THE
NATIONAL
PRISON
PROJECT
A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 14, NO.1 & 2, Spring/Summer 2000· ISSN 1076-769X

No Lost Causes
Remaking Advocacy for a New Millennium
By Jackie Walker
AIDS Information Coordinator

Over the past five years a number of
conferences have been organized to address issues
of HIVIAIDS in prisons. Most have focused on
service delivery issues involving medical care,
e'ducation and prevention programs, and discharge
planning. No Lost Causes: A Na,tional Action
Meeting on HIV and Hepatitis in Prisons, held this
past June at the National Prison Project, is among
the first to focus on the much maligned A word.
Advocacy. For the first time in years issues of
advocacy and organizing are taking center-stage.
The impetus for the conference was the
U.S. Supreme Court's January 2000 decision in
Davis v Hopper which let stand the Alabama
Department of Corrections policy of segregating
prisoners living with HIV/AIDS. The policy
excludes infected prisoners from education,
vocation and recreation programs, as well as
religious services. Their separation prevents them
"
from participating
in programs required for good
time credit eligibility.
The meeting, hosted by the National Prison
Project and organized in cooperation with the
Southern Center for Human Rights, California
Prison Focus, Lambda :I;.-egal Defense and
Education Fund, the American Foundation for
AIDS Research and the Brown University AIDS
Program, focused on prisoner segregation policies
in Alabama and Mississippi, HIVIAIDS treatment
injails, criminalization ofHIV and the case of
Gregory Dean Smith, Hepatitis C and HIV coinfection and the growing Hepatitis epidemic in
prisons and jails. The day ended with a discussion

of the mechanics of organizing and ways to build
new alliances.
In each session, panelists explored avenues
of change or provided information crucial to
organizing efforts. The segregation session not
only updated participants on legal efforts in both
states, but proposed a joint strategy to organize
local meetings in Alabama and Mississippi.
During the hepatitis C session, attorney Jack Beck
of the Prisoners' Rights Project gave details on the
obstacles New York state prisoners face receiving
treatment despite a New York Department of
Corrections medical protocol for hepatitis C.
While Tamara Serwer, Southern Center for
Human Rights, discussed the intricacies of
developing successful litigation against the Fulton
County Jail in Atlanta because of its failure to
provide adequate HIVIAIDS treatments. Even the
lunch session 'was booked as Asia Russel, ACT
UP Philadelphia, Judy Greenspan, the HIV in
Prison Committee of California Prison Focus, and
Catherine Hanssens, Lambda Legal Defense and
Education Fund, updated participants on activist
strategies for responding to felony charges against
HIV positive prisoners accused of "criminal HIV
exposure." Prisoners have become increasingly
vulnerable to charges of trying to infect correction
staff through spitting and biting which generally
cannot cause transmission.
Participants in these sessions expressed a
range of views about the impact of the day's
proceedings. Julie Falk, Southland Prison News,
said, "The group of people assembled and the list

The National Prison Project JOURNAL

of resources was the most valuable thing for me."
It was a sentiment often expressed and evident as
participants huddled in groups exchanging
business cards or organizational newsletters.
Other participants like Gavin Cook, a staff
attorney with Prisoners' Legal Services, took a
long range view noting, "There's a need to
network and come up with some common plan for
all states. But we also need to get Mississippi and
Alabama up to date on the status of medical care
and treatment of prisoners living with HIV/AIDS."
Over 125 people attended the meeting.
Former prisoners, AIDS activists, attorneys,
physicians, prisoners' rights activists, as well as
drug company representatives and federal agencies
and public health officials joined to begin a
national movement. A movement which has
already begun to progress.

Next Steps
Since No Lost Causes, local meetings have
occurred in both Alabama and Mississippi. On
September 9, twenty-three people gathered in
Jackson, Mississippi to develop a strategy
regarding the segregation policy. At this meeting,
attendees decided to form the Coalition for
Prisoners with HIV (CPH) and to ask for a
meeting with Mississippi Department of
Corrections Commissioner Robert Johnson. CPH
members have since met with Commissioner
Johnson. Ofthe meeting, Carla Shaw, CPH
member and parent of a prisoner in the HIV Unit,
says, "He was very receptive and asked for a
reasonable amount oftime to study what we were
asking fot." During a second meeting
Commissioner Johnson announced the creation of
a task force.
On November 4, a similar meeting
occurred in Montgomery, Alabama. Over 25
representatives of community and religious
organizations met to develop a plan of action.
Jeanne Locicerno, a law fellow at the Alabama
ACLU, says, "I think the meeting was a huge
success where advocates from across the state who
were dedicated to changing the policy met. We
are carefully considering the best way to deal with

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Spring/Summer 2000

the issue and bringing more people to the table."
A follow-up meeting is planned for January 2001.
If you would like to receive additional
information about No Lost Causes: A National
Action Meeting on HIV and Hepatitis in Prisons, a
limited number of conference summary reports are
available free of charge from the NPP.

Jubilee Justice Campaign 2000
The Coalition for Jubilee Clemency is
organizing a Religious Leaders' petition drive
asking President Clinton, before he leaves office,
to release on supervised parole those Federal
prisoners who have served at least five years for
low-Ievel,.nonviolent drug offenses. If you would
like to sign the petition or find out how to
participate in the campaign, contact: The Coalition
for Jubilee Clemency, c/o CJPF, 1225 Eye St.,
NW, #500, Washington, DC 20005-3914. You
can also visit their website at cjpf.org/c1emency.

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Spring/Summer 2000

The National Prison Project]OURNAL

Case Law Report:
Highlights of Most Important Cases
By John Boston
Director
Prisoner Rights Project ofthe NY Legal Aid Society

I U.S. Supreme Court Cases
PLRA: Attorneys" Fees
Martin v. Hadix, 119 S.Ct. 1998 (1999).
In a dispute over retroactivity of 42 U.S.c. §
1997e(d)(3)'s restrictions on hourly rates, the
Court looks generally at PLRA § 803(d) (42
U.S.c. § 1997e(d)) and concludes it is "better read
as setting substantive limits" on fees than
prescribing the temporal scope of its provisions.
119 S.Ct. at 2004. It therefore rejects prison
officials' arguments that the statutory text itself
prescribes application ofPLRA rates to work done
before the PLRA's enactment. The Court also
rejects the plaintiffs' argument, based on
legislative history, that the removal of the fees
provision from § 802 of the statute, which has an
explicit retroactivity provision, to § 803, which
does not, raises a negative inference that the fees
provisions were intended to apply only to cases
filed after the PLRA's enactment. Since the two
statutory sections address "wholly distinct subject
matters," and since in any case the reason for
moving the fees provision is not known, no such
inference is justified. 199 S.Ct. at 2004-05.
In the absence of an express prescription of
its temporal reach, a statute is presumed to apply
prospectively only. 119 S.Ct. at 2006. The PLRA
fees limitations would have a retroactive effect as
to work done before PLRA's enactment. The
attorneys had a reasonable expectation, based on
reliance on the district court's determination of
market rates, that they would be paid those rates.
To apply the PLRA limitations after the fact
"would 'attac[h] new legal consequences' to
completed conduct." 119 S.Ct. at 2006, quoting
Landgrafv. USI Film Products, 511 U.S. 244, 270
(1994). However, as to work done after the

PLRA's enactment, "there is no retroactivity
problem," since plaintiffs' attorneys were on notice
of the PLRA rates. "If the attorney does not wish
to perform services at this new, lower, pay rate,
she can choose not to work." 119 S.Ct. at 2007.
The Court rejects the plaintiffs' argument that
attorneys face ethical constraints in withdrawing
from litigation and that the PLRA therefore
attached new legal consequences to the pre-PLRA
decision to appear in the case, stating that "they do
not seriously contend that the attorneys here were
prohibited from withdrawing from the case during
the post-judgment monitoring stage...." Id.; see
Martin v. Hadix, 1999 WL 200681 at *42-43
(U.S., March 30, 1999) (transcript of oral
argument). The dissenting opinion cites Michigan
Rules of Professional Conduct, Rule 1.3 Comment
1999, which states that "a lawyer should carry
through to conclusion all matters undertaken for a
client." 119 S.Ct. at 2012 (emphasis supplied).
It is arguable that Martin is limited to its
facts by (a) the fact that the court had
prospectively set out fee rates and a mechanism
for paying them, creating an enhanced expectation
on the attorneys' part; (b) the fact that it involves
post-judgment monitoring and the rejection of the
argument about attorneys' ethical obligations is
stated in relation to the post-judgment monitoring
stage.

Non-Prison Cases
Procedural Due Process: Property
City of West Covina v. Perkins, 119 S.Ct.
678 (1999). At 681:
A primary purpose of the
notice required by the· Due Process
Clause is to ensure that the
opportunity for a hearing is

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meaningful.... If follows that when
law enforcement agents seize
property pursuant to warrant, due
process requires them to take
reasonable steps to give notice that
the property has been taken so the
owner can pursue available
remedies for its return....
Individualized notice that the
officers have taken the property is
necessary in a case such as the one
before us because the property
owner would have no other
reasonable means of ascertaining
who was responsible for his loss.
No similar rationale justifies requiring
individualized notice of state-law remedies which,
like those at issue here, are established by
published, generally available state statutes and
case law. Memphis Light, Gas & Water Div. v.
Craft is distinguished on the ground that in that
case, the procedures of which customers had to be
notified :were not publicly available.
Qualified Immunity/Assistance of
Counsel/Standing
Conn v. Gabbert, 119 S.Ct. 1292 (1999).
At 1295: " ...[A] court must first determine
whether the plaintiff has alleged the deprivation of
an actual constitutional right at all, and if so,
proceed to determine whether that right was
clearly established at the time of the alleged
violation."
The use of a search warrant to detain an
attorney t'O keep his client from being able to
consult with him at the grand jury did not deny the
plaintiff attorney a liberty interest in practicing
law. Cases supporting such a right all deal with a
complete prohibition and not a brief interruption
of the pursuit of an occupation.
The attorney lacks standing to raise the
rights of his client to have him outside the grand
jury room for consultation.
Equal Protection
Saenz v. Roe, 119 S.Ct. 1518 (1999). The
right to travel has been upheld in several Supreme

4

Spring/Summer 2000

Court decisions, but its source has not been
identified. Non-residents' right to equal treatment
is protected by the Privileges and Immunities
Clause of Article IV absent a "substantial reason"
to treat them differently. New arrivals' right to
equal treatment is also protected by the Privileges
and Immunities Clause of the Fourteenth
Amendment, which entitles residents of a state
citizenship ofthat state as well as of the United
States. Strict scrutiny, not some form of
intermediate scrutiny, is appropriate for
discrimination against new citizens. A California
measure prescribing lower welfare payments for
recent limmigrants from states with lower welfare
benefits does not pass this scrutiny. Neither the
duration of state residence nor the location of prior
residence has any relevance to citizens' need for
benefits or equitable allocation of funds; the state's
fiscal justification therefore fails. Congress's
approval of durational residency requirements
makes no difference, since Congress cannot
authorize states to violate the Fourteenth
Amendment, and in any case the Citizenship
Clause of the Fourteenth Amendment binds
federal as well as state governments.
This opinion does not rely on the Equal
Protection Clause, but its evaluation of the
statute's classifications is in substance an equal
protection analysis.
Communication and) Expression
City ofChicago v. Morales, 119 S.Ct. 1849
(1999). A Chicago anti-loitering statute (held
unconstitutional on vagueness grounds) was not
overbroad because it applied only to remaining in
one place "with no apparent purpose," excluding
assemblies designed to support or oppose a point
of view. At 1857: "Its impact on the social
contact between gang members and others does
not impair the First Amendment 'right of
association' that our cases have recognized,"
Disabled
Albertson's, Inc., 119 S.Ct. 2162 (1999).
The plaintiff had severely impaired vision in one
eye. Whether he could proceed under the
Americans with Disabilities Act depended on

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whether his monocular vision "substantially
limited" his seeing. That means more than a mere
"difference." The determination must take into
account the person's ability to compensate for the
impairment. The existence of the disability must
be determined on a case-by-case basis.
The defendants were entitled to enforce
Department of Transportation standards of visual
acuity for truck drivers notwithstanding the
existence of a waiver procedure.
Murphy v. United Parcel Service, Inc., 119
S.Ct. 2133 (1999). Under the Americans with
Disabilities Act, whether an impairment
"substantially limits" one or more major life
activities is assessed with reference to mitigating
measures (in this case, medication for high blood
pressure). That means someone whose disability
is substantially corrected can still be fired for it
without having a remedy under the ADA. If the
person is "regarded as" disabled, he or she may
still sue under the ADA, but disqualification from
a single job (here, truck driving) does not amount
to being regarded as disabled; the plaintiff must be
regarded as unable to perform a "class ofjobs" to
fall under that rubric.
Sutton v. United Airlines, Inc., 119 S.Ct.
2139 (1999). A person is disabled under the
Americans with Disabilities Act ifhe or she
possesses a physical impairment that substantially
limits one or more major life activities. This
assessment is to be made with respect to corrective
or mitigating measures. A person with a visual
impairment whose vision is corrected with
eyeglasses to 20/20 is not disabled under the
statute.
These plaintiffs were also not "regarded"
as disabled for purposes afthe ADA, since there
was no evidence that they are regarded as unable
to work in a "broad class ofjobs," which is the
meaning of the statutory term "substantially
limits." These plaintiffs were viewed as unable to
work only as global airline pilots.

I Court of Appeals Cases I

Spring/Sununer2000

PLRA: Intervention/Standing
Ruiz v. Estelle, 161 F.3d 814 (5th Cir.
1998). The amended PLRA intervention provision
authorizes individual legislators to intervene to
challenge prisoner release orders regardless of
whether they have authority to bind the legislature
fiscally. (819-21) A consent decree limiting
prison population density is a prisoner release
order notwithstanding the authorities' ability to
avoid releases by building more prisons. (825-27)
The statutory grant of intervention is
constitutional; although it is doubtful that the
legislators would have standing sufficient to
satisfy Article III, they need not do so as long as
another party seeking the same relief does have
standing. (828-33) There is substantial contrary
authority on this point. See id. at 831 (citing
cases).
Pre-Trial Detainees/Protection from Inmate
Assault
Perkins v. Grimes, 161 F.3d 1127 (8th Cir.
1998). The plaintiff was raped by his cellmate in a
county jail holding cell after being arrested for
public intoxication. Defendants knew the cellmate
was a disruptive individual but the district court
found that they did not know he posed a risk of
serious injury to the plaintiff because the plaintiff
did not tell them. The two had been celled
together on previous stays in jail.
Rights of Staff/Disabled
Kees v. Wallenstein, 161 F.3d 1196 (9th
Cir. 1998). The plaintiff correction officers were
permanently disabled and could not occupy
positions requiring inmate contact. They were not
qualified individuals with a disability, for
purposes of the Americans with Disabilities Act,
since no accommodation would allow them to
have direct inmate contact, an essential function of
their position. Incidental inmate contact is
common even to control room positions and the
ability to restrain inmates during an emergency is
critical to jail security.
Suicide Prevention/State Law Immunities
Payne for Hicks v. Churchich, 161 F.3d

5

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Spring/Summer 2000

1030 (7th Cir. 1998). The decedent was arrested
while drunk and promptly hanged himself in a
police holding cell. The plaintiffs settled with the
city defendants for $110,000, leaving the state
defendants in the case.
Federal claims should not be dismissed
based on state law immunities.
The claim against one deputy was properly
dismissed because he was not on notice that the
decedent posed a danger to himself; the facts that
the decedent was intoxicated and "his tattoo
questioned life and ... he cursed angrily" do not
create an obvious, substantial risk of suicide.
There were no allegation of suicidal tendencies, no
claim or evidence of past suicide attempts or
warnings from family members of a mental
disturbance and suicidal condition; his behavior
was not alleged to be increasingly bizarre, erratic
or wild. (The court goes through the usual litany
about detainees having at least the protection
provided by the Eighth Amendment.)
The claim against the municipality fails
because there is no evidence that county
policymakers knew that being at the overcrowded
facility where the decedent died exposed him to a
substantial risk of injury.
The state law claims against the
municipality and Sheriff for failing to maintain an
adequate jail are barred by state immunity law
which absolutely bars such claims. However, that
immunity does not extend to wilful and wanton
acts, and the allegation that the sheriff did know of
the risk of self-harm and directed the prisoner's
placement in the jail anyway does state such a
claim.

Wendell v. Asher, 162 F.3d 887 (5th Cir.
1998). The PLRA exhaustion requirement is not
jurisdictional, which means it "may be subject to
certain defenses such as waiver, estoppel, or
equitable tolling." (890) It eliminates the
discretionary interest-balancing approach of
former 42 U.S.c. § 1997e set out in McCarthy v.
Madigan. Exhaustion must be completed before
filing suit; otherwise the case must be dismissed
even if exhaustion has been completed after filing.
Conclusory allegations that administrative
procedures are inadequate do not excuse failure to
exhaust. Also, dismissal without prejudice will
not cause.injustice or render judicial relief
unavailable, since the plaintiffs now-exhausted
claim is not time-barred, and he can still exhaust
the other claim that he did not grieve. (How? As
noted below, there is a IS-day deadline for filing
the grievance.)
At n. 2: The court refuses to entertain the
plaintiffs argument that he is seeking money
damages only and therefore the grievance
procedure is not "available," since this is
inconsistent with his pleadings in the district court.
On remand, he can limit his request for relief as he
desires.
The Texas grievance procedure takes about
90 days: prisoners get 15 days to file a step 1
grievance, the response is due within 40 days after
receipt, the prisoner has 10 days to appeal, the
response is due within 40 days after receipt.

PLRA: Exhaustion of Administrative Remedies
Greig v. Goard, 169 F.3d 165 (2d Cir.
1999). An ex-prisoner who files suit after release
is no longer a prisoner for purposes of the PLRA
exhaustion requirement. The statute refers to
prisoners "confined" in prison, and the definition
of prisoner refers to persons "incarcerated" or
"detained," and the plaintiff was none of these at
the time he filed suit. This distinction is consistent
with statutory intent as well ,as language because
the legislative history indicated that Congress was

Publications
United States v. Bee, 162 F.3d 1232 (9th
Cir. 1998). The criminal defendant, convicted of
sexually abusing a child, was sentenced to prison
and given a condition of subsequent supervised
release that he "not possess any sexually
stimulating of sexually oriented material deemed
inappropriate by his probation officer and/or
treatment staff, or patronize any place where such
material or entertainment is available." The
condition does not violate the First Amendment.

6

concerned that people who were actually in prison
had nothing to lose and could get a sabbatical from
prison to federal court by filing litigation.

The National Prison ProjectJOURNAL

The relevant statute requires conditions to be
"reasonably related" to and involve "no greater
deprivation of liberty than is reasonably
necessary" to deter criminal conduct, protect the
public, and provide the defendant with
"correctional treatment in the most effective
manner." That standard is met. The court says
nothing about First Amendment law.

Federal Officials and Prisons/Personal
Property
Montano-Figueroa v. Crabtree, 162 F.3d
548 (9th Cir. 1998). The federal prisons' Inmate
Financial Responsibility Program, which provides
for development of a plan for inmates to pay
obligations such as court-ordered assessments,
restitution, and fines, with deprivation of
privileges and preferred housing as a sanction for
noncompliance, does not improperly intrude on
the court's sentencing authority or constitute an
illegal delegation of authority. The court tapdances around contrary authority and says the
plaintiff "has not presented a meritorious
constitutional claim that prisons may not maintain
work programs that require inmates to pay courtimposed fines or restitution." (550)
Federal Officials and Prisons/Pre-Trial
Detainees
Magluta v. Samples, 162 F.3d 662 (11th
Cir. 1998). The plaintiff sued over the conditions
of his confinement. He was acquitted and later
failed to show up for trial on other charges. His
suit was dismissed under the fugitive
disentitlement doctrine. The dismissal is reversed
because there is no "nexus" between his fugitive
status and the civil action that was dismissed.
Law Libraries and Law Books/Standing/Class
Actions: Certification of Classes
Walters v. Edgar, 163 F.3d 430 (7th Cir.
1998). After Lewis v. Casey, the district court
dismissed a class action about law library services
on the ground that none of the named plaintiffs
had had standing. Naming other members of the
class as representatives would have been proper if
the existing named plaintiffs had ever had

Spring/Summer 2000

standing. However, since the named plaintiffs had
never had standing, federal jurisdiction never
attached, and there was no case for new plaintiffs
to join, and there had been no case when class
certification was sought. Mootness may be cured
by joinder of new plaintiffs, but not initial lack of
standing.
The named plaintiffs' claims must have at
least "colorable merit" to confer standing; if they
lose on the merits later, new plaintiffs may be
joined. Frivolous claims, however, do not "engage
the jurisdiction" of the federal courts. This
jurisdictional inquiry may be conducted at any
time until the judgment becomes final.
The court rejects what it calls dictum in
East Texas Motor Freight System, Inc. v.
Rodriguez that states that if any class member had
standing at the time of certification, Article III is
satisfied even if the named plaintiffs prove not to
have been members of the class.
The actual injury requirement of Lewis v.
Casey in court access cases is different from the
approach taken in due process cases, where the
improper denial of the hearing is actionable at
least for nominal damages even if a proper hearing
would have had the same result, and is injury
enough to support federal jurisdiction.
The injury requirement does not mean a
plaintiff must prove he would have won, only that
he was prevented from litigating a nonfrivolous
case. In an injunctive case (434-35):
It is enough if [plaintiffs] can show
that they are highly likely to have a
meritorious suit in the future that
they will not be able to litigate
effectively because of the
defendants' infringement of the
constitutional right of access. A
probabilistic harm, if non-trivial,
can support standing.
...In the usual case, the possibility
of some day having a nonmeritorious suit will be too
speculative to support a present
request for an injunction. But we
can imagine a case in which the
plaintiffs claim has accrued but he

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has not sued as yet (perhaps
blocked by the prison's
unconstitutional behavior) and the
statute of limitations hasn't run.
The plaintiffs in this action were not
denied access to courts by the restrictions on
segregated prisoners. One of them had managed
to file 13 suits using form complaints and other
pleading forms with occasional assistance from
inmate law clerks. The ability to litigate a denial
of access claim may be evidence that the plaintiff
has no denial of access claim.
Since this suit was dismissed for lack of
standing, all previous rulings and findings of
unconstitutionality in it should be vacated.
At 433: "The danger that a class action
will have to be dismissed for lack of standing of
the named plaintiffs, even though unnamed
members of the class might have standing, is
another reason... for scrupulous adherence to the
requirement that the determination whether to
certify a suit as a class action be made 'as soon as
practicable after the commencement ofthe action.'
Fed.R.Civ.P.23(c)(1)." Here it took three years.
PLRA: Filing Fees
Celske v. Edwards, 164F.3d 396 (7th Cir.
1999). The district court certified that the
plaintiff, IFP in that court, was not appealing in
good faith because he didn't provide a reason for
wanting to appeal. It relied on Newlin v. Helman's
statement that "A plaintiff who has been told that
the claim is foreclosed and then files a notice of
appeal without offering any argument to
undermine the district court's conclusion is acting
in bad faith." That case was barred by absolute
immunity and the statute of limitations. Herel the
plaintiff failed to respond to a motion to dismiss,
the court found that the allegations of the
complaint were insufficient, and summary
judgment was granted on his medical care claim
because "all the evidence" showed his care was
adequate. But decisions like this are sometimes
wrong and are reversed, and nothing the court said
suggests the claim is frivolous. As to the failure to
give reasons, nothing in Rule 24, Fed.R.App.P.
says that a notice of appeal is supposed to contain

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Spring/Summer 2000

reasons. At 398:
In cases such as this, where the
appellant was authorized to proceed
in forma pauperis in the district
court, a district judge who after
receiving the notice of appeal
doubts that it is in good faith
should, before yanking the
appellant's IFP status, notify the
appellant of the impending change
of status and give him an
opportunity to submit a statement
of his grounds for appealing. On
the basis of the appellant's response
to the notice, the judge can make a
responsible assessment of the issue
of good faith. This procedure will
reduce the number of cases in
which we are compelled to remand
for a fuller statement ofthe judge's
reasons for believing that the
appeal is not taken in good faith.
Pate v. Stevens, 163 F.3d 437 (7th Cir.
1998). The plaintiff lost at trial on his police
misconduct claim. The district court certified that
he took his appeal in bad faith.
The certification was in error. Newlin v.
Helman said that a litigant who moves under
Fed.R.App.P. 24(a) for IFP in the district court,
but doesn't articulate any grounds for appeal, can
be found not to be appealing in good faith, and IFP
denied. That rule was applied erroneously here.
Newlin involved a § 1915A dismissal. This case
went to a jury and the plaintiff articulated grounds
in motions for judgment as a matter of law and for
a new trial, which put the court on sufficient
notice of the issues for appeal. This is not strictly
a PLRA holding because the relevant provision
was only renumbered and not amended.
Review of bad faith determinations
remains de novo; the PLRA did not change
anything substantive on that subject.
AppeaIIMootness/Standing/Non-English
Languages/Privacy/Procedural Due Process:
Disciplinary Proceedings/Medical

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Care/Remedial Principles
Franklin v. District ofColumbia, 163 F.3d
625 (D.e.Cir. 1998). A judgment on liability that
does not order relief is not a final judgment and
therefore not appealable.
An injunction concerning interpreters at
parole hearings is vacated as moot with respect to
felons, since their parole matters have been
transferred to the U.S. Parole Commission, and for
lack of standing with respect to misdemeanors,
since no "named member ofthe class" was shown
to be a misdemeanant who did not understand
parole proceedings because of lack of English
proficiency.
Plaintiffs have no right to interpreters in
classification and housing determinations and in
disciplinary proceedings in the absence of liberty
interests under Sandin. The district court1s
reasoning that if defendants have hearings, they
must comport with due process, is simply wrong.
At 635:
It is worth repeating that
broad decrees rendered in the name
of the Due Process Clause, decrees
mandating what must occur no
matter what the circumstances,
represent the sort ofjudicial
legislating we have rejected in the
past.... If the district court detected
a due process violation in a
particular hearing or hearings, the
court should have identified the
proceeding and provided the
District with an opportunity to
rectify the deficiency....
The failure to provide interpreters at
medical encounters did not violate the Eighth
Amendment absent evidence of deliberate
indifference. The District had a paper policy and
this court thinks imperfect enforcement of it does
not satisfy the deliberate indifference requirement.
There was no senior policymaker shown to be
deliberately indifferent. There were lots of
resources devoted to monolingual prisoners.
The district court held that the lack of
interpreters for medical encounters violated a right
of medical privacy. The appeals court finds no

Spring/Summer 2000

such right. The Fourth and Eighth Amendments
don't support it. Due process does not support it.
Plaintiffs have to disclose their medical condition
to government employees to get treatment, and
they are claiming that they have a right to disclose
their condition only to certain government
employees. The right of privacy, when
recognized, has been recognized as against the
State. To recognize it in this form would require
that interpreters be supplied for every language
spoken by prisoners.

Use of Force
Gomez v. Chandler, 163 F.3d 921 (5th Cir.
1999). To support an Eighth Amendment use of
force claim, an injury must be more than de
minimis but need not be significant. This plaintiff
meets the standard. He alleged cuts, scrapes,
contusions to the face, head and body as a result of
being kllocked down so his head hit the floor and
his face scraped the floor, being repeatedly
punched and then kicked in the face and head.
(His medical records said a 1 cm. abrasion; the
court notes that photographs showed a mark
considerably larger than that.)
Suicide Prevention/Negligence, Deliberate
Indifference and Intent/Theories: Due Process
Collignon v. Milwaukee County, 163 F.3d
982 (7th Cir. 1998). The schizophrenic decedent
was arrested, released, and arrested again, and
released again to his parents. He committed
suicide.
Both the deliberate indifference standard
and the Youngberg professional judgment standard
require a showing of criminal recklessness because
only that standard "provides adequate notice of
what conduct is or is not permitted." (988) The
professional judgment standard "requires
essentially the same analysis as the Eighth
Amendment standard." At 989: "A plaintiff can
show that the professional disregarded the need
only if the professional's subjective response was
so inadequate that it demonstrated an absence of
professional judgment, that is, that no minimally
competent professional would have so responded
under those circumstances." (989)

9

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The jail psychiatrist knew that the decedent
had a serious mental illness and posed some risk
for suicide, and that he had not been taking his
medication because of the side effects. Her
prescription of a sub-therapeutic dose of Thorazine
to form a "therapeutic alliance" with the decedent
and gradually increase the dosage was not a
response that no competent professional would
have made. The fact that the plaintiffs expert
thought there was a better course did not make the
defendant liable. The fact that he was on the
highest level of suicide watch did not support
liability. At 990: "Placing a pre-trial detainee on
some level of suicide wa~ch, even the highest
level, does not demonstrate a subjective awareness
of a substantial risk of imminent suicide." It is a
safety measure that is not incompatible with a
treatment plan that does not presuppose an
imminent risk of suicide.
Police defendants who had the decedent in
custody but released him rather than retaining
custody and getting treatment for him did not
violate his rights. There is no constitutional right
to be taken into custody for the purpose of
receiving treatment. The incremental stress
claimed to have been created by their detention of
the decedent was not a basis for liability; the
police would not have been liable if they did
nothing and it makes no sense to hold them liable
for doing something. Government is liable when
it restrains an individual from getting help and
doesn't provide help itself, but here they did not
restrain him.
Personal Involvement and Supervisory
Liability/Homosexuals and
Transsexuals/Qualified Immunity/Federal
Officials and Prisons
Farmer v. Moritsugu, 163 F.3d 610
(D.e.Cir. 1998) (per curiam). The transsexual
plaintiff complained that she received no
treatment. The Bureau of Prisons medical director
was entitled to qualified immunity. The Bureau's
policy regarding transsexualism is concededly
constitutional. Under that policy, there were three
treatment options potentially available: hormone
therapy, castration, and psychotherapy. The first
10

Spring/Summer 2000

two are concededly not realistically at issue (why
is not explained). As for psychotherapy, there was
no showing of a need for it. In any case the
medical director does not diagnose or prescribe for
particular patients. That is done by local medical
personnel, with grievance and appeal procedures
which are not contended to be inadequate.
Pre-Trial Detainees/Crowding/Sanitation/Cell
Confinement/Recreation and Exercise/PLRA:
Mental or Emotional Injury/Length of Stay
Craig v. Eberly, 164 F.3d 490 (10th Cir.
1998). The plaintiff claimed that while he was in
jail he was confined with five or six other
prisoners in an 11x15 foot cell, he received no
clean bed linens, he was permitted only two
showers a week in an unsanitary shower stall, the
sink in his cell was frequently clogged, ventilation
was inadequate, and he was only allowed out-ofcell recreation once.
The PLRA mental or emotional injury
provision does not apply to claims that accrued
before its enactment. At 494: "The language 'may
be brought' clearly indicates that § 1997e(e)
applies only to cases commenced after its
enactment, not to those pending at the time."
At 495: "Although the Due Process Clause
governs a pretrial detainee's claim of
unconstitutional conditions of confinement,... the
Eighth Amendment standard provides the
benchmark for such claims." The defendants are
not entitled to summary judgment on the plaintiffs
allegations because the facts are disputed. E.g.,
the plaintiff alleges he received only two
recreation periods, and the defendants said it was
once a week; defendants disputed the claim
concerning the sink. The parties also disputed the
length of the plaintiffs confinement. At 496:
"The difference between enduring certain harsh
conditions for seven weeks versus six months may
be constitutionally significant." The duration of
each condition is also not clear.
Habeas Corpus
Moody v. Rodriguez, 164 F.3d 893 (5th
Cir. 1999). Federal courts lack jurisdiction under
§ 1983 to stay executions; litigants must proceed

The National Prison Project JOURNAL

via habeas corpus.

PLRA: Screening and Dismissal
Humphries v. Various Federal USINS
Employees, 164 F.3d 936 (5th Cir. 1999).
Dismissals under 28 U.S.c. § 1915(e)(2)(B)(1) are
governed by abuse of discretion standard. At 940:
"In determining whether a district court abused its
discretion, we consider factors such as 'whether (1)
the plaintiff is proceeding pro se, (2) the court
inappropriately resolved genuine issues of
disputed fact, (3) the court applied erroneous legal
conclusions, (4) the court has provided a statement
of reasons which facilitates 'intelligent appellate
review,' and (5) any factual frivolousness could
have been remedied through a more specific
pleading.'" (1992 citation omitted) This is not a
new holding or an interpretation of the PLRA, but
it is a useful indication that prior law survives the
PLRA.
Drug Dependency Treatment/Federal Officials
and Prisons
Martinez v. Flowers, 164 F.3d 1257 (10th
Cir. 1998). The petitioner was denied a sentence
reduction after he had successfully completed a
substance abuse program. The Federal Bureau of
Prisons did not exceed its statutory authority in
excluding prisoners who had prior, rather than
current, convictions for violent offenses from the
sentence reduction program.
PLRA: Screening and Dismissal/PLRA: Mental
or Emotional Injury/AIDS/Procedural Due
Process/Medication/Restraints/Recreation and
Exercise
Perkins v. Kansas Dept. ofCorrections,
165 F.3d 803 (10th Cir. 1999). The HIV-positive
plaintiff was made to wear a face mask which
covered his entire head whenever he left his cell,
and also was denied all outdoor exercise, after
spitting at guards during recreation.
Dismissals under § 1915(e)(2)(B)(ii) for
failure to state a claim are reviewed de novo, as
they were before the PLRA.,
The primary harm the plaintiff alleges is
mental or emotional, but he says his mental

Spring/Summer 2000

anguish has caused his physical condition to
deteriorate. The court does not address whether
this states a claim but leaves it for the district
court. The district court must also determine
whether the mental/emotional injury provision
bars compensatory, punitive, or nominal damages.
At 808 n. 6: the provision would clearly bar a
claim for compensatory damages absent physical
injury, but would not so clearly bar other kinds of
damages; e.g., for a due process claim, which
involves an "absolute" right. (The court ignores
the statutory language, which refers to "actions"
not "claims.") Even if damages are barred, an
injunction is not (citing Davis and Zehner).
The district court should have examined
evidence before holding that the plaintiffs
treatment (23 and a half hours a day lock-in, out
only for a shower, and required to wear the face
mask during the shower) is not atypical and
significant under Sandin. Defendants'statement
that it is ordinary for prisoners to be segregated for
various offenses and to be isolated because of
extreme behavior "does not fully address both the
duration and degree of plaintiffs restrictions as
compared with other inmates." (809)
The plaintiffs exercise restriction stated an
Eighth Amendment claim in light of precedent
concerning long-term deprivations of out-of-cell
exercise and the fact that defendants knew about it
through grievances and their regular review of his
status.
The face mask requirement, which the
plaintiff said did not keep him from spitting at
guards because he could do it when he took a
shower, and which therefore was only a
punishment for his HIV status, stated an Eighth
Amendment claim.
The failure to provide protease inhibitors
in addition to AZT and 3TC does not state an
Eighth Amendment claim; "prison officials have
recognized his serious medical condition and are
treating it. Plaintiff simply disagrees with medical
staff about the course of his treatment." (811)

Refusal of Treatment/Transfer and
Commitment to Mental Health
Facilities/Federal Prisons and

11

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Officials/Magistrates/Religion
United States v. Muhammad, 165 F.3d 327
(5th Cir. 1999). The government sought to
commit the defendant to a psychiatric hospital
following her conviction. Her attorney's consent
to proceeding before a magistrate judge permitted
the judge finally to dispose of the matter; her
personal consent is not required. Commitment is a
civil proceeding within a magistrate judge's
jurisdiction.
Use of a preponderance of evidence
standard for civil commitment of prisoners is not
clearly unconstitutional because it is less of a
liberty deprivation than commitment of a free
citizen. The court does not definitively decide this
constitutional question because it was not raised
below and it reviews the district court's action only
for plain error.
The government showed that the defendant
is a present danger to self or others because
(among other things) she insisted on remaining in
a special housing unit, did not interact with staff or
other inmates when she needed something, and
refused medical evaluation despite indications of
severe anemia. She did all this on religious
grounds; mental health personnel said she had
"persecutory and religious delusions."
The defendant raised First Amendment
claims only on appeal, and the court declines to
consider them even under a plain error standard. It
notes that the Religious Freedom Restoration Act's
constitutionality as applied to federal government
action remains disputed.
Medical<Care: Standards of Liability and
Deliberate Indifference
Dunigan ex reI. Nyman v. Winnebago
County, 165 F.3d 587 (7th Cir. 1999). The
decedent complained of headaches, double vision,
muscle fatigue, and reduced strength; he had been
in an automobile accident before admission to jail.
Neurological tests were normal. After he fell a
week later, he was tentatively diagnosed with
myasthenia gravis. His condition fluctuated and
about six weeks later he was found dead.
There is no evidence of deliberate
indifference to a serious medical need. Plaintiffs
12

Spring/Summer 2000

criticisms of defendants' actions during the last
days of the decedent's life are not persuasive in
light ofthe three-month record of treating his
medical condition. At 591: "Mistreatment for a
short time might in some circumstances be
evidence of a culpable state of mind, but the facts
here do not justify such a conclusion."
There is no evidence of knowledge of a
serious medical need. The decedent's deterioration
in the last few days of his life was not clearly
different from his condition earlier in his
incarceration ("wildly sporadic"). There is no
evidence that incontinence is indicative of a
serious health threat.
There is no evidence of disregard of
medical needs. Defendants were "continually
solicitous" ofthe decedent's needs; they placed
him in a cell where he could readily be observed;
he was repeatedly examined by medical personnel,
including a neurologist.

Personal Property/Federal Officials and
Prisons
McGhee v. Clark, 166 F.3d 884 (7th Cir.
1999). The Bureau of Prisons did not usurp a
judicial function by imposing a' schedule
governing the plaintiffs payment of the criminal
fine imposed as part of his sentence. The court did
not delegate its function to the Bureau; it made the
fine payable immediately and the Bureau merely
attempted to implement that direction.
The Inmate Financial Responsibility
Program has been uniformly upheld against
constitutional attack. Bureau personnel's decision
to count as available funds those he received from
outside sources was authorized by IFRP
regulations.
Pre-Trial Detainees/Accidents/Medical
Care/Color of Law
Davis v. Dorsey, 167 F.3d 411 (8th Cir.
1999). The plaintiff fell in the shower. His claim
about the faulty shower amounted to no more than
negligence, despite his allegation that defendants
ignored prior complaints about standing water in
the shower.
The plaintiff was injured on Friday, was

The National Prison Project JOURNAL

given three Tylenol, but was not pennitted to see
medical personnel for bleeding, a lump on his
head, and bodily pain until the following
Wednesday, where he was treated in a perfunctory
and abusive way. Then he was sent to the
Regional Medical Center, where he was examined
and told to come back ifhe experienced loss of
consciousness. The next day he fainted but again
received perfunctory and disparaging treatment at
the prison.
The plaintiff "failed to rebut Regional's
evidence that it was a private entity and did not act
under color of state law in treating him." (412)
No details are given. The plaintiff is pro se.
The evidence could support a jury finding
that the facility defendants intended to punish the
plaintiff; summary judgment for defendants is
reversed.

Procedural Due Process: Disciplinary
Proceedings/SanctionslHabeas Corpus
Carr v. O'Leary, 167 F.3d 1124 (7th Cir.
1999). The plaintiff did not appear for the
morning count because there was a riot going on
and he was threatened with bodily hann. He and
every other inmate whoJhad failed to appear were
disciplined with six months' loss of good time
credits. The defendants did not move for
summary judgment under Heck v. Humphrey
(1994) until the Seventh Circuit held it applicable
to prison disciplinary proceedings in 1996, after
the plaintiff had been granted summary judgment
on liability. Since the application of Heck was
foreseeable, defendants waived the issue. In
addition, five Justices in Spencer v. Kemna have
stated that a person whose habeas petition has
been mooted by release can proceed via § 1983
even if the claim would otherwise be barred by
Heck. Hence the defendants should not be
relieved from their waiver.
The court directs the Illinois attorney
general's office to show cause why the authors of
the state's brief should not be sanctioned for
unethical advocacy for statements in it; the court
cites its repeated prior condemnations of the
office's work.

Spring/Summer 2000

Medication/Medical Care: Standards of
Liability and Serious Medical Needs
Ralston v. McGovern, 167 F.3d 1160 (7th
Cir. 1999). The plaintiff, who has Hodgkin's
Disease and is undergoing radiation treatment with
painful sequelae, was prescribed pain medication.
An officer refused him his medication even though
he complained that he couldn't swallow and was
spitting blood.
The district judge erred in holding that the
plaintiffs mouth and throat pain was not a serious
medical need. Detennining what medical needs
are serious is a question ofjudgment not
susceptible to mechanical resolution. At 1162:
... [T]he civilized minimum is a
function both of objective need and
of cost. The lower the cost, the less
need has to be shown, but the need
must still be shown to be
substantial. It seems to us that to
refuse to treat, at trivial cost, the
pain caused by cancer and cancer
treatments borders on the
barbarous. Realism requires
recognition that the terror which
cancer inspires magnifies the pain
and discomfort of the frequent side
effects of cancer treatments. It is
not as if Ralston were demanding
esoteric, experimental, or expensive
interventions. Such a demand
would raise very serious questions,
especially since the side effects of
which he complains were not lifethreatening.... Ralston was not
seeking an expensive or
unconventional treatment; he just
wanted the pain medicine that the
prison doctor had prescribed for
him. The prison guard's deliberate
refusal of it was a gratuitous
cruelty, and not a trivial one, even
if the context of cancer is ignored.
A blistering that prevents a person
from swallowing and,causes him to
spit blood is a source of discomfort
acute enough to constitute a serious
13

The National Prison ProjectjOURNAL

medical need, at least when it can
be readily and inexpensively
alleviated.
The defendant is not entitled to qualified
immunity; the standard applicable to pain
medication was "reasonably clear and definite as
applied to a case as extreme as this" (1162).

Rights of Staff
Hafford v. Seidner, 167 F.3d 1074 (6th Cir.
1999). The plaintiff correction officer complained
of a pretty appalling course of racial and religious
harassment (he is a Muslim), consisting of
physical threats as well as racial slurs and a failure
by management to do anything about it. These
allegations were sufficient to withstand summary
judgment as to his claim of a racially hostile
working environment but not a religiously hostile
working environment; accusations that he was
preparing for a holy war and that his religion
taught hatred of white people do not meet the
Supreme Court's standard prescribing that '''simple
teasing,' offhand comments, and isolated incidents
(unless extremely serious) will not amount to
discriminatory changes in the 'terms and
conditions of emploYment'" and that "conduct
must be extreme to amount to change in the terms
and conditions of emploYment." However, the
court should allow at trial for the possibility that
the racial animus of co-workers was augmented by
their religious bias.
Searches: Person and
PrisonerslReligioll/Staffing: Sex
Moore v. Carwell, 168 F.3d 234 (5th CiI.
1999). The plaintiff alleged that multiple strip and
body cavity searches performed by a female
officer violated the Eighth and Fourth
Amendments and violated his religious rights.
(He stated that the Baptist faith requires modesty
and forbids him from being viewed naked by a
female other than his wife.)
The district court dismissed the First
Amendment claim as frivolous under RFRA case
law; it is directed to reconsider the claim under
Employment Division v. Smith. (The reason this
could make a difference is that the district court

14

Spring/Summer 2000

relied on the "substantial burden" language of
RFRA, which many courts applied in a way
narrower than the usual First Amendment
standard.)
The allegation of strip and body cavity
searches performed by an opposite sex officer
absent an emergency, at a time when same sex
officers were available to conduct the search, was
not frivolous, and the legality of such searches was
not clearly established so as to entitle the
defendants to qualified immunity. At 237: "We
must balance the need for the particular search
against the invasion of the prisoner's personal
rights caused by the search."
The Eighth Amendment claim was
properly dismissed, since the Fifth Circuit has held
that the Fourth Amendment provides the proper
analysis. This would appear to be contrary to
Hudson v. Palmer, which holds that searches
conducted for harassment can violate the Eighth
Amendment.

Correspondence: Legal and Official!Attorneys'
Fees and Costs/PLRA: Filing Fees
Talley-Bey v. Knebl, 168 F.3d 884 (6th Cir.
1999). A claim of refusal by a staff member to
accept legal mail for mailing was properly rej ected
because it could not possibly be causally related to
the dismissal of the plaintiffs lawsuits. Nor did
such refusal violate the Eighth Amendment by
depriving the plaintiff of the minimal necessities,
oflife.
The district court properly divided an
assessment of $41.00 in costs between the two
plaintiffs, since both chose to prosecute the case.
At 887:
We wish to make clear,
however, that in cases involving
class actions, district courts are not
to assess fees and costs to each
member of the class. As a class
action certification is normally
made long after the complaint is
filed, the responsibility of paying
the required fees and costs rests
with the prisoner or prisoners who
signed the complaint. In class

The National Prison Project JOURNAL

actions on appeal, the prisoner or
prisoners signing the notice of
appeal are obligated to pay all
appellate fees and costs.

Correspondence: Non-LegaVSearches
United States v. Gordon, 168 F.3d 1222
(10th Cir. 1999). Letters are generally protected
by an expectation of privacy, but the sender's
expectation ordinarily terminates upon delivery.
At 1228: "Because Defendant sent the letters to an
inmate at a correctional facility, fully aware that
prison officials could lawfully and, would likely,
[commas sic] inspect the letters, he had no
reasonable expectation of privacy in them." (The
letters contained photographs of the defendant
with large amounts of currency.)
Correspondence: Legal and OfficiaVAccess to
Courts/Pendent and Supplemental Claims;
State Law in lj'ederal Courts
Boswell v. Mayer, 169 F.3d 384 (6th Cir.
1999). The plaintiff alleged that defendants
opened a piece of mail from the state Attorney
General's office in his absence. He has no
standing to raise a court access claim absent a
showing of prejudice. However, the court
construes his complaint as raising a First
Amendment claim based on the right to receive
mail, as to which he has standing. The plaintiff
loses on the merits. The defendants' policy of
treating Attorney General mail as privileged mail
if the envelope contains the return address of a
licensed attorney and has markings that warn of its
privileged..contents, and if the prisoner has
requested its treatment as legal mail, is
constitutional. After all, mail from the Attorney
General or a prosecutor's office will generally
consist of documents in the public record; seldom
will such mail be sensitive or confidential. The
policy passes muster under the Turner standard
given prison officials' need to inspect for
contraband. The plaintiff did not allege that the
contents of the envelope were privileged or that it
bore the necessary markings.
Noncompliance with state laws and
administrative procedures in promulgating the

Spring/Summer 2000

policy does not state a claim under § 1983.

Publications/Religion/Access to
Courts/Personal Property
Chriceol v. Phillips, 169 F.3d 313 (5th Cir.
1999). The plaintiff complained that he was
denied materials from Aryan Nations/Church of
Jesus Christ Christian. The relevant rule forbade
material that presents "an immediate and tangible
threat to the security and order of the facility or to
inmate rehabilitation," and specifically material
that "advocates racial, religious, or national hatred
in such a way so as to create a serious danger of
violence in the facility." It also provided for
notice and the opportunity to file a grievance.
The withholding of mail did not violate the
plaintiff's First Amendment free exercise rights.
Defendants' policy "restricting access to potential
violence producing materials is valid" (316) under
the Turner test. The plaintiff had alternatives,
since he received and possessed many other
religious and political materials. The magistrate
judge found that the materials were "incendiary to
the point of being almost certain to cause
interracial violence, and nearly all of them openly
advocate violence or other illegal activities."
There are no ready alternatives to censorship;
allowing him to read them in the presence of
security would impose more than de minimis cost.
The defendants refused to approve a
disbursement from the plaintiff's account to file
this suit, but the plaintiff could not show actual
injury and denial of court access because his
parents paid the fee. At 317:
Arguably, withholding access to a
prison account to pay for legal fees
could, at a minimum, cause a delay
in access to the courts.
Withholding money from a plison
account could also effectively deny
access to obtaining an attorney,
filing a complaint, or mailing other
legal documentation.
PLRA: Judgment Termination
Imprisoned Citizens Union v. Ridge, 169
F.3d 178 (3d Cir. 1999). The PLRA termination
15

The National Prison ProjectJOURNAL

provisions are constitutional. The final judgment
rule has an exception for prospective relief where
the underlying law is changed. The underlying
law is the law of prospective relief in federal
courts. (184-86) Since relief can be retained on
the showing of a constitutional violation, the
PLRA does not curtail Eighth Amendment rights.
(The court seems to think this is responsive to the
contention that the "underlying law" is the Eighth
Amendment.) Wheeling Bridge turned on the
prospective/retrospective distinction, not public
vs. private rights. (186-87) Even if the
public/private rights distinction governed, it would
not matter; private rights are unaffected by the
PLRA; PLRA operates on the public right to have
non-federal claims vindicated in a federal forum.
(The court doesn't quite say this but that seems to
be what it means.)
No rule of decision is prescribed. PLRA
provides a standard and does not pre-empt the
decision process. (184-86) The relevant
underlying law, once again, is the federal courts'
injunctive power.
Courts retain authority to enforce effective
remedies under the PLRA, since they can hear
constitutional claims and grant equitable relief to
remedy violations. (188)
Equal protection strict scrutiny does not
apply to the PLRA. Court access is not burdened;
remedies are merely limited. The rational basis
test is met by the "unquestionably legitimate
purposes" of minimizing prison micromanagement by federal courts and preserving
judicial resources. (188-89)
The. court did not err in refusing to stay its
decision pending agreement to enforce the decree
by state courts; the stalutesays "immediate
termination." Speculation that there might be
contractual obligations the defendants might not
carry out provides no basis for the federal court to
stay in the act. Any valid contract claims must be
pursued in state courts.
Past non-compliance with orders does not
prevent termination of the judgment; that result is
contrary to the statutory language. (188-89) It
would also be an inappropriate remedy for civil
contempt because it would have no coercive
16

Spring/Summer 2000

effect. (189)
PLRA: Three Strikes Provision
Rodriguez v. Cook, 169 F.3d 1176 (9th Cir.
1999), withdrawing 163 F.3d 584 (9th Cir. 1998).
The PLRA three strikes provision does not deny
due process, equal protection, or access to courts,
and does not violate the Ex Post Facto Clause or
the principle of separation of powers. Strict
scrutiny does not apply because there is no
"fundamental interest" at stake. (The plaintiff
challenged the defendants' limits on free postage.
The court says access to courts is not implicated
because the defendants' rule does not implicate
that right. The court here addresses the merits of
the underlying claim in resolving an issue which is
logically prior to and independent of the merits of
the underlying claim.) Since there is no
fundamental interest at stake, the statute does not
infringe upon court access. At 1180: "Inmates are
still able to file claims--they are only required to
pay for filing those claims." Prisoners may have
to save their money, and filing may therefore be
delayed. The court ignores situations (appeal
deadlines, statutes of limitations) where delay may
be fatal. At 1181: The interest in saving money
by curbing defense costs in prison litigation meets
the rational basis requirement.
Mental Health Care/Use of Force/Restraints
Campbell v. Sikes, 169 F.3d 1353 (1Ith
Cir. 1999). The plaintiff was admitted to prison
and had her previously prescribed medication,
which was appropriate for bipolar disorder,
discontinued, albeit by a psychiatrist who saw her
frequently. She was also placed in restraints
repeatedly during the same period for seemingly
deranged behavior. Sometimes she was in "Lshaped restraints," a euphemism for hog-tying, for
up to 27 hours. She was never diagnosed by
prison staff with a psychiatric disorder, just as
having a history of polysubstance abuse.
There was no deliberate indifference. The
defendant psychiatrist was not shown to have
known that the plaintiff had bipolar disorder, that
he had misdiagnosed her, or that his treatment was
grossly inadequate. The failure to review her prior

r·

The National Prison ProjectJOURNAL

medical records was not deliberately indifferent
where a summary of her records was reviewed.
Expert affidavits stating that her care was
substandard are not sufficient to withstand
summary judgment because they do not address
the defendants' subjective intent. Prior authority is
distinguished on the ground that in it, the
plaintiffs condition was so obvious that
knowledge can be inferred.
The use of restraints did not violate the
Eighth Amendment, since the plaintiff was
undisputedly a danger to herself and others and
had shown great ingenuity in escaping from less
severe restraints. She was also monitored every
15 minutes. She got meals, bathroom breaks, and
sometimes a mattress to lie on. Defendants
complied with all their own procedures, including
documentation, and in some cases refused requests
to restrain her.

PLRA: Filing Fees/Contempt
Hall v. Stone, 170 F.3d 706 (7th Cir.
1999). The plaintiff was denied IFP status
because the district court thought he was not
indigent. He didn't payor apply for IFP in the
appeals court and his case was dismissed. The
district court ordered the Warden of Allenwood to
remit $105 from the plaintiffs account, and the
warden refused to do so on the ground that the
plaintiff had not authorized it. The appeals court
ordered the warden to show cause why he should
not be held in contempt, and his response was that
the prisoner had been transferred and the warden
at the receiving prison had authorized payment.
That isn't good enough. It doesn't say why he
disregarded;the order and what procedures have
been put in place to ensure that similar orders will
be followed. He is held in contempt with
sanctions withheld to give him the opportunity to
purge the contempt by showing he has put into
place an administrative system that will prevent
this from happening again, transfers
notwithstanding.
At 708: The warden's initial response "is
unfortunately not unique. Other prisons likewise
have occasionally failed to comply; the problem
seems to be especially severe when prisoners are

Spring/Summer 2000

transferred, for the transferee institution may not
receive instructions concerning required
payments."
At 708: "Ignoring a judicial order, as
Warden Fanello did, because a prisoner
contradicts it, is out ofthe question. We reiterate
the point of Newlin: Custodians must remit as
ordered under § 1915 without regard to the
prisoner's wishes. A prisoner's complaint or notice
of appeal is all the authorization needed to debit
his trust account; wardens must follow the statute
(and judicial orders) rather than contrary directions
from their charges."

Federal Officials and Prisonsffirug Dependency
Treatment
Pelissero v. Thompson, 170 F.3d 442 (4th
Cir. 1999). The Bureau of Prisons' regulation
stating that convictions involving the use or
possession of firearms were not "nonviolent
offenses" entitling prisoners to early release if they
successfully completed drug treatment programs
was not unreasonable, and the program statement
in which it was contained was not subject to the
rule-making procedures of the Administrative
Procedures Act.
Publicationsffieference
Crofton v. Roe, 170 F.3d 957 (9th Cir.
1999).. A state regulation barred receipt of
publications not ordered from the publisher and
paid for out of the prisoner's account.
The regulation is unconstitutional under
the Turner standard. The district court held that it
is not reasonably related to concerns about fire
hazards and storage space, since other regulations
limit the number of books a prisoner may possess.
It is not reasonably related to prevention of
contraband, since there is no rational distinction
between the prisoner's ordering from the publisher
and a frien<,i or family member ordering from the
publisher. The gift prohibition is not necessary to
ensure efficiency of prison operations, since the
prison can regulate the number of gift publications
prisoners can receive. (The prison had in fact not
limited the number of publications prisoners could
possess.) The prohibition is also not reasonably
17

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Spring/Summer 2000

The National Prison ProjectjOVRNAL

related to preventing strong-arming (extortion of
prisoners' family and friends), since the prison
permitted family and friends to send money,
which raises the same concerns. Permitting them
to send money and gift packages but not
constitutionally protected publications also
troubled the district court.
On·appeal, defendants raised only the
contraband and strong-arming arguments,
emphasizing that the prison must monitor the
source of all items coming to the prisoner; but in
light of the publisher only rule, that concern was
not furthered by the no-gift rule. The fact that
other gift items are also prohibited does not justify
prohibiting items protected by the First
Amendment. Thus the state has "offered no
justification for a blanket ban on the receipt of all
gift publications, nor has it described any
particular risk created by prisoners receiving such
publications." (961)
A federal statute, 18 V.S.c. § 1702, which
criminalizes the obstruction of correspondence,
does not apply in the prison context.
A temporary delay in delivery of
publications resulting from prison officials'
inspection does not deny First Amendment rights.
The district court properly denied a
continuance so the plaintiff could take discovery
on the publisher only rule, since he did not show
that application of that rule ever hindered his
receipt of publications.

Non-Prison Cases
Attorneys' Fees and Costs
Fletcher v. City ofFort Wayne, Ind., 162
F.3d 975 (7th Cir. 1998). Plaintiffs in two
excessive force cases accepted offers ofjudgment
of $5,000 and $2,500 although their complaints
sought $150,000 and $30,000. The district court
properly concluded that these were nuisance
settlements and the plaintiffs were not prevailing
parties. However, the court rejects the proposition
that a disclaimer of liability in the offer of
judgment automatically precludes attorneys' fees.
The court discusses the strategy of offers of
18

judgment at some length.

Municipalities/Negligence, Deliberate
Indifference and Intent
Sharp v. City ofHouston, 164 F.3d 923
(5th Cir. 1999). In a Title VII case, a muncipality
can be held liable for sexual harassment based on
jury findings including that there was no effective
supervision over the workplace in question and
that the police department "tolerated and even
fostered an attitude of fierce loyalty and
protectiveness within its ranks" resulting in a code
of silence about misconduct. However, this is
characterized as a finding under a "should have
known" standard--constructive rather than actual
knowledge.
Use of ForcelMunicipalities/Res Judicata and
Collateral Estoppel/Summary Judgment
Thomas v. Roach, 165 F.3d 137 (2d Cir.
1999). A plea of nolo contendere to a criminal
charge cannot bar a subsequent § 1983 action
arising from the same set of facts.
While a litigant cannot defeat a summary
judgment motion by submitting an affidavit that
contradicts his earlier sworn statements, the rule
applies only where the plaintiff had been
"examined at length" on the subject, and not where
his prior statements were "vague and
inconclusive." (144)
At 145: "A municipality may be liable
under § 1983 in cases of police brutality where the
City's failure to supervise or discipline its officers
amounts to a policy of deliberate indifference."
However, a series of civilian complaints that were
investigated and found to be unfounded cannot
establish a policy of deliberate indifference.
Municipalities/Use of Force
Mettler v. Whitledge, 165 F.3d 1197 (8th
Cir. 1999). At 1205:
This Court has held
municipalities liable under Monell
when the plaintiffs have produced
evidence of prior complaints
sufficient to demonstrate that the
municipalities and their officials

The National Prison Project JOURNAL

ignored police misconduct....
...Evidence that a police department
has failed to investigate previous
incidents similar to the incident in
question may support a finding that
a municipal custom exists, and that
such a custom encourages or allows
officers to use excessive force
without concern for punishment.
However, a single incident usually doesn't
suffice to prove a municipal custom, and
inadequate investigation of the current incident
could not have caused the current incident.

Use of Force/Summary Judgment/Personal
Involvement and Supervisory Liability
Procedural Due Process
Bass v. Robinson, 167 F.3d 1041 (6th Cir.
1999). The plaintiff alleged that a police officer
put him in a headlock and slammed his head
against a tree several times even though he was
not resisting. The district court granted summary
judgment to the defendant, terming his claims
"unfounded." This was error; the court credited
the defendants' version of events rather than the
plaintiffs.
The court also erred in granting summary
judgment against the supervisor who failed to
intervene. At 1048: "Supervisory liability under §
1983 cannot attach where the allegation of liability
is based upon a mere failure to act.... Instead, the
liability must be based on active unconstitutional
behavior." (Wrong, according to most courts.)
The allegation that the supervisor attempted to
cover up the !llisconduct after the fact gives rise to
a question of fact whether the supervisor
encouraged or condoned the use of excessive
force.
No due process claim was stated by the
excessive force allegations, since the plaintiff did
not plead inadequacy of post-deprivation
remedies.
Use of Force/Damages: Assault and
Injury/TriallMunicipalities
Amato v. City ofSaratoga Springs, 170
F.3d 311 (2d Cir. 1999). A jury found two police

Spring/Summer 2000

officers liable for excessive force and awarded
nominal damages, plus punitive damages against
one officer.
Excessive force does not automatically
entitle a claimant to compensatory damages, e.g.,
where claims of injury lack credibility or the
injuries lack monetary value, or where some force
was justified and that accounted for the injuries.
The court distinguishes a prior case in which
uncontested evidence of pain and suffering entitled
the plaintiff to more than nominal damages, since
here there was a videotape of the plaintiff before
and after, and evidence that cast doubt on the
claims of injury.
The district court's order to bifurcate the
claims against the individual defendants from
those against the municipality, with the municipal
claims to commence immediately upon a finding
of liability against the officers, is reviewed for
abuse of discretion. It is upheld both because a
trial against the municipality might have proven
unnecessary had the officers been absolved, and
because evidence that would be used against the
municipality would have been inadmissible
against the individual defendants (e.g., the officers'
personnel records and prior claims of excessive
force against the Police Dept.) Other cases have
come out differently, but "[b]y its very nature,
discretion yields differing outcomes." (316)
The district court erred in dismissing the
claim against the municipality. Although the
plaintiff could not have recovered any more
damages (the compensatory verdict against the
officers being preclusive, and municipalities being
immune from punitive damages), he was entitled
to an award of nominal damages against the
municipality. There is a long discussion of why "a
finding against officers in their individual
capacities does not serve all the purposes of, and is
not the equivalent of, a judgment against the
municipality." (318) The decision to bifurcate
should not extinguish the right to obtain such a
judgment. The court points out that the 'defendants
can simply default and pay their dollar, and Judge
Jacobs, concurring, adds that a default judgment
lacks preclusive effect and may be grounds for
reducing or denying attorneys' fees.

19

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Privacy
Paul P. v. Verniero, 170 F.3d 396 (3d Cir.
1999). The registration and community
notification provisions of Megan's Law are upheld.
The constitutional right to privacy is discussed at
some length.

District Court Cases

False Imprisonment
Brady v. Dill, 24 F.Supp.2d 129 (D.Mass.
1998). Iflaw enforcement officers held the
plaintiff even though they knew that he was not
the person named in a warrant, they could be held
liable under the Fourth Amendment.
Use of Force/Evidentiary Questions/Pre-Trial
Detainees
Wilson v. Williams, 161 F.3d 1078 (7th
Cir. 1998). The plaintiff waived his objection to
references at trial to his having murdered a police
officer by not renewing it at the appropriate time
at trial after his in limine motion had been denied.
(This is the majority view in federal court.)
Counsel may ask the court for leave to enter a
continuing objection. Also, the plaintiffs own
references to the facts in the opening statement
and afterward waived any objection. Admission
of the evidence was not plain error. It was also
harmless error; the court thinks the plaintiffs case
was weak and contradictory. The court also notes
that the trial court conducted extensive voir dire to
avoid prejudice on this point.
Protection from Inmate Assault/Personal
Involvement and Supervisory Liability/Eye
Care/Municipalities
Boyce v. Fairman, 24 F.Supp.2d 880
(N.D.Ill. 1998). The plaintiff was attacked by
other inmates and threatened with further attack if
he complained. He complained, jail officials
refused to place him in protective custody, and he
was attacked again in the yard. He was not
permitted a return visit for his eye injury and lost
VISIOn III one eye.

20

Spring/Summer 2000

The plaintiffs claims are deemed to be
individual capacity claims based on the fact that
he is suing the defendants for damages for their
individual conduct, except for the Executive
Director, against whom the allegations were of
official policies. This states a claim against the
Director in his official capacity.
Allegations against two jail lieutenants that
they knowingly exposed the plaintiff to the risk of
further assault and knowingly prevented him from
receiving medical care for his serious medical
needs were sufficient at the pleading stage.
Rehabilitation/Searches:
Persons/Privacy/Standing
Lile v. McKune, 24 F.Supp.2d 1152
(D.Kan. 1998). The plaintiff was required to
complete a sex offender treatment program or
suffer impaired ability to earn good time, transfer
to maximum custody, and loss of privileges for the
review period, which "mirror the consequences .
imposed for serious disciplinary infractions." The
plaintiff refused to sign an "Admission of Guilt"
form, objected to the requirement that participants
provide a written sexual history (verified by
polygraph) which includes all prior activities
including uncharged criminal offenses, and
objected to penile plethysmograph testing. Staff
are required to report any uncharged sex offenses
that are disclosed, and program files are subject to
subpoena.
The required sexual history is
incriminating for Fifth Amendment purposes.
(The court does not reach the question whether the
written "admission of responsibility" for the
current offense invokes Fifth Amendment
protection.) The sex offender program operates to
compel the disclosure of such incriminating
testimony. The court distinguishes the clemency
hearings at issue in Ohio Adult Parole Authority v.
Woodard on the ground that the Court found them
to be voluntary. This case would be similar to
Woodard ifthe consequences of non-cooperation
were limited to effects on the discretionary grant
of parole. However, the adverse consequences to
classification, housing and privileges are sufficient
to constitute Fifth Amendment compulsion. (The

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Kansas Supreme Court has reached the same
conclusion with respect to restrictions on earning
good time. Bankes v. Simmons, 963 P.2d 412
(1998).) The court rejects the defendants'
argument that ifno liberty interest is denied, there
is no compulsion.
The state may require the disclosures at
issue if it extends immunity against their use in
subsequent criminal proceedings.
The use of penile plethysmography to
measure response when prisoners are played audio
recordings of sexual scenes does not violate the
Fourth Amendment. Prisoners have no legitimate
expectations of privacy in their cells. At 1161:
"A search of a prisoner's body, however, is a
qualitatively different matter.... A prisoner retains
a privacy interest in the integrity of his own
person." The collection of revealing private
physiological data has been found to be an
invasion of privacy interests. However, the
reasonableness of this intrusion is measured by the
Turner standard. The practice has a valid, rational
connection to a rehabilitative program; its
intrusiveness is mitigated by the fact that staff do
not touch or observe the inmate during the
procedure and do not videotape it. The fact that
this procedure has garnered only limited
acceptance by the courts, that its usefulness is
diminished by the involuntariness of the program,
and that staffs training and expertise is marginal,
are outweighed by the deference owed defendants.
The consequences to the plaintiff of
noncooperation with the procedure render it
involuntary and give the plaintiff standing to
challenge it. ~

Religion: Services Within/Practices
Institution/Publications/Correspondence/Religi
on: Practices/Personal Property
Maberry v. McKune, 24 F.Supp.2d 1222
(D.Kan. 1998). The plaintiff complained of
restrictions on his religious practice as a follower
of the First Hermetic Order of Thelema, a religion
founded in 1904 by Aleister Crowley. Prison
officials recognized the religion and arranged for a
visit from Thelemic clergy from the Khensu-RaOasis in Bellevue, Nebraska, and sought

Spring/Summer 2000

volunteers from that site and from the Ra-HereBehutet Camp in Kansas City to assist with
Thelemic spiritual needs.
The restrictions are upheld under the
Turner standard. The court first notes that
defendants have expended much effort to
accommodate the The1emic religion. The denial
of some allegedly religious items (sword, dagger,
etc.) clearly serves interests in safety and security,
and a Thelemic religious authority said they
weren't necessary anyway. They would create a
ripple effect because others would want them too.
Defendants' censorship of chapter 12 of
Aleister Crowley's Magick in Theory and Practice
is upheld because it discusses blood sacrifices, "a
topic that could clearly pose a threat to prison
safety and security." (1228) A letter between the
plaintiff and another prisoner on the same subject
was also properly censored.
The Thelemic group is only allowed to
practice once a week and is required to have
outside clergy present. Religious groups need not
be treated identically as long as each has a
reasonable opportunity to exercise its beliefs. The
court does not refer to any official justification of
the differences.
A limit of $30 a payroll period on outside
items does not deny equal protection as applied to
the plaintiff; it is an incentive program and the
plaintiff has not achieved a level in the program
permitting greater expenditures. The limit is not
an ex post facto violation because it does not
increase his punishment.
A limit on the number and value of books
the plaintiff can possess does not deny due process
or equal protection.

Federal Officials and
Prisons/Emergency/Protection from
Harm/Statutes of Limitations
Jackson v. United States, 24 F.Supp.2d 823
(W.D.Tenn.1998). The plaintiff sustained carbon
monoxide poisoning while locked down during a
fire started during a riot. The Clinical Director
ordered that he remain in the pri'son medical
facility rather than be sent to a hospital. Six days
later, when he finally got to a hospital, he was

21

The National Prison ProjectJOURNAL

ordered that he remain in the prison medical
facility rather than be sent to a hospital. Six days
later, when he finally got to a hospital, he was
found to have a collapsed lung.
The plaintiffs Bivens claim is barred by the
one-year Tennessee statute oflimitations on
personal injury actions. The period was not tolled
while the Federal Tort Claims Act claim was
under consideration, since constitutional claims
may not be pursued under FTCA.
The court denies the government summary
judgment under the discretionary exception to the
FTCA because it failed to show how the decision
to leave the plaintiff in his cell during the fire was
made.
The court denies the government summary
judgment on the merits. The doctor who refused
to send the plaintiff to the hospital never x-rayed
him or took a blood sample to determine ifhe had
CO in his blood, and the government has provided
no evidence that the doctor exercised the requisite
degree of skill. The only evidence of the proper
course of treatment was the paramedics' act of
bringing the plaintiff to the front gate for
evacuation to a hospital.
The plaintiffs incarceration gave rise to a
duty of care to the plaintiff. Staff left their posts
during the fire, showing that the government
breached its duty to the plaintiff. The CO
poisoning and the collapsed lung show proximate
cause. (This is not explained.) The government
presented no evidence that the housing units were
cleared of smoke before the prisoners were locked
in or that leaving them locked in while fires
burned out of control was reasonable.
Habeas Corpus
Moreno v. State ofCalifornia, 25
F.Supp.2d 1060 (N.D.Cai. 1998). Parole
conditions are part of the criminal sentence and
therefore subject to the Heck rule requiring them
to be invalidated by a state forum or else
challenged via habeas corpus after exhaustion
rather than via § 1983.
Rights of Staff
Smylis v. City ofNew York, 25 F.Supp.2d

22

Spring/Summer 2000

461 (S.D.N.Y. 1998). A Department of
Correction captain pled guilty to administrative
charges related to an incident of misuse of force
and cover-up by correctional staff. He then
alleged that he was denied due process of law in
that he was threatened with criminal prosecution,
bullied, treated disrespectfully, etc. The only legal
question is whether he was coerced into waiving
his due process right to a hearing. He was advised
by competent counsel, there was no violence or
threat of violence, and there was no withholding of
exculpatory evidence or other prosecutorial
misconduct, so his waiver was voluntary and
intelligent.
In his deposition the plaintiff attested to
the code of silence, stating that it would be
difficult for him to remain at DOC ifhe testified
against co-workers.
Pre-Trial Detainees
Zimmerman v. Tippecanoe Sheriffs Dept.,
25 F.Supp.2d 915 (N.D.Ind. 1998).
Procedural Due Process-Disciplinary Proceedings (920):
Sandin does not apply to detainees,
who are entitled to procedural due
process in disciplinary proceedings.
Here there was some evidence
because staff said the plaintiff had
confessed.
Procedural Due Process-Administrative Segregation (921):
Placement of an escape risk in
segregation without a hearing, and
requiring him to wear leg irons
when out of his cell, was not
unlawful punishment.
Procedural Due Process-Disciplinary Proceedings, Personal
Property (921): The plaintiff
alleged that his cell was stripped
for 14 days. The Fourteenth
Amendment requires no process
when officials search a cell or
remove property to ensure security.
Personal Property (922):
Short-lived deprivation of

The National Prison Project JOURNAL

commissary buys does not violate
the Constitution.
Attorney Consultation
(922): The plaintiff complained of
lack of attorney-client
confidentiality; however, the
defendants denied listening in on
conversations and and there was no
evidence to the contrary. The
appearance of impropriety does not
violate the Constitution.
Correspondence,
Procedural Due Process--Property
(924): Allegations that an officer
hid the plaintiff's outgoing mail do
not state a claim since another
officer found it and mailed it a few
hours later. Allegations that
unspecified, non-written items were
removed from correspondence do
not state a claim ifthere are postdeprivation remedies available.
Dental Care, Serious
Medical Needs (925-26): The
plaintiff's dental complaint does not
meet the serious medical needs
standard in the absence of pain and
discomfort, which he did not allege.
Use ofForce--Restraints
(926): The plaintiff alleged that
after he had been subdued during
an escape attempt he was
handcuffed so tightly that he
suffered permanent nerve damage.
The defendant is denied summary
judgment.
Communication with
Media, Correspondence--Legal and
Official (927): The refusal to mail
letters to a newspaper reporter and
an attorney pursuant to a policy
against sending mail with anything
on the envelope other than address
and return address did not violate
the Constitution, since he could
resend the letters.

Spring/Summer 2000

Protection from Inmate Assault
Mabine v. Vaughn, 25 F.Supp.2d 587
(E.D.Pa. 1998). The plaintiff had a separation
order from another prisoner whose brother he had
killed. He was assaulted by that prisoner, who
was permitted to be in the same population only
because of error. There was no showing that the
defendants actually knew about the separation
order before the attack. The plaintiff required no
medical treatment after the attack; his injuries are
"constitutionally de minimis" and do not meet the
serious harm standard of Farmer v. Brennan.
Crowding/Equal Protection/Classification:
Race
Simpson v. Horn, 25 F.Supp.2d 563
(E.D.Pa. 1998). Defendants are entitled to
summary judgment on plaintiff's overcrowding
claim. Although he presented evidence of a prison
overtaxed by its population with breakdowns in
services and maintenance, it does not show a
deprivation of basic human needs. It shows, at
most, discomfort, sometimes limited to isolated
instances. There is no evidence of deliberate
indifference, in that defendants either did not
know of the plaintiff's problems, or their conduct
(like delays in making repairs and providing
supplies) was negligence at most.
A policy of cell assignment that takes into
account inmates' history of racial violence or
propensity for it meets the Turner standard. The
plaintiff's evidence of the existence of a "chart
board" listing black, Hispanic and white cells,
along with a memo seeming to suggest a more
categorical segregation policy and remarks made
to him by staff, comprise sufficient evidence of
intent to withstand summary judgment.
The prohibition of racial segregation in
prison is a clearly established right which may be
abridged in narrowly tailored and particularized
circumstances.
PLRA: Prospective Relief
Restrictions/Attorney
Consultation/Standing/Deference
Williams v. Price, 25 F.Supp.2d 623
(W.D.Pa. 1998). The plaintiffs alleged that the

23

The National Prison Project]OURNAL

defendants failed to provide them with facilities
for confidential conversations with counsel. The
court entered an injunction directing them to do
so. Defendants then moved to alter or amend
under the PLRA, and the district court remanded
to the magistrate for proceedings consistent with
the PLRA. Plaintiffs did not pursue their request
for injunctive relief but sought only declaratory
relief
The plaintiffs did not invoke the right of
court access because they could not meet the
Lewis v. Casey injury requirement. Rather, they
argued that their First Amendment free speech
rights and their Fourteenth Amendment privacy
rights were infringed. The Sixth Amendment was
not relevant because the plaintiffs are convicted
prisoners. At 628:
Now that the constitutional
right of access to court is no longer
available to prisoners to preserve
the confidentiality of their
communications with their counsel
unless they can meet the difficult
test of injury set forth in Lewis, or
unless the Sixth Amendment is
available, they will reasonably look
to the right of privacy to assure
their right to confidential
communications with counsel.
This seems to be an appropriate
application of the right of privacy.
The court therefore grants plaintiffs' motion for
declaratory relief.
The right to attorney-client confidentiality
is also -protected by the First Amendment. This
claim is governed by the Turner standard.
Defendants have raised no order, security, or other
administrative need to deny privacy in these
consultations. Although prisoners have an
alternative--written communication--the only
impact accommodation would have on others is
soundproofing the rooms. Defendants' reliance on
Laird v. Tatum is misplaced. In that case the
government was collecting public information
about people who mayor may not have been
chilled in their expressive activities. The present
plaintiffs showed that the ability of others to

24

Spring/Summer 2000

overhear their conversations prevented them from
being able to discuss private matters with their
attorneys. This is sufficient injury.
AIDS/Special Diets
Polanco v. Dworzack, 25 F.Supp.2d 148
(W.D.N.Y. 1998). The failure of the defendants to
provide the HIV-positive plaintiff with the brand
name dietary supplement he wanted was not
deliberately indifferent. He raised only a
difference of opinion about medical treatment.
Defendants provided him with appropriate medical
attention, including dietary supplements in the
form of night snacks. He did not lose weight
during the period in question.
ReligionlDamages: Intangible Injuries,
Punitive/Use of Force
Arroyo Lopez v. Nuttall, 25 F.Supp.2d 407
(S.D.N.Y. 1998). The defendant officer shoved
the plaintiff without justification while he was
praying. His actions lacked any penological
justification. Heis not entitled to qualified
immunity.
The court awards $2,000 for his emotional
distress and $5,000 in punitive damages. The
PLRA mental or emotional distress provision is
not mentioned; the incident antedates the PLRA.
Sexual Abuse/Jurisdictional, Procedural and
Litigation Questions/Protection from
Harm/Food/Color of Law
Gwynn v. Transcor America, Inc., 26
F.Supp.2d 1256 (D.Colo. 1998). The plaintiff was
transported from Oregon to Colorado by the
defendant pursuant to a contract for extradition
transportation. The trip took 145 hours and passed
through seven states. The plaintiff alleged that she
was endangered by the drivers' excessive speed
and lack of sleep, provided inadequate food, and
raped and sexually assaulted.
Venue was proper in Colorado, since the
defendants, acting under contract with Colorado,
essentially acted as prison guards for and agents of
Colorado. The plaintiff, though not claiming rape
in Colorado, said she was sexually assaulted and
fondled in all of the states including Colorado, and

The National Prison ProjectJOURNAL

sexual assault short of rape is actionable under §
1983.
The Colorado court has personal
jurisdiction over the individual Transcor
employees, who lived in Tennessee, since they
acted under color of Colorado law, transported the
plaintiff to Colorado, and performed tortious acts
in Colorado.
Sexual assaults by the defendants occurred
under color of state law because they used state
P9wer as a coercive force to further their wrongful
acts. The fact that sexual abuse was not part of
their jobs is beside the point; abuse need not be
"perpetrated in the performance of the actor's
assigned tasks" to be under color oflaw.
Allegations of unsafe driving are not
objectively serious enough to state an Eighth
Amendment claim or a substantive due process
claim.
The plaintiffs allegation that she was
provided food only from McDonald's or Arby's,
and not much of that, and that she was forced to
sign for meals she was not actually given, fails
because ten of the nineteen meals she received
were in various jails along the way, and she did
not allege any harm resulting from the deprivation
of food.

Correspondence/Publications/Mootness
DiRose v. McClennan, 26 F.Supp.2d 550
(W.D.N.Y. 1998). The plaintiff was found with
letters detailing an escape plan and convicted of
disciplinary charges. Prison officials instituted a
mail watch. This action was fully justified by
security concerns. Failure to follow defendants'
internal directive did not violate the Constitution.
The refusal to permit catalogs was moot, since the
plaintiffhad prevailed in grievances challenging
these denials. A Department of Motor Vehicles
Driving Abstract record of a corrections officer
was properly deemed contraband and intercepted
because of the need to keep officers' addresses
from prisoners.
Procedural Due Process: Disciplinary
Proceedings/Qualified Immunity
Lee v. Coughlin, 26 F$upp.2d 615

Spring/Summer 2000

(S.D.N.Y. 1998). The plaintiff was sentenced to
two years in disciplinary segregation and served
376 days before he got his conviction reversed in
state court. The time he served was atypical and
significant under Sandin. The court reviews data
on the nature and length of disciplinary sanctions
and notes, e.g., that the time the plaintiff served is
longer than all but 2.2% of the confinement
sentences imposed.
Sandin has brought due process analysis
"full circle." At 630: "It now appears that the
'grievous loss' test of Goldberg has been
resurrected and repackaged as the 'atypical and
significant' hardship requirement in Sandin ...."
Under that analysis, the court first addresses
atypical and significant hardship, and then
determines whether the plaintiff had a liberty
interest. Prior Second Circuit law holding that
administrative and disciplinary segregation
implicates liberty interests is still good.
The New York disciplinary system and
prison system are different from that in Sandin. In
Hawaii, there is only one maximum security
prison, compared to many in New York. The New
York system permits the possibility of unlimited
solitary segregation. There is a bigger difference
between general population and segregation in
New York. In Hawaii, officials retain broad
discretion to place prisoners in segregation for
punitive and non-punitive reasons. In New York,
there is a catchall provision for administrative
segregation but it is only used in "emergency or
unusual situations." (633) Id.: "The limited
number, exigent circumstances, and frequent
review of such segregations bespeak their
atypicality." There are significant differences
between the treatment of prisoners in punitive
segregation and other forms of segregation.
Decisions holding that segregation can
never be atypical and significant have not applied
"the rigorous factual analysis commanded by
Sandin." (634) The duration and degree of
restriction must be considered. The relevant
comparison here is between disciplinary
segregation and general population, since
protective custody conditions are closer to general
population than to segregation, and administrative

25

.The National Prison ProjectjOURNAL

segregation "is closely cabined by extensive state
restrictions." (635) Id.: "In New York, unlike
Hawaii, the full isolation of punitive confinement,
compounded by the duration and the loss of all
privileges of long-term punitive confinement, do
impose a 'major disruption' on an inmate's
environment." That is especially true where the
sentence is longer than received by 99% of the
inmate population.
The basis for comparison under Sandin is
the sentence actually imposed, not the potential
sentence. Having said that, the court examines the
time actually served.
At 637: "The effect of prolonged isolation
on inmates has been repeatedly confirmed in
medical and scientific studies."
At the time of the incident complained of,
the law was clearly established that disciplinary
segregation without due process was
unconstitutional. Sandin did not retroactively
disestablish that law.

Telephones/Attorney Consultation
Arney v. Simmons, 26 F.Supp.2d 1288
(D.Kan. 1998). Under prison policy, prisoners can
make telephone calls only collect and to persons
previously placed on a list limited to 10; calls can
be recorded and monitored; calls are automatically
terminated when the outside party tries to transfer
the call or make it a three-way call. The
monitoring feature is disabled for persons
identified and verified as attorneys. The telephone
list can be changed every 120 days, or more
frequently under some circumstances. Public
officials-may not be placed on the lists, but other
arrangements are made to contact such "privileged
persons" on a case by case basis. These calls are
subject to monitoring.
Courts are divided over whether there is
any First Amendment right to telephone access at
all. The court does not resolve this question but
upholds the restrictions under the Turner standard.
They are content-neutral and unrelated to
suppressing expression. They are logically
connected to legitimate security interests in
avoiding escape plots and the planning of assaults,
other violent acts, and harassment of people

26

Spring/Summer 2000

outside prison. It is a "common sense assumption"
that telephone restrictions serve legitimate
penological purposes. Prison officials need not
present evidence that the evils they wish to
prevent have actually occurred.
Prisoners have alternative means of
communication, i.e. visiting and correspondence.
The plaintiffs' complaints of inability to call
particular people under particular circumstances
are dismissed because they did not try to resolve
them administratively by seeking exceptions.
Expanded telephone privileges would have
an effect on prison resources because of the time it
takes to approve and to change telephone lists and
to monitor calls. There are no obvious, easy
alternatives, and other well-run prison systems use
similar restrictions.
At 1296: "The legality of monitoring
inmate calls to an attorney is not settled."
Monitoring such calls does not deny access to
courts in the absence of proof of injury as required
by Lewis v. Casey. In any case the evidence did
not support the existence of monitoring of legal
calls, which contravened prison policy. The fact
that "facility phones" are monitored is not
unconstitutional given that attorney calls on the
"inmate phones" are not.

Protection from Inmate Assault/Statutes of
Limitations/Cruel and Unusual Punishment:
Proof of Harm
Daily v. Monte, 26 F.Supp.2d 984
(E.D.Mich. 1998). Substituting a named
defendant for a John Doe defendant is a change in
parties, such that an amendment relates back to the
time of filing of the original complaint if the
requirements of Rule 15(c), Fed.R.Civ.P. are
otherwise met. The court rejects Sixth Circuit
authority indicating that such a substitution cannot
meet the "mistake of identity" requirement of the
rule, preferring earlier authority to the contrary.
The court finds that the new defendants received
sufficient notice under the rule because an
investigation of the incident must have been
conducted in response to the plaintiffs
interrogatories and that the new defendants are
named in the incident reports supplied by defense

The National Prison ProjectJOURNAL

counsel.
The plaintiffs assertions that he repeatedly
complained to the defendants about threats of
assault and actual assaults from other prisoners,
and that they saw his bruises and saw him hit on
one occasion and did nothing, sufficiently
supported his Eighth Amendment claim. At 989:
".... [T]he fact that Plaintiff was fortunate enough
to be rescued before serious harm was done does
not preclude a finding that he was in fact at
substantial risk of serious harm."
Criminal ProceedingslUse of Force/Pre-Trial
Detainees
United States v. Walsh, 27 F.Supp.2d 186
(W.D.N.Y. 1998). The defendant, a correctional
officer at the Orleans County Jail, was convicted
of criminal civil rights violations for stepping on a
prisoner's penis on several occasions. The
prisoner was mentally ill; the officer weighed 400
pounds; the officer required the prisoner to submit
to this treatment before he would give him a
cigarette. The charges were corroborated by three
other officers and another prisoner.
The court rejects defendant's argument that
the force used was "merely the application of de
minimis force ... and was at most a spontaneous
act under Johnson v. Glick...." (l92) Rather, it
was force of the sort that is "repugnant to the
conscience of mankind." Id.: "Stepping on one's
penis is not 'routine discomfort' [that] is 'part of
the penalty that criminal offenders pay for their
offenses against society.'" (Citation omitted) The
conduct was wanton and malicious because there
was no needJor it, there was no threat reasonably
perceived by the defendant, and the defendant
made no effort to temper the severity of his
response.
The plaintiff was a detainee for part of the
time in question and a sentenced prisoner at other
times. The court charged the jury under the
Eighth Amendment and neither party objected.
Drug Dependency Treatment/Federal Officials
and Prisons
Martinez v. Flowers, 164 F.3d 1257 (lOth
Cir. 1998). The petitioner was denied a sentence

Spring/Summer 2000

reduction after he had successfully completed a
substance abuse program. The Federal Bureau of
Prisons did not exceed its statutory authority in
excluding prisoners who had prior, as well as
current, convictions for violent offenses from the
sentence reduction program.
AIDS/Pre-Trial Detainees/Medical Care:
Standards of Liability and Serious Medical
Needs
McNally v. Prison Health Services, 28
F.Supp.2d 671 (D.Me. 1998). The HIV-positive
plaintiff was incarcerated and told the medical
staff he needed his medications immediately. His
doctor confirmed his diagnosis, medication, and
dosage. The plaintiff was also suffering from
symptoms including fevers, night chills, and night
sweats. He didn't get his meds. These facts
sufficiently pled that defendants had actual notice
that he needed medical care and that they refused
to provide it.
The allegation that a physician confirmed
that the plaintiff was on a medication protocol for
HIV treatment, and that HIV is a serious medical
condition, sufficiently alleged a serious medical
need.
Assuming sigilificant harm is an element
of a medical care claim, the plaintiff showed it,
alleging fevers, night sweats and chills, infections
from cuts and bruises, and "psychological stress
over being forced to endure a potentially fatal
deprivation of prescribed medication." (674)
These allegations and the time sequence
sufficiently pled causation.
Class Actions: Settlement/PLRA:
SettlementslHygiene
Austin v. Hopper, 28 F.Supp.2d 1231
(M.D.Ala.1998). In the Alabama chain gang
litigation, the parties settled the claim concerning
lack of adequate toilet facilities. Defendants
agreed to promulgate a procedure providing for
soap, water, and toilet paper; one portable toilet
for every 40 inmates; and for medium security
inmates who work on prison grounds for whom no
toilet facilities are available, "reasonable efforts
will be made to allow privacy for those who need

27

The National Prison Project]OURNAL

to relieve themselves," and a shovel will be
provided for those who must defecate.
At 1234: "[T]he court was unable to
evaluate the underlying fairness of the agreement
without obtaining the views of the members ofthe
class." At 1236: "As required by Rule 23(e) of the
Federal Rules of Civil Procedure, the court
ordered the parties to provide notice ofthe
settlement ofthe toilet-facilities issue to the
putative class of plaintiffs." It was posted on
bulletin boards in all dormitories, in law libraries
and in dining rooms, and sent to county jails to
facilitate notice to state inmates there. "The notice
informed inmates about the nature ofthe
settlement, the advantages and disadvantages of
the terms of the agreement, and the right to file an
objection to the settlement, and the parties also
provided inmates with forms for filing such
objections."
.At 1235: "Before approving the settlement
agreement, the court must determine whether it
complies with the PLRA." However, this is a
private settlement agreement not subj ect to the
PLRA. "The agreement does not require judicial
enforcement of its terms, but rather contemplates
enforcement through mechanisms permitted by the
PLRA: reinstatement of the action and state-court
relief."
At 1235: "Judicial policy favors ·voluntary
settlement as the means of resolving class-action
cases."
At 1236: "In determining whether a
settlement agreement is fair, adequate, and
reasonable, the obvious first place a court should
look is to the views of the class itself." Most
objectors misunderstood what was going on (e.g.
complained about other issues). The 26 objections
are a small percentage of the class; where a
settlement provides for structural changes
affecting everyone similarly, and there are no
conflicts of interest within the class, majority
sentiment should be given great weight. But
silence may not mean consent. "The court is
especially wary of such silence in the context of
prison litigation where the members of the class
are likely to have lower literacy levels, as well as
limited access to materials to enable them to file

28

Spring/Summer 2000

an objection." (1238, quoting earlier opinion)
The court approves the settlement.
Rights of Particular Groups/Theories: Due
ProcesslHabeas Corpus
Martinez v. Greene, 28 F.Supp.2d 1275
(D.Colo. 1998). A statute requiring that criminal
aliens detained for deportation hearings beheld
without bond denies due process on its face
because, substantively, it is a deprivation ofliberty
and is not narrowly tailored to meet valid
legislative goals, and procedurally, denies
individualized consideration of whether each alien
is a flight risk and a threat to the community's
safety.
Federal courts retain jurisdiction under the
federal habeas statute and the Suspension Clause
to review aliens' claims of constitutional violation,
notwithstanding the broad language of AEDPA
suggesting otherwise.
Medical Care: Standards of Liability and
Deliberate Indifference/Medical Care:
Standards of Liability and Serious Medical
Needs
Hudak v. Miller, 28 F.Supp.2d 827
(S.D.N.Y. 1998). The plaintiff complained of
chronic headaches repeatedly for nine months at
one prison; he continued to complain at other
prisons; he was finally sent out for a CT scan, and
proved to have a large aneurysm, which was
surgically corrected.
A serious medical need must be
"sufficiently serious, in the sense that a condition
of urgency, one that may produce death,
degeneration, or extreme pain exists." (830,
citation omitted). It is not disputed that plaintiffs
need was serious.
Obviousness of a risk may support an
inference of actual knowledge. At 831: "It should
be noted that the knowledge which Hudak must
show Dr. Miller had is not that Hudak had a brain
aneurysm ... but rather that Miller knew that Judak
had some serious medical problem which bore
further investigation." The, doctor's self-serving
statement that he believed, based on the evidence,
that the headaches were from tension can't defeat

The National Prison Project JOURNAL

liability if the facts indicated that the risk of a
serious problem was so obvious that he must have
known about it. The fact that he treated the
plaintiff every time he came in and gave him a
neurological examination was also not dispositive.
At 832: "[T]he mere fact that the plaintiff was
treated in some manner, while it may 'substantially
weaken[]' his claim ... does not foreclose a finding
of deliberate indifference if Miller knew that his
treatment was inadequate."
The fact that another doctor with access to
the same facts also missed the aneurysm doesn't
prove the defendant didn't have actual knowledge;
officials at another prison, reviewing plaintiffs
grievance, reached the conclusion that further
investigation and testing were warranted.
The doctor's state111ent that "inmates are
hostile" is not evidence of bias supporting a claim
of deliberate indifference.
Medical Care: Quarantine/Medical Care:
Standards of Liability and Deliberate
Indifference/Medical Care: Standards of
Liability and Serious Medical Needsillental
Care/Personal Involvement and Supervisory
Liability/Service of Process/Grievances and
Complaints about Prison
Ramos v. O'Connell, 28 F.Supp.2d 796
(W.D.N.Y. 1998). The plaintiff was placed in
medical quarantine after he refused to be tested for
tuberculosis. He had a dental abscess and over a
period of months staff refused to take him out of
his cell for medical or dental appointments,
despite a grievance decision in his favor.
Denial of a routine blood test is not a
serious medical need. However, an abscessed
wisdom tooth is. The court notes that the Second
Circuit has just held that a toothache that cause~
"great pain" is a serious medical need.
The Superintendent who granted a
grievance and directed that plaintiff go to a dentist
could not be found deliberately indifferent.
An official who was responsible for
enforcing a policy denying medically quarantined
inmates medical and dental treatment, and who
was alleged to have done so with respect to the
plaintiff, could be found deliberately indifferent.

Spring/Summer 2000

Correctional supervisors who allegedly
directed security officers not to release plaintiff for
medical appointments could be found deliberately
indifferent.
Medical personnel who, respectively,
repeatedly reported the plaintiffs complaints and
symptoms and repeatedly scheduled appointments
for him could not be found deliberately
indifferent.
Defendants not served within 120 days
would not be dismissed on that ground; "the 120day period is not absolute and '[a]n indulgent
attitude towards pro se plaintiffs suing in forma
pauperis, especially when they are incarcerated,
has been manifest in a number of cases. III (804,
citation omitted)
Classification: Race
Anthony v. Burkhart, 28 F.Supp.2d 1239
(M.D.Fla. 1998). The plaintiff alleged that a
private nonprofit corporation that administers
prisoner work discriminated against him in
denying him an office position and then
terminating him. The court grants summary
judgment to defendants.
At 1245: "Clearly, prison officials cannot
discriminate against Plaintiff on the basis of his
age, race, or handicap in choosing what job to
assign him.... Furthermore, prison officials cannot
punish Plaintiff for exercising his First
Amendment rights by denying him certain job
assignments or transferring him from one job to
another."
Class Actions: Certification of Classes/Medical
Care: Standards of Liability: Serious Medical
Needs/Medication
Maldonado v. Terhune, 28 F.Supp.2d 284
(D.N.J. 1998). The plaintiff tested positive for
tuberculosis while incarcerated; he was given
INH, which caused some liver problems.
The defendants were not deliberately
indifferent in not doing TB testing every six
months rather than yearly and in giving him INH.
In both cases they were following standard
medical practice.
A pro se prisoner is inadequate to represent

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The National Prison ProjectJOURNAL

the interests of other prisoners in a class action.
At 290: "Active tuberculosis is surely a
'serious medical need,' ... and even the latent
presence of the tuberculosis bacterium, as shown
in a positive Mantoux test, is a condition which
must be treated with the utmost care and caution.
As a general rule, it is not required that latent
health problems blossom into full fledged disease
before being considered serious."
At 290: "Prescribing medication that may
have side effects does not amount to 'deliberate
indifference' to serious medical needs as is
necessary to support a claim under Estelle....
What is required is that grison officials be mindful
of side effects and take reasonable steps to avoid
serious harm."

Access to Courts/Grievances and Complaints
about Prison
Lewis v. Cook County Dept. of
Corrections, 28 F.Supp.2d 1073 (N.D.IlI. 1998).
The plaintiff, who worked in the law library, was
observed to have what he said was a pimple and a
doctor said was a hickey. They asked him whether
he was homosexual or had been attacked, both of
which he denied, then fired him. He had
previously filed a grievance against the lieutenant
who made the decision.
Plaintiff states a claim for retaliation
"because he has properly alleged a chronology of
events from which retaliation can be inferred."
(1076) Retaliation does not have to be the only
logical inference that can be drawn. To pursue a
retaliation claim, plaintiff need not show that he
was prejudiced in the litigation of a non-frivolous
claim. The court does not explain this conclusion
in Lewis v. Casey tenns.
Absent injury, plaintiff does not state an
access to courts claim.
The plaintiff does not state an equal
protection claim on the ground of discrimination
by sexual orientation unless he alleges that he is a
homosexual; an equal protection plaintiff must
allege he or she is a member of an identifiable
minority and that membership caused differential
treatment. This is probably overruled by Village
of Willowbrook v. Olech, 120 S.Ct. 1073 (2000).

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Spring/Summer 2000

PLRA: Exhaustion of Administrative
Remedies/State Officials and AgencieslHabeas
Corpus/Procedural Due Process: Disciplinary
Proceedings/Res Judicata and Collateral
Estoppel
Beeson v. Fishkill Correctional Facility,
28 F.Supp.2d 884 (S.D.N.Y. 1998). The court
should not assume that a plaintiffs failure to
specify the capacity in which a defendant is sued
means that it's an official capacity case dismissible
under the Eleventh Amendment; the court should
look to the course of proceedings.
A claim that defendants assaulted the
plaintiff and destroyed his property in events
leading up to a disciplinary hearing is not barred
by Edwards v. Balisok because it is not a
challenge to the finding of the disciplinary
hearing, though the court does observe that some
assertions may eventually be barred by collateral
estoppel under principles of administrative res
judicata. This is dictum; I have never seen
administrative res judicata used in a prison
discipline case (yet).
A use of force claim is subject to
administrative exhaustion; the court rejects
contrary authority. It rejects the statutory
construction that the narrowing of language from
fonner § 1997e(a) to the current PLRA language
excludes use of force actions. It also rejects
arguments based on the ordinary meaning of the
"effect" of prison conditions (since the statutory
definition of prison conditions pre-empts ordinary
meaning), and the argument from Farmer v.
Brennan's distinction between conditions cases
and use of force cases. McCarthy v. Bronson
supports the court's interpretation. Also, the
argument that the purported legislative purpose--to
avoid interference with prison management--is not
affected by use of force disputes, is rejected
because there is "mischief' inherent in reliance on
legislative history, and in any case PLRA's
purposes include reducing frivolous lawsuits as
well. Anyway, it is a fonn of micromanagement
for courts even to decide these cases if they could
be resolved by prison officials.
Damage claims must be exhausted even if
the administrative remedy doesn't provide for

The National Prison Project]OURNAL

damages. The opposite argument contravenes the
statutory language, which no longer addresses the
adequacy of remedies, but only their availability.
The opposite argument also makes applicability of
the exhaustion requirement depend on the vagaries
of state law (i.e., whether a grievance system does
or does not provide damages), and would frustrate
the legislative purpose to reduce the volume of
frivolous prison litigation. Also, this court's
position is supported by the statement in
McCarthy v. Madigan that where Congress
mandates exhaustion, rather than leaving it to
courts' discretion, exhaustion is required. Even
without this authority, a balancing analysis would
call for exhaustion because it serves agencies'
interest in resolving their own internal problems,
avoids the purposeful evasion of administrative
processes, and promotes judicial efficiency by
getting rid of more prisoner cases.

Non-Prison Cases
Use of Force
Pritzker v. City ofHudson, 26 F.Supp.2d
433 (N.D.N.Y. 1998). The plaintiff, arrested for
perjury after voluntarily surrendering, stated a
Fourth Amendment claim for excessive force by
alleging that a police officer placed handcuffs
tightly around his wrists and chained him to a
bench, and that he had previously sustained an
injury to both wrists. (444)

High Court Allows Congress' Limits on
Prison Litigation
In a fresh blow to the independence of the
federal courts, the Supreme Court in June
reinstated a key provision of the 1996 Prison
Litigation Reform Act.
The American Civil Liberties Union,
which argued against the law's provision in US. v
French, said that allowing Congress to secondguess the Courts violates the constitutional
principle of separation of powers and further
weakens a federal court sysiem already hobbled by
government-imposed limits. "Much to our

Spring/Summer 2000

disappointment, the Court put its stamp of
approval on the direct legislative suspension of
judicial decisions," said Ken Falk, Legal Director
ofthe Indiana Civil Liberties Union, who argued
the case before the High Court last April. "This
ruling has grave repercussions not only for prison
litigation cases, but for any case that Congress
may choose to weigh in on."
At issue is the automatic stay provision of
the PLRA, which provides only 90 days for courts
to rule on often complex cases before previously
entered judgments are stayed. In effect, Falk said,
Congress is forcing its timetable on an already
overworked federal court system. "At least the
Justices didn't foreclose the possibility that district
courts could suspend stays on court-ordered
decrees on due process grounds," he added.
Writing in a dissent joined by Justice
Stevens, Justice Stephen Breyer said that the
majority ruling in this case ignores the "extreme
circumstances that at least some prison litigation
originally sought to correct, the complexity of the
resulting judicial decrees, and the potential
difficulties arising out of the subsequent need to
review those decrees in order to make certain they
follow Congress' PLRA directives."
Margaret Winter, NPP's Associate
Director, said the ruling is yet another example of
how the 1996 Prison Litigation Reform Act has
restricted federal courts from exercising their
judgment in the majority of prison litigation cases,
many of them involving rape and sexual abuse,
physical abuse, squalid conditions and lack of
medical care.
The case is Us. v French et al.,
consolidated with Miller v. French et al., Nos. 99224 and 99-582, respectively.

Legislative Updates
BOP Medical Copayment Now Law
The Federal Prisoner Health Care
Copayment Act of2000, [see Journal Fall 1999/
Winter 2000 edition], was signyd into law by the
President in October. The law authorizes the
director ofthe Federal Bureau of Prisons to collect

31

The National Prison Project JOURNAL

a fee not less than $1 from a prisoner for each
health care visit made by that prisoner. Certain
health care services are exempted from the fee
including, preventative care services, emergency
services, prenatal care, diagnosis or treatment of
chronic infectious diseases, mental health care, or
substance abuse treatment. Prisoners should not
be discouraged from seeking necessary medical
treatment. A last minute amendment to the law
also requires comprehensive coverage for services
relating to HIV/AIDS for each Federal prisoner
when medically appropriate. The BOP may not
assess or collect a fee for this coverage.

Grants for Mental Health Diversion Courts
Pass Congress
According to a Department of Justice July
1999 report, nearly 16 percent of all prisoners in
State prisons and local jails suffer from mental
illness·. The National Alliance for the Mentally III
estimates that 25 to 40 percent of the nation's
mentally ill will come into contact with the
criminal justice system. Statistics like these as
well as Representative Ted Strickland's first hand
knowledge, from working as a psychologist
treating prisoners in a maximum security prison,
inspired him to introduce America's Law
Enforcement and Mental Health Project in the

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

32

Spring/Summer 2000

U.S. House.
The new law provides $10 million in grant
money to States to establish demonstration mental
health courts. The project seeks to divert mentally
ill persons accused of nonviolent offenses away
from prison or j ail and into treatment. This new
amendment to the Omnibus Crime Control and
Safe Streets Act of 1968 states that each program
will provide ''voluntary outpatient or inpatient
mental health treatment, in the least restrictive
manner appropriate, as determined by the court,
that carries with it the possibility of dismissal of
charges or reduced sentencing upon successful
completion of treatment." Supervision of
treatment compliance may not exceed the
maximum sentence or probation for the charged
offense.

NPP is Moving!
As of January 1,2001 our new
address will be 733 15 th Street, NW, Suite
620, Washington, DC 20006. The new
phone number will be 202-393-4930.

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