THE NATIONAL PRISON PROJECT

Journal
ISSN 1076-769X
Vol. 12 No.3, Spring/Summer 1998

Friends and Colleagues Remember Activist Attorney Robert F. Bensing

Robert F. Bensing, a staffattorney with the Southern Center
for Human Rights, died February 3 of injuries sustained in
a car accident after meeting with inmate clients about a recently
settled case at the Valdosta State Prison in Georgia. The state
ofGeorgia agreed to pay $283,000 over charges ofabuse and
brutality committed by prison staff. Local press reported the
inmates' victory in the case the same day Bensing died.
This issue ofthe Journal is dedicated to his life and work.
Bensing, who spent his entire career working in public
interest law, recently received the ACLU of Georgia's 1997
Civil Liberties Award. He began practicing prison litigation
15 years ago with Prisoners' Legal Services ofNew York in
Plattsburgh. In 1995, he moved to the Southern Center for
Human Rights in Atlanta. Bensing also volunteered his
services on behalf of refugee and immigrant rights.
In his most recentprison case, Anderson v. Gamer, Bensing
exposed the seemingly state-sanctioned horrors endured by
prisoners during shakedowns at Hays and Walker State Prisons.
Bensing's efforts brought a successful conclusion to a suit
where 20 prison employees testified and corroborated the
accounts ofbeatings and attacks carried out by prison guards
on unresisting inmates. Many ofthe incidents were committed
in the presence"'ofthe state's corrections commissioner, Wayne
Garner.
Colleagues recall Bensing as a gentle, kind, and laid-back
individual. He was a vegetarian with little concern for money
or status. One colleague recalled, "He only cared about his
clients and their interests. Bob exhibited not the slightest need
to prove anything about himself to anyone. He was at ease
with himselfand with anyone else, from the high and mighty
to the poorest person in the dingiest prison cell."
Family and friends also jokingly remembered his often
"disheveled" dress and love ofjunk food. ''Bob was not flashy.
He wore clothes that looked like they had been bought at KMart ten years ago and slept in the night before. It pained
him to wear a tie, and, given the collection of ties he had, it

often pained us to see him wearing them." Fellow staff
members say Bob always had a supply of Oreo cookies on
hand, whether in the office or out interviewing clients, which
he was "occasionally" willing to share.
Stephen B. Bright, Director of the Southern Center for
Human Rights, delivered the eulogy for Bensing. Bright's
tribute to his friend and colleague best and poignantly descri~s
the wonderfully devoted and compassionate man the prisoners'
rights community has lost:
Bob's life was a ministry to those most in need.
He traveled down that road seldom taken oftrying
to bring to life the dream of equal justice for all.
He lived out his belief in human rights -- that all
people are entitled to dignity, even those who have
offended us most grievously. He was a great
humanitarian. He knew that people were much more
than the worst thing they ever did in their lives.
The Southern Center for Human Rights honored Bensing
posthumously with the "Service to Prisoners Award" at its
1998 awards dinner held at the Washington Stouffer
~
Renaissance Mayflower Hotel on October 6.

INSIDE THE JOURNAL
Case Law Report. . . . . . . . . . . . . . . . . . . . . . ..
Court of Appeals Cases. . . . . . . . . . . . . . . .
District Court Cases. . . . . . . . . . . . . . . . . . .
AIDS Project Update. . . . . . . . . . . . . . . . . . . ..
Prison News. . . . . . . . . . . . . . . . . . . . . . . . . . ..
Highlights from the NPP's Docket
NPP Publications
'

2
2
19
33
34
35
35

THE NATIONAL PRISON PROJECT Journal-- page 2

Spring/Summer 1998

Case Law Report -- Highlights of Most Important Cases
by John Boston
Court of Appeals Cases
PrisonUtigationReformActIInForma
Pauperis
Walp v. Scott, 115 F.3d 308 (5th Cir.
1997). The plaintiff was denied IFP
status by the district court, which
interpreted the Prison Litigation Reform
Act as barring the filing of a civil rights
complaint by a prisoner who had failed
to pay the costs--all ofthem--associated
with filing a previous claim, which was
still pending. (He was apparently broke;
he had been assessed 14 cents as an initial
filing fee and that is all he had paid.)
At 309: "Nowhere does the PLRA
require a prisoner to pay the entire filing
fee in a prior civil case before filing a
second complaint." This result is also
inconsistent with the balance struck by
the PLRA, which provides that in no
event shall prisoners be prohibited from
suing because they have no means to pay
the initial fee. In addition, it turns the
"three strikes" rule into a "one swing"
rule.
Grievances and Complaints about
PrisonIProcedural Due ProcessDisciplin~ryProceedings
McLaurin v. Cole, 115 F.3d 408 (6th
Cir. 1997). The plaintiff alleged that a
disciplinary charge was filed in retaliation
for his filing a grievance against the
officer. The record reveals that the
plaintiffhad threatened to kill the officer,
and it is therefore not surprising that the
officer issued the charge. The plaintiff
failed to prove that the filing of the
grievance was a substantial ormotivating
factor, and the officer's actions were not
shocking to the conscience. The court
is not only wrong in adopting the "shock
the conscience" test (see concurring

opinion), but completely muddies the
water as to why the officer'§ action did
not meet the standard--because it was
justified, or because it was not
sufficientlyegregious evenifunjustified?
It also seems to engage in appellate factfinding, since the court grantedjudgment
as a matter of law after the plaintiffs
case, and it does not appear that the
plaintiffadmitted threatening to kill the
officer.
ReligionIDamages-IntangibleInjuries
Warner v. Orange County Dept. of
Probation, 115 F.3d 1068 (2d Cir. 1997).
The plaintiff was required to attend
Alcoholics Anonymous as a condition
ofprobation, which was recommended
as a matter of routine by the county
probationdepartmentfor defendants with
alcohol problems. He objected to the
religious component of the program.
Compelled attendance at A.A.
sessions violated the Establishment
Clause. They had a substantial religious
component and plaintiffs participation
was coerced. The result would be
different had he been offered a reasonable
choice of therapy providers.
The damage award of $1.00 was
proper. The court engages in a homily
about the evils of a substantial damage
award in these circumstances and the
attractiveness of a good faith defense,
which does not exist for municipalities.
Use of ForceNerbal AbuselPersonal
Involvement and SupervisoryLiability/
Damages-Punitive
Estate ofDavis by Ostenfeld v. Delo,
115 F.3d 1388 (8th Cir. 1997). The
plaintiffwas slow in obeying instructions
about handcuffing for l!.search. He asked
for a higher-ranking officer to be present.

Defendants convened a "movement team"
to conduct a cell extraction. Movement
teams generally were supposed to use no
more forc~ than necessary, and records
of200 movement team instances showed
only two serious injuries. Movement
team incidents are videotaped and all staff
involved are supposed to submit reports,
which are reviewed through the chain of
command.
The officerresponsible for restraining
the plaintiffs head lunged onto him as
he lay unmoving on his bed, struck him
repeatedly about the head and face, and
smashed his chin against the concrete
floor. The other team members did not
intervene and did not report this force
or any injury to the plaintiff. The
Superintendentreviewed the incidentand
observed from the video tape that the
plaintiffwas bleeding, but did not order
any further investigation. The videotape
was later lost.
There was no system for tracking
complaints against officers, and the
sUperinteQ.dentrememberednone against
the main defendant, but the court found
that several such prior complaints had
been dismissed without investigation.
The district courtproperly found that
the main officer defendant violated the
Eighth Amendment, based on its
determination that the plaintiffwas more
credible. Its conclusion that force was
used maliciously and sadistically is
supported both by the disproportion
between the force used and the force
needed and by the fact that the defendant
taunted and threatened the plaintiff the
day after the incident. He was not entitled
to qualified immunity. The court agrees
that striking an unresisting inmate 20 to
25 times in the head while four other
officers were restraining him and two

THE NATIONAL PRISON PROJECT Journal -- page 3
others were standing by is a violation of
clearly
established
law.
(The
Superintendent testified that any blow
would be excessive on these facts.)
The other members ofthe movement
team were properly held liable for
knowing failure to intervene. At 1395:
"A prison official may be liable for
failure to protect an inmate from a use
of excessive force if he is deliberately
indifferent to a substantial risk ofserious
hann to an inmate." This law was clearly
established. Their failure to report the
plaintiff's injury is evidence ofdeliberate
indifference. The movement team
supervisor was properly held liable for
the same reason.
The Superintendent was properly held
liable based on evidence that he knew
ofthe main defendant's propensity to use
excessive force, based on one incident
in which he had authorized an
investigation and others in which he took
no action. These facts support a finding
of deliberate indifference.
The plaintiff sustained numerous
contusions and lacerations, including one
laceration requiring internal and external
sutures. The district court awarded
$10,000 in compensatory damages jointly
and severally against all the defendants
and $5000 in punitive damages against
the main officer defendant and the
Superintendent. The award of punitive
damages was proper against both
defendants.

PrisonUtigationReform Act/InForma
Pauperis
Santerv. Quin/an, 115 F.3d 355 (5th
Cir. 1997). The petitioner sought a writ
of mandamus from the district court
directing a state court to review his state
writ on the merits, and appealed its
denial. The Prison Litigation Reform
Act does not apply because the action is
not an appeal of a judgment in a civil
case. Mandamus actions that seek relief

Spring/Summer 1998

analogous to civil cases should be treated
as civil under the PLRA, while actions
directed to criminal proceedings are not.

allegedly unconstitutional policy, a
plaintiff must submit to the challenged
policy."

Religion-Practices--Beards, Hair,
DresslExhaustion of Remedies/
.#?
Standing

Use of ForcelPre-Trial Detainees

Jackson-Beyv. Hans/maier, 115 FJd
1091 (2d Cir. 1997). The plaintiffalleged
that he was precluded from wearing to
his father's funeral white garments and
a red fez as required by the Moorish
Science Temple religion. As a result, he
chose not to go to the funeral.
Departmental policy required
prisoners to register their religious
affiliations in order for these to be
accommodated. The plaintiff was
registered as a Muslim and not an MST
adherent. Policy also said that prisoners
may not wear religious garb ofreligions
other than their own. Another policy
required prisoners attending funerals to
wear civilian clothing issued by the state,
but defendants admitted that they will
accommodate religious requirements in
this respect.
The plaintiff lacked standing to
challenge the refusal to let him wear his
religious garb because he had refused to
follow the standard procedure of
registering his religion and failed to show
that doing so would have been futile. He
did not challenge the constitutionality
of the registration requirement, which
the court notes places a minor burden on
religious rights while serving important
purposes for prison officials. The court
refuses to interpret DOCS documents
indicating that only the Sunni and
American Muslim Mission sects are
recognized as meaning that the plaintiff
would not have been accommodated, and
weighs the fact that defendants made
some accommodation after this lawsuit
was filed.
At 1096: "As a general matter, to
establish standing to challenge an

Rileyv. Dorton, 115 F.3d 1159 (4th
Cir. 1997) (en banc). The plaintiff
alleged that a police officer stuck a pen
a quarter of an inch into his nose,
threatening to rip it open, and slapped
him across the face with "medium force."
The Fourth Amendment govems use
offorce during arrest, investigatory stop,
or other "seizure" of a person, but this
is not a Fourth Amendment case because
the force was used two hours and ninety
miles from the place ofarrest. Also, the
plaintiffwas arrested pursuant to a valid
warrant, and is therefore a pre-trial
detainee under the law of the Fourth
Circuit. The court rejects the holdings
of several circuits that "arrest" extends
through the period of custody by the
arresting officers.
This is not a Fifth Amendment case
because the plaintiffdid not incriminate
himself and the incident of which he
complains was not an interrogation.
The claim is governed by the Due
Process Clause of the Fourteenth
Amendment, which does not prohibit de
minimis uses of force.
At 1167:
"Punishmentmust mean somethingmore
than trifling injury or negligible force."
The plaintiff made claims of
psychological injury, but the record does
not support them; his medical records
show that he has made numerous
complaints about all manner ofmedical
and psychological claims except for the
lingering effects of his treatment after
arrest.

PrisonUtigationReformAct/In Forma
PauperislProtection from Inmate
AssaultIPleading
Gibbs v. Roman, 116 FJd 83 (3d Cir.
1997). The plaintiffalleged that a prison

.~-------------------------

THE NATIONAL PRISON PROJECT Journal -- page 4
librarian pennitted an inmate law clerk
to read his legal papers, thereby
disclosing that he had been a government
infonnant, resulting in threats on his life
and physical attacks by other inmates.
The district court erred in dismissing
the claim under the "three strikes"
provision; the plaintiff's allegations of
threats and assaults met the statutory
requirement of "imminent danger of
serious physical injury." At the pleading
stage, allegations in the complaint should
be construed as true, and this principle
applies to allegations ofimminent danger.
The defendants may subsequently
challenge these allegations and the
district court must then determine
whether they are credible as of the time
the alleged incident occurred, and not as
ofthe time the complaint was filed. The
court may rely upon sworn affidavits or
depositions or may hold a hearing.

Procedural
Due
Process-Administrative
Segregation,
Disciplinary Proceedings/Personal
InvolvementandSupervisoryLiability
Sealey v. Giltner, 116 F.3d 47 (2d
Cir.1997). Theplaintiffwasaccusedof
assault, fighting and weapons possession.
He was found not guilty at a disciplinary
hearing, since there was no employee
witness and a confidential infonnant's
report was unsubstantiated, but he was
placed in .administrative segregation
based in part on the confidential
information indicating involvement in
extortion and strong arming. The
determination was reversed on
administrative appeal but on rehearing
he was put back in segregation, and this
time the determination was upheld.
However, he had been transferred and
released from segregation.
At 51, citing Williams v. Smith:
A supervisory official is liable
for constitutional violations if
he or she (1) directly participated

in the violation; (2) failed to
remedy the violation after
learning of it through a report
or appeal; (3) created a custom
or policy fostering the violation
or allowed the custom or policy
to continue after learning '5f it;
or (4) was grossly negligent in
supervising subordinates who
caused the violation.
A letter to the Commissioner that was
referred to the Director of Special
Housing for review did not render the
Commissioner liable under this standard.
The plaintiff should have the
opportunity to show that he was deprived
ofliberty under Sandin based on the fact
that he faced an indefmite term in SHU
and actually served 152 days. At 52 n.
1: "Prior to Sandin, we assessed an
inmate's entitlement to procedural
protections in light of the potential
penalty he or she faced."
On remand, the court should also
consider whether the defendants "acted
in bad faith, labeling as administrative
a confinement that only could bejustified
as punitive and if so whether the notice
Sealey received was adequate." (52-53)
Ifthe segregation was administrative, the
court should consider whether the initial
notice and explanations at later hearings
sufficed to justify the full tenn of the
segregation.

Spring/Summer 1998

disorder and that seizures would likely
be triggered by alcohol withdrawal.
It was clearly established that "an
official acts with deliberate indifference
when he knows that an inmate is in
serious need ofmedical care, but he fails
or refuses to obtain medical treatment
for the imp.ate," or "intentionally delays
providing an inmate with access to
medical treatment, knowing that the
inmate has a life-threatening condition
or an urgent medical condition that would
be exacerbated by delay." (1425) A prior
decision established that "sheriffs and
jailers cannot place or keep a chronic
alcoholic in jail without any medical
supervision, when the defendants are
aware that the alcoholic is suffering from
a severe fonn of alcohol withdrawal."
(1426) Id.: "... [A] jail official who is
aware ofbut ignores the dangers ofacute
alcohol withdrawal and waits for a
manifest emergency before obtaining
medical care is deliberately indifferent
to the inmate's constitutional rights."
At 1426: "Whether each of the
defendants had the requisite knowledge
ofthe seriousness ofLancaster's medical
needs is a question of fact subject to
demonstration in the usual ways,
including inference from circumstantial
evidence." All the defendants here could
be found to have the requisite knowledge
and to have planned to keep him in jail
without medical supervision or treatment
Pre-Trial DetaineeslMedicai Care- until he had a seizure.
StandardsofLiability-SeriousMedicai
The county sheriff was a final
Needs/State Officials and Agencies/ policymaker, but whether for the state
State Law Immunities
ofAlabama and not the county is at issue
Lancaster v. Monroe County, Alfl., in another case; the court defers
116 F.3d 1419 (11th Cir. 1997). The resolution of the issue. (McMillian v.
decedent was arrested for DWI. He fell Monroe County, Ala., 117 S.Ct. 1734
out ofa top bunk and hit his head on the (1997) has held that Alabama sheriffs are
floor and died a couple of days later of state officials in their law enforcement
an intra cranial hemorrhage. His capacity.)
condition was consistent with seizures.
Jailers'sued in their official capacities
His family had repeatedly warned are state officials in Alabama, and
everyone in sight that he had a seizure entitled to Eleventh Amendment

THE NATIONAL PRISON PROJECT Journal -- page 5
immunity.
Sovereign immunity bars state law
claims against the Sheriff for negligent
performance of the statutory duty to
provide medical care. The court reaches
the same conclusion about jailers.
PrisonLitigationReform ActJIn Forma
Pauperis
Williams v. Roberts, 116 F.3d 1126
(5th Cir. 1997). Under the Prison
Litigation Reform Act; appellate courts
must assess fees from IFP litigants at the
moment the appeal is filed, even if it is
later dismissed.
PrisonLitigationReformActJIn Forma
Pauperis
Williamson v. Mark, 116 F.3d
115 (5th Cir. 1997). Financial screening
under the Prison Litigation Reform Act
is to be done in the district court; this
appeal is held in abeyance and the
question ofthe plaintiffs financial status,
assessment offiling fee, etc., is remanded
to the district court. The substance of
his appeal concerns the district court's
assessment ofthe PLRA filing fee in that
court; ifthe court finds any merit to that
claim, it will remand to the district court
for reassessment of the district court
filing fees. If the plaintiff is ultimately
dissatisfied with the resolution of that
issue and wants to appeal from it, he can
file a new notice of appeal and proceed
without paying a second appellate filing
fee.

publications did not counsel violence,
and there is no evidence that they have
ever caused a disruption. Certainly the
views expressed in the publications are
racist and separatist, but religious
literature may not be banned on that
ground alone." The material expressed
opposition to integrated celling,"" and
inmates have no right to insist on
segregation, but that doesn't mean they
give up their religious beliefs or that these
materials necessarily cause violence or
refusal to occupy cells as ordered. Also,
when the PublicationsReview Committee
examined the same materials, it voted
to approve them. ld,: "Prison authorities
... have not been consistent in rejecting
these materials, a fact which leads us to
believe that rejection, when it occurred,
was an exaggerated response."
The district court awarded $1.00 in
compensatory damages and $500.00 in
punitive damages. The award ofpunitive
damages is upheld; the court's finding
that the defendants were callously
indifferent to plaintiffs' right to read the
materials was not clearly erroneous. The
court had already held the blanket ban
unconstitutional at the time these
materials were rejected, and a defendant
here was a defendant in the earlier action.

Color ofLawlMental Health CarelPreTrial Detainees
Bucknerv. Toro, 116FJd450(l1th
Cir. 1997). The plaintiff was arrested
and subsequently developed a
"conversionreaction" and was unable to
walk.
He received treatment from Prison
Religion/Publications/Damages-Health Services, Inc., and alleged that
Intangible Injuries, Punitive
Williams v. Brimeyer, 116 F.3d 351 his condition went undiagnosed and has
(8th Cir. 1997). A blanket ban on become permanent.
At 452: "When a private entity like
materials from the Church of Jesus Christ
Christian is unconstitutional. The PHS contracts with a county to provide
defendants had a publication review medical services to inmates, it performs
procedure but didn't use it. The plaintiff a function traditionally within the
was entitled to the particular materials exclusive prerogative of the state....
he was denied. At 354: "The incoming In so doing, it becomes the functional

equivalent of the
Therefore the policy reqluirement
Monell and progeny apply. This
requirement is not an immunity which
arguably does not apply to a private
defendant; it is a limitation on municipal
liability to cases where the entity actually
caused the violation.
Criminal Proceedings
Turk v. White, 116 F.3d 1264 (9th
Cir. 1997). A statute providing for life
imprisonment without parole for state
prisoners convicted of assault likely to
produce great bodily injury committed
while the prisoner was already serving
a life sentence did not deny equal
protection, even as applied to a prisoner
whose underlying life sentence was later
vacated. The prisoner's status was used
to defme the offense and not to enhance
the penalty. The interest in stopping
prisoners serving life sentences from
attacking guards provided a rational basis
for the classification.
PrisonLitigationReformActJIn Forma
Pauperis
Gay v. Texas Dept. ofCorrections
State Jail Div.., 117 F.3d 240 (5th Cir.
1997). The filing fee requirements ofthe
Prison Litigation Reform Act apply to
prisoners who file a notice of appeal
while incarcerated but are subsequently
released. (The Second Circuit has
reached the opposite conclusion.)
Sexual AbuselMunicipallties
Sewell v. Town ofLake Hamilton,
117 F.3d 488 (11th Cir. 1997). The
plaintiff alleged that she was sexually
molested by a police officer after arrest.
A jury awarded $452,000 in damages.
The municipality is not liable for
failure to train and supervise, since the
proper behavior (refraining from sexual
abuse) was obvious to all without training
or supervision.

THE NATIONAL PRISON PROJECT Journal-- page 6
PrisonLitigationReform ActIIn Forma
Pauperis/Appeal
Baugh v. Taylor, 117 F.3d 197 (5th
Cir. 1997). The district court dismissed
the plaintiffs claims as frivolous based
on answers he provided to a
questionnaire, and certified that an appeal
was not taken in good faith.
At 200: "A prisoner litigant who
has been denied IFP status for appeal,
or whose appeal has been certified as
taken in bad faith, must pay the full filing
fee and other costs when due, without
the benefit of the accommodating
assessment procedures found in section
1915(b)." The court rejects the Sixth
Circuit's conclusion in Floyd v. United
States that district courts may only certify
non-prison appeals as not taken in good
faith.
A district court's certification that
an appeal is not taken in good faith is
subject to appellate review; the court
harmonizes 28 U.S.C. § 1915(a) with
Fed.R.App.P. 24(a), contra Floyd, which
held that the rule was repealed in part.
The district court is required under Rule
24(a) to state the reasons for its
certification. The litigant may then,
within the time prescribed by Rule 4, pay
the full filing fee and costs and proceed
with the appeal, or contest the
certification decision by filing a motion
for leave to proceed IFP with the court
ofappeals....Such a motion, if successful,
will be deemed to be a timely notice of
appeal. The motion must be directed
solely to the certification decision and
not the merits. At 202 (footnote omitted):
"The said motion and deemed notice of
appeal shall be a filing for purposes of
the PLRA and will trigger the financial
screening and assessment procedures
thereof." Ifsuch a motion is successful,
the court will order briefing on the merits
ofthe appeal. However, ifthe merits of
the IFP decision and the appeal are so
intertwined as to constitute the same

issue, the court may decide the merits as
well as the IFP issue. (Will they give
notice and ask for briefmg ofthe merits
in such a case? They don't say.) If the
prisoner persists in appealing despite an
adverse decision on the motion, the filing
fee must be paid within 30 da's or the
appeal will be dismissed for lack of
prosecution.

Transfers
Polandv. Stewart, 117FJd 1094 (9th
Cir. 1997). At 1098: "The Attorney
General may, at her discretion, waive the
federal sovereign's strict right to
exclusive custody of a prisoner and
transfer a federal prisoner to a state
sovereignty to enable the state to subject
the prisoner to conviction for a crime
against it." Here, the petitioners were
turned over to state authorities so they
could be prosecuted for a capital crime.
Protection from Inmate Assault!
Qassification/AppointmentofCounsel
Hamilton v. Leavy, 117 FJd 742 (3d
Cir. 1997). The plaintiff has a long
history ofbeing assaulted and has been
placed in protective custody and
transferred out of state. He was returned
to Delaware to prosecute civil actions in
the state courts and a guard denounced
him as a snitch in the presence of
inmates. The Multi-Disciplinary Team
(MDT) unanimously recommended that
he be placed in protective custody, but
they took no immediate action to protect
him;
they
forwarded
their
recommendation to the Central
Institutional Classification Committee
(CICC), which did nothing. Less than
two months later he was assaulted by
another prisoner, who pled guilty and said
he did it because the plaintiff was a
snitch.
The district court erred in granting
summary judgment to the chair of the
CICC based on her affidavit that said

Spring/Summer 1998
there was no danger to the plaintiffat the
prison where he was held. The MDT's
recommendation, which considered the
plaintiffs history of assaults and
acknowledged that his safety concern was
statewide, constituted evidence of a
substantial risk ofharm and provided the
CICC chair with knowledge of the risk.
Since she 'knew he had been labeled a
snitch, a fact-finder could infer that she
knew the threat was imminent. The
circumstantial evidence was sufficient
to support an inference ofknowledge and
the "no action" decision demonstrated
conscious disregard of the risk.
The MDT defendants acted
reasonably in forwarding their
recommendation to the CICC per prison
procedure, but they did not necessarily
act reasonably in doing nothing after. their
recommendation was rejected.
At 747 n. 1: The district court's
suggestion that the plaintiff must give
advance notice ofhis safety concerns is
inconsistent with Farmer; the question
is whether the defendants knew about the
risks.
The district court should have
appointed counsel. It erred in concluding
that the plaintiffdid not have a colorable
claim, and he appears to be ill-equipped
to litigate in light of medical evidence
thathe suffers from a paranoid delusional
disorder.

Publications
Owen v. Wille, 117 F.3d 1235 (11th
Cir. 1997). The plaintiff was denied
publications containing nude photos. The
defendants did not dispute that a blanket
ban on such photos would be
unconstitutional.
Uncontradicted
evidence showed that each publication
sent to a prisoner was reviewed by at least
three prison officials.
Summary
judgment for the defendant was proper.
There is no examination ofthe individual
publications by the court; however, there

THE NATIONAL PRISON PROJECT Journal -- page 7
is no indication that such examination
was sought. The censorship regulations
are not described and the court does not
pass on their constitutionality, much less
whether the publications actually violated
them.

Habeas CorpuslProcedural Due
Process
Woratzeck v. Arizona Bd. ofExec.
Clemency, 117 F.3d 400 (9th Cir. 1997).
The plaintiff argued that the procedural
deficiencies in his clemency hearing
denied due process and he should not be
executed just yet.
The
plaintiffs
claim
was
appropriately brought via § 1983 and not
habeas corpus, since a favorable decision
would not necessarily imply the invalidity
of the punishment imposed; it would
merely provide him with another
clemency hearing.
The involvement of his former
defense attorney and the Attorney
General in opposing his clemency
petition did not deny due process. Since
there are no substantive limitations in the
Arizona clemency scheme, there is no
liberty interest arising from state law.
However, the court applies the Sixth
Circuit's decision that clemency plays
an integral part in a state's criminal
justice procedure and therefore must be
conducted with due process even if
clemency itsel(is not required, and finds
that due process was not violated because
the proceeding did not "shock the
conscience" even if the involvement of
attorney general and former defense
counsel were "unfortunate and
inexcusable."
PrisonLitigationReform Act!In Forma
Pauperis
Kincade v. Sparkman, 117 F.3d 949
(6th Cir. 1997). The Prison Litigation
Reform Act's filing fee requirements and
three strikes provision do not apply to

petitions for habeas corpus or postconviction relief; these are not civil
actions for PLRA purposes. Persons
seeking such relief are required only to
file a statement ofassets and inability to
pay the fees to proceed IFP. At 952: "...
[A] prisoner may not attempt to e10ak
another civil action, such as an alleged
civil rights violation, under the auspices
of § 2254 and § 2255." In such a case
the district court must assess the filing
fee.

In Forma Pauperis
Marts v. Hines, 117 F.3d 1504 (5th
Cir. 1997) (en banc). At 1506: "... [W]e
now hold that dismissals as frivolous or
malicious should be deemed to be
dismissals with prejudice unless the
district court specifically dismisses
without prejudice. . .. Unexplained
dismissals without prejudice will
necessitate a remand." The appeals court
has the authority to change dismissal
without prejudice to dismissal with
prejudice even in the absence ofa crossappeal. The "Analysis" section of this
opinion begins (1505): "Once again we
consider the application of limited
judicial resources to an ever increasing
number ofprisoner pro se filings." Eight
out of 18 judges dissent from this
holding.
The PLRA is not considered.
AppeallModification of Judgments!
Contempt/Class Actions-Settlement
of ActionslInterventionlAccess to
Courts-Punishment and Retaliation
Twelve John Does v. District of
Columbia, 117 F.3d 571 (D.C.Cir.1997).
A contempt motion was to be settled with
some ofthe heavy fines held in abeyance
and ultimately returned ifthe District met
required staffing levels. Prisoners filed
pro se motions asking the court to oust
class counsel, permit them to intervene
as a subclass, appoint a receiver, and

Spring/Summer 1998
grant an anti-retaliation order.
Subsequently 1100 of 1300 prisoners in
the jail signed petitions supporting the
dissidents. All motions were denied
except for the anti-retaliation order and
allowing dissident class members to be
added to the group that meets with class
counsel.
A modified consent decree is an order
granting, continuing, modifying, refusing
or dissolving an injunction and is
therefore appealable.
The named interveners had all been
transferred to other jails and were not
even seeking retransfer. However, they
have standing on appeal. At 575: "A
party certified as class representative may
pursue the class claim even after his
purely individual claim becomes moot,
... and a named plaintiffwho has merely
asked for class certification may appeal
the denial ofclass certification even after
his individual claim becomes moot."
The district court did not abuse its
discretion in denying the motion to
intervene as a subclass. The question is
whether the dissidents were adequately
represented by class counsel. The claim
that class counsel failed to maintain
adequate communication with, and to be
sufficientlyresponsive to, class members
is rejected; the dispute relates to counsel's
failure to embrace the dissidents' agenda,
which went beyond the scope of the
consent judgment that counsel was
enforcing.

W0 r k
Assignments!Pre-Trial
Detainees/Class Actions-Certification
of ClasseslMootness
Wade v. Kirkland, 118 F.3d 667 (9th
Cir. 1997). The plaintiff challenged
working conditions of"chain gang" labor.
He was transferred from the jail while
class certification was pending and the
district court dismissed as moot without
ruling on certification. The court
remands for a ruling on certification,

THE NATIONAL PRISON PROJECT Journal-- page 8
including a detennination whether the
plaintiff may remain as the class
representative or whether other class
members with live claims should be
allowed to intervene.
Had the plaintiffs claims become
moot after certification, mootness would
have had no effect on the action or the
plaintiffs status as class representative.
Had they become moot after denial of
class certification, he would have
standing to appeal the denial. By
analogy, this plaintiff also has standing
under Geraghty.
In some cases it may be appropriate
to resolve a motion on the merits before
deciding a class certification motion, but
not in this case. The plaintiff "purported
to represent short-tenn inmates in a
countyjail, presenting a classic example
of a transitory claim that cries out for a
ruling on certification as quickly as
possible." (670) The district court must,
of course, detennine the merits of the
"transitory claim" argument. If the
claims are "inherently transitory," the
action is not moot regardless of lack of
evidence that anyone will be subject to
the acts that gave rise to the claims. In
addition, the court may certify a class in
such an action, based on the plaintiffs
standing at the outset ofthe case, under
the relation back doctrine.

for possession of drugs but not
placed in the general inmate
population, at least if there is
reasonable suspicion that they
have additional drugs or
weapons on their persons....
However, it was cle'itrly
established in May 1994 that a
strip search ofa person arrested
for driving while under the
influence ofdrugs but not placed
in the general jail population is
not justified in the absence of
reasonable suspicion that the
arrestee has drugs or weapons
hidden on his or her person.

Pre-Trial
Detainees/Suicide
PreventionlUse of Force-Chemical
Agents

Monday v. Oullette, 118 F.3d 1099
(6th Cir. 1997). The plaintiff called l}.
mental health hotline; the person he
talked to thought he might have
overdosed and called the police. He
refused to go to the hospital with them.
The police said they would have to
pepper spray him if he didn't go with
them. He didn't, and they did. The
plaintiff spent about five days in the
hospital as a result.
The defendant had probable cause
to believe that plaintiff was attempting
to commit suicide. The use of pepper
spray to arrest him was reasonable given
Searches-.:Person-Arrestees
Foote v. Spiegel, 118 F.3d 1416 (1Oth the plaintiffs size, the fact that he had
Cir. 1997). The plaintiffwas stopped in been drinking, and his adamant refusal
traffic and arrested because she was to go to the hospital. The defendant
believed to be under the influence of testified that it would have been more
marijuana. She was strip searched dangerous to put his hands on the
pursuant to a policy that applied to all plaintiff.
persons arrested on drug charges. No
drugs were found.
HabeasCorpus/GoodTimelProcedurai
The defendant was not entitled to DueProcess-DisciplinaryProceedings!
qualified immunity for the strip search. Ex Post Facto Laws
At 1425:
Hallmarkv. Johnson, 118 F.3d 1073
It is not clearly unconstitutional
(5th Cir. 1997). A 1993 administrative
to strip search persons arrested
policy abrogated the fonner policy that

Spring/Summer 1998
gave prison officials discretion to restore
good time that had been forfeited as a
result of disciplinary proceedings. The
policy applied to good time already
forfeited. The directive does not violate
the Ex Post Facto Clause. It does not
present a retroactive denial of an
opportunity to reduce a prison sentence,
not does it involve the cancellation of
good time credits already earned. It
presents only a "speculative" possibility
of extending the prisoners' tenns, since
there had been only a speculative
possibility ofgetting the good time back.
No liberty interest in forfeited good
time credits exists because Texas law
previously made restoration ofgood time
discretionary.
One petitioner alleged that he was
denied the names of his alleged coconspirators' names when charged with
conspiracy to create a work stoppage;
however, he did not explain how the lack
of that piece of infonnation prejudiced
his defense. There is no right to crossexamination at disciplinary hearings. The
refusal ofstate courts to consider prison
disciplinary proceedings via habeas
corpus does not state grounds for relief
in federal court.

Prison Litigation Reform Act
In re Stone, 118 F.3d 1032 (5th Cir.
1997). A petition for a writ ofmandamus
addressed to the plaintiffs federal
sentence credit was not subject to the fee
provisions of the Prison Litigation
Refonn Act because in substance it was
not a civil action but an appeal. The
nature ofthe underlying action governs
the nature of the mandamus, and since'
the underlying action was for postconviction relief, it wasn't civil and didn't
invoke the PLRA.

Access to Courts-Punishment an
Retaliation
Oliver v. Fauver, 118 F.3d 175 (3

THE NATIONAL PRISON PROJECT Journal-- page 9
Cir. 1997). The plaintiff alleged that Texas Tort Claims Act because her claim
legal mail had been returned without arose out of the negligence of the
mailing and in one case opened. Lewis employee who left her alone with the
v. Casey overruled this circuit's prior assailant in an unsupervised location, not
holding in Bieregu v. Reno that mail- out ofthe assailant's intentional tort. The
opening denies court access without employee's negligence was a pro:Ypiate
regard to actual injury. This plaintiff cause of the injury, and the assailant's
showed no injmy, since his papers arrived criminal act was foreseeable.
in court and his appeal was adjudicated.
Medical Care
Logan v. Clarke, 119 F.3d 647 (8th
Suicide PreventionlPre-Trial Detainees
Barrie v. Grand County, Utah, 119 Cir. 1997). The plaintiff complained of
F.3d 862 (10th Cir. 1997). A claim on substantial backpain and a painful fungal
behalf of a prisoner who committed skin infection. Defendants were not
suicide before he was taken before a deliberately indifferent to his medical
magistrate is to be adjudicated under the needs. Prison doctors attempted to treat
deliberate indifference standard and not him on numerous occasions, though their
Fourth
Amendment
objective choice ofmedications was limited by his
reasonableness. Contrary authority history of drug abuse. The pain-killers
arising from alleged intentional physical he was offered were not completely
assaults by police is distinguished. ineffective. He was denied a bottom
Claims based on jail suicide "are bunk because he did not meet the prison's
considered and treated as claims based criteria for medical assignment. The
on the failure ofjail officials to provide delay in sending him to a specialist for
medical care for those in their custody." his skin condition was not deliberate
Summary judgment is granted to indifference.
defendants on the merits.
ProceduralDueProcess-Disciplinary
Sexual
AbuselPendent
and ProceedingslHabeas Corpus
Supplemental Claims; State Law in
Stone-Beyv. Barnes, 120 F.3d 718
Federal Courts
(7th Cir. 1997). The plaintiff claimed
Downey v. Denton County, Texas, thathis placementin segregation violated
119 F.3d 381 (5th Cir. 1997). The due process because there was no
plaintiff was sexually assaulted by an evidence to support his guilt. His claim
employee ofthe Sheriffs Department and was not cognizable under § 1983 because
bore a child as a result. The employee his conviction had not been invalidated
was convicted of "official oppression." via state process or called into question
A jury awarded $100,000 against the via federal habeas corpus. The comt says
county and $1 million against the that in its previous decisions, applying
assailant.
Heck v. Humphrey, it treated the
The district court did not err in "judgments" of prison disciplinary
granting the individual defendants committees in the same manner as
supervisoryjudgment on partial findings criminal judgments, and that Edwards
on the ground that there was no evidence v. Balisok "confirmed the correctness of
that the Sheriffknew ofa substantial risk our view."
of harm to the plaintiff or disregarded
This is not quite right. Balisok--a case
such a risk.
involving loss of good time--relied on
The plaintiffcould recover under the Preiser v. Rodriguez, another good time

Spring/Summer 1998
case, which emphasized habeas corpus
after exhaustion ofstate remedies as the
exclusive remedy when immediate or
earlier release is sought. Heck v.
Humphrey, a criminal case, had
emphasized the analogy between a § 1983
claim ofunfounded criminal prosecution
and the tort,of malicious prosecution,
which requires as an element that the
prosecution have been terminated
favorably to the defendant. Balisok and
Heck were both authored by Justice
Scalia, butthe Balisokopinion studiously
avoids reliance on Heclts malicious
prosecution analogy with its emphasis
on the judgment in the criminal case.
In this case, which involves no loss
of good time, the court entirely glosses
over the analytical question ofthe relation
of Heck's and Balisok's holdings:
Does it make any difference in
applying Heck that the sentence
imposed was one ofdisciplinary
segregation alone, as opposed
to segregation coupled with a
loss of good-time credits? ...
In our view, it does not. The
Supreme Court was concerned
in Heck not only with the
particular sentence imposed, but
also with the fact of the
prisoner's conviction itself....
The "conviction" in the prison
disciplinary sense is the fmding
of guilt on the disciplinary
charge, and if success on the
plaintiffs section 1983 claim
necessarily would imply the
invalidity of that finding, then
Heck bars the claim until such
time as its requirements are
satisfied.

Administrative
Segregation/
ProceduralDueProcess-Disciplinary
Proceedings/Cruel and Unusual
Punishment/Sanitation
Beverati v. Smith, 120 F.3d 500

•

THE NATIONAL PRISON PROJECT Journal -- page 10
(4th Cir. 1997). The plaintiffs were
placed in disciplinary segregation for a
month and retained there for five or six
months after these terms ended after
being found in possession of escape
paraphernalia. Their treatment was not
"atypical and significant" and therefore
they were not deprived ofliberty under
Sandin. The regulations state that
conditions are mostly similar to those iJ:1
general population and that "even those
conditions that are more restrictive are
not particularly onerous. Indeed, the
differences in conditions specified in the
prison regulations appear to be fairly
common ones, leading the other courts
ofappeals to conclude that confmement
to administrative segregation does not
implicate a liberty interest." (504) The
plaintiffs alleged that the conditions of
confmement do not match the
regulations:
... [T]heir cells were infested
with vennin; were smeared with
hmnan feces and urine; and were
flooded with water from a leak
in the toilet on the floor
above. . . . In addition, Inmates
maintain that their cells were
unbearably hot and that the food
they received was cold. . . .
[They] did not receive clean
clothil1;g, linen or bedding, as
often as required by the
regulations
governing
administrative segregation; that
they were permitted to leave
their cells three to four times per
week, rather than seven, and that
no outside recreation was
permitted; that· there were no
educational or religious services
available; and that food was
served in considerably smaller
portions.. " Accepting Inmates'
version of the conditions in
administrative segregation, as
we must for purposes ofreview

of the grant of summary
judgment, we conclude that
although the conditions were
more burdensome than those
imposed on the general prison
population, they were nc1t so
atypical that exposure to them
for six months imposed a
significant hardship in relation
to the ordinary incidents of
prison life.
The conditions described do not
constitute a "grossly excessive
punishment"
under the Eighth
Amendment.
Even
assuming
administrative segregation canbe viewed
as a punishment, proportionality analysis
is necessary only with respect to capital
sentences and life without the possibility
of parole. The court says the plaintiffs
did not challenge the conditions as
violating the Eighth Amendment.

Suicide Prevention
Mathis v. Fairman, 120 F.3d 88 (7th
Cir. 1997). The decedent committed
suicide. The defendants had seen him
talking to himself; he had expressed fears
that someone was going to kill him. They
sent him to mental health staff, who
concluded that no treatment was
necessary; he denied suicidal impulses.
He was checked every half hour.
The defendants were not deliberately
indifferent. On these facts they had no
knowledge that the decedent posed a
danger to himself. Odd behavior by itself
is not enough to confer knowledge of a
risk of suicide.

Spring/Summer 1998
commenced. The defendant psychiatrist
was entitled to qualified immunity for
the period before Washington. He was
not entitled to qualified immunity for the
period after Washington. The district
court held that he should have known
about Washington (decided February 27,
1990) by~ the time he examined the
plaintiff on March 20, and the appeals
court holds that this line is reasonable.
A damage award of $9,500 is not an
abuse of discretion for a three-month
period during which the plaintiffwas first
medicated and then experienced
continuing symptoms after the medication
was stopped. The court conclusorily
rejects that argument that nominal
damages are appropriate because the
plaintiff would have received the same
treatment regardless ofthe process lie was
provided.

Religion-Services WithinInstitution!
Color of Law

Montano v. Hedgepeth, 120 F.3d 844
(8th Cir. 1997). The plaintiff is a
practitioner of "Messianic Judaism,"
which means that he is "a Christian who
studies from a Jewish perspective." The
sect is few in number and not officially
recognized and its members receive only
one hour a week in the chapel, like other
unrecognized faiths. The "religious
consultant for Judaism" asked the prison
chaplain to exclude Messianic Jews from
traditional Jewish observances, which
he did, and then members of the
Protestant group asked him to exclude
the plaintiff from Protestant services on
the ground ofhis nonconforming beliefs,
Damages-Assault and Injury/ which he also did, though only after
Psychotropic Medication
convening a meeting of"mature Christian
Dobyv. Hickerson, 120 FJd 111 (8th brothers" to question the plaintiff about
Cir. 1997).
The plaintiff was his beliefs. (The court uses the word
administered antipsychotic medications "excommunication" to describe this
involuntarily without the protections of exclusiort.) Later he was offered the right
Washington v. Harper, which was to return, but declined because his beliefs
decided 22 days after the medication was were unaltered and he feared that

THE NATIONAL PRISON PROJECT Journal -- page 11
indicating that they actually passed
would be excluded again.
The district court held that the through the mails are not sufficient, and
plaintiffs religious expression was not there are no receipts or acknowledgments
burdened by his exclusion from activities showing actual delivery.
ofreligious groups he did not agree with.
The appeals court does not reach this Modification of JudgmentslPerscYnal
issue, holding instead that the chaplain PropertylMonitoring and Reporting!
did not act under color ofstate law. The Appeal
Hookv. State ofArizona, 120 F.3d
court analogizes to Polk County v.
Dodson, which it finds "profoundly 921 (9th Cir. 1997), withdrawing 98 F.3d
instructive" in its holding that a publlc 1177 (9th Cir. 1996). A 1973 consent
defender's job is marked by lack ofstate decree provided that prisoners could
supervision and the exercise of receive three "holiday packages" a year.
independentjudgment, the latter ofwhich The district court abused its discretion
is mandated by the Sixth and Fourteenth in not granting the defendants' motion
Amendments. This analysis does not to modify. The enormous increase in
remove all professionals from the reach prison population (1759 to 19,500) and
of § 1983. Prison doctors, held to act the high proportion (70%) who were
under color oflaw in West v. Atkins, do controlled substance abusers constituted
not face the state as adversaries. sufficient changed circumstances to
However, Polk County governs here. A justify the modification. Mandatory
prison chaplain is not a state actor when sentencing legislation was enacted after
performing "inherently ecclesiastical the consent judgment was signed. The
functions" as opposed to "administrative package provision is now an "excessive
and managerial tasks" (851). At 850 burden" on prison authorities that has
diminished their ability to maintain
(footnote omitted):
security and safety and is therefore
. . . In our nation, [the
"detrimental to the public interest." (The
excommunication] is simply not
fact that only 6 of 97,000 packages in a
the type ofdecision it falls upon
four-year period were found to have
the government to make. Absent
any showing that Vande Krol
controlled substances did not weigh
relied upon religious doctrine as
against modification; rather, it showed
a subterfuge and deceptively
that prison officials needed to detail
personnel to inspect the packages if they
used the excommunication
process tQ impose the will of
were allowed.) The case is remanded for
the district court to determine a suitable
prison administrators, we cannot
modification. (The earlier opinion simply
say that the expulsion of
said the provision should be deleted.)
Montano from the Protestant
The district court erred in modifying
group is fairly attributable to the
state.
the consent decree to require defendants
to permit "hot pots." Though defendants
Federal Officials and Prisons/Service had permitted them for some time, there
of Process
is no evidence that the parties intended
Chester v. Green, 120 F.3d 1091 to include them as a contractual right
(10th Cir. 1997). The case is dismissed within the consent decree, and "no one
without prejudice for failure to obtain suggests the Constitution confers such
service within 120 days. Certified mail a right." (925) There are no factual or
receipts that did not have stamps legal changes to justify modifying the

Spring/Summer 1998
decree.
Appointment of a special master is
generally an interlocutory order and not
appealable, but it may be appealed in the
course of an appeal from an order
adopting or rejecting .a master's
recommendations. It is appealable here
because it is inextricably intertwined with
the appealable modification order. The
appointment was justified here by
exceptional circumstances consisting of
the
Department's
history
of
noncompliance, which the court said it
lacked resources to monitor constantly,
and the complexity of the underlying
litigation. The Prison Litigation Reform
Act is not discussed.

Prison RecordslHabeas Corpus
Butterfield v. Bail, 120 F.3d 102-3
(9th Cir. 1997). The plaintiffcomplained
that the defendants relied on false
information in his prison file to find him
ineligible for parole.
His claim
implicates the validity of the denial of
parole and therefore his continuing
confmement, and therefore is barred by
Heck v. Humphrey. Although he seeks
only damages, a ruling that the denial was
procedurally defective would presumably
result in his parole, and the only measure
of his damages would be the extent of
his unmerited confinement.

Hazardous
Conditions
and
Substances/Attorneys' Fees
Weaver v. Clarke, 120 F.3d 852 (8th
Cir. 1997). The plaintiff brought suit
over exposure to environmental tobacco
smoke; while a motion for a preliminary
injunction was pending, the defendant
imposed a smoking ban in the prisons,
stating that "pending inmate litigation
. . . are [sic] concerns that must be
addressed."
The plaintiffwas a prevailing party;
the district court's finding that the suit
was a "necessary and important factor"

THE NATIONAL PRISON PROJECT Journal-- page 12
in achieving the smoking ban is' upheld.
The district court correctly fOlmd that
the defendants were not deliberately
indifferent, since the defendants took
steps to house the plaintiff in a smokefree cell and enforcing the smoking
restriction.
Work AssignmentslPersonal Property
Vignolo v. Miller, 120 F.3d 1075 (9th
Cir. 1997). The court previously held
that Nevada prisoners have a property
interest protected by due process in the
interest earned on their accounts. The
prison system then revised the "fiscal
agreement" that prisoners are required
to sign to provide "I understand that the
funds on deposit in my savings will not
accrue interest for my sole benefit." The
plaintiffrefused to sign and he was fired
from his prison job. After he filed suit,
the legislature amended state statutes to
eliminate prisoners' rights to the interest
on their accounts.
At 1078: "... [E]ven in a prison
setting, the Constitution places some
limits on a State's authority to offer
discretionary benefits in exchange for
a waiver of constitutional rights."
Therefore the fact that there is no
constitutionalright toprisonemployment
does not bar his claim that he was
deprived ofa benefit for failing to waive
his (the~ constitutional right to interest.

Sexual AbuselDamages-Assault and
Injury, PunitiveIMunicipaiitieslPreTrial Detainees
Mathie v. Fries, 121 F.3d 808 (2d
Cir. 1997). The plaintiff was found to
have been repeatedly sexually abused and
assaulted by a jail official. The district
court's findings are not clearly erroneous.
A compensatory damages award of
$250,000 is not excessive in light ofthe
emotional injuries found by the district
court. The district court's statement that
he realized that part of the plaintiffs

Spring/Summer 1998

emotional distress resulted from unrelated
causes that were not compensable (like
being sentenced to 10 to 30 years in
prison) was sufficient to address the
issues of multiple causation. .1$>
The district court held that it need
not consider the defendant's personal
finances in determining punitive damages
since he would benefit from an indemnity
agreement. At 816: "Although we do
not decide the question ofwhether a factfinder can rely upon the existence of an
indemnity agreement in order to increase
an award of punitive damages, we rule
that a fact-fmder can properly consider
the existence of such an agreement as
obviating the need to determine whether
a defendant's limited financial resources
justifies some reduction in the amount
that would otherwise be awarded." This
defendant did not present any evidence
of his fmancial resources, so there was
nothing before the court to support
reduction of punitive damages.
Nonetheless, $500,000 is excessive; the
court directs its reduction to no more than
$200,000.
The damages should not have been
awarded against the defendant in his
official and individual capacities; an
official capacity award is permissible
only on a showing ofmunicipal liability.

a

Prison Litigation Reform Act
Alexanderv. United States, 121 F.3d
312 (7th Cir. 1997). The Prison
Litigation Reform Act does not apply to
collateral attacks on criminal convictions.
Procedural Due Process-Propertyl
Federal Prisons and OfficialslPrison
Litigation Reform ActJIn Forma
Pauperis
Pena v. U.S., 122 F.3d 3 (5th Cir.
1997). A motion by a prisoner under
Rule 41(e), Fed.RCrim.P., for the return
of seized property is a "civil action"
subject to the filing fee requirements of

the Prison Litigation Reform Act.
Although no criminal charges were ever
filed against this prisoner in connection
with the property, the decision does not
rest on that fact. The appeal is held in
abeyance for the district court to rule on
the plaintiffs IFP application and order
the payment of fees under PLRA.
The district court had dismissed as
moot because the government, after
"considerable delay," filed an answer
stating that the propertY had been
destroyed, without explanation. At 4 n.
3: Three other circuits have held that
destruction ofthe property does not moot
the action because a damage claim
remains.
PrisonLitigationReform ActIIn Forma
Pauperis
James v. Madison Street Jail, 122
F.3d 27 (9th Cir. 1997). The plaintiffs
pro se action was dismissed for failure
timely to provide a trust account
statement pursuant to the Prison
Litigation Reform Act. The prisoner
submitted a sworn statement that he had
mailed it within the 30-day period but
it arrived late. The rule of Houston v.
Lack applies to the filing oftrust account
statements, so the district court must
either accept the allegation or make a
factual finding to the contrary on a
sufficient evidentiary showing by the
adverse party.

Prison Litigation Reform Act
Duvall v. Miller, 122 F.3d 489 (7th
Cir. 1997). The plaintiffalleged that his
prison
file
contains
erroneous
information, which "patently fails to state
a claim," and his suit was dismissed. The
dismissal was a "strike" under the PLRA;
this appeal is also a strike even though
it is not taken informa pauperis, since
the statutory provision is not limited to
IFP cases.

i

I

THE NATIONAL PRISON PROJECT Journal-- page 13
The termination provision does not
deny equal protection. It does not burden
the right of access to courts. At 1090:
"The right to enforce a consent decree
that goes beyond the bounds of
constitutional necessity is not equivalent
to the right to bring constitutional
grievances to the attention ofthe colJl:s."
Therefore rational basis scrutiny applies.
The provision is rationally related to
promoting "principles of federalism,
security, and fiscal constraint in the
unique context of detentional and
correctional institutions." (1090)
The termination provision does not
deprive the plaintiffs of vested rights
because application of the doctrine
depends on the existence of a final
judgment; a judgment not final for
separation ofpowers purposes is also not
fmal for due process purposes. Besides,
"Congressmay prevent a victorious party
Judicial
DisengagementlPrison from enforcing in equity a valid
judgment. See Fleming v. Rhodes. ..."
Litigation Reform Act
Plaintiffs
are
not
Gavin v. Branstad, 122 F.3d 1081 (1091)
(8th Cir. 1997).
The judgment unconstitutionally deprived of their
termination provision of the Prison contract rights; Congress may impair
Litigation Reform Act is not such rights if it has a rational basis.
unconstitutional. It does not violate the
rule against legislative abrogation offinal Prison Litigation Reform ActlMedicai
judgments; Congress may alter the CarelTriallAppeal
Norton v. Dimazana, 122 F.3d 286
remedial powers ofthe judiciary, as well
as the substantive law, and thereby affect (5th Cir. 1997). The plaintiff has a
Prison
pre-existing injunctive judgments. chronic prolapsed rectum.
Although the judicial power embodied officialswere notdeliberatelyindifferent,
in Rule 6O(b) does not confer a legislative since he got a lot of care. At 292:
power, the fact that a consent decree may "Disagreement with medical treatment
be reopened means that it is not the "last does not state a claim for Eighth
word" of the judiciary and therefore is Amendment indifference to medical
not final for separation of powers needs."
purposes. The distinction between public
The Prison Litigation Reform Act's
rights and private rights is irrelevant; the filing fees do not deny access to the
source of the underlying rights has courts. Thatright extends no further than
nothing to do with the separation of "the ability of an inmate to prepare and
powers issues.
transmit a necessary legal document to
The termination provision does not the court." (290) Proceeding without
unconstitutionally prescribe a rule of payment offees is a procedural privilege
decision because it leaves the judicial that Congress may extend or withdraw,
functions of interpreting the law and and in any case no one is prevented from
applying the law to the courts.
going to court because oflack ofmoney.

Hazardous
Conditions
and
Substances/Qualified Immunity
Rochon v. City ofAngola, La., 122
F.3d 319 (5th Cir. 1997). The plaintiff
alleged that he has been subjected to
environmental tobacco smoke since 1981.
The defendants are not entitled to
dismissal on qualified immunity grounds
because ofthe Supreme Court's holding
in Helling v. McKinney. Qualified
immunity requires a bifurcated analysis:
(a) whether the plaintiff alleges a
constitutional violation, based on current
law, and (b) whether the defendants'
conduct was "objectively reasonable;"
based on the law at the time of
defendants' actions. It appears that the
court is saying that the plaintiff meets
requirement (a) and is remanding for
further proceedings that would address
.
requirement (b).

Spring/Summer 1998
The provisions "level the playing field"
betweenprisoners and other IFP litigants,
since they make prisoners consider the
cost of filing.
The districtcotntheldwhatamounted
to a Spears hearing. The admission of
an affidavit by a doctor whom the
plaintiff was not able to cross-examine
was harmless error because the cotnt did
not rely on it. The plaintiff was ..ntit
entitled to a copy ofthe transcript ofthis
hearing, since he has not shown why it
is necessary and his appeal has'::beeQ.
determined to be frivolous. !.!..IU'v··'.r.?'.,

Damages--Assault E:n(andf Injulj¥
Protection froms<1nmateifiAssaultY
Deference
ovr%
Newman v;.''Halmesj"id,22d;':3dif)S;(!)
(8th Cir. 1991). ~Thefwo;;plaiti'tiffsNvere
awarded $5OO;eachpy~jurYi~1fler5anQther
inmate, whQs was; !Sup}ioS~.d)lt'03,:he~~D
disciplinarydoc.kup,jass~ult~d(a1idJout

them. The. iappeals 'eQurt:affmns(~?The
lack ofevidence that thelassailantpOsed
a known risk to the victims does not bar
the claim. At652 (empl1asisdn originalJ):
". . . [W]henqiprisont 5adtn1tlistrat<:its
conclude that,al1dtupates?chat;ged"with
rule violatioi1s<shdUld (1)eQisolated::a:~
dangerous, it wouldsencr()~lj:hhpon'the
administrators' greaterdlcnowle'dgeio[
prison conditions foru:s;l~o~;holdiQls'xa
matter oflaw that releaseofsuch\ifnnllteS
to the general prison populatiorltdoesl1ot
create a substantial risk that theYi~ll
attack others."
The defendant officer's conduct in
leaving the assailant's door unlocked
presents a close question of deliberate
indifference vs. negligence, "particularly
since it is well-settled that Holmes's
violation ofan internal prison regulation
does not by itself give rise to an Eighth
Amendment claim." (653) The court
defers to the jury's view ofthe evidence,
which could be viewed as reflecting a
lack of candor by the defense.

THE NATIONAL PRISON PROJECT Journal-- page 14
PrisonLitigationReformActJIn Forma
Pauperis
In re Washington, 122 F.3d 1345
(10th Cir. 1997). A petition for a writ
of mandamus is a civil action, and a
prisoner subject to the PLRA's "three
strikes" provision must pay the filing fee
in advance in such a proceeding.

Federal Officials and Prisons!
Deference
Roussos v. Menifee, 122 F.3d 159
(3d Cir. 1997). The plaintiffcompleted
a 500-hour drug treatment program in
order to be eligible for early release. The
Bureau of Prisons ruled him ineligible
because his sentence had been enhanced
two levels because ofthe finding ofa gun
in his vacation home, leading the BOP
to classify his offense as a "crime of
violence." That definition is contrary to
the statutory definition and is invalid.
The BOP program statement is entitled
to "some deference" but not ifit conflicts
with the statute.

Access to Courts-Assistance of
CounsellHabeas Corpus
Lamp v. State ofIowa, 122 F.3d 1100
(8th Cir. 1997). The petitioner sought
to avoid application of habeas corpus
procedural default rules because he had
not had adequate access to courts. In fact,
he had had an attorney. The fact that he
could only commwricate with his attorney
by mail and his attorney failed to raise
claims that the petitioner directed did not
make his"access inadequate.

Searches-Visitors/QualifiedImmunity
Varrone v. Bilotti, 123 F.3d 75 (2d
Cir.1997). The plaintiff, the son ofa
prisoner, was required to submit to a strip
search in connectimi with a visit to his
father based on information that he would
be bringing in drugs.
A search of prison visitors without
reasonable suspicion violates clearly
established law. Although neither this
circuit nor the Supreme Court had

Spring/Summer 1998

explicitly applied this standard, it was PrisonLitigationReform ActJIn Forma
"clearly foreshadowed" in light of Pauperis
authority in other circuits and authority
Newlin v. Helman, 123 F.3d429 (7th
not precisely on point in this circuit.
Cir.1997). Ifa district court finds that
Reasonable suspicion is stronger than an appeal is not taken in good faith, the
a hunch but weaker than probable cause. plaintiff cannot proceed in forma
The standard was met by information pauperis. This remains true under the
given to prison officials by an assistant Prison Litigation Reform Act, contra the
district attorney who was deputy chief Sixth Circuit's conclusion in McGore v.
ofthe narcotics bureau that was "precise, Wigglesworth. However, appellate
specific
and
detailed,"
and review ofthe conclusion that the appeal
circumstantially corroborated, as to the is not taken in good faith may be had
likelihood that the plaintiff would be without prior assessment and collection
bringing in drugs.
There is no of the PLRA fee. But if the prisoner
requirement that the person authorizing simultaneously files a notice of appeal,
the search independently investigate the indicating a desire to go forward
reliability of the informant.
regardless of IFP eligibility, the filing
The
ministerial/discretionary fee is irrevocably due--immediately if
distinction has been questioned in the appeals court affirms the finding of
connection with qualified immunity but lack of good faith, in installments if it
continues to be articulated. The court reverses. Appellate filing fees are to be
does not reach the question here, but assessed and collected by the qistrict
holds that subordinates performing court.
ministerial functions at the order, no~
Prisoners who lack assets but not
facially invalid, ofa superior officer with "means"-i.e., who have an income--must
immunity, is also immune.
be assessed an initial partial filing fee,
and must pay it before the comt considers
Qualified Immunity
the merits ofhis complaint. (I.e., it must
Naylor v. State of La. Dept. of be collected under the statute; neither the
Corrections, 123 F.3d 855 (5th Cir. prisoner nor the prison has any control
1997). A prison "drill instructor" after the complaint or notice of appeal
allegedly locked the two plaintiffs and is filed.)
18 other inmates in a supply closet for
The fees for separate proceedings are
three hours, placing a towel under the to be assessed cumulatively (i.e.,
door to cut off ventilation. The two concurrently and not consecutively).
plaintiffs felt dizzy and nauseated and
One plaintiff's appeal is in bad faith,
their requests to go to sick call were since he seeks $20 million in damages
denied; one plaintiff defecated on from defendants who have absolute or
himself. The magistrate judge denied qualified immwrity, and since he suggests
defendant's motion for summary no reason why the district court was
judgment based on qualified immunity wrong to dismiss for having missed the
because there were issues ofmaterial fact statute of limitations.
and the record was not sufficiently
Under the three strikes provision, a
developed to decide whether the dismissal for failure to state a claim is
defendant's conduct was objectively one strike, and an unsuccessful appeal
reasonable. The case "fits squarely is a second one. At 433: "Obstinate or
within that class of unappealable, fact- malicious litigants who refuse to take
based qualified immunity orders" that no for an answer incur two strikes." The
are not appealable immediately.
court cites the deterrence of frivolous
litigation, ignoring the fact that the statute

:I

U

THE NATIONAL PRISON PROJECT Journal -- page 15
also extends to non-frivolous failures to
state a claim.
The district court found that another
plaintiffwas barred from proceeding IFP
by the three strikes provision. This
plaintiff cannot appeal IFP. However,
he can appeal the determination that the
three strikes provision applies without
partial prepayment of fees. If the court
affirms, the plaintiffthen owes two fees
(for filing the complaint and the appeal),
and both must be paid before the appeal
can go fOIWard. In addition, until the fees
have been paid, no other civil litigation
can be filed.
Complaints under 28 U.S.C. § 2241,
the post-conviction remedy statute for
federal prisoners, are civil actions under
the PLRA insofar as they do not affect
the validity of the criminal sentence.

Dental Care/In Forma Pauperis!
Service of Process
Moorev. Jackson, 123 FJd 1082 (8th
Cir. 1997). The district court directed
the U.S. Marshals to serve the defendants,
but only after the plaintiff completed
waiver of service forms, and then
dismissed many defendants for failure
to serve process. This was error. 28
U.S.C. § 1915(d) says that the "officers
of the court shall issue and serve all
process and perform all duties" in IFP
cases, so it is the Marshals' job to fill out
the forms as long as the plaintifffinnishes
the information necessary to identify the
defendants, which he did in his
complaint. The Marshals' failure to do
theirjob is automatically good cause for
failure timely to serve process.
The plaintiffcomplained that it took
from April to December to get adequate
treatment for a toothache, and he lost the
tooth. (He only got care after he filed
this lawsuit.) He repeatedly asked for
medical service during this period. The
district court erred in dismissing the
dentist defendant for lack ofevidence he
knew of the plaintiffs problem; his
knowledge could be inferred from the

plaintifl'srepeatedcomplaintsandentries
in his medical records. The district court
also erred in dismissing Correctional
Medical Services, the contract provider,
for failure to demonstrate a policy or
custom ofdestroying or ignoring requests
for care. However, there was a factual
issue whether there was such a poly::y.
The court notes (1088 n. 5) that
defendants chastise the plaintiff for
repeatedly complaining about the same
thing from April through August, then
say that his complaining only once during
the next three months indicated that his
condition was not an emergency.

Religion-ServicesWithinInstitutionl
Prison Litigation Reform Act
Anderson v. Angelone, 123 FJd 1197
(9th Cir. 1997). Prison regulations
prohibiting prisoners from acting as
ministers of prison churches, and
requiring leadership from outside clergy,
do not violate the First Amendment. The
defendants have concerns for giving
inmates incentives to "inflame or exert
influence" over others or to "advocate
radical or inflammatory positions" to
drum up support, and for inmates' using
religious activity as a cover for gang or
other unlawful activity. The plaintiffhas
other ways to exercise his religious rights,
such as helping out the prison chaplain.
The appeals court dismisses the
appeal under the Prison Litigation
Reform Act, rather than affirming the
district court's judgment, because it
concludes that it does not state a claim.

Mental Health CarelDisablediState
Officials and Agencies
Clarkv. State o/California, 123 FJd
1267 (9th Cir. 1997). Plaintiffs, a class
of prisoners with developmental
disabilities, brought suit under the
Americans with Disabilities Act, the
Rehabilitation Act, and § 1983.
Congress effectively abrogated the
states' Eleventh Amendment protection
in the Americans with Disabilities Act

Spring/Summer 1998
and the Rehabilitation Act under Section
5 of the Fourteenth Amendment,
notwithstanding the holding in Seminole
Tribe v. Florida. The Fourteenth
Amendment gives Congress "the same
broad powers as does the Necessary and
Proper Clause. . .. [These powers]
extend beyond conduct which is
unconstitutional, and Congress may
create broad~r equal protection rights
than the Constitution itself mandates."
(1270) Congress has previously held that
the disabled are protected by the Equal
Protection Clause, so these statutes are
within the scope ofappropriate legislation
under the Fourteenth Amendment, and
neither provides remedies so sweeping
that they exceed the harms that they are
designed to redress. The court refuses
to restrict the scope ofCongress's power
under Section 5 to the protection ofthose
classes afforded a higher level ofscrutit}y
by the courts.
Under the Rehabilitation Act,
California waived its Eleventh
Amendment immunity When it accepted
federal funds.

Access to Courts
Greenev. Brigano, 123 FJd917 (6th
Cir. 1997). The petitioner elected to
appeal pro se. The state refused to
provide him a copy ofhis trial transcript,
even though ifhe had accepted the offer
of free appellate counsel his counsel
would have been entitled to review the
transcript filed in court without charge.
The state's argument that this satisfied
the right of court access required the
petitioner to relinquish the constitutional
right to proceed pro se in order to
exercise the Fourteenth Amendment right
to the basic tools of adequate appellate
review. The court distinguishes its
precedents holding that refusing an offer
of counsel waives any right to access to
a law library.

Food
Phelps v. Kapnolas, 123 FJd 91 (2d

THE NATIONAL PRISON PROJECT Journal -- page 16

Spring/Summer 1998

an injunction remedying violations ofthe merely limited the federal courts'
to
enforce
Americans with Disabilities Act and the jurisdiction
them
Rehabilitation Act.
prospectively. The provision does not
A judgmentrequiring the submission preventthe enforcement ofconstitutional
of detailed remedial plans is generally rights because constitutionally required
not an appealable injunction. This one reliefcan still be enforced. The provision
is appealable because it substantially does not prescribe a rule of decision
prescribes the contents of the pttm and because it changes the underlying law,
because entry of a more specific order i.e., the powers of the federal courts.
will not alter the court's "appellate
Und~ the court's construction, the
perspective" on the questions presented termination provision does not deny equal
for review.
protection.
Strict scrutiny is not
The Rehabilitation Act and the applicable because the "initial right of
Telephones/Consent Judgments
Gilday v. DuBois, 124 F.3d 277 (1 st Americans with Disabilities Act apply access to the courts" is not burdened. The
Cir. 1997). The plaintiff obtained a to state prisons. They do not contravene statute meets the rational basis test
consent judgment in 1984 prohibiting the Eleventh Amendment; the Ex parte because the purpose of avoiding the
interception ofhis telephone calls except Young fiction applies to injunctive relief entanglement offederal courts in prison
as specifically authorized by statute and against state officials under these statutes. litigation is legitimate, and the provision
court order. In 1994, after having The applicability of Young is not affected is rationally related to it. Romer does not
contracted with a private firm for prison by the complexity of the remedy or by govern because the plaintiffs in that case
telephone services, the Department of the statutory nature of the claims.
were barred from relief from all three
Corrections promulgated new regulations
branches of government.
.
which provide for recording and Prison Litigation Reform Act/Judicial
The termination provision does not
authorize real-time surveillance of all Disengagement
deny due process by impairing contract
calls except authorized legal calls. The
Benjamin v. Jacobson, 124 F.3d 162 rights; the rationalbasis test is applicable.
plaintiffrefused to accept a PIN number (2d Cir. 1997). The Prison Litigation It does not terminate vested rights
under these conditions and moved fQr Reform Act's termination provision is because there is no vested right in the
contempt.
constitutional, but only ifit is construed prospective enforcement of the
An earlier decision in Langton v. to end the prospective enforcement of judgments.
Hogan refusing to modify a similar consent decrees in federal court. "The
The district court erred in vacating
injunction to permit monitoring and underlying contract, in its time made into the consent decrees. Plaintiffs have the
recording in the absence of evidence of a judgment, is left untouched" and may option to seek to show entitlement to
telephone abuse by the plaintiffs in that be enforced in state court. The statute's continuing federal court relief under §
case did not preclude the defendants; the reference to termination of prospective 3626(b)(3), or to seek enforcement in
court did not rule on the legality under reliefis ambiguous and can be read either state court. The panel continues the stay
the injunction of monitoring and to bar the future enforcement ofconsent that had kept the Consent Decrees in
recording,. Another decision concerning decrees, except insofar as they are effect pending decision, until such time
the Langton injunction does not preclude tailored to a federal right, or to render as the Supreme Court acts on any possible
the defendants because the injunctions them null and void unless they met the petition for certiorari.
are not identical.
narrow tailoring requirement. The court
The court construes the injunction adopts the first interpretation, both on WomenNisiting·
to preclude only unlawful monitoring of its merits and to avoid the serious
Bazzetta v. McGinnis, 124 F.3d 774
calls and validates the defendants' constitutional questions that the second, (6th Cir. 1997). The prison system
telephone system under the injunction judgffient-annulling interpretation would institutedvisitingrestrictions forbidding
and the relevant statutes.
raise.
visitors under 18 who are not children,
Under the court's construction, the step-children or grandchildren; forbidding
Disabled!Appeal/State Officials and termination provision does not violate visiting with natural children if the
Agencies
the Plaut rule concerning the legislative prisoner's parental rights have
Armstrongv. Wilson, 124F.3d 1019 vacation of judgments because the terminated for any reason; limiting
(9th Cir. 1997). The district court entered judgments are untouched. Congress has visiting list to only 10 people who

Cir. 1997). The plaintiff alleged inter
alia that being placed on a seven-day diet
ofbread violated the Eighth Amendment.
The district court dismissed the claims
against most defendants as frivolous
without making specific reference to this
claim. The court cannot say that there
are no facts under which the allegation
might constitute an Eighth Amendment
violation. The case is remanded for
further proceedings.

THE NATIONAL PRISON PROJECT Journal-- page 17
not "immediate family"; requiring minor
children to visit only with an adult legal
guardian with proof of legal
guardianship; limiting "members of the
public" to only one prisoner's visiting
list); 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." These restrictions
apply only to contact visits.
These restrictions are all reasonably
related to legitimate interests and are
upheld.

Access to CourtslPrison Litigation
Reform ActlIn Forma Pauperis
Church v. Attorney General ofCom.
ofVa. , 125 FJd 210 (4th Cir. 1997). The
Prison LitigationReform Act's filing fees
provisions do not apply to cases pending
when the statute was passed. At 212:
"Under the standard of Landgraf, if we
require Church to now pay a filing fee
that he was not required to pay when he
filed his appeal, we 'impair [a] right [he]
possessed when he acted.'. .. Although
the increased up-front cost imposed by
§ 804(b) may deter prisoners from
pursuing claims that they may otherwise
have pursued--one of the arguments for
enacting the PLRA--their right of access
to the courts has nevertheless been
diminished...." This change in law is
not merely procedural.
Underpre-PLRA law, the court erred
in dismissing the plaintiff's action as
frivolous after he had paid a partial filing
fee.

TransferslProcedural Due ProcessTransfers
Israelv. Marshall, 125 FJd 837 (9th
Cir. 1997). A California statute provides
that when a prisoner has been convicted
oftwo or more crimes, the last sentence
shall be served concurrently with the
others unless the sentencing court
determines they should nm consecutively.

State courts have held that this entitles
a California prisoner to be transferred to
the custody ofa state in which he or she
owes time on a prior sentence ifthat state
will not credit the California time.
California officials wrote to Missouri
officials on behalf of the petitioner, but
they refused to accept the petitiOfler,
rendering his California and Missouri
sentences effectively consecutive.
The plaintiff's state law right to be
permitted to return to Missouri--which
the court assumes without deciding is a
liberty interest under Sandin--does not
imply a right to require Missouri to
accept him. The California Department
of Correction's letter stating that the
petitioner was available for transfer
constituted all the process that was due
(even though it was not on the proper
form); California was not required to
offer to deliver him to Missouri all
expenses paid. In any case, Missouri's
refusal to accept him was unconditional.

Spring/Summer 1998
Sandin analysis applies. Under it, 15

days in segregation is not atypical and
significant.
The court suggests that the plaintiff's
claim is not so much a procedural due
process claim as one for malicious
prosecution, which may implicate
substantive due process concerns. For
prisoners, one approach to this problem
is that procequral due process is all they
are entitled t~. There might also be an
Eighth Amendment violation in the
deliberate abuse of power for purposes
of calculated harassment. At 1137
"Broadly
(emphasis in original):
speaking, the Constitution does not create
a cause of action for arbitrary and
purposeless acts by officials per se, ...;
it prohibits the abuse ofpower that effects
a Significant deprivation." The court
equates this term with "shocking the
conscience," a standard that 15 days'
segregation does not meet. The court
then suggests that "punishment" is an
inappropriate rubric for arbitrary and
ProceduralDueProcess-Disciplinary vindictive acts, and returns to the Due
Proceedings/Cruel and Unusual Process Clause. At 1137 (footnote
Punishment
omitted): "Perhaps a useful approach is
Leslie v. Doyle, 125 F.3d 1132 (7th to say that a frame-up or malicious
Cir.1997). The plaintiff was placed in prosecution is in and ofitselfan inchoate
disciplinary segregation for 15 days for breach ofsubstantive due process, which
what he alleged were baseless charges; matures into a viable claim if the
an administrative review board agreed. consequences are sufficiently severe."
At 1135: "We agree with Leslie that (I.e., ifthey affect a liberty interest.) ld.:
the Eighth Amendment embodies a "We do not try today to sort out this bog
principle ofproportionality. . .. We also oflegal theories" since the plaintiff got
agree with Leslie that a punishment procedural due process and his
imposed for no offense at all is, as a deprivation did not impinge on a liberty
matter ofmathematics, disproportionate. interest under Sandin.
But the Eighth Amendment does not
mandate a precise formula applying to Religion-ServicesWithinInstitutionsl
all punishment." Punishments must be Use of Force--RestraintslEqual
objectively sufficiently serious to Protection
implicate the Eighth Amendment.
Freeman v. Arpaio, 125 FJd 732 (9th
Placement in segregation for false Cir. 1997). The plaintiff alleged that
charges does not constitute an illegal prison officials refused sometimes to let
seizure. The Fourth Amendment applies Muslimprisoners attend weekly services,
only where there is a deprivation of that only Muslim inmates were
"some meaningful measure ofliberty to handcuffed or shackled on their way to
which [a person is] entitled," and the services and required to sign attendance

THE NATIONAL PRISON PROJECT Journal -- page 18
sheets, that Muslims were not given
notice ofservices as were other inmates
and that they were subjected to abusive
epithets by prison officials.
The claim of refusal to permit
attendance at services raised a material
issue of fact under the Turner standard.
Defendants' claim that services were
actually canceled because the Imam didn't
show up, which arguably would satisfy
Turner, merely raised a factual dispute;
plaintiffs claimed that defendants simply
did not open Muslims' cell doors. The
other complaints do not raise
constitutional issues under Turner,
separately or in the aggregate; to do so,
interference withreligious practice must
be "more than an inconvenience; the
burden must be substantial and an
interference with a tenet or beliefthat is
central to religious doctrine." (737,
quoting Graham v. GIR., 822 F.2d 844,
851 (9thCir.1987)). ThisNinthCircuit
standard is more rigorous than that
followed in most other courts.
The claims ofdenial ofservices and
ofshackling on the way to services raise
equal protection claims. Defendants'
explanation of their shackling practice
is incoherent and does not address the
claimed inequality, leaving a factual issue
in dispute. Note that this practice is
upheld under Turner but not equal
protection; the court says that equal
protection. rights are limited by
"legitimate penological interests" but
does not cite the Turner test.

MedicalCare-StandardsofLiabilityDeliberateIndifferencelAppointment
of Counsel
Parham v. Johnson, 126 F.3d 454
(3d Cir. 1997). The plaintiffcomplained
ofa ringing ear. Tinnitus was diagnosed
after a "simple exam," though it is
generally not diagnosed without .a
comprehensive diagnosis (sic) (citing a
medical journal article). The doctor
prescribed Cortisporin, even though the
PDR says nothing about using it for

Tinnitus. The doctor continued it for 114
days although the PDR says it should be
used for no more than 10 and the plaintiff
experienced symptoms that should have
resulted in its discontinuation. During
this time the plaintiffwas found to have
a laceration ofthe eardrum; he rerested
repeatedly to be allowed to see an ear
specialist, but the doctor refused. The
plaintiffnow has severe hearing loss.
The magistrate judge directed the
appointment of counsel, but two years
later the clerk had Ilot acted, and the
district court denied a renewed motion,
reasoning that since no expert testimony
was involved the plaintiff could
competently present his case. The district
court then directed a verdict for the
defendant, in part because ofthe lack of
expert testimony.
There is no constitutional or statutory
right to appointment of counsel.
However, this court has rejected the
"exceptional circumstances" test for
discretionary appointment of counsel.
Tabron v. Grace, 6 F.3d 147,155-57 (3d
Cir. 1993). The plaintiff's case was
arguably meritorious. He did not have
the ability to present an effective case,
as shown by the failure to present a prima
facie' case at trial. His inability to
introduce the Cortisporin bottle into
evidence exemplified the need for
counsel. Complex discovery rules and
medical issues requiring expert testimony
support the need for counsel.
At458-57n.7: Medicalrnalpractice
is not deliberate indifference. However,
the facts alleged could support a finding
ofdeliberate indifference. The rule that
courts do not second-guess treatment
decisions assumes that an informed
judgment has been made. When a
prisoner is denied access to a physician
capable of evaluating the need for
treatment, deliberate indifference is
shown. Inappropriate treatment for no
valid reason states a claim for deliberate
indifference.
The appellate court's resort to

Spring/Summer 1998
medical treatises and journals not in the
record is extremely unusual.
MootnessIRellgioolPre-TriaIDetaineesl

Oass Actions-Certification of Oasses
Muhammadv. City ofNew YorkDept.
of Correction, 126 F.3d 119 (2d Cir.
1997). The plaintiff, who alleged
inadequate accommodation for the Nation
of Islam ·ih the City jails, had been
released by the time this case was filed.
His claim is moot. The fact that the
defendants agreed not to seek dismissal
on the grounds of standing, ripeness, or
mootness is beside the point, since these
matters are jurisdictional.
Such
agreements "disserve the court." The
"capable of repetition, yet evading
review" exception is usually invoked to
preserve a class action after the named
representatives' claims have become
moot. Here, no class was certified, nor
could it· be after the mootness of the
named plaintiff's claim. While the
exception may also be invoked where the
challenged action is too briefin duration
to be litigated before it ends, and there
is a reasonable expectation the
complaining party will be subjected to
it again, this plaintiff did not attempt to
litigate until he was out ofjail. Nor can
he state any basis for an expectation that
he will be in jail again.

ProceduralDueProcess-Disciplinary
Proceedings
Walker v. McClellan, 126 F.3d 127
(2d Cir. 1997). A prisoner did not in
1990 have a clearly established right to
have witnesses interviewed when the
prisoner was unwilling to state the
relevance of their proposed testimony
and did not offer a defense to the charges
at the hearing.
Under those
circumstances testimony may be deemed
irrelevant or unnecessary.

Federal

Officials

and

Prisonsl

Deference
Venegas v. Henman, 126 F.3d 760

THl:: NATIONAL PRISON PROJECT Journal -- page 19
(5th Cir. 1997). Federal statute provides
for sentence reductions for nonviolent
offenders who complete a substance
abuse program. The Bureau of Prisons
did not exceed its authority in excluding
from the program's benefits those
prisoners who had been convicted of
weapons possession by a felon or ofdrug
offenses enhanced because of weapons
possession. The Bureau of Prisons'
internal agency guidelines are entitled
to the same deference from the judiciary
as are regulations promulgated under the
Administrative Procedure Act as long
as they are based on a permissible
construction of the authorizing statute.

cohorts in the Aryan Brotherhood. He
wanted to go somewhere nearer his home
in Washington to serve his ten-year
sentence, but efforts to transfer him to
a state prison failed.
Defendants
proposed to transfer him to Marion,
where he would have to go back into
segregation.
q.
It is not necessary to serve the United
States in a Bivens action against
individual federal defendants.
Defendants disclaimed any present
intention to transfer the plaintiff to
Marion;
the
claim
is moot,
notwithstanding the usual rule about
voluntary cessation in the face of
litigation, since the plaintiff conceded
ProceduralDueProcess.....Disciplinary that the transfer had become unlikely.
The plaintiff has not alleged a
ProceedingslBabeas Corpus
Luszv. &ott, 126F.3d 1018 (7th Cir. constitutional violation; placing him in
1997). The plaintiff lost good time in segregation for his safety is within
a disciplinary proceeding and sued in defendants' discretion and courts must
federal court for due process violations. defer to their decisions. Since he would
His claim is barred under Heck, which be relatively safe in the Marion
"applies to judgments handed down in segregation unit, and since the defendants
prison disciplinary proceedings." (1021) had taken some action to protect his
Even though he was convicted of more safety, were not deliberately indifferent.
than one charge, invalidating one ofthe A single stray callous remark by a prison
charges would "likely" imply the official does not establish deliberate
invalidity ofthe loss ofsome ofhis good- indifference.
The plaintiff is not entitled to an
time credits. The court acknowledges
that a disciplinary case could involve injunction prohibiting his incarceration
claims not barred under § 1983 by Heck in a pre-trial detention facility, even
that could be extricated from claims that though it lacks the programs that a
are barred, but the argument is waived penitentiary would have. There is no
constitutional or statutory right to
in this case.
rehabilitation programs.
There is no constitutional right to
District Court Cases
physical access to a law library; delivery
Federal Officials and Prisons/ of the materials is sufficient.

I

Unsentenced Convicts and Convicts
Held in Jails/Service of Process/
MoomesslInjunctiveReliefffransfersl
Protection from Inmate Assault/Law
and
Law
Books/
Libraries
Rehabilitation
Dodson v. Reno, 958 F.Supp. 49
(D.P.R. 1997). The plaintiff was
transferred to a federal jail in Puerto Rico
so he wouldn't be killed by his former

Pr~TrialDetaineeslSearches-PersonPrisonerslPr~Trial

Detainees
Richerson v. Lexington Fayette
Urban County Government, 958 F.Supp.

299 (E.D.Ky. 1996). A blanket policy
requiring strip searches of all detainees
upon return from court to the jail's
general population, even those held on
minor misdemeanor charges or traffic

Spring/Summer 1998
offenses, is unconstitutional.

Habeas CorpuslFederal Officials and
Prisons/Standing
Martinezv. Ensor, 958 F.supp. 515
(D.Colo. 1997). The Heck/Preiser
exhaustion rule applies in suits against
federal defendants.
Private citizens lack authority to
initiate a federal criminal prosecution and
therefore lack standing to seek such
relief.

Religion--Practices-Beards, Hair,
DresslEqual ProtectionlLawLibraries
and Law BookslRecreation and
and
Unusual
Exercise/Cruel
PunishmentlPrograms and Activities
Daviev. Wingard,958F.Supp.1244
(S.D.Ohio 1997). The plaintiff alleged
that he is a Nazarite, who has taken the
Nazarite vow not to cut his hair (Numbers
6:5). He was disciplined for refusing to
get his hair cut and then forced to cut his
hair. He was also placed in the "PRIDE"
unit ("Progressive Readjustment Inmate
Development
Environment"),
a
behavioral modification training program.
The haircut policy serves the
compelling interests of contraband
control, suppressing gang identifiers, and
promoting identification ofescapees, and
is the least restrictive means ofdoing so.
Allowing religious exceptions would
promote manipulative behavior and cause
resentment by other inmates. Therefore
the policy does not violate the Religious
Freedom Restoration Act or the First
Amendment.
Barring long hair for male prisoners
but allowing it for females does not deny
equal protection. The court applies
intermediate scrutiny to this gender-based
distinction. The haircut rule passes
muster because male inmates pose
different issues of safety, security, and
discipline than do females; they are less
likely to be violent offenders, to be
classified as high security, to commit
prison violence, to escape or to use drugs.

THE NATIONAL PRISON PROJECT Journal-- page 20
The plaintiffs claim ofdenial of law
library access is dismissed in the absence
of a showing that the defendants were
responsible for it. However, he met the
injury requirement by alleging that he
was unaware of certain court rules
because the prison provided him with
books with pages missing.
A claim oflimited recreation, based
on a rule that barred gymnasium
privileges, did not provide sufficient
information to determine whether there
had been a constitutional violation.
Placement in the PRIDE unit, which
defendants claim not to be punitive but
designed to assist in adjustment and
improved attitudes, is not a punishment
within the meaning of the Eighth
Amendment. (Wrong, though the result
may be right in this case.)

Prison Litigation Reform Act/Judicial
DisengagementlEqual Protection!
Crowding
Jensen v. County of Lake, 958
F.Supp. 397 (N.D.Ind. 1997). A jail
conditions suit was filed in 1974 and
settled in 1980 and again (after a
contempt motion) in 1982.
The
defendants moved to terminate under
PLRA.
The PLRA's termination provision
does not violate the separation ofpowers.
Congress has power to modify the
remedial powers of the federal courts,
as well as' the substantive law, and
thereby affect previously entered
injunctions. Such changes constitute
circumstances justifying modification
under Rule 60(b). The result may
decrease the utility of consent decrees,
but that is a policy matter for Congress.
The PLRA's termination provision
does not deny equal protection. The
rational basis test governs and is satisfied
by the interest in preserving state
sovereignty from overzealous federal
cowt supervision in prison litigation. For
the same reason, the statute does not
unconstitutionally impair contractual

obligations, assuming a consentjudgment
is a contract. The fact that the contract
was designed to protect constitutional
rights does not matter.
The motion to terminate is taken
under advisement because the plaintiffs
alleged that dangerous overcrowding
persists and has unconstitutional
consequences such as violence. The
plaintiffs will be given an opportunity
to show ongoing constitutional violations.
The court does not explain how the
automatic stay fits into the picture.

Access to Courts-Law Libraries and
Law Books/Color of Law
Kain v. Bradley, 959 F.Supp. 463
(M.D.Tenn. 1997). The plaintiff was
transferred to a Corrections Corporation
of America facility that did not provide
a full law library; instead, a local attorney
was contracted to help inmates file
complaints, supplemented by a limited
law library. The attorney would also
provide copies of cases and statutes for
pending litigation.
The plaintiffs argument that had he
had access to an adequate law library he
might have presented a winning argument
does not establish actual injury as that
term is used in Lewis v. Casey. After all,
he did file a response to the defendants'
motion to dismiss. The court also notes
that the plaintiffdid not identify the legal
issue he is concerned with when he did
have access to a law library in a state
prison. Another plaintiffwho had blown
the statute of limitations before he got
to the CCA facility also failed to show
prejudice. These plaintiffs therefore
lacked standing; the court does not hold
that CCA's arrangement is constitutional.

Medical Care-Serious Medical Needsl
Equal Protection-Race
De laPaz v. Peters, 959F.Supp. 909
(N.D.Ill. 1997).
The plaintiff is
incontinent as a result of a spinal cord
injury.
The Medical Director
recommended that he be permitted to take

Spring/Summer 1998
daily showers and be given an adequate
supply of clothing and bedding.
However, prison medical staffonly gave
him a permit to shower three times a
week. He asked to go to the honor block,
which had shower facilities designed for
handicapped persons, but was denied
because he did not meet the security
criteria.
The plaintiffs incontinence is a
serious medical need.
However,
defendants were not indifferent to it. The
fact that a doctor said a long time ago that
plaintiffshould have daily showers shows
no more than a disagreement with the
course oftreatment. The defendants did
give him more shower privileges than
other inmates. In any case they were
entitled to qualified immunity, since there
is no case law supporting more frequent
showers.
The small number of Hisp~ic
prisoners in the honor dorm is insufficient
to show he was excluded for racial
reasons; the court grants summary
judgment despite evidence that other
prisoners who did not meet the formal
criteria had been admitted. An "isolated
and perhaps unfair event, or a mere
inconsistency in prison management"
does not deny equal protection.

Medical Care-FeeslEqual Protection!
Procedural Due ProcesslEx Post Facto
Laws
Gardnerv. Wilson, 959 F.Supp. 1224
(C.D.Calif. 1997). A $5.00 copayment
requirement for medical visits, not
applicable to inmates with no money,
life-threatening or emergency situations,
or follow-ups initiated by medical staff,
does not violate the Eighth Amendment.
Defendants did not fail to provide
medical care or delay it.
The co-payments do not deny equal
protection because there is a rational basis
for the policy.
Taking funds from the plaintiffs
account to pay for medical visits did not
deny due process. He had notice of the

THE NATIONAL PRISON PROJECT Journal-- page 21
law and he initiated the medical visit, and
the prison grievance system permitted
challenge to erroneous charges. At 1229:
"Due Process requires no more than
notice and the post-deprivation grievance
process."
The co-payment requirement is not
an ex post facto law, since it is not
punishment and does not apply to events
occurring before its initiation, and it is
not a bill of attainder either.

Theories--Due
ProcesslEqual
Protection
Jubilee v. Horn, 959 F.Supp. 276
(E.D.Pa.1997). Thep1aintiffallegedthat
defendants had intentionally delayed
completing the paperwork for his parole
application, deliberately used erroneous
and incorrect infonnation in reviewing
his status,· and maliciously used their
procedures to prevent him from being
timely considered for parole. These
allegations state a substantive due process
claim. A legislative grant of discretion
does not amount to a license for arbitrary
behavior even in the absence of a
The
protectable liberty interest.
allegation that this treatment deprived
the plaintiff of the process afforded to
similarly situated prisoners stated an
equal protection claim.
FoodlUse of ForcelHygienelMedical
Care
Dennis v. Thurman, 959 F.Supp. 1253
(CD.Calif. 1997). The plaintiffrefused
to leave his cell" for a search. An officer
shot a 37mm gas gun, which shoots
rubber blocks, at the floor; the ricochet
fractured the plaintiffs leg. Use of the
gun wasjustified by the plaintiff's refusal
to leave the cell.
At 1261: "Water and functioning
plumbing are basic necessities of
civilized life." The shut-off of water to
the segregation unit for 36 hours did not
violate the Eighth Amendment.
Deprivation ofsanitation for short times
during violent episodes is acceptable.

Defendants had a legitimate reason for
turning off the water: prisoners had in
the past used the water to flood the cell
block.
A 45-minute delay in treatment for
the plaintiffs leg injury did not constitute
deliberate indifference.

Work AssignmentslMedical Care-Serious Medical Needs
Jones v. Hannigan, 959 F.8upp. 1400
(D.Kan. 1997). The plaintiff had
epididymitis, which was treated with
antibiotics and an athletic supporter, with
direction to avoid strenuous activity. He
was given a medical restriction form but
his work supervisor nevertheless insisted
that he perform heavy lifting, and he hurt
himself.
The plaintiffs epididymitis and back
injury were serious needs. They had been
diagnosed and treated, a lay person could
be expected to recognize the need for
treatment, and they affected the plaintiffs
daily activities and caused pain.
However, there was no deliberate
indifference; at most, there was
inadvertence in sending him back to
work. His criticisms of his treatment
amounted to no more than differences
of opinion with the treatment.
Pre-Trial DetaineesfUse of Force/
Summary Judgment
Cole v. Pence, 960 F.supp. 157
(N.D.lll.1997). The plaintiffalleged that
a· deputy sheriff hit him for passing a
cigarette to another detainee. The
defendant is not entitled to summary
judgment, even though the plaintiffs
deposition is contradictory in some
respects.
Rights of Particular GroupslNonEnglish LanguageslMedical CareStandards of Liability-Deliberate
IndifferencelMedical Care-Staffing,
Medical Records, ExaminationsIMental
Health
CarelMedical
Privacy/
Programs and ActivitieslEqual

Spring/Summer 1998
Protection/Classification--Race/
Injunctive
Relief--Changed
CircumstanceslProcedural
Due
ProcesslProcedural Due ProcessDisciplinary ProceedingslReligion-Services Within InstitutionslPendent
and Supplemental Claims; State Law
in Federal Courts/Classification-Race
Frank/if! v. District ofColumbia, 960
F.Supp. 394 (D.D.C. 1997). Because of
the lack of bilingual staff and staffs
ignorance of or failure to follow
directives concerning provision of
interpreters, Hispanic prisoners who
speak no or limited English have
difficulty accessing the medical and
mental health care system in the D.C.
jails; receive inadequate care; and are not
provided with adequate information that
they can understand concerning
diagnoses, treatment plans, and risks.
Continuity of care is "sadly lacki!1g."
Confidentiality is routinely violated by
requiring other inmates or correctional
staff to interpret. Hispanics are not
provided information on how to request
HIV tests and the HIV counseling they
receive is inadequate.
At 428: "Systemic deficiencies in
access to medical and mental health care
may constitute deliberate indifference
under the Eighth Amendment."
Deliberate indifference may be shown
by repeated examples ofnegligent acts
or by proving systemic and gross
deficiencies in staffmg, facilities,
equipment or procedures.
At 429: "To satisfy the Constitution,
a medical facility must be adequately
staffed." Inadequate bilingual staffwere
provided. At 430:
While the right to confidentiality
of medical communications is
qualified in a prison setting, ...
a prisoner's right to privacy is
only limited by valid penological
interests. . . . Outside of
emergencies, however, there is
no valid penologicaljustification
for disclosing an inmate's

THE NATIONAL PRISON PROJECT Journal -- page 22
medical condition through the
use of correctional officers or
other inmates as interpreters in
medical encounters.
At 430: "A correctional facility must
provide health care screening to identify
potential medical problems and
communicable diseases, ... and medical
records must be marked and sufficiently
organized to allow the provision of
adequate care."
.
Defendants fail to identify Hispanic
prisoners in need of mental health
services, to make necessary and
appropriate treatment available to them,
to monitor and insure continuity ofcare
for them, to obtain informed consent to
administration ofpsychotropic drugs, and
to protect their confidentiality. These
systemic failures constitute deliberate
indifference.
The court declines to award
injunctive relief under the D.C. Code
provision imposing a duty ofcare on the
Department of Correction, although it
has been construed to extend the common
law of torts to prisoners; it is not settled
that injunctive relief is available under
it.
There is a lack of programs for
Hispanic prisoners who speak limited
English; they lose both the benefit ofthe
programs and the opportunity to earn
good time credits for participating in
them. However, prisoners have no right
to voc~tional, rehabilitative or
educational programs or to parole, and
there is no equal protection violation
because there is no evidence prisoners
are denied access to programs because
they are Hispanic. The failure to offer
the same range ofprograms in Spanish
as in English does not deny equal
protection.
Religiousprogramming for Hispanic
prisoners is limited. However, the record
does not establish a violation of the
Religious Freedom Restoration Act.
The plaintiffs failed to establish.a
pattern ofracially motivated harassment

or a racially hostile environment. Staff
generally responded appropriately to such
incidents. At 432: "The defendant's
failure to provide qualified interpreters
at disciplinary hearings and parole
hearings is an affront to due process."
Due process protects the rightl "to
participate meaningfully in critical
proceedings." At433: "While prisoners
may have no liberty interest in parole per
se, ... that is not say [sic] that inmates
can be deprived of a fair hearing once
the District ofColumbia determines that
a hearing will be held. . .. Once the
defendant decides to conduct a parole
hearing, due process demands that the
hearing be conducted in a fair and
meaningful manner."
At 406 (footnote omitted):
While the defendant offered
evidence regarding a flurry of
activity within the Department
ofCorrections in the weeks prior
to trial, the record as a whole
establishes that these meager
steps, taken five years after the
District was placed on notice of
the underlying problems, were
nothing more .than a weak
attempt to shield its deliberate
indifference from judicial
scrutiny once it became clear
that this case was going to trial.

Spring/Summer 1998
the present tense and he was out ofjail
when he filed suit; the court may not
screen sua sponte to determine if the
complaint states a claim.
Medical CarelPersonal Involvement
and Supervisory LiabilitylDisabled
Saunders v. Horn, 960 F.Supp. 893
(E.D.Pa. 1997). The court affirms the
magistrate 'Judge's recommendations
reported at 959 F.Supp. 689 (E.D.Pa.
1996).
The Commissioner and
Superintendent could be held liable for
the deprivation to plaintiff of medically
recommended orthopedic shoes, since
he had written to them to complain. This
is not a case where correctional officials
rely on medical professionals who are
caring for the prisoner; rather,
correctional staff took the plaintiff's shoes
and their supervisors acquiesced.
The Americans with Disabilitie~Act
applies to state prisons.
Suicide PreventionIMental Health
CareiColorofLaw/QualifiedImmunity

Hartman v. Correctional Medical
Services, Inc", 960 F.Supp. 1577

(M.D.Fla. 1996). The decedent was
identified as a suicide risk by a person
who had the title, but not the
qualifications, of clinical psychologist.
He recommended a "later medical
No such referral was
referral."
PrisonLitigationReform ActIIn Forma conducted; he authorized the decedent's
PauperislUse of Force
removal from suicide watch three days
Kane v. Lancaster County Dept. of later without having had any mental
Corrections, 960 F.Supp. 219 (D.Neb. health consultation; he documented the
1997). The plaintiff, a former detainee, decedent's depression at that time. The
sued defendants including Officers John decedent committed suicide without ever
Doe, Richard Roe, Donald Duck, Daffy having seen a ment:al health professional
Duck, Mickey Mouse and Minnie Mouse, or having been provided any treatment.
for beating, starving, and robbing him
The "clinical psychologist" is not
while he was jailed. The complaint is entitled to qualified immunity; the court
not frivolous, even though the use of notes evidence that he was more
cartoon character names is not good interested in getting people out ofsuicide
pleading practice.
watch quickly because ofpressure from
The plaintiff is not a prisoner for the corporation that employed him, and
purposes ofthe PLRA informa pauperis about his upcoming vacation, than the
amendments, since the statute speaks in decedent's welfare.

THE NATIONAL PRISON PROJECT Journal -- page 23

!I

tJ

Correctional Medical Services, Inc.,
is entitled to raise the defense ofqualified
immunity.
(Probably wrong--if
municipalities are not entitled to it,
corporations, which also can only be held
liable based on corporate policies, should
not be either.) However, CMS is not
entitled to summary judgment, since
evidence that it permitted a person with
only a master's degree and no
professional licenses to have authority
over mental health referrals and suicide
precautions raised a factual issue as to
a policy of deliberate indifference.

Use of Force-Restraints, Chemical
AgentslMental Health CarelPendent
and Supplemental Claims; State Law
in Federal Courts
Price v. Dixon, 961 F.Supp. 894
(E.D.N.C. 1997). The plaintiff was
maced the placed in four-point metal
restraints for 28 hours after throwing
urine on officers. His condition was
checked every 15 minutes and he was
released regularly for bathroom breaks.
The court rejects his claim that he
was unlawfully denied mental health
care; he had been treated and diagnosed
repeatedly by mental health professionals.
He had been thrown out of the mental
health unit and placed in segregation at
the time ofthe incident, but his complaint
about this merely demonstrates a
difference of opinion about treatment.
The use of mace and restraints did
not violate the Eighth Amendment. At
900: "... [Ut is accepted that prisoners
may be subdued with mace when acting
disorderly as long as the use is neither
excessive nor applied solely for the
purpose ofinflicting pain or punishment."
Four-point restraints are not improper
ifother control methods don't work. The
defendants are entitled to qualified
immunity for keeping him in them for
28 hours because based on his long
historyofdisruption, defendants believed
that safety required it. The defendants
are also entitled to qualified immunity

Spring/Summer 1998

in doing something that is contrary to
their own policy.
It gets better:
defendants said that they had changed
their policy to make sure male employees
were on hand.
This "should be
commended. The ability to find an
accommodation does not, however,
undermine the conclusion of the Court
that the old practice was the least
Searches-Person-PrisonerslRellgionJ restrictive means ofcarrying out policy."
Use of Force
The prison was also constrained by a
Collins v. Scott, 961 F.Supp. 1009 class action judgment requiring gender(E.D.Tex. 1997). The Muslim plaintiff neutral assignments of staff.
complained that he had been strip
The use of a stun shield did not
searched by a female officer over his violate the Eighth Amendment, since the
religious objection and shocked with a plaintiff was repeatedly given the
stun shield to conduct the search forcibly. opportunity to comply with orders and
(By the time this happened, there were did not do so. The use ofthe shield was
several male officers in the area who less potentially harmful than the use of
could have conducted the strip search.) pepper gas or bare hands.
The plaintiff did not establish a
violation of the Religious Freedom Federal Officials and Prisons/
Restoration Act. Although he has a Rehabllitation/LawLibraries and Law
sincere religious belief in modesty, the Books
Koran's prohibition is against nudity
Amen-Ra v. Department ofDefense,
before either sex.
The plaintiffs 961 F.Supp. 256 (D.Kan. 1997). The
"willingness to forego his religious belief plaintiffs are inmates in the United States
in some contexts is one indicator that the Disciplinary Barracks. They challenged
beliefis not central or fundamental to the the Inmate Treatment Plan Program,
religion." (1014) The court finds it which allegedly violated their privilege
"ironic" that the plaintiff is willing to against self-incrimination by requiring
forego his religious beliefs to the extent them to take responsibility for their
that the prison's written policy requires. criminal behavior. The court rejects their
The departure from the prison system's claim.
rules was "a rare exception. An isolated
Claims oflimited access to the law
incident of unremarkable proportions library do not establish a constitutional
does not rise to the level of a violation in the absence of injury.
constitutional violation." (1014) "It
should further be noted that the Plaintiff Access to Courts--Punishment and
acknowledged that Allah understands the RetaliatiOn/Communication
and
situation." Id.
Expression
The defendants have shown a
Talbert v. Hinkle, 961 F.Supp. 905
compelling interest in maintaining (ED.Va. 1997). The plaintiffalleged that
security and the strip search practice is he was fired from his law library job
the least restrictive means of furthering because he filed a class action complaint.
that interest. The prison also has a valid His claim is rejected because he did not
security concern that inmates not dictate showthat his discharge adversely affected
policy. Note that the court is holding that his right of court access. (This misses
the defendants have a compelling interest the point; if accepted, it essentially
and have used the least restrictive means abolishes retaliation claims.)
His

for allegedly failing to let the plaintiff
wash the mace off. The court does not
rule on the constitutionality of this
treatment.
A state statute requiring medical
examination before assignment of
prisoners does not apply to placement
in restraints.
t

j

THE NATIONAL PRISON PROJECT Journal -- page 24
placement in segregation was not shown
to have resulted from his litigation
activities; ifit resulted from his showing
to other inmates a letter from a state
senator about the abolition of parole, it
would have been justified because
defendants had reason to believe this
activity would increase tensions in the
prison.

Access to Courts-Punishment and
RetaliationffypewriterslProcedura.
Due Process-Property
Spruytte v. Govorchin, 961 F.Supp.
1094 (W.D.Mich. 1997). The plaintiff
won a state court suit to be permitted to
possess a particular word processor. Two
<Jays after its final resolution, the plaintiff
'1fjl~d this suit, alleging that prison
officials' decision to deny him a substitute
word processor late in the state court
\litig~on constituted retaliation for the
,.e!!'die.r"stagesof the litigation, and
seeking a ruling on the alleged practice
,. 9(\~lVttg decisions in such cases before
:~iheating·
?'..:'s~,<Th~?plaintiff,who

hearing that obstructed his obtaining the
word processor denied due process is
barred by the Parratt rule, since he had
a post-deprivation remedy and used it
successfully.

Protection from Inmate Assault!
4Survival of Actions and Wrongful
Death UtigationlPersonal Involvement
and Supervisory Liability/Class
Actions-Effect of Judgments and
Pending Litigation
Velazquez-Martinez v. Colon, 961
F.Supp. 362 (D.P R. 1997). The decedent
was murdered by other prisoners.
The Corrections Administrator who
started seven days before the murder
could not be held liable for conditions
that may have caused the murder. The
Commandant of Custody Officers who
knew that there were no locks on the
doors and inadequate staff surveillance,
and who did nothing about it, could be
held liable. The fact that there were
orders in place in class action litigation
did not absolve him of responsibility.

had resolved all

tQQ:1t~r£laims in the state court litigation,

,~~9 standing to bring this claim either
:~~Jothe right to have a word processor
(which he had won) or the alleged
.practice ofdecision before hearing in the
grievance process.
There was no access to courts claim
because tht?e is no constitutional right
to a typewriter or word processor. Any
problemaIising from noncompliance with
orders in the state court litigation should
have been addressed in the state court
litigation.
The plaintiffhad no retaliation claim,
but the magistrate erroneously applied
a standardrequiring "egregious abuse of
governmental power."
At 1102:
"Retaliation against an individual for
exercise ofhis First Amendment rights
is itself a First Amendment violation."
The matter is not one of substantive due
process.
The plaintiffs claim of a tainted

In Forma PauperislDiscovery
Rivera v. DisAbato, 962 F.Supp. 38
(D.N.J. 1997). Apro se litigant is not
entitled to a free copy of his own
deposition taken by defendants in the
action. The court cites the Prison
Litigation Reform Act, which says
nothing about deposition transcripts, for
the proposition that prisoner litigants are
generally to bear their own litigation
costs. Besides, the prisoner was there,
and he knows what he said and could
have taken notes. The court apparently
did not consider Rule 26(b)(3),
Fed.R.Civ.P., which provides: "Aparty
may 9btain without the required showing
[of need] a statement concerning the
action or its subject matter previously
made by that party."

Personal
Propertyffypewriters/
Procedural Due Process-Property
Bannan v. Angelone, 962 F.Supp. 71

Spring/Summer 1998
(W.D.Va.1996). Aregulationrestricting
the personal property that prisoners may
possess, and giving them a period oftime
to dispose of property authorized under
the fonnerregulation but not the new one,
is not unconstitutional. At 74: "Unless
other rights such as religion or speech
are involved, jails may thus
constitutionally disallow the possession
of personal property."
Disallowing word processors or
typewriters does not violate the plaintiffs
right of court access in the absence of a
specific showing of injury. The court
takes judicial notice that most inmates
file civil actions with nothing more than
pen and paper.
A rule requiring prisoners to release
prison officials from civil liability for
property loss does not deny due process.
Prison regulations provide for recovery
of property or compensation for i!S loss
through the grievance process. (This is
limited to $50 except in specified
circumstances.) The court apparently
also considers the compulsory release
a "knowing and intelligent waiver."
Providing prisoners notice ofthe new
policy and up to 12 months to dispose
ofnonconforming property, along with
notice of confiscation and a right to
appeal, satisfies due process.

EmergencylProcedural,Jurisdictional
and Litigation QuestionslProcedural
Due ProcesslWork Assignments/
Programs and ActivitiesNisiting
Alley v. Angelone, 962 F.Supp. 827
(ED.Va.1997). Theplaintiffschallenged
prison officials' conduct during a
lockdown under' RICO. However,
conclusory allegations ofconspiracy are
insufficient. RICO plaintiffs must allege
that they have been injured in their
business or property as well as identifying
specifically two or more predicate acts
of"racketeering." InjUl)' to business does
not encompass loss ofprison employment
because prisoners do not have a
constitutional right to work assignments.

THE NATIONAL PRISON PROJECT Journal -- page 25
There is no liberty interest in prison
employment Wlder Sandin. (What about
a property interest? The court glosses
over the question.)
Lockdowns do not impose atypical
and significant hardship under Sandin,
since a lockdown is essentially
institution-wide segregation. Therefore
no hearing is required.
The potential effect on good time of
restrictions on employment and program
participation is not a liberty interest
protected by due process.
The Constitution does not protect
"unfettered" visitation.
Psychotropic Medication
Enis v. Dept. 0/ Health and Social
Services o/Wisconsin, 962 F.Supp. 1192
(W.D.Wis.1996). The plaintiff, who was
acquitted on grounds ofinsanity in 1974
and has been incarcerated ever since, was
entitled to a determination that he was
dangerous to himself or others and that
administration ofpsychotropic drugs was
in his best medical interest. His
procedural rights are generally governed
by Washington v. Harper; even though
incompetent he is not entitled to
appointment of a guardian.
Further medication is enjoined until
the necessary findings are made by an
independent decision-maker.
ClassActions-Certification ofClasses,
Conduct of Litigation/Law Libraries
and Law Books
Gomezv. Yemon, 962F.Supp. 1296
(D.Idaho 1997). Thedefendantsmoved
for summary judgment and to decertify
the plaintiff class in a court access suit
after Lewis v. Casey. They alleged that
the named plaintiffs lacked standing
because they could not show actual
injury.
Once a class has been certified, ifthe
named plaintiffs had legitimate cases at
that time, their transfer does not moot
the case. Plaintiffs have provided
sufficient evidence that several class

members have lost their claims because
of deficiencies in the law libraries.
Defendants' claim that these prisoners
were able to file actions and did not suffer
injury would require weighing of facts
not appropriate at the summaryjudgment
stage. The court also need not TId a
mini-trial on each claim to determine
whether it is meritorious; no such
evidence was submitted in Lewis.
Plaintiffs will be allowed to join new
named plaintiffs.
Lewis does not require decertification
of the class, since plaintiffs have shown
that there are plaintiffs who meet the new
injury criteria.
The court declines to order new
notice ofthe litigation to be posted in the
prisons to assist plaintiffs' counsel in
identifying inmates who have been
injured by lack of court access.
Prison Litigation Reform ActIVerbal
Abuse/Grievances and Complaints
about PrisonlProtection from Inmate
AssaultlEqual Protection
Thomas v. Hill, 963 F.Supp. 753
(N.D.Ind. 1997). An officer was arrested
for dealing drugs to inmates, and he
communicated to other officers and
prisoners that the plaintiff had set him
up. The plaintiff was threatened and
harassed.
At 755: "Verbal harassment or abuse
of prisoners by guards does not state a
constitutional deprivation Wlder § 1983."
However, informing other prisoners that
the plaintiff had taken action that
impacted the availability of drugs may
indicate deliberate indifference to his
safety. The facts alleged also state a
claim of retaliation for exercising his
First Amendment rights (presumably the
right to report illegal conduct) and ofan
attempt to prevent him from testifying
against the officer.
Unfair treatment of the plaintiff as
an individual does not violate the Equal
Protection Clause; the treatment must
result from his membership in a particular

Spring/Summer 1998
class.
The Prison Litigation Reform Act's
prohibition on claims for mental or
emotional injury without a showing of
physical injury does not bar this suit. The
court assumes that the claim is one for
"mental or emotional injury," but it
declines to apply the statute retroactively
because to do so "attaches new legal
consequences to events completedbefore
the provision's enactment." (758)
Summary JudgmentIFederal Officials
and PrisonslPersonal Property
Melvin v. United States, 963 F.Supp.
1052 (D.Kan. 1997). Theplaintiffwas
supposed to move to another housing
unit; he moved most ofhis property and
left the rest hidden behind the bed. An
officer, not seeing the property, left the
cell unlocked and his property was taken.
At 1056: "Failure ofa pro se litigant
to timely respond to the defendant's
motions must amoWlt to a 'clear record
of delay and contumacious conduct'
before dismissal is justified." The
plaintiff's untimely response is
considered.
Under the Federal Tort Claims Act,
plaintiff's claim is adjudicated under
Kansas law.
Loss of property is
compensable. At n. 1: Although prison
officials may restrict the property a
prisoner may possess, once the inmate
is allowed to possess it, a protected
interest in the property arises. The court
reviews the law of conversion and
bailment as applied to prisoners in
various states. It concludes that bailment
relationships in a prison are "based on
mutual benefit" (as opposed to gratuitous
bailments, bailments for hire, and bailee
as insurer). Since theft is a danger
against which a bailee must protect, and
since a mutual benefit bailment is
governed by a standard ofordinary care,
the plaintiffhas established a prima facie
case ofliability.

....

THE NATIONAL PRISON PROJECT Journal-- page 26
ProceduralDueProcess-Disciplinary
ProceedingslPunitive Segregation!
Hygiene
Porter v. Coughlin, 964 F.Supp. 97
(W.D.N.Y. 1997). The plaintiff was
charged with participation in the 1991
Southport riot and sentenced to 36
months in segregation; he was also
indicted, convicted and sentenced to
additional prison time. A state court
invalidated his disciplinary conviction
because the hearing officer had failed to
make certain findings; it is unclear
whether a new hearing was ever held.
He was then given a new misbehavior
report based on the criminal conviction
for the same acts and was sentenced to
in
SHU, reduced
five
years
administratively to 36 months. He also
received other charges at various times
and spent' about five years in SHU
cumulatively.
The 36 months segregation imposed
after the criminal conviction is atypical
and significant under Sandin. However,
the plaintiffreceived due process. The
denial oftwo witnesses (the countyjudge
and the prosecutor involved in his
criminal prosecution) and the denial of
others because they had no involvement
in the underlying actions were justified.
In any case the purpose of the hearing
was to determine whether the plaintiff
had been found guilty of a criminal
offense, not to reargue the merits of the
underlying-charge. The criminal trial
provided the process due. The Double
Jeopardy Clause is not applicable in
prison disciplinary proceedings.
The plaintiffs SHU confinement
might constitute cruel and unusual
punishment if, as he asserts, he was
"placed in a cell inclose proximity to
feces-throwing inmates, inmates threw
feces in plaintiffs cell or directly at him,
and this conduct was condoned,
encouraged, or permitted by the prison
authorities ... then plaintiff seems to
have a strong argument that he was
subjected to barbarous treatment, posing

a substantial risk ofserious harm." (104)

ProceduralDueProcess-Disciplinary
Proceedings
Gomez v. Kaplan, 964 F.Supp. 830
(S.D.N.Y. 1997). At 835: After
September 1993, "the clearly esUWlished
law in this Circuit required prison
disciplinary hearing officers to make an
independent assessment ofthe reliability
ofconfidential informants, and to create
and preserve a record ofthat assessment."
This rule applies if the hearing officer
relies "to any degree" on confidential
informant testimony.

Protection from Inmate Assault!
Personal Involvement and Supervisory
of
Process/
Liability/Service
Municipalities
Watson v. McGinnis, 964 F.Supp. 127
(S.D.N.Y. 1997). The plaintiff alleged
that an officer told other inmates that he
had snitched on them; he had complain~
to the superintendent; and subsequently
he had been slashed by another inmate.
The Superintendent and a captain
could not be held liable because he
forwarded the plaintiffs letter
immediately to a captain, who informed
the plaintiff that the matter would be
investigated. At 130: "The law is clear
that allegations that an official ignored
a prisoner's letter are insufficient to
establish liability."
The officer who labeled the plaintiff
a snitch to other inmates could be held
liable for the resulting assault.
The Magistrate Judge recommended
that the complaint be dismissed for lack
ofservice, but the districtjudge declines
to do so because the plaintiffs objection
shows that efforts to serve have been
made.

Use of ForcelMedical CarelUse of
Force-RestraintslRecreation and
ExerciselProcedural Due Process
Dawes v. Coughlin, 964 F.Supp. 652
(N.D.N.Y.1997). The court finds for the

Spring/Summer 1998
defendants on the facts of two use of
force incidents in which the plaintiff
sustained cuts, swelling and scrapes and
which the court finds the plaintiff
initiated.
The court rejects the plaintiffs claim
that he was denied an x-ray of his ribs
for two months on the ground that he was
fully examined after the use of force in
question and no injury was observed to
his ribs. He was not taken to scheduled
x-rays on four separate occasions because
he continued to act in a threatening and
offensive manner toward staff. When
he was finally x-rayed, there was no
damage to his ribs. His medical need was
not serious.
The defendants issued various
restraint orders and deprivation orders
depriving the plaintiff of all out-of-cell
activities because of his violent and
threatening behavior. They did not,deny
due process; the daily review of
deprivation orders, the availability ofthe
grievance program, and the availability
ofa judicial remedy in state court provide
the process due. Restraining the plaintiff
during his recreation periods did not
violate the Eighth Amendment when done
for security and safety purposes.

Hazardous Conditions and Substances
Simmons v. Sager, 964 F.Supp. 210
(W.D.Va. 1997).
The plaintiff
complained that although his prison
living units had a designated smoking
area, the ventilation system did not
prevent some smoke from filtering into
the rest ofthe dorm, and that his requests
for assignmentto a non-smoking housing
unit were refused.
The defendant is granted summary
judgment. The plaintiff, though he
complained generally about childhood
respiratory problems, alleged no specific
medical symptoms resulting from ETS
and made no complaints to medical staff
at the prison. He also did not show that
the level ofexposure he experienced was
one society would not tolerate. At 213:

THE NATIONAL PRISON PROJECT Journal -- page 27
"As society has not yet demanded that
all public areas be kept free ofETS, the
court cannot find that society would
require prisons to do so." The defendant
was not deliberately indifferent, having
taken some steps to protect the plaintiff,
and having had good reasons for not
taking other measures he requested like
opening the outside doors.

Statutes of LimitationslParties
DefendantIProtection from Inmate
Assault
Byrd v. Abate, 964 F.Supp. 140
(S.D.N.Y. 1997). The plaintiff was
stabbed by another inmate in a mental
observation unit and lost his eye. At the
time of the attack, the officer assigned
to supervise the area was relieving
another officer who was in the bathroom.
He was sued as John Doe. The
Corporation Counsel delayed identifying
him for months until after the statute of
limitations had run.
The amended complaint identifying
the new defendant relates back to the
filing ofthe initial complaint. The court
construes the inability to identify the
defendant as a "mistake" under Rule
15(c), Fed.R.Civ.P., contrary to Second
Circuit precedent, because in this case
the plaintiff sought timely to join the
defendant and the Corporation Counsel
failed to disclose his identity or to
produce discovery. The defendant had
constructive knowledge of the claim
because he and the other defendants were
represented by the same attorney.

the $10,000 award. The statute permits
awards of up to 150% ofthe damages,
which the court suggests is the outer limit
of proportionality.
ThePLRAfixesfeesat 150%ofCJA
rates, which are $45 an hour out ofcourt
and $65 an hour in court in this district,
e.
yielding $67.50 and $97.50 respectively.
Travel time is compensated at $40 as
suggested by the defendants.
The court applies 25% of the
plaintiff's judgment to satisfy the fee
award.

Grievances and Complaints about
PrisonNerbal AbuselProcedurai Due
Process-Disciplinary Proceedings
Brown v. Coughlin, 965 F.Supp. 401
(W.D.N.Y. 1997). Theplaintiffalleged
that officers fabricated disciplinary
charges in retaliation for his
administrative complaints.
These
allegations make out a constitutional
claim and are sufficiently supported by
evidence to withstand summary
judgment. Recourse to administrative
forums is protected by the right to
petition for redress of grievances;
administrative complaints enjoy as much
constitutional protection as does
litigation.
False disciplinary charges do not
deny due process in the absence of
evidence that they were made in
retaliation for the exercise of
constitutional rights.
Vague threats of harm do not state
an Eighth Amendment violation; the
court distinguishes a case involving
Attorneys' FeeslPrison Litigation threats of death.
Reform Act
Clarkv. Phillips, 965 F.Supp. 331 Unsentenced Convicts and Convicts
(N.D.N.Y. 1997). The plaintiff was Held in JaUslProtection from Inmate
awarded $10,000 by a jury for an Assault
unspecifiedEighth Amendment violation.
Earrey v. Chickasaw County, Miss.,
The attorneys' fees sought by the 965 F.supp. 870 (N.D.Miss. 1997). The
plaintiffwere for time spent in proving plaintiff, an accused parole violator, was
and seeking redress for an actual violation beaten by other inmates injail. Nighttime
.of the plaintiff's rights. A fee of checks are not made in the jail. Some
$7921.96 is "proportionately related" to or all ofthe door locks are inoperative.

Spring/Summer 1998
There was no direct visual surveillance,
only an intercom microphone and an
emergency switch, which the plaintiff
was kept from reaching by his assailants.
The plaintiff not entitled to the
Wolfish due process standard in the
absence of evidence that defendants
actually intended to punish him for his
alleged crime. An inference ofpunitive
intent from the conditions ofconfinement
is not warranted for a parolee.
It is unclear whether the Farmer v.
Brennan
subjective
deliberate
indifference standard is applicable to a
claim against a municipality. Some
courts have assumed that municipal
liability requires only a policy of
objective deliberate indifference but that
a judgment against the municipality
requires a showing of subjective
deliberate indifference by an official.
This court adopts that position.
The facts alleged by the plaintiffare
sufficient to withstand summary
judgment under the Farmer deliberate
indifference standard.

Attorneys' FeeslPrison Litigation
Reform Act
Hadix v. Johnson, 965 F.supp. 996
(W.DMich. 1997). The Prison Litigation
Reform Act's restrictions on attorneys'
fees do not apply to services performed
before the statute's passage; to hold
otherwise would result in an
impermissible retroactive effect. The
attorneys had an expectation on prior law
that they would receive reasonable fees
if they prevailed, and $112.50 is not
reasonable because it is not the market
rate.
The court uses as a basis for
calculation of PLRA fees the $75 rate
authorized by the Judicial Conference
for attorneys with their offices in Detroit
or Washington, D.C.
ProceduralDueProcess-Disciplinary
Proceedings
Hayes v. McBride, 965 F.Supp. 1186

THE NATIONAL PRISON PROJECT Journal -- page 28
(N.D.Ind. 1997). A substance was
confiscated from the petitioner's cell and
the officer said he admitted it was
polyurethane, an intoxicant.
The
petitioner denied making such an
admission. The failure of officials to
produce the substance at the hearing did
not deny due process. However, the
failure actually to identify it as an
intoxicant, combined with the lack ofany
uncontroverted evidence that it was an
intoxicant, meant that there was
insufficient evidence to sustain .a
disciplinary conviction. The court says
this is not reweighing the evidence, but
insisting upon "some evidence" that
possesses "sufficient indicia of
reliability." (Citing Meeks v. McBride,
81 F.3d 717, 720 (7th Cir. 1996)).
Use of ForcelFederal Officials and
PrisonslPre-Trial Detainees
Santiago v. Semenza, 965 F.Supp.
468 (S.D.N.Y. 1997). The defendant
officer is entitled to summary judgment
in this use of force case; even accepting
the plaintiffs story that the defendant
attacked him, his first blow missed ("An
attempted blow does not rise to the level
of a constitutional violation. ")
Considering that the plaintiffhad slipped
his cuffed hands to the front and that
there was a melee going on in the cell,
the defendant's actions, which at most
inflicted bruises or a scratch, did not deny
due process. The court applies the
Johnson v....Glick standard.
Prison Litigation Reform Act/Judicial
DisengagementlEqualProtectionIDue
Process
James v. Lash, 965 F.Supp. 1190
(N.D.Ind. 1997). The court earlier
applied the judgment termination
provisions of the Prison Litigation
Reform Act a 1982 consent decree
requiring recognition of the American
Muslim Mission. 949 F.Supp. 691
(N.D.Ind. 1996). On this motion by
plaintiffs under Rule 60(b), the court

adheres to its decision and upholds the
statute against the constitutional
challenges that were not raised in the
initial proceeding.
At 1196: "... [T]he specific relief
granted by a consent decree never
becomes 'fmal' to the extent th.It it is
beyond reconsideration." Id.: -"Had
Congress enacted § 3626(b)(2) to read
'vacate' or 'rescind' rather than 'terminate,'
and 'Judgment' rather than 'prospective
relief the court's conclusion in regard to
the separation ofpower challenge might
likely be different." Under Rule 60(b)
and equity principles, the plaintiffs never
had the right to expect that the
prospective relief would continue in
perpetuity.
The rational basis test applies to
plaintiffs' equal protection argument, and
the interest in preserving state
sovereignty from overzealous federal
court supervision is legitimate.
The court assumes that a consent
decree is subject to an impairment of
contract challenge, and upholds the
statute under the rational basis test.
PrisonLitigationReform ActIIn Forma
Pauperis
Johnson v. Hill, 965 F.Supp. 1487
(E.D.Va. 1997). The plaintiffalleged that
he was incarcerated for a week after the
Parole Board had ordered his release and
that he was beaten by another inmate
while confined. He paid the full filing
fee.
The plaintiffs complaint is subject
to pre-screening under the Prison
Litigation Reform Act even though he
is no longer a prisoner, since he was a
prisoner when he filed and he brought
the suit "in his capacity as a prisoner; that
is, it advances his concerns about alleged
misconduct by prison officials and
injuries received at the hands ofanother
inmate." (1488 n. 2)
The complaint is subject to prescreening even though the paid the entire
filing fee; the relevant PLRA provision

Spring/Summer 1998
applies to all prisoner cases even ifthey
are not in forma pauperis. The court
dismisses on statute of limitations
grounds.
PrisonLitigationReformActIIn Forma
Pauperis
Witzke v. Hiller, 966 F.Supp. 538
(E.D.Micb. 1997). The plaintiffhad three
"strikes" Under the Prison Litigation
Reform Act and was barred from
proceeding without prepayment of the
filing fee. The application of the PLRA
based on strikes occurring before its
passage does not have an impermissible
retroactive effect.
ProceduralDueProcess-Disciplinary
ProceedingslHabeas CorpuslEqual
Protection
Hester v. McBride, 966 F.Supp. 765
(N.D.Ind. 1997). Amendments tq the
habeas corpus statute restricting the scope
ofreview apply to determinations made
by administrative bodies includingprison
disciplinary boards.
Witness statements corroborating the
accusation constituted "some evidence"
notwithstanding a statement obtained by
the plaintiffthat contradicted them. The
failure to use a polygraph in interviewing
witnesses did not deny due process. The
failure to provide witness statements by
confidential informants did not deny due
process.
The fact that another prisoner got a
lesser sentence did not establish an equal
protection violation; the other prisoner
was charged with a less serious offense
and there is no evidence ofdiscriminatory
purpose.
Failure to comply with prison
regulations concerning timeliness ofthe
disciplinary hearing does not violate the
Constitution.
There is no due process claim for
ineffective assistance by an inmate
advocate.

THE NATIONAL PRISON PROJECT Journal -- page 29
ProceduralDueProcess-Disciplinary
Proceedings
Terrel/v. Godinez, 966F.Supp. 679
(N.D.TIl. 1997). Segregation for 60 days
is not atypical and significant under
Sandin. Even if it was, this plaintiff
received due process. He failed to
identify witnesses, so denial ofwitnesses
did not deny due process. There was
"some evidence" in the fact that
contraband was found in a ventilation
duct that was accessible from eight
different cells including his own; the
court can't weigh the strength of the
evidence. He also failed a polygraph test
(which he had requested); that is evidence
against him.

Use of ForceNerbal Abuse
Brown v. Croce, 967 F.Supp. 101
(S.D.N.Y. 1997). The plaintiff alleged
that an officer called him racial names
and slapped him twice in the face. He
was not injured. The use of force was
de minimis. Malice is not shown, since
the slaps and use of racial epithets
occurred after the plaintiff "interfered
with and harassed an officer." (He stated
at his disciplinary hearing that he was
screaming as loudly as he could. This
occurred in the mental health office,
where he was trying to see his doctor.)
Racial slurs and epithets are not
actionable.

Use of ForcelRes Judicata and
CoUateral Estoppel
Caridi l!:" Forte, 967 F.Supp. 97
(S.D.N.Y. 1997).
The plaintiffs
conviction for resisting arrest precluded
his claim for excessive force during the
arrest, since proving the resisting arrest
claim requires proving that force was
needed to effectuate the arrest. The court
relies onPastre v. Weber, 907 F.2d 144
(2d Cir. 1990). The court seems to
exclude the possibility that some force
was needed but the force used was
excessive.
Force used at the station house was

also not excessive; the defendant officer
"displayed commendable calm in the face
of outrageous abuse from a one-man
crime wave." The court reaches this
conclusion on a summary judgment
motion without being very clear about
what the plaintiffs story actually was.
'il!-

ProceduralDueProcess-Disciplinary
Proceedings/Grievances
and
Complaints about Prison
Walker v. Roth, 967 F.Supp. 250
(E.D.Mich. 1997). Theplaintiffalleged
that he was subjected to a false
disciplinary charge because he threatened
to file a grievance. Such retaliation
against prisoners must "shock the
conscience" or "egregiously abuse
governmental authority" to be actionable.
There is a conflict in this district court
on that point and the court (253 n. 6)
rejects the contrary analysis of Riley v.
Kurtz, 893 F.supp. 709 (E.DMich. 1995).
False disciplinary charges do not
deny due process. In any case, this
plaintiffwas convicted ofinsolence and
the facts support the charge.

Drug
Dependency
Treatment!
Rehabilitation/Religion/Prison
Litigation Reform Act
Kerr v. Puckett, 967 F.Supp. 354
(E.D.Wis. 1997). The plaintiff alleged
that a prison drug rehabilitation program
violated the Eighth Amendment because
of its intellectually coercive nature (my
characterization of his claim) and the
Establishment Clause because of its
religious content.
The defendants are entitled to
qualified immunity because the Seventh
Circuit decision in point was not decided
until after the conduct complained of.
In addition, to the extent that his damage
claims are for mental or emotional injwy,
they are barred by the Prison Litigation
Reform Act. This provision applies even
though the plaintiff was no longer a
prisoner when he filed.

Spring/Summer 1998
Dental CareIMedical Care-Standards
ofLiability/PendentandSupplemental
Claims; State Law in Federal
Courts/Prison Litigation Reform Act
Gindrawv. Dendler, 967 F.Supp. 833
(E.D.Pa.1997). Theplaintiffallegedthat
a prison dentist pulled the wrong tooth
and subsequently, trying to pull another
tooth damaged in the first extraction,
broke that tooth and chipped another.
At 836: "... [T]he exercise by a
doctor of his professional judgment is
never deliberate indifference." The
plaintiffs complaint about the quality of
treatment does not establish deliberate
indifference.
The number of
examinations conducted, the extensive
treatment given, the referral to another
physician and the prescription of
medication is enoughto negate deliberate
indifference.
Generally, a medical malpractjce
claim must be supported by expert
testimony, but there is no such
requirement where the matter is so simple
and the lack ofskill or care is so obvious
to be within a lay person's understanding.
Breaking a tooth and leaving the roots
in the jaw is not evidence ofmalpractice
absent an expert report. The same is true
of using more force than necessary to
extract a tooth. The court notes that it
gave the pro se plaintiff plenty of
opportunity to get an expert.
The claim for removing the wrong
tooth cannot be dismissed on the state
of the record, though the court does not
decide that no expert testimony is
required. This claim may also constitute
an assault and battery.
At 840:
"Performing a medical procedure without
informed consent is a technical assault
and battery."
The provisions of the Prison
Litigation Reform Act for dismissal at
any time it is determined that a complaint
fails to state a claim apply to cases filed
before the statute was passed; the
provisions are wholly procedural, and
there is no right to have a court hear a

__ J

THE NATIONAL PRISON PROJECT Journal -- page 30
complaint that does not state a claim.

the exhaustion requirement.

Habeas CorpuslProcedural Due
Process-Disciplinary Proceedings

Protection from Inmate Assault

Rice v. McBride, 967 F.Supp. 1097
(N.D.Ind. 1997). The petitioner was
disciplined for threatening to kill his wife
and her live-in boyfriend. His habeas
corpus petition is governed by the AntiTerrorism and Effective Death Penalty
Act's restrictions, which presume the
correctness offacts found by state courts
and require a showing of unreasonably
application of clearly established federal
law as determined by the Supreme Court.
This provision is applicable to
determinations made by administrative
bodies.
There was some evidence to support
the conviction despite the fact that the
petitioner presented conflicting evidence
(an officer's statement that the petitioner
and his wife appeared to be on good
terms). The evidence relied on is reliable,
although some of it came from a
confidential source.
The failure to obtain a witness
statement from the petitioner's wife did
not deny due process; she was not present
when the officers heard the petitioner
utter his threat, and there was other
evidence that the threat was made.

Dowling v. Hannigan, 968 F.Supp.
610 (D.Kan. 1997). Prison authorities
received an anonymous note stating that
the plaintiff would be attacked b"'y his
assailant because he had informed on the
assailant for his drug activities. The
assailant and his cell were searched and
he was denied yard privileges, but the
plaintiffwas not told of the threat. The
next day the plaintiffwas attacked with
a razor blade. He alleged that one ofthe
defendants saw the attack and did
nothing.
These allegations are sufficient to
withstand summary judgment.

Pre-Trial
Detainees/Personal
Involvementand SupervisoryLiability

Ingalls v. Florio, 968 F.Supp. 193
(D.N.J. 1997). The court addresses
summary judgment motions in 4~
consolidated actions brought by detainees
and sentenced inmates at a county jail
in 1992-93, which the court stayed
pending resolution of a class action. At
197 n. 1: "The standards under the Due
Process Clause are the same as standards
under the Eighth Amendment for
measuring conditions and medical
treatment."
Allegations that
supervisory
Prison Litigation Reform Act!
defendants had direct knowledge of
Exhaustion of Remedies
Morgan v. Arizona Dept. of allegedly unconstitutional conditions or
Corrections, 967 F.supp. 1184 (D.Ariz. that they persisted in promoting the
1997). The court lacks jurisdiction over policies that resulted in those
a complaint by a prisoner who failed to unconstitutional conditions are sufficient
exhaust the prison grievance system to support their personal liability. Since
before filing. The court has no discretion litigation and negotiations had been going
under the Prison Litigation Reform Act on about the disputed conditions for a
to grant a continuance to permit decade before the events complained of,
exhaustion. The factthat prison officials a jury could find that their level of
did not respond timely does not excuse knowledge
indicated
deliberate
exhaustion. The action is dismissed indifference.
without prejudice.
Crowding (198):
Extreme
The plaintiffs complaint ofan assault overcrowding, resulting in five or six
by another inmate constitutes a "prison inmates in cells designed for one or two
conditions" complaint and is subject to and inmates routinely sleeping on the

Spring/Summer 1998
floor, made out a constitutional claim.
Sanitation (198):
"Deplorable
conditions ofsanitation," including toilet
paper in such short supply that inmates
fought over it, made out a constitutional
claim.
Food (198): Food storage and
preparation areas infested with vermin
leading to contamination of food made
out a constitutional claim.
Recreation (198):
Recreation
opportunities so limited as to deny
inmates any physical exercise, and denial
of outdoor recreation for periods in
excess of a year, made out a
constitutional claim.
Use ofForce, Protectionfrom Inmate
Assault (199-200): "repeated serious
assaults ... by both guards and other
inmates," including a riot plus more
isolated instances (including an officer's
poisoning an inmate's food with s9ap
containing lye and placement of one
plaintiff, who had an order for
segregation, in general population where
he was assaulted), made out a
constitutional claim.
The various
allegations "tend to have a mutually
reinforcing effect in establishing the
possible existence ofa risk ofharm from
such violence.
That is, the
chronologically earlier instances of
assaults may reasonably be considered
by a jury as indicating a serious risk
which defendants did not act to
eliminate." (200) The lack of evidence
ofsteps that the County defendants took
to lessen these risks means that they
could be found deliberately indifferent.
Statutes ofLimitations, Medical Care
(200-01): Allegations of denial of
medical care are treated as continuing
violations not barred by the statute of
limitations.
Medical Care (202): Constitutional
claims are made out by allegations that:
(a) a screw came loose from the steel
plate in a prisoner's jaw, causing
infection, and it took two weeks to see
even a nurse; (b) an inmate contracted

THE NATIONAL PRISON PROJECT Journal -- page 31
tuberculosis but received no treatment
for a month; (c) an inmate fractured his
hand but did not see a doctor for fifteen
days and did not receive an x-ray for over
five weeks; (d) an inmate who was
urinating blood and in excruciating pain
was not taken to the hospital until he
contacted a newspaper.
Medical Care--Denial of Ordered
Care (202): A prisoner who broke his
hand and was advised to sleep with his
hand elevated to permit proper healing
of the fractures was forced to sleep on
the floor without any means of elevating
his hand; he was also denied pain
medications. These allegations made out
a constitutional claim.
Law Libraries and Law Books (20203): Allegations ofdenial oflaw library
access are dismissed for lack ofproofof
harm. Inability to assist one's criminal
defense attorney does not meet this
requirement because defendants generally
assist their attomeys only with fact issues,
not legal research. Plaintiffs must allege
under Lewis v. Casey that some
nonfrivolous action "was dismissed or
could not be filed because of library
restrictions." 203 n. I: A plaintiffmust
be "completely unable to present his
claim in the sense required by Casey."
Telephones, Attorney Consultation
(203-04): Limited telephone access to
counsel is not a constitutional violation
as long as inmates can communicate with
counsel in writing or by visits.
Religion (204-05): The plaintiffs'
religious claims are all dismissed because
none ofthem iJ;].dicate what sincerely held
religious beliefs were substantially
burdened by limitations on religious
services that prevented them from going
as often as they wanted. At 205: in any
case, "the fair apportioI1Inent of access
to prison resources for the benefit of
inmates of all faiths constitutes a
compelling governmental interest,
accomplished in the least restrictive
manner. . . ." Allowing Muslims to
gather only on their own tier rather than

jail-wide is not shown to have
substantially burdened their exercise and
the defendants had a compelling interest
in security in limiting gatherings.

Spring/Summer 1998

challenge the statute, since under it he
owes the county money and has actually
paid some.
The plaintiff did not have standing
to challenge an alleged county practice
Recreation and Exercise
of sendirig indigent offenders to jail for
Davidson v. Coughlin, 968 F.Supp. 121 non-payment of fines, since he was no
(S.D.N.Y. 1997). At 129:
longer incarcerated.
Because exercise is one of the €asic
The plaintiffstated a claim under the
human needs protected by the Eighth Excessive Fiiles Clause. The imposition
Amendment, prisoners must be afforded ofcosts ofincarceration under the statute
some opportunity for exercise. . . . is punishment; it is imposed only on those
Although a prisoner may satisfy the convicted of crimes, and not those
objective component of the Eighth detained before trial, so it cannot be
Amendment rest by showing that he was analogized to a user fee. However, on
denied meaningful exercise for a the merits, the court holds that the fine
substantial period oftime, ... temporary is not unconstitutional because it is not
denials ofexercise may be constitutional. disproportionate to the fine imposed for
Providing less than one hour a day the offense or to fines imposed in
ofoutdoor exercise repeatedly over a 30- contempt cases generally.
day period did not violate the Eighth
The plaintiffstated a claim under the
Amendment, since it was of limited Double Jeopardy Clause, but loses on the
duration and only a partial deprivation; merits because the fine is not
the plaintiffwas allowed otherout-of-cell disproportionate to the damage caused
activities and had the opportunity for in- to the government.
cell exercise; and the deprivation was
The plaintiff's equal protection claim
imposed as a sanction to encourage is rejected because the indigency standard
compliance with prison rules. The used by the defendants is not a standard
complete denial of exercise was for no ofabsolute indigency but is the same as
longer than 14 days.
used for indigent medical and financial
Allegations that the plaintiff was assistance programs.
repeatedly provided with less than a full
hour's recreation and occasionally denied Legal Assistance Programs/Standing
his yard period entirely over a period of Smith v. Armstrong, 968 F.Supp. 40
four and a halfmonths did not make out (D.Conn.1996). This class action about
an Eighth Amendment violation.
court access was subjudice when Lewis
The defendants were entitled to v. Casey was decided.
The Department of Correction
qualified immunity because at the time
of the violations the Second Circuit had terminated its contract with Legal
"only vaguely outlined the Eighth Assistance to Prisoners, which provided
Amendment right to exercise." (134)
representation to prisoners, and
contracted with a new program, which
Personal Property/StandinglEqual gives advice and assists in preparing
Protection
papers, but does not represent inmates,
Grove v. Kadlic, 968 F.Supp. 510 is forbidden to discuss with them the
(D.Nev. 1997). The plaintiffwas billed "operation of the institution," and must
$630 for 18 days in jail under a state disclose any information involving safety
statute requiring non-indigents to pay for or security. The prisons apparently have
being jailed.
law libraries.
The plaintiff had standing to
No plaintiffestablished actual injwy;

J.

THE NATIONAL PRISON PROJECT Journal -- page 32
they all managed to file claims and no
one had a complaint dismissed for failure
to meet a teelmical requirement or a claim
they could not get into court.
The lack ofindependence ofthe new
program does not rise to the level
complained ofin Smith v. Bounds. Why
the court rules on this question in the
absence of standing is unclear.

Beating and VentilationlPrison
Litigation Reform ActlExhaustion of
Remedies!Service of ProcesslPro Se
LitigationlNegligence,
Deliberate
Indifference and Intent
Mitchell v. Shonig, 969 F.Supp. 487
(N.D.TIl. 1997). The plaintiffalleged that
temperatures in his cell ranged from 32
to 50 degrees because his cell was at the
end ofthe gallery and the windows were
improperly installed. The plaintiffstates
a claim to the extent that he alleged
extended exposure to temperatures 50
degrees or lower. The lack ofsignificant
injwy is not fatal to his claim; "the Eighth
Amendment requires protection from
severe discomfort as well as frostbite and
hypothermia." (490)
Allegations thatthe plaintiffinfonned
defendants of the conditions, they were
in a position to alleviate them, and they
did nothing are sufficient to allege
deliberate indifference. The court accepts
the statement to this effect in this pro se
litigant's brief as part of the complaint.
The plaintiff need not show that the
defendants.. intended or desired the
resulting hann; all he needs to show is
that the official acted or failed to act
despite the knowledge of a substantial
risk ofhann.
The Prison Litigation Refonn Act's
exhaustion of administrative remedies
requirement is not applicable to pending
cases. The fact that it is procedural does
not mean it should be so applied; it would
attach new legal consequences to
completed events and would violate the
Seven:th Circuit's "no mousetrapping"
principle. The court notes that the

defendants did not move to dismiss until
after the plaintiffs time had expired to
appeal the grievance.
The plaintiffs reliance on the
Marshal to serve process and on the
Marshal's statement that process hadbeen
served constituted good cause for ihiling
to accomplish service within 120 days.

Attorneys' Fees and CostslPrison
Litigation Reform Act
Blissett v. Casey, 969 F.Supp. 118
(N.D.N.Y. 1997). A week's delay in
filing a fees motion is deemed excusable
neglect.
The Prison Litigation Refonn Act's
limitations on fees do not apply to
services performed before the statute
became effective. Nor do they apply to
work done after the statute was passed
in a case in which the attorneys agreed
to represent the plaintiffbefore then; the
opposite holding would "failO to take into
account the [attorneys'] reasonable
expectations" as ofthe time they took the
case and would impose a new obligation
on the plaintiff, to pay a proportion of
his recovery as attorneys' fees. Fees are
awarded at up to $150 an hour, with
smaller amounts for non-legal work.

Federal Officials and Prisons!
PsychotropicMedicationlMagistratesl
Injunctive RelieflExhaustion of
Remedies
United States v. McAllister, 969
F.Supp. 1200 (D.Minn. 1997). The
respondent sought judicial review of a
detennination that he should be
involuntarily medicated. The magistrate
judge ordered that he not be medicated
pending further order of the court, but
now states that he erred because
magistrates lack that authority; they may
only
issue
a
Report
and
Recommendation.
The federal regulations concerning
forcible medication of prisoners are
consistent with the requirements of
Washington v. Harper. Since there is no

Spring/Summer 1998
right to counsel in a medication
proceeding, it was not unconstitutional
to fail to notify the respondent's courtappointed lawyer first.
The administrative record does not
substantiate the reasons for medicating
the respondent; though there was
evidence that might have supported
medication, the doctor who reviewed the
medication proposal did not make a
finding ofnecessity, and it is not clear
whether
the
treating/evaluating
psychiatrist/clinician presented clinical
data and background infonnationrelative
to the need for medication as the
regulations require.
Injunctive relief is not appropriate
because prison personnel have stopped
forcibly medicating the respondent and
therefore he has not established the
necessary imminent risk of harm. The
medication order is reversed .and
remanded for reconsideration by the
agency.
The court has jurisdiction to consider
this case under the Administrative
Procedures Act, which provides for
judicial review of all federal agency
actions unless a statute provides
otherwise. Mandamus does not lie
because medication decisions are not
ministerial.
The respondent exhausted his
administrative remedies. The usual
Bureau ofPrisons administrative process
was not available to him because there
was an alternative procedure, which he
utilized, and the regulations exclude such
cases from the regular administrative
remedy.
The court declines to appoint a
"health care guardian" for the respondent.

John Boston is the Director of the
Prisoners' Rights Project, Legal Aid
Society ofNew York.
~

THE NATIONAL PRISON PROJECT Journal -- page 33

Spring/Summer 1998

NPP AIDS In Prison Project Update
Prison Systems Change HIV-Testing Policies
by Jackie Walker, Project Coordinator
For the past eight years, mv testing
in prisons has largely been conducted on
a voluntary basis. Currently, only 16
state systems and the Federal Bureau of
Prisons (FBOP) conduct mandatory mv
testing. Similarly, the response of
correctional health organizations and
many correctional doctors has been
against mandatory testing. The National
Commission on Correctional Healthcare
has consistently supported voluntary
testing since 1987 as the best means of
managing HIV in corrections.
Additionally, the American Public Health
Association and the World Health
Organization have also encouraged
voluntary testing.
Earlier this year a roundtable of
correctional doctors issued the
publication, "Management of the HIVPositive Prisoner," which discusses a
variety of issues from HIV-testing
policies to women's issues.
The
roundtable noted a number of
disincentives for prisoners seeking mv
testing, including the distribution of
medication, medical segregation or
clustering, lack of access to job
opportunities, and prohibition against
conjugal visits. The doctors urged policy
makers to remove these obstacles by
creating an atmosphere that encourages
voluntary HIV testing. They proposed
actively offering prisoners mv testing,
access to HIV testing on demand
throughoutincarceration, andappropriate
follow-up care for prisoners testing
positive.
Despite widespread support for
voluntary mv testing, some systems are
moving towards mandatory testing. In
1998 HIV-testing policies have changed
or are set to change in Texas, South
Carolina, and the FBOP. The Texas
Department ofCriminal Justice (IDC])

revised its HIV-testing policy to include
routine testing ofall prisoners. The Sbuth
Carolina Department of Corrections
recently also began mandatory HIV
screening of prisoners. Similarly,
congressional legislation, H.R. 2070 the
Corrections Officer and Safety Act of
1998, institutes the mandatory HIV
testing of all prisoners in the FBOP.
Changes in Texas, South Carolina, and
the FBOP may foreshadow the future of
HIV-testing policies in other systems
across the country.
In the fall of 1997, the IDCJ
reviewed and amended its HIV/AIDS
policies. Changes included the
implementation ofa routine HIV-testing
policy. Dr. Lannette Linthicum, IDCfs
Interim Medical Director, explains, "We
felt it was essential to identify our HIVpositive offenders early in the course of
their illness and start antiretroviral
therapy before extensive immune damage
occurs." According to Dr. Linthicum,
the IDC]'s revised testing policy
includes screening all consenting
prisoners for high-risk behaviors and mv
testing of high-risk groups. Pre- and
post-test counseling is provided based
on Texas Department of Health and
Centers for Disease Control models.
The Texas HIV-testing process is
currently divided into two phases. In the
first phase, prisoners in highest risk
categories are being tested. The second
phase will include testing ofall prisoners.
Public health nurses have until May 1999
to screen all prisoners at their facilities.
The TDCJ's new mv-testing policy
seems to have initiated a trend. The
FBOP is following suit by imposing its
own mandatory mv-testing policy. The
original purpose of the proposed
legislation, H.R. 2070 the Corrections
Officer and Safety Act of 1998, was to

protect correctional staff from possible
transmission of the HIV virus by
identifying infected prisoners through
testing. HoWever, several amendments
expanded the scope of the bill. Under
the amended H.R. 2070, anyone
convicted of a federal offense and
sentenced to serve six or more months
would be tested for the HIV virus. The
FBOP currently offers voluntary HIV
testingduring incarceration and performs
mandatory HIV testing for everyone
exiting the system. Ifthe amended H.R.
2070 passes, counseling, health care, and
support services must be provided for
both prisoners and staff who test HIV
positive.
In the midst of these changes,
prisoners' advocates are raising a variety
of concerns from access to adequate
medical care to the availability ofHIV
testing. Although most systems say that
prisoners will have access to treatment,
complaints from prisoners living with
mv/AIDS indicatecontinuingproblems.
For instance, preliminary results from
a recent survey by the Correctional HIV
Consortium found that only 18% of
prisoners living with HIV/AIDS are
receiving the appropriate anti-retroviral
therapy. These figures prompt some
advocates to question whetherrnandatory
testing will actually result in the treatment
of infected prisoners. Mike Haggerty
ofthe Correctional mv Consortium says,
"I would be in favor if [testing] was tied
to mandatory treatment as the community
standard. And ifresources were in place
for that purpose only. Other than that,
[the new testing policies] smack of
political expedience, separate but unequal
and get to the back ofthe bus." He also
reminds us, "It's so negative and
horrendous to be HIV-positive in prison.
It's one ofthe reasons people are staying

THE NATIONAL PRISON PROJECT Journal-- page 34
out of treatment."
Prisoners' advocates also raise
concerns about access to HIV testing.
In New York, a program funded by the
New York AIDS Institute permits
community-based organizations to
provide HIV testing to select prisons.
Jack Beck ofthe Prisoners' Rights Project
reports that he has seen a decline in
complaints from prisons covered by this
program. However, he still receives
complaints about delays in HIV testing
and inadequate counseling performed
within the correctional system. For
Beck, mandatory HIV testing is
problematic: "It's using funds that could
be more effectively used in HIV/AIDS
education programs. These programs
are more effective in getting folks into
HIV testing. It's not just a bad idea, but
its diverting funds from a more effective
program."
Cultural and linguistic issues also
impact access to HIV testing. Romeo
Sanchez ofthe Latino AIDS Commission
explains, "Latinos comprise 34% of the
prison population in New York. But there
is a lack of Spanish-speaking health care
and
Spanish-language
providers
interpreters in the correctional system.
This makes it very difficult or impossible
forSpanish-language-dominantprisoners
to receive access to testing information,
pre/post test counseling and preventive
treatment options." He also feels any
HIV-testing program must include other
services su~h as staff training in the
delivery of pre/post test counseling and
accommodations to facilitate adherence
to treatment regimens. Ultimately,
Sanchez feels the internal aspects of
prisons make it difficult for mandatory
HIV testing to have an impact. "There
is a lack ofconfidentiality in prisons and
this information could be misused against
the prisoner. The fact is prisons lack the
necessary resources, support systems,
trained personnel, medical staff, etc., to
provide appropriate responses to all those
~
testing positive."

Spring/Summer 1998

PRISON NEWS
Several books have been published
this year that acknowledge and celebrate
prison writers and literature. Each
publication stresses the importanie of
inmate expression and the role it plays
in educating those within as well as
outside prison walls.

JailhoU8e Journalism: The Fourth
Estate Behind Bars, written by James
McGrath Morris, recounts the historical
movement and modem day struggle of
inmates who report, write, and publish
their own newspapers and magazines in
American prisons. Morris emphasizes
the impact of prisoners publications on
correctional reform and the culture ofan
incarcerated community. The book also
details the stories of many of the most
prominent prisoner journalists. Copies
can be obtained through McFarland &
Company, Inc., Box 611, Jefferson, NC
28640.

conditions of confinement, and prison
labor. For more information, contact
Common Courage Press, Box 702,
Monroe, ME 04951.

The Federal Prison Guidebook, 1st.
edition, by Alan Ellis, includes
information designed to educate defense
attorneys and defendants on various
aspects of prison life in the Bureau of
Prisons system. It catalogues each
facility within the federal system and
describes the programs, policies, and
history for inmates. Ellis covers issues
such as vocational and educational
opportunities,
library
facilities,
counseling
services,
housing
accommodations, and visiting hours for
each facility.
For information on
ordering, contact the Law Offices ofAlan
Ellis, P.O. Box 2178, Sausalito, CA
94966-2178.

Prison Writing in 20th-Century
America, edited by H. Bruce Franklin,
contains stories, poems, and articles
collected from nearly 40 former and
current inmates in America's correctional
institutions and presents an insightful
history ofprisons over the last 100 years.
Writers include: Malcolm X, Mumia
Abu-Jamal, Assata Shakur, and Jack
London. The publisher is Penguin Group,
PenguinPutnarn, Inc., 375 Hudson Street,
New York, NY 10014.

The National Prison Project is a special
project ofthe 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 ACLUF:

The Ceiling ofAmerica: An Inside
Look at the U.S. Prison Industry, edited
by Daniel Burton-Rose and the editors
ofPrison Legal News, Dan Pens and Paul
Wright, compiles essays and articles from
the highly regarded prisoner publication,
Prison Legal News. The writings provide
informed critiques on various criminal
justice issues, including the correctional
industrial complex, public and media
perceptions of crime and prisoners,

1875 Connecticut Ave., NW, Ste. 410
Washington, DC 20009
Phone: (202) 234-41BO
FAX:
(202) 234-4890
e-mail: gotschnpp@ao1.com

(NO COLLECT CALLS)
NPP Director:
Journal Editor:
Editorial Assistants:
Regular Contributor:

Elizabeth Alexander
Jenni Gainsborough
KaraGotsch
Laura Kamoie
John Boston

THE NATIONAL PRISON· PROJECT Journal-- page 35

Spring/Summer 1998

Highlights from the National Prison Project Docket
Onishea v. Herring (Alabama): This
class action challenges the segregation
and exclusion of all HIV-positive
prisoners from all prison programs and
activities available to other prisoners.
Following trial, the district court ruled
against plaintiffs on every issue. The
Eleventh Circuit Court of Appeals
reversed and remanded for trial before a
new judge. The court subsequently
granted rehearing before all the judges of
that circuit, which is scheduled for
argument on October 20, 1998.
Amatel v. Reno (D.C.):

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 held
the statute unconstitutional and granted a
permanent injunction against its
enforcement by the Bureau of Prisons.
The defendants appealed to the District
ofColumbia Court of Appeals. By a 2-1

vote, the court, in August 1998, reversed Hadix v. Johnson (Michigan): This
and remanded for further proceedings.
cases involves medical and mental health
care and access to courts at the State
Gomez v. Vernon (Idaho): This case Prison of Southern Michigan. In one of
challenges retaliation and the denial of the most important victories against
access to courts. Plaintiffs completed an PLRA, the NPP won a decision in May
eight-week trial on the retaliation claim 1998 from the Sixth Circuit Court of
in March of 1998 and are awaiting a Appeals holding that courts were not to
decision.
apply the PLRA "automatic stay"
(suspension of relief) provision except
Amos v. Maryland Dept of Public under ordinary equitable principles; any
Safety and Correctional Services other statutory construction would be
(Maryland): NPP represents several unconstitutional.
wheelchair-bound plaintiffs at the
Roxbury Correctional Institution in their Cody v. Hillard (South Dakota): This
damages actions against the State for its class action challenges medical and
failure to accommodate their disabilities mental health care, physical plant and
in the design and operation of the sanitation, shop safety, legal access, and
facility. The Fourth Circuit Court of overcrowding at the South Dakota State
Appeals had ordered the case dismissed. Penitentiary. A consent decree was
In June 1998, the Supreme Court granted entered in 1985. In 1996, the defendants
plaintiffs' writ of certiorari and vacated filed a motion to vacate the consent
the decision dismissing the case. The decree, which the district court granted
plaintiffs have now rebriefed the issue in in April 1997. The Eighth Circuit
the court of appeals.
reversed and remanded in March 1998.

..

National Prison Project Publications
ORDERING

INFORMATION:

NPP publications are available
prepaid. Send check or money order
to: NPP, 1875 Connecticut Ave., NW,
#410, Washington, DC 20009, (202)
234-4830...

The National Prison Project Journal,
a quarterly publication highlighting
prison litigation and other prison
issues. $30 annual subscription ($2
for prisoners).

The Prisoners' Assistance Directory,
lists local, state, national,
international
organizations
provide services to prisoners,
offenders, and their families.

and
that
ex11 th

edition, July 1996. (12th edition,
1998, forthcoming late fall 1998.)
$30.

1998 AIDS in Prison Bibliography,
revised and greatly expanded. Lists
resources on AIDS in prison available
from the NPP and other sources,
including correctional policies on
AIDS, educational materials, medical
and legal articles, and recent AIDS
studies. $10.

AIDS in Prison: The Facts for
Inmates and Officers, is an
educational tool for prisoners,
corrections staff, and AIDS service

providers.
The booklet answers
questions concerning the meaning of
AIDS, available medical treatment,
and legal rights and responsibilities.
Available in English and Spanish.
Single copies free; call for bulk order
pricing.

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

Spring/Summer 1998

THE NATIONAL PRISON PROJECT Journal -- page 36

ATTENTION -- RENEWAL NOTICE
Your subscription to the National Prison Project JOURNAL has expired if your customer ill number (located
at the top right corner of the address l~bel below) ends with the~tters WI97, SP98, or SU98. Renew
today so you won't miss an issue of this important publication!

_ _ Yes, I want to subscribe to the JOURNAL for another year. Enclosed is my check for $30 ($2 for
prisoners).
_ _ The address on the label b.elow is correct.
My name or address has changed to:
Name:
Address:

City:

State:

Zip:

_

Please return this entire page. Thanks for your continued interest!

National Prison Project
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW
Suite 410
Washington,
DC 20009
...

Non-Profit
U S Postage Paid
Permit No. 1228
Merrifield, VA