should be produced.

Procedural Due Process--Classification
/Procedural Due Process--Temporary
Release Classification/Equal ProtectionlNegligence,DeliberateIndifference
and Intent/RehabilitationlExPostFacto
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.
TheSex OffenderTreatmentProgram
does not deny equal protection. At 819:
Given the high probability
that an untreated sex offender
will commit another offense, the
state's policy of denying parole,
furlough and minimum security
classification to untreated
offenders is rationally related to
the government's interest in
protecting the public. Denying
untreated offenders placement in
minimum 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.
ld.: "The consequences of releasing
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

Fa111997/Winter1998
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 plaintiffs 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
prohibitiononplacing untreated offenders
in minimum custody, since it was created
to treat inmates, not to punish them. It
is also not a "law"; rather, it is a nonbinding policy.

Medical Care/Medical Care
Standards of Liability--Deliberate
Indifference/ Color of Law/Disabled
Hygiene/ Restraint/Pendent and
Supplemental Claims; State Law in
Federal Courts/ State Law Immunities
Coppage v. Mann, 906 F.Supp. 1025
(E.D.Va. 1995). The plaintiff had a
spinal cancer that went undiagnosed,
causing
partial
paralysis
and
incontinence. He failed to report some
of his pre-incarceration medical
complaints to prison medical staff. He
saw prison medical staff repeatedly about
his continuing (worsening but sporadic)
complaints. A prison doctor diagnosed
him as having a conversion reaction. On
occasion he lay in his own wastes for
several hours. He developed a bedsore.
He refused to tum over in bed as directed
and was turned by staff and handcuffed
to the bed rail to keep him from lying on
his back. It took eight months for his
condition to be diagnosed.
At 1036: Deliberateindifference may
be shown without evidence that "the
official acted or failed to act knowing that
harm would result. It is enough to show
that the official knew ofa substantial risk
of harm." This may be done by

THE NATIONAL PRISON PROJECT Journal·· page 26
circumstantial evidence, including the
obviousness of the risk.
An outsideconsultingphysician acted
under color of state law even in the
absence ofa contractual relationship with
the prison.
An outside consultant was not liable
for failing to convey the appropriate
"sense of urgency" about the plaintiffs
treatment since no consequences could
be traced to this failure and since he
mentioned the possibility of cancer. He
was not liable for failing to perform two
tests because the patient had soiled
himselfgiven that he referred the patient
to another practitioner who performed
the tests three days later. A complaint
that the tests he ordered were less
effective than other possible tests
amounted to a claim of negligence at
most.
This negligence cannot be
promoted to deliberate indifference by
dressing it up with other pieces of
circumstantial evidence of deliberate
indifference.
Theprisondoctor's failure to diagnose
was not deliberately indifferent, since he
examined the patient and sent him out for
x-rays, and since his skepticism of the
patient's complaints were based on past
experience. At 104I: "Courts have held
that an unusually long delay between the
emergence ofa serious medical need and
treatment of that need may provide a
reasona~le basis for an inference of
deliberate indifference." However, there
is no evidence that the doctor knew of a
substantial risk.
The prison superintendent was not
deliberately indifferent because he relied
on advice of his medical personnel with
regard to transferring the plaintiff to
another institution.
Leaving the plaintiff to lie in his own
wastes for hours did not violate the Eighth
Amendment because he was cleaned and
his sheets were changed several times
each day, an incontinence training

program was implemented, and absorbent
pads were placed beneath~. No
defendant was shown to be re~ponsible
for the short-staffing that caused his
problems. The failure to provide a
wheelchair for a month fails because there
is no evidence as to any ofthe defendants'
states of mind.
Handcuffing the plaintiff to his bed
did not violate the Eighth Amendment
because it was done as a last resort to get
him to tum in bed, not as punishment.
After dismissing the federal law
claims, the court retains pendent
jurisdiction over his state law claims
because of the advanced stage of the
litigation.
The defendants are immune under
state law for acts of ordinary negligence.
The prison doctor could be found to be
grossly negligent ifhe should have known
that the patient was suffering from
compression ofthe spinal cord; summary
judgment is denied on that claim.
The plaintiff had no claim for the
intentional infliction ofemotional distress
under state law because the alleged
conduct was not sufficiently outrageous.
Handcuffing the plaintiff did not
constitute battery because it was not done
with wantonness, malice or anger.
Suicide Prevention/Use of Force/PreTrial
Detainees/Medical
Carel
Municipalities
Pyka v. Village ofOrland Park, 906
F.Supp. 1196 (N.D.Ill. 1995). An
arrestee subjected to the use of force in
a police station before arraignment or
probable cause hearing is protected by
the Fourth Amendment. (The court
reviews conflicting and ambiguous case
law on the question of where the line is
between Fourth Amendment and due
process protections.) An officer's use of
a chokehold against a person who had
been yelling into a telephone was
actionable under the Fourth Amendment.

Fall 1997/Winter 1998
The claim may be pursued both against
the officer who administered the force
and another officer who had the
opportunity to intervene.
Evidence that an arrestee was struck
after he was placed in his cell states a
\.
•
Fourtfi Amendment claim.
The defendants are not liable for the
decedent's suicide because there is no
evidence that they were aware of his
suicidal tendencies or any need for mental
health care. Their failure to administer
CPR when he was found hanging did not
violate the Constitution.
There is no basis for municipal
liability for failure to train because there
is no evidence that there was a
sufficiently serious problem ofjail suicide
to require such training and there were
no statutes or regulations calling for such
training.
AIDS/Pre-Trial Detainees/Privacy/
Pendent and Supplemental Claims;
StateLawin Federal Courts/Protection
from Inmate Assault
Adams v. Drew, 906 F.Supp. 1050
(E.D.Va. 1995). The plaintiff alleged
that jail medical staffacted in a manner
that led other inmates to learn that he was
receiving AZT. However, there is no
clearly established right of privacy in
medical information, and it is
inappropriate for courts to extend such
rights into the prison, context. The court
declines to exercise supplemental
jurisdiction over the plaintiffs state law
claim because of its novelty.
A detainee's claim about an inmate
assault is governed by the deliberate
indifference standard. The plaintiffs
allegations against one defendant
withstand summary judgment, since he
alleged that he gave that defendant a
grievance stating that he needed to be
moved because others in the cell block
did not want someone with AIDS there,
he told that defendant that he would be

i

I

THE NATIONAL PRISON PROJECT Journal·· page 27
beaten if he wasn't moved, and other
inmates said the same to the defendant.
Access to Courts--Services and
Materials/ Sanctions/Appointment of
Counsel
Giles v. Tate, 907 F.Supp. 1135
(S.D. Ohio 1995). There is no general
constitutional right to free, unlimited
photocopying.
However, "some
reasonable means of access to a
photocopy machine will be necessary to
protect an inmate's right of access to the
courts." (1138) The defendants' charge
of35 cents a page, without provision to
advance funds against the prisoner's pay
of $9.00 a month, violated the plaintiffs'
court access rights, since he is unable to
pay for the medical records and other
documents necessary to maintain his civil
rights suit. This sufficiently establishes
actual injury.
The court declines to sanction the
defendants for discovery delay since they
have complied with the discovery order
and apologized to the plaintiff.
The court declines to consider the
plaintiff's objection to the magistrate
judge's refusal to appoint counsel because
the plaintiffhas not followed instructions
to certify that he had contacted·at least
three lawyers by mail or otherwise,
submitted to each lawyer a written
narrative statement of facts, and asked
for representation without success.
FalseImprisonment/Service ofProcess/
StateOfficialsandAgencieslNegligence,
Deliberate Indifference and Intent
Campbell v. Illinois Dept. of
Corrections, 907 F.Supp. 1173 (N.D.Ill.
1995). At 1178: "... [W]henpro se
litigants have reasonably relied to their
detriment on the advice and services of
others, especially individuals employed
by the courts, a showing that they have
made a diligent effort to effect service will
generally suffice as good cause for a delay

in service." This plaintiff had relied on
the Marshals.
f
A state court had ruled that. the
plaintiff was held beyond his sentence,
apparently for as much as two years;.'The
plaintiff's due process claim was
previouslydismissedfor reasons not stated
in this opinion. His Eighth Amendment
claim is governed by the deliberate
indifference standard.
At 1180:
"Anything more than a de minimis
incarceration beyond a prisoner's proper
sentence satisfied the requirement under
Farmer . .. that the punishment, if
inflicted along with the culpable state of
mind, be 'sufficiently serious' to pose a
constitutional violation."
The personal animus one defendant
had expressed towards the plaintiff,
combined with the magnitude ofthe error
and the "apparent ease with which it could
have been detected" (1180), could support
a finding ofdeliberate indifference on the
part of the main defendant. Liability
would not be supported by incompetence
on the defendants' part but would be
supported by knowing failure to follow
routine procedures that would have
enabled them to detect the calculation
errors.
Punitive Segregation
Killen v. McBride, 907 F.Supp. 302
(N.D.Ind. 1994). The plaintiff, held in
segregation, stabbed another inmate by
reaching out through the bars of his cell.
After a disciplinary conviction, he was
placed in a cell with a shield or bubble
in front ofit for eight days. The bubble
is designed to allow adequate ventilation
and other conditions in the unit are
constitutional. Applying "theevolutionary
concept ofdeliberate indifference," there
is no violation.
Ex Post Facto Laws
Taylor v. State of R.I Dept. of
Correction, 908 F.Supp. 92 (D.R.I.

Fall 1997/Winter 1998
1995).
Imposition of a monthly
supervision fee on probationers was an
ex postfacto law as applied to persons
sentenced before the regulation's effective
date. A $15 supervision fee does not
deny substlQtive due process because it
does not shock the conscience.
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Richmondv. Duke, 909 F.Supp. 626
(E.D.Ark. 1995). The plaintiff was
convicted ofa disciplinary offense, lost
his administrative appeal, and did not
seek review in the state courts. Under
Heckv. Humphrey, the plaintiff(who lost
good time) could not seek reliefin federal
court without first getting the proceeding
reversed in a state administrative or
judicial proceeding. The court suggests
it disagrees with this view but is bound
by Eighth Circuit precedent.
Rights
of
Particular
Groups/Classification/
Equal
Protection/Procedural Due Process-Transfers/Class Actions--Certification
of Classes/Non-English Languages
Franklin v. Barry, 909 F.Supp. 21
(D.D.C. 1995). Hispanic prisoners
incarcerated in the D.C. jail system
challenged various aspects of their
treatment, including lack of Spanishspeaking staff and interpreters.
Defendants' policyprecludes inmates
with detainers from being assigned to
minimum security facilities.
The
Immigration and Naturalization Service
issues detainers for alienage-neutral
reasons, e.g., the alien is subject to
deportation for a criminal law violation.
The plaintiffs have not shown an
equal protection violation. There is no
evidence that Hispanic prisoners with
detainers are treated any differently from
non-Hispanic prisoners with detainers,
or that INS detainers are treated
differentlyfrom non-INS detainers. Since

THE NATIONAL PRISON PROJECT Journal -- page 28
there is no alienage discrimination,
"heightened constitutional scrutiny under
Turner [v. SafleyJ is not applicable," and
if it were, the policy would be upheld as
valid and rationally related to a legitimate
penological interest. (The heightened
scrutiny comment makes no sense.) A
policy of case-by-case adjudications is
not required.
There is no due process violation
because there is no liberty interest in a
transferto a minimum security institution.
The court grants class certification
to "all inmates of Hispanic origin who
are now or who will later be incarcerated"
in the D.C. jails. The defendants, having
first provided a list of all such inmates,
then argued that it was impossible to
identifY them, which the court says "rings
hollow." The class of about 200 people
meets the numerosity standard. The fact
that discrimination is claimed, combined
with the facts of the discrimination
allegations, meets the commonality
requirement. Certification is appropriate
both to avoid inconsistent decisions
applying to different institutions and
because final injunctive relief is
appropriate. The court asks for further
briefmg as to whether it should certify
subclasses based on degree offluency in
English.
Federal Officials and Prisons/
HazardoJls
Conditions
and
Substances/Procedural, Jurisdictional
and Litigation Questions
Robinson v. Brown & Williamson
Tobacco Corp., 909 F.Supp. 824
(D.Colo. 1995). The court declines to
exercise diversity jurisdiction over the
plaintiffs second-hand smoke suit, since
there is a presumption that the plaintiffs
domicile is where he lived before he was
incarcerated, but the prisoner does not
affirmatively pleadhis state ofcitizenship,
as required by the presumption against
diversity jurisdiction.

Mental Health Care/Use of Force/PreTrial Detainees/Personal Invol~ment
and Supervisory Liability
Lopes v. Rogers, 909 F.Supp. 737
(D.Haw. 1995). The plaintiff, held in a
psychiatric hospital to determine fitness
to standtrial, alleged that he was assaulted
by staff. Both his due process and Eighth
Amendment claims are sufficient to
withstand summary judgment. The
plaintiff is protected by the Eighth
Amendent, since his status is "sufficiently
analogous [to punishment] to determine
the issues on their merit." 742 at n. 3.
The Superintendent was not deliberately
indifferent, given his efforts to revise the
hospital's policies and procedures. His
knowledge of the alleged assailant's
employment record and history of past
violence were insufficient to show that
he knew of a substantial risk to the
plaintiff.
Publications
Packettv. Clarke, 910 F.Supp. 469
(D.Neb. 1996). The plaintiffwas denied
the right to receive a catalog from The
Edge Compan y containing "knives, tools,
& gifts for modem man" as well as
"Maxwell Smart-like items" such as lockpicking gear and instructions, umbrellas
with hidden blades, restraining devices
and keys to unlock them, etc.
This censorship did not violate the
plaintiffs rights under Turner because
it was rationally related to the legitimate
objective of preventing prisoners from
getting ideas about making weapons or
means ofescape, plaintiffhad alternative
means of exercising his rights (i.e., by
reading something else), and there was
no "obvious, easy alternative" to
censorship; limiting where the publication
could be read or denying prisoners the
right to order from the catalog would not
adequately protectthe defendants' security
interests.

Fall 1997/Winter 1998
Access to Courts--Punishment and
Retaliation/Equal Protection
Johnson v. Texas Dept. ofCriminal
Justice, 910 F.Supp. 1208 (W.D.Tex.
1995). The court finds that "historically
there has been a bias against inmates
consideted to be writ writers" by prison
employees, which includes the Parole
Board. Therefore "there should be a
Board rule which definitely prohibits the
consideration of an inmate's legal
activities when the Board determines that
inmate's candidacy for parole." (1212)
Such consideration would violate both
due process and equal protection.
A policy of considering "protest
letters" against the parole of particular
individuals without disclosing them to
the prisoners does not deny due process,
since there is no liberty interest in
obtaining parole in Texas, but does deny
equal protection, since the Board usually
denies parole to those against whom a
protest letter is sent.
Medical Care--Denial of Ordered
Care/Disabled
Pugliese v. Cuomo, 911 F.Supp. 58
(N.D.N.Y. 1996). The plaintiff was
injured before his incarceration. A doctor
prescribed physical therapy and
electrostimulation. Neithertreatmentwas
made available in state custody after his
conviction. A year later he filed this
lawsuit and began to receive the
treatment. Two months later he was
transferred
and
received
electrostimulationbutno physical therapy
at the receiving prison. Three months
later he was moved again to a prison
where he got both forms of treatment.
He was transferred to a fourth prison
where he received neither treatment. A
doctor at this prison said he would never
waste the state's money on such
treatment.
When he was first
incarcerated he could lift a twelve-pound
weight with his injured arm; when he was

I

E NATIONAL PRISON PROJECT
released from prison after two and a half
years, he could not lift one pound.
The Commissioner could not be held
liable; he fOlwarded the plaintiff's
complaint to the Office of Health
Services.
The plaintiff sufficiently alleged a
serious medical need and knowledge on
the part of the defendants, based on what
was in his medical records and defendants'
physical examinations, to defeat summary
judgment on the question of deliberate
indifference.
Federal Officials and PrisonslUse of
Force/Medical Care--Standards of
Liability--Serious Medical Needs/
Pendent and Supplemental Claims;
StateLaw in Federal Courts/Immunity-Federal Officials
Ruble v. King, 911 F.Supp. 1544
(N.D.Ga. 1995). Sovereign immunity
bars official capacity claims against
federal officials.
The plaintiffs created a disturbance
requiring that they be removed from their
cells, including throwing sour milk on
staff, starting a small fire, covering their
cell doors with feces, arming themselves,
threatening violence, etc. The court
would be "hard pressed" to deny
defendants' summary judgment motion
concerning use of force in removing
plaintiffs from their cells. However,
plaintiffs alleged that they were beaten
after they were removed and shackled and
aftertheywerq~laced in a "safe room."
The court denies summary judgment on
this claim as to the officers who allegedly
assaulted the plaintiffs and as to officers
who were present when they were
assaulted. Whether the latter had an
opportunity to intervene is a disputed
issue of fact.
The defendants are not entitled to
qualified immunity. At 1557: "The Court
concludes that the law is clearly
established that an officer may not beat

Journal

o.

page 29

an inmate who is handcuffed and shackled
and poses no danger to the officer." The
obligation to intervene when anotjer
officer uses excessive force is also clclt,rly
established.
One plaintiff alleged that he did not
get medical attention for 36hotir's; the
court grants summary judgment to
defendants because the plaintiff did not
provide any information about what his
medical condition was.
The plaintiffs' state law assault and
battery claim against the officers who
allegedly beat them is not barred by
discretionary immunity because the facts
alleged could support a fillding of wilful
intent to harm the plaintiffs. An assault
and battery claim could not be maintained
against a bystanding officer because the
definition of the tort requires an act of
physical violence.
The plaintiffs did not make out a
claim ofintentional infliction ofemotional
distress, which requires conduct "so severe
that no reasonable man could be expected
to endure it." (1559)
Mental Health Care

Coleman v. Wilson, 912 F.Supp.
1282 (E.D.Cal. 1995). In evaluating
claims ofsystemic denial of mental health
care, courts have focused on "six basic,
essentially common sense components of
a minimally adequate prison mental health
care delivery system." (1298) These are
(id. at n. 10):
(I) a systematic program for
screening and evaluating inmates
to identify those in need ofmental
health care; (2) a treatment
program that involves more than
segregationand close supervision
of mentally ill inmates; (3)
employment of a sufficient
number oftrained mental health
professional; (4) maintenance of
accurate,
complete
and
confidential mental health

Fall 1997/Winter 1998
treatment
records;
(5)
administration of psychotropic
medication
only
with
appropriate supervision and
periodic evaluation; and (6) a
basic program to identify, treat,
and supervise inmates at risk for
suicide:
Evidentiary Questions (1294-96):
The court disregards documents filed in
another, settled case because that case
involved a different institution and its
proceedings were governed by a consent
decree ratherthanthe Eighth Amendment.
A letter from the Commissioner of
Corrections to the court monitor in the
other case is admissible in this case as
an admission. Deposition excerpts of
persons who were prison employees at
the time of their depositions were
admissible as admissions of party
opponents, notwithstanding Rule 32,
Fed.R.Civ.P., even ifthey had transferred
to other prisons. Depositions of persons
not employed by the Department of
Corrections at the time they were deposed
were not admissible. The court avoids
the question whether depositions of
consultants are admissions.
Certification of Classes, Serious
Medical Needs (1300-01): The court
rejects the view that the magistrate
judge's fuilure to define the term "serious
mental disorder" undermines his analysis.
The certifiedclass ofpersons with serious
mental disorders, "far from representing
some amorphous enigma to defendants,
describes a group of inmates who have
been studied by the CDC for over eight
years." (1300) The witnesses attrial had
no trouble addressing the term. Also, the
Eighth Amendment addresses serious
medical needs in both the physical and
mental contexts, providing a legal gloss
on the term.
Remedial Principles (1301): The
magistrate judge's failure to specify
precise constitutional minima for each

tiri'r'H

THE NATIONAL PRISON PROJECT Journal·· page 30
of the elements of an adequate mental
health care system was not error. "The
Constitution does not, however, prescribe
the precise mechanisms for satisfying its
mandate to provide access to adequate
mental health care." Also, the court must
defer to the discretion of prison
administrators. Therefore remedies "can
only be developed contextually." The
magistrate judge properly proposed
having the defendants develop protocols,
standards, procedures and forms in
consultationwith court-appointedmedical
experts. At 1304: The failure to provide
standards, beyond its constitutional
findings, to guide the formulation of
remedies by defendants.
EvidentiaryQuestions; State,Local
and Professional Standards (1302-04):
The court rejects the view that mental
health professionals' experttestimony was
improperly relied on; it is exactly the kind
oftestimony contemplated by the Federal
Rules of Evidence. The magistrate judge
did not rely on it to establish
constitutional minima.
Examinations (1305-06):
The
magistrate judge properly found that a
system that provided care only to those
who self-report, who have medical records
indicating prior psychiatric history, who
exhibit bizarre behavior, or who ask to
be seen by a psychiatrist, was
constitutionally inadequate, based on
evidence... that some seriously mentally ill
inmates are incapable of making their
needs for care known.
Staffing (1306-07): The magistrate
judge properly found inadequate mental
health staffing. The fact that the
defendants have some staff providing care
does not preclude liability. A study that
provided a plan for "reasonable access,"
defined as "timely, responsible, and
adequate care provided by qualified (and
appropriately licensed) staff," was "not
materiallydifferentfrom the constitutional
requirement of ready access to competent

1

medical staff." (1307) There was
"overwhelming" evidence of unde~ta:ffing
in studies and expert testimony: ,
Qualifications of Personnel· (1308):
The Constitution requires a competent
medical staff. Defendants' expert testified
that a system as large as California's could
not provide adequate care without a
managementinformation systemand some
form ofquality assurance. The magistrate
judge properly required development of
a QA system.
Access to Medical Personnel (130809): The Constitution requires either
ready access to physicians at the prison
or reasonably speedy access to outside
physicians or facilities. The inadequacies
in screening and staffing render
inescapable the conclusion that access to
care is unconstitutionally delayed, and the
record directly shows "that there are
delays everywhere within the system and
that those delays result in exacerbation
of illness and patient suffering.... "
PsychotropicMedication~njunctive

Relief (1309-1312): The district court's
finding that defendants inadequately
supervised medication are supported by
the record; the fact that some prisons do
a good job does not address the systemwide problems and the existence of a
computer tracking system in each prison
does not address the problem oftransfers.
Some medications are unavailable. "In
order to satisfy the Constitution, medical
staff must have available to them the
modalities to provide inmates with
necessary care." The record also supports
making permanent the preliminary
injunction concerning heat plans for
inmates on psychotropics. At 1311: "The
history of defendants' response to this
issue demonstrates a recalcitrant refusal
to address the serious issues underlying
the preliminary injunction until forced to
do so under pressure of this litigation."
The injunction is made permanent for a
period of three years.

Fall 1997/Winter 1998
The record shows that involuntary
medication is necessary for some gravely
mentally ill inmates who do not receive
it; that it has sometimes been ordered
over the telephone without prior
physician's examination; and that custody
staff plays an inappropriate role in
medication decisions. These practices
violate the Constitution.
Mental Health Care--Restraints
(1314):
The record shows that
procedures for the use of restraint vary
from prison to prison and that there is
no systemwide review. The court holds
that a state regulation and other measures
designed to remedy constitutional
deficiencies are sufficient and declines
to order additional relief concerning
restraints.
Medical Records (131;t):
"A
necessary component of minimally
adequate medical care is maintenance of
complete and accurate medical records."
The district court properly ordered a plan
to ensure that medical records arc
transferred with prisoners and that they
are obtained for prisoners who arc
received from county jails.
Suicide Prevention (1315): Insofar
as there is a constitutional violation with
respect to failure to implement suicide
watches, it arises from chronic
understaffing and will be remedied by
staffing relief.
Negligence,Deliberatelndifference
andIntent(l299n.ll, 1315-19): The
court briefly explains why the holding
of Wilson v. Seiter, that an Eighth
Amendment claim must be supported by
intent becausethat requirement is inherent
in the word "punish," is nonsense, even
though it has to follow it.
The defendants are deliberately
indifferent, based on their current
attitudes and conduct. At 1316: "The
inference of knowledge from an obvious
risk has been described by the Supreme
Court as a rebuttable presumption, and

THE NATIONAL PRISON PROJECT Journal·· page 31
thus prison officials bear the burden of
proving ignorance of an obvious risk."
The risk ofserious hann from systemic
deficiencies in mental health care is clear,
and defendants' knowledge of the risk is
also apparent. At 1316: "The risk of
harm from these deficiencies is obvious
to plaintiffs' experts, to defendants'
experts, to defendants' consultants, to
individual employees of the Department
of Corrections in the field, and to this
court."
The court rejects the
defendants' efforts to escape a deliberate
indifference finding. Correctional health
care and mental health officials argued
that they didn't have power to hire staff
or implement particular reforms, but there
were many other areas in which they did
have authority, and in any case their
argument "does not necessarily
contraindicate scienter." The Governor's
lawyers' claim of "ignorance concerning
infonnation he was duty bound to be
familiar with seems remarkable," and in
any case there is no evidence supporting
the assertion of ignorance of legislatively
or departmentally commissioned reports.
At 1317: "Moreover, after five years of
litigating, the claimed lack of awareness
is not plausible." Each defendant "is
responsible to a greater or lesser degree
for the tragic state ofaffairs revealed by
this record. Each to a greater or lesser
degree can make significant contributions
to its solution." (1317) The defendants
have also failed 10 take reasonable steps
to solve the problem. Their response has
been "to question the experts who provide
information to them, to commission more
studies, to make ineffective gestures
toward the serious issues that pertain to
the chronic problem ofunderstaffing, and
to initiate planning for a central
administrative structure to manage a
completely inadequate field delivery
system." At 1318: "Defendants are not
free to disregard the constitutional rights
of mentally ill inmates for three to four

years" while they add administrators.
Other steps are inadequate, e.g., ask~
for 21.25 new positions when the shortfj:tll
is in the range of300. At 1319: ,": ..
[P]atently ineffective gestures purpo~y
directed towards remedying objectively
unconstitutional conditions do not prove
a lack of deliberate indifference, they
demonstrate it." Defendants' arguments
and their flimsiness suggest that they "are
simply seeking to delay meeting their
constitutional obligations to the mentally
ill inmates who are their charges....
Acting for the sole purpose of delay
perpetuates the human suffering caused
by the violations of the federal
Constitution which the evidence in this
casedemonstrates. Deliberate indifference
is nothing if it is not that. "
Financial Resources (1319): The
defendants said before trial that they
would not argue that fiscal constraints
authorize violation of the Eighth
Amendment, and they can't raise it now.
Besides (at n. 53): "The administrators
appear to have funds for those projects
which appeal to them.... "
Staff--Training, Procedural Due
Process--Disciplinary
Proceedings
(1320-21): The magistrate judge found
that mentally ill inmates who act out are
typically treated with punitive measures
without regard to their mental status. His
"generous" inference that this resulted
from a lack of training of custody staff
is supported by the record. The placement
of segregation units at Pelican Bay and
statewide to house mentally ill inmates
violates the Eighth Amendment.
UseofForce; Negligence,Deliberate
Indifference and Intent (1321-1323):
The magistrate judge found that tasers
and 37mm. guns were used without regard
to the psychiatric origin of their behavior
or the impact of these measures on their
condition. Since the defendants' policy
requires deliberation before use of tasers
on prisoners taking psychotropic

Fall 1997/Winter 1998
medications, the deliberate indifference
standard, rather than the malicious and
sadistic standard, applies, and on this
record is violated.
Timetables (1323): Requiring the
defendants to come forward with
standardize~ screening fonns and
protocols within 30 days was appropriate,
especially since the Commissioner had
testified a year earlier that some ofthese
were necessary; "it is to be expected that
defendants have been working on the
problem." The court declines to set
specific time frames for other required
remedies until after consultation with the
special master and court-appointed
experts about the time frames.
Monitoring(1324): The"formidable
task" of monitoring injunctive relief
addressed to systemwide deficiencies 1n
mental health care meets the exceptional
circumstances requirementfor appointing
a special master.
Hazardous Conditions andSubstances/
Personal Involvement and Supervisory
Liability/Medical Care--Standards of
Liability--Serious Medical Needs
Walkerv. Godinez, 912F.Supp. 307
(N.D.Ill. 1993). The plaintiff, who has
asthma, emphysema, and diabetes,
alleged that on several occasions officers
directly and persistently blew cigarette
smoke in his face, causing violent asthma
attacks. These allegations raise triable
issues of fact under the deliberate
indifference standard (the court rejects
the defendants' argument that the plaintiff
must meet the "malicious and sadistic"
standard). The court declines to hold that
avoiding violent asthma attacks is not a
serious medical need. Allegations that
the warden and housing unit supervisor
were told ofthis conduct but refused to
do anything are sufficient to defeat
summary judgment as to their liability.

THE NATIONAL PRISON PROJECT Journal -- page 32
AIDSlDisabled
Dean v. Knowles, 912 F.Supp. 519
(S.D.Fla. 1996). An HIV-positive
prisoner who remained asymptomatic
during his incarceration was denied
trustee status for medical reasons with
no further explanation. There was a
material issue offact under the Americans
with Disabilities Act as to the reason for
the plaintiffs exclusion.
Disabled/Statutes of Limitations/
Medical Care/Hazardous Conditions
and Substances
Little v. Lycoming County, 912
F.Supp. 809 (M.D.Pa. 1996). The
plaintiffs § 1983 claims are mostly barred
by the two-year Pennsylvania statute of
limitations for personal injuries.. Claims
of Americans with Disability Act
violations and ofexposure to second-hand
smoke are arguably continuing violations
that extended throughout the plaintiffs
tenn of incarceration.
Thecourtgrantsdefendants summary
judgment as to the plaintiffs claims of
medical care violations, including allergy
to fluoride (apparently unknown to the
medical profession), on the ground that
the defendants made "considerable and
diligent efforts" to deal with her
complaints.
A single reported instance of
congestion and coughing from
environm.ental tobacco smoke is
insufficient to establish an Eighth
Amendment claim.
At 819: "The ADA should not be
held applicable to facilities provided for
prisoners in state prisons in the absence
of a clear expression of congressional
intent that that be the case, and we are
not convinced that such intent has been
expressed." The claim would be rejected
on the merits in any case; her alleged
disability was said to be resolved by her
own doctor, and her prescription pain
medication was recommended to be

b

Fall 1997/Winter 1998

discontinued by that doctor as well.

,•

Religion--Services Within Institution
/Injunctive Relief--Preliminary/Equal
Protection
AbdulJabbar-aISamadv. Hom, 913
F.Supp. 373 (B.D.Pa. 1995). A rule that
religious services must be conducted by
outside religious leaders raises a First
Amendment claim. The plaintiffs argued
that the supposed security justification
was pretextual, that there is no alternative
because Muslim doctrine requires an
Imam to be selected from the
congregation, and accommodation would
have no impact because defendants had
accommodated them for years.
The plaintiffs raise an equal protection
claim, since civil organizations may
continue to pick their leaders from within
the prison population. The defendants
argue that these groups are not similarly
situated, but the court says they mistake
"identically" for "similarly."
Thecourtdeclines to rule on plaintiffs'
motion for a preliminary injunction
without an evidentiary hearing. A TRO
is premature because the rule is not to go
into effect for another month.
The court notes that the Religious
Freedom Restoration Act was not pled,
but states that the plaintiffs may amend
their complaint and present relevant
testimony at the preliminary injunction
hearing.
Procedural
Due
Process
Administrative Segregation
Bruns v. HalfOrd, 913 F.Supp. 1295
(N.D.Iowa 1996). The plaintiff was
placed in segregation for 90 days after
witnessing an assault and refusing to
identify the perpetrator; he received a
notice stating that he was segregated
because of"complicity in a serious assault
and interfering with an investigation."
(Nonetheless his segregation was labelled
"non-voluntary, non-disciplinary. ")

Administrative segregation does not
give rise to a liberty interest, and the
plaintiffs characterization of his
segregation as punitive does not change
the analysis, since Sandin requires the
court to focus on the nature of the
depriv~tion. In any case, this plaintiffs
placement was not atypical and
significant relative to administrative
segregation generally.
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Stone-Bey v. Barnes, 913 F.Supp.
1226 (N.D.Ind. 1996).
A prison
disciplinary proceeding is not equated
with a criminal judgment for purposes
of Heck v. Humphrey.
Placement in segregation for a year
"does not constitute an extreme tenn of
segregation and, by itself, does not create
a liberty interest under Sandin." (1233)
The court doesn't say what an "extreme"
tenn would be and does not clearly state
that such a tenn would deny liberty under
Sandin. The plaintiffs allegation that
he was kept in a "bug-infested,
unsanitary, bathroom-sized cell with no
furnishings except a cot, toilet, and small
basin," as well as the usual restrictions
ofpunitive segregation, did not make his
confinementatypical and significant. The
court relies on a case involving 34 days
of segregation. Note that this court
addresses length of confinement and
conditions ofconfinement separately for
Sandin purposes.
State regulations disqualifying
prisonerswith recentdisciplinaryoffenses
from seeking clemency and making
disciplinary record a consideration in the
grant of parole do not create a liberty
interest under Dumschat and Sandin
respectively.
Habeas Corpus/Confiscation and
Destruction of Legal Papers
Banksv. Sheahan, 914 F.Supp. 231

I

~ ------~~~~~~~~~~~----------

THE NATIONAL PRISON PROJECT

Journal .. page 33

(N.D.Ill. 1995). The plaintiffalleged that
he was transferred to the Cook County
Jail without his legal papers, and
defendants refused to do anything to get
them forwarded to him.
Heck v. Humphrey does not bar a
court access claim involving an
unreversed criminal judgment. However,
the plaintiff (who had been sentenced to
death after a trial at which he represented
himself) did not show detriment, since the
state Supreme Court denied him leave to
file his own appellate brief, and having
access to his materials therefore had no
effect on his ability to present claims.
An allegation that the plaintiff was
deprived of a complaint he had drafted,
and without his notes and other materials
(apparently also taken) he could not
reconstruct it adequately, stated a court
access claim.

of a question. (He also offered to ask the
witnesses different questions, but declm¢
to ask the same question again.)
,~
The hearing officer was entitled to
qualified immunity for relying " on
confidential information, since he had
verified from other staff members that this
source had previously provided reliable
information, despite his "troubling"
misleading of the plaintiffabout whether
he would personally interview the sources.
The hearing officer's conduct did not
show lack of impartiality.

Procedural Due Process--Disciplinary
Proceedings

Davidsonv. Scully, 914F.Supp.1OIl
(S.D.N.Y. 1996). The court holds that
the less favorable standard for granting
preliminary injunctions--requiring a
showing of likelihood of success, not just
serious questions going to the merits and
a balance of hardships favoring the
plaintiff--applies to prison cases in light
of the principle of deference to prison
administration.
The plaintiff fails to show likelihood
of success on his medical care claims.
They "spring from conditions which do
not produce death, degeneration, or
extreme pain. His complaints, though
serious, concern conditions which many
people suffer from and function despite
[sic] on a day-to-day basis and the fact
that a sufferer is incarcerated does not
elevate every perceived lack of treatment
to the level of cruel and unusual
punishment." (1015) Theplaintiffsought
a smoke-free environment (he is held in
punitive segregation), a particular type
of eye drop, and new eyeglasses for an
unspecified eye condition which the court

Campo v. Keane, 913 F.Supp. 814
(S.D.N.Y. 1996). A prisoner who
received a sentence ofa year in SHU and
was released after 61 days based on an
administrative appeal may state a liberty
deprivation under Sandin; the court notes
that the Sandin plaintiffs 30-day sentence
was the maximum he could have received,
and cites pre-Sandin Second Circuit
authority holding that due process rights
are determine£1 with respect to the
potential penalty. The court does not
actually decide the Sandin issue since it
disposes of the case on other grounds.
The hearing officer did not deny due
process in refusing to call a witness whose
testimony he deemed redundant. He did
not deny due process in questioning an
inmate witness outside the plaintiffs
presence, pursuant to a rule prohibiting
contact between segregated inmates and
others; he asked the questions the plaintiff
told him to and was not responsible for
the witness's apparent misunderstanding

Hazardous Conditions and Substances/
Injunctive Relief--Preliminary/Clothing/ Recreation and Exercise/Medical
Care-Standards of Liability--Serious
Medical Needs/Eye Care/Access to
Courts--Services and Materials
/Religion--Practices--Diet/ Punitive
Segregation

Fall 1997/Winter 1998
says is insufficiently serious, and his
request for eyeglasses does not establish
deliberateindifferencebecausedefendants
have repeatedly tried to provide
eyeglasses that will satisfy the plaintiff.
Tinnitus (which causes ringing in the
ears) "may ~ry well be painful, but it
does not cause death, and plaintiff [has
not shown] that his condition is
degenerative or causes extreme pain."
(lOIS) This, as well as his allergies, his
podiatric condition, his post-surgery
hernia condition, his knee condition, his
urological,
dermatological,
and
cardiological problems "do not present
urgent
medical
conditions
the
maltreatment of which amounts to cruel
and unusual punishment. ... " (1016)
The courtdoes not determine whether
"the nearly constant medical attention"
plaintiff has received amounts to
deliberate indifference.
The court previously declined to
order more telephone access than one
half-hour telephone call per week to
counsel. It now declines to order more
furnishings and supplies for him. He
complained that he had to sit on his bed
and write on a shelf with an undersized
pen and no light except an overhead
fixture; the decision to provide only this
in special housing is upheld under the
Turner standard. Refusal to provide
letter-size paper would not be upheld, but
the defendants say they make it available.
Having had papers returned by the court
because they are on the wrong size paper
does not establish prejudice, but merely
.
.
lllconvemence.
At 1017: "... [F]or the prison to
refuse to provide adequate clothing for
outdoorexercise is tantamountto refusing
to provide outdoor exercise, which refusal
would be a constitutional violation. In
particular, the refusal to provide
reasonably warm clothing for outdoor
exercise during the cold winters of
upstate New York cannot be supported,

b_L--

THE NATIONAL PRISON PROJECT Journal·· page 34
and in fact defendants have not attempted
to defend the practice. . .. " The court
preliminarily enjoins the defendants to
provide warm clothing to use in the
exerCise area.
Plaintiffs request that exercise
clothing be issued to each inmate
individually is not of constitutional
statute.
The court rejects the plaintiffs claim
that the "nutri-loaf' served to prisoners
on restricted diets in segregation is not
kosher because the defendants submitted
evidence that it ~ kosher!
Procedural Due Process--Disciplinary
Proceedings
Lee v. Coughlin, 914 F.Supp. 1004
(S.D.N.Y. 1996). The district court
granted summary judgment to plaintiff
in a disciplinary case that was submitted
before Sandin but decided afterward; the
court noted that it was "hard pressed to
believe" that 376 days in segregation is
not atypical and significant. However,
defendants are entitled to reconsideration
in light of Sandin, and the court permits
them to resubmit their own summary
judgment motion after discovery.
Exercise and RecreationJReligion-Practices--Beards,
Hair,
Dress
/Injunctive
Relief--Changed
Circumstances,Preliminary/Protection
from Inmate Assault/Negligence,
Deliberate Indifference and Intent
Estep v. Dent, 914 F.Supp. 1462
(W.D.Ky. 1996). At 1465: "Because
defendants have already begun to build
an outside recreation site for [this unit's]
inmates, they are not acting with a
deliberate indifference to the inmates'
health and safety needs." The court
declines to issue a preliminary injunction.
The court declines to enjoin
defendants to separate segregation
inmates according to category (pC, death
row, etc.) during recreation periods, since

the plaintiff has not alleged haflj from
any other prisoner.
f
The court grants a preliminary
injunction prohibiting the defendants from
cutting the earlocks of the plaintiff, an
Orthodox Hasidic Jew. The fact that the
defendants waited three months to cut the
plaintiff's hair weakens defendants' claim
of a compelling interest.
Publications
Goldenv. McCaughtry, 915 F.Supp.
77 (E.D.Wis. 1995). The plaintiff
complained that defendants had a policy
of reviewing cassette tapes marked
"parental advisory--explicit lyrics" and
barring those that "advocate violence,"
giving the prisoner 30 days to send them
home, after which they were destroyed.
The plaintiffasserted he was denied a rap
music tape. He stated a First Amendment
claim. At 79: "Rap music constitutes
speech protected by the First
Amendment. ... An arbitrary denial of
access to published materials may violate
an inmate's First Amendment rights.... "
Procedural Due Process--Disciplinary
ProceedingslResJudicataandCoUateral
Estoppel
Smithv.Maschner, 915 F.Supp. 263
(D.Kan. 1996). The plaintiff was
disciplined for disrespect. He asked that
the officer to whom he was disrespectful
be called as a witness but was refused.
The right to call such an important witness
was dearly established in 1984. It was
reflected in regulations that appeared to
specify the kind of balancing prescribed
in Wolff. The claim that the witness, if
called, would not have supported the
plaintiff's story is irrelevant to the due
process question, since it is not the reason
given for refusing to call him; it may be
relevant to damages. Since no clear
delineation of reasons is given, there is
a triable issue offact. The defendants will
have the burden ofgoing forward and of

Fall 1997/Winter 1998
proofas to the legitimacy oftheir reason.
Res judicata does not apply based
on a state court finding that the plaintiff
was harassed by the defendants; the court
finds the record too confusing to support
such a holding.
'\;

Personal Property/Procedural Due
Process--Property, Disciplinary Proceedings/Work Assignments/Equal
Protection
Rudolph v. Cuomo, 916 F.Supp.
1308 (S.D.NY. 1996), ajJ'd sub nom.
Allen v. Cuomo, 100 F.3d 253 (2d Cir.
1996). The "pay lag" policy, which
withholds part of inmate pay to
accumulate "gate money" for release, and
the $5.00 surcharge for conviction ofTier
II or III disciplinary offenses, are
constitutional.
At 1315: "There is . . . no
constitutional right to prison wages and
any such compensation is by the grace
ofthe state." However, inmates do have
a property right in wages already earned
under the system of compensation that
the state created; the authority to create
such a system, plus the long-standing
policy of paying wages and the
acknowledgement by the state that the
wages were owed, created a property
interest. However, there is no property
interest in timely payment. There is also
no Takings Clause violation, since no
reasonab Ie
investment-backed
expectations are disturbed when the state
acts in a manner expressly authorized by
pre-existing law. Nor is there a Contracts
Clause violation. Prison work does not
involve a contractual relationship, and
the forms signed by inmates consenting
to assignments are not a contract
governing payor conditions. Even if
there were a contract, it would
prescribe the timing of payment.
The disciplinary surcharge did
introduce bias into
proceedings. Plaintiffs alleged that

~_.-

.

_

THE NATIONAL PRISON PROJECT
threat of layoffs among prison staff
created an incentive to find inmates guilty
and raise money; however, this alleged
incentive was far too attenuated to give
rise to a due process violation. The
allegation that the surcharge exceeded
statutory authorization at most stated a
state law question, and in any case there
is adequate state law authority.
The surcharge does not violate equal
protection in its lack ofindigency waivers
because prisoners are not similarly
situated to indigent free citizens who can
get waivers from other state surcharges.
In any case, it was rationally related to
legitimate interests: getting inmates to
behave and raising revenue for the state
and defraying the costs ofthe disciplinary
system.
Searches-Person-Convicts/Grievances
and Complaints about PrisonIReligion
Hill v. Blum, 916 F.Supp. 470
(E.D .Pa. 1996). The plaintiffalleged that
the defendant officer squeezed his genitals
during a pat search and that he was fired
from his prison job in retaliation for filing
a grievance.
A pat search including the genitals
does not violate the First Amendment
rights of a Muslim prisoner and is not
unreasonable under the Fourth
Amendment. The officer's conduct did
not "shock the conscience" under the Due
Process Clau~e or violate the Eighth
Amendment.
There was no evidence supporting
the allegation that the plaintiff was fired
from his job for grieving the search.
Procedural Due Process--Disciplinary
Proceedings/Statutes of Limitations
Reynoldsv. Wo(ff:916F.Supp.1018
(D.Nev. 1996). The plaintiffs alleged that
their disciplinary proceedings were tainted
because a higher prison official directed
the hearing committee to find them guilty.
The statute of limitations did not begin

Journal·· page 35

to run until they learned of t~
intervention, which occurred at a c~
trial two years after the disciplinary
hearing. (One of the hearing officers
testified that she had been so instruCted.)
TheNevadagoodtime statute is stated
in mandatory terms and therefore creates
a liberty interest. Having reached that
conclusion, the court dismisses the
plaintiffs' due process claims on the
ground that Wo!ffrights were not denied.
The issue of lack of impartiality is not
mentioned in this opinion.

Fall 1997/Winter 1998

Law Libraries and Law Books
Degrate v. Godwin, 84 F.3d 768 (5th
Cir. 1996). A prisoner who rejects courtappointed counsel for his crirninal defense
has no right of access to a law library.

Quartararo v. Catterson, 917
F.Supp. 919 (E.D.NY. 1996). The
plaintiff, who was convicted of a
notorious child murder committed when
he was only 14, was approved for work
release. His"work release was revoked,
he was plaCl::d in segregation, and his
parole application was denied under
extremely
bizarre
circumstances
suggesting
intentional
official
misconduct.
Administrative segregation for 14
days does not deprive the plaintiff of
liberty under Sandin even if labelled as
punitive. The court thinks that the length
ofa prisoner's sentence (here, nine years)
is relevant to the Sandin determination.
The supposed effects on his parole (which
was denied) are too speculative to be
considered.
Plaintiffalso argued that since he had
been on work release before being
segregated, his segregation was atypical
and significant relative to what he had
lost. However, the court says it was the
loss of work release, not the segregation,
that constituted the major deprivation.
Removal from work release does
constitute an atypical and significant
deprivation and a significant hardship.
The SHU confinement may be an item
of damages for this deprivation.
A claim ofdenial ofequal protection
by selective application of a facially
lawful state regulation requires the
plaintiffto allege that he was selectively
treated because of impermissible
considerations such as race, religion,
intent to inhibit the exercise of
constitutional rights, or bad faith intent
to injure the plaintiff. The plarntiffs
allegations meet the last prong of the
standard.

Procedural
Due
Process
Administrative
Segregation/Procedural Due Process --Temporary
Release/Equal Protection

Use of Force
Smithv.Marcellus,917F.Supp.168
(W.D.N.Y. 1995). The plaintiff alleged
that he was beaten in the course of a cell

Correspondence/Searches
Websterv. Mann, 91,7 F.Supp. 185
(W.D.N.Y. 1996). A mail room clerk
inspected an incoming letter for
contraband, found a pamphlet about nondrivers' identification cards, and read the
letter, which contained instructions about
creating false identification and related
material. The state police obtained a
search warrant and the sender ofthe letter
was ultimately convicted of possession
ofa forged instrument. The plaintiff was
not disciplined or prosecuted.
Opening the letter to search for
contraband was clearly constitutional.
Once she had seen the pamphlet on
identification cards, the defendant acted
reasonably in reading the letter. Any
departures from the prison system's
procedures requiring the superintendent's
authorization and immediate notice to the
prisoner ofthe seizure of his letter failed
to state a constitutional claim.

THE NATIONAL PRISON PROJECT
move, suffering abrasions, a small
laceration, and superficial skin tears. The
injuries were not de minimis. There was
some evidence that there was no need for
force (the plaintiff said he was sitting on
his bedwhen he was attacked, a lieutenant
was not notified as prison procedures
required, the defendant was reprimanded
for his conduct). The existence of an
emergency "does not ... automatically
justify whatever steps might have been
taken" by the defendants. The plaintiffs
allegation that he was struck with batons
and a walkie-talkie and forcibly pinned
against the wall with a body shield
presented a factual question as to the
necessity ofthe extent of force used.
Education and Training/Ex Post Facto
/EqualProtectionlGovernmentBenefits
Tremblayv. Riley, 917 F.Supp. 195
(W.D.N.Y. 1996).
The statutory
termination of Pell Grants to prisoners
is not punishment for purposes ofthe Ex
Post Facto Clause. It is the mere denial
ofanoncontraetual governmental benefit;
it is temporary, ending when the prisoner
is released; and it does not single out
persons convicted of specific offenses.
There are other rational bases for the
statute as well: budget constraints, the
desire to increase funding available to the
law-abiding, the conclusion that other
sources of funding were available to
prisoners,...etc.
The plaintiffs equal protection claim
as to non-prisoners fails for the same
reason as his ex post facto claim. The
equal protection claim as to the nonexclusion of prisoners in local jails and
prison fails, first, because the statute does
not clearly exempt local facilities, and
even if it does, there is a rational basis
for treating those serving shorter
sentences differently.
The plaintiffs due process claim is
rejected because any property interest he
had in the Pell grants was extinguished

Journal·· page 36

by amendment of the under~ing
legislation. The plaintiff also f..i1s to
identify any procedure he was deni~ and
his substantive due process claim is
rejected because of the statute's .rational
basis.
Denial ofeducational funding is not
punishment, much less cruel and unusual
punishment.
John Boston is the Director of the
Prisoners' Rights Project, Legal Aid
Society ofNew York.

The National Center for
Women in Prison Opens
The National Center for Women in
Prison-the legislative lobbying arm of
the National Network for Women in
Prison-opened in Washington on
November7, 1997. Atanewsconference,
Executive Director, MargaretJ. B. Owens
said the Center would work to promote
equity and justice for women and their
families, whose lives are impacted by the
criminal justice system.
In 1985 several organizations came
together to share information, strategies
and inspiration and began a series of
national meetings. The first of these
National Roundtables for Women in
Prison, was held in New York in March
1985. The National Network for Women
in Prison was developed to carry on the
work and strategies discusses at the
Roundtables to support women prisoners
and their families. Formerly incarcerated
women play central roles in planning and
implementing public education, and
advocacy for the Roundtables and the
Network.
The Center's priorities, outlined by
Owens at the news conference, are:
1) improvements in the quality and
scope of health and mental health care,
alcohol and substance abuse treatment,
and education, prevention and vocational
services for women and girls in prison or

Fall 1997/Winter 1998
at risk of incarceration.
2) protection ofthe human rights of
incarcerated women and girls, including
adoption of a zero tolerance policy
nationally toward their sexual abuse and
harassment.
3) effective medical and community
discharge planning as a standard, not an
exception.
4) greater investments in human
services programs to decrease the
likelihood of conflict with the law for
women at risk
5) reduction in the overall
incarceration rate ofwomen through the
use of appropriate alternatives to
imprisonment and ending of mandatory
minimum sentences for non-violent
female offenders.
6) greater availability of programs
to help incarcerated women and their
children, especially legal assistance with
custody, visitation, transfer of benefits,
wills and support services for children.
7) a national campaign to educate
the public and the criminal justice system
about the damaging impact on families
and communities of increasing
incarceration rates for mothers.
8) increased investment to aid
community-based organizations in
addressing incarcerated and formerly
incarcerated women's issues.
9) congressional appropriations to
allow the already authorized Family
Unity Demonstration Program to
establish pilot programs across the nation
giving non-violent women offenders the
opportunity to live with their minor
children.
10) the removal of stigmatizing
policies and attitudes that irripede the
ability of formerly incarcerated women
to successfully re-establish their lives and
those of their children.
The National Center for Women in
Prison is located at 1318 Pennsylvania
Avenue, s.£., Washington, D.C 20003.

THE NATIONAL PRISON PROJECT Journal.· page 37

Fall 1997/Winter 1998

NPP AIDS In Prison Project Update
Prisoners' Access to Protease Inhibitdfs Varies
by Jackie Walker, Project Coordi!1~tor

In a federal prison in Connecticut
Marie receives her medications, which
include a protease inhibitor in seven and
thirty day supplies. The schedule she
has devised to maintain her treatment
regime includes reminders to drink plenty
of water and specific times to have an
empty stomach. She follows it religiously.
After two viral loads the HIV virus
remains undetectable in her body.
The medical staff at Tim's facility
in North Florida recently started him on
a combination ofViramune, Norvir and
Videx. He was told that if he missed a
few days of medication they would no
longer be effective. But sometimes he
receives his dosages hours late. Now he's
afraid of developing resistance.
These are just a few of the letters
we've received in the last year regarding
the implementation of combination
therapy and protease inhibitors. They
characterize a range ofexperiences faced
by prisoners living with HIV/AIDS.
According to Theodore Hammett, Abt
Associates, 46 state systems and the
Bureau of Prisons make combination
therapy and protease inhibitors available
to prisoners. To learn how these
treatments are being implemented I
interviewedofficialsatthe Federal Bureau
of Prisons and"in the state systems of
Mississippi, New York, Florida and
Connecticut. I also interviewed prisoner
advocates regarding problems they are
aware of with implementation.
The Federal Bureau ofPrisons(BOP)
formulary includes all four Food and
Drug Administration(FDA) approved
protease inhibitors with the exception of
delavadine, which is under review for
inclusion. Medications are generally
provided in seven day supplies with the
exception of Crixivan, which comes in

thirty day supplies and Ritonavir wQich
is administered daily." This is our
compromise between daily and monthly
prescriptions. But we do put inmates on
pill line if there are concerns with
compliance." says Dr. Kendig ofthe BOP.
Reports from doctors on site indicate
the new medications have resulted in less
hospitalization.
When asked about the prospect of
medical segregationto implement the new
therapies Dr. Kendig responded, "We
don't segregate inmates based on HIV
status. But we do send those who are
severely ill to medical centers for closer
evaluation and specialty care. I think that
there are definite disadvantagesto inmates
being segregated. It tends to limit their
participation in programs provided to the
general population. We don't really favor
it. Although I understand the advantages
of doing it"
At the Mississippi State Prison in
Parchman, where male prisoners living
with HIV/AIDS are segregated, tre
institutional medical director Dr. Jonn
Bearry only offers one protease inhibitor,
Crixivan. Dr. Bearry explains, "In my
mind Crixivan is clearly the more
superior in terms ofbioavailability and
contraindication. But I have an open
mind. I'd be willing to consider adding
other medications." Prisoners at his
facility must demonstrate compliance to
a combination of two nucleoside
analogs(e.g. AZT, 3TC etc.) for six
months before being offered a protease
inhibitor. This rule is waived for prisoners
who come into the system on a therapy
that includes a protease inhibitor and for
those who enter with a low CD4 count.
Despite these limitations he has seen a
decrease in the deaths and improvements
in clinical status .

Significant changes have been
witnessed in New York prisons by Dr.
Lester N. w~'ght, Chief Medical Officer
New York Department of Correctional
Services(NYDOCS), since implementing
the new HIY!AIDS treatments.
Combination therapy with protease
inhibitors and viral load testing became
available to prisoners in 1996. Some
prisoners also participate in HIV/AIDS
treatment protocols offered by medical
centers on as yet FDA unapproved
medications. According to Dr. Wright,
"HIV-related mortality has decreased
approximately 80% in 1997 compared
with 1995. This year, for the first time
in ten years, HIV no longer causes the
majority of deaths in the DOC system;
while HIV-related hospital days have
decreased by over 25%"
The introduction of these new
treatments has been accompanied by
various educational programs. To update
the knowledge ofhealth care staff, Albany
Medical Center has been offering a series
of satellite-broadcasts on HIV treatment
in correctional settings. NYDOC'S staff
pha.mJacist has developed a color-coded
picture-based treatment schedule card for
prisoners to help compliance. There is
currently no data on compliance or
development of resistance. When asked
to speculate on using medical segregation
to implement the new treatments Dr.
Wright said, "Segregation ofthe 7500 to
8000 HIV infected inmates(estimated by
blind seroprevalence studies) would not
be logistically possible in New York.
I do not feel it would help in providing
therapy and it would publicly identify
those who are known to be HIV infected
thus probably decreasing the number of
those who are willing to be HIV tested. "
Since implementingthe new therapies

THE NATIONAL PRISON PROJECT journal·· page 38
the Florida Department of Corrections
budget for IllV/AIDS medications has
increased to $125,000 a month.
According to medical director Dr. David
Thomas, "All recommended modalities
of infectious disease treatments are
available to our inmates. Most are on
triple combination therapy of two
nucleoside reverse transcriptase and one
protease inhibitor, but of course this is
individualized by each physician." Dr.
Thomas notes these medications are
administeredbydirectlyobservedtherapy.
Last year Dr. Thomas organized two
conferences to educate doctors about the
treatments. Both correctional and
community physicians were included in
eachpresentation. Educationfor prisoners
is providedat clinic visits and documented
before directly observed therapy begins.
In Connecticut medical care for
prisoners living with HIV/AIDS is
subcontracted through Dr. Frederick
Altice, director of the Yale AIDS in
Prison Project.
His program offers
prisoners a unique opportunity to receive
care from a community doctor. The
majority of prisoners are offered some
form of treatment and medications are
offered by directly observed therapy or
weekly dispensation.
Speaking to the
issue of compliance Dr. Altice says
"We've found the adherence rates on
medication line and self medication to be
the same. J!.ut we allow prisoners to make
the choice. Some people won't go to
medication line.
You have to
individualize it for each person. "
Last year Dr. Altice did a pilot project
on the impact of peer education on
adherence to treatment. Twenty women
living with HIV/AIDS who were
respected peer leaders received an
intensive eight week medical training in
HIV/AIDS. The women were taught
everything from how to deal with
medication side effects to how to get
medical care when you're being ignored.

The women took all the informati~ to
their cells which become librari~s for
other women living with HIV/AIDS,," Dr.
Altice has documented higher rates of
adherance to treatment among these
women and their peers - up to 84%.
Among pregnant women prisoners, he
has seen an adherence rate of 100%.
Advocates have been documenting
a mix of experiences in implementation
ofthe new treatments. In New York, the
most complaints received by the AIDS
in Prison Project of the Osborne
Association are about interruption of
medication and less than optimal
combinations being administered.
Steve Nesselroth, Director of the
AIDS in Prison Project, has two major
concerns, "First, the training and expertise
of doctors prescribing medications
coupled with the level of testing and
monitoring they are able to do; second,
the interruption of medications and how
to address this within a system that
focuses on security and not medical care."
However, following a meeting last year
between advocates and Dr. LesterWright,
Medical Director for the New York DOC,
he feels some changes for the better have
occurred.
Similarcomplaintshavebeenreceived
by Bill Gibney, staff attorney with
Prisoners Legal Services. He expresses
concern on the long range impact of the
new therapies, "Unless the recommended
timing ofthese medications is regularly
followed the treatments become less
effective. Poor administration of the
treatments can create hazards down the
road. For instance prisoners become
immune to certain therapies."
He notes that one positive change
sinc~ the meeting with Dr. Wright has
been New York's creation of a criminal
justice initiative on HIV/AIDS. This
program has brought community based
organizations into facilities to provide a
variety of services including HIV/AIDS

Fall 1997/Wi nter 1998
education and discharge planning.
Peter Siegel, a lawyer with the Florida
Justice Institute, has experienced
problems similar to his colleagues in New
York. "Most ofthe complaints I receive
involve dosages being missed or late. My
main concern is making sure prisoners
get theirregimen in a timely manner.
Additiollally most doctors in the system
practice by rote and have no real
understandingofHlV/AIDS," says Siegel.
He has investigated a variety of
complaints from prisoners on combination
therapy that included a protease inhibitor.
In one case a prisoner's verbal altercation
with a nurse resulted in his medications
being stopped for a number of days.
These medications were later resumed.
But when he wrote a grievance regarding
the lapse the official response was that
.his behavior justified the interruption of
his medication.
In California, Judy Greenspan,
Director of Catholic Charities' AIDS in
Prison Project sees a pattern of
inconsistency based on her interviews and
correspolldence. She explains, "Some
doctors started making protease inhibitors
available on their own. But later these
treatments were interrupted until the DOC
developed a protocol. It's still hit or miss.
Relatively speaking the men get better
treatment, especially at Vacaville or San
Luis Obispo. At the women's prisons
they're still doing two drug combination,
it's hard for them to get triple combination
therapy."
The accounts she has received from
prisoners range from those receiving a
two week supply of their medication in
plastic bags damaged and mixed together
to others who experience side effects but
find doctors unwilling to make
adjustments in their medications. In
reflecting on these incidents she feels,
"Prisoners are making every effort to be
compliant, but the system can't figure out
how to implement these treatments."

THE NATIONAL PRISON PROJECT

Journal·. page 39

Fall 1997/Winter 1998

Highlights from the National Prison l1roject Docket
•

Young v. Harper (Oklahoma): .The
United States Supreme Court requested
that the NPP represent a prisoner who
had filed a suit when he was removed
from pre-parole without a hearing. The
Supreme Court affirmed the rulings of
the lower federal court that Mr. Harper
had been denied due process. Following
the Supreme Court's decision, the State
of Oklahoma continued to hold Mr.
Harper withouta hearing, and we returned
to the district court, which ordered him
released. The Tenth Circuit denied the
defendants' motion for a stay, and Mr.
Harper was released. The state held a
revocation hearing but Mr. Harper
remains free.
Amatel v. Reno (District ofColumbia):
This case challenges the "Ensign
Amendment," passed by Congress in
1996, which prohibits the Federal Bureau
of Prisons from allowing prisoners to
receive publications featuring nudity. On

August 12, 1997, the district court ~eid
the statute unconstitutional and granted
a permanent injunction against its
enforcement by the Bureau of Prisons.
The defendants have appealed to the
District of Columbia Circuit Court of
Appeals. Oral argument is set for May.
In the meantime, Congress has reenacted
the challenged statute.

Inmates of Occoquan v. Barry
(District of Columbia): This class action
challenges conditions at the District of
Columbia's Occoquan facility in Lorton,
Virginia. Monitoring has been continuing
since the district court found that
inadequatemedical and mental health care,
fire safety, and sanitation, and the failure
to protect prisoners from harm violated
the Constitution.
At the end oflast year, the Special
Officer wrote a Report finding significant
violations of the personal safety orders.
In January 1998, the parties agreed to

an order reducing population in order to
decrease the risk ofassault at the prison.,
and have requested pursuant to PLRA
that a three-judge court be convened to
approve thedgreement.

Onishea v. Herring (Alabama): .This
class action challenges the segregation
and exclusion of all mv positive
prisoners from all prison programs and
activities available to other prisoners.
Following trial, the district court ruled
against plaintiffs on every issue. The
court of appeals ordered a new trial on
plaintiffs' claims that their automatic
exclusion from prison programs violated
the Rehabilitation Act. Following retrial,
the district court again ruled against
plaintiffs. In November, the Eleventh
Circuit granted plaintiffs' appeal,
reversed the decision ofthe district court,
and remanded for retrial before a new
judge. Defendants asked for, and have
been granted, a rehearing en bane.

National Prison Project Publications
The National Prison Project Journal,
a quarterly publication, $30/year ($2 for
prisoners), sem! check or money order
to the NPP.
The Prisoner Assistance Directory,
identifies and describes organizations and
agencies that provide assistance to
prisoners. Lists national, state and local
organizations and sources of assistance
including legal, AIDS, family support and
ex-offender aid. 11th Edition, July 1996.
Paperback, $30 prepaid from NPP.

1997 AIDS in Prison Bibliography
NEW EDITION - revised and greatly
expanded, lists resources on AIDS in
prison available from the NPP and other
sources, including corrections policies
on AIDS, educational materials, medical
and legal articles, and recent AIDS
studies. $25 prepaid from NPP.
AIDSin Prisons: The Factsfor Inmates
and Officers is a simply written
educational tool for prisoners, corrections
staff and AIDS service providers. The
booklet answers commonly asked

questions concerning the meaning of
AIDS, the medical treatment available,
legal rights and responsibilities. Also
available in Spanish. Single copies free,
for bulk order pricing call 2021234-4830.

TB: The Factsfor Inmates and Officers
answers commonly-askedquestions about
tuberculosis (TB) in a simple questionand-answer format. Discusses what
tuberculosis is, how it is contracted, its
symptoms, treatment and how HIV
infection affects TB. Single copies free,
for bulk order pricing call 2021234-4830.

1

I

THE NATIONAL PRISON PROJECT Journal·· page 40

Fall 1997/Winter 1998

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