A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 15, No.1, Summer/Fall 2001 -ISSN 1076-769X

WHAT'S WRONG WITH THE ACA?
By Elizabeth Alexander
NPP Director
The American Correctional Association
(ACA) is the largest and best-known organization
of correctional staff in the country. It offers higher
education programs designed to train correctional
professionals and, like a traditional professional
association, it certifies persons as members in
good standing of the profession. Of course, the
major organizational function of the ACA is
accreditation of prisons, jails, and juvenile
facilities on the basis of published standards that
the ACA has promulgated. Unfortunately, the
ACA's actual performance of this function does
not assure that minimum professional standards
are observed. In fact, the ACA's process
substitutes the standards and accreditation process
for any form of more meaningful corrections
oversight.
The ACA appears to embrace the
deployment of their standards and accreditation
process to protect facilities from outside scrutiny.
On their w~bsite is a list of benefits that a prison
obtains by being accredited. The first benefit is
that the cost of liability insurance will decrease,
because it will be harder to sue the prison

successfully. The second benefit states that
"accredited agencies have a stronger defense
against litigation" because accreditation shows that
the prison is trying to do things right.
The ACA claims that prisons are safer
from being sued because the conditions in
accredited facilities are better. But it is hard to
find compelling evidence in support of this
proposition. This year I represented a prisoner
from the Maximum Security Facility in Lorton,
Virginia in a case that challenged denial of

Government Will Eavesdrop on
Prisoner-Attorney Conversations
In the wake of the events of September
11, the U.S. Department of Justice instituted a
new Bureau of Prisons regulation on October 30
permitting the monitoring of communications
between federal prisoners and detainees and
their lawyers. The regulation removes all
judicial review from the eavesdropping,
allowing the government to listen in any time
the Attorney General believes there exists
"reasonable suspicion" that a conversation
between a prisoner and counsel has any
connection to terrorist or violent activity.
Calling it an unprecedented power grab
completely at odds with the Constitution, the
American Civil Liberties Union and the
National Prison Project publicly antlounced it
vehemently opposes the new regulation. The
rule would discourage prisoners and detainees
Continued on page 6

THE NATIONAL PRISON PROJECT JOURNAL

medical care for his glaucoma and skin cancer, and
the conditions of confinement in his cell.
Conditions included being locked up for extended
periods of time in a cell flooded with human waste
from other cells, without ventilation in
temperatures over 100 degrees, over twenty-three
hours a day without ever getting outside or even
seeing the outside. The laundry facilities did not
work, the heat sometimes did not work in the
winter, and the entire cellblock was filthy and
noisy [See NPP Journal Fa1l2000/Winter 2001].
This facility had been accredited by the
ACA just before the litigation began, despite the
fact that an internal report of the prison system
acknowledged that the facility failed to meet the
ACA standards. How could that happen? The
ACA inspection team simply waived the failure to
meet the standards and accredited the prison
anyway. Luckily in this case, the jury was not
impressed with the fact that the facility was
accredited and awarded about $175,000 in
damages, including punitive damages.
What happened at Lorton is not an
aberration. Last year, the Suffolk County
Detention Center in Massachusetts received a
score of98.96 in the ACA's accreditation process.
Shortly after accreditation, seven correctional
officers were charged with federal crimes for

2.

Summer/Fa1l2001
assaulting and abusing prisoners. In addition, a
number of women prisoners have come forward to
report rapes and other forms of sexual abuse by
male guards at the jail.!
In another case, the ACA accredited a
Louisiana juvenile facility in 1996. That same
year, in a one-week period, 28 children at the
facility were treated for broken bones or other
injuries. On one day eight children suffered
broken eardrums as a result of beatings by staff.
The ACA never revoked the accreditation. 2 There
are many more horrifying examples that could be
cited.
How can that be? It is easier to understand
why these dangerous and disgusting facilities
secure accreditation in light of the membership of
the accreditation committee. The person in charge
of the accreditation process at the Suffolk County
Jail was Harold Clarke, the Director of the
Nebraska Department ofCorrections. 3 Just before
Mr. Clarke led the audit at the jail, a Nebraska
state agency issued a devastatingly critical report
about medical care in his correctional system. The
beginning of the report quotes a prison doctor who
exposed the dangerous neglect within the system:
"I am ashamed of what I have become, I really
am...For the first time, I stood up and said, I can't
kill any more. Too much. These are human
beings, for crying out loud."4
In response to the controversy about Mr.
Clarke's accreditation of Suffolk County, an ACA
official refused to release the names of any prisons
or jails that had actually been refused
accreditation, but did claim that some actually
exist. 5 Only after the problems at Suffolk County
led to wide-spread news coverage did ACA
auditors return to perform a more critical
examination of the jail. 6
It is not just that the ACA accreditation
process allows the auditors to waive compliance
with standards. The standards themselves reflect
the same weakness. The ACA chose as head of its
standards committee, Ronald Angelone, the
controversial director of the DepartIllent of
Corrections in Virginia.
Until recently, the State of Connecticut
sent prisoners to Wallens Ridge State Prison, a
supermax prison in Virginia. Two mentally ill
Connecticut prisoners died there over a short

THE NATIONAL PRISON PROJECT JOURNAL

Director Angelone, left, pictured with Virginia's Governor James
Gilmore at opening of Wallens Ridge State Prison in 1999.

period of time. One committed suicide and
another died after being repeatedly shocked with a
stun gun and then placed in restraints. After these
events, the National Prison Project sued over the
treatment of the Connecticut prisoners.
Furthermore, a Connecticut state agency, the
Office of Protection and Advocacy for Persons
with Disabilities, attempted to inspect Wallens
Ridge to evaluate the treatment of mentally ill
prisoners there. Director Angelone refused to
allow the agency to inspect his prison despite a
federal law that denies his ability to do so.
Prior to Director Angelone's current
position, he served as the director of corrections in
Nevada until 1994. The National Prison Project
sued Nevada because of its unconstitutional use of
force policies around the same time. In the course
of the lawsuit, the NPP found that at one prison,
from July 1993 to June 1994, there had been 50
incidents in which staff shot prisoners, 20
incidents of the use of chemical agents against
prisoners, and 128 incidents involving hands-on
use of force. The year after Angelone left, there
were only eight reported uses of firearms. The use
of chemicals fell to a fraction of its previous level,
and the number of hands-on use of force incidents
decreased nearly 50 percent. The state's new
director and the prison's warden admitted in sworn
testimony that the past practices, during
Angelone's tenure, were improper.
When Angelone came to Virginia he
brought with him many of the same dangerous

Summer/Fa1l2001
policies and practices. Correctional officers in
Virginia now carry guns in the housing units and
have access to various devices for delivering
electric shocks to prisoners. An editorial
published in The Virginian-Pilot in Norfolk,
Virginia, declared that "ifthe price is vindictive or
even abusive treatment of prisoners - while hurdles
are placed in the way of public oversight - then the
price is too high and [Angelone] should gO.,,7
I testified before Mr. Angelone and the rest
of the Standards Committee in support of a policy
of keeping juveniles out of adult prisons, because a
juvenile in an adult prison is several times more
likely to be raped or to commit suicide ifplaced in
an adult prison rather than a juvenile facility.
Angelone led a successful fight at that meeting to
water down the standards.
The decision of the ACA membership to
put in charge of the Standards Committee someone
like Angelone, who advocates dangerous and
reactionary practices, and who has displayed
indifference to public accountability of
corrections, is extraordinarily revealing. Absent
complete restructuring, the ACA is as much a
barrier to meaningful reform of prison conditions
as it is an ally.
The preceding article was originally
presented in Philadelphia at the Stop the American
Correctional Association - Counter Conference on
August 12, 2001.
1. Francie Latour, "Suffolk Jail Audit Group is Faulted,
Critics to Demand New Review Panel," The Boston Globe,
20 June 2001.
2. Ibid.
3. Ibid.
4. Ombudsman's Report: Examination ofthe Medical
System ofthe Nebraska Department ofCorrectional
Services, 23 Nov. 1999.
5. Francie Latour, "Suffolk Jail Audit Group is Faulted,
Critics to Demand New Review Panel," The Bo~ton Globe,
20 June 2001.
6. Francie Latour, "Report Blasts Operation or Suffolk
Sheriffs Office," The Boston Globe, 19 July 2001.
7. Editorial, The Virginian-Pilot, 14 May 2000.

3

THE NATIONAL PRISON PROJECT JOURNAL

Summer/Fall2001

Surprising New Poll Results About American Attitudes on Crime, Punishment,
and Over-Incarceration
A new poll commissioned by the American
Civil Liberties Union reveals a strong
dissatisfaction with the current state of the
criminal justice system in America and a growing
public confidence in rehabilitation and alternative
punishments for non-violent offenders.
"Contrary to popular belief, punishment
and retribution are not foremost in most
Americans' minds," said Nadine Strossen,
President of the ACLD. "In fact, this new study
shows our nation to be far more concerned with
rehabilitation and social reintegration than with
throwing away the proverbial key."
Of particular interest are the encouraging
public attitudes about drugs and drug crimes
revealed in the study. According to the poll, a
majority of Americans draw sharp distinctions
between trafficking in illicit narcotics and other
drug offenses. While a majority believe that drug
dealers should always be sent to prison, far fewer
agree that users (25 percent), minor possessors (19
percent) or buyers (27 percent) should always be
locked up.
The public's recognition of the misdirection
of the drug war and the race to incarcerate in
America is also reflected in the finding that a
majority of Americans (61 percent) oppose
mandatory sentences that require an automatic
sentence for non-violent crimes. Federal and state
policies do not yet reflect the popular attitude
among Americans brought out in the main findings
ofthe poll. Specifically, the poll shows that
lawmakers and prosecutors should start to consider
that a majority of Americans support alternative
punishments for non-violent offenders, believe that
rehabilitation is an important goal for the courts
and prisons, and are strongly dissatisfied with the
current state of the criminal justice system.
Prominent in the polling results is
surprising support for and emphasis on
rehabilitation for non-violent offenders.
According to the poll, six in ten Americans believe
that it is possible to rehabilitate a non-violent
offender; four in ten believe the main purpose of
prison is rehabilitation, rather than deterrence,
4

Drug Treatment Instead of Prison

Strongly
oppose
Somewhat
oppose

12%

DKI Refuse
4%

10%

Q16. Would you favor or oppose replacing prison sentences with
mandatory drug treatment and probation for people convicted of nonviolent illegal drug use?

punishment, or the protection of society. The
study also found strong public support for
changing the current laws so that fewer nonviolent offenses are punishable by prison (62
percent). In particular, Americans showed
enthusiasm for alternatives for non-violent
offenders such as mandatory education and job
training (81 percent), compensation to victims (76
percent) and community service (80 percent). The
poll also studied society's views on education and
skills training for offenders and showed very
strong support for providing inmates with skills
training in prison (88 percent).
The survey also shows that most
Americans believe that prisons are largely failing
in their rehabilitative mandate (six in ten). The poll
therefore demonstrates that American citizens are
dissatisfied with the status quo and favor decisive
reforms of the criminal justice system that will
render it more practical, more realistic and more
responsive to current social needs.
The ACLU study was conducted by the
private firm Belden, Russonello &~tewart (BRS).
The polling firm conducted telephone interviews
during January of2001 with 2,000 adults
randomly selected across the United States. The
margin of sampling error for the entire survey is

THE NATIONAL PRISON PROJECT JOURNAL

plus or minus 2.2 percentage points at the 95
percent level oftolerance.
A copy of the survey is available online at
www.aclu.org.

NPP Applauds Mississippi Prisons'
HIY Integration
The National Prison Project is hailing the
ongoing dismantling of one of the nation's most
longstanding discriminatory HIV/AIDS policies as
"an unmitigated success," according to Associate
Director Margaret Winter. In the past three
months, Mississippi's prisoners with HIV/AIDS
have been gradually integrated into prison
programs - jobs, vocational training, education,
and religious services - with other prisoners.
Since integration began, just after Labor
Day this year, there have been no reported adverse
incidents related to the integration process.
Prisoners living with HIV/AIDS have told the
American Civil Liberties Union that they have
been welcomed by staff and by other prisoners in
the newly-integrated programs.
HIV Segregation
Under the previous policy ofHIV
segregation, Mississippi's HIV-positive prisoners
were denied equal access to such programs for
more than a decade. Although there is no evidence
that segregating prisoners with HIV reduces the
transmission ofHIV within prisons, HIV-positive
prisoners were not only housed separately, they
were also denied access to jobs and to education,
vocational training, and religious programming
with other prisoners. The few programs to which
they did have access were segregated and inferior.
As a result; prisoners with HIV served longer
sentences under much harsher conditions than their
HIV-negative peers.
The policy of segregating prisoners with
HIV is rejected by the American Correctional
Association, the National Commission on
Correctional Health Care, the Federal Bureau of
Prisons, the National Commission on AIDS, the
American Public Health Association, and the
World Health Organization.
Although many states had HIV segregation
policies early in the HIV/AIDS epidemic - before

Summer/Fall 2001
the virus and its means of transmission were well
understood - most states dropped them by the
early 1990s. Until this year, Mississippi and
Alabama were holdouts - the last two states to
retain complete HIV segregation for prisoners.
Now that Mississippi has changed its policy,
Alabama remains the only state in the country with
complete HIV segregation in prison housing and
programs. The NPP is now working with
advocates in Alabama to bring an end to that
state's segregation policy as well.
NPP and Mississippi's HIV+ Prisoners
The NPP began working with prisoners in
Mississippi's Parchman State Prison's Unit 28 the segregated area for male prisoners with HIV in 1998. At that time, prisoners were not receiving
standard medication for HIV and were endangered
by living conditions that included rats and vermin,
exposure to raw sewage, and extreme
temperatures. "This is a matter of basic justice and
fairness. Conditions for prisoners with HIV here
have been both separate and unequal," said Jane
Hicks, a volunteer attorney for the ACLU of
Mississippi. "While litigation has begun to
improve some of the other living conditions for
these prisoners, notably their access to medical
care, we're hopeful now that inequality in
programs is being eradicated."
Outside the Courtroom
Litigation on behalf of Mississippi
prisoners with HIV continues, but the NPP sought
to end the segregation policy through negotiations
outside the courtroom. The NPP, local activists,
prisoners' families and the Mississippi ACLU
affiliate formed a coalition to help persuade
Mississippi Department of Corrections (MDOC)
Commissioner Robert L. Johnson to appoint a
state HIV/AIDS Inmate Program Access Task
Force in late 2000. In April 2001, Johnson
announced his .acceptance of all ofthe Task
Force's recommendations, including the gradual
integration of prisoners with HIV into prison
programs, immediate training on HIV ,
transmission, treatment and prevention for
~orrecti?nal staff and prisoners directly affected by
mtegratIon, as well as training on HIV issues for
all prisoners and MDOC staff within two years.
Integration of Programs
On September 4,2001, HIV-positive men
5

THE NATIONAL PRISON PROJECT JOURNAL

participated in an integrated adult literacy class at
Mississippi State Penitentiary, in Parchman. This
was the very first integrated class since 1989,
when the HIV segregation policy went into effect.
In the words of Margaret Winter:
Several HIV-positive inmates told
me they had been uneasy and
fearful as the day approached,
because they had been warned, by a
number ofprison officials still
hostile to the new policy, that they
would be probably be subjected to
insults, abuse, and perhaps even
physical violence from the other
prisoners and that they would
either be ignored or treated with
contempt by the teachers. The
reality was completely different.
HIV-positive inmates reported to
me the next day that they had been
warmly welcomed by prisoners and
staffalike, and been treated with
respect and kindness. The
prisoners were deeply moved by the
experience, and euphoric about
attending a "real" class, learning
to read and write and having the
opportunity to earn their GED.
According to Jackie Walker, the AIDS
Infonnation Coordinator for the NPP, "Much
remains to be done in Mississippi. HIV-positive
prisoners are still categorically excluded from
extremely important out-of-prison programs, like
work release. Nevertheless, a huge step forward
has been taken, a milestone achieved."
The most recent data from the Bureau of
Justice Statistics show people living with
HIV/AIDS represented 2% of all male prisoners,
and 1.1 % of all female prisoners in Mississippi. In
Alabama, people living with HIV/AIDS
represented 1.3% of all prisoners.
A man with HIV who spent two years in a
Mississippi prison before being released late last
year applauded the new policy: "This is an
outstanding move," said the fonner prisoner,
identified only as "Jesse" because he fears losing
his job ifhis HIV status was known. "Not being
allowed to attend the vocational programs afforded
all other prisoners put a lot of anxiety and physical
6

Summer/Fa1l2001
and emotional obstacles on us, and made it much
harder to get ajob when we got out. This change
means opportunity for offenders as they return to
society."

Government Eavesdropping
Continuedfrom cover

from having full and open conversations with their
own defense attorneys about the facts of their case,
infonnation which is a prerequisite for good legal
advice. "This is a breathtaking violation of civil
liberties," said Elizabeth Alexander, the NPP's
director, to Knight Ridder News Service. "I am
absolutely certain that if the government does not
back down on this, litigation will immediately
follow."
The new regulation appeared in the Federal
Register on October 31 along with a number of
other changes in the current rules governing the
Bureau of Prisons. Previously, the government
could only monitor attorney-client
communications if it showed just cause and
received a court order. Under the new rule,
lawyers and prisoners would be notified of the
Attorney General's decision to monitor, unless a
court order specifies otherwise. The Department
of Justice also indicated that the eavesdropping
will be conducted by a "taint team" that will not
disclose the infonnation it hears to prosecutors
without approval of a federal judge.
Even though the Department of Justice
claims it will protect prisoners' Sixth Amendment
right to assistance of counsel in this new regulation
by establishing a "firewall" within the department
to prevent prosecutors from getting their hands on
privileged infonnation, the ACLU questioned the
Department's trustworthiness. It pointed out that
the Department of Justice just successfully
petitioned Congress to remove the firewall
between intelligence and criminal investigations, a
key check on law enforcement power.
Civil liberties advocates also fear that the
regulation could provide innocent prisoners a
disincentive to volunteer infonnation to their
defense counsel that could potentially clear their
name. "If a suspect's sole alibi is potentially
damaging, but unrelated to the alleged crime, he or
she will obviously be hesitant to whisper this little

THE NATIONAL PRISON PROJECT JOURNAL

secret directly in the government's ear," said Laura
Murphy, the ACLU's Legislative Office Director.
"Each and every person in this country must be

Summer/Fa1l2001
given the constitutional right to private
consultation with legal counsel."

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

U.S. Court of Appeals Cases
PLRA: Screening and Dismissal; Mental or
Emotional Injury/Searches: Person/Sexual
Abuse
Liner v. Goord, 196 F.3d 132 (2d Cir.
1999). Dismissals under 28 U.S.c. § 1915A and
42 U.S.c. § 199ge(c)(2) are subject to de novo
review on appeal.
Plaintiffs' claim of intrusive body searches
should not have been dismissed under the PLRA
mental/emotional injury provision. At 135-36:
Alleged sexual assaults qualify as physical injuries
as a matter of common sense and constitute more
than de minimis injury if they occurred.
"[A]llegations of sexual abuse may ... stat[e] an
Eighth Amendment claim under Section 1983."
Religion: Practices, Diet
Jackson v. Mann, 196 F.3d 316 (2d Cir.
1999). At 320: "... [P]rison officials must
provide a prisoner a diet that is consistent with his
religious scruples." (Citation and internal
quotation marks omitted)
The right to a kosher diet of an AfricanAmerican prisoner who identified himself as
Jewish, but'bad not formally converted, depends
on the sincerity of his beliefs, not on the court's or
prison officials' determination whether he was
actually Jewish. At 320: "A claimant need not be
a member of a particular organized religious
denomination to show sincerity of belief." The
defendants' argument for deference to Jewish
religious authorities is unsupported by any citation
of a legitimate penological interest. The court
rejects the argument that the question of Jewish
status is an "ecclesiastical question" beyond the
courts' competence, since the relevant

constitutional question is whether plaintiffs beliefs
are religious and are sincerely held.
Delegating the decision of who is Jewish to
the prison Jewish chaplain did not "excessively
entangle" the state with religion in violation of the
Establishment Clause. This is just a muddled
restatement of the plaintiffs Free Exercise claim.

Procedural Due Process: Disciplinary
Proceedings
Welch v. Bartlett, 196 F.3d 389 (2d Cir.
1999). At 392: "After Sandin [v. Conner}, ...
[w]here a statute limits a prison's ability to impose
a constraint as a punishment, but the prison makes
a practice of imposing for non-punitive reasons a
constraint endured under similar conditions and for
a similar duration with sufficient regularity, then
freedom from the deprivation is not a right of 'real
substance' which due process protects...."
The district court inappropriately assumed
that SHU conditions were not qualitatively
different from general population cell conditions.
The plaintiff said that hygiene (supply of toilet
paper, soap and cleaning materials; cleanliness of
mattresses; changes of clothes) was worse in SHU.
The court also inappropriately equated general
population confinement, involving lock-up half the
day, with 23-hour lock-in ("the difference seems to
us to be great"), and the fact that GP prisoners'
program access is sometimes restricted or
iriterrupted does not mean that such limitations are
typical or are comparably severe to SHU
confinement. "Atypical and significant" analysis
requires comparison of actual conditions'with
general population as well as administrative
segregation and protective custody, and the
frequency and duration of such deprivations are
highly relevant.
The district court also erred in concluding
7

THE NATIONAL PRISON PROJECT JOURNAL

Summer/Fa1l2001

that a 90-day SHU sentence was typical because
about half the SHU sentences are that long. The
relevant comparison is between what happened to
the plaintiff and "periods of comparable
deprivation typically endured by other prisoners"
in general population as well as administrative and
protective custody. The fact that 10% of the
population gets SHU time at some point during
their sentences does not establish typicality. At
394: "How many prisoners receive such terms as
punishment for misbehavior does not measure how
likely a prisoner is to suffer comparable privation
in the ordinary administration of the prison."
The court rejects the notion that under
Sandin, SHU confinement cannot give rise to a
liberty interest. Hewitt v. Helms is still good law,
as modified by the atypical and significant
standard, and DOCS is still operating under the
pre-Sandin regulations that created a liberty
interest.

PLRA: Mental or Emotional
Injury/Correspondence: NonLegal/Standing/Procedural Due Process
Rowe v. Shake, 196 F.3d 778 (7th Cir.
1999). The plaintiffs First Amendment claim of
mail delays is not barred by the PLRA
mental/emotional injury provision. At 781: "A
prisoner is entitled to judicial relief for a violation
of his First Amendment rights aside from any
physical, mental, or emotional injury he may have
sustained."
"Relatively short-term and sporadic" delays
in delivering mail, not alleged to result from a
content-based prisoner regulation or practice, and
not involving legal mail or the loss of mail, do not
violate the First Amendment.
A correspondent whose mail was delayed
had standing to complain of the delays: "nonprisoners do indeed have a First Amendment right
to correspond with prisoners." (783)

Hazardous Conditions and
Substances/Qualified Immunity
Warren v. Keane, 196 F.3d 330 (2d Cir.
1999). A prison smoking policy permitted
smoking in cells and cellblock recreation areas, but
prohibits it in gym, classroom, messhall, library
and chapel. The plaintiffs alleged that
environmental tobacco smoke (ETS) combined
with poor ventilation created serious long-term
health risks, and that they suffered from sinus
problems, headaches, dizziness, asthma, hepatitis,
nausea, shortness of breath, chest pains, and
tuberculosis as a result ofETS.
These allegations make out a violation of
the clearly established right under Helling v.
McKinney to be free of unreasonable risks to
health from exposure to ETS, as well as the
broader right to freedom from deliberate
indifference to serious medical needs. Defendants'
own policy shows that the medical dangers of ETS
were well known. Defendants could not
reasonably have believed that they were not
violating these rights, in light of the plaintiffs'
allegations of a prison environment "permeated
with smoke resulting from, inter alia, underenforcement of inadequate smoking rules,
overcrowding of inmates, and poor ventilation."
(333, quoting district court)

PLRA: Exhaustion of Administrative
Remedies/Rights of Staff/Standing/Federal
Officials and Prisons/Medical Care
Massey v. Helman, 196 F.3d 727 (7th Cir.
1999). Failure to exhaust administrative remedies
does not deprive the court ofjurisdiction over the
case. A complaint of failure to provide hernia
surgery recommended by a prison doctor should
have been exhausted, even though the grievance
system doesn't provide for damages. A remedy
doesn't have to be effective, it just has to be
available, and there is no futility exception to the
PLRA exhaustion requirement.
The court rejects the argument that there
was no available grievance remedy for the
plaintiff, since when he filed suit his hernia was
stilt-giving him trouble, and he could have filed a
grievance to get the surgery.
Failure to exhaust under the PLRA is an
affirmative defense under Rule 8(c) of the Federal
Rules of Civil Procedure, and defendants have the
burden of pleading and proving it. However, when
the plaintiff filed an amended complaint, it opened
the door for defendants to assert an exhaustion
defense, even though they had previously omitted
it.
The doctor who had recommended the
surgery and was later fired could not bring a First

8

THE NATIONAL PRISON PROJECT JOURNAL

Amendment claim because the administrative
remedies available to federal employees preclude
the availability of a Bivens claim. The doctor
lacks standing to assert the prisoners' rights
because he does not have a personal stake in the
outcome of their claims, he had no continuing
doctor-patient relationship with the prisoners after
he was fired, the claim at issue here involves "runof-the-mill ailments," and prisoners have no
difficulty asserting their own rights.
PLRA: Exhaustion of Administrative Remedies
Miller v. Tanner, 196 F.3d 1190 (11th Cir.
1999). The plaintiff did not fail to exhaust
because he failed to sign and date his grievance,
since the written procedures do not require that an
inmate sign or date it. (At 1193 n. 6: if grievances
had to be submitted under penalty of perjury, a
signature would be required.) The plaintiff did not
fail to exhaust by not appealing, since the response
to his institutional grievance said he did not have
the right to appeal. He was not required "to file an
appeal after being told unequivocally that appeal
of an institution-level denial was precluded."
(1194)
PLRA: Exhaustion of Administrative Remedies
Freeman v. Francis, 196 F.3d 641 (6th Cir.
1999). Prisoners seeking damages must exhaust
administrative remedies that do not provide
damages. A use of force case is a prison
conditions case under the PLRA exhaustion
requirement; the court cites the definition of prison
conditions in 18 U.S.C. § 3626(g)(2) as including
"effects of actions by government officials on the
lives of confined persons."
In¥estigations by the prison Use of Force
Committee and the Ohio State Highway Patrol did
not meet the exhaustion requirement. The PLRA
exhaustion requirement "is directed at exhausting
the prisoner's administrative remedies in the
corrections system, an4 investigation by another
agency does not satisfy the requirement of the
statute." (644)
The fact that the plaintiff filed suit before
his grievance was completed requires dismissal of
his suit.

Summer/Fa1l2001
Substances
Henderson v. Sheahan, 196 F.3d 839 (7th
Cir. 1999). The plaintiff alleged that prisoners in
the Cook County Jail were routinely permitted to
violate non-smoking policies and he was exposed
to excessive levels of second-hand smoke during
four and a half years of pre-trial detention.
The plaintiffs claim of present injuries-"breathing problems, chest pains, dizziness, sinus
problems, headaches and a loss of energy"--does
not meet the standard definition of "serious
medical need" since no physician diagnosed him as
having a medical condition that required a smokefree environment or treated him for consequences
of exposure to smoke, and no layperson would
consider the injuries so serious as to require
medical care and attention.
The claim of future injury is not actionable
absent evidence of a "reasonable medical
certainty" of some defined level of increased risk
of developing a serious medical condition,
proximately caused by his jail exposure to secondhand smoke. General testimony of an increased
risk of atheriosclerosis does not suffice absent
evidence applicable to the particular plaintiff. The
court bases this conclusion on Illinois law; there is
some question whether state law governs, but the
issue was waived.
Visiting/Transfers/Cruel and Unusual
Punishment
Froehlich v. State of Wisconsin, Dept. of
Corrections, 196 F.3d 800 (7th Cir. 1999). The
interstate transfer of a female prisoner does not
violate the Eighth Amendment rights of her young
children. At 801: "The state is not punishing the
children; the incidental infliction of hardship on a
person not convicted of a crime is not punishment
within the meaning of the amendment."
Though there is no due process right to
visit a prisoner, due process probably protects the
right of children to associate with their parents.
However, "imprisonment of a family member in an
inconvenient location" cannot be equated with the
destruction of the family, and the court declines to
extend "the disfavored doctrine of substantive due
process" in a manner that would inject the courts
deeply into prison administration.

Pre-Trial Detainees/Hazardous Conditions and
9

THE NATIONAL PRISON PROJECT JOURNAL

Procedural Due Process: Disciplinary
ProceedingslEvidentiary Questions
Sealey v. Giltner, 197 F.3d 578 (2d Cir.
1999). Sandin v. Conner did not abolish liberty
interest analysis, it just limited it to atypical and
significant deprivations (584). Sandin does not
say or mean that administrative segregation can
never implicate a liberty interest. Sandin's
statement that administrative segregation in
Hawaii does not involve a liberty interest may
have turned on the fact that it was completely
discretionary there; in other states it is not
discretionary. Since Sandin acknowledged that
atypical restricted confinement could implicate a
liberty interest, there is no apparent reason why
administrative confinement should be excluded.
Whether conditions are atypical is a
question of law, but if facts about the conditions or
their duration are disputed, the question may need
to be submitted to the jury. The court may also
submit interrogatories to the jury and apply the law
of atypicality itself.
A prisoner's testimony about conditions, if
believed, can establish a liberty interest without
corroborating evidence.
Testimony establishing 101 days of23hour confinement, three showers a week, loss of
various privileges, a noisy environment, and
incidents in which other inmates threw feces at the
plaintiff, did not meet the Sandin atypical and
significant standard.
The court treats the relevant period for the
atypical and significant determination as 101 days,
even though the first 18 stemmed from an earlier
proceeding. At 587: "Whatever the point is
beyond which confinement in harsh conditions
constitutes atypicality, a prison official must not be
permitted to extend such confinement beyond that
point without according procedural due process."
Religion: PracticeslMootness
Sasnett v. Litscher, 197 F.3d 290 (7th Cir.
1999). A challenge to a rule barring the
possession of crosses was not mooted by a new
rule permitting them, since the new rule was
promulgated only after the old one down was
struck down, even though the defendants said they
have no present intention of reinstating the old
rule. The fact that the state is still defending the
10

Summer/Fall200l
legality of the old regulation presents sufficiently
high risk that they will return to it to support
injunctive
This case is governed by Turner and
O'Lone and not Employment Division v. Smith,
since Smith was not a prison case and did not
purport to overrule Turner and O'Lone.
The old rule is unconstitutional under the
Turner/O'Lone standard, given the feebleness of
its security rationale discussed in the earlier
decision. Even Smith does not permit government
to pick and choose among religions, which the old
rule does by allowing the cross to be worn when
attached to a rosary but not otherwise.
The prohibition on crosses was not a free
speech violation. Though wearing a cross is
expressive, "to equate public religious observance
to free speech would empty the free-exercise
clause of a distinctive meaning." (292)
Publicationsffieference
Frost v. Symington, 197 F.3d 348 (9th Cir.
1999). A prisoner "has a Fourteenth Amendment
due process liberty interest in receiving notice that
his incoming mail is being withheld by prison
authorities," and that principle applies to the
withholding of magazines.
The court undertakes to harmonize the en
banc decision in Mauro v. Arpaio (which says that
Turner requires only that the defendants "might
reasonably have thought that the policy would
advance its interests" and does not require
evidence of the actual motivation) with the earlier
panel decision in Walker v. Sumner (which says
that defendants "cannot rely on general or
conclusory assertions to support their policies" but
must "identify the specific penological interests
involved" and show both that those are the actual
bases for their policies and that the policies are
reasonably related to them, with evidence).
principles (at 357)
merely apply in different situations.
When the inmate presents sufficient
(pre or post) trial evidence that
refutes a common-sense connection
between a legitimate objective and
a prison regulation, Walker applies,
and the state must present enough
counter-evidence to show that the

THE NATIONAL PRISON PROJECT JOURNAL

connection is not so "remote as to
render the policy arbitrary or
irrational." . .. On the other hand,
when the inmate does not present
enough evidence to refute a
common-sense connection between
a prison regulation and the
objective that government's counsel
argues the policy was designed to
further, Mauro applies and,
presuming the government
objective is legitimate and neutral, .
.. Turner's first prong is satisfied.
Here the purported justifications for
excluding publications depicting sexual
penetration--to insure the safety of staff and
officers and to protect female officers from abuse
and harassment, based on the perception that such
publications are likely to cause their readers to
harass and/or abuse others--meet the common
sense standard, and the plaintiff presented
insufficient evidence to refute this "common-sense
connection." Therefore the defendants didn't need
to come up with any evidence.
The policy meets the other Turner
requirements. There are alternative means of
exercising the right in question, since prisoners can
receive other sexually explicit communications
and publications. There would be consequences to
other prisoners and staff of allowing access to
materials depicting sexual penetration because
they might be subjected to sexual harassment as a
result. The presence of such materials might also
prompt bartering among prisoners and disputes
over possession. The plaintiff failed to articulate
obvious, easy alternatives; disciplinary or other
action against individual prisoners who misbehave
is not sufficient because officials need preventive
measures, and in any case the material can be
passed from one prisoner to another.
Protection from Inmate Assault/Statutes of
Limitations/Summary Judgment
Wayne v. Jarvis, 197 F.3d 1098 (lIth Cir.
1999). The plaintiff stated falsely that he was
bisexual so he would get put in a medium security
dormitory and was repeatedly attacked there by
other prisoners.
The district court properly granted

Summer/Fa1l2001
summary judgment in favor of the county and the
defendants in their official capacities in the
absence of evidence (as opposed to assertion) of a
county policy of placing homosexual, bisexual,
HN-positive or AIDS-positive prisoners in a
dormitory without regard to propensity for
violence. He did not identify any prisoners,
including his assailants, who were placed there
despite evidence that they were excessively
violent, and the record showed that defendants
transferred prisoners out, albeit temporarily, when
they committed violent acts in that unit.
John Doe defendants could not be
identified and named after the statute of limitations
expired; Rule 15(c), Fed.R.Civ.P. does not permit
a new complaint to "relate back" for purposes of
adding newly identified defendants.
False Imprisonment/Federal Officials and
Prisons
Estate ofBrooks ex reI. Brooks v. u.s., 197
F.3d 1245 (9th Cir. 1999). The plaintiff, a federal
detainee held in a county jail, was detained for 12
days before being taken before a judicial officer.
The county could not be held liable under § 1983
or for the tort of false imprisonment because its
actions did not cause the deprivation: it acted
pursuant to the federal marshals' instructions and
to a state statute requiring it to hold persons
committed pursuant to federal authority, and it had
no authority anyway to bring the plaintiff before a
federal magistrate.
PLRA: Exhaustion of Administrative
Remedies, Screening and Dismissal/Medical
Care: Standards of Liability, Deliberate
Indifference
. Harris v. Hegmann, 198 F.3d 153 (5th Cir.
1999). Dismissal under 28 U.S.c. §
1915(e)(2)(B)(ii) is reviewed under the same de
novo standard as dismissals under Rule 12(b)(6).
Exhaustion of administrative remedies tolls
the statute of limitations. The court seems to be
applying state tolling rules to the disability from
suing created by the PLRA.
The plaintiff alleged that surgery for his
broken jaw failed before he was discharged from
the hospital, and that the doctor and two nurses
"ignored his urgent and repeated requests for
11

......
THE NATIONAL PRISON PROJECT JOURNAL

immediate medical treatment ... and his
complaints of excruciating pain." (160) These
allegations sufficiently pled deliberate
indifference, since they show that all three
defendants "were made aware of, and disregarded,
a substantial risk to Harris's health."

Suicide Prevention
Ellis v. Washington County and Johnson
City, Tenn., 198 F.3d 225 (6th Cir. 1999). The
decedent hanged himself after being arrested for
irrational behavior under the influence of drugs.
Jail personnel who had no information that the
decedent was a suicide risk could not be found to
have proximately caused the suicide. The only
exception is a jailer who allegedly saw the
decedent (via a monitor) tie a noose around a bar
at 1:45 p.m. but did not tell anybody or call an
emergency medical team for ten minutes.
Classification: Race/Correspondence: Legal
and Official/PLRA: Three Strikes Provision
Powells v. Minnehaha County Sheriff
Dept., 198 F.3d 711 (8th Cir. 1999) (per curiam).
The plaintiff filed five suits, which the district
court consolidated into two; then it dismissed one
of the consolidated cases for failure to state a
claim, counted the three cases separately for
purposes ofthe three strikes provision, denied IFP
status and dismissed for failure to pay the filing
fees. The appeals court reverses one ofthe initial
dismissals in part and holds that the resulting
partial dismissal can no longer be considered a
strike; it remands so plaintiff can proceed IFP if he
is otherwise eligible.
The black plaintiffs allegation that an
officer gave his white cellmate an extra mattress
""
and blanket but denied one to him stated an equal
protection claim. So did his allegation that an
officer placed him in solitary confinement while
not doing so to a white inmate involved in the
same conduct.
The plaintiffs allegation that officers
opened his "legal mail" (quotation marks by court)
outside his presence stated a constitutional claim.
Medication/Medical Care: Standards of
Liability, Serious Medical Needs, Deliberate
Indifference
12

Summer/Fa1l2001
Roberson v. Bradshaw, 198 F.3d 645 (8th
Cir. 1999). The plaintiff alleged that the Sheriff
refused to provide medication and a special diet
for his diabetes without a doctor's order, and did
not arrange for him to be examined for a month;
after he saw the doctor, he had an adverse reaction
to the medication he was given, but was not taken
back to the doctor for another month. The doctor
re-prescribed the same medication.
The Sheriff was not entitled to summary
judgment. The lack of "verifying medical
evidence" for the effects ofthe delay is not fatal to
plaintiffs case, since the existence of a serious
medical need can be "obvious to the layperson."
The allegation that the doctor ignored the
plaintiffs complaints of adverse reaction to a
medication and kept him on that medication
cannot be dismissed as a difference of opinion.
The doctor does not claim that he considered the
adverse reaction and made a medical judgment; he
denies that any complaint of adverse reaction was
made.

Women/Judicial Disengagement/Programs and
Activities/Equal Protection
Glover v. Johnson, 198 F.3d 557 (6th Cir.
1999). Defendants moved to terminate orders
remedying gender discrimination in prison
programming. They seem to have proceeded
under Rule 60 and not under the PLRA.
The appeals court avoids the question
whether prison gender discrimination claims are
governed by the Craig v. Boren heightened
scrutiny standard previously applied in this case, or
by the Turner v. Safley standard, because it says
the district court found parity of treatment, and
absent disparate treatment there is no need to
proceed further with an equal protection analysis.
The parties agreed that the access to courts
claim would be settled by adopting the court
orders and plans applicable to male inmates under
other litigation. The district court lacks
jurisdiction over this agreement, which is
enforceable as a contract in state court.
Federal Officials and Prisons/Personal
Involvement and Supervisory LiabilitylWork
Assignments/Grievances and Complaints about
Prison

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Shehee v. Luttrell, 199 F.3d 295 (6th Cir.
1999). The plaintiff was fired from his
commissary job in explicit retaliation for filing
grievances against the commissary supervisors.
He filed a grievance, but his firing was upheld.
The officials involved in denying the
plaintiffs grievance, and others who knew of his
termination but failed to act, cannot be held liable
for the underlying violation, since "liability under
§ 1983 must be based on active unconstitutional
behavior and cannot be based upon 'a mere failure
to act.'" (300) (This is directly contrary to law in
other circuits; see Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994); accord, Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995).)
Two other defendants who allegedly
"instigated" the firing but did not have authority
themselves to fire him could not be held liable.
They allegedly fabricated allegations against him
for corrupt reasons, but that is not a First
Amendment claim; it "is more properly
characterized as a substantive due process claim of
'abuse of authority,'" which is governed by a
"shocks the conscience" or "egregious abuse of
governmental power" standard. The allegations do
not rise to that level, even if there was a retaliatory
motive.
PLRA: EXhaustion of Administrative
Remedies/Use of Force: Restraints
Hartsfield v. Vidor, 199 F.3d 305 (6th Cir.
1999). A plaintiff who said he filed a grievance,
but who had been told by prison officials no
grievance was on record and he should refile, had
not exhausted. Even if he did file the grievance
initially, he was obliged to continue to the next
step within.the prescribed time frames ifhe did not
receive a response or a satisfactory response from
prison officials. At 309: "We have previously held
that an inmate cannot simply fail to file a
grievance or abandon the process before
completion and claim that he has exhausted his
remedies or that it is futile for him to do so
because his grievance i,s now time-barred under the
regulations."
State law claims must be exhausted. The
exhaustion requirement applies to claims brought
under § 1983 "or any other Federal law," and the
diversity jurisdiction statute is a federal law.

Summer/Fa1l2001
The plaintiff alleged that he was restrained
for 18 hours and not allowed to use the toilet, was
left to sit in his own urine, and was not provided
fresh drinking water for two 8-hour periods. At
310: "... [W]e have previously held that
deprivations of fresh water and access to the toilet
for a 20-hour period, while harsh, were not cruel
and unusual punishment." Defendants also
provided evidence that adequate toilet breaks and
water were provided to him, which he did not
refute.
Women/Contempt
Glover v. Johnson, 199 F.3d 301 (6th Cir.
1999). Prison officials were fined $385,000, at a
rate of $5,000 a day, for failure to provide
programming to female prisoners equivalent to
that for male prisoners, as required by the court's
prior orders. The appeals court affirms. The
sanction need not match any demonstrated loss by
the plaintiffs because it "was not intended as
compensatory damages, but as a punitive measure"
intended to force compliance (and the court notes
it seems to have worked). At 313: "The State's
recalcitrance, not the prisoners' damage, is what
validates the sanction amount in this case."
Disabled/PLRA: Mental or Emotional Injury
Cassidy v. Indiana Dept. ofCorrections,
199 F.3d 374 (7th Cir. 2000). The PLRA
mental/emotional injury provision applies to
Americans with Disabilities Act claims insofar as
they seek damages for mental/emotional injury.
The court rejects the argument that Congress
intended the statute to apply only to nonconstitutional tort claims.
The plaintiff may proceed with his other
claims which do not seek damages for
mental/emotional injury. Apparently this includes
the items that appeared in his list of injuries in
addition to emotional and mental harm,
embarrassment, and humiliation. These include (at
375-76):
(2) the loss of the opportunity to
enjoy an early discharge from
prison or the chance of a pardon or
clemency based on effqrts to
rehabilitate himself; (3) the loss of
participation in and advantages of
13

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THE NATIONAL PRISON PROJECT JOURNAL

activities to which the non-disabled
had access while in prison, and the
loss of the freedom of movement
and social contact; (4) a diminished
quality oflife; and (5) the loss of
access to programs, services and
activities guaranteed by federal law
(presumably to the extent that the
non-disabled enjoyed these rights).
That is, it appears that the court does not consider
the foregoing to be mental or emotional injuries.

PLRA: Exhaustion of Administrative
Remedies, Screening and Dismissal, Three
Strikes Provision
Snider v. Melindez, 199 F.3d 108 (2d Cir.
1999). 28 U.S.c. § 1997e(c)(1), which provides
for sua sponte dismissal, was not intended to apply
to dismissal for non-exhaustion; otherwise the
provision for dismissal of complaints that are
frivolous, malicious or don't state a claim "without
first requiring the exhaustion of administrative
remedies" would make no sense. Also, that
section seems to contemplate dismissal that finally
terminates cases that can't succeed--not dismissal
without prejudice for non-exhaustion. At 111:
The court concludes that the three strikes provision
also does not apply to dismissal for nonexhaustion.
Courts can dismiss on their own motion for
non-exhaustion despite the lack of statutory
authorization. However, the prisoner must
receive notice and opportunity to be heard before
such dismissal.
The existence and applicability of an
administrative remedy is a question of law (even
though, if the remedy is informally established, it
may depend on a question of fact) which must be
established from "a legally sufficient source"
before dismissal for non-exhaustion.
The district court erred in directing the
entry of a strike without giving the prisoner notice
and an opportunity to be heard. The court
expresses its doubts whether the entry of a strike is
properly considered when a case is dismissed, or
whether that determination should wait until the
prisoner brings a new suit and a defendant contests
the plaintiffs entitlement to proceed IFP.

14

Summer/Fa1l2001

PLRA: Attorneys' Fees
Montcalm Pub. Corp. v. Commonwealth of
Va., 199 F.3d 168 (4th Cir. 1999). A non-prisoner
intervenor in a case brought by a prisoner is
governed by the PLRA limits on attorneys' fees,
since the PLRA applies to actions "brougbt by a
prisoner." The intervenor (a publisher in a
censorship case) could and should have filed a
separate action.
PLRA: Exhaustion of Administrative Remedies
Wolffv. Moore, 199 F.3d 324 (6th Cir.
1999). A claim that arose before enactment of the
PLRA, expressed in a complaint filed after the
PLRA, requires only "substantial compliance with
the applicable administrative process." The
plaintiffs participation in an investigation of the
use of force met this "substantial compliance"
requirement, even though the court has previously
held that this investigation process is not sufficient
to exhaust in a post-PLRA-enactment case.
The plaintiffs claim against a second
officer for failing to protect him from the first is '
not barred by the fact that he did not name or
complain about the second officer in his
administrative complaint, since prison officials
were on notice of the allegations and they were
"not so distinct ... as to require the filing of a
separate and independent administrative
grievance." (329)
PLRA: Three Strikes Provision
Medical Care
Hunt v. Uphoff, 199 F.3d 1220 (lOth Cir.
1999). It was not disputed that the plaintiffs
medical care claims (diabetes and hypertension)
met the "imminent danger of serious physical
injury" standard of the three strikes provision,
perhaps because the plaintiff died of his medical
problems during the proceedings.
The plaintiff complained that he had a
heart attack as a result of inadequate treatment for
diabetes and hypertension; that he was denied
prescribed insulin for over a year, and was denied
it again after his heart attack; that medically
recommended procedures were not performed; that
he didn't get proper diagnosis and treatment
because ofthe lack of a primary care physician;
that prescribed special diets were not provided;

THE NATIONAL PRISON PROJECT JOURNAL

that prescribed medication was confiscated; that he
was not treated for elevated blood sugar or chronic
hypertension. These allegations do not reflect
"mere disagreement with his medical treatment."
At 1224: "Nor does the fact that he has seen
numerous doctors necessarily mean that he
received treatment for serious medical needs, i.e.,
that treatment was prescribed at all or that
prescribed treatment was provided."
Delay in providing medical care may
violate the Eighth Amendment. At 1224:
Delays that courts have found to
violate the Eighth Amendment have
frequently involved life-threatening
situations and instances in which it
is apparent that delay would
exacerbate the prisoner's medical
problems.... Officials may also be
held liable when the delay results in
a lifelong handicap or a permanent
loss.
Communication with Media
Kimberlin v. Quinlan, 199 F.3d 496
(D.e.Cir. 1999). The district court previously
determined that it was clearly established that a
prisoner has a right not to have his contact with the
media interfered with on the basis of the content of
his communication. That ruling is the law of the
case in this proceeding, brought by the prisoner
who alleged that he had sold pot to Dan Quayle
and was then placed in administrative segregation
so he could not talk to the media.
Procedural Due Process: Disciplinary
Proceedings
Williams v. Davis, 200 F.3d 538 (8th Cir.
2000). The court reiterates its prior holding that a
retaliation claim for a disciplinary charge is
precluded if the prisoner was punished for an
actual violation of prison rules.
Procedural Due Process: Disciplinary
Proceedings
Kalwasinski v. Morse, 201 F.3d 103 (2d
Cir. 1999). In determining whether a disciplinary
sanction is atypical and significant under Sandin v.
Conner, district courts must review the particular
conditions of confinement to which the plaintiff

Summer/Fa1l2001
was subjected, giving suitable weight to the
difference between being confined 23 hours a day
in segregation and half the day in general
confinement, and examining the extent of
interruptions of prison programming. While the
frequency and duration of SHU confinement is
relevant, merely calculating the percentage of
prisoners in SHU confinement does not measure
the likelihood that a prisoner will suffer
comparable deprivation in the ordinary
administration of prison life, and the basis for
comparison is not the SHU sentences of other
prisoners but deprivations suffered by other
prisoners "in the ordinary course of prison
administration" (107)--including general
population and other forms of administrative and
protective custody.
The court does not decide whether the
plaintiff's 180 days in SHU is atypical and
significant because it concludes he was not denied
due process. A notice of charges that he had
threatened to kill an officer sufficiently warned
him that he was accused of making verbal threats'
against officers, even if there was no evidence at
the hearing of a death threat. Due process was
satisfied by having two staff witnesses testify by
telephone, with the plaintiff questioning them, and
having a third witness testify on tape, played at the
hearing, after the hearing officer said he had asked
the questions the plaintiff had asked him about.
The exclusion of 14 other officers as irrelevant or
unnecessary was proper, since they had not been
present at the incident.
Procedural Due Process: Property
Lopez v. Us., 201 F.3d 478 (D.e.Cir.
2000). Due process requires notice that is
"reasonably calculated, under all the
circumstances, to apprise interested parties of the
pendency of the action and afford them an
opportunity to present their objections. Mullane..
. ." (480) Sending notice of civil forfeiture to a
prisoner's home and the prison he was thought to
be in was reasonable, but the failure to take
additional steps when the notices were returned,
even though the DEA "very well knew" he was in
prison either in Florida or in the federal system,
was unreasonable. DEA "should have attempted
to locate him within the prison system." Notice to
15

THE NATIONAL PRISON PROJECT JOURNAL

the prisoner's wife was not sufficient, since it gave
her notice only about her own interest in the
property, and not about his, and did not say that
she should notify him.
PLRA: In Forma Pauperis Provisions,
Exhaustion of Administrative Remedies
Page v. Torrey, 201 F.3d 1136 (9th Cir.
2000). A person civilly committed after the end of
his prison sentence under a sexual predators act is
not a prisoner for purposes ofthe PLRA. At 1139:
"... [T]he natural reading of the text is that, to fall
within the definition of 'prisoner,' the individual in
question must be currently detained as a result of
accusation, conviction, or sentence for a criminal
offense. . .. As this plain-language reading of the
text produces a plausible result, we need not look
further."
PLRA: In Forma Pauperis Provisions, Filing
Fees
Hatchet v. Nettles, 201 F.3d 651 (5th Cir.
2000). Since prisoners have no control over
withdrawals from their prison accounts, district
courts should not dismiss for nonpayment of an
initial partial filing fee without inquiring into the
reasons for it. The district court should enter an
order directing payment of the fee after receiving
the prisoner's consent forms. The order should
provide that if the account doesn't contain the full
fee, the prison should withdraw whatever is
available and send it to the district court clerk,
even ifthe balance is less than $10; the PLRA's
$10 limit applies only after the initial fee. The
order should also make provision for further
withdrawals in compliance with the PLRA. If it
appears tQat the prisoner has not complied, the
district court should "take reasonable steps to
ascertain whether the prisoner has complied with
the order by allowing objections to a magistrate
judge's report, ... issuing a show-cause order, ...
communicating by telephone, fax, or e-mail with
officials of the custodial institution, issuing an
order to the custodial institution, or using any
other method designed to obtain the relevant
information." A sworn affidavit or declaration
under penalty ofperjury explaining or
documenting the prisoner's compliance will
ordinarily suffice to avoid dismissal.
16

SummerIFa1l2001
Searches: Visitors and Staff/Qualified
Immunity
Burgess v. Lowry, 201 F.3d 942 (7th Cir.
2000). The plaintiffs, family members of death
row prisoners, were required to submit to strip
searches to visit. Prison regulations authorize such
searches only if the visitor consents and there is
reasonable suspicion of contraband.
A right is not necessarily clearly
established for immunity purposes by precedent in
the circuit where the case is filed, e.g., ifthat
circuit's only precedent is very old and every other
circuit had ruled the other way. However, the
absence of circuit or Supreme Court precedent is
not conclusive either. The right might be so clear
as so need no supporting case law or might have
clear support from other jurisdictions. Here, there
is a "long and unbroken series of decisions by our
sister circuits stretching back to the early 1980s"
establishing that "strip searches of prison visitors
were unconstitutional in the absence of reasonable
suspicion that the visitor was carrying contraband."
Contrary law in one state or one federal appeals '
court does not provide an "automatic safe harbor."
The question is "whether a reasonable official in
the position ofthese defendants, considering all
relevant sources of guidance to the law, might
have thought it reasonably possible that this court
or eventually the U.S. Supreme Court would hold
that strip searches of prison visitors are proper
even without reasonable suspicion." (946) The
court rejects the argument that "any time a state
official could think of an argument for some
position that had not been mentioned in a previous
decision the contrary of that position could not be
considered established law." (946)
Since these defendants did not make an
argument in the district court about the special
conditions of death row, they cannot do so here.
At 947:
... [A] general conditioning of
prison visitation on subjection to a
strip search is manifestly
unreasonable. The prisoners
themselves are subjected to such
searches before the visit, and, if the
prison wants, after the visit as well,
... and the visitation is under
continuous surveillance by guards.

THE NATIONAL PRISON PROJECT JOURNAL

Surnmer/Fa1l2001

Whether or not there is a
constitutional right either to visit a
prisoner, or to be visited in a prison
..., visits are something greatly
valued both by the prisoners and by
their visitors (and perhaps
especially by prisoners on death
row), so that the defendants'
practice puts the visitors to a very
painful choice--unnecessarily so,
judging by the state's own
regulations, which require
reasonable suspicion as a predicate
to conditioning a prison visit on
submission to a strip search. In
these circumstances, the costs of the
defendants' practice seems clearly
to exceed the benefits, and by a
wide margin.

jail for several days before killing himself, without
harming himself or others. There is no case law
supporting a requirement of "immediate medical
attention to a disoriented, confused, belligerent
detainee who has the odor of alcohol about him
and has been arrested on an alcohol related
misdemeanor charge in the absence of any
indication of harm to himself."

Procedural Due Process: Disciplinary
Proceedings/Exhaustion of Remedies/Habeas
Corpus
Thomas v. McCaughtry, 201 F.3d 995 (7th
Cir. 2000). The petitioner appealed a disciplinary
conviction, the warden remanded and the
adjustment committee issued a revised but still
defective decision. A state court ruled that the
failure to appeal a second time to the warden was a
failure to exhaust administrative remedies. The
federal court in a habeas proceeding is bound by
the state's decision on compliance with state
procedures under the independent and adequate
state grounds doctrine. Federal courts defer to the
state's application of state law if it is applied in a
consistent and principled way and ifthe prisoner
had notice,.ofthe requirement.

Federal Officials and Prisons/Statutes of
Limitations
King v. One Unknown Federal
Correctional Officer, 201 F.3d 910 (7th Cir.
2000). A previously unidentified officer cannot be
joined as a defendant after the statute oflimitations
has run. Rule 15(c)(3), Fed.R.Civ.P., does not
permit relation back in a case of delayed
identification of a party; it applies only where there
is a mistake as to the party's identity.

Suicide PreventionlMedical Care: Standards of
Liability, Deliberate Indifference
Williams v. Kelso, 201 F.3d 1060 (8th Cir.
2000). The decedent was admitted to jail, after a
drunken assault on his wife, in a disoriented and
confused state; he had hallucinations and heard
voices; he got into a fight with another prisoner.
He later committed suicide. No defendants could
be found deliberately indifferent. There was no
indication that he had given any staff person any
indication that he was suicidal. He had been in the

PLRA: Exhaustion of Administrative
Remedies/Non-English Languages
Castano v. Nebraska Dept. ofCorrections,
201 F.3d 1023 (8th Cir. 2000). A complaint that
the prison system failed to provide interpreters at
disciplinary and parole hearings was a prison
conditions complaint requiring exhaustion of
administrative remedies. The exhaustion
requirement is not limited to frivolous cases but
extends to all prison conditions

PLRA: Screening and Dismissal
Cruz v. Gomez, 202 F.3d 593 (2d Cir.
2000). Dismissal for failure to state a claim under
28 U.S.c. § 1915(e) is mandatory and not
discretionary. Most courts have applied a de novo
review standard to dismissals under 28 U.S.c. §
1915(e)(2)(B)(ii). Under either standard, the
prisoner should have an opportunity to amend to
cure the deficiencies in his due process claim.
Procedural Due Process: Property
United States v. McGlory, 202 F.3d 664
(3d Cir. 2000) (en banc). Notice of a civil
forfeiture proceeding mailed to the United States
Marshals Service, for remailing to the prisoner
property owner, did not meetdue process
standards; notice must be sent to the property
owner at the prison where the government is
17

THE NATIONAL PRISON PROJECT JOURNAL

holding him.

Drug Dependency Treatment
Bowen v. Hood, 202 F.3d 1212 (9th Cir.
2000). The federal Bureau of Prisons excluded
from a program allowing early release of prisoners
who complete a drug program persons whose
crime of conviction involved the possession,
carrying or use of a firearm. After it was told by
the court it could not declare these to be "violent
offenses," it decided it would exclude those
prisoners in the exercise of its discretion. The
court upholds this determination as a valid
exercise of discretion. However, the Bureau may
not apply it to those who had previously been
notified of their eligibility for early release.

Summer/Fall 2001
pursue legal redress. Assistance is
then protected as a derivative ofthe
complainant's right of access to the
courts.
Under Thaddeus-X v. Blatter, First
Amendment retaliation claims are distinguished
from "general" retaliation claims, which are
governed by the "shock the conscience/egregious
abuse of authority" standard. The district court
erred in applying the latter standard to plaintiffs
First Amendment claims.

Drug Dependency Treatment
Zacher v. Tippy, 202 F.3d 1039 (8th Cir.
2000). A prior misdemeanor aggravated assault
conviction is reasonably construed as a "crime of
violence" disqualifying the prisoner from a
program allowing early release of prisoners who
complete a drug program. The fact that the Bureau
of Prisons had previously told the plaintiff he was
provisionally entitled to early release is not a
binding interpretation of the statute, on which the
agency had reversed itself three times.

CrowdingIModification of Judgments/Class
Actions: Conduct of Litigation/PLRA:
Prospective Relief Provisions
Parton v. White, 203 F.3d 552 (8th Cir.
2000). The district court did not abuse its
discretion in modifying a consent decree prison
cap. There had been an unanticipated increase in
prison population, staff had been increased and
placed in greater proximity to prisoners to offset
the increase in violent incidents after the previous
population increase, and physical conditions had.
been improved. At 556 n.4: Failure to make the
need/narrowness/intrusiveness findings required to
preserve relief under the PLRA was irrelevant,
because neither defendants nor plaintiffs made any
arguments based on the PLRA.

Access to Courts: Punishment and
Retaliation/Grievances and Complaints about
Prison/Inmate Legal Assistance/Res Judicata
and Collateral Estoppel
Herron v. Harrison, 203 F.3d 410 (6th Cir.
2000). The right of access to courts applies only to
non-frivolous claims, so the plaintiff has no claim
for retaliation for actions taken in response to a
complaint that was dismissed as frivolous.
The plaintiff may have a claim of
retaliation for actions taken in response to his
helping another prisoner argue a grievance before
the prison board. At 416-17:
... [A]n inmate does not generally
have an independent right to help
other prisoners with their legal
claims. . .. Such assistance is
protected, however, when the
inmate receiving the assistance
would otherwise be unable to

PLRA: Screening and DismissallMedical Care:
Denial of Ordered Care, Serious Medical
Needs/Recreation and Exercise
Lopez v. Smith, 203 F.3d 1122 (9th Cir.
2000) (en banc). Prisoners should generally get
leave to amend when their complaints are
dismissed under 28 U.S.C. § 1915(e)(2). The
statutory language parallels the language of Rule
12(b)(6), Fed.R.Civ.P., under which the notion of
dismissal with leave to amend is well established.
The court is reluctant to presume that Congress has
overturned the established policy of liberal
amendment. This result will not defeat the intent
to curb meritless lawsuits, since courts retain
discretion to dismiss without leave to amend if the
complaint cannot be saved.
The plaintiffs broken jaw was a serious
medical need, since it "affected his daily activities
and ability to eat, ... was the kind of injury a
doctor would find noteworthy ... [and] was likely

18

THE NATIONAL PRISON PROJECT JOURNAL

painful as well." (l131-32)
The plaintiff alleged that he was not
provided a prescribed liquid diet (resulting in his
losing 22 pounds), and was not returned to the
clinic for follow-up as ordered. These allegations
"are sufficient to support a finding that prison
officials intentionally interfered with his
previously prescribed medical treatment" (1132),
which can constitute deliberate indifference. Id.:
"A prisoner need not prove that he was completely
denied medical care."
An allegation of the denial of all access to
outdoor exercise for six and a half weeks meets the
objective requirement for Eighth Amendment
claims.
Pre-Trial Detainees/False Imprisonment
Jones v. City ofJackson, 203 F.3d 875 (5th
Cir.2000). A prisonerarrested in one county,
transferred to a second county pursuant to an
agreement to avoid overcrowding, and then held
for nine months without ever going to court, could
proceed against the first county. Both state and
federal law make the first county responsible for
his custody and for failing to ensure that he was
taken to court in that county.
The plaintiff had no Fourth Amendment
claim because a facially valid bench warrant had
been issued and no Eighth Amendment claim
because he was not complaining about the
conditions of his incarceration but merely the fact
of incarceration. The defendants were not entitled
to qualified immunity on the plaintiffs Sixth
Amendment claim for denial of the right to
counsel and to be informed of the charges against
him.
At SSO-81:
Prohibition against improper use of
the "formal restraints imposed by
the criminal process" lies atthe
heart of the liberty interests
protected by the Fourteenth
Amendment due process clause....
The Fourteenth Amendment's
protection of Jones's liberty interest
was clearly established in 1994-95,
and Jones's alleged nine month
detention without proper due
process protections was not

Summer/Fa1l2001
objectively reasonable in light of
the clearly established legal rules.
Rehabilitation/Procedural Due Process:
ClassificationlEx Post Facto LawslHabeas
Corpus
Chambers v. Colorado Dept. of
Corrections, 205 F.3d 1237 (lOth Cir. 2000), cert.
denied, 121 S.Ct. 391 and 121 S.Ct. 419 (2000).
A state sex offender statute which reduces the
accrual of earned time credit for alleged sex
offenders who do not participate in treatment is not
an ex post facto law because it does not increase
the plaintiffs punishment (i.e., does not extend his
maximum term of incarceration), and he has no
vested right in a particular parole date or parole
hearing eligibility date.
The plaintiff, classified as a sex offender
based on an allegation of rape for which he was
not prosecuted, was denied due process. In
concluding that due process requirements apply,
the court first cites the fact that the plaintiff
received earned time credit at the higher rate for
several years despite his classification, then says
that "it is the label replete with inchoate
stigmatization--here based on bare allegations
which are vigorously denied and which have never
been tested--which requires some procedural
scrutiny. The consequences of that label, then, are
not a privilege as the CDOC insists, but something
of value entitled to procedural due process."
(1242-43, footnote omitted).
This appears to be a holding that there is a
liberty interest based on the Constitution in
avoiding classification as a sex offender, as in
Neal v. Shimoda. But the court goes on to say "it
is the mandatory assignment of the label which
forms the substantive predicate," and that CDOC
"provided Mr. Chambers a liberty interest in the
consequences ofthe mandatory label which it then
arbitrarily removed without affording him" due
process, suggesting it is finding a state-created
liberty interest.
The court concludes by directing the
district court to enjoin defendants from:
withholding the plaintiffs earned time credits
because of his refusal to admiLbeing a sex
offender. The HeckiBalisok rule is not mentioned.

19

THE NATIONAL PRISON PROJECT JOURNAL

Medical Care: Standards of Liability,
Deliberate Indifference
Jolly v. Knudsen, 205 F.3d 1094 (8th Cir.
2000). At 1097: "... [M]ultiple contacts with
medical personnel do not always preclude a
finding of deliberate indifference," though there is
no deliberate indifference in this case.
PLRA: In Forma Pauperis Provisions
Feliciano v. Selsky, 205 F.3d 568 (2d Cir.
2000). The PLRA costs provision, 28 U.S.C. §
1915(f), says that if a judgment against a prisoner
includes payment of costs, costs are collected in
the same manner as filing fees. However, unless
the court actually awards costs, no costs may be
taxed. The court retains discretion to award costs
or not, in full or in part, against an indigent
prisoner, and may consider "any factor the court
deems relevant, including 'the purpose of the
forma pauperis statute, the history of the party as
litigator, good faith and the actual dollars
involved.'" [Citation omitted]
Rights of Staff/Communication and Expression
Anderson v. McCotter, 205 F.3d 1214
(10th Cir. 2000). The plaintiff, a student intern at
a halfway house for sex offenders, was terminated
for criticizing a proposal for privatizing services.
The plaintiffs speech addressed a matter of public
concern, but defendants' interest in promoting the
efficiency of the facility's operations outweighed
the plaintiffs interest in stating her views, since
prisoners "have an irrational fear of any changes in
their treatment regimen" which may affect the
effectiveness of the program.
Pro Sa Litigation
Bennett v. King, 205 F.3d 1188 (9th Cir.
2000). The plaintiff missed a deadline to amend
his complaint because he was disciplined and
placed where he did not have access to his legal
papers and legal work. The district court erred in
not accepting the plaintiffs uncontroverted
explanation and granting an extension oftime.

I DISTRICT COURT CASES I
PrivacylDeference/Personal Involvement and

20

Summer/Fall 2001
Supervisory Liability
MacDonald v. Angelone, 69 F.Supp.2d 787
(E.D.Va. 1999). A prison policy forbidding
covering cell observation windows while prisoners
use the toilet is upheld under Turner v. Safley.
There is a valid, rational connection between
defendants' rule and security. The plaintiff has an
alternative: he can cover his body with a sheet or
towel. Requiring staff to move a window covering
to see inside would require them "to take steps
(literally)." Prior holdings that the involuntary
. exposure of prisoners' genitals to members of the
opposite sex is unconstitutional when not
"reasonably necessary" do not establish what is
reasonably necessary. At 763: "While inmates
have a right to be protected from gratuitous and
unnecessary observation while they use their cell
toilets, prison officials have an overriding
responsibility to take whatever steps may be
reasonably necessary, including surveillance of
inmates, to maintain prison security."
The Commissioner could not be sued over
this policy because it originated at the prison, not
at the department level, and there was no
indication of the Commissioner's personal
involvement.
Procedural Due Process: Disciplinary
Proceedings/PLRA: Mental or Emotional
Injury, Exhaustion of Administrative
Remedies/Pendent and Supplemental Claims;
State Law in Federal Courts/Grievances and
Complaints about PrisonNerbal
Abuse/Personal Involvement and Supervisory
Liability/Classification: Race/Work
Assignments
Shabazz v. Cole, 69 F.Supp.2d 177
(D.Mass. 1999). Neither the PLRA exhaustion
requirement nor the mental/emotional injury
provision apply to pre-PLRA claims.
Retaliatory intent can be inferred from
circumstantial evidence, including a chronology
suggesting retaliation. However, since deference
is due to the expert judgment of prison
administrators, the plaintiff "cannot get to the jury
if defendants produce evidence of a legitimate
reason such that they would have disciplined
Shabazz even in the absence of the grievance."
(198)

THE NATIONAL PRISON PROJECT JOURNAL

Verbal harassment, including racial
epithets, does not violate the Eighth Amendment,
the due process clause, or the Massachusetts Civil
Rights Act. (But, at 209: racial slurs and epithets
may be evidence of a racially discriminatory
motive for other actions.) However, an allegation
of retaliatory discipline states a claim under the
Massachusetts Civil Rights Act.
Prisoners have no property or liberty
interest in their prison jobs, and loss of a job
doesn't create atypical and significant hardship.
The Superintendent of the prison could not
be held liable for retaliatory conduct by line staff
where the information he received (e.g., through
review of disciplinary charges) suggested only that
there was a factual dispute about what had
occurred and did not state the retaliation claim.

Procedural Due Process: Disciplinary
Proceedings/Pendent and Supplemental
Claims; State Law in Federal Courts
Shabazz v. Cole, 69 F.Supp.2d 210
(D.Mass. 1999). Massachusetts disciplinary
proceedings are governed by a standard of
substantial evidence, which means evidence which
"a reasonable mind might accept as adequate to
support a conclusion, or, stated otherwise,
evidence on which reasonable persons are
accustomed to rely in the conduct of serious
affairs." (219, internal quotation marks and
citation omitted).

Summer/Fall2001
(D.D.C. 1999). The Bureau of Prisons' policy
requiring documentation of pre-incarceration
hormone therapy before the BOP will provide
hormone therapy in prison is upheld. It meets the
rational basis test, since patients' self-reporting of
condition and current level oftreatment cannot be
taken at face value, but must be verified to protect
the patient's health and safety.
The Bureau of Prisons says it would not
provide hormone therapy in any case because this
plaintiff has AIDS and complications might result.

Protection from Inmate Assault/Pleading
Edney v. Karrigan, 69 F.Supp.2d 540
(S.D.N.Y. 1999). The plaintiffs allegation that
officers were off their posts when he was attacked
by another prisoner does not state a claim absent
allegations of deliberate indifference on their part.
At 546: "... [A]n inmate must do more than
allege a generalized danger or negligent failure to
respond to such danger. Rather, [he] must provide
a court with particularized allegations from which
it could be concluded that the Defendants' failure .
to offer protection was accompanied by a
sufficiently culpable state of mind." (This holding
appears inconsistent with the Federal Rules of
Civil Procedure's allowance of "notice pleading.")

Federal Officials and PrisonslDrug Dependency
Treatment
Whipple v. Herrera, 69 F.Supp.2d 1310
(D.Colo. 1999). The plaintiff, convicted of
unarmed bank robbery, was declared eligible to get
his sentence reduced by participating in a
residential drug program, but the standards were
changed while he was waiting to get into a
program. However, the earlier standards were
wrong under the authorizing statute, so the
plaintiff was never really eligible. Equitable
estoppel will not be applied against the
government to frustrate the purpose of a statute.

Pre-Trial Detainees/Use of Force:
Restraints/Protection from Harm/Searches:
Person, Arrestees/Negligence, Deliberate
Indifference and Intent
Warren v. Swanson, 69 F.Supp.2d 1047
(N.D.IlI. 1999). The plaintiff was arrested,
handcuffed to a wall in a police station, and left
alone; a cigarette lighter in her coat pocket caught
fire, and she was severely burned. Her claim of a
Fourth Amendment right to be reasonably searched
for her protection is dismissed on qualified
immunity grounds. However,. her allegation that
the defendants did not respond to her cries for help
stated a claim under the Fourth Amendment's
reasonableness standard, which applies to this
arrestee's case. Deliberate indifference is not
applicable.

Homosexuals and Transsexuals/Federal
Officials and Prisons/AIDS
Farmer v. Hawk-Sawyer, 69 F.Supp.2d 120

Ex Post Facto Laws
Viserto v. Goard, 69 F.Supp.2d 435
(W.D.N.Y. 1999). A state statute provides that
21

THE NATIONAL PRISON PROJECT JOURNAL

when a prisoner is serving indeterminate sentences
concurrently, the minimum terms of the two
sentences are added together to determine the date
of parole eligibility. Previously the law provided
that the longer of the two minimums determined
eligibility. One of the petitioner's sentences--the
one with the longer minimum--antedated the
change in the law, so when he was later convicted
of a second crime, his parole eligibility on the first
sentence was postponed. This does not violate the
Ex Post Facto Clause; it was his own conduct in
committing another crime, not the changed law,
that caused the delay in his parole eligibility date.
Federal Officials and Prisons/Psychotropic
Medication/Pre-Trial Detainees
United States v. Weston, 69 F.Supp.2d 99
(D.D.C. 1999). Where government seeks to
medicate to render a defendant competent to stand
trial, its conduct must pass strict scrutiny under
existing case law. United States v. Brandon, 158
F.3d 947 (6th Cir. 1998). However, in this case
the government seeks both to render the defendant
competent and to protect his and others' safety, and
need meet only the Riggins v. Nevada standard:
"that treatment with anti-psychotic medication is
medically appropriate and, considering less
intrusive alternatives, essential for the sake of the
defendant's own safety or the safety of others."
The court reviews the decision to medicate
as a final agency action subject to a reasonableness
standard under the Administrative Procedures Act,
rather than reviewing de novo as has been required
in connection with medication for competency
restoration only.
The defendant does not have a Sixth
Amendment right to counsel at such a hearing,
since the decision is essentially medical in nature.
The involvement of counsel that was permitted
(allowing him to submit evidence, and
consultation with the client before the hearing)
was sufficient to protect his Sixth Amendment
rights.
AIDS/Pre-Trial Detainees
Roop v. Squadrito, 70 F.Supp.2d 868
(N.D.Ind. 1999). The plaintiff was arrested and
was told that because he had AIDS, he would be
locked down. He was put in a shower room,

22

Summer/Fall2001
which had no toilet. After five days, he was
placed in a cell, but without toilet or shower (he
went four days without a shower). After four days
he was put in a more standard cell.
Furnishings (874): Sleeping on a mattress
on a concrete floor is not unconstitutional.
Exercise and Recreation (875): Lack of
exercise is not unconstitutional because the
plaintiff could have done push-ups and sit-ups in
his cell. "A lack of exercise may rise to a
constitutional violation in extreme and prolonged
situations where movement is denied to the point
where an inmate's health is threatened."
Hygiene (875): "Complaints about not
being able to shower more often than he did would
not hold water ... since the deprivation of a mere
cultural amenity is not cruel and unusual
punishment. . .. Indeed, the Seventh Circuit has
held that just one shower per week is
constitutionally significant."
Sanitation (875): "Plaintiffs complaint that
his cell was 'filthy with dirt and fuzz on the floor'
cannot be swept into a constitutional claim...."
Hygiene, Plumbing (875): The lack of a
toilet in plaintiffs cell did not violate the
Constitution.
Disabled (877): The plaintiff was not
treated as a normal inmate, and the reason he was
not is a factual issue not resolvable on summary
judgment.
PLRA: Exhaustion of Administrative Remedies
Onapolis v. LaManna, 70 F.Supp.2d 809
(N.D.Ohio 1999). A prisoner who did not use the
administrative remedy procedures did not exhaust,
notwithstanding his hiring a law firm to try to
resolve his issues, his writing letters, and
telephone conferences between the defendants,
another attorney, and his wife.
At 814: Failure to exhaust also constitutes
failure to state a claim upon which relief can be
granted.
A complaint of failure to act on a detainer
is a "civil action with respect to prison conditions"
(812 n. 6) for purposes of the PLRA.
Rehabilitation/Drug Dependency
Treatment/Religion/Judicial and Prosecutorial
Immunity

THE NATIONAL PRISON PROJECT JOURNAL

Yates v. Cunningham, 70 F.Supp.2d 47
(D.N.H. 1999). The plaintiff alleged that he was
denied early release because of his refusal to
participate in a religion-based alcohol treatment
program (Alcoholics Anonymous). His damage
claim is barred by absolute immunity, because he
objects to defendants' reports and
recommendations made to a court pursuant to
court order.
Sexual,Abuse/Cruel and Unusual
PunishmentlNegligence, Deliberate Indifference
and IntentIWaiver of Rights
Carrigan v. Davis, 70 F.Supp.2d 448
(D.Dei. 1999). Claims of sexual harassment or
abuse are challenges to the conditions of
confinement analyzed under the deliberate
indifference standard of the Eighth Amendment.
Vaginal intercourse and/or fellatio between a
prison inmate and a prison guard, consensual or
not, is a per se violation of the Eighth Amendment.
Since such acts serve no legitimate penological
purpose, are illegal and thus contrary to the goals
of law enforcement, such conduct is per se
sufficient to establish a culpable mental state.
There is no consent defense to a sexual
abuse claim in a prisoner civil rights action, unlike
a tort case. As a constitutional matter, waiver and
consent are most often litigated in connection with
consent to search, waiver of the right to counsel,
and waiver of Miranda rights. Because there is a
"special relationship" between prisoners and their
custodians, the court adopts the "more difficult
waiver standard" rather than the "more lenient
consent standard." Since waivers must be
voluntary, knowing, and intelligent, and since
voluntariness cannot exist for a prisoner, the
plaintiff was incapable of giving a voluntary
waIver.
PLRA: Mental or Emotional Injury,Exhaustion of Administrative
Remedies/Sanctions/Federal Officials and
Prisons/Immunity
Marrie v. Nickels, 70 F.Supp.2d 1252
(D.Kan. 1999). The plaintiffs, military prisoners,
complained of various revolting conditions at the
United States Disciplinary Barracks. The Feres
doctrine, which prohibits suits by military

Summer/Fall 2001
personnel against their superiors for matters
"incident to service," does not bar these claims,
because these prisoners have been officially
discharged.
Plaintiffs' action is subject to the
mental/emotional distress provision. One plaintiff
seeks damages for emotional distress from
retaliation. His compensatory damages claim is
barred by § 1997e(e), but his nominal and punitive
damages claims may not be. As to sexual assault
claims, the court adopts the Siglar holding
applying the Eighth Amendment requirement of
injury that is not de minimis, and then adopts the
Second Circuit Liner holding that sexual assaults
are physical injuries as a matter of common sense.
Mental Health Care/Pendent and Supplemental
Claims/State-Federal Comity/Disabled/State
Officials and Agencies/Pendent and
Supplemental Claims; State Law in Federal
Courts
Neiberger v. Hawkins, 70 F.Supp.2d 1177
(D.Colo. 1999). Persons confined to an institution
for those found not guilty by reason of insanity
complained about the conditions of their
confinement. Defendants removed the case from
state to federal court.
The court declines to abstain on plaintiffs'
claim under the state Care and Treatment of the
Mentally III Act, since this suit deals with
conditions of confinement of the entire population,
and while the state courts retain jurisdiction over
the treatment of particular individuals forced to
take medication.
Removal to federal court is not an
unequivocal waiver of sovereign immunity, since
the notice of removal disavowed such a waiver.
The court allows the injunctive claim to go
forward notwithstanding defendants' claim that it
is an improper collateral attack on the actions of
state courts in the patients' individual cases.
TelephonesNisiting/Criminal Proceedings
United States v. Peoples, 71 F.Supp.2d 967
(W.D.Mo. 1999). Tape recording conversations in
the jail visiting area and over the telephone did not
violate the Fourth Amendment, Prison telephone
recordings are routinely admissible on an implied
consent theory. A recorded warning that the calls
23

THE NATIONAL PRISON PROJECT JOURNAL

Summer/Fa1l2001

are "subject to monitoring and recording" is
sufficient notice to support that theory. At978: "
.. [O]nce the government establishes that its
intrusion is for a justifiable purpose of prison
security, the fourth amendment question is
essentially resolved in its favor."
Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 does not bar these
recordings, since prisoners were warned that they
will be recorded and might be monitored, and this
defendant had actual knowledge of the warnings in
the inmate handbook, printed above the
telephones, and heard before each call began. The
defendant's in-person conversations carried
through an intercom system (apparently as part of
a non-contact visiting regime) are not wire
communications within the meaning of the statute.

To establish an Eighth Amendment
claim based on unsafe working
conditions, a plaintiff must
establish that 1) he was incarcerated
under conditions which posed a
serious risk of serious harm, and 2)
prison officials acted with
deliberate indifference to his health
or safety.
The plaintiff had sciatica and back and neck
injuries, could not perform sanitation duties
without suffering pain and agony, and had been
ordered by the prison physician not to do so. He
sufficiently alleged deliberate indifference in that
the defendants knew of his medical condition and
the work restriction but made him do the work
anyway.

Medical Care: Standards of Liability,
Deliberate Indifference/Color of Law/Federal
Officials and Prisons
Nunez v. Horn, 72 F.Supp.2d 24 (N.D.N.Y.
1999). A doctor who did not work for the Bureau
of Prisons and was not under contract to provide
medical services to prisoners, but just took
referrals from prison physicians, did not act under
color of state law. (The court ignores that the
question is whether he acted under color of federal
law.)
A doctor who removed synovial and scar
tissue from the plaintiffs elbow but did not
remove a bony block which restricted his range of
movement did not violate the Eighth Amendment
since the treatment "was reasonable and was not
administered with the intent to unnecessarily and
wantonly inflict pain upon the plaintiff." Not
performing more major surgery was an exercise of
medical judgment.

Women/Searches: Person, Convicts
Carlin v. Manu, 72 F.Supp.2d 1177 (D.Or.
1999). Male officers who viewed female prisoners
being strip searched were entitled to qualified
immunity because no prior case law made it clear·
that such conduct was unconstitutional.

PLRA: Exhaustion of Administrative
RemedieslWork Assignments
Howard v. Head/y, 72 F.Supp.2d 118
(E.D.N.Y. 1999). The PLRA exhaustion
requirement is not jurisdictional. The court in
dictum raises the question "whether administrative
exhaustion is an affirmative defense that is waived
by the defendants' failure to raise the issue in their
initial moving papers" (123 n. 3).
At 123:
24

Procedural Due Process: Disciplinary
Proceedings, Temporary Release
Quartararo v. Catterson, 73 F.Supp.2d 270
(E.D.N.Y. 1999). There is a liberty interest in
staying on temporary release, and the due process
requirements are taken from Wolffand Morrissey.
The plaintiff was denied due process by the failure
to give him 24 hours' notice of the temporary
release committee hearing. Due process also
requires a written statement ofthe evidence relied
on and the reasons for removal. A letter stating
only that the plaintiffs continued participation was
not in the best interest of the community in light of
his parole hold was insufficient. Admittedly the
parole hold itself was not sufficient reason to
revoke temporary release, so the statement could
not have been complete and accurate. It also
omitted the fact that the defendants considered
both the notoriety of the plaintiffs offense and the
community's "demonstrated concern." (276)
Classification/Habeas Corpus/Personal
Involvement and Supervisory Liability/PreTrial Detainees/Judicial and Prosecutorial

THE NATIONAL PRISON PROJECT JOURNAL

Immunity
Moore v. Speybroeck, 74 F.Supp.2d 850
(N.D.Ind. 1999). An allegation that prosecutors
conspired with sheriffs to impose unlawful
conditions of confinement did not state a claim.
Jail conditions are under the control of county
sheriffs under state statutes, and the plaintiffs
conspiracy claim is unsupported by facts and
barred by prosecutorial immunity. (The court
doesn't explain how conspiring about jail
conditions would be governed by immunity for
initiating and pursuing a criminal prosecution.)
Denial of placement in a credit
classification that would speed the plaintiffs
release from custody affects the duration of
custody, and habeas corpus is the exclusive federal
remedy for challenging it.
Equal Protection/Ex Post Facto Laws
Woodley v. Department ofCorrections, 74
F.Supp.2d 623 (E.D.Va. 1999). A policy change
by the Parole Board requiring all persons who
violated parole after a certain date to serve the
entire unserved portion of their sentence did not
deny equal protection because parole decisions are
individualized and therefore no two parolees could
ever be similarly situated for purposes of equal
protection review.
The policy change by the Parole Board is
not an ex post facto law because it did not involve
the development of legislative rules, just
guidelines. Also, it is only a procedural change,
because it does not change the potential maximum
sentence of the prisoner. The prisoner was on
notice at the time he committed the crime that such
an amendment might occur.
Procedural Due Process: Temporary
ReleaselHabeas Corpus
Weller v. Grant County Sheriff, 75
F.Supp.2d 927 (N.D.Ind. 1999). A claim of
removal from work release without due process is
not barred by Heck v. Humphrey, since the action
complained of did not affect the duration of
plaintiffs confinement. However, the plaintiff had
no liberty interest under state law; participation in
work release was at the Sheriffs discretion. The
1984 decision in Smith v. Stoner, holding that
there is a constitutionally based liberty interest in

Summer/Fa1l2001
work release, is overruled by Sandin. This
plaintiff was in a work release program in which
he lived in jail and went to work during the day;
post-Sandin decisions finding a liberty interest
involved programs in which the prisoners lived
outside the prison.
PLRA: Exhaustion of Administrative Remedies
Diezcabeza v. Lynch, 75 F.Supp.2d 250
(S.D.N.Y. 1999). Use of force claims are prison
conditions claims governed by the PLRA
exhaustion requirement. The definition of
conditions of confinement in 18 U.S.c. §
3626(g)(2) governs interpretation ofthe phrase
"prison conditions."
The court considers the affidavits from
defendants attached to their motion to dismiss and
treats the motion as one for summary judgment,
giving appropriate notice to the plaintiffthat he
must submit affidavits showing exhaustion in
support of his pleading, which alleged exhaustion.
Hazardous Conditions and Substances/Color of
Law
Abarca v. Chevron US.A., Inc., 75
F.Supp.2d 566 (E.D.Tex. 1999). Plaintiff
.prisoners and prison employees brought suit over a
leak in a liquefied petroleum gas pipeline operated
by the defendant. However, the defendant did not
act under color of state law, and there was no
allegation of subjective deliberate indifference.
The fact that the defendant operates under
regulation by federal law does not mean that there
is a federal claim.
Procedural Due Process: Disciplinary
Proceedings
Ramirez v. McGinnis, 75 F.Supp.2d 147
(S.D.N.Y. 1999). A prisoner confined in SHU for
60 days sufficiently alleged atypical and significant
hardship to create a material factual dispute under
Sandin about the actual conditions in the Sing Sing
SHU. The court weighs the entire gamut of SHU
restrictions and indignities, including allegations
by the plaintiff of conditions that are not consistent
with defendants' regulations, and the loss to the
plaintiff of programs that were interrupted by his
placement.

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Disabled
Yeskey v. Pennsylvania, 76 F.Supp2d 572
(M.D.Pa.1999). On remand from the Supreme
Court, the court holds that the strenuous physical
exercise required by a prison boot camp program
is not a "major life activity" under the Americans
with Disabilities Act. Whether a life activity is
"major" depends on whether it is "significant or
important relative to other activities" (577), e.g.,
walking, seeing, hearing, speaking, breathing,
learning, and working. Also, major life activities
are those that the average person in the general
population can perform with little or no difficulty.
Therefore disqualifying the plaintiff because of his
high blood pressure did not violate the ADA.
Individual defendants cannot be held liable
for violating Title IT of the ADA.

CT Officials Move Prisoners Out of
Notorious Virginia Supermax
In a victory for prisoners' rights,
Connecticut officials said in July they will move
prisoners under their care out of the notorious
supermax prison in rural Virginia where two
Connecticut prisoners died in the last 18 months.
The move came less than six months after the
American Civil Liberties Union filed a federal
civil rights lawsuit charging that the state acted
with "deliberate indifference" by knowingly
allowing the brutal mistreatment of prisoners
under its care at Wallens Ridge State Prison in
Virginia.
"It is unfortunate that two prisoners had to
die and-ii lawsuit had to be filed before
Connecticut officials decided to act," said David
Fathi, an attorney with the National Prison Project.
"Despite officials' statements that the change was
made for administrative costs and reasons," Fathi
stated, "It's hard to interpret the decision as
anything but a direct result of mounting legal
pressures on the Department of Correction."
In addition to the ACLU lawsuit, those
pressures included a scathing report from the
Connecticut Commission on Human Rights and
Opportunities, a multimillion dollar lawsuit by the
family of a prisoner who committed suicide, the

26

Summer/Fall2001
investigation of mental health conditions by the
Connecticut Office of Protection and Advocacy for
Persons with Disabilities, and ongoing protests by
families of the Wallens Ridge prisoners.
Controversy over Connecticut's use of
Wallens Ridge has centered over the past year on
the death of two inmates: David Tracy and
Lawrence Frazier. Tracy committed suicide in
April 2000 and Frazier died from a medical
condition that the Virginia state medical examiner
concluded was aggravated by the repeated use of
an electric stun gun in July 2000.
The ACLU's class-action lawsuit named
Department of Correction Commissioner John J.
Armstrong as the sole defendant, citing his
"deliberate indifference" to "the risk that
[Connecticut prisoners] will suffer serious physical
injury or death" at the hands of Wallens Ridge
guards. "Weare pleased that Connecticut
prisoners are being moved out of Wallens Ridge,
and we remind the Commissioner that no matter
where Connecticut inmates are housed, he is
responsible for their health and safety," said Toya
Alek Graham, an attorney with the Connecticut
Civil Liberties Union.
The last Connecticut prisoners were
removed from Wallens Ridge on August 14, 2001.
In September, the Connecticut Department of
Correction entered into a settlement agreement,
promising not to house Connecticut prisoners at
Wallens Ridge or at its nearby twin institution,
Red Onion State Prison. The only exception is
that the Department may house prisoners at these
institutions in cases of emergency, but only on a
short-term basis. The Department must give
immediate notice to the ACLU if it transfers
prisoners to Red Onion or Wallens Ridge in the
future. The Department also agreed to pay $4,000
toward the ACLU's costs in bringing the lawsuit.
In accordance with this settlement agreement, the
lawsuit was dismissed on October 9,2001.
The case, Joslyn v. Armstrong, was filed in
U.S. District Court in Connecticut by David Fathi
of the ACLU's National Prison Project; Toya Alek
Graham and Philip D. Tegeler ofthe Connecticut
Civil Liberties Union; and cooperating attorney
Alan Neigher ofthe firm Byelas and Neigher in
Westport.

THE NATIONAL PRISON PROJECT JOURNAL

District Court Agrees: DC Violated
Prisoner's Rights
In September, a federal judge upheld a jury
award of$174,178 for a District of Columbia
prisoner who was denied treatment for skin cancer
and glaucoma and whose pleas were ignored by
prison officials and the mayor.
The ruling by U.S. District Judge Gladys
Kessler denied two post-trial motions filed by the
District seeking to overturn the jury's verdict in a
case brought by the National Prison Project on
behalf of Lawrence Caldwell. "Because the jury
returned a verdict for Plaintiff [Caldwell], it
obviously found his testimony credible and
concluded that the exposure to feces in his cell,
foul water, filth, excessive heat, smoke, and mace,
and the lack of outdoor exercise, resulted in a
substantial risk of serious harm to Plaintiff," wrote
Judge Kessler.
"The City conducted a shotgun attack on
the jury's verdict against the District. Judge
Kessler's decision shows that the jury's verdict is
fully supported by the evidence," said Elizabeth
Alexander, Director ofthe National Prison Project.
Caldwell sued the District of Columbia and
Department of Corrections officials for injuries
suffered while being held in the Maximum
Security Facility at the Lorton Correctional
Complex beginning in May 1997. The facility has
since been shut down under the terms of the DC
Revitalization Act. In January 2001, a jury found
that Corrections officials failed to comply with
doctor-ordered treatment of Caldwell's glaucoma
and skin cancer, in violation of the Eighth
Amendment's ban against cruel and unusual
punishment. "Our client waited a year for medical
treatment that he should have received in a
month," said David C. Fathi, an attorney with the
National Prison Project. "Mr. Caldwell's health
has deteriorated because of the deliberate
indifference of the D.C. Department of
Corrections."
Attorneys Alexander and Fathi of the
ACLU National Prison Project were appointed by

Summer/Fa1l2001
Judge Kessler to represent Caldwell in his case,
Lawrence Caldwell v. District ofColumbia.

"Not Part of the Penalty": Ending
Prisoner Rape
Despite numerous clear pronouncements
from the federal courts that prisoner rape is
constitutionally unacceptable, sexual abuse of
prisoners continues to be a serious and largely
unaddressed problem in U.S. prisons andjails. On
October 19 and 20, the National Prison Project,
American University's Washington College of
Law, Amnesty International, Human Rigffis
Watch, Interlock Media and Stop Prisoner Rape
hosted the first ever national conference to focus
on this human rights violation. The event sought
ways to give real meaning to the principle that rape
is "not part of the penalty that criminal offenders
pay for their offenses against society."
Held at AU's Washington College of Law,
the conference addressed both prisoner-onprisoner sexual abuse and custodial sexual
misconduct (sexual abuse of prisoners by guards
and other custodial staff). Panels consisting of
activists, rape survivors, lawyers, corrections
professionals, academic experts, public health
specialists, and others covered topics ranging from
the incidence of prisoner rape, to its effects on
survivors, to its impact on the spread of
HIV/AIDS.
The two-day conference also included an
awards ceremony honoring Tom Cahill, president
of Stop Prisoner Rape, and Cassandra Collins,
founder of Stop Inmate Rape and Abuse. Both
recipients are survivors of rape in prison and are
unyielding advocates for improving current
conditions for prisoners.
In order to build on the success of the
conference and provide a venue for sharing
materials and keeping participants informed of
ongoing developments, plans are underway to
create an emaillistserv. The listserv will be open
to everyone. To join, email Kara Gotsch at
kgotsch@npp-aclu.org.

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Summer/Fa1l2001

THE NATIONAL PRISON PROJECT JOURNAL

SEXUALLY ASSAULTED IN PRISON OR JAIL?
The National Prison Project of the American Civil Liberties Union wishes to bring lawsuits
on behalf of persons who have been sexually assaulted while in prison or jail, either by other
prisoners or by staff. Weare interested in hearing from both fonner prisoners and persons who are
still incarcerated.
Please write to the address below and provide as many details as possible, including when and
where t~e assault took place, whether you reported the assault, and what action, if any, was taken by
prison, jail, or law enforcement authorities.
Legal representation, if provided, will be free of charge. Write to:

PR Project
Craig Cowie, Attorney
ACLU National Prison Project
733 15 th St. N.W., Suite 620
Washington, DC 20005
Prisoners should send their letters by legal mail.

The National Prison Project
American Civil Liberties Union Foundation
733 15th Street, NW, Suite 620
Washington, DC 20005
1Il~21

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