THE
NATIONAL
PRISON
PROJECT
A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 13, No.1 & 2, Spring/Summer 1999' ISSN 1076-769X

Congressman Challenges P.rivatization Trend
Representative Ted Strickland
of Ohio's Sixth district introduced
legislation on March 4, 1999
prohibiting placement of federal
prisoners in private for-profit
correctional institutions and
denying grants to states and
localities that contract with
private facilities. At the time of
publication, Rep. Strickland's
Public Safety Act, H.R. 979, is
stalled at the subcommittee level.
The bill currently has 93 cosponsors; 68 Democrats and 25
Republicans.
Congressman Strickland's
interest in prison issues stems
from his professional background
and his state's tumultuous
experiences. Before entering the
House ofRepresentatives,
Strickland worked as a
psychologist for nine years at the
Southern Ohio Correctional
Facility in L~casville, Ohio.
During his first term in the House,
a devastating riot broke out at the
Lucasville prison. Strickland
went to Lucasville and spent
many hours consoling family
members of trapped correctional
officers. Then last year, the
Northeast Ohio Correctional
Center in Youngstown gained
national notoriety. A Department
of Justice report released in
November of 1998, cited the
inexperience and lack of training

of staff at the private Corrections
Corporation of America facility
and the resulting excessive use of
force by staff The report also
noted CCA's failure to recognize
its responsibilities as a
correctional service provider and
its reluctance to accept blame for
unconstitutional conditions of
confinement at its facility.
District of Columbia prisoners
transferred to the facility filed suit
against CCA. After two stabbing
deaths, several escapes and
medically-related deaths, CCA
settled the case and agreed to pay
$1.65 million in damages.
In a July 18, 1999 Washington
Post editorial, Rep. Strickland
called the United States' trend
toward prison privatization "... a
dangerous mistake." He asserted
that in our democratic society, the
deprivation of liberty is one of the
most powerful controls a state
exercises over its citizens, which
must be exercised lawfully and
humanely and free from
inappropriate pressures such as
. monetary rewards.
Rapidly increasing
incarceration rates caused by
mandatory sentencing policies
continue to worsen prison
overcrowding. For-profit
companies take advantage of the
predicament many states and the
federal government find

themselves in because of bad
criminal justice policies. They
build and operate correctional
institutions and benefit financially
by housing inmates transferred
from overcrowded public prisons.
In nine years, the number of
prisoners in private beds grew to
132,572 in 1998 from just under
11,000 in 1989.
As indicated in the proposed
Public Safety Act, the cost
conscious private prison industry
has little incentive to meet
constitutional standards,
encourage rehabilitation or
establish productive instructional
programming in a safe and secure
correctional institution. A
compC\ny's loyalty lies primarily
with its stockholders. As a
result, there have been serious
problems in several private
prisons. In a facility operated by
Wackenhut Corporation in New
Mexico, a riot resulted in several
injuries and extensive facility
damage. The riot occurred only a
few months after two attempted
cover-ups by supervisors of
correctional staff's excessive use
offorce and two inmate.stabbing
deaths. Last year, a juvenile
correctional fac;ility run by
another for-profit company in

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The National Prison Project JOURNAL

Tallulah, Louisiana was taken
over by the State because of
inhumane conditions. A Justice
Department investigation found
that the young inmates were
routinely beaten.
Some of the strongest
supporters of the Public Safety
Act include correctional officers'
unions and other coalitions.
Organizations like the American
Federation of State, County and
Municipal Employees, the
American Federation of
Government Employees, AFLCIO and the Corr.ections and
Criminal Justice Coalition became
active in the anti-privatization
movement because of concerns
over the loss of public jobs to the
non-unionized, lower paid private
sector. Private prisons' "costcutting" leads to the hiring of
inexperienced and poorly trained
staff; a major cause of the many
private prison incidents and
disturbances across the country.
Phil Glover, President of AFGE's
Council of Prison Locals, points
out how cutbacks not only hurt
the quality of staff, but affect all
conditions of confinement. "To
reduce costs, the private prison
must cut staff, food, programs,
and other items which in a prison
setting are detrimental to safely
housing convicted felons."
Gerald W. McEntee, President of
AFSCME, agrees: "The perils of
prison privatization are clear -violence, escapes, and incidents of
prisoner abuse are well-known

On June 20, 1999, Governor
George W. Bush of Texas vetoed
a major civil rights bill. The
Texas Legislature passed the bill
to reform the way lawyers are
appointed to represent poor
people who are accused of a
crime.
The system that Texas has
used for decades has been widely
criticized by national press,
defense lawyers, and civil liberties
groups. It left elected state
judges in charge of spending
county money on lawyers who, in
turn, influence the amount of time
that judges must spend to

and should not be tolerated. The

adjudicate allegations against

members of Congress who are
sponsoring this legislation should
be commended for recognizing

indigent defendants. For example,
some judges limit all fees in first
degree felony cases to as low as

that government -- and only
government -- should have the
awesome responsibility of
incarcerating criminals and for
keeping society safe from these
individuals."
The decision to place an
offender in prison, and the
decision to impose a particular
length of sentence, are critical
social policy decisions that should
not be contaminated by profit
considerations. Initiatives to end
for-profit influences and restore
government control over our
criminal justice system should be
applauded.

Bush Vetoes
Legislation for Indigent
Defendants

Spring/Summer 1999

$350 per case. This effectively
requires lawyers, who perform all
necessary investigation, motion
practice, and trial preparation, to
work for free. Some 25% of
Texas judges who responded to a
recent State Bar survey admitted
that they have considered whether
a lawyer has contributed to their
election campaign in deciding
who to appoint to represent an
indigent defendant. Both of these
common features of the present
system can result in pressure on
indigent defendants to plead guilty
without thorough consideration of
the risks and benefits of using
Texas's Code of Criminal
Procedure to test the charges.

I

NPP JOURNAL

By Jerry Wesevich
The National Prison Project is a special
project of the ACLU Foundation which
seeks to strengthen and protect the rights of
adult and juvenile offenders; to improve
overall conditions in correctional facilities;
and to develop alternatives to incarceration.
The reprinting ofJOURNAL material
is encouraged with the stipulation that the
National Prison ProjectJOURNAL be
credited as the source of the material, and
that a copy of the reprint be sent to the
editor.
Subscriptions to theJOURNAL are
$30 ($2 for prisoners) prepaid by check or
money order.
The JOURNAL is publjshed quarterly
by the National Prison Project of the
ACLUF:
1875 Connecticut Ave., NW, Ste. 410
Washington, DC 20009
Phone:(202) 234-4830
FAX:(202) 234-4890
E-mail:gotschnpp@aol.com

(NO COLLECT CALLS PLEASE)
NPP Director: Elizabeth Alexander
Editor: Kara Gotsch
Regular Contributor: John Boston

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The National Prison ProjectJOURNAL

While the bill is not an instant
comprehensive overhaul, it is a
major first step in that direction.
It addresses every major
deficiency in Texas's present
indigent defense structure as
follows: (1) The counties whom
pay for indigent defense must
formally adopt any method that
they choose for meeting the
indigent defense responsibilities
that are delegated to them by the
State. By formal action of each
county commissioners' court,
counties may keep judges in
charge of appointing counsel, they
may choose a local or regional
public defender system, or they
may develop their own
administrative system for
appointing counsel. The state's
current patchwork of laws that
allow counties varying authority
over what kinds of public
defender systems they may adopt
is abolished. Any method chosen
by the counties must be publicized
and open to any attorney who
meets the county's published
requirements. (2) Indigent
defendants cannot be jailed for
more than 20 days after they
request counsel, and they must be
told how to.request counsel.
Present law requires appointment
"as soon as possible" after a
request for counsel is made by a
defendant found to be indigent,
but it sets no outside limit, nor
does it require defendants to be
told how to request counsel under
each county's unique system.

cases. (3) The state will begin
gathering comprehensive data on
the quality of indigent defense in
each one of Texas's 254 counties
so that all can learn from those
with effective systems.
The bill culminates several
years of effort by Senator Rodney
Ellis (D-Houston), who has
fought for reform with a major
indigent defense bill each
legislative session since 1993.
NPP counsel consulted with Sen.
Ellis's current and former staff as
the bill was drafted, and helped
distill the key ideas from Sen.
Ellis's previous efforts. NPP staff
also explored the shape of
appropriate reform with local
judges, defense counsel,
professors, pretrial services
officers, and civil libertarians.
Finally, NPP staff helped form a
coalition to promote the
legislation that included
University of Texas law professor
Raoul Schonemann, Texas
Appleseed Center Executive
Director Annette LoVoi, and
Texas Criminal Defense Lawyers'
Assn. counsel Keith Hampton.
Despite these efforts, as
quoted by Nat Hentoff's July 3
editorial in The Washington Post,
Gov. Bush still believes, "Judges
are better able to assess the
quality of legal representation."
Hentoff criticizes Bush's veto as
".. .indifference to, or ignorance of
a fundamental constitutional
right."

Consequently, in some

Jerry Wesevich is a staffattorney at
NPP.

jurisdictions people wait in jail up
to four months before counsel is
first appointed to look into their
3

Spring/Summer 1999

Recent Publications on
Custodial Sexual
Misconduct
By Joanna SchwartzI and
Giovanna Shay2
In 1991, the ACLUNational
Prison Project (NPP)
Bibliography ofMaterials on
Women in Prison contained three
items in the section entitled
"Rape/Sexual Assault." In the
1999 update, NPP plans to
include at least five times that
number. Although NPP
anticipates expansion of all
sections of its forthcoming
Bibliography on Incarcerated
Women, the proliferation of
literature on sexual misconduct
against incarcerated women is
particularly noteworthy.
Successful civil rights cases, 3
criminal prosecutions, 4
investigative reports by human
rights organizations, S and
increasing popular media
attention6 have contributed to
growing awareness of the
problem of sexual misconduct.
This Note describes some of the
most important publications about
custodial sexual abuse of this
decade.
In 1996, Human Rights Watch
released its report All Too
Familiar: Sexual Abuse of
Women in US. State Prisons.
The report described sexual
misconduct in Califorriia, the

District of Columbia, Georgia,
Illinois, Michigan, and New York.
At the time of the report, most of
these jurisdictions already had

The National Prison Project JOURNAL

faced litigation addressing
custodial sexual misconduct. 7
"Sexual misconduct is often so
entrenched," Human Rights
Watch explained, "that, in those
correctional systems where class
action suits have not yet occurred
. . . such abuse is stilI largely an
invisible problem ...,,8 All Too
Familiar focused popular media
attention on public documented
examples of the abuses behind
prison walls. 9
Two years later, Human
Rights Watch followed All Too
Familiar with a special report on
retaliation against women who
had complained of abuse in
Michigan state prisons. In
Nowhere to Hide: Retaliation
Against Women in Michigan
State Prisons, Human Rights
Watch documented retaliation
against the plaintiffs in a lawsuit
alleging sexual misconduct jointly
prosecuted by private attorneys
and the Department of Justice. 10
Human Rights Watch reported:
"women believed they were being
sent a clear message by the guards
and the corrections department . .
any attempt to protect
themselves from sexual abuse by
reporting it would result in
punitive 'actions by guards. "n
In response to these reports,
U.N. Special Rapporteur on
Violence Against Women,
Radhika Coomaraswamy, toured
the US. in June, 1998, to
investigate sexual misconduct
against female prisoners. The
Special Rapporteur presented her
report to the UN. Human Rights
Commission in March, 1999. She
concluded that, "it is clear that

4

sexual misconduct by male
corrections officers against
women inmates is widespread ,,12
In March, 1999, Amnesty
International released another
major report entitled Not Part of
My Sentence: Violations ofthe
Human Rights of Women in
Custody. Not Part pfMy
Sentence documented sexual
misconduct in nineteen US.
jurisdictions: Alabama, Arizona,
California, the District of
Columbia, Florida, Idaho, Illinois,
Maryland, Massachusetts,
Michigan, New Hampshire, New
York, Ohio, Texas, Virginia,
Washington, West Virginia,
Wyoming, and the Federal Bureau
of Prisons. Amnesty concluded
that many women in US. prisons
and jails are subjected to "sexually
offensive language; male staff
touching inmates' breasts and
genitals when conducting
searches; male staff watching
inmates while they are naked, and
rape. ,,13 The report further
concluded: "contrary to
international standards, prisons
and jails in the USA employ men
to guard women and place
relatively few restrictions On the
duties of male staff As a
consequence, much of the
touching and viewing of their
bodies by staff that women
experience as shocking and
humiliating is permitted by law. ,,14
Like the earlier Human Rights
Watch report, Not Part ofMy
Sentence received significant
domestic press attention. IS
In recent years, increasing
numbers of state legislatures have
responded to reports of sexual

Spring/Summer 1999

abuse by criminalizing
"consensual" sexual relations
between inmates and corrections
staff In 1998, Brenda Smith
surveyed state criminal laws
sanctioning custodial misconduct
in An End to Silence: Women
Prisoners' Handbook on
Identifying and Addressing
Sexual Misconduct. The survey
indicated that thirty-five states
and the District of Columbia
provided such criminal
sanctions. 16 In the forthcoming
second edition of the manual,
additional states including
Montana,17 Tennessee,18
Virginia,19 and West Virginia20
will join that list.
A few U.S. lawmakers also
have attempted to address
custodial sexual abuse. Last year,
Congresswoman Eleanor Holmes
Norton commissioned a General
Accounting Office (GAO) study
on problems facing women in
prison, including sexual abuse. 21
Released in July, 1999, the first
installment of a two-part report
addressed sexual misconduct in
four correctional systems: the
federal Bureau ofPrisons,
California, Texas, and the District
of Columbia.22 "Staff sexual
misconduct occurs," the report
stated, "although the full extent is
unknown [due to inadequate
reporting mechanisms]."23 In fact,
the GAO noted that, "[n]one of
the four jurisdictions we studied
had readily available,
comprehensive data or reports on
the number, nature, and outcomes
of staff-on-inmate sexual
misconduct allegations. ,,24 It
concluded that, "[t]he systemic

The National Prison Project JOURNAL

absence of such data or reports
makes it difficult . . . to effectively
address staff sexual misconduct
issues." 2S
Recent commentators have
documented not only
incarcerated women's experiences
of abuse while in prison, but also
their prior life experiences of
physical and sexual abuse. 26 In
April, 1999, the Bureau of Justice
Statistics released findings on
Prior Abuse Reported by Inmates
and Probationers. 27 The BJS
found that 57.2% of women state
prison inmates had suffered
physical or sexual abuse prior to
admission, as compared to 16. 1%
of male state inmates. 28
Advocates have relied on such
findings to challenge cross-gender
search and surveillance
techniques, arguing that these
practices cause undue distress to
incarcerated women who have
survived prior abuse. 29
The AeLU National Prison Project
currently is updating its Bibliography
on Incarcerated Women. Please send
additional materials for inclusion to the
attention ofGiovanna Shay, Soros
Justice Fellow Attorney, AeLU
National Prison Project.
I. J.D. expected lViay, 2000, Yale Law School
2. Soros Justice Fellow Attorney, ACLU National
Prison Project. This article was supported by a grant
from the Open Society Institute's Center on Crime,
Communities & Culture's Soros Justice Fellowship
Program
3. See, e.g., U.S. v. Arizona, Settlement Agreement
in Civil Action NO. 97-476-PHX-ROS (D. Ariz.
March 11, 1999) (Arizona); Lucas v. White, Private
Settlement Agreement in Civil Action No. 96-02905
(N.D. Ca. February, 1998XFederal Bureau of
Prisons); Women Prisoners v. District ofColumbia,
877 F. Supp. 634 (D.D.C. 1994), vacated in part,
modified in part, 899 F. Supp. 6S9, remanded, 93
F.3d 910 (D.C. CiT. 1996), cert. denied, 117 S. Ct.
1552 (1997XDistrict ofColumbia); Cason v.
Seckinger, Consent Order filed in Civil Action No.

5

84-313-1-MAC (M.D. Ga. November 23,
1994XGeorgia).
4. See, e.g., P. Coyle & M. Perlstein, N.D. Cops
Angry that Deputies Didn't Tell Them ofRape
Case, NEW ORLEANS TIMES-PICAYUNE, March 6,
1999, at B2; Officer Accused ofAssault,
CORRECTIONS DIGEST, April 16, 1999, at 7-8;
Former Sheriffs Deputy Charged, CORRECTIONS
DIGEST, April 9, 1999, at 8; Consensual Sex Still a
Crime, CORRECTIONS DIGEST, February 26, 1999, at
6-7; Bob France, Ex-Jailer Sentenced, Declared
Sexual Predator, THE NEWS-JOURNAL, September
23, 1998, at 3C.
5. See infra.

Spring/Summer 1999
15. Barbara Vobejda,Abuse ofFemale Prisoners in
U.S. Is Routine, Rights Report Says, WASH. POST,
March 4, 1999, at All.
16. BRENDA V. SMITH, AN END TO SILENCE:
WOMEN PRISONERS' HANDBOOK ON IDENTIFYING
AND ADDRESSING SEXUAL MISCONDUCT 46-65
(1998).
17. Mont. Code Section 46-18-219, as amended by
Mt. S.B. NO. 32, March 16, 1999.
18. Tenn. Code Section 41-21-241.
19. Va. Code Section 18-2-64.2.
20. W. Va. Code Section 25-1-22.

6. See, e.g., DATELINE, HONOR GUARD? WOMEN
21. Press Release, Norton Gets GAO to Study
WHO SUFFER SEXUAL ABUSE AT THE HANDS OF
'Sexual Abuse and Sexual Harassment ofFemale
GUARDS WHILE IN PRISON (November 1,1998);
Prisoners, issued by Congresswoman Eleanor
Nina Siegal, Locked Up in America: Slaves to the
Holmes Norton, December 10, 1998.
System, SALON MAGAZINE,
http://wwww.salonmagazine.com/mwtlfeature/1998/
22. U.S. GENERAL ACCOUNTING OFFlCE, WOMEN IN
09/cov_0Ifeature4.htm; Nina Siegal, Women in
PRISON: SEXUAL MISCONDUCT BY CORRECTIONAL
Prison, Ms., October 26, 1998, at 65; Bobbie Stein,
STAFF, GAO/GGD-99-104, at 1 (1999).
Life in Prison/Sexual Abuse: Guards Let Rapists
into Women's Cells, THE PROGRESSIVE, July 1996,
23.Id. at 7.
at 23.
7. See ALL Too FAMILIAR at 62, 110, 127,224.

24.Id. at 16.

8. ALL Too FAMILIAR at 5.

25.Id.

9. See, e.g., Steven A Holmes, With More Women
in Prison, Sexual Abuse by Guards Becomes a
Troubling Trend, N.Y. TIMES, December 27, 1996,
at AI; Pierre Thomas, Growing Female Inmate
Population Facing Greater Assault Risk, Study
Says, WASH. POST, December 8,1996, at AI8.

26. See, e.g., Effective Management ofFemale Jail
Detainees with Histories ofPhysical and Sexual
Abuse, AMERICAN JAILS 50 (May/June 1998).

10. Also in 1998, the Women's Institute for
Leadership Development (WILD) for H\lman Rights
released HUMAN RIGHTS FOR WOMEN IN U.S.
CUSTODY, which addressed human rights violations
against incarcerated women, including sex'Ual
misconduct.
II. NOWHERE TO HIDE at 7.
12. Report ofthe Mission to the United States af
America on the Issue ofViolence Against Women
in State and Federal Prisons, Commission on
Human Rights, 55th Sess., Agenda Item 12 (a) at
15, U.N. Doc. E/CN.4/1999/68/Add.2 (1999). See
also Elizabeth Olson, U.N. Panel is Told ofRights
Violations at U.S. Women's Prisons, N.Y. TIMES,
March 31, 1999.atAI6.

13. NOT PART OF My SENTENCE at 38. In April,
1999, Amnesty also released a report entitled
UNITED STATES OF AMERICA: THE FINDINGS OF A
VISIT TO VALLEY STATE PRISON FOR WOMEN,
CALIFORNIA. The report described problems
including sexual abuse, stating that "inmates
reported that it was common for some male officers
to watch them dressing and undressing ... [and that I
several guards were being investigated for seX'ual
misconduct, including an alleged rape." FINDINGS
OF AVISIT TO VALLEY STATE PRISON at 2.
14. Id., 39.

27. CAROLINE WOLF HARLOW, BUREAU OF JUSTICE
STATISTICS SELECTED FINDINGS: PRIOR ABUSE
REPORTED BY INMATES AND PROBATIONERS (April
1999).
28. [d., 1.
29. See, e.g., Michael P. Mayko, Prison Pat-Down
Put Down: Inmates Tell Court Searches Recall
Traumatic Events, CONNECTICUT POST, March 29,
1999, at AI. See also Jordan v. Gardner, 986 F.2d
1521,1525-26 (9th CiT. 1993).

HIV/AIDS Support
Groups Benefit
Inmates
By Jackie Walker
According to the 1996-1997
Update: HIVIAIDS, STDs, and
TB in Correctional Facilities,
67% of state and federal prisons
provided mV1AIDS support
groups coordinated by local

The National Prison Project JOURNAL

service organizations. Sixty-three
percent of prisons offered support
programing led by correctional
staff and 33% had groups led by
peer educators. In this article, a
support group facilitated by
correctional staff and another led
by an AIDS service organization
~re profiled.

u. S. Disciplinary Barracks at
Ft. Leavenworth
Between 1994 and 1998, an
mY/AIDS group at the U.S.
Disciplinary Barracks at Ft.
Leavenworth provided prisoners
living with lllV/AIDS, a range of
options for support and
education. A support group
facilitated by Martha O'Neal, a
social worker with Munson Army
Hospital, and a staff nurse began
as a outgrowth of O'Neal's
individual counseling sessions
with three prisoners living with
mY/AIDs.
The three initial prisonerparticipants then recruited other
prisoners into the group.
Although staffed by O'Neal, the
prisoners had substantial input
into the issues to be addressed by
the program. Prisoners discussed
practical issues including inmate
and correctional officer relations
and medication delivery problems.
Some prisoners specialized in
researching mY/AIDS treatment
issues and shared their results
with group members. Their
expertise in mY/AIDS treatment
issues became so well known that
some prisoners living with
mY/AIDS would seek advice
from support group members
instead of attending meetings.
O'Neal described the group in this
6

way, "We used the empowerment
approach, in which we were
facilitating these inmates as fully
responsible for themselves and
their knowledge. "
Since many prisoners in the
group had release dates within
five or six years, discharge
planning became an integral part
of group discussions. To give
prisoners a sense of the process,
O'Neal often asked prisoners with
upcoming release dates to discuss
their discharge plan with the
group members. A typical plan
covered issues on access to
medication, employment or
benefits, medical care, and partner
notification. If a prisoner was
being released locally, Ryan White
representatives were brought in to
help with the discharge plan.
O'Neal explained, "In this way the
process became more concrete
and less frightening for everyone."
Another benefit of the support
group was its impact on the health
of its members. During the
program all but one participant
received combination therapy with
a protease inhibitor. Of those on
combination therapy, all but one
maintained undetectable viral
loads for well over a year. This
success was attributed, in part, to
support group members
encouraging each other to take
their medications, monitor their
diets, and exercise regularly.
Over the course of the
support group's existence, O'Neal
was able to coordinate a range of
activities: bringing in drug
company representatives and
arranging for support group
members to co-present on

Spring/Summer1999

HIY/AIDS issues for mental
health staff She also showed and
facilitated discussions on films like
Philadelphia and The Band
Played On. O'Neal offers the
following advice to others
interested in starting support
groups: "First, recognize the best
resource is your inmates. So look
for leadership and the need among
them. Second, always maintain
participation on a voluntary basis.
Third, maximize your access to
good educational materials."
Members of the AIDS/lllY
support group, which ended in
1998, now participate in a
prisoner led self-growth group.

District of Columbia Jail
During Willie Byrd's
incarceration at the Correctional
Treatment Facility in Washington,
D.C., the support group for
prisoners living with mY/AIDS
first began. The group was
founded in 1995 by two prisoners
living with mY/AIDS, Cochise
Robertson-El and the late
Rosalind Moore-Bey. Now, an
Outreach Advocate with the my
Community Coalition (HCC),
Byrd reflects, "Back then, I didn't
make it known that I was mypositive." During his
incarceration, he guarded his
health status so closely that
Robertson never knew.he was
HIY-positive. He did not learn of
Byrd's status until they both were
released and working at HCC.
These days Byrd co-facilitates
a support group for prisoners
living with mY/AIDS with the
help of a mental health nurse and
a discharge planner from Family
Medical Counseling Services at

The National Prison Project JOURNAL

the District of Columbia Jail. The
strongest aspect of the program
includes the retelling of his own
story of moving from invisibility
to acceptance and empowerment.
It is a story he regularly shares
with both prisoners and members
of the general community.
Attendance at support group
has ranged from 16 to 32 men.
On a weekly basis an average of
23 men attend. Attendance in the
group is voluntary and topics
range from nutrition, to pressing
issues like violations of
confidentiality. Many of the
prisoners who had stopped taking
their medications prior to
attending the support group now
engage in a more active role in
their healthcare.
Attendance in the support
group also has other benefits.
The discharge planner from
Family Medical Counseling
Services works with prisoners
with upcoming release dates to

facilitate the transition into the
community. The support group
also gives prisoners a forum to
address institutional problems. In
one case, an inmate informed
Byrd of the verbal harassment he
endured and the confidentiality
violations committed by a
correctional officer. Grievances
were later filed regarding this
incident. Since then, Byrd has
heard fewer complaints regarding
violations of confidentiality.
Some prisoners who hear
about the group often wait weeks
before coming. Byrd believes
inmates wait because of the
continuing stigma associated with
HIV/AIDS and the lack of
support they receive on their cell
blocks. He says of these
prisoners, "Until they come to the
group many of them are living the
life of a recluse." In many
instances, Byrd says, the
latecomers are sorry they had not
attended meetings earlier and do

Spring/Summer 1999 .

become active participants.
Jackie Walker is the AIDS in Prison
Project Coordinator at NPP.

Prison News
Voices From Inside, an hour
long video documentary produced
and directed by Karina Epperlein
is now available from New Day
Films as an educational resource.
The film chronicles the
experiences of four incarcerated
women who create poetry and
music for a performance behind
bars. Epperlein also highlights the
women's relationships with their
children and exposes the difficulty
of separation for mother and
child.
Information about the video
can be obtained by contacting:
Karina Epperlein at Transit 2000,
641 Euclid Avenue, Berkeley, CA
94708 or by calling 510-559-8892.

Case Law Report: Highlights of Most Important Cases
By John Boston

\

I
!

J

i

i
I

l

PLRA--Exhaustion of
Administrative RemedieslRes
Judicata and Collateral
Estoppel/Access to Courts-Punishment and Retaliation
White v. McGinnis, 131 F.3d
593 (6th Cir. 1997). 'the PLRA
exhaustion requirement applies to
a case filed after the statute was
passed even though it concerns

7

events that pre-dated it. The
plaintiff had filed a grievance but
failed to appeal it. He did not
allege that he was precluded from
exhausting his remedies at this
point. Dismissal for failure to
exhaust should be without
prejudice.
A claim for retaliation for a
lawsuit is not barred by the
judgment in the earlier lawsuit.
RehabilitationlProcedural Due
ProcesslEx Post Facto

Clause/Injunctive RelieflEqual
ProtectionlHabeas Corpus
Neal v. Shimoda, 131 F.3d
818 (9th Cir. 1977). A state
statute provides that a "sex
offender" is anyone who has been
convicted at any time of any sex
offense or who engaged in sexual
misconduct during the, course of
an offense, and that every sex
offender in prison must go
through a treatment program to
become eligible for parole. The
program requires admitting the

The National Prison ProjectJOURNAL

offenses and taking responsibility
for the behavior.
The district court rejected the
claim that the definition of sex
offender is over inclusive for
equal protection purposes, and
the argument is abandoned on
appeal.
A challenge to the sex
offender statute is not barred by
Heck and Preiser because, unlike
a challenge to the procedures
used in denying parole to a
prisoner, an order making them
eligible for parole does not
guarantee their earlier release and
does not change the standards for
parole release.
The plaintiffs' claim under the
Ex Post Facto Clause is ripe
because the state has taken
"concrete action" that will bar
their parole eligibility, even
though they would not yet be
eligible even without the statute.
There is no benefit to either party
in delaying decision. Their Ex
Post Facto claim is rejected.
Under Kansas v. Hendricks, the
treatment requirement is
treatment and not punishment, as
evidenced by the fact that
prisoners can be required to
submit.to treatment for conduct
of which they were not convicted.
(There is a lengthy dissent on this
point.)
The sex offender program
implicates a liberty interest. The
stigmatizing effect ,of labeling as a
sex offender is analogous to the
effect of commitment to a mental
hospital, held in Vitek v. Jones to
require due process protections.
Such labeling is "atypical and
significant" under Sandin. The

8

fact that the treatment in Vitek
was mandatory and this treatment
is not does not matter, since
refusal makes the prisoner
completely ineligible for parole,
creating a,"practical and
inevitable coercive effect" that is
"functionally equivalent" to the
mandated treatment in Vitek.
The same conclusion follows
from Kentucky Dept. of
Corrections v. Thompson, though
the court notes that the case's
analysis has probably been
disapproved by Sandin. Here it is
mandatory that the labeled inmate
successfully complete the
treatment program in order to
become parole eligible; this
elimination of discretion
constitutes "mandatory language"
applicable to the "substantive
predicate" of sex offender
labeling. The court then
reiterates that the liberty interest
at stake is similar to that in Vitek.
(This is incorrect reasoning
supporting a correct conclusion:
if state law creates a liberty
interest under pre-Sandin liberty
interest analysis, it is because the
substantive predicate of sex
offender labeling follows from the
mandatory language defining who
can be ~o labeled.)
The process due before sex
offender labeling is that
prescribed by Wolf/V.
McDonnell. That means a
prisoner actually convicted of a
sex crime in an adversarial
proceeding (including plea
bargain) has already received due
process. However, those who are
merely indicted for such a crime
have not, and the opportunity to

Spring/Summer 1999

write a letter protesting the
classification does not satisfy due
process requirements.
The plaintiff who was not
convicted of a sex crime may not
recover damages because the
defendants are entitled to
qualified immunity, but he is
entitled to an injunction to
remove the classification unless
and until he receives a Wolff
hearing.
At 832: "Requiring inmates
labeled as sex offenders to admit
their offenses and take
responsibility for their sexual
behaviors as part of the treatment
program does not violate the
inmates' privilege against selfincrimination." One plaintiff had
been convicted of rape, has
expressed no intention to
collaterally attack the conviction,
and is therefore protected by the
Double Jeopardy Clause from
further prosecution. The other
plaintiff entered into a plea
agreement barring the state from
prosecuting him in the future for
his alleged sex offenses, and has
given no indication he will ever
seek to withdraw his plea. The
contract and consent for the
treatment program warned that
information about other sex
offenses need not be provided but
that if it was, it would be reported
to law enforcement authorities;
such disclosures would be
voluntary and not compelled.
The sex offender treatment
serves important and laudable
goals and does not violate the
Eighth Amendment.

Procedural Due Process--

The National Prison ProjectJOURNAL

Administrative
Segregation/Habeas Corpus
Brown v. Plaut, 131 F.3d 163
(D.C.Cir. 1997), cert. denied,
118 S.Ct. 2346 (1998). The
plaintiffs challenge to his
placement in administrative
segregation need not be brought
via habeas. Edwards v. Balisok
applies only to cases involving
loss of good time credits, not
placement in segregation. HeclCs
rationale for the favorabletermination requirement is not
applicable here. At 168:
Brown's action may not
properly be analogized to a
suit for malicious prosecution,
as the decision he is
challenging bears little
resemblance to a judicial
proceeding. Decisions to
place inmates in
administrative segregation are
subject to greatly relaxed
procedural requirements, and
the Court has recognized that
they are often made fairly
informally, on the basis of
"subjective" and "intuitive"
considerations. Indeed, the
administrative proceeding
before the Housing Board
entailed<.so little process that
it would almost certainly be
accorded no collateral
estoppel effect. One of the
Court's principal concerns in
Heck was to limit collateral
attacks on final judgments;
but a proceeding that is
incapable of giving rise to

collateral estoppel hardly
needs to be insulated from
collateral attack.
If this plaintiff were required to

9

proceed via habeas, so would
prisoners with complaints about
other conditions of confinement,
extending Preiser far beyond the
"core" of habeas corpus.
The court explicitly
acknowledges (168 n. 5) a
conflict with the Seventh Circuit
on this point; as noted,the
"Supreme Court denied review.
The court notes that
application of the Sandin atypical
and significant standard is
hampered by ambiguity about the
proper standard of comparison;
the District argued that because
the Attorney General can put
D.C. prisoners anywhere, the
proper standard was the most
rigorous prison in the country. It
notes other difficult questions in
applying Sandin and moves on to
address--but not actually decide-whether the plaintiff received the
process due. Even though he was
segregated for assaulting an
officer, he did not establish that
his confinement was disciplinary
rather than administrative, so
Woljf does not apply. On
remand, the court should
determine under Helms whether
the plaintiff received notice that
his appearance before the
Housing Board was the only
opportunity that he would receive
to contest his segregation, and it
is not clear that he had any notice
that the alleged assault should be
addressed at that hearing. (At
171 n. 9: Helms does not require
advance notice, merely "some

Spring/Summer 1999

Brown was not provided an
accurate picture of what was at
stake in the hearing, then he was
not given his due process."

Procedural Due Process-Administrative Segregation
Neal v. District ofColumbia,
131 F.3d 172 (D.C.Cir. 1997).
The plaintiff asked to be put in
voluntary protective custody,
which was supposed to be
reviewed every 30 days under
prison regulations, but wasn't.
After six months he asked for a
review, was reclassified for
general population, but was not
moved. After another several
months he complained some more
but was not returned to GP for
another three months.
The district court erred in its
apparent assumption that if a state
law does not create a private
cause of action it cannot support
a § 1983 claim that it creates a
liberty interest.
The plaintiffs confinement
was not atypical and significant.
He was out of his cell for periods
ranging from five to nine hours
every day and eight hours a week
of outdoor exercise. At 175:
"His placement in administrative
segregation thus cost him
approximately half of his out-ofcell time, eliminated his access to
employment, and restricted his
access to prison facilities, all over
a six-month period." The
deprivation in Sandin was shorter
but more severe.

notice." Noncompliance with a
local rule requiring advance
notice does not violate the
Constitution.) At 172: "If

Federal Officials and
PrisonslWork Assignments
Bagola v. Kindt, 131 F.3d

The National Prison Project JOURNAL

632 (7th Cir. 1997). The plaintiff
lost a hand in a machine while
working at his Federal Prison
Industries job. Theoretically he
was not permitted in the area
where the machines were
installed, but he testified that he
was in fact required to do so.
There was evidence of failure to
remedy safety violations identified
by OSHA.
18 U.S.C. § 4126, the
workers' compensation program
for federal prisoners, does not
preclude his constitutional Bivens
claim. In those cases where an
alternative remedial scheme was
held pre-emptive, there was a
significant opportunity to expose
allegedly unconstitutional
conduct, and that opportunity is
absent from the compensation
scheme.
The claim is rejected on the
merits because the record
demonstrates no more than simple
negligence. The defendants took
measures that they thought were
reliable and effective and
continued to correspond with
OSHA and discuss further safety
measures rather than defying it.
There is no evidence that the
defendants knew the plaintiff was
required to work in an area that
he was theoretically supposed to
stay out of

Homosexuals and
TranssexualslMedical Care-Serious Medical NeedslMental
Health Care
Maggert v. Hanks, 131 F.3d
670 (7th Cir. 1997). The plaintiff
complained of failure to provide
estrogen therapy for gender
10

dysphoria. The prison's
psychiatrist refused to prescribe
estrogen because he did not
believe the plaintiff actually
suffered from gender dysphoria,
and the plaintiff (proceeding pro
se) failed to submit a contrary
affidavit by a qualified expert.
Having decided summary
judgment is appropriate on this
narrow ground, Judge Posner
continues to address the "broader
issue" of prisoners' gender
dysphoria litigation. Even though
"[s]omeone eager to undergo this
mutilation [transsexual surgery] is
plainly suffering from a profound
psychiatric disorder," prison
officials are not obliged to
provide the hormonal and surgical
procedures necessary to "cure" it.
They are protracted and
expensive. At 671: "A prison is
not required by the Eighth
Amendment to give a prisoner
medical care that is as good as he
would receive if he were a free
person, let alone an aftluent free
person. He is entitled only to
minimum care." At 672:
"Withholding from a prisoner an
esoteric medical treatment that
only the wealthy can afford does
not strike us as a form of cruel
and unusual punishment. [W]e
cannot see what is cruel about
refusing a benefit to a person who
could not have obtained the
benefit if he had refrained from
committing crimes." Id.:
It is not the cost per se that
drives this conclusion. For
life-threatening or crippling
conditions, Medicaid and
other public-aid, insurance,
and charity programs

Spring/Summer 1999

authorize treatments that
often exceed $100,000.
Gender dysphoria is not, at
least not yet, generally
considered a severe enough
condition to warrant
expensive treatment at the
expense of others. That being
so, making the treatment a
constitutional duty of prisons
would give prisoners a degree
of medical care that they
could not obtain if they
obeyed the law.
We conclude that, except in
special circumstances that we
do not at present foresee, the
Eighth Amendment does not
entitle a prison inmate to
curative treatment for his,
gender dysphoria.

Hazardous Conditions and
SubstanceslFederal Officials
and PrisonslWork Assignments
Rish v. Johnson, 131 F.3d
1092 (4th Cir. 1997). The
plaintiffs worked as orderlies in a
prison hospital and complained
that they were not provided with
adequate protective clothing (i.e.,
clothing consistent with universal
precautions) to protect them from
the risk of infectious disease.
The defendants are entitled to
qualified immunity. At 1095-96:
"In determining whether the legal
right is clearly established, it is
critically important to avoid
defining the applicable right at too
abstract a level." There is no case
law establishing that universal
precautions are constitutionally
required. There is insufficient
evidence to show that prison
officials knew that exposure to

The National Prison Project JOURNAL

Spring/Summer 1999

moved to dismiss or for summary make improper factual findings
judgment, supported by physician concerning state of mind even
affidavits, institutional policies,
though it acknowledged that
and medical records responsive to some of the plaintiffs had serious
the allegations in the complaint.
medical needs. It found that
They provided all of the plaintiffs' defendants had provided care, and
medical records to their attorneys. if defendants respond reasonably
They moved to stay further
to a risk, they are not deliberately
discovery pending decision of
indifferent. At 1240: "In the face
their motion, which was granted.
of medical records indicating that
The district court then granted
treatment was provided and
summary judgment on the ground physician affidavits indicating that
that 19 of 20 named plaintiffs
the care provided was adequate,
an inmate cannot create a
failed to demonstrate issues of
material fact concerning
question of fact by merely stating
deliberate indifference to their
that she did not feel she received
PLRA--Three Strikes, Filing
medical needs.
Fees,
adequate treatment. "
ScreeninglMagistrateslLaw
The district court did not
One named plaintiff
abuse its discretion in denying
complained of failure to follow
Libraries and Law Books
Hains v. Washington, 131
further discovery. The plaintiffs
the recommendations of outside
F.3d 1248 (7th Cir. 1997). The
did not move under Rule 56(f),
consultants, "but a prison doctor
prisoner plaintiff signed a limited
Fed.R.Civ.P., articulating their
remains free to exercise his or her
consent authorizing the
specific need for further discovery independent professional
magistrate judge to conduct any
(making this point only in a
judgment and an inmate is not
and all further proceedings; this
footnote in their district court
entitled to any particular course
authorized the magistrate judge to papers), and defendants produced of treatment. " (1240) Plaintiffs'
conduct PLRA screening and
a lot of material which plaintiffs
expert's opinion that a plaintiffs
dismiss without the opportunity
did not assert was inadequate. In record "raises questions about the
for de novo review by the district their opposition to a stay of
adequacy" of her care but does
judge.
discovery, they argued only a
not "express an opinion that the
generalized need for discovery.
care provided was grossly
WomenlMedical
At 1238: "The plaintiffs said that inadequate or resulted in any
Care/DiscoverylMootness/Sum they sought 'to discover critical
serious harm" does not raise a
mary Judgment/Class Actions-- facts, I • . . but they did not
factual issue sufficient to bar
Certification of ClasseslMedical articulate what particular critical
summary judgment. (1241)
facts they needed to develop or
Care--Standards of Liability-Another expert's opinion that
Deliberate Indifference
hoped to unveil." The district
based on a plaintiffs records
Dulany v. Carnahan, 132
court did not abuse its discretion
defendants' tuberculosis control is
F.3d 1234 (8th Cir. 1997). This
in concluding that the case was
not adequate, without stating a
case is an instructive model of
ripe for summary judgment on the basis for that conclusion, does not
how intelligent defendants
extensive record that was made.
raise a material factual issue. A
respond to a medical care case
Because the named plaintiffs
statement that a plaintiffs hearing
pled as a class action.
could not demonstrate deliberate
loss "mayor may not" have been
The 20 named plaintiffs
indifference, the district court
averted by an.altemative course
brought suit alleging inadequate
denied class certification.
of treatment raises no material
medical care. The defendants
The district court did not
factual issue where prison
the body fluids of other prisoners
posed a substantial risk of harm
to the inmates. An expert
affidavit indicating that universal
precautions have been the norm
for years where workers may be
exposed to body fluids is
insufficient, since it also indicates
that the risk of disease
transmission from the kind of
work the inmates were doing
(e.g., handling laundry, not being
exposed to puncture wounds or
splashing blood) is negligible.

11

The National Prison Project JOURNAL

officials tried but failed to treat
the problem.
Failure on some occasions to
provide necessary supplies does
not show deliberate indifference
where the record showed that
they "were generally ordered
properly." (1243)
At 1244:
. . .The district court did not
consider the affidavits of
inmates who are not named as
plaintiffs. We, too, decline to
consider the affidavits and
claims of persons who are not
listed as plaintiffs. Unless at
least one named plaintiff can
demonstrate an actual or
imminent injury in fact
stemming from the deliberate
indifference of prison officials,
we have no basis on which to
consider either system wide
problems or on which to grant
system wide relief Lewis v.
Casey.
At 1245:
. . . A number of individual
and isolated incidences [sic]
of medical malpractice or
negligence do not amount to
deliberate indifference without
some specific threat of harm
from a related system wide
deficiency, which is not
present in this case. We are
unable to find a single plaintiff
who has been injured or is
threatened with an imminent
threat of harm by a negligent
medical policy, procedure, or
treatment recklessly offered
or omitted by the defendants.

Procedural Due Process-Disciplinary
Proceedings/Summary
12

Spring/Summer 1999

plaintiff was denied access to the
law library on several occasions.
133 (2d Cir. 1998). The plaintiff He was denied a jury trial even
though he put a demand in his
was accused of breaking at least
complaint.
He did not consent to
50 windows and starting a large
fire in the course of a riot in the
a bench trial by consenting to
allow the magistrate judge to
yard. He won an Article 78
proceeding on the ground that the enter final judgment. His failure
hearing officer had not viewed
to assert his right at the trial itself
relevant videotapes. A second
did not constitute a waiver
hearing was judicially reversed on because he had made his request
the ground that the hearing officer abundantly clear earlier.
did not conduct it impartially and
The denial ofjury trial was
that the plaintiff was denied his
harmless error because the case
right to call witnesses (he was
was not triable. The plaintiff was
allowed one of three reql,lested).
excluded from the law library
because he failed to fill out the
He served 168 days in SHU and
request form completely. He also
120 days in keeplock.
failed to show actual injury; he
The district court erred in
said he had been forced to
finding that the plaintiffs
confinement was not atypical and withdraw several cases but
significant. It failed to consider
admitted that he did not try to
refile them. He failed to adduce
the length of the plaintiffs
any evidence of retaliation.
confinement (which it found of
The magistrate judge erred in
"little import"). It failed to
consider the distinctions between excluding an inmate witness's
testimony as cumulative, but the
administrative and disciplinary
error was harmless because some
segregation (concluding that the
existence of the former meant that of the testimony is hearsay (this
disciplinary segregation was not
seems wrong; he alleged a
atypical and significant).
conspiracy, and the witness
However, periodic review
overheard remarks by a member
differentiates them. The court
of the conspiracy).
reiterates its prior statements that
careful fact-finding is necessary to .IntakelMunicipalities
determine Sandin's applicability.
Henry v. County ofShasta,
The district court erred by
132 F.3d 512(9th Cir. 1997).
crediting the defendants' version
The plaintiff was arrested for
refusing to sign a traffic ticket and
of conditions in the SHU, which
insisting on being taken
the plaintiff disputed.
immediately before a magistrate,
as state law provides. When he
Law Libraries and Law
refused to sign papers at the jail,
Books/TriallEvidentiary
Questions
he was put in a urine-stained
McDonald v. Steward, 132
padded cell without his clothes.
F.3d 225 (5th Cir. 1998). The
The district court erred in

Judgment
Wright v. Coughlin, 132 F.3d

I

The National Prison Project JOURNAL

holding that there was no
evidence of a municipal policy.
Affidavits of two other persons
who said they had had similar
experiences involving a number of
county personnel support the
claim of policy. Post-event
evidence can support a finding of
municipal policy. In fact, it is
"highly probative" evidence when
it involves similar incidents that
took place after the plaintiff put
the county on notice of what
happened to him by suing.

Statutes of LirnitationsIPLRA-Three Strikes Provision
Lucien v. Jockisch, 133 F.3d
464 (7th Cir. 1998). The plaintiff
alleged that he was transferred in
retaliation for filing lawsuits. His
claim is not time-barred; he
alleged a pattern of transfers, and
the limitations period is measured
from the last of the transfers.
The district court ruled that
the plaintiff was barred from
proceeding IFP by the three
strikes provision. The complaint
was sent to the clerk's office
before the PLRA but was not
formally filed until after IFP
proceedings and therefore after
the PLRA'~ passage. The
plaintiffs PLRA liability for fees
is determined by the date of filing,
but for complaints as well as
appeals that straddle the PLRA's
passage in this way, the district
court should give the litigant an
opportunity to decide whether he
wishes to go forward. The
plaintiffs challenge to the three
strikes provision is therefore not
npe.

13

PLRA--Mental or Emotional
Injury/Hazardous Conditions
and Substances
Zehner v. Trigg, 133 F.3d 459
(7th Cir. 1997). The plaintiffs
complained of exposure to
asbestos but had no current
medical problems. Their claim is
barred by the "mental or
emotional injury" provision of the
PLRA.
The district court correctly
held that this provision is
constitutional because "it left the
courts with power to enforce
constitutional guarantees through
remedies other than damages. "
(461) The existence of qualified
and absolute immunities means
that damages are already
unavailable for some
constitutional violations.
Congress created the § 1983
remedy and it can take it away.
Section 5 of the Fourteenth
Amendment "grants Congress
broad power to determine how to
enforce those provisions, and the
courts are circumscribed in their
power to interfere." (462) The
district court held that there is a
point beyond which constitutional
remedies may nQt be restricted,
but here other remedies, such as
injunctive relief backed up with
contempt sanctions, exist and
save the statute from
unconstitutionality. At 462: "As
a legal conclusion, this point is
unassailable." Prisoners currently
being exposed to asbestos may
obtain injunctions. If these
plaintiffs develop asbestos-related
illnesses, they will then be able to
sue for damages.
The mental or emotional

Spring/Summer 1999

injury provision does not deny
equal protection. Prisoners are
not a suspect class. The statute
does not "burden" or "impinge
on" the fundamental right of court
access because it only limits the
relief available. Prisoners still
have what the Constitution
requires: "a reasonably adequate
opportunity to present claimed
violations of fundamental rights
to the courts." (463, quoting
Lewis v. Casey) Therefore
rational basis'scrutiny applies, and
all it requires is "that Congress
rationally perceived a propensity
among prisoners to file frivolous
lawsuits and reacted to that
perception in a reasonable way.
The statute need not be the best
possible reaction to the
perception, nor does the
perception itself need to be
heavily buttressed by evidentiary
support. It is enough that the
perceived problem is not
obviously implausible and the
solution is rationally suited to
address that problem." (463)
The cqurt notes that the Supreme
Court in Metro-North Commuter
R.R. v. Buckley construed a
statute to impose the same
restriction on a group ofnonprisoners. Romer v. Evans is
distinguished on the ground that
this statute "imposes no such
across the board restriction on
access to government assistance"
and therefore does not raise the
same "inevitable inference" of
ammus.
The statute does not violate
separation o~powers by directing
the outcome of constitutional
cases. Every statute establishing

The National Prison ProjectJOURNAL

a cause of action requires courts
to determine whether the
elements of the claim exist, and
that doesn't prescribe a rule of
decision.

procedural due process because
there was no clearly established
right to predeprivation notice and
hearing, even though subsequent
decisions supported such a right.

Spring/Summer 1999

upholds the termination
provisions ofPLRA in a
remarkably perfunctory opinion.
The provision does not require
reopening of a final judgment but
"merely alter the prospective
application of orders requiring
injunctive relief" (942) The
provision does not prescribe a
rule of decision but "only
prescribes the standard for
authorizing a remedy in any given
case." (943)
The court says it would also
reject the due process and equal
protection arguments if they were
before it (943 n. 3).

Mental Health CarelMental
Health Care-Restraints/Qualified Immunity
Buckley v. Rogerson, 133
F.3d 1125 (8th Cir. 1998). The
plaintiff alleged that he was
repeatedly placed in restraints and
segregation without medical
approval during his confinement
in a prison mental hospital.
Evidence showed that correction
officers were allowed to develop
"treatment plans" and that
Personal PropertylProcedural
PLRA--Entry of
"treatment"
also
included
RelieflReligion--Practices--D}et
Due Process--Property
Oluwa v. Gomez, 133 F.3d
Parrish v. Mallinger, 133 F.3d depriving the plaintiff of clothing,
1237 (9th Cir. 1998). The
612 (8th Cir. 1998). Prison
blankets, bed and mattress in
plaintiff said he is a "Nazarite
officials seized funds sent by a
segregation. His treating doctor
Disciple" of Jesus Christ Messiah,
prisoner to his wife after he
checked on him every 90 days.
There is a constitutional right prohibited by the Bible from
received them from his mother
(they stopped payment on the
to med.ical approval of placement eating anything containing "dairy
products, animal flesh, things that
check) and applied them to his
of in restraints or segregation.
grow on vines (grapes or raisins,
obligations under the Iowa Victim Under Youngberg, "the freedom
from bodily restraint is at the core melons, cucumbers, squash, etc.),
Restitution Act.
At 614: "Defendants
of the liberty interest protected by and poultry products." He was
concede, as they must, that
the due process clause." (1129)
denied his diet because when
Parrish has a property interest in
The right was clearly established
asked who else adhered to his
by
1987.
(This
case
was
tried
the money his mother sent him
religion, he said "Adam and Eve."
that is protected by the Due
twice before the present appeal.)
Later he said he was a
Rastafarian. The court granted
Process Clause of the Fourteenth This court has taken a "broad
view" of what is clearly
him summary judgment and
Amendment. "
injunctive relief sua sponte,
The seizure did not deny
established, looking to "all
substantive due process, even
available decisional law" in the
holding that his Nazarite and
though the statutorily mandated
absence of binding precedent, and Rastafarian beliefs were not
payment plan did not authorize
mutually exclusive, that he was
it cites local district court cases
such a large seizure. At 615:
and cases from other circuits
sincere, and that Rasta is
"However, this is nothing more
here.
protected by the.;First
than an assertion that defendants
Amendment.
acted contrary to state law.... "
PLRA--Judgment Termination
Since defendants had no prior
The defendants are entitled to
Hadix v. Johnson, 133 F.3d
notice of the plaintiff's claim of
qualified immunity as to
940 (6th Cir. 1998). The court
Rastafarianism, it was error to
Visiting
Bazzetta v. McGinnis, 133 F.3d
382 (6th Cir. 1998). In a prior
decision, the court upheld
limitations on visiting which the
defendants had asserted applied
only to contact visits. Now the
defendants inform the court that
they apply to all visits. The court
makes clear that its decision did
not apply to non-contact visits.

14

The National Prison Project JOURNAL

grant summary judgment sua
sponte against them.
It was error to grant injunctive
relief without making the findings
required by the PLRA. Congress
expressly prescribed the reach of
18 U.S.C. § 3626 and indicated
that it was to apply to pending
cases. The court does not engage
in harmless error analysis because
it is reversing for other reasons.

Use of Force
Stanley v. Hejirika, 134 F.3d

Spring/Summer 1999

problems, threats against officers
had been made, and the plaintiff
was resisting. At 636: "If a
629 (4th Cir. 1998). After a
punch or a kick did occur during
disturbance in a segregation unit,
these events, we cannot conclude
the plaintiff was extracted from
lin retrospect that the degree of
his cell and his cell was searched.
After he was back in his cell he
force authorized or applied for
incited inmates to set fires and
security purposes was
began hitting his cell door; he was unreasonable, and hence
removed again and moved to
unnecessary in the strict sense."'
another unit. Force was used
The injuries, while comparable to
against him, resulting in bruising
those in Hudson v. McMillian,
of his arm, jaw, wrists and back,
were inflicted in a very different
Drug Dependency
Treatment/FederalOfficials
and a loosened tooth. The district context.
judge found the defendants liable
and Prisons
Love v. Tippy, 133 F.3d 1066 based on a videotape.
Medical Care--Standards of
(8th Cir. 1998). The petitioners
As a matter oflaw, the Eighth Liability--Serious Medical
completed drug treatment
Amendment was not violated. At Needs, Deliberate
programs in order to qualify for
635: "We too have viewed the
Indifference/In Forma
early release but were denied on
tape and thus have had the same
PauperislDisabled
the ground that they had been
Hemmings v. Gorczyk, 134
opportunity as the magistrate
F.3d 104 (2d Cir. 1998). The
convicted of firearms offenses and judge had to evaluate this nonthe authorizing statute made only testimonial evidence." Therefore plaintiff sustained a ruptured
tendon during a basketball game,
persons convicted of "nonviolent
they need not defer to his
offenses" eligible for the
findings. They find no malicious
which prison medical staff
diagnosed as a sprain; they then
reduction. The Bureau of Prisons or sadistic conduct, but a
could properly construe
refused for two months to refer
"rational reaction and measured
"nonviolent offenses" to exclude
response," though at times he was him to a specialist even though he
had accurately diagnosed himself,
offenses that Congress had
"treated roughly."
and one defendant allegedly took
labeled "crimes of violence" in
At 634 (emphasis supplied):
another statute.
[indent] In short, for an inmate to away his crutches.
"Fanciful allegations" of
prove an excessive force claim, he
Martin v. Gerlinski, 133 F.3d must satisfy not only the
"wide-ranging conspiracies" by
1076 (8th Gir. 1998). The
subjective component that the
the defendants can be dismissed in
petitioners completed drug
this in forma pauperis case.
correctional officers acted with a
treatment programs in order to
The plaintiffs medical care
sufficiently culpable state of mind,
qualify for early release but were
but also the objective component claims are not barred by the fact
denied on the ground that their
that he received some care,
that his alleged injury was
sentences had been. enhanced for
though they are weakened. He
sufficiently serious in relation to
possession of dangerous
has alleged facts that could show
the needfor force to establish
weapons. The use of sentencing
constitutionally excessive force.
"that his condition was
factors by the Bureau of Prisons
The plaintiffs injuries, as a
sufficiently painful to satisfy the
matter of law, were insufficient to objective prong of the deliberate
was contrary to the authorizing
statute, which referred only to the support liability, given that the
indifference standard of the
offense of which the prisoner had incident followed a disturbance by Eighth Amendment" and that the
been convicted.
inmates with disciplinary
defendants willfully disregarded it
15

The National Prison Project JOURNAL

for two months before sending
him to a specialist who allegedly
described his symptoms as
"classic" and expressed shock at
the failure to treat it. The
allegation of deprivation of
crutches was also not subject to
dismissal.

PLRA--Judgment
Termination/Appeal
United States v. State of
Michigan, 134 F3d 745 (6th Cir.
1998). The defendants moved to
terminate consent decrees and the
district court entered an order
granting the United States access
to facilities, staff and documents
for discovery purposes. It also
postponed decision on the merits
of the termination motion, though
opining that recent hearings
suggested a current or ongoing
violation with respect to mental
health care.
The court lacks appellate
jurisdiction. Defendants'
argument that the district court
was permitting the creation of an
evidentiary record not
contemplated by the PLRA is not
a jurisdictional argument. While
the grant of discovery denies the
dissolution of injunctive relief at
least temporarily, this is true of
any action that defers a
termination motion.
Medical CarelMedicationlPreTrial DetaineesIRefusal of
Treatment
Johnson v. Meltzer, 134 F.3d
1393 (9th Cir. 1998). The
plaintiff stole a car and had a
collision in it, sustaining head
injuries. The defendant doctors
16

Spring/Summer 1999

used a drug not approved by the
Jurisdictional and Litigation
FDA while he was unconscious
Questions
and without his consent. The
Dunphy v. McKee, 134 F.3d
district court dismissed his claim
1297 (7th Cir. 1998). The
after construing it as a medical
plaintiffs court-appointed lawyer
care claim. The appeals court
consistently failed to comply with
construes his pro se complaint
scheduling and case management
orders and the case was ultimately
liberally to state a claim for
violation of his constitutionally
dismissed for lack of prosecution.
protected liberty interest in bodily The standards for such dismissals
are no different for cases
integrity. Washington v. Harper
involving appointed pro bono
and Riggins v. Nevada
II demonstrate that due process
counsel than they are for cases
requires that if a doctor gives a
with retained counsel; the court
has discretion to take into
drug to an inmate without his
consent, the drug must be
account all relevant factors under
medically appropriate. II If the
that standard, though they may be
weighed differently. Here the
doctors gave the drug for the
plaintiffs benefit, they did not
district court dismissed in a oneviolate his rights. If they used it
line order that does not inform the
for research purposes, they did
appeals court whether it
violate his rights. Since the form
considered the efficacy of a less
they filled out while he was
severe sanction or tried to devise
unconscious is labeled Consent
a measure that would punish the
for Participation in a Research
lawyer rather than the client, or
Project and says there is likely to
what it thought of the merits of
be no direct benefit to the patient, the case. The three-month delay
there is a material factual question the plaintiff had requested appears
on this point.
reasonable enough to have
A police officer did not
warranted an explicit rejection if
violate the plaintiffs rights by
not granted. The case is
taking his photograph and
remanded for further proceedings.
fingerprints while he was
unconscious.
Use of Force/Habeas
Th~ plaintiff alleged that
CorpuslPrivacy
police officers woke him from his
Jackson v. Suffolk County
medically induced coma to
Homicide Bureau, 135 F.3d 254
interrogate him. They denied it,
(2d Cir. 1998). The plaintiff,
but since there is police
convicted of robbery and murder,
documentation indicating an
complained of excessive force
interview took place on that date
following arrest and the taking of
and naming one officer, there is a nude photographs without his
material factual question.
consent during his post-arrest
interrogation, which photographs
Appointment of
were displayed at his trial.
CounsellProcedural,
The district court erred in

The National Prison Project JOURNAL

dismissing under Heck v.
Humphrey, which does not
require dismissal of claims whose
adjudication in the plaintiff's favor
would not necessarily invalidate
his conviction. The claims about
the photographs, which plaintiff
objected to on religious and
privacy grounds, would not
invalidate the conviction. The
excessive force claims would also
not invalidate his conviction, even
though he is arguing on appeal
that his confession was coerced,
because the state court might find
that the confessions did not result
from the use of force or that the
failure to suppress them was
harmless error. However, they
would "impact" the conviction.
Since they have already accrued
and the limitations period is
running, the court should stay
them pending the outcome of the
appeal.
The claims about the taking of
the photographs are probably
barred by the statute of
limitations, since they were not
asserted in the first, timely
complaint. They do not relate
back to the filing of that
complaint because they do not
arise from the same conduct as
the excessiv~ force claim raised in
that complaint. The claims about
the photographs' use at trial may
be within the limitations period.

PLRA--In Forma Pauperis
Provisions--Applicability-Persons
LaFontant v. United States,
135 F.3d 158 (D.C.Cir.1998).
An immigration detainee held for
deportation is not a prisoner for
17

purposes of the filing fee
provisions of the PLRA. He
ceased being a prisoner when he
was released on parole, even
though he actually remained
incarcerated.

PLRA--Judgment
TerminationlPre-Trial
DetaineesIPLRA--Prisoner
Release Orders/Crowding
Tyler v. Murphy, 135 F.3d
594 (8th Cir. 1998). The
plaintiffs prevailed at trial in a jail
conditions case in the 1~nos; in
1993-94, the court issued
injunctive orders establishing
various population ceilings, which
the appeals court remanded for
reconsideration in light of the
Helms Amendment. The court
then granted a separate motion to
establish a cap of 20 on technical
probation violators at the jail.
The Sheriff moved to dissolve
that injunction and the motion
was denied. That order is
appealable. The Sheriff need not
have appealed at the time the
injunction was entered because it
did not affect him until he tried to
place more than 20 technical
probation violators there.
The order limiting the
technical probation violator
population violated the PLRA
because it lacked the requisite
findings, and the motion to
dissolve it was denied in violation
of the PLRA because the court
failed to make the necessary
findings at that point too. In
addition, the order is clearly a
prisoner release order, and the
court did not make the findings
necessary for such an order under

Spring/Summer 1999

thePLRA.
The PLRA's termination
provision is constitutional for all
the reasons stated in Gavin v.
Branstad. A findings requirement
does not cripple the court's
remedial powers, and the statute
permits continuation of relief
when necessary. At 597: "Thus,
the statute preserves a court's
ability to remedy a current
violation of federal rights. II
Given the lack of the proper
findings, the Sheriff need not wait
two years to move to terminate;
the immediate termination
procedure is designed for cases
that lack the findings.
The district court is directed
on remand to consider the
Sheriff's motion to dissolve the
technical probation violator
population cap and his subsequent
motion to terminate all
prospective relief At 598: "...
[P]laintiffs, who now face the
termination of prospective relief,
are entitled to seek new or
extended prospective relief under
the standards set forth in §
3626(a)." If they seek a prisoner
release order, a three-judge court
must be provided. At 598:
"What is less clear from the
statute's text is whether the §
3626(b)(3) findings that will
av·oid termination of an existing
injunction must in all cases be
made by a three-judge court if the
injunction includes a prisoner
release order. II If the plaintiffs
argue for both retention of old
relief and entry of new relief, the
prisoner release aspects of both
should be referred to the threejudge court for efficiency's sake.

The National Prison Project/OURNAL

If new relief is not sought, it
would be more efficient to have
all findings made by the single
judge. However, the court does
not actually rule on the
relationship between the two
parts ofthe statute.

PLRA--Filing Fees
Chachere v. Barerra, 135
F.3d 950 (5th Cir. 1998). The
plaintiff refused to execute the
authorization forms for
withdrawal of court fees from his
account, arguing that the forms
violate the PLRA because they do
not recite that no money will be
withdrawn when the account
balance is below $10.00.
However, the PLRA does not
mandate use of any authorization
form, or prescribe the contents of
any form that is used, and there is
no evidence that prison officials
will not comply with the $10.00
limit. The motion to proceed on
appeal is denied, and the case is
remanded to permit the plaintiff
an opportunity to execute the
form.

Suicide Prevention
Williams v. Mehra, 135 F.3d
1105 (6th Cir. 1998). The
decedent committed suicide in a
state prison. He had a significant
psychiatric history with a record
of attempted suicide and suicidal
ideation in jail, which was
communicated to prison
authorities. He had tried to
commit suicide with an overdose
of pills and his medication had
been changed to liquid. He
continued to express suicidal
thoughts to prison mental health
18

staff. Nonetheless, his medication
was changed back to pills, and he
killed himself with an overdose.
The right at issue is the right
to receive necessary psychiatric
care, not the right to be screened
for suicidal tendencies--the
decedent had been screened and
was found to have them. This
right is clearly established.
A psychiatrist who did not
have complete information on the
decedent's mental health and
suicide-related history was not
deliberately indifferent for
prescribing tablet medication and
a follow-up in 30 days; he had no
further contact with the decedent.
Treating psychiatrists who
saw the decedent on two and
three occasions and had more
complete information on his prior
history could be found
deliberately indifferent for not
administering his medication in
liquid form.

Use of Force/Jury Instructions
and Special Verdicts
Parkus v. Delo, 135 F.3d
1232 (8th Cir. 1995). The
plaintiff complained that he was
beaten in retaliation after he
attacked, choked, sexually
assaulted, and injured a prison
psychologist.
The district court, in charging
the jury on the malicious and
sadistic standard, defined
"sadistic" as "extreme or
excessive cruelty or delighting in
cruelty" as opposed to "regular
cruelty." The district court did
not abuse its discretion; this
appeals court has used similar
language in its holdings, as have

Spring/Summer 1999

other courts.
The plaintiff had no due
process claim arising from the use
of force; a hearing need not be
held before applying force to
quell a disturbance. The plaintiff
was resisting vigorously. At
1235: "Without doubt, Parkus
was punched, dropped, and
pushed into walls and door
frames, leaving the jury to decide
whether the Eighth Amendment
was violated."
The findings of a state
administrative board that one of
the officers had been properly
fired for the force he used against
the plaintiff did not collaterally
estop the officer from giving
contradictory testimony at thjs
trial. Although administrative
findings can have collateral
estoppel effect in Missouri, the
administrative tribunal did not
unambiguously decide the same
issues as those in the litigation.
State rules on the use of force are
different from the constitutional
standard.

PLRA--Three Strikes Provision
Garcia v. Silbert, 141 F.3d
1415 (lOth Cir. 1998). The three
strikes provision of the PLRA
does not apply to complaints filed
before the PLRA was enacted.
However, it does apply to postPLRA appeals in such cases.. The
court reaffirms Green v.
Nottingham's holding that prePLRA dismissals may be
considered as strikes.
This plaintiff should not have
been p~rmitted to proceed IFP
because he has three strikes. The
statute is not jurisdictional, and

The National Prison Project JOURNAL

the court elects to reach the
merits. The plaintiff is ordered to
remit the entire balance of the
filing fee to the court.

Mapp v. Dovala, 138 F.3d
1335 (10th Cir. 1998). The
plaintiff brought three cases in
forma pauperis, of which two
were dismissed for failure to state
a claim and one was dismissed for
failure to exhaust. He had
previously brought another case
that was dismissed for failure to
state a claim. In light of these
dismissals for: failure to state a
claim, the plaintiff is not entitled
to appeal without prepayment of'
costs and fees. In any cases the
appeals would be without merit.
The court directs dismissal unless
the plaintiff pays the fees within
90 days, but says that going
forward "may not be a fruitful
course of action." Implicitly,
then, the plaintiff can decide not
to pay, unlike the case with filing
fees for prisoners not barred by
the three strikes rule.
Patton v. Jefferson County
Correctional Center, 136 F.3d
458 (5th Cir. 1998). Pre-PLRA
"strikes" cOJ.mt. Unappealed
dismissals count as strikes.
Actions that are brought
under § 1983, but are dismissed
for failure to exhaust because
they seek habeas relief, are
strikes. At 464: "Although the
dismissal without prejudice of the
habeas claim does not equate to a
finding of frivolousness,)t more
closely parallels such a conclusion
than it does a determination of
non-frivolousness. It is a
19

considered judgment that Patton
asserted in his § 1983 suit a
habeas claim that was premature
as a matter oflaw." Id.: "It is
more faithful to the intent of the
PLRA to classify these
dispositions as strikes." To hold
otherwise would permit litigious
prisoners to circumvent the
statute by "creative joinder of
actions." (Of course, the actions
in question were pre-PLRA, so
this reasoning makes no sense
except as a manifestation of the
reigning principle"Any excuse to
get rid of a prisoner case. ")
A dismissal as frivolous that is
affirmed is a strike, even if
modified to be without prejudice,
and even if done on different
grounds from those relied on by
the district court.
PLRA--Screening and
Dismissal
Bazrowx v. Scott, 136 F.3d
1053 (5th Cir. 1998). Dismissals
under 42 U.S.C. § 1997e(c)
should be reviewed de novo on
appeal. At 1054 (footnote
omitted): "Generally a district
court errs in dismissing a pro se
complaint for failure to state a
claim under Rule 12(b)(6)
without giving the plaintiff an
opportunity to amend."
However, such error can be
ameliorated "if the plaintiff has
alleged his best case, or if the
dismissal was without prejudice."
Id. (footnotes omitted). Here, the
dismissal was harmless error
because it was without prejudice.
Federal Officials and
Prisons/Drug Dependency

Spring/Summer 1999

Treatment/Ex Post Facto
Laws/Equal Protection
Wottlin v. Fleming, 136 F.3d
1032 (5th Cir. 1998). A 1994
statute made prisoners convicted
of nonviolent offenses who
complete substance abuse
programs eligible for early
release. The exclusion by Bureau
of Prisoner regulation of persons
with prior convictions for rape,
homicide, robbery or aggravated
assault is not an abuse of
discretion; the authorizing statute
leaves BOP discretion to make
this kind of omission. The
exclusion does not deny due
process; the mandatory language
in the policy relates to
procedures, not substantive
criteria, and therefore does not
create a liberty interest. It does
not deny equal protection; since
there is no right to be discharged
early, the rational basis test
applies, and categorizing by
criminal record is rationally
related to preventing the early
release of potentially violent
persons. The exclusion does not
violate the Ex Post Facto Clause.
Although the plaintiff was eligible
for early release for a few months
between the passage of the statute
and the promulgation of the
regulations, his eligibility was
always subject to BOP discretion.
Hazardous Substances and
Conditions/DiscoverylFood/Qu
alified Immunity/Summary
Judgment
LaBounty v. Coughlin, 137
F.3d 68 (2d C,ir. 1998). The
plaintiff complained of chemical
contamination in the prison's

The National Prison Project JOURNAL

that it was unreasonable for
drinking water and exposure to
defendants to believe that
friable asbestos in the air.
exposing the plaintiff to friable
The plaintiff served
asbestos did not violate the
interrogatories and asked that
documents responsive to them be Eighth Amendment, given the
state of knowledge in 1991-92
produced as well. As a result of
about asbestos.
the failure to produce them, he
was unable to name the chemicals
placed in the water and was
Modification of
precluded from offering evidence J udgmentslRemedial Principles
Harris v. City of
to resist defendants' summary
judgment motion. Absent any
Philadelphia, 137 F.3d 209 (3d
evidence that the documents were Cir. 1998). A 1991 consent
produced, the court holds that the judgment in a crowding case
district court should determine
provided that the defendants
whether he received the
would develop a Management
documents and if not, see that he
Information System to carry out
the requirements of the order.
gets them and is able to oppose
summary judgment.
Five years later, the court entered
Competing allegations by the
a supplementary order setting
plaintiff that friable asbestos was
deadlines for getting parts of the
constantly exposed and getting
job done.
into the air and by the defendants
The order is appealable
that any such damage is quickly
because it modifies an injunction.
repaired, neither supported by
The order is reversed because
documentary evidence, raise a
the defendants never agreed to
genuine issue of fact as to
implement the MIS plan by a date
whether the plaintiff was exposed certain under penalty of fines.
to friable asbestos. The plaintiffs The consent decree "does not
claims that he constantly
provide the authority for the
complained, and the defendants'
district court to proceed in this
lack of denial that he complained
manner." (213) None of the
orally, raised an issue offact as to deadlines in the original order had
deliberate indifference.
been violated. There is no
The defendants are not
indication that the procedures
entitled to qualified immunity. It
provided in the judgment for
enforcement of the judgment's
is important to define the right at
issue neither too narrowly nor too terms was utilized, no indication
broadly. It was too narrow to
oflack of substantial compliance,
describe it as "the right to be free and no contempt hearing.
from crumbling asbestos." The
challenged conduct is
Federal Officials and
encompassed by "the right to be
PrisonslProcedural Due
free from deliberate indifference
Process--Property
to serious medical needs." (74)
Weng v. United States, 13 7
A rational jury could conclude
F.3d 709 (2d Cir. 1998). At 713:
20

Spring/Summer 1999

"Courts have several times
commented on the obligation on
government, when it seeks to give
notice of forfeiture to one it
knows to be in its custody, to
take the trouble to ascertain the
place of confinement." At 714:
"Absent special justifying
circumstances, the least that can
be asked of a federal government
agency seeking forfeiture of the
property of a federal detainee is
that it determine where the
claimant is detained and send the
notice to the right institution. "
Id. "We do not agree that a
federal agency's mailing of a
notice of forfeiture to a federal
correctional institution where the
property owner is detained .
constitutes adequate notification
of the forfeiture if the notice is
not in fact delivered to the
prisoner-owner. "

Protection from Inmate Assault
Oetken v. Ault, 137 F.3d 613
(8th Cir. 1998). The plaintiff was
placed in the same cell as an
inmate who had been in a fight; a
few days later, that inmate
attacked the plaintiff after an
argument. The plaintiff said he
told an officer that he was afraid
of the other inmate, and that the
officer did not intervene promptly
when the fight started. The court
credited the officer's contrary
testimony, as was its prerogative
and ruled against the plaintiff at
trial. Testimony showed that
after an inmate is in a fight, he
may be double celled, but not
with someone with whom he has
a history of problems.

The National Prison Project JOURNAL

Soto v. Johansen, 137 F.3d
980 (7th Cir. 1998). The district
court properly found for the
defendant in an inmate assault
case based on his credibility
judgment that the defendant was
not the person the plaintiff
informed of the risk, and on his
conclusion that the plaintiff did
not provide enough information
about his situation to require
action. (The plaintiff was
assaulted for refusing to pay "cell
rent" to gang members; the
defendant testified that he
received lots of requests for cell
changes and the mere mention of
cell rent did not justify one.)

his file and make sure he got the
training.
The finding for the plaintiff
was clearly erroneous. The
finding of de minimis injury does
not compel a finding of de
minimis force; "minor" is not de
minimis. But it was clearly
erroneous to find that the
defendant's actions were not a
good faith effort to maintain or
restore discipline, since the
prisoners involved had been
involved in the yard incident and
the bus was in an unfenced area.
Even accepting that only one or
two inmates were involved in the
disturbance, the force was not
excessive. The reason for not
Use of Force--Chemical Agents letting the inmates off to wash off
Baldwin v. Stalder, 137 F.3d
the mace was "more than
836 (5th Cir. 1998). The plaintiff reasonable": the defendant was
was "subdued" after protesting
afraid that inmates would engage
the treatment of another prisoner in further disruptions and
in the yard. The next day, he and disturbance, and no one requested
medical assistance. Air
other inmates were put shackled
on a bus for transfer, and some of movement is an approved way of
the prisoners created a
ameliorating the effect of mace,
disturbance on the bus. The main and they left the bus windows
open during the trip. "[P]erhaps
defendant "fired a two second
most importantly," the finding of
burst of pepper mace down the
middle of the bus." The inmates
minor injury confirms the
were not allowed to wash the
reasonableness of that decision.
mace off until the end of the bus
ride three hours later. The
Discovery
district court found for the
In re Wilkinson, 137 F.3d 911
defendants on the yard incident
(6th Cir. 1998). Prison officials'
but for the plaintiff on the bus
general policy forbidding
incident. It labelled his injuries
prisoners from attending
"minor" and did not award
depositions conducted by counsel
damages; instead, the main
in their civil actions is upheld.
defendant was ordered to attend
The policy's justifications are"(1)
excessive force training and the
maintaining staff authority; (2)
Secretary of Corrections, who
preventing the aggrandizement of
was no longer a defendant, was
inmates; (3) avoiding unnecessary
ordered to place a reprimand in
tension; (4) protecting staff

21

Spring/Summer 1999

morale; (5) preserving limited
resources." (913) (Note that
these justifications would permit
barring prisoner litigation
entirely.) Prisoners have no
constitutional right to attend any
stage of their litigation.
Defendants made arrangements
for consultation with counsel
before, after, and (telephonically)
during depositions.
A federal court has the
authority to require production of
a prisoner at a deposition based
on a "demonstration that his
physical presence will contribute
significantly to a fair adjudication
of his claim. "(915) The court
enumerates factors to be weighed
in deciding such claims. The
prisoner has the burden of
producing of showing need. The
court grants a writ of mandamus
vacating the district court's order
to produce the plaintiff, subject to
his making the required
specialized showing of need.
Sexual Abuse
Berryhill v. Schriro, 137 F.3d
1073 (8th Cir. 1998). Several
civilian maintenance workers
grabbed the plaintiffs buttocks
briefly. This conduct did not
violate the Eighth Amendment
because there is no evidence that
the plaintiff suffered anything
more than a brief unwanted
touch. The plaintiff submits no
evidence except his own
characterization to show that it
was a sexual assault.. No
objectively serious injury, physical
or psychological, was shown to
have resulted.
At 1076: "Certainly, sexual

The Nationa.1 Prison Project JOURNAL

or other assaults are not a
legitimate part of a prisoner's
punishment, and the substantial
physical and emotional harm
suffered by a victim of such abuse
are compensable injuries. "

Correspondence--Legal and
Official
Weiler v. Purkett, 137 F.3d
1047 (8th Cir. 1998) (en bane).
The defendants refused to deliver
a package of legal materials sent
by the plaintiffs son; regulations
permitted such packages to be
received only from judges,
attorneys and public officials.
The regulation is not
unconstitutional on its face under
Turner. Nor is it unconstitutional
as applied. The fact that ten
other inmates filed affidavits
saying that they had been
permitted to receive similar
packages did not matter; "after
all, they might have received
contraband through them. "
(1050) At 1051: "Aprison
policy that obstructs privileged
inmate mail can violate inmates'
right of access to the courts. "
However, legal mail is not at
issue because the regulation
defin~s legal mail as
correspondence from an attorney,
judge, or public official.
Therefore there is no court access
claim.
There is no substantive due
process claim because receipt of
packages from family members is
not "a right 'rooted in the
traditions and conscience of our
people.''' (1051) Nobody's
conscience is shocked.
Differential enforcement of
22

the package policy did not deny
equal protection because the
plaintiff submitted no evidence of
any classification by which
defendants decided who could
receive nonconforming packages
and who could not.
The dissenters argue that one
way to show an exaggerated
response under the Turner
standard is to show that officials
have not found it necessary to
impose the restriction on other
prisoners. Evidence of arbitrary
enforcement is sufficient to
withstand summary judgment. At
1053: "If the rule is not enforced
as written but is occasionally
invoked, one can infer that it is
enforced according to some other
less neutral principle than that
stated."

Spring/Summer 1999

The purpose of the relevant
state constitutional provision (a
1901 amendment) was to
"guarantee the political rights of
prisoners" based on concerns that
county courts were failing to
punish sheriffs who allowed lynch
mobs to take prisoners and kill
them.

Food/State Officials and
Agencies/In Forma Pauperis
Talib v. Gilley, 138 F.3d 211
(5th Cir. 1998). The plaintiff
complained that his meals were
withheld on about 50 occasions
while he was confined to his cell
during lockdown periods. The
reason is that he refused to kneel
with his hands behind his back
before being served.
At 213: "To aid in the
determination of whether an IFP
complaint is frivolous, this court
MunicipalitieslPre-Trial
has approved the use of
Detainees
Turquitt v. Jefferson County,
questionnaires or an evidentiary
Ala., 137 F.3d 1285 (lIth Cir.
hearing. . . . Responses to such
1998) (en banc). A county
an inquiry become part of the
cannot be held liable under §
plaintiffs pleadings."
1983 for injuries to a jail inmate
At 214 n. 3: The court
arising from the sheriffs
questions whether the plaintiff has
management of the jail because
alleged a harm cognizable under
under Alabama law the sheriff is a the Eighth Amendment. Missing
state official and not a county
one out of nine meals is hardly
official. While counties have
more than many working citizens
some duties with respect to jails,
miss over the same period.
they are limited to funding and
(Evidence? Forget it.) He also
providing facilities and do not
lost 15 pounds.
include jail operations or
The kneeling requirement is
supervision of inmates. There is
upheld as being reasonably related
no evidence that this provision
to legitimate penological interests.
was passed to avoid liability, since The lack of a written policy is
it predates Monell by decades.
immaterial. At 215: "A policy is
Parker v. Williams is overruled to a policy;--the question is simply
the extent that it inconsistent with whether the record supports a
this holding.
finding that a policy exists." The

The National Prison Project JOURNAL

policy was affirmed in writing on
each of the plaintiffs grievances.
In any case the same standard is
used in dealing with the actions of
an individual officer and with
prison-wide policies. The court is
using the language of the Turner
reasonableness test even though
this is an Eighth Amendment
case.
The plaintiff also complained
of the service of "Vita-Pro," a
soy-based product occasionally
used as a meat substitute. He
conceded that it was nutritionally
and calorically adequate. The
district court dismissed as
frivolous and the claim is
abandoned on appeal.
The Texas Department of
Criminal Justice, Institutional
Division, is a state agency
immune from liability under the
Eleventh Amendment.

PLRA--Attorneys'
Fees/Judicial
Disengagement/Contempt/W 0
menlEducation and
TraininglLaw Libraries and
Law Books/Attorneys' Fees and
CostslEqual Protection
Glover v. Johnson, 138 F.3d
229 (6th Cir. 1997). The
plaintiffs in tne late 1970s
successfully challenged gender
inequalities in treatment programs
and law library facilities. The
district court was unable over the
subsequent period to obtain
constitutional compliance and to
terminate federal court
supervision. The reason is largely
(at 233):
[indent]the court's loss of proper
perception regarding its role.
23

Very substantially because of
unfocused and misdirected
advocacy by both sides in this
litigation, and particularly because
of the recalcitrant defendants'
foot-dragging, the district court
has been preoccupied with
attempting to force the
defendants to comply with the
details, even the minutiae, of the
intermediate methodologies the
court has devised for remedying
the constitutional deficiencies it
found in 1979. The court has lost
sight of the forest for its longtime attention to the trees.
The defendants made a
motion to terminate before the
PLRA, and the district court
noted noncompliance with
various plans which had not
actually been entered as court
orders, but did not consider
whether the program
opportunities then being offered
to women were constitutionally
equal to those then being offered
to men. The court imposed
contempt fines for noncompliance
with requirements concerning
court access, vocational
programming, and apprenticeship
programs of $500 a day for each
area, with.increases to $15,000 a
day after two and a half months.
Remedial plans that were
never approved and adopted by
the court and to which plaintiffs
objected are not "consent
decrees" that could hold the
defendants to a higher standard
than constitutionally mandated.
Accordingly, the binding order is
the 1981 Final Order, entered
after a trial, and the relevant
question is whether the

Spring/Summer 1999

constitutional violations found at
that time still exist. Although the
court had to develop a specific
methodology to remedy
constitutional violations, those
intermediate steps have become
the focus of attention. There
have been "monumental changes
in circumstances." Compliance
"has become a moving target. "
(242) There is much additional
rhetoric stating that the proper
focus is constitutional compliance
and termination of the litigation.
However, even if defendants have
complied with the Constitution,
they may still be liable in
contempt for violating court
orders.
The court directs the district
court to conduct hearings and
receive evidence and stipulations
within 120 days concerning the
program opportunities available
to male and female inmates, and
then to make particularized
findings and conclusions as to
their compliance with the Equal
Protection Clause, with findings
to be filed with the appeals court
within 150 days. The court is to
do the same with respect to the
alleged denial of access to court.
The court is to terminate
jurisdiction as to matters in
constitutional compliance. The
PLRA is not mentioned here; the
termination motion and all
proceedings in the district court
occurred before the PLRA.
Contempt findings for failure
to comply with remedial plans
that the court had not adopted are
reversed, since there was no
"definite and specific order" that
had been disobeyed. Even if it

The National Prison Project JOURNAL

adopted them when it denied
defendants' termination motion, it
could not retroactively impose
contempt sanctions. Nor could
defendants be held in contempt
for violating "long-standing
commitments" or an order in
which the court said it was
"strongly urging" the defendants
to take certain actions. The court
also "engag[ed] in judicial
micromanagement" and
"exceed[ed] its authority" in
entering an order requiring the
defendants actively to recruit
prisoners for apprenticeships.
The PLRA's attorneys' fees
provisions lack the clear statutory
directive that is necessary to
support a statute's retroactive
application. Their effect would
be retroactive, where plaintiffs'
attorneys have conducted
themselves in conformity with the
pre-existing law. Applying the
PLRA would result in "attaching
significant new legal burdens to
the completed work, and . . .
impairing rights acquired under
preexisting law." (250) The
court does not address postPLRAfees.
Fees for an appeal abandoned
by the defendants should be
awaraed, both because the
plaintiffs de facto prevailed and
because fees for monitoring are
proper. However, plaintiffs
should not receive fees for
interceding for class members on
individual issues unless it can be
shown that this work was related
to the litigation, e.g., on a
retaliation theory.
The court observes that no
federal appeals court has ever
24

Spring/Summer 1999

adopted the "parity" requirement
permitted viewing only after the
imposed by the district court,
condemned has been strapped to
the
gurney and an IV saline
which it says is of" dubious
validity," but the defendants never solution is running. Formerly,
when different methods of
appealed it.
execution were used, witnesses
were permitted to watch the
Procedural Due Process-whole show.
Disciplinary Proceedings
Scott v. Albury, 138 F.3d 474
The court upholds the
(2d Cir. 1998) (per curiam). The regulations and reverses the
plaintiff was sentenced to 60 days judgment. Execution by lethal
injection involves as much as 20
of keeplock and was placed in
minutes of preparation, compared
SHU for about seven weeks.
to about one minute of viewing of
Under Sandin, the actual
lethal gas executions, and that
penalty assessed and not the
length of exposure to witnesses
potential penalty the prisoner
faces is the measure of the liberty would increase the likelihood of
deprivation. Courts should
identification of execution team
consider the "degree and
members and consequent
duration" of the sentence actually harassment of them and their
families.
imposed. (479)
In determining whether
The press has no
defendants had discretion to place constitutional right of access to
prisoners in SHU for non-punitive prisons or prisoners beyond that
reasons, the court should have
afforded the general public. The
looked to the regulations as of the court rejects the district court's
distinction of Pel!, Houchins and
time of the plaintiffs deprivation
(1987) and not as of the time of
Saxbe on the ground that they
the court's decision, which did not dealt with the everyday workings
contain a catchall provision for
of the prison, while execution is
SHU admission or a provision for more similar to a governmental
proceeding like a trial or hearing.
general "administrative
segregation. "
The court also cites--without any
clear statement whether it
believes it is still good law--an
Communication with
1890 Supreme Court decision
MediaiStanding
California First Amendment
that upheld a ban on publishing
any account of the details of an
Coalition v. Calderon, 138 F.3d
1298 (9th Cir. 1998). The district execution beyond the fact that a
court entered an injunction
particular convict was executed
requiring prison officials to allow on a particular day. At 1303:
witnesses to view execution by
"We stress that we are not
lethal injection from the time the
holding that the public and the
inmate is secured to the gurney to press do not have First
Amendment rights to view
just after the pronouncement of
executions." (Footnote omitted)
death. State regulations

The National Prison Project/OURNAL

Here there is no evidence of an
exaggerated response.
The plaintiff association had
standing to sue.
Drug Dependency
Treatment/PLRA--Mental or
Emotional Injury
Kerr v. Puckett, 138 F.3d 321
(7th Cir. 1998). The plaintiff
alleged that drug treatment
programs constituted
"brainwashing" in violation of his
constitutional rights. The action
is not barred by the PLRA's
mental or emotional injury
provision because the plaintiff
filed after he was released. A
"prisoner" is not an "ex-prisoner"
for the statute's purposes. This
distinction makes "a modicum of
sense: Congress deemed
prisoners to be pestiferous
litigants because they have so
much free time on their hands and
there are few costs to filing suit.
Opportunity costs of litigation
rise following release, diminishing
the need for special precautions
against weak suits." (323)
The defendants are entitled to
qualified immunity because no
court has held that programs
designed to change people's
values are unconstitutional, and
the details of the program he
complained about are common to
AA, military basic training, and
prison boot camp programs.
They do not violate the Eighth
Amendment.
PLRA--Filing Fees/Appeal
Thompson v. Drewry, 136
F.3d 984 (5th Cir. 1998). The
plaintiff was ordered to pay an
25

Spring/Summer 1999

argument is meritless. At 335:
"Sandin dispensed with
mechanical distinctions such as
the one Arce offers and instead
established an analysis under
which the degree and duration of
an inmate's restraint are the key
considerations to determine the
existence of a state-created liberty
interest."
The district court sufficiently
examined the circumstances of
the plaintiff's 18-day segregation,
mentioning the deprivation of
exercise and verbal harassment as
well as the confinement itself
The deprivations he suffered were
not more onerous than those
sanctioned in Sandin. The court
mentions his sentence of25 years
to life and notes that he was
permitted to leave his cell to
Procedural Due Process-shower and use the telephone.
Administrative
The district court improperly
Segregation/Access to Courts-Confiscation and Destruction of granted summary judgment on the
plaintiff's claim that he was denied
Legal Materials
Arce v. Walker, 139 F.3d 329 court access by destruction of his
(2d Cir. 1998). At 334: A prison legal documents and by other
abusive actions in retaliation for
inmate is now required to meet a
his litigation, since the defendants
two-part test to establish the
did not show the lack of material
existence of a liberty interest
factual issues.
arising under a state statute or
regulation: the inmate must
establish that his confinement or
Habeas Corpus
restraint (1) creates an "atypical
Buchanan v. Gilmore, 139
and significant hardship ... in
F.3d 982 (4th Cir. 1998). The
plaintiff, scheduled for execution,
relation to the ordinary incidents
of prison life," Sandin, and (2)
complained that the Governor
who passed on his clemency
that "the state has granted its
application was the Attorney
inmates, by regulation or by
statute, a protected liberty interest General at the time of prior
proceedings in his case. Since his
in remaining free from that
confinement or restraint," Frazier underlying claim in the clemency
v. Coughlin.
application concerned error at
trial, the relief he sought (stay of
Sandin is not limited to
punitive segregation; the
execution until his clemency

initial filing fee of$1.80, but did
not; the court decided that he had
shown good cause for failing and
directed that he pay the full fee in
installments. The plaintiff
appealed.
The order requiring payment
of the fee is not appealable until
entry of a final judgment. Before
.the PLRA, an order denying IFP
status was an appealable final
order, but an order to pay in
installments is not appealable as a
final judgment because it does not
end the litigation on the merits
and does not close the courthouse
door on the plaintiff Nor is it an
appealable collateral order
because there is no risk of
important and irreparable loss.

The National Prison Project JOURNAL

Spring/Summer 1999

v. Garner. The defendants failed jurisdiction since the entire action
was dismissed and the court did
to show that there was no
not specify that it was dismissed
material issue of fact as to the
without prejudice.
objective reasonableness of their
The district court's action was
conduct.
not an abuse of discretion. The
At 452: "Although the point
at which an arrest ends and
court exercised "informed
pretrial detainment begins is not
discretion" and weighed the
claimed right to privacy against
always clear, ... we have held
Pre-Trial DetaineeslUse of
the countervailing public interest,
that the Fifth or Fourteenth
Force--Restraints
noting that the plaintiffs identity
Amendments begin to protect
Gutierrez v. City ofSan
was already known to the state
persons' after the incidents of
Antonio, 139 F.3d 441 (5th Cir.
agency and staff, and there is
1998). The decedent was
arrest are completed, after the
prejudice to the public in not
arrested in an irrational state,
plaintiff has been released from
knowing how public funds are
saying that he had "shot some bad the arresting officer's custody,
being spent.
coke." He was too violent for
and after the plaintiff has been in
detention awaiting trial for a
EMS to take him to the hospital,
significant period of time. '"
so the police hog-tied him in the
Hazardous Substances and
back of their car and drove to the (Emphasis in original) The
ConditionslNegligence,
hospital. He was DOA. The
Fourth Amendment applies here
Deliberate Indifference and
because the hog-tying was done
medical examiner said the hogIntent/Mootness
Scott v. District ofColumbia,
by the arresting officers near the
tying contributed to his death.
139 F.3d 940 (D.C.Cir. 1998).
scene of the arrest.
The defendants were not
The district court enjoined the
entitled to qualified immunity
defendants to provide the
based on the lack of case law
PrivacylPregnancy, Childbirth
plaintiffs a smoke-free
holding that hog-tying is
and AbortionlProcedural,
unconstitutional. At 446:
environment at Lorton. The case
Jurisdictional and Litigation
"Whether a seizure is reasonable
was not certified as a class action
Questions
and the plaintiffs have either been
under the Fourth Amendment
MM v. Zavaras, 139 F.3 d
depends not only upon whether
798 (10th Cir. 1998). The
released or transferred to a
the seizure itself is unreasonable,
plaintiff alleged that prison
private prison in Ohio pursuant to
but also upon how the police
officials had denied her funds for
the National Capital
seize the individual or item . . . .
transportation and medical
Revitalization and Selfexpenses for abortion, and she
The Fourth Amendment's
Government Improvement Act of
prohibition of the use of excessive requested leave to proceed
1997. At 941: "Normally, a
pseudonymously. The district
force by the police against seized
prisoner's transfer or release from
persons had thus been clearly
court denied the motion, which
a prison moots any claim he might
established prior to November
violated the court's procedural
have for equitable relief arising
1994." Since there are studies
rules including the obligation to
out of the conditions of his
from before that time indicating
confer with the adversary. The
confinement in that prison ....
that hog-tying is a contributor to
district court struck the complaint The cases do not distinguish
"Sudden Custody Death
and dismissed the action when the between intra- and interSyndrome," there was evidence
plaintiff did not comply with the
jurisdiction transfers of inmates."
that hog-tying is deadly force,
court's order that she ratify the
(Footnote omitted.) The court
subject to the "threat of serious
complaint by disclosing her name. does not buy the "capable of
harm" requirement of Tennessee
The court has appellate
repetition, yet evading review"
petition could be considered by
someone else) was really habeas
relief that could not be obtained
under § 1983, and was also a
successive habeas motion barred
by statute since the Supreme
Court had rejected his claims.

26

The National Prison Project JOURNAL

doctrine in this instance because
deliberate indifference, since there
nothing supports the likelihood of was no evidence of an
the transferred plaintiffs returning "objectively intolerable risk." At
944: "It makes no sense to charge
to Lorton. However, the
someone with improperly
injunction applies to them no
matter where they are, so long as ignoring a danger that never
existed." Id.: "Besides, it is hard
they are under the District's
jurisdiction, so the case is not
to see how imperfect enforcement
of a nonsmoking policy can,
moot.
The appeals court
alone, satisfy Helling's subjective
characterizes the district court as
element. That the District even
holding that "involuntary
has such a policy militates against
exposure to any level of seconda finding of deliberate
hand tobacco smoke in prison
indifference." (944) There was,
violates the Eighth Amendment." in fact, considerable evidence of
(942) There is no such per se
enforcement of the policy.
rule in Helling. The plaintiffs
case lacked evidence to satisfy
PLRA--Exhaustion of
Hellings standard, consisting
Administrative Remedies
Brown v. Toombs, 139 F.3d
entirely of anecdotal evidence and
containing no "objective evidence 1102 (6th Cir. 1998). At 1104:
[indent]In light of the plain
of the level of second-hand
smoke," except for the
mandatory language of the statute
defendants' measures that showed regarding exhaustion of remedies,
them to be within OSHA and
the legislative purpose underlying
American Society of Heating,
the plain language, and the sound
Refrigerating, and Air
policy on which it is based, this
Conditioning Engineers
court will henceforth require that
standards. Although they
prisoners filing § 1983 cases
presented an expert who testified
involving prison conditions must
that second-hand smoke would
allege and show that they have
aggravate the plaintiffs' alleged
exhausted all available state
health problems, one plaintiff
administrative remedies. A
identified no specific medical
prisoner should attach to his §
conditions, and the other (who
1983 complaint the administrative
had asthma and a history of
decision, if it is available, showing
the administrative disposition of
thyroid cancer) presented no
evidence of causal relationship
his complaint. Exhaustion applies
between his condition and an
only to cases filed on or after
increased risk of harm from
April 26, 1996, the effective date
second-hand smoke. The expert, of the Prison Litigation Reform
who testified that risks of harm
Act.
varied tremendously with the
This requirement should be
enforced sua sponte. This case
individual, did not examine the
plaintiffs.
should be dismissed without
There is also no showing of
prejudice. Absent a record
27

Spring/Summer 1999

showing exhaustion, the appeals
court will dismiss appeals without
prejudice.

Judicial Disengagement
Cody v. Hillard, 139 F.3d
1197 (8th Cir. 1998). The
defendants moved to dissolve a
long-standing consent decree,
alleging substantial compliance,
the district court granted the
motion over the plaintiffs'
objections. The motion was filed
10 days before the PLRA was
passed, and the PLRA is not
mentioned in this opinion.
Terminating jurisdiction over
a consent decree rests in the
discretion of the district court,
which should weigh specific terms
governing continuation or
supervision; the decree's
underlying goals; whether there
has been compliance with orders;
whether defendants made a good
faith effort to comply; the age of
the decree; and the continuing
efficacy of its enforcement. Here,
there was evidence of past failure
to comply with the decree and
supplemental orders and of some
remaining violations of the
decree. The district court's order
does not indicate whether he
ignored this evidence or
considered it inconsequential. At
1199: "Moreover, the ultimate
question of whether the
defendants are likely to comply
with the Constitution in the
absence of court supervision is a
question offact, see Dowell . ..,
for which the district court made
no finding." J:he court does not
determine whether Rule 52,
Fed.R.Civ.P., requires findings of

The National Prison ProjectJOURNAL

Spring/Summer 1999

Procedural Due Process-Disciplinary
ProceedingslHabeas Corpus
Sylvester v. Hanks, 140 F.3d
713 (7th Cir. 1998). The
petitioner was sentenced to three
years in punitive segregation for
inciting a riot based on the view
that he was the "Baye" referred to
in an intercepted letter.
The court expresses doubt
whether this case should proceed
under 28 U.S.C. § 2254, which
permits attacks on the fact or
Prison Records/Judicial
duration of "custody." Sandin,
Immunityflnjunctive Relief
by implying that the difference
Hill v. Sciarrota, 140 F.3d
210 (2d Cir. 1998). The plaintiff Protection from Inmate Assault between segregation and general
population is not a deprivation of
Jackson v. Everett, 140 F.3d
alleged that probation personnel
included in their report erroneous 1149 (8th Cir. 1998). The
liberty, indicates that it can't be
information that hurt his chances
defendant got an anonymous note "custody" either. This makes a.
that another inmate would kill the difference for procedural reasons
of getting parole and excluded
him from temporary release
plaintiff. He investigated, both
such as the need for a certificate
programs.
inmates denied any problems; the of appealability and the
State law provides a
night passed without incident; and applicability ofPLRA. The court
procedure for challenging
he reported the incident when his notes that recent Seventh Circuit
allegedly erroneous information in shift ended the next morning.
precedent holding that Balisok
the criminal proceeding. In
The plaintiff was stabbed by the
precludes use of § 1983 to
addition (at 214): "In a suit
same inmate later that day.
challenge segregation may require
The defendant was not
use of § 2254--though that case
against custodial officials, an
deliberately indifferent. There
inmate has a constitutional right
did not attempt to reconcile its
was a known risk and he took
to challenge the accuracy of the
holding with Sandin and the fact
information contained in his PSR steps to protect the plaintiff; when that few states afford collateral
and in his prison records." (The
the risk did not materialize, he
review of prison disciplinary
state ceurt case cited as authority reported the incident and went off decisions. The court cites
cites Paine v. Baker.) There is a
Spencer v. Kemna and notes the
duty, at:Id had no knowledge of
right to review the PSR for parole any risk subsequent to that. The
new majority to treat
hearings and challenges to parole district judge's conclusion that it
Heck/Balisok as inapplicable
denials. In light of these
was "unreasonable" for the
when collateral review is
procedures, probation officials
defendant not to search the two
unavailable. The court concludes
it need not decide the issue.
enjoy absolute immunity from
men for weapons immediately
The "some evidence"
damage liability for preparing and does not suffice to avoid
standard--and its concomitant
furnishing such reports to the
summary judgment;
court. (The reasoning is not .
scrutiny of the record of prison
reasonableness is a negligence
spelled out.)
disciplina,ry proceedings--may not
standard. (The court ignores the
fact that it is also the language of apply to discipline short of good
The plaintiff is not entitled to
time deprivation. The letter, the
an injunction against the
Farmer v. Brennan).
fact and conclusions of law on
motions to dissolve an injunction;
the court can remand for findings
and conclusions if its review
would be hindered without them.
The necessity of an evidentiary
hearing depends on whether there
are disputed factual questions,
which is the case here; the district
court should either hold such a
hearing or articulate the rationale
that would make it superfluous.

28

probation personnel on the
ground that their report is causing
him problems in prison and with
parole. His remedy is to sue
probation and parole personnel if
they are using erroneous
information.
The court mentions that §
1983 was amended in 1996 to
preclude injunctions against
judicial officers for judicial acts
unless a declaratory judgment was
first violated, or was unavailable.
Pub.L. No. 104-317, § 309(c),
110 Stat. 3847, 3853.

The National Prison Project JOURNAL

fact that the petitioner is called
"Baye," and the fact that he had
been heard to talk about a
demonstration were "some
evidence."
The issues on this petition are
supposed to be circumscribed by
the habeas certificate of
appealability. The court ignores
other issues raised by the
petitioner, except for one that has
"potential merit" but is not "close
enough" to call for a response by
the defendants.
Due process was not denied
by the failure of prison officials to
do anything more when two of
the requested inmate witnesses
declined to give written
statements. Defendants were not
obligated to make them appear in
person or elicit reasons for their.
refusal. The court distinguishes
prior precedent (Forbes v. Trigg)
on the ground that it involved
good time. At 715: "When the
sanction is less onerous, the
Constitution requires less . . . ."
When only "custody status" is at
issue (at 716): "A prisoner is
entitled to some kind of hearing,
but an opportunity to present his
own testimony, documentary
evidence, aQ.d the testimony of
willing witnesses is
constitutionally sufficient for
interests of this kind (if, to repeat,
any process at all is due)."
It is unclear why the court did
not address whether Sandin
eliminates any due process rights;
defendants argued the question.

PLRA--Filing Fees, Three
Strikes/Access to Courts-Punishment and Retaliation

29

Spring/Summer 1999

Lucien v. DeTella, 141 F.3d
responsible to make sure that
773 (7th Cir. 1998). An
enough money to cover the 20%
allegation that the plaintiff was
of income requirement remains in
his account, and also to notice
classified as an escape risk
prisons' mistakes and keep
because of his litigation makes
enough money on hand to cover
out a constitutional claim.
The plaintiff was assessed a
them too. At 776: "Lurking in
partial filing fee of $18, refused to the background is the question
whether the prison itself may be
pay though he had the money,
liable if it fails to comply with a
and the district court refused to
file the complaint. At 774: "That judicial order under the PLRA."
some of the income in the trust
fund came from family members
Searches--Person-is irrelevant. Gifts become the
ConvictslW'omen
property of the recipient.'~
Peckham v. Wisconsin Dept.
Because the complaint was never ofCorrection, 141 F.3d 694 (7th
filed, the plaintiff owes nothing to Cir. 1998). The female plaintiff
complained of numerous strip
the district court.
The plaintiff. probably has
searches. The court holds that
three strikes. In the future,
prisoners retain "some rights
district courts should determine
under the Fourth Amendment"
whether the prisoner is eligible for (696-97 and n. 2), but it is
partial and installment payments
difficult to imagine many real-life
before calculating the payments.
scenarios where strip searches
The district court is affirmed.
would be unreasonable under the
The plaintiff cannot recover what Fourth Amendment, and the ones
in this case were not
he has paid of the appellate fee.
unreasonable. At 697: "More
At 775: "All the partialprepayment and periodic-payment importantly, regardless of how
provisions in the amended § 1915 one views the Fourth Amendment
do is provide a means to collect
in this context, it is the Eighth
from prison trust accounts sums
Amendment that is more properly
that prisoners owe independently
posed to protect inmates from
unconstitutional strip searches,
of § 1915 ... ."
notably when their aim is
The filing fee provisions are
punishment, not legitimate
not unconstitutional.
institutional concerns." Here
The court notes that the
there is no evidence that the
prison has not remitted the
correct amount from the
searches were for harassing or
plaintiff s prison account and
punishing purposes.
describes what it has done as
The court politely rejects
"inexplicable." Since the fee
Judge Easterbrook's assertion in
should have been paid in full, all
Johnson v. Phelan that prisoners
have no reasonable expectations
monies from whatever source
should be remitted to the court
of privacy, which he arrived at by
pretending that Hudson v. Palmer
until it is paid. The prisoner is

The National Prison Project JOURNAL

Spring/Summer 1999

Louisiana, 136 F.3d 430 (5th Cir.
1998). The ADA is a permissible
exercise of Congress' authority
under the Fourteenth Amendment
to override the Eleventh
Amendment. Under City of
Boerne, the court must assess
whether there is "congruence and
Pro Se Litigation
Murray v. Archambo, 132
proportionality" between the
injury to be remedied and the
F.3d 609 (lOth Cir. 1998). The
means adopted. That standard is
pro se plaintiff should not have
met here given the record in
had his case dismissed, with the
Congress. The court should defer
court
deeming
defendants'
Drug Dependency
to Congress on such questions,
summary judgment motion
TreatmentlFederal Officials
confessed, for missing by one day especially iIi dealing with disabled
and Prisons/Ex Post Facto
a 15-day deadline for responding
people, since the Supreme Court
Laws
Roya/v. Tombone, 141 F.3d
to the motion. The court failed to in Cleburne said that Congress
was the "ideal governmental
596 (5th Cir. 1998). The
consider the required factors of
branch" to address their legal
actual prejudice, amount of
petitioner was denied sentence
treatment. (The City ofBoerne
reduction notwithstanding his
interference with the judicial
completion of a drug abuse
process, and the culpability of the inquiry is not an Eleventh
Amendment question; it is a
program in custody. The Bureau litigant.
question about the
ofPrisons had discretion under
constitutionality of the statute as
the statute to declare bank
Disabled
Autio v. AFSCME, Local
applied to any non-federal
robbery a crime of violence
instrumentality. However, the
3139, 140 F.3d 802 (8th Cir.
excluded from the sentence
court treats it as part of the
reduction program. The previous 1998). The Americans with
Seminole Tribe inquiry, one
policy, under which the petitioner Disabilities Act does not violate
might have received a sentence
the Eleventh Amendment. Unlike prong of which is whether
Congress acted "pursuant to a
reduction, conflicted with the
the Religious Freedom
Restoration Act, it is "plainly
valid exercise of power. ")
underlying statute and was
erroneous as a matter oflaw.
adapted" as a remedial measure
even if it prohibits conduct that
Application of the revised policy
Religion
mayor may not be
In re Young, 141 F.3d 854
to the petitioner did not violate
the Ex Post Facto Clause.
unconstitutional. Its remedies are (8th Cir. 1998). The Religious
not so sweeping that they exceed Freedom Restoration Act
the
harm they were created to
continues to apply to the federal
NON-PRISON CASES
Bankruptcy Code, and as so .
redress. Congress in Cleburne
Pleading
recognized that legislation
applied does not violate the
Stevens v. Umsted, 131 F. 3d
providing special treatment for
separation of powers, since the
697 (7th Cir. 1997). A complaint the disabled serves equal
Constitution gives Congress
that fails to specify the capacity in protection and that such decisions power over bankruptcy and the
are peculiarly the legislature's
which the defendants are sued is
Necessary and Proper Clause
gives it broad authority to
usually construed to be against
prOVince.
them in their official capacities,
legislate concerning bankruptcy.
Coolbaugh v. State of
but that fact is not conclusive.
RFRA does not violate the

addresses bodily privacy. Judge
Easterbrook defends Johnson in
his concurrence.
Among the strip searches
complained of are "adjustment
time" searches, which are done
when a prisoner in segregation
receives additional segregation
time, even if she doesn't leave the
unit. No explanation for this
practice appears in the opinion.

30

Where the parties have operated
under the assumption that it is an
individual capacity suit and the
defendants have raised qualified
immunity, it should be treated as
an individual capacity case.

The National Prison ProjectJOURNAL

Establishment Clause.

Norton.
At 37: "The plaintiffs
allegations that he was beaten
until he lost consciousness meet
the objective component of this
inquiry." Allegations that the
defendants beat him in retaliation
Parties DefendantlMedical
CarelUse of Force/Pro Se
for the stabbing of the injured
Litigation/SanitationLAdministr corrections officer, not in order to
ative Segregation/Appointment preserve order (sic), would if true
establish malicious and sadistic
of Counsel
Arnoldv. Moore, 980 F.Supp. intent. The case is "more than
28 (D.D.C. 1997). The plaintiff
one of mistaken identity."
alleged that he was trying to help
The plaintiffs failure to
an officer injured in a disturbance identify the officers who beat him
when other officers
did not require dismissal of his
misinterpreted his actions and
complaint; he should have an
beat him badly even though he did opportunity for discovery.
The court directs the
not resist. He was placed for
appointment of counsel.
several days in a feces-infested
cell without heat, running water,
and with garbage and urine on the PLRA--Filing Fees
floor, without bedding, a
Copley v. Henderson, 980
jumpsuit, and eating utensils. He F.Supp. 322 (D.Neb. 1997). The
was denied medical care for days. plaintiff voluntarily dismissed his
At 33: " ... [T]he Court has action without prejudice and
moved to stop collection of the
a special responsibility to allow
ample opportunity for amending
partial filing fee, based on the
magistrate judge's statement that
pro se 'complaints ...." The
this is permissible. The court is
court treats affidavits submitted
by the plaintiff as amendments
not authorized to stop collecting a
fee once the complaint is filed.
rather than matters outside the
pleadings.
Because the plaintiff dismissed
The D.C. Department of
based on this incorrect advice, the
Correction~ is not a suable entity. district judge construes the
motion as one for relief from
The alleged conditions of
confinement "may be sufficient to judgment under Rule 60(b),
Fed.R.Civ.P., and reinstates the
show a denial of the minimal
action to give the plaintiff the
civilized measures of life's
chance to decide if he wants to go
necessities." (35) However,
there is no evidence of the
forward.
Warden and Commissioner's
knowledge of them, and in fact
Federal Officials and
PrisonsIPLRA--Screening and
the Department investigated and
removed the plaintiff after his
DismissallMedical CarelWork
complaints to Eleanor Holmes
AssignmentslPersonal
31

Spring/Summer 1999

Involvement and Supervisory
Liability
Johnstone v. United States,
980 F.Supp. 148 (B.D.Pa. 1997).
The screening and dismissal
provisions of the PLRA apply to
complaints filed before the
statute's passage because they are
merely procedural changes.
Bivens claims may only be
brought against federal officers;
claims against the United States
or its agencies are barred by
sovereign immunity.
Bivens claims may not be
predicated on respondeat
superior liability. (151, collecting
cases) At 152: " ... [T]he law
of Bivens actions has closely
tracked developments in the law
governing civil rights actions
under § 1983."
The plaintiffs medical care
claim is supported by no
allegations of deliberate
indifference.
The allegation that an officer
assigned the plaintiff to a work
assignment inconsistent with his
medical condition, despite
medical records stating that he
should be restricted to light-duty
work because of his heart
condition, is not "facially
inconsistent" with deliberate
indifference, but is time-barred.
Claims can be dismissed under
Rule 12(b)(6) based on the statute
of limitations, and the PLRA
permits sua sponte dismissals
under that rule, but there is a
question of procedural fairness in
doing so. The court resolves it
against the prisoner without
qualm.
'

The National Prison Project/OURNAL

MootnesslDisabledlProcedural
Due Process--Classification,
Disciplinary ProceedingslEqual
ProtectionlPendent and
Supplemental Claims; State
Law in Federal Courts
Randolph v. Rodgers, 980
F.Supp. 1051 (E.D.Mo. 1997).
The claims of the hearingimpaired plaintiff were not
mooted by his transfer from one
prison to another because his
claims are capable of repetition.
At 1057: "Neither plaintiffs
deafness nor his life sentence . . .
is at all likely to change. If relief
were denied as moot, defendants
could simply transfer plaintiff
back and forth . . . to evade
review of these issues by any
Court."
The failure to provide a sign
language interpreter at
disciplinary hearings, resulting in
two 30-day terms of segregation
and reclassification, did not deny
due process because the
consequences were not atypical
and significant under Sandin.
Disabled people are not a
suspect class. The plaintiff was
not treated differently from
similarly situated persons; his
complaint is that he was treated
the same. Therefore equal
protection is not violated.
The ADA and the
Rehabilitation Act apply to state
prisoners. However, the
individual defendants are not the
proper defendants. It is
discrimination by the "public
entity" that is forbidden, and the
state Department of Correction is
the only proper defendant.
Alternatively, the defendants are
32

entitled to qualified immunity,
since there was no binding
authority that the statutes apply
to prisoners.
The plaintiffs failure to ask
for an interpreter each time he
sought medical care and each
time he received a conduct
violation does not disqualifY him
from relief; he asked often
enough, and was refused. The
plaintiff is disabled and is
otherwise qualified for such
benefits as medical care,
educational training, and
participation in disciplinary and
classification proceedings, and
has not received the full benefit of
them. Written communications
and patience on the part of
medical providers and teachers
are not sufficient accommodation.
The accommodation sought is not
excessively burdensome; the
plaintiff does not seek round-theclock service, and all the activities
at issue (educational programs,
disciplinary and classification
hearings, and non-emergency
medical care) can be scheduled in
advance. No factual question is
presented because these services
are required by state statute; thus,
the legislature "has determined
that prqviding such services in the
limited circumstances sought by
plaintiff is not unduly
burdensome. It is, after all, the
state legislature that controls the
defendants' budget, and the
Missouri Department of
Corrections should not be able to
argue to this Court that the state
legislature's determination is
factually incorrect." (1062)
Defendants are also liable

Spring/Summer 1999

under a state statute providing for
interpreters in prison. A private
right of action will be implied
where the legislature has failed to
provide for any other form of
enforcement. Pennhurst is not
mentioned.
The plaintiff is granted
summary judgment on his
injunctive claims.

Rights of Staff
Weicherding v. Riegel, 981
F.Supp. 1143 (C.D.Ill. 1997). An
officer's Ku Klux Klan activities,
which included a rally at his house
and the distribution ofK1an
literature, involved a matter of
public concern, but it was not
clearly established that his Fir~t
Amendment rights outweighed
prison officials' interests in
maintaining racial harmony. The
defendants are therefore entitled
to qualified immunity for firing
him.
Pre-Trial DetaineeslProtection
from Inmate
Assault/MunicipalitiesIPLRA-Mental or Emotional
InjurylLaw Libraries and Law
Books
Heisler v. Kralik, 981 F.Supp.
830 (S.D.N.Y. "1997). The
plaintiff, charged with sexual
assault on a minor, was held in jail
in New Jersey and was transferred
to a New York jail, where he was
assaulted and suffered contusions
and swelling. He was placed in
protective custody until his
transfer to state prison.
Defendants' position that
prison officials are liable for
failure to protect only if a serious

The National Prison Project JOURNAL

physical injury results is
he was on duty for a four-month
inconsistent with Farmer v.
period.
Allegations of denial of law
Brennan. At 837: "In sum,
prison officials have a
library access are dismissed
constitutional duty to act
absent allegations of harm; the
reasonably to ensure a safe
plaintiff said he pled guilty to
escape conditions in the New
environment for a prisoner when
they are aware that there is a
Jersey jail and doesn't say how
significant risk of serious injury to not going to the law library
that prisoner.... [T]he focus of .caused this result.
The allegation that the Sheriff
inquiry must be, not the extent of
the physical injuries sustained in
is a policymaker for the County
an attack, but rather the existence on inmate security supports a
claim of municipal liability.
of a 'substantial risk of serious
harm. '" (837) Even in medical
care cases, deliberate indifference Protection from Inmate
to a substantial risk of future
AssauItNerbal
harm is actionable.
Abuse/Summary Judgment
Defendants' argument that
Watson v. McGinnis, 981
warnings passed to the New York F.Supp. 815 (S.D.N.¥. 1997).
jail from the New Jersey jail
Intentionally calling a pri'soner a
snitch in order to do him harm
established only that he was at
risk in New Jersey is rejected,
states an Eighth Amendment
since the danger stemmed from
excessive force claim. However,
his crime and the likely reaction
the officer is entitled to summary
judgment because the plaintiff had
of other prisoners.
no admissible evidence that he
In 1994, it was clearly
had done this; it was all hearsay
established that "intentional or
reckless failure to take reasonable from other inmates.
measures to protect a prisoner
from threatened violence, even in Searches--PrisonlPendent and
the absence of a prior act of
Supplemental Claims; State
violence directed at that inmate,
Law in Federal Courts
Thomas v. Irvin, 981 F.Supp.
can createJiability" (839), and
that the risk of injury is
794 (W.D.N.¥. 1997). The
plaintiff was placed on "drug
actionable.
The PLRA's mental or
watch" for seven days in a dry
emotional injury provision does
cell.
not apply retroactively to cases
At 798: "... [A] prison
filed before PLRA's enactment.
inmate does not have a viable
The plaintiffs complaints of
claim based solely on prison
officials' failure to adhere to the
denial of access to showers and
recreation and the ability to clean requirements of prison
his cell stated a claim against an
regulations, directives or policy
statements. II
officer who was alleged to have
Placement in drug watch did
denied these items every time that
33

Spring/Summer 1999

not deny due process because it
was not atypical and significant
under Sandin. The room the
plaintiff was kept in was larger
than the average cell, was
equipped with all essential items
for rest and hygiene, he was
allowed to exercise and smoke,
and he received regular meals and
daily medical attention.
Defendants also have a substantial
penological justification: stopping
the drug trade.
Drug watch did not violate
the Eighth Amendment because
of the alleged lack of ventilation;
the plaintiffwas not placed at a
substantial risk of serious harm
and did not have any symptoms of
respiratory problems, and
defendants paid enough attention
to him not to be deliberately
indifferent.
PLRA--Exhaustion of
Administrative
RemedieslProcedural Due
Process--Disciplinary
Proceedings,
Transfers/MootnessIPLRA-Mental or Emotional Injury
Evans v. Allen, 981 F.Supp.
1102 (N.D.Ill. 1997). A plaintiff
who alleged that he used the
grievance system, without a
sp~cific statement that he
exhausted, alleged sufficient facts
that he might prove exhaustion;
the court directs him, since he has
to file an amended complaint
anyway, to allege exhaustion
more specifically.
The plaintiffs complaints of
218 days in segregation, being
restrained in cuffs and chains at
visits, being subjected to racial

The National Prison Project JOURNAL

Spring/Summer 1999

appellate proceedings were
completed--a second disciplinary
charge was filed based on the
criminal conviction itself. The
plaintiff was convicted and
sentenced to seven years in SHU,
reduced on administrative appeal
back to five years. The state
courts reversed and ordered
expungement again, holding that
the new sanction was contrary to
the prior order requiring
expungement. The plaintiff had
spent two years in SHU.
The plaintiff asserted
substantive, not procedural, due
process, thereby subjecting
himself to a standard of
"arbitrary, conscience-shocking,
or oppressive in a constitutional
sense" (194, citation omitted). .
Bringing a second disciplinary
proceeding doesn't meet this
standard, though it may have been
"incorrect or ill-advised." In any
case the defendants enjoy
qualified immunity. Although
there might be a clearly
established right not to be
confined after a favorable judicial
decision, it was not so clear that
the second disciplinary
Procedural Due Process-proceeding was barred based on
Disciplinary Proceedings
Howard v. Pierce, 981
the state court proceedings here
Sexual AbuselDiscovery
Giron v. Corrections Corp. of F.Supp. 190 (W.D.N.Y. 1997).
when the prisoner had been
The plaintiff was found guilty in a subsequently convicted in criminal
America, 981 F.Supp. 1406
(D.N.M. 1997). The plaintiff
disciplinary proceeding of
court.
alleged that she was raped by a
murdering another inmate and
The defendants did not
correctional officer at a private
was sentenced to 5 years in SHU. dispute, and the court accepts for
prison. The defendant demanded A state court reversed and
the sake of argument, that the
that she list all her sexual contacts ordered the conviction expunged
segregation time here was
starting five years before the
on the ground that the wrong date atypical and significant under
alleged rape, and provide manner, appeared in the misbehavior
SandhI.
type, date, location, and "all
report. The prisoner was then
persons present" during each
judicially convicted of murder.
Husbaluis v. McClellan, 990
sexual contact.
The next year--but before the
F.Supp. 214 (W.D.N.Y. 1998).

abuse, having bodily fluids
thrown on him, and being so
stressed that he attempted suicide
do not establish that conditions
were significantly more harsh than
in the general prison population.
He was not denied a liberty
interest under the Sandin
"atypical and significant"
standard.
Denial of a transfer did not
deny due process.
The filing offalse disciplinary
charges does not deny due
process.
Prisoners may be required to
request witnesses in advance at
disciplinary hearings. Day-ofhearing requests may be
summarily denied.
A transfer from one prison to
another moots injunctive claims
arising from the first prison unless
the plaintiff can demonstrate he is
likely to be transferred back.
The plaintiffs claims are
barred by the PLRA mental or
emotional injury provision since
he alleges no physical harm; the
claim that bodily fluids were
thrown on him does not satisfy
the statute.

34

Under Rule 412, Fed.R.Ev.,
as amended in 1994, evidence of
sexual behavior or predisposition
is admissible only if the proponent
demonstrates its admissibility and
shows that its evidentiary value
substantially outweighs the
dangers, including harm to the
victim as well as prejudice to the
parties. At 1407: "Although
Rule 412 controls the
admissibility of evidence rather
than its discoverability, it must
inform that proper scope of
discovery in this case."
The defendant argued that the
plaintiff had put her mental and
emotional condition in issue and
that he needed to speak to her
former sexual partners to learn
her pre-existing condition. The
court observes that this
information would be outside
their expertise. As to her mental
condition, the court holds that the
evidence is relevant only to the
extent that such sexual contact
caused pain and suffering, i.e.
"were violent or damaging to her
in any way."

The National Prison ProjectJOURNAL

The plaintiff was sentenced to a
year in SHU with a
recommendation of a year's loss
of good time; he obtained
administrative reversal after
serving about six months.
The court had previously
dismissed on the ground that
there was no liberty deprivation
under Sandin. Miller v. Selsky
does not change this result; the
loss of privileges, the neverimplemented loss of good time,
and the six months' confinement
are not atypical and significant.
The court cites evidence that
many of the inmates in SHU had
such sentences. The conditions
are not "dramatically different"
from those in general population,
and prisoners could be placed in
similar circumstances in
administrative segregation at will.

Whitlock v. Johnson, 982
F.Supp. 615 (N.D.IlI. 1997). The
prison Adjustment Committee
barred all in-person witness
testimony, "calling" witnesses
only by written statements
generated from ex parte
interviews by unsworn hearing
investigators. Although prison
officials have a great deal of
discretion in' determining whether
witnesses can be called, they must
exercise that judgment case by
case. At 619: The defendants'
practice "does not merely qualify
an inmate's right to call witnesses-it eviscerates it." Summary
judgment is granted to the
plaintiffs and the parties are
directed to confer on the form of
a final judgment.

35

Heating and VentiiationNerbal
Abuse/Access to Courts-Punishment and Retaliation
Jones v. Bishop, 981 F.Supp.
290 (S.D.N.Y. 1997). The
plaintiffs complaint of a cold cell
resulting from windows being
open did not meet the objective
prong of the Eighth Amendment,
since other inmates remedied the
cold by wearing sweats or long
johns, and the only harm was
depression. Nor did he show
deliberate indifference, since he
did not complain to anyone.
Verbal abuse (here, being
called "super-rape-po" and "tree
jumper," whatever that is) does
not state a § 1983 claim.
Seizure of the plaintiffs
indictment and delay in giving him
access to law books did not deny
access to courts in the absence of
proof of injury.
Access to Courts--Punishment
and Retaliation
Davis v. Kelly, 981 F.Supp.
178 (W.D.N.Y. 1997). Transfers
may not be done in retaliation for
a prisoner's exercise of
constitutional rights. The plaintiff
must show that the conduct at
issue was constitutionally
protected and was a substantial
motivating factor in the decision
to transfer; the defendants must
then show that the prisoner would
have been transferred anyway.
The claim is rejected on the facts.
The supposed reason for the
transfer was that "plaintiff had
been incarcerated at Attica for ten
years and had become too familiar
with facility staff and
procedures." (182)

Spring/Summer 1999

Suicide PreventionlRes
Judicata and Collateral
Estoppel/Class Actions--Effect
of Judgments and Pending
LitigationlPendent and
Supplemental Claims; State
Law in Federal Courts/Survival
of Actions and Wrongful Death
Litigation/Color of
Law/Qualified Immunity
McDuffie v. Hopper, 982
F.Supp. 817 (M.D.Ala. 1997).,
The decedent had a long and
well-known history of suicidal
tendencies, but when he got to a
prison with medical services
provided by Correctional Medical
Services, his psychotropJc
medications were stopped and he
was put in isolation, where he
hanged himself.
Medical personnel who
worked for a private provider are
not entitled to qualified immunity;
contrary Eleventh Circuit
authority has been undermined by
Richardson v. Knight. The court
also raises, but does not decide,
whether the corporation itself-since it is treated like a
municipality for purposes of the
policy requirement in establishing
liability--should also be treated
like a municipality and denied
qualified immunity on that ground
as well.
The court recites the Eleventh
Circuit boilerplate on prison
suicide. The court notes the
utility of expert testimony in a
case of this nature. Liability is
supported here by testimony that
it is a "serious departure from
contemporary standards of
psychiatric care" to terminate a
large dose of medication without

The National Prison Project JOURNAL

considering alternatives and not
to contact the patient's previous
physicians, and that putting him in
isolation worsened the problem.
Solitary confinement is not
treatment. The corporation had a
policy of reducing medications
without a clear rationale and
without a system for monitoring
the consequences. Another
expert testified that defendants'
view that the decedent was faking
his symptoms was "markedly
erroneous" in view of his history
and that the defendant doctor
inappropriately brought
punishment factors into his
treatment. The fact that the
decision to take a person off
suicide watch is a professional
decision does not settle whether
defendants were exercising
professional judgment when the
decedent died.
A pending class action
concerning mental health
conditions does not preclude this
case. Since there is no final
judgment, there is no res judicata
issue, and since nothing has been
found factually, there is no
collateral estoppel.
The plaintiffs claims do not
abate ul\Per a state statute which
has been interpreted to mean that
unfiled tort claims do not survive
the plaintiffs death. At 830: "As
is demanded by logic, the statute
has been held not to abate actions
for wrongful death." Claims for
personal injury damages to the
plaintiff himself before death do
abate.

LightinglLength of Stay/Cruel
and Unusual Punishment-36

Spring/Summer 1999

Snelling v. Riveland, 983
F.Supp. 930 (E.D.Wash. 1997).
643 (N.D.Iowa 1997). The
The plaintiff complained that
plaintiffs alleged that their cells
letters and copies of Genesis
were illuminated 24 hours a day
magazine were rejected under the
by a 60-watt light bulb which they prison system's prohibition on
were forbidden to cover.
"sexually explicit" materials,
Cases challenging continuous which is itself explicit and
illumination have yielded mixed
detailed. The record showed that
24% of the prison population is
results because such cases are
fact-driven. Here, the plaintiffs
incarcerated for sex crimes, there
alleged that the lighting made it
is an ongoing problem of sexual
very difficult to sleep. The court
assaults, consensual sexual
finds that an inference of
behavior, and sexual harassment
psychological harm arises from
offemale staff, and a "significant
the length of time (283 nights and number" of inmates are infected
550 nights respectively) to which with HIV or hepatitis. There
were around 70 rule infractions
the plaintiffs were subjected to
for sexual or "sexually-related"
"lighting so far removed from
misconduct a year including
natural conditions." (648) til:
several for rape. Defendants'
"There can be little doubt that
subjecting prisoners to continuous policy requires review of each
publication or piece of
darkness would at least raise a
constitutional question. . . . What correspondence individually, with
notification to other facilities
is in question here, continuous
lighting, which is just as foreign a when a particular item is found to
condition as continuous darkness, violate policy. Over two million
should at least raise an inference
publications are made available to
state prisoners through the
of a constitutional violation.
Washington State Library and the
Similarly, the effectiveness of
prisons' own collections.
sleep deprivation as a tool of
The policy is upheld under the
torture has long been
recognized." (Citing 1930 report Turner standard based on
of ABA Committee on Lawless
evidence that "inmates exposed to
Enforcement of Law.)
pornography become desensitized
and require more and more
Summary judgment is denied
graphic material which may
because there are triable issues
both on the question whether the
ultimately result in acting out
objective prong of the Eighth
sexual fantasies. Because of the
Amendment standard are met and lack of physical relationships of
on the question whether it is
choice in prison," the result is an
increased possibility of
penologically necessary for
surveillance to leave the lights on homosexual acts that may spread
all the time.
disease. Aggressive and
predatory behavior that may
result endangers the lives and
Publications

Proof of Harm
Shepherd v. Ault, 982 F.Supp.

The National Prison Project JOURNAL

at issue was adopted with the
safety of staff and inmates.
subjective intent to punish
Material that is degrading to
prisoners because they are
women leads to disrespect for
disabled. (What happened to
female staff. The defendants
deliberate indifference?) A
submitted studies supporting
disincentive to malinger is "penal
these claims, which the plaintiff
in nature," but not cruel.
(proceeding pro se) did not
The ADA applies to state
refute. The policy serves security
and rehabilitation objectives. The prisons.
Prisoners in three subclasses
plaintiffs have alternative means
(inmates unable to engage in any
of exercising their First
Amendment rights because they
work, recreational or training
can read things not prohibited by
activities because of physical or
the policy. The defendants
mental impairment; inmates
cannot control the distribution of receiving mental health treatment,
and inmates housed at a reception
materials once they enter the
prison and cannot keep them from and medical center for treatment)
being read by sex offenders. The are "otherwise qualified" under
the authorizing statute, which
fact that some sexually explicit
provides for gain time for a
materials have been obtained
prisoner who "works diligently,
through the library does not
participates in training, uses time
undermine the policy; these are
simply mistakes.
constructively, or otherwise
engages in positive activities."
The "program," for ADA
Disabled/Good TimelHabeas
purposes, is defined by the statute
Corpus/Class Actions-and not the regulations
Certification of Classes
promulgated under it. A
Raines v. State ofFlorida,
regulation that "fragments" the
983 F.Supp. 1362 (N.D.Fla.
opportunity to earn the maximum
1997). The plaintiffs challenged
gain time by separating the four
restrictions on the award of
statutorily defined activities,
"incentive gain-time" to disabled
allowing healthy prisoners to earn
prisoners. A regulation that had
provided fQ.r the award of gain
the maximum but denying that
time for "positive activities" other opportunity to disabled prisoners
who cannot engage in all four
than work was amended and
made more restrictive.
activities, violates ADA. The
The plaintiffs' allegations do
court rejects the argument that
not support an Eighth
prisoners who are not "routinely
Amendment claim. Liberty is not available for work" are not
a "basic human need" and its
otherwise qualified. At 1374:
denial does not implicate the
"Plaintiffs seek no
Eighth Amendment. Contra,
accommodation," since anybody
Sample v. Diecks, 885 F.2d 1099, can "use time constructively" or
1108 (3d Cir. 1989). Nor is there engage in "positive activities."
any evidence that the regulation
Therefore the question whether
37

Spring/Summer 1999

an accommodation is reasonable,
and the financial and
administrative burdens on the
defendants, need not be
considered. (The court thus
defines a revision in defendants'
regulations as not being an
"accommodation" despite
defendants' claim that the reason
for their policies is to discourage
malingering and false or
exaggerated claims of disability.)
The court raises the question
of whether tile subclass of
persons at reception centers-usually there for specialty
consultations--are appropriately
class-certified, and directs the
parties to address the question at
trial.
Defendants are entitled to
summary judgment as to the
fourth subclass, which apparently
consists of prisoners with some
ability to work, who alleged that
their disabilities weren't taken into
account in allocating gain time.
Defendants' policy is to the
contrary, the statistical differences
betwe~n this subclass and nondisabled prisoners are slight, and
the existence of anecdotal
evidence of individual disparities
does not justify class relief
Damage claims for failure to
award gain time are not within the
court's jurisdiction under Heck v.
Humphrey. At 1376: "The
reasoning of Heck applies
whether a claimant is in or out of
custody." That is probably wrong
under Spencer v. Kemna (U.S.
1998).

PLRA--Filing FeeslHabeas
Corpus

The National Prison Project JOURNAL

Smith v. Coyne, 984 F.Supp.
1186 (N.D.Ill. 1998). The
plaintiffs claims are barred by
Heck v. Humphrey, but the court
imposes the PLRA filing fees
despite the fact that the case
should have been brought as a
habeas petition after exhaustion
of state remedies.

Procedural Due Process-Disciplinary
Proceedings!Access to
CourtslHabeas Corpus
ljarone v. Hatcher, 984

awards summary judgment on his
statement of reasons claim. The
plaintiff is directed to show that
he should be awarded judgment in
an amount greater than $1.00.
The plaintiffs unspecified
court access claim is dismissed for
lack of evidence that being able to
file an opposition to the motion to
dismiss his habeas petition would
have made any difference.

Procedural Due Process-Disciplinary
Proceedings!AccidentslFood
Warren v. Irvin, 985 F.Supp.

F.Supp. 1304 (D.Nev. 1997).
The plaintiffs claim based on a
350 (W.D.N.Y. 1997). The
disciplinary proceeding that
plaintiffs disciplinary conviction
resulted only in segregation is
was reversed administratively, but
barred by Edwards v. Balisok.
he was not released from SHU
The court thinks it is compelled
pending rehearing. After 16 days,
by Ninth Circuit precedent to
he was given a new hearing and
read Balisok broadly. At 1308 n. found guilty and given the same
1: Relief from conditions of
penalty. The decision was
confinement is available via
reversed because the second
habeas corpus in the Ninth
hearing was not timely, and the
Circuit.
conviction was expunged.
Balisok bars only claims that
The 161 days the plaintiff
if accepted would invalidate the
spent in SHU is not atypical and
punishment, so the plaintiffs
significant under Sandin. The
complaint that he was not given a temporary loss of privileges fell
statement ofreasons and evidence "within the expected parameters
is not barred. However,
of the sentence imposed by a
discipliQary segregation does not
court oflaw" (354, citation
constitute an atypical and
omitted). The loss of good time
significant deprivation absent
credits does not deprive a
evidence that segregation
prisoner of liberty if they are
conditions violate the Eighth
completely restored before they
Amendment or would extend the
affect the plaintiffs sentence.
plaintiffs sentence, or that it is
Lengthy disciplinary confinement
different from administrative
is a "normal element of the New
segregation, even though the
York prison regime" according to
plaintiff was in it for a year.
data on the sentences of persons
However, the restitution order of in SHU on a particular date. The
$33.48 deprived him ofa
conditions oflife in SHU "are not
property interest, so the court
dramatically different from those
38

Spring/Summer 1999

experienced in the general
population." (355)
Deprivation of water for three
days because the plaintiff was
flooding his cell and deprivation
of one meal because he refused to
return his tray and cup from the
previous meal did not violate the
Eighth Amendment.
The plaintiffs allegation that
he was injured because
defendants made him store his
property on the floor and the
lights were off in his cell is
dismissed because he did not
explain who turned his lights off
and he used the word "negligent"
rather than alleging deliberate
indifference.

PLRA--Exhaustion of
Administrative Remedies
Alexandroai v. California
Dept. of Corrections, 985
F.Supp. 968 (S.D.Cal. 1997).
The plaintiff checked a box on the
court's form complaint indicating
that he had exhausted his
remedies, but failed to. attach the
documentation required by the
form Or to give any detail of his
exhaustion in the complaint. The
defendants submitted evidence
that he had not exhausted. The
court dismisses his complaint
without prejudice.

PLRA--Exhaustion of
Administrative
RemedieslExhaustion of
Remedies!State Officials and
AgencieslMedical Care-Standards of Liability-Deliberate
IndifTerencelPleadinglPersonal
Involvement and Supervisory

The National Prison Project JOURNAL

Liability
Barry v. Ratelle, 985 F.Supp.
1225 (S.D.Cal. 1997). The
plaintiff alleged that doctors
recommended and state officials
approved hernia surgery but he
never received it, and he also
never received a truss promised
by the prison physicians.
The plaintiff had exhausted
his administrative remedies; he
pursued each level of review and
did not receive responses to his
appeals. He is not required to
comply with the exhaustion
requirements 0f the California
Tort Claims Act to pursue his
federal claim, although he would
have to do so for a pendent state
law claim. The legislative history
ofthe PLRA refers only to prison
grievance procedures, not tort
claim procedures, and there is no
indication Congress intended to
overrule Felder v. Casey.
In the Ninth Circuit, plaintiffs
with claims in which subjective
intent is an element must satisfy a
heightened pleading standard by
stating in their complaints
"nonconclusory allegations setting
forth evidence of unlawful intent
. . . specific and concrete enough
to enable {lefendants to prepare a
response.... " (1239, citation
omitted). Circumstantial
evidence will suffice. The
allegations of knowledge and
failure to act, supported by
correspondence, appeal forms,
etc., indicated that defendants had
the necessary notice.
The complaint does not state
a claim against the prison warden
for denial of medical care because
there are no allegations of
39

personal involvement. At 1239:
"A supervisor may be liable for
constitutional violations of
subordinates, however, if the
supervisor participated in,
directed, or knew of the
violations and failed to act to
prevent them." The plaintiff had
written several times to the prison
medical director, so there was
sufficient allegation of his liability.
The plaintiffs allegation that
defendants allowed him "to
remain in pain for nearly two
years without even giving him a
truss once the need for surgery
was identified" sufficiently alleges
deliberate indifference to a serious
medical need.
The plaintiffs failure to
indicate that the defendants were
sued in their individual capacities
is a pleading defect requiring
dismissal, but the court grants
leave to amend.
Use of ForcelProcedural Due
Process--Disciplinary
Proceedings/Damages-PunitivelEvidentiary
QuestionslPre-Trial
DetaineeslUnsentenced
Convicts and Convicts Held in
Jails
Wilson v. Philadelphia
Detention Center, 986 F.Supp.
282 (E.D.Pa. 1997). The
plaintiff, a federal prisoner
awaiting sentencing, got into a
fight with another inmate, was
struck twice by an officer after he
was in handcuffs, was given a
disciplinary charge, and spent ten
days in segregation before being
found not guilty and returned to
population. A jury awarded

Spring/Summer 1999

compensatory damages of $3,500
and punitive damages totalling
$10,001. The special verdict
form did not separate the claims.
The court applies the Wolfish
standard to this unsentenced
convict; defendants failed to
argue that Wolfish does not apply
until after the trial and the filing
of post-trial motions. In any case
(289 n. 12), the Third Circuit has
held that unsentenced persons are
to be treated like pre-trial
detainees.
The record supported the
conclusion that the ten-day period
of segregation was punitive in
nature; the court cites the
contradictory justifications for the
delay in the hearing. At 289 n.
12: defendants' reliance on
Sandin v. Conner is inappropriate
in the case of an unsentenced
prisoner.
Punitive damages of $5,000
each against the officials who
participated in the disciplinary
process and $1 against the officer
who beat the plaintiff are upheld.
The record supports a finding of
recklessness based on the failure
to provide a timely hearing, and
the amounts do not shock the
conscience.
The officer who beat the
plaintiff was absent from the
jurisdiction at the time oftrial
taking a training course for
another job. The court sustained
an objection to use of his
discovery deposition at trial but
permitted defense counsel to
present a trial deposition;
however, it excluded the portions
concerning the reasons for his
absence from trial, since he had

The National Prison Project JOURNAL

voluntarily made himself
unavailable and had had ample
time to inform the court of his
schedule conflict. The exclusion
does not warrant a new trial.

RestraintsIPre-Trial
Detainees/Intake
Casaburro v. Giuliani, 986
F.Supp. 176 (S.D.N.¥. 1997).
The plaintiff was arrested for
soliciting a prostitute. He was
variously handcuffed behind his
back, handcuffed to a hook 12
inches above the floor, and then
handcuffed to the front of the cell
in a standing position, despite his
repeated complaints of a prior
medical problem of his back and
neck.
Keeping a prisoner
handcuffed for over seven hours
inside a holding cell may be an
exaggerated response under
Wolfish. At 180: "Although
there may be a legitimate reason
for doing so, it is not apparent at
this stage of the litigation." The
court applies Eighth Amendment
analysis to this detainee case and
seems to think that the Hudson
malicious/sadistic test governs.

weeks and then the test was
forcibly administered.
Under the Turner standard,
the annual PPD policy is upheld.
X-rays are not an alternative
because they identify only those
persons with active TB and not
those exposed, for whom
additional monitoring and INH
therapy are required.
Placement in respiratory
isolation was not cruel and
unusual. punishment. Deprivation
of communication, clean bedding,
clean clothing and hot food do
not deny basic human needs. Nor
did the plaintiff show deliberate
indifference, since the policy of
isolation and monitoring does not
wantonly inflict pain. (Of course,
the question is really whether the
conditions of isolation inflict
pain.)
The videotape of the forcible
administration of the test shows
that staff did not act with
malicious and sadistic intent. The
(unspecified) severity of the
plaintiffs wounds did not
sufficiently support her claim.

Medical Care--Examinations,
QuarantinelUse of Force
Hasenmeier-McCarthy v.
Rose, 986 F.Supp. 464 (S.D.Ohio

PLRA--In Forma Pauperis
Provisions--ApplicabilitylEqual
ProtectionfPersonal
Prope~tylMental Health
Treatment
West v. Macht, 986 F.Supp.

1998). State prison policy
requires annual PPDs of all
prisoners. After submitting four
times, the plaintiff refused her
fifth PPD as violating her
religion's prohibition against
admitting artificial substances into
her body. She was put in
respiratory isolation for several

1141 (W.D.Wis. 1997). The
plaintiff, detained after the
completion of his prison sentence
pursuant to a state "sexual
predator" law, was not a
"prisoner" for purposes of the
PLRA. (Defendants agreed.)
The prisoner's complaint that
he, unlike all other similarly

40

Spring/Summer 1999

situated persons, was denied his
release money from his prisoner
savings at the Department of
Corrections, is an equal
protection claim that is not
without basis in law or fact.

Protection from Inmate
Assault/Evidentiary
QuestionsfPersonal
Involvement and Supervisory
Liability
Payne v. Collins, 986 F.Supp.
1036 (E.D.Tex. 1997). The
white plaintiff was allegedly
kicked to death by inmates of
other races wearing steel-toed
boots.
The prison's "chief
administrative supervisor" could,
not be held liable because there
was no evidence that he was
responsible for the issuance of
steel-toed boots or the policy
permitting inmates access to
housing units other than their
own. The concession that he was
"ultimately responsible for inmate
housing decisions" (1059) could
establish nothing more than
respondea(superior liability. His
approval of a "geographic
housing policy" (all prisoners
from the same geographic area
housed together) did not support
liability because he did not
appreciate its deleterious effect on
prison security and therefore did
not know of the resulting risks.
Although he did decide not to
impose experience and
competency requirements for
officers in close custody areas
higher thaJ;l those established by
prison system as a whole,
comparison with similar cases

The National Prison Project JOURNAL

shows that this is not "the kind of
official nonfeasance constituting
an Eighth Amendment violation."
(1060)
The officer on duty is not
entitled to summary judgment
based on evidence that an officer
stationed where she was would
have seen the violence involving
the plaintiff at an earlier point
than she acknowledged. Though
she may not be obliged to
intervene physically and put
herself in danger, or to leave her
post contrary to prison
regulations, she was required to
take ~ action to stop the
violence. However, summary
judgment is appropriate on
plaintiffs theory that the officer
broke prison regulations by failing
to report observations of
"suspicious prison activity";
breach of prison regulations is not
an Eighth Amendment violation.
The court overrules
defendants' objections to a
correctional expert's affidavit; his
"extensive training and education
in prison operations" qualified
him to testify about maximum
security institutions, including
those in Texas, despite his lack of
direct familiarity with the
particular institutions. The court
similarly overrules objections to
particular opinions about what
staffknew or saw.
A prison report produced by
defendants as part of their initial
disclosure under the Federal
Rules is admissible; defendants'
production of it in discovery is
sufficient authentication of it. A
hearsay objection to the report is
overruled because the report is an
~.

41

admission by a defendant. An
Operational Review Report done
after the incident at issue (but
apparently not prompted by that
incident) is admissible as a
business record because all the
hearsay in it was from persons
acting in the regular course of
business.

Spring/Summer 1999

medical needs. Pain, suffering
and mental anguish caused by
delay in care may be actionable as
well."

ContemptlFinancial Resources
Carty v. Schneider, 986
F.Supp. 933 (D.V.!. 1997). The
defendants were held in contempt
in an earlier opinion for massive
violations of a consent judgment.
Medical Care--Standards of
The defendants have taken
Liability--Serious Medical
sufficient measures, mainly
NeedslDisabled
Miller v. Michigan Dept. of
alleviation or crowding (which the
Corrections, 986 F. Supp. .1 073
court terms the "bad seed" of
(W.D.Mich. 1997). The plaintiff many constitutional violations) to
suffers from bowel and bladder
the point of compliance with the
incontinence and must wear
consent judgment's population
"adult undergarments, or
cap, that the court declines to
'Attends.'" Defendants
impose monetary sanctions. At
intermittently failed to provide
939: "... [T]he court should
these over a four-day period with select the least intrusive sanction
the predictable consequences.
that the court determines will
At 1080: "The court accepts
coerce the contemnor to comply."
that incontinence of bowel and
Id: "... [C]ognizant of the
bladder may be characterized as a socioeconomic and sociopolitical
factors pertaining to the Virgin
serious medical condition."
However, the relevant question is Islands, the court finds that
monetary contempt sanctions
whether the plaintiffs need for
treatment was serious. Id: "The would affect drastically the public
interest and, perhaps more
seriousness of the unmet medical
importantly, would impede
need can only be evaluated in
light of the effect of these delays. " progress and thwart the
defendants' continuing efforts to
Here, the plaintiff failed to show
"unnecessary infliction of pain or
remedy the conditions of
a worsening of his incontinence
confinement at the CJC." The
condition." (1081) At worst, he
court warns that failure to
suffered indignity and discomfort, continue making progress may
which nobody but a few staff
lead to a different result in the
members saw because he was in
future.
segregation. At 1081: "In
At 938: "a lack of funding
reaching this conclusion, the
does not serve as an acceptable
Court recognizes that serious or
excuse for defendants' noncompliance, ~specially since many
permanent physical injury is not
prerequisite to recovery for
of the problems which the
deliberate indifference to serious
defendants face do not require

II\'Ii!!l§!_----~~~~~------------- - - - - - - -~- ~~

The National Prison ProjectJOURNAL

Spring/Summer 1999

Defendants' argument that
manual body cavity search,
because it is more intrusive, must plaintiff has not shown he was
convicted because of his race is
be supported by probable cause.
Visiting/Searches--Person-beside
the point; the court grants
In
addition,
the
purpose
of a
Visitors and Staff
Laughter v. Kay, 986 F.Supp. prison visitor search is to prevent additional time for the defendants
to make the right argument.
1362 (D.Utah 1997). The wife of contraband from entering the
Discovery is available in a
prison. Here, defendants did not
a prisoner had her visits
habeas proceeding only for "good
suspended because syringes were let the plaintiff visit even after
cause," which the plaintiff has not
passing the search, so the search
found in her (borrowed) car
shown.
was not justified by legitimate
trunk. After her privileges were
reinstated a few days later, prison security concerns; it was no more
Medical Care--Standards of
than a search for evidence in a
personnel obtained a warrant to
Liability--Serious Medical
criminal investigation.
search all her and her children's
Defendants' claim of exigent
NeedslMedical Care-body cavities for drugs, based on
Standards 'of Liability-circumstances is frivolous, given
information relating to a
Deliberate IndifferencelMedicaI
that they obtained a search
completely different inmate and
warrant and did so the day before Care--Special DietslDisabled
his wife. The plaintiff, who was
Rouse v. Plantier, 987
the visit.
six months pregnant, and her
F.Supp.
302 (D.N.I. 1997). The
The plaintiffs consent does
two-year-old son, were searched.
plaintiffs sued on behalf of all
Nothing was found, but her visits not legalize a search that was
insulin-diabetic
prisoners in the
were suspended anyway for
based on an invalid warrant.
Adult Diagnostic and Treatment
almost a year. The obstetrician
Center in New Jersey.
found that her vaginal wall had
Procedural Due Process-Under the deliberate
been tom and put her on bed rest. Disciplinary ProceedingslEqual
indifference standard, "a plaintiff
There was no probable cause
ProtectionlHabeas
need not trace a harm to one
here because there was no
Corpus/Discovery
specific act or omission," since
connection in the affidavit on
Henard v. Newkirk, 987
conditions" alone or in
which the warrant was based
F.Supp. 691 (N.D.Ind. 1997).
combination" can violate the
between the information about
One year in segregation is not
Eighth
Amendment (307).
drugs and the plaintiff and her
atypical and significant under
Defendants do not seriously
husband or child. No reasonably
Sandin. Conditions in
dispute that the medical needs of
competent officer could have
disciplinary segregation at the
diabetics are serious.
believed there was probable
plaintiffs prison are not
Defendants are not entitled to
cause, so defendants are not
substantially more restrictive than
entitled ta qualified immunity.
summary judgment on the claim
restrictions in the state's most
Additional information allegedly
secure pnson.
of inadequate diets, given
presented orally to the judge who
Failure to follow internal
plaintiffs' expert's report showing
procedures is of no significance in lack of portion control,
issued the warrant did not
sufficiently establish probable
unavailability of diabetesestablishing atypical and
cause either.
significant hardship.
appropriate meals, snacks, or
Defendants' good faith belief
The plaintiff alleged that he
low-sugar foods, and failure to
that they had probable cause is
and another black inmate were
individualize diets, as well as
irrelevant.
sentenced more harshly than four evidence that diet meals were
Prison visitor searches must
white inmates charged with the
sometimes spoiled, otherwise
generally be supported by
same offense, and submitted
inedible, or 'unavailable.
reasonable suspicion. However, a affidavits from three of them.
Defendants alleged that the
inordinate financial expenditures. "

42

The National Prison ProjectJOURNAL

plaintiffs refused diet meals but
rejects defendants' attempt to
plaintiffs showed that the
characterize the right asserted as
"refusal" evidence was subject to
the right to have blood sugar
interpretation. The fact that
tested up to four times a day, etc.
plaintiffs may have on occasion
The defendants are entitled to
bought food from the commissary qualified immunity on the ADA
is not a defense given the prison's claim because it was not
established in the Third Circuit
inadequate program.
On plaintiffs' medical care
that the statute applied to
claim, the court rejects the
prisoners until 1997.
argument that all of plaintiffs'
The court notes that because
expert evidence is merely
the named plaintiffs are no longer
disagreement with doctors'
confined at the institution, and
professional judgment. Expert
one of them is no longer insulintestimony may be helpful in
dependent, they may not be
understanding the prevailing
adequate class representatives for
norms against which conditions
purposes of injunctive relief, and
are to be evaluated, particularly
plans to address the question at a
where the issue is medical care
conference. The absence of
and not prison security. There is
current class representatives does
sufficient evidence to conclude
not moot the case but shifts the
that the risks of inadequate
focus from justiciability to the
treatment were obvious and that
suitability of the representative
defendants were aware of them.
plaintiffs.
The Commissioner is not
shown to have been deliberately
Voting/Classification--Race
indifferent by the service on him
Farrakhan v. Locke, 987
five years previously of
F.Supp. 1304 (E.D.Wash. 1997).
interrogatories. There is
The plaintiffs challenged
unspecified but sufficient
Washington's felon
evidence as to the mental state of disenfranchisement scheme on the
the other defendants.
ground that it was racially
The defendants are not
discriminatory under the
entitled to qualified immunity on
Constitution and results in vote
the Eighth Amendment claims;
denial and dilution under the
the right to medical care was
Voting Rights Act.
clearly established, and their claim
The "plain statement rule"
that they acted objectively
does not apply to the Voting
reasonably is refuted by the same Rights Act; that statute does not
evidence that supports liability
alter the usual constitutional
(for example, evidence that they
balance between federal
knew that glucose should be
government and states because
tested no less often than once a
that was already done by the Civil
day, and for some of the plaintiffs War Amendments. Nor does the
it was tested fewer than 20 times
"results test" of the Voting Rights
a year). At 313 n. 10: The court Act, as amended in 1982 to
43

Spring/Summer 1999

eliminate the intent requirement,
violate § 2 of the Fourteenth
Amendment. Although felon
disenfranchisement is not per se
unconstitutional, Congress can
prevent. the states from using it to
discriminate based on race. The
Voting Rights Act is not
unconstitutional under City of
Boerne as so interpreted.
The plaintiffs state a claim for
vote denial under the Voting
Rights Act based on their
allegation that Mrican, Hispanic
and Native Americans are
targeted for prosecution of
serious crimes and are over
represented in the prison
population.
The court rejects the view
that the case should be dismissed
because of policy considerations
favoring felon disenfranchisement
or that fact that plaintiffs' own
illegal behavior has played a role
in their disenfranchisement.
Plaintiffs' vote dilution claim
is dismissed; such a claim requires
more than an allegation of
disparate impact.
Plaintiffs' Fourteenth
Amendment claim is dismissed
because discriminatory intent
must be shown and "neither the
Complaint nor the Court's own
research reveal any circumstantial
or direct evidence that would tend
to support this claim." (1314)
(Evidence? On a motion to
dismiss?)

Law Libraries and Law Books
United States v. Beckwith,
987 F.Supp. 1,345 (D.Utah 1997).
A defendant proceeding pro se
was entitled to access to the law

The National Prison ProjectJOURNAL

library in the federal courthouse
for two hours a day for five
consecutive days, and for two
hours a day three days a week
thereafter. At 1348: "trial courts
must be allowed reasonable and
flexible discretion to implement
the right to self representation in
the context of pretrial preparation
by detainees." Usually, where a
defendant has standby counsel,
personal access to a library is not
required.
At 1348: "A pretrial detainee
representing himself, who is
indigent must be afforded
unlimited mail access to the court,
standby counsel, and the
prosecution, unless abused at
which point it may be restricted."

Federal Officials and
Prisons!Procedural Due
Process--Property!Procedural
Due Process--Work
Assignments
Del Raine v. Bureau of
Prisons, 989 F.Supp. 1373
(D.Kan. 1997). A federal
prisoner denied "longevity pay"
by the Federal Industries Program
for unsatisfactory work
performance was not denied due
process because the relevant
regulations did not create a
property interest in such pay.
Bureau ofPrisons regulations
characterize longevity pay as an
addition to regular pay that is
only available to those who have
not been declared ineligible. This
interpretation is reasonable and
deserves deference. (The court
completely misses the point under
standard property interest
analysis. The regulations say that
44

the pay shall be added unless the
inmate is declared ineligible,
which may be done because of
"unsatisfactory work
performance." This language
should create a property interest
analysis in the same manner as
statutes saying that public
employees may be fired "for
cause.")

Juveniles/Color of
Law!Psychotropic Medication
Lemoine v. New Horizons
Ranch and Center, 990 F.Supp.
498 (N.D.Tex. 1998). The
decedent died at age 12 in an
institution "designed to treat
wayward or troubled youth in a
rugged, rural setting through
work-hardening programs." It
had no on-site medical staff and
was 30 miles from the nearest
medical facility. The decedent
was taking Ritalin, Mellaril, and
Tegretol. They apparently didn't
work very well. As punishment
for "prior inappropriate
behavior," he was assigned to
build a rock wall outdoors on a
day when the temperature
reached 103 degrees. He died of
heat stroke (his temperature
measured at 108 degrees shortly
before geath) and was also found
to have many bruises, contusions
and blisters on his body.
A doctor employed by a
private juvenile institution to
which a state has delegated 24hour care of troubled juveniles is
a state actor, by analogy to
private prisons. The court applies
the public function test of state
action. A private physician
contracting with such a facility is

Spring/Summer 1999

a state actor under West v. Atkins.

PLRA--Exhaustion of
Administrative
Remedies/Summary
Judgment/Medical
RecordslEvidentiary Questions
Russo v. Palmer, 990 F.Supp.
1'047 (N.D.III. 1998). The
plaintiff alleged that he filed a
grievance twice but every time he
sent it to the grievance officer it
was returned to him unsigned and
unfiled. The court held a hearing
and finds the allegation incredible,
though it admits (1049 n. 1) that
if a prisoner were prevented from
exhausting, the court could
"overlook" the prohibition.
However, the failure to exhaust .
bars only his injunctive claim,
since the grievance process does
not provide for money damages.
At 1050 n. 4: If the plaintiff
were afraid the limitations period
would run while he exhausted, he
could file the complaint and ask
that its injunctive aspects be
stayed pending exhaustion. This
appears inconsistent with the
statutory language which suggests
that exhaustion must precede
filing the complaint.
The plaintiffs' medical records
do not support the defendants'
motion for summary judgment on
the plaintiffs medical care claim.
They are inadmissible hearsay
because there is no underlying
affidavit, deposition testimony, or
anything else establishing a
foundation for them. The court
also finds most of them
"indecipherable."

PLRA--Exhaustion of

The National Prison Project/OURNAL

Spring/Summer 1999

Administrative Remedies
Lacey v. C.S.P. Solano
Medical Staff, 990 F.Supp. 1199
(B.D.Cal. 1997). The PLRA
exhaustion requirement is not
jurisdictional. This conclusion is
supported both by Supreme Court
law and (at 1203 n. 4) by the
screening provisions of the
PLRA, which provide for
dismissal as frivolous or malicious
or as not stating a claim
regardless of whether remedies
have been exhausted. The court
couldn't do that if it didn't have
jurisdiction.
At 1204 n. 6: The court
construes "prison conditions" in
the exhaustion provision to have
as broad a meaning as suggested
by the statutory definition of
"civil action with respect to
prison conditions," including both
ongoing practices and specific
acts of alleged misconduct.
The prison grievance process
is not an "available" remedy to a
prisoner with a damage claim
because it does not provide for
monetary relief This view is
consistent with the long-standing
recognition that inadequate
administrative remedies need not
be exhausted.
The state Tort Claims Act
need not be exhausted under the
PLRA exhaustion provision. The
legislative history both of the
current provision and of its
predecessor indicate that
Congress was concerned with
grievance systems and not with

ArresteeslMunicipalities
Magill v. Lee County, 990
F.Supp. 1382 (M.D.Ala. 1998).
The jail's policy was to strip
search everybody before they
were put into a cell (including
holding cells). These searches
supposedly involved only the
removal of "outer garments" (i.e.,
"not panties or brassiere for
women). Persons who have
obtained a bond or are obtaining
one at the time of booking are
supposedly not searched. One
plaintiff testified that she removed
all her clothes during the search·
and that the search was
conducted while her husband was
trying to bond her out.
The policy is constitutional.
Since the only defendants are the
Sheriff and the county, only the
policy is at issue, and there is no
evidence that the defendants
condoned violations of their
policy. The court relies on Bell v.
Wolfish and an 11 th Circuit case
in which there was reasonable
suspicion; it ignores the large
amount of case law from other
jurisdictions holding that
reasonable suspicion is required
up to the point where the prisoner
is to be admitted to the jail's
general population.
At 1387: The court notes
that it remains an open question
whether an Alabama sheriff is a
county or state official when jail
policies are at issue.
Homosexuals and

QuestionslMedical Care-Standards of Liability--Serious
Medical Needs/Equal
ProtectionlPersonal
Involvement and Supervisory
Liability
Farmer v. Hawk, 991 F.Supp.
19 (D.D.C. 1998). The plaintiff is
a pre-operative transsexual who
has not been provided with
hormone therapy although alleges
she had been taking female
hormones for years before
incarceration. She alleges she
received no psychotherapy until
six years after incarceration, after
she tried to sever her scrotum
with a razor, and has received
none since 1996. These
allegations are disputed.
This action is not precluded
l;>y the pendency of another
action, at a prison from which the
plaintiff has been transferred,
challenging inadequate care there.
This suit challenges the treatment
of transsexuals throughout the
federal prison system. There is a
third case that is more similar to
this one, but this one was filed
earlier.
This complaint is not mooted
by the plaintiff's transfer, since it
is system wide and not directed
toward a particular prison.
Transsexualism is a serious
medical condition for which
prisoners have a right to receive
treatment. The right was clearly
established based on the decisions
of four other circuits (at least one
of which the plaintiff has been in).

tort claims procedures.

Transsexuals/Federal Officials

Bureau ofPrisons policy to

Pre-Trial Detainees/Searches-Person--

and
PrisonslMootnesslProcedural,
Jurisdictional and Litigation

provide care that is either
"medically mandatory" or
"presently medically necessary"

~.

45

The National Prison Project JOURNAL

not infected.
also calls for treatment for
transsexualism. Therefore the
system's medical director cannot
DisabledlMedication/AIDS/Spe
be found liable for failure to
cial Diets
promulgate a new policy.
Callaway v. Smith County,
However, his responses to her
991 F.Supp. 801 (E.D.Tex.
complaints acknowledging and
1998). The plaintiff, prescribed
sanctioning the withholding of
AZT and Crixivan, got no
Crixivan for five days and then
any treatment could constitute
half-doses for the next 15 days.
deliberate indifference. The
argument that the director is not
When he saw a doctor after 19
responsible for the day-to-day
days, his dosage was promptly
care of particular prisoners is
increased. He was not able to get
a high-protein, high-calorie diet.
rejected because Bureau of
His viral load, formerly
Pris~ns policy calls for hormone
therapy for transsexuals to be
undetectable, increased to a
measurable level by the time he
authorized by the medical
director, and because his response left the jail, though it had
decreased by the time of the
in her case ensured that care
would not be provided. The
hearing. The plaintiff was kept in
medical director is therefore not
a "side cell" like other inmates
entitled to qualified immunity.
with communicable diseases and
At 29: "The right to treatment then placed in lockdown.
does not include the right to a
The ADA and Rehabilitation
specific mode of treatment."
Act do not apply to prisons and
There is a factual dispute as to
jails. (Wrong.)
whether the plaintiff is receiving
The failure to provide the
any treatment.
plaintiff with medication, and to
Prisoners who suffer from
do it in the right amounts. was
mental illness other than
merely negligent.
transsexualism are not required to
Suit against the University of
document their receipt of
Texas Health Center, the medical
treatment before incarceration, as care provider, was barred by the
Eleventh Amendment.
transsexuals are with respect to
hormone treatment. (The court
The failure to see a doctor for
rejects defendants' attempt to
19 days or to see the head doctor
deny what their policy says.) The for 56 days is not proof of
court denies summary judgment
deliberate indifference since the
on the plaintiff's equal protection plaintiff saw nurses and went to
claim because the record does not the clinic numerous times.
provide sufficiently expert
The plaintiff's segregation
evidence to determine whether
was not unconstitutional;
transsexual inmates are similarly
classification of inmates is
situated with other mental
typically relegated to the broad
illnesses, or transsexuals with
discretion of prison officials. No
AIDS similarly situated to those
abuse of discretion was shown.

46

Spring/Summer 1999

The failure to provide a better
diet was not unconstitutional;
when he finally saw the chief
doctor, the doctor ordered that he
get double portions of food. It
took a week for this order to get
to the kitchen, and the plaintiff
was released a week later.
The case is dismissed as
frivolous and for failure to state a
claim after an evidentiary
hearing.

IntakelDisabled
Hanson v. Sangamon County
Sheriffs Dept., 991 F.Supp. 1059
(C.D.Ill. 1998). The deaf plaintiff
was arrested for possession of
cannabis; no attempt was made to
communicate with him by the
investigating officers, he was not
told his bail amount, and a
telephone device for the deafwas
not provided. As a result he
spent 13 hours in jail whereas
everyone arrested with him was
out in four hours.
The county jail is a public
entity and the ADA is applicable
to it, and the plaintiff has
sufficiently alleged that he was
denied services and activities
because of his disability, i.e., an
opportunity to post bond and to
make a telephone call. The
absence of a case in point does
not entitle the Sheriff to qualified
immunity.
Medical Care--Standards of
Liability--Deliberate
IndifTerencelMedication/Qualifi
ed Immunity/Color of
Law1M unic,ipalitieslMonitoring
/Pendent and Supplemental
Claims; State Law in Federal

The National Prison Project JOURNAL

Courts
Nelson v. Prison Health
Services, Inc., 991 F.Supp. 1452
(M.D.Fla. 1997). The decedent
died in jail of a myocardial
infarction without a doctor's ever
having been called. One nurse
was fired, two were put on
probation, and one resigned to
take another job.
The sheriff was entitled to
qualified immunity because he
was not involved in the decision
to withhold medical treatment.
The defendant nurses,
employees of Prison Health
Services, are not entitled to
qualified immunity under
Richardson v. McKnight, which
by its terms applies to "major
lengthy administrative tasks" such
as providing medical care to a jail.
Private medical providers are
state actors.
Evidence that nurses did not
verify the decedent's medications,
resulting in her going 36 hours
without it, could support liability.
At 1463: "Delays such as this
may in and of themselves amount
to 'deliberate indifference. '"
Responding to chest pain by
giving the decedent nitroglycerine
and telling. her to self-medicate,
rather than following the jail's
own protocol and giving her an
EKG and calling the physician on
duty, was "treatment so cursory
as to amount to deliberate
indifference." (1464) One nurse
who chose to remain in the dining
hall to finish her breakfast rather
than respond to the third
complaint of chest pain, and then
delayed seeing her, accused her of
"theatrics," failed to call a doctor,
47

and did not call an emergency
response team until she had
stopped breathing, could be held
liable. At 1464: "Jackson's
dogged refusal to provide medical
care was clearly tantamount to
deliberate indifference."
Evidence of a custom
"longstanding and widespread"
enough to be a county policy of
deliberate indifference is provided
by reports of a court monitor who
found "pervasive and deep-seated
failures" including staffs
"unwillingness to respond to
inmates' request for treatment,
especially requests by female
inmates," a pattern corroborated
by PHS's own memoranda
chastising the nurses. This
evidence may also support
liability of the corporation.
The county sheriff could not
be held liable under state law for
malpractice. Neither the county
nor the sheriff in his official
capacity were "health care
providers" who could be held
liable for medical malpractice
under state law. The nurses'
conduct could subject them to
liability for malpractice.
Publications/Appointment of
Counsel
Powell v. Riveland, 991
F.Supp. 1249 (W.D.Wash. 1997).
The prison system's policy
prohibiting much sexually explicit
material is upheld under the
Turner standard based on
evidence that sexual assault and
consensual sex are a problem at
the prison and that viewing
pornography leads to aggressive
and predatory behavior. The

Spring/Summer 1999

defendants cite a "four-factor
syndrome" common to men who
view pornography: addiction,
escalation, desensitization, and a
tendency to act out the behaviors
viewed in the pornography. The
court specifically upholds the
censorship of magazines called
Swank and Fox.
The court reiterates its refusal
to appoint counsel in this case.
NON-PRISON CASES
Municipalities
White-Ruiz v. City ofNew
York, 983 F.Supp. 365 (S.D.N.Y.
1997). The plaintiff police officer
is found after trial to have been
subject to retaliation by
unidentified police officers for
having reported a corrupt act by
another officer to departmental
officials. The court concludes
that the City is liable because the
violation of the plaintiffs rights
was caused by an unwritten
Department policy "that
sanctioned a 'custom or usage' by
lower level officials and officers
(1) to discourage reporting of
corrupt acts by police officers and
(2) to retaliate against officers
who did bring such misconduct to
the attention ofDepartment
authorities." (391) The court
relies mainly on the Mollen
Commission report.
Use of ForcelPersonal
Involvement and Supervisory
Liability
Cunningham v. Gates, 989
F.Supp. 1256 (C.D.Cal. 1997).
At 1261: The court does not
regard the law to be settled that,

The National Prison ProjectJOURNAL

by falsifying police reports and
giving peIjured corroborating
testimony regarding the use of
excessive force by others, officers
become liable for the use of force
itself The court also does not
consider it to be settled law that
such acts can make the officer
liable to the plaintiffs for denial of
the right to a fair trial, or for
other deprivation of due process,
until the trial is over, and the
plaintiff has not prevailed.
It is settled law, however, that
if a group of officers agree that if
and when some of them
knowingly commit unlawful acts
others will falsify records and
testify falsely to cover up the
truth of the relevant events, all of
those involved are liable for the
unlawful acts. An official is liable
in his individual capacity if he
"set[s] in motion a series of acts
by others, or knowingly refused
to terminate a series of acts by
others, which he kn[e]w or
reasonably should [have]
know[n], would cause others to
inflict constitutional injury."

The allegation in this case is
that members of the Special
Investigative Services of the
LAPD would identifY criminals by
modus operandi, establish a
stakeout, let them commit crimes
despite having probable cause to
arrest them beforehand, and then
kill them.

Use of Force/lndemnification
Cunningham v. Gates, 989
F.Supp. 1262 (C.D.Cal. 1997).
The court dismisses on qualified
immunity grounds claims against
the Mayor, but not against other
defendants including police
supervisory officials, city
attorneys, and members of the
City Council, for the alleged
continuing refusal to do anything
about the police "code of
silence," and for the policy of
accepting officers' versions of
excessive force incidents despite
more credible evidence to the
contrary. The allegations against
the attorney defendants include
the failure to use information

National Prison Project
American Civil Liberties Union Foundation
1875 Connecticut Avenue, NW
Suite 410
Washington, DC 20009
~21

Spring/Summer 1999

generated in the course of civil
rights litigation for disciplinary
and other purposes and their
insulation ofofficers from
punitive damage awards by
settling cases where such
damages have been awarded or by
advocating that the City Council
pay the awards. The allegations
against the Council members are
of a policy of indemnification that
perpetuates the use of excessive
force.

Service of Process
Slavov v. Marriott
International, Inc., 990 F.Supp.
566 (ND.I11. 1998). Apro se
litigant is entitled to rely on the
U. S. Marshals to serve process,
and the fact that the Marshals
took ten months to tell him that
he needed to fill out another form
constituted good cause for failure
timely to serve process.
John Boston is the Director ofthe
Prisoners' Rights Project, Legal Aid
Society ofNew York.

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