A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 15, No.2, Winter/Spring 2002· ISSN 1076-769X

.NPP Begins New Litigation Initiative to End Prisoner Rape
I am so scared ofdeath and I feel that suicide is my only way out ofthis. I cannot
sleep here at night with the horrors ofknowing that I am constantly being
sexually penetrated. . " I can no longer handle the abuse and humiliation
anymore. I have no one to turn to but you.
Roderick Johnson, a prisoner at Texas'
Allred Unit and the victim of countless rapes and
sexual assaults over anI8-month period, wrote
these anguished words in one of his first letters to
attorneys at the ACLU's National Prison Project.
His letter, a response to news that the NPP was
seeking information about cases of rape and
sexual assault in prisons or jails, made an
immediate impression on the lawyer who read it.
"Even after having read numerous disturbing
accounts of sexual assault and abuse from
prisoners across the country, the situation
Roderick Johnson described in Texas shocked and
horrified me," said attorney Amy Fettig.
Advertisements ran last fall in the NPP
Journal, Prison Legal News, the Citizens United
for Rehabilitation of Errants' Newsletter and
several other publications read by prisoners. To
date, the NPP has received responses from more
than 300 current and former prisoners in nearly
every state. In April, the Project filed its first two
lawsuits in its new nationwide initiative to help
stop rape and sexual assault in prisons. One
lawsuit was filed on behalf of Mr. Johnson and
the other on behalf of Robin Darbyshire, a female
pretrial detainee sexually assaulted by a
correctional officer.

Prisoner Rape in Texas
Roderick Johnson's case highlights the
Texas Department of Criminal Justice's failure to
protect vulnerable prisoners and the impact of
racism and homophobia in determining who gets

protected in
prison. Mr.
Johnson, a 33year-old Navy
veteran, is a gay
African-American
man who was
repeatedly bought
and sold by gangs
as a sexual slave,
raped, abused and
degraded nearly
everyday.
Margaret
Winter, NPP's
associate director Roderick Johnson, a Navy veteran
and lead counsel serving time for a non-violent
crime, has been bought and sold by
for the case,
gangs,raped,abused,and
asserts prison
degraded nearly every day.
officials knew
that gangs made Roderick Johnson their sex slave
and did nothing to help him. "Our lawsuit shows
that Texas prison officials think black men can't
be victims and believe gay men always want sex -so they threw our client to the wolves."
According to the complaint, Johnson
appeared before the prison's all-white
classification committee seven separate times
asking to be placed in safe keeping from predatory
prisoners. Instead ofprotecting Johnson, the
committee members taunted him and called him a
"dirty tramp," and one said, "There's no reason
why Black punks can't fight if they don't want to

- - - ""------

Winter/Spring 2002

THE NATIONAL PRISON PROJECT JOURNAL

fuck."
Gangs and other prisoners often prey upon
prisoners who are gay, as well as those who are
young, small, mentally or physically disabled,
first-time offenders, shy, perceived as weak, or
possessing feminine characteristics. ill Texas and
elsewhere, individuals identified with one or more
of these vulnerable characteristics typically
qualify for a prison classification known as "safe
keeping" or "protective custody."
Johnson informed the prison's staff of his
sexual orientation during the intake process. But
after leaving the intake unit, he was placed in
general population. The result was devastating.
The complaint describes how gang members
negotiated fees of $5 to $10 for sex with Johnson.
He was told that if he refused, he would be beaten
and killed. As a sexual slave, he was repeatedly
penetrated anally and forced to perform oral sex at
the command of gang members.
"I know most people don't care what
happens to prisoners, but no matter what Roderick
has done he doesn't deserve the abuse he has
received," said Roderick Johnson's cousin Sharon

The NPPJOURNAL
NPP Director: Elizabeth Alexander
Editor: Kara Gotsch
Subscriptions Manager: Thandor Miller
The National Prison Project is a special project of the
ACLU Foundation. It seeks to strengthen and protect the rights
of adult and juvenile prisoners, improve overall conditions in
correctionaHaciIities, and develop alternatives to incarceration.
ThejOURNAL is published biannually by the
National Prison Project ofthe ACLU, located at 733 15 th St.,
NW, Ste. 620, Washington, DC 20005. Contact us by phone at
(202) 393-4930, fax at (202) 393-493 I or email at
kgotsch@npp-acIu.org for more information. (NO COLLECT
CALLS PLEASE)
The reprinting ofjOURNAL material is encouraged
with the stipulation that the National Prison Project
JOURNAL be credited as the source of the material, and a
copy of the reprint be sent to the editor. Subscriptions to the
JOURNAL are $30 ($2 for prisoners) prepaid by check or
money order.

2

Bailey, whose calls to prison officials were
ignored. "The entire family is horrified and
devastated by what's happening to Roderick. We
are afraid we will never see him alive again. We
have faith that God will protect him, but the prison
must also be held responsible for ignoring our
pleas for help."
Texas was identified as the worst state in
the nation for prison rape in Human Rights
Watch's 2001 book-length report, No Escape:
Male Rape in Us. Prisons. illdependent
observers, including a federal judge, have said that
some prisoners in Texas are vulnerable and need
protection -- which they are not getting.
"Evidence has shown that, in fact, prison officials
deliberately resist providing reasonable safety to
inmates. The result is that individual prisoners
who seek protection from their attackers are either
not believed, disregarded, or told that there is a
lack of evidence to support action by the prison
system," wrote U.S. District Judge William Wayne'
Justice, in a class-action case about Texas prison
conditions that has spanned 30 years. He also said
evidence "revealed a prison underworld in which
rapes, beatings, and servitude are the currency of
power."
After the NPP filed two requests with the
executive director of Texas' prison system, Mr.
Johnson was finally transferred to a different
Texas prison and was placed in safekeeping.
Since moving to the new unit, he has faced no
additional sexual attacks.

Sexual Abuse by Correctional Staff
The NPP's sexual assault investigations
also focus on the disturbing trend of sexual abuse
and harassment of women prisoners by
correctional staff. The first lawsuit filed as part of
the NPP's new initiative concerns a female
prisoner assaulted by an employee of a private
prisoner transport company during a four-day trip
to a jail in Colorado.
Continued on page 5

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

IAIDS Project Adds Hev to the Mix I
When the AIDS in
Prison Project was founded
over a decade ago the major
infectious disease raging
through U.S. prisons and jails
was HIV/AIDS. Although
Jackie Walker, AIDS and
.
HCV in Prison Project HIV/AIDS remams a problem
Coordinator
across the nation, Hepatitis C
(HCV) has now emerged as
the new prison epidemic.
A study by the National Institute of Justice
estimates that 17 percent of the U.S. prison
population has HCV. California's corrections
system reports the highest level of prisoner
infection - 35 percent of its population is sick.
HCV is also detrimentally impacting prisoners
living with HIV/AIDS because many are now coinfected with the disease.
These developments encouraged the AIDS
in Prison Project to expand and incorporate HCV
infection concerns into its program mission.
Correspondence on HCV issues now comprise
almost half of the Project's incoming mail. The
issues raised in these letters span the gamut. Men
and women newly diagnosed with HCV have
basic questions about the disease. Other prisoners
write-in with more complex questions on dietary
requirements, HIV co-infection concerns, and the
effects of combination therapy.
Federal and state prisoners seeking
treatment describe their struggles to navigate
complex H<;V treatment protocols. Some
prisoners already debilitated and facing an
upcoming release, write to the Project with
questions about filing for disability. Some
prisoners who have been stonewalled through the
grievance process until they have less than a year
remaining on their sentence, write seeking legal
referrals. Even HIVIAIDS peer educators are
writing to ask for materials on HCV to include in
their workshops.
In response to these challenges, the Project

has undertaken a number of activities. Treatment
information packets on HCV are mailed to
prisoners living with HCV and to a new
generation ofprisoner peer educators focusing
their efforts on HCV. In addition, complaint
letters to prison administrators, once drafted to
request HIVIAIDS medications, now ask for
prisoners to be evaluated for combination therapy
ofPeg-Intron and Ribavirin.
The role of the AIDS and HCV Project and
the National Prison Project will continue to evolve
as information about HCV develops. The
accompanying article, Hepatitis C Emerges as
Major Health Threat in Prisons by NPP Director
Elizabeth Alexander, explores further the growing
prevalence ofHCV in prisons and highlights the
National Prison Project's interest and dedication
to ensuring treatment and care for infected
prisoners who need it.

Hepatitis C Emerges as Major Health
Threat in Prisons
By Elizabeth Alexander
It is a sad coincidence that, at the same
time that effective treatments have turned HIV
infection into a chronic disease rather than an
automatic death sentence, another infectious
disease is rampant in U.S. prisons and jails.
Hepatitis C (also known as HCV) infection is even
more disproportionately concentrated in prison
populations than is infection with HIV and is ten
times more common in prison than in the general
population. Now that relatively effective but
expensive treatments are available for HCV and
the Centers for Disease Control are about to issue
guidelines for treatment ofHCV in correctional
facilities, the question is whether Departments of
Corrections will fulfill their duty to provide these
treatments to eligible patients.
Infection with HCV is the most common

3

THE NATIONAL PRISON PROJECT JOURNAL

blood-borne chronic infection in the United States,
affecting about four million people. About 60
percent of new cases result from intravenous drug
use, about 20 percent from sexual transmission,
and the remainder from a variety of causes.
Eighty percent of intravenous drug users are HCVpositive.
Approximately 80 percent of persons with
acute HCV infection will develop chronic
infection and about 20 percent of those will
develop cirrhosis of the liver and experience an
increased risk of development of cancer of the
liver. Present information suggests that 4 percent
ofthose with HCV will develop life-threatening
complications or die ofthe disease. Death rates
are much higher among those who are also
infected with HN. In fact, end-stage liver disease
is now emerging as a leading cause of death
among persons with HN.
Until recently, treatment ofHCV was a
difficult risklbenefit calculation. Only a minority
of persons with HCV responded to the original
standard treatment with interferon, which often
produced substantial side effects. However, the
newest treatment with pegylated interferon 2B and
ribavarin, combined with optimum treatment of
side-effects, has resulted in reported rates of
response of 72 percent. Included are good
response rates for types ofHCV infection that
were previously considered to be unlikely to
benefit from treatment.!
The typical cost of a course of treatment
for patients for the older form of combination
interferon-ribavarin treatment has been roughly
$l2,000-$2j,000. For many corrections systems,
if all prisoners with HCV were treated, the cost
would total more than the Department's current
budget for all health care. 2 As a result, most
prison systems across the country either do not
routinely test for HCV infection, or use restrictive
criteria to bar from treatment prisoners who would
be treated in the community.
The Centers for Disease Control are
expected to release guidelines for HCV treatment
in correctional facilities in August. These

4

Winter/Spring 2002

guidelines will likely advise more treatment for
more patients than most Departments of
Corrections currently provide and, consequently,
should rapidly change the legal landscape. Up to .
now, most of the cases challenging a failure to
provide treatment for HCV have been lost because
the courts held that it was not a violation of
constitutional rights to deny treatment. These
cases are unlikely to remain good law because the
facts have changed: treatment is much more likely
to be successful now and the side effects are more
controllable.
There is already one excellent, but
unpublished, decision3 granting a preliminary
injunction to a Kentucky prisoner who had
advanced liver disease and a 50 percent chance of
dying before the end of his five-year sentence if
denied treatment. At the time, Kentucky had 22
criteria that a prisoner had to meet to have HCV
treatment provided, but not a single prisoner had
been treated under those criteria. Indeed, the
Magistrate Judge found that treatment was denied,
not because of a medical judgment, but because of
an unwritten policy that no prisoner would be
treated for HCV. The judge also found that the
criteria represented such a departure from accepted
medical judgment as to suggest that no such
judgment was exercised.

THE NATIONAL PRISON PROJECT JOURNAL

Because the National Prison Project is
concerned that prison systems will continue to
deny care for HCV after the CDC guidelines are
released, we intend to monitor the policies and
practices of departments around the country. If
necessary, the NPP will file litigation to challenge
continued failures to deny treatment when those
failures openly or covertly result from financial
concerns rather than medical judgment.
1. Anne S. De Groot, MD, HCY: The Correctional
Conundrum, HEPP NEWS April 2001, 1. HEPP NEWS, a
publication of the Brown Medical School Office of
Continuing Medical Education and the Brown University
AIDS Program, is an excellent source of infonnation about
HCY in prison.
2. In fact, even under appropriate treatment guidelines, not
all patients with HCY infection would be eligible for
treatment. Until Departments of Corrections survey infected
patients applying correct criteria, it is impossible to estimate
the actual cost of treatment.
3. Michael K. Pauley v. Commonwealth ofKentucky, No.
3:99-CY-00549-H (W.D. Ky.).

Prisoner Rape
Continued from page 2

Extraditions International took custody of
Robin Darbyshire in Carson City, Nevada on May
13, 2001. During the van trip with two male
officers and other, mostly male, prisoners, an
Extraditions International guard sexually harassed
and threatened to kill Ms. Darbyshire and another
female prisoner. On one of the few van stops
where prisoners were permitted to use the
restroom, the driver, Richard Almendarez, brought
Ms. Darbyshire to the bathroom and told her to lie
down on the floor facing him. The 325-pound
officer, who was armed, ordered her to expose her
breasts and lift up her skirt. While restraining her,
he then masturbated standing above her and
ejaculated onto her breasts. Mr. Almendarez told
Ms. Darbyshire that if she screamed he would
shoot her and claim that she tried to escape. Ms.
Darbyshire still experiences physical symptoms,
nightmares and severe emotional distress because

Winter/Spring 2002
of the van ride that occurred almost one year ago.
"The private extradition business operates
in the shadows, out of the public view, and with
almost no government regulation," said NPP
attorney Craig Cowie. "We're bringing this suit to
shine a light on this shady industry, where some of
the worst abuses of prisoners occur."
Despite her complaint during a stop at the
Extraditions International office in Commerce
City, Colorado, the company placed Ms.
Darbyshire back in the van with the driver whom
they knew had sexually harassed and threatened to
kill her. The final two hours of the trip with
Officer Almendarez were terrifying. Ms.
Darbyshire overheard Mr. Almendarez say that he
should have "blown her head off' because she
would not "give him any." She only escaped from
the abusive treatment when the van she was
traveling in broke down and she was placed in a
van with different drivers for the rest of her trip.
According to the ACLU complaint, Officer '
Almendarez also repeatedly asked the women
prisoners to sit on his lap and tell him "X-rated"
bedtime stories. He called Ms. Darbyshire a "slut"
and asked her, "You like sucking big dick, don't
you?" While near the Mexican border, Mr.
Almendarez suggested that he would take the
women prisoners to a Mexican hotel and "fuck"
them and then shoot them.
Another private extradition company,
Transcor, recently settled a lawsuit with the ACLU
of Colorado over similar allegations of sexual
assault against a woman it transported. However,
most incidents of sexual assault and abuse of
women prisoners go unreported because of fear of
retaliation by correctional staff and the
vulnerability felt by prisoners.
Although comprehensive national statistics
on the number of prisoners sexually victimized by
correctional staff are not available, separate
investigations conducted by Amnesty
International, Human Rights Watch, the U.S.
General Accounting Office and the United
Nation's Commission on Human Rights all
conclude that incidents of sexual abuse and assault
5

,
THE NATIONAL PRISON PROJECT JOURNAL

in U.S. prisons and jails are widespread.
The GAO report, Women in Prison: Sexual
Misconduct by Correctional Staff, found that from
1990 to 1995 class actions or individual damage
suits relating to sexual misconduct had been filed
against at least 23 departments of correction.
Amnesty International's 2001 survey, Abuse of
Women in Custody: Sexual Misconduct and
Shackling ofPregnant Women, reported
allegations of sexual abuse of female prisoners by
correctional staff in almost every correctional
system in the country.
"With this lawsuit and others like it, the
ACLU is putting corrections systems on notice
that they will be held legally and financially
accountable for the sexual abuse and assault of
prisoners," said Cowie. The National Prison
Project is investigating other incidents and expects
to file additional lawsuits in the coming weeks and
months.
The two lawsuits, Roderick Keith Johnson
v. Gary Johnson and Robin Darbyshire v.
Extraditions International, Inc. were filed in U.S.
District Court for the Northern District of Texas
and U.S. District Court for the District of
Colorado respectively.

New Michigan Prisoner Legal-Mail
Policy on the Right Track
By Elizabeth Alexander
A.new policy, instituted by the Michigan
Department of Corrections in May, bans prison
staff from reading or skimming prisoners'
privileged legal mail. Earlier this year, U.S.
District Court Judge Richard Alan Enslen ordered
the Michigan Department of Corrections to
institute a new policy after the agency was found
to be in violation of two court orders.
Shortly after the anthrax scares that
followed the terrorist attacks of September 11th,
the corrections department altered its mail

6

Winter/Spring 2002
protocol and allowed prison staff to open and read
prisoners' privileged legal correspondence outside
ofthe prison facility and outside of the presence of
the prisoner. This move violated two longstanding federal court orders established in Hadix
v. Johnson and Knop v. Johnson which prohibit
the reading of prisoners, legal mail. The National
Prison Project represents Michigan prisoners in
the Hadix and Knop litigation and late last year
filed objections to Michigan's revised legal mail
policy. Judge Enslen granted the NPP's
objections.
As Judge Enslen said in his order, "Neither
the Anthrax threats nor the other evidence offered
by Defendants is sufficient to justify reading of
legal correspondence since contraband such as
Anthrax could be discovered by inspection not
involving reading. . .. Furthermore, the Court
reiterates that the First Amendment right to access
to the courts guarantees confidential relations
between attorney and client against decisions by .
prison administrators to read such correspondence
when those intrusions are unsupported by probable
cause."
The new corrections department policy
also requires prison staff to log all legal mail
opened outside of the presence of the addressee.
Log entries indicate the date the mail was
received, when it was inspected and processed, the
name of the prisoner to whom the mail was sent
and the name of the sender. The log also notes
whether any physical contraband was confiscated
and, if so, what was confiscated.
The Michigan Department of Corrections
is entitled to take reasonable security precautions
in light of the recent terrorist attacks and anthrax
threats through the mail, but a wholesale disregard
for what one court called "the oldest of the
privileges for confidential communication known
to the common law" is unacceptable. Michigan's
new policy protecting the attorney-client privilege
is an important victory for its prisoners and sets a
meaningful precedent for prisoners'· rights
nationwide.

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

After Eight Deaths in Colorado Jail, ACLU Files Lawsuit Over Treatment of
Mentally III Prisoners
Saying that the EI Paso County Jail in
Colorado Springs has failed to protect and provide
adequate resources for prisoners with serious
mental health needs, the National Prison Project
and the American Civil Liberties Union of
Colorado filed in April a federal class action
lawsuit against prison officials.
All over the country, more and more
prisoners are arriving at overcrowded and
understaffed county jails with serious mental
illness or symptoms of psychosis that are the result
of withdrawal or overdose from substance abuse.
The EI Paso County Jail has been unable to fulfill
its constitutional duty to protect prisoners from the
risk of self-harm or suicide and to provide for their
serious mental health needs. "At best, our clients
endure unconscionable neglect. At worst, they
endure conditions that are inhumane, degrading,
humiliating, dangerous, and sometimes fatal,"said
Mark Silverstein, Legal Director ofthe ACLU of
Colorado.
The jail has faced scrutiny from the ACLU
since May 1998, when pre-trial detainee Michael
Lewis died while strapped face-down to a restraint
board. For days prior to his death, he had been
hallucinating and suffering from psychosis
probably caused by a change in his usual
medications. He had been on a waiting list to see
the facility's psychiatrist, who visited only every
other week.
Eight additional prisoners have died in the
jail since tfien, four ofthem in 2001. In almost
every case the deceased prisoner was suicidal,
seriously mentally ill, or displaying symptoms of
psychosis from overdose or withdrawal. The jail
provides medical, psychiatric, and mental health
services by contracting with a private company,
but allots only two hours per week of psychiatric
services, which translates to 36 seconds per
mentally ill prisoner per week "Providing only
two full-time mental health employees who are
unlicensed and lack sufficient background and

training is grossly inadequate and negligent," said
David C. Fathi of the NPP and co-counsel on the
case.
According to the ACLU lawsuit, many
individuals with mental illness enter the jail
already taking medications prescribed by outside
mental health care providers. Upon entry to the
j ail, prisoners have faced long delays before their
medication is resumed, if it is resumed at all.
Because the medical contractor has a restricted list
of medications that it will provide, prisoners who
had adjusted well to their previous prescription
suddenly find their medications switched.
Moreover, there is insufficient medical and mental
health staff to monitor the effects ofthe changed
medications, a combination that threatens the
health and safety of prisoners.
The lawsuit also alleges that mentally ill
prisoners suffer because the corrections staff is
stretched too thin and not adequately trained to
recognize when prisoners' behavior may be the
result of mental illness or psychosis rather than
willful defiance ofjail rules or deputies' orders.
The result is excessive force and unnecessary use
of dangerous restraint devices. The lack of
sufficient mental health staff also results in
deputies making decisions that should only be
made by qualified mental health professionals.
The lawsuit recounts the 1999 case of a
young woman who arrived at the jail on an alcohol
violation, already visibly upset. She told guards
that she had recently been raped twice. Corrections
staffput her in an isolation cell for making
suicidal statements. When she attempted to harm
herself, deputies stripped her naked, laid her facedown on the concrete floor, handcuffed her behind
her back and shackled her legs. Fifteen minutes
later, corrections officers returned to strap her into
a restraint chair, still naked. For the next five
hours she remained strapped in the chair, naked,
screaming in terror, and in full view of the male
officers. The on-call mental health worker was

7

· THE NATIONAL PRISON PROJECT JOURNAL

paged four separate times but did not arrive until
three hours after the young women had been
strapped down.
The EI Paso County Jail consists of two
facilities holding recent arrestees, persons
awaiting trial and persons convicted and sentenced
to terms of two years or less. Prisoners, including
the mentally ill, are forced to sleep in open "dayrooms" and in "sled beds," coffin-like plastic
forms placed directly on the floor. Because of
overcrowding, some seriously mentally ill
prisoners are left in general population with no
special protection or services. No mentally ill
women have access to separate specialized units.
Prisoners who are suicidal or mentally ill
often wind up in the jail's "special detention
cells," which have no windows, no bed, and no
toilet or sink. Four years ago, the American
Correctional Association strongly urged the EI
Paso County Jail to stop using these tiny cells, but
their use continues. Further, despite nationally
recognized correctional standards that require
checkups every 15 minutes, prisoners are often left
alone in these cells without observation for
extended periods of time.
At the end of 2001, deputies housed a
suicidal prisoner in a special detention cell while
they awaited instructions from the jail's mental
health staff. After neglecting the fifteen-minute
checks for an hour, a deputy reported that the
prisoner had smeared feces on the cell door and
had written "I need the toilet" in feces. Deputies
left the prisoner in the tiny stench-ridden cell for
another hour, intervening only when they
discovered that he was cutting his arm with a
sharpened metal cover from an electrical outlet.
The prisoner was taken to the hospital. The jail's
mental health staff never arrived.
"The EI Paso County Jail continues to
deny the prompt and proper provision of mental
health treatment, protection from inhumane and
punitive actions and appropriate housing for its
mentally ill prisoners," said Fathi. "This
oppressive environment causes further harm to the
county's most vulnerable population."

8

Winter/Spring 2002

The federal court lawsuit, Shook v. Board
ofCounty Commissioners, is the fifth in recent
years to target conditions in the jail. An earlier
ACLU class action resulted in a settlement that
ended the use of the controversial restraint board.
A separate wrongful death suit filed by Lewis's
family was settled in 2001. Another ACLU suit
filed last year seeks compensation for the family
of Andrew Spillane, who died in the jail in 2000.
Last week, the family of Steven Phelps, who died
by suicide in the jail in 2001, filed a suit seeking
compensation.

Kellogg Foundation Provides Grant to
End HIV Segregation
In March, the W.K. Kellogg Foundation
awarded the ACLU's National Prison Project
$50,000 to continue its public policy efforts to
promote the integration of prisoners infected wit~
HIV/AIDS into educational, vocational, and
rehabilitative programs, as well as community
corrections programs, in the states that segregate
them.
Last year the Journal reported on the
Project's success in Mississippi which resulted in
the dismantling of one of the nation's longest
standing discriminatory HIV/AIDS policies. HIV
positive prisoners there are now permitted to
participate in important rehabilitative programs
that qualify them for good-time credits that shave
time offtheir sentences. Additional work remains
to be done in Mississippi where sick prisoners are
still excluded from out-of-prison programs, like
work release.
New initiatives have also begun in
Alabama where prisoners continue to be
segregated in housing and denied programing.
Margaret Winter, NPP Associate Director,
thanked the Kellogg Foundation for its grant,
"This vital assistance allows the NPP to conduct
prison reform in new ways, without relying solely
on litigation. Changing public policy with local
grassroots efforts is likely to be an effective route
in eliminating this discrimination."

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

District Court Orders Improvements at Wisconsin's Supermax
Remedying some ofthe country's most
deplorable prison conditions, U.S. District Court
Judge Barbara Crabb approved a settlement
agreement in March between the Wisconsin
Department of Corrections and prisoners
incarcerated at the Supermax Correctional
Institution in Boscobel, Wisconsin.
Prisoners at the facility in Boscobel are
held in solitary confinement for 23 hours a day for
up to a year or more. Prior to the agreement,
prisoners lived in cells where lights burn 24 hours
a day, mentally ill prisoners suffered from
inadequate mental health care and abusive
treatment by corrections staff, visits from family
members were limited to viewing faces on fuzzy
television screens, and calls to loved ones were
restricted to a few minutes a month.
David C. Fathi, National Prison Project
staff attorney, said, "case after case proves that
supermax confinement is the most inhumane type
of confinement in the United States. This
agreement limits the amount of damage this prison
can do to those warehoused within its walls, but
the real victory will not occur until supermax
facilities are abandoned altogether."
An independent monitor will oversee the
improvements in conditions at the supermax
facility for two years and ensure that the state
stands by the agreement. In addition, the state has
agreed to ban the confinement of seriously
mentally ill prisoners at the prison. Evidence has
shown that isolated conditions, like those found at
the supermax, exacerbate the mental health
problems of prisoners. In October of2001, Judge
Crabb ordered seven mentally ill prisoners
removed from the supermax after plaintiffs'
psychiatric expert, Dr. Terry Kupers, evaluated the
prisoners' mental health and advised their
immediate removal.
Prisoners continuing to be held at the
supermax will receive additional out-of-cell
activity, including additional time for exercise
with improved recreational facilities and more

educational and vocational programming. Cell
temperatures will be regulated. Nocturnal lighting
will be reduced by 60 percent and the Department
of Corrections will install clocks in all cells. Faceto-face non-contact visits will be permitted for
certain prisoner classifications and phone calls to
family members will increase up to five 15-minute
calls per month.
Among the most important changes at the
supermax are improved dental and medical care
and a significant reduction in the use of restraints
and electronic control devices. Furthermore, the
supermax facility will no longer be called a
"Supermax" and prisoners may not be referred to
as the "worst ofthe worst."
"The torturous conditions that existed at
this prison and exist at supermax facilities around
the nation treat prisoners worse than caged
animals," Fathi added. "Their prevalence should
alarm all Americans because these facilities
violate the Constitution and are cruel and
inhumane."
The lawsuit, Jones' EI v. Litscher, was
filed as a class action in June 2001 in U.S. District
Court for the Western District of Wisconsin. The
prisoners are represented by a team of lawyers led
by Attorney Ed Garvey of Garvey & Stoddard in
Madison, Wisconsin. Other team members include
Fathi and Micabil Diaz, legal director of the
Wisconsin ACLU; Howard Eisenberg, Dean of
Marquette University Law School, Milwaukee;
Glenn Stoddard and Pamela McGillivray, also of
Garvey & Stoddard, and Attorney Robin Shellow
of the Shellow Group in Milwaukee.

Correction:
The article, What's Wrong with the ACA?,
which appeared in the Summer/Fa1l2001 edition of the
NPP Journal incorrectly indicated that Harold Clarke,
Director of Nebraska's Department of Correctional
Services, oversaw an ACA team that recommended
accreditation of the Suffolk County Jail. Mr. Clarke
was chosen to lead a second review of the facility but
did not conduct it.

9

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

CASE LAW REpORT: HIGHLIGHTS OF MOST IMPORTANT PRISON CASES
By John Boston
Director, Prisoner Right$ Project ofNY Legal Aid Society

u.s. Court of Appeals Cases
Federal Officials and Prisons/Transfers
U.S. v. Serafini, 233 F.3d 758 (3d Cir.
2000). At 778 n. 23: "... [A] district court has
no power to dictate or impose any place of
confinement for the imprisonment portion of the
sentence. Rather, the power to determine the
location of imprisonment rests with the Bureau of
Prisons."
Federal Officials and PrisonslMedical Care
Clark v. Hedrick, 233 F.3d 1093 (8th Cir.
2000). The plaintiff complained that the Federal
Bureau of Prisons refused him an autologous
bone marrow transplant. The court affirms the
district court's dismissal because during the
pendency of the appeal the plaintiff was permitted
to take the first steps toward a transplant,
permitting it to be done quickly when his
condition becomes acute. The court notes
concerns that the defendants will not perform the
transplant at public expense, but it has to decide
on present facts, which show no Eighth
Amendment violation.
Grievances and Complaints about Prison/Pro
Se Litigation
Johnson v. Stovall, 233 F.3d 486 (7th Cir.
2000). The plaintiff complained that a nurse filed
false disciplinary reports and injury reports
against him in retaliation for his filing a grievance
against her and complaining about other members
of the medical staff.
The district court abused its discretion in
dismissing as frivolous based on its view that the
disciplinary reports portrayed the plaintiff as "a
major troublemaker" capable of threats and
dangerous actions. It erroneously resolved
10

genuine issues of fact.

AIDS/Class Actions--Conduct of
Litigation/Intervention/Appeal
Gates v. Cook, 234 F.3d 221 (5th Cir.
2000). At the direction of the Fifth Circuit, the
district court appointed counsel in a class action
challenge by HIV positive prisoners. Counsel did
nothing for two years, then entered a consent
decree that required no substantial change in any
of the pro se plaintiffs' concerns. The court
required no formal notice to the class. Class
members complained thereafter that class counsel
did not act on their complaints. The ACLU
National Prison Project then moved to intervene,
seeking a preliminary injunction alleging
deficient medical care. The preliminary
injunction was granted.
Proposed intervenors moved for
substitution of counsel, supported by a petition
signed by 100% of the HIV-positive prisoners at
Parchman. The district court denied the motion
and forbade the National Prison Project from
contacting class members. No-contact orders in
class actions infringe on rights of speech,
association, and access to counsel of choice.
They must be based on a clear record and specific
findings and the order should be narrowly drawn.
The order here meets none of these standards.
Denial ofthe motion for substitute counsel was
an abuse of discretion.
Use of Force--Restraints
DeLeon v. Strack, 234 F.3d 84 (2d Cir.
2000). Handcuffing a prisoner during trial did
not deny due process because the trial judge did
not improperly delegate the decision to restrain to
corrections officials.
PLRA--Screening and Dismissal

THE NATIONAL PRISON PROJECT JOURNAL

Plunkv. Givens, 234 F.3d 1128 (10th Cir.
2000). The PLRA screening provision of 28
U.S.C. § 1915A applies to all prisoner
complaints, including fee paid ones. There is no
right to a hearing before dismissal.
Procedural Due Process--PropertylRipeness
Washleftke v. Winston, 234 F.3d 179 (4th
Cir. 2000). The plaintiff complained that prison
officials applied the interest from his prison
account for the general benefit of prisoners. The
relevant statutes create only a limited property
right, and prisoners do not have a property
interest in it.
Disabled/Summary Judgment
Beckford v. Portuondo, 234 F.3d 128 (2d
Cir. 2000). The disabled plaintiff alleged
subjection to inhumane prison conditions,
excessive force, denial of adequate medical care,
denial of drinking water for more than a week,
failing to respond to an incident in which an
inmate/porter poured bleach into his cell and
sealed it, removing his bedding and clothing,
denying him outdoor recreation for six months,
and denial of mental health programs. The
district court said that the claims "are legally
deficient" and granted summary judgment to
defendants. The appeals court says it isn't
obvious why the allegations don't support a
triable issue of material fact.
Deference/Administrative Segregation--High
Security/Class Actions--Effect of Judgments
Goffv. Harper, 235 F.3d 410 (8th Cir.
2000). In a challenge to conditions in "long-term
lockup," the district court found a constitutional
violation and required a remedial plan. The
district court "applied the appropriate standards
for determining if the conditions at ISP were
unconstitutional, but failed to take the analysis
one step further and balance the liberty interests
ofthe inmates at ISP with the State's penological
interests." (414) The court therefore remands for
a determination under the Turner standards and

Winter/Spring 2002
expresses hope that the parties will negotiate a
settlement.
Searches--Person--Arrestees/Intake
Skurstenis v. Jones, 236 F.3d 678 (11th
Cir.2000). The female plaintiff was arrested for
drunk driving and was subjected to a strip search
requiring her to squat and cough. Later, shortly
before she was released, she was told by a male
employee of the medical provider to drop her
pants so he could check her for pubic lice, which
he did by running his fingers through her pubic
hair. The district court termed this "the
inspection to prevent lice from escaping from the
jail" and held it clearly unreasonable.
Defendants' policy required that each
inmate be strip searched before being placed in a
cell or detention room. This policy, which does
not require any reasonable suspicion, does not
comport with the requirements of the Fourth
Amendment. However, since the plaintiff had a
handgun in her possession on arrest, there was
reasonable suspicion to support the strip search.
The search was conducted in a reasonable
manner: in a bathroom by a same sex deputy with
no body cavity search. The later search for lice
did not violate the Fourth Amendment, since the
male employee who performed it was a member
of the medical staff, it was done privately in the
infirmary, and it was done at the earliest
opportunity (even though, coincidentally, that was
just before release).
False Imprisonment
Scull v. New Mexico, 236 F.3d 588 (lOth
Cir. 2000). The plaintiff obtained an order stating
that he should be released from the Taos County
Adult Detention Center; however, by then he was
at the Bernalillo County Detention Center.
Officials at the latter were entitled to qualified
immunity for not releasing him. The defendants
were not obligated by Constitution or statute to
investigate to find out ifthat order required his
release from the second facility.
Medical Care--Standards of Liability-11

THE NATIONAL PRISON PROJECT JOURNAL

Deliberate Indifference; Serious Medical
Needs/Medication/State, Local and
Professional StandardslUnsentenced Prisoners
and Convicts Held in Jails
Garvin v. Armstrong, 236 F.3d 896 (7th
Cir.2001). The plaintiff was deprived of his
asthma inhaler when he was jailed, supposedly
pursuant to state standards stating that "all
medications must be secured and accessible only
to designated staff." Inhalers are to be provided
within 4 minutes oftheir requesting them.
However, the plaintiff complained that even after
he was transferred to the infirmary it took up to
45 minutes to get it.
The medical director cannot be held liable
for delays of subordinate personnel. Nor can he
be found deliberately indifferent, since he moved
the plaintiffto the infirmary when he complained
and prescribed additional medication use. The
policy of keeping inhalers, like other medications,
in secure locations did not constitute deliberate
indifference under the facts. The plaintiff, a state
prisoner held in a county jail for proceedings on a
new charge, was not entitled to the legal
standards applicable to pre-trial detainees.
False Imprisonment/State Officials and
Agencies/Parties Defendant
Streit v. County ofLos Angeles, 236 F.3d
352 (9th Cir. 2001). The plaintiffs challenged
"overdetention" resulting from a policy of
detaining prisoners entitled to release for an
additional day or two for purposes of checking
records for holds. The Los Angeles County
Sheriffs.Department, in implementing its policy
is not an arm of the state for Eleventh
Amendment purposes. Federal law provides the
rule of decision, and state law is relevant only
insofar as it delineates responsibility for the
governmental function at issue in a particular
case. The Los Angeles County Sheriffs
Department is also a separately suable entity
under state law.
Punitive SegregationlExercise and
12

Winter/Spring 2002

Recreation/Procedural Due Process-Disciplinary Proceedings/Qualified
Immunity/Damages--Punitive/Cruel and
Unusual Punishment
Pearson v. Ramos, 237 F.3d 881 (7th Cir.
2001). The plaintiff, a punitive segregation
prisoner, received four consecutive 90-day
denials of yard privileges.
This court has previously upheld a finding that
. the Eighth Amendment requires prisoners
segregated for 90 days or more to receive five
hours of out-of-cell exercise a week. But these
offenses (assault on officer, setting a fire, spitting
in a guard's face, throwing a broom and "bodily
fluids" on a staff member) are serious. Even
cumulatively, the four 90-day sentences are not
cruel and unusual, since the offenses "marked the
plaintiff as violent and incorrigible." Denying
recreation is a reasonable way to protect staff and
other prisoners from his violent propensities. The
defendant, though entitled to appeal on qualified
immunity grounds before trial, did not waive the
issue by waiting until after trial.
Searches--Person--Arrestees/Qualified
Immunity
Amaechi v. West, 237 F.3d 356 (4th Cir.
2001). The plaintiff was arrested on
misdemeanor noise charges and subjected to a
search that amounted to a pat frisk inside her
dress, under which she was wearing nothing, in
which the officer allegedly swiped his hand
across her groin area, at which time the tip of his
finger slightly penetrated her genitals, on the
street outside the police car in view of her family
and the neighbors.
The court applies the Bell v. Wolfish
balancing test. This search was highly intrusive
for no particular justification and violated the
plaintiffs clearly established rights.
Procedural Due Process--Administrative
Segregation/Group Activities/Summary
Judgment
Taylor v. Rodrigu~z, 238 F.3d 188 (2d

Winter/Spring 2002

THE NATIONAL PRISON PROJECT JOURNAL

Cir.2001). The plaintiff was placed indefinitely
in "close custody" after being found to be a
member of a "security risk group" and a safety
threat. To move from Phase I to Phase n, it is
necessary to sign a "Letter of Intention" to sever
ties with all security risk groups. The plaintiff
refused to do this.
Hewitt v. Helms requires "some notice" of
the basis for segregation. Under this standard, a
notice that referred to "past admission to outside
law enforcement about involvement with [the]
Latin Kings," "recent tension in B-Unit involving
gang activity," and "statements by independent
confidential informants" was too vague. Specific
facts about current involvement are especially
important here because the hearing officer
acknowledged Taylor's insistence that he had
renounced his membership. None of this means
that prison officials should have divulged the
identify of confidential informants or that they
should have testified as witnesses.
The district court also erred in concluding
that the decision was supported by "some
evidence," since the decision was based on
confidential information not detailed in the
finding and not disclosed to the district court.
Publications/Deference
Prison Legal News v. Cook, 238 F.3d
1145 (9th Cir. 2001). The defendants prohibited
the receipt of "standard rate" ("bulk") mail, one
category of which is mail from non-profit
organizations. At 1149-50: "We hold that tying
the receipt of subscription non-profit newsletters
to postal seryice rate classifications is not
rationally related to any legitimate penological
interest put forth by the Department." If plaintiffs
don't refute a common sense connection between
policy and challenged practice, prison officials
need only show that they reasonably could have
thought it would advance legitimate penological
interests. If plaintiffs do refute it, prison officials
must "demonstrate that the relationship is not to
'remote as to render the policy arbitrary or
irrational." The defendants are entitled to

qualified immunity.
Crowding/PLRA--Termination of Judgments
and Prisoner Release Orders/Standing
Castillo v. Cameron County, Tex., 238
F.3d 339 (5th Cir. 2001). The district court
denied termination of a class action judgment
involving a county jail and including the state as
third-party defendants. Though it dismissed the
state as a defendant, the state remained concerned
that the County was enjoined not to accept certain
state prisoners. The district court made
conclusory factual findings that without the relief
the jail would be overcrowded and conditions
would be unconstitutional.
The State has standing to pursue this
appeal. An order requiring removal of state-ready
felons from the jail if necessary to control the jail
population is a prisoner release order. The court
(at 354) adopts the Cason v. Seckinger holding
requiring particularized findings, on a provisionby-provision basis, showing that the provisions
meet PLRA standards.
Hazardous Conditions and
Substances/Mootness/PLRA--Mental or
Emotional Injury
Herman v. Holiday, 238 F.3d 660 (5th
Cir.2001). Plaintiff alleged that the jail he was
held in was contaminated with asbestos to which
inmates were routinely exposed. His allegations
present genuine issues of fact. Allegations of an
increased risk of developing an asbestos related
injury in the future are not sufficiently separate
from a mental or emotional injury to be
actionable under PLRA.
Medical Care--Standards of Liability
Napier v. Madison County, Kentucky, 238
F.3d 739 (6th Cir. 2001). The plaintiff suffered
from complete kidney failure and was supposed
to receive dialysis three times a week,but told jail
intake personnel that missing appointinents was
"no big deal" and he had "missed them before."
The claim failed. A prisoner who complains of

13

THE NATIONAL PRISON PROJECT JOURNAL

delayed medical care must "place verifying
medical evidence in the record to establish the
detrimental effect of the delay in medical
treatment to succeed."
PLRA--Termination of Judgments
Laaman v. Warden, New Hampshire State
Prison, 238 F.3d 14 (1st Cir. 2001). Plaintiffs
moved for contempt. The motion was never
fonnally decided. In 1999, a new judge ordered
plaintiffs to show cause why the decree should
not be tenninated and the contempt motion
declared moot, and then tenninated the judgment.
In certain circumstances it would be an abuse of
that discretion to deny plaintiffs an evidentiary
hearing once requested. The district court must
exercise that discretion based on its familiarity
with the record and with any "current and
ongoing" violations that might not appear on the
record, while considering the PLRA's bias toward
the tennination of the consent decree. In this case
the failure to hold a hearing was an abuse of
discretion. The court may tenninate if the
evidentiary hearing shows few or limited
violations that could more appropriately be
rendered by tenninating the present case and
allowing an individual to press a new suit in
which a fresh decree could be addressed directly
to these issues. But the district court needs to
hear the facts first and the burden remains on the
plaintiffs to show that such violations persist.
Medical Care/Pre-Trial Detainees/State Law
Immunities/Municipalities
Young v. City ofMount Ranier, 238 F.3d
567 (4th Cir. 2001). The plaintiff was detained
by police for emergency psychiatric evaluation,
used pepper spray and placed him restrained and
face down in the police car; he was discovered in
the emergency room, dead. He had PCP in his
system.
Under the due process clause, conduct
must "shock the conscience" to be actionable.
Failure to protect from a known risk falls into the
"middle range" of culpability, governed by the
14

Winter/Spring 2002
deliberate indifference standard. It amounts to an
Estelle v. Gamble deliberate indifference claim.
Based on the allegation that the
combination of pepper spray and PCP is
especially dangerous, no one can be found
deliberately indifferent in this case, since they
didn't know he was on PCP until later.
Grievances and Complaints about
Prison/PLRA--Mental or Emotional Injury
Dawes v. Walker, 239 F.3d 489 (2d Cir.
2001). The plaintiff complained that an officer
tried to get another inmate to attack him after he
beat a disciplinary ticket, and when he
complained about that a prison investigator
accused him of being a "rat" in front of other
prisoners. One of the plaintiffs claims is
dismissed for failure to set forth a time frame
showing that the protected activity preceded the
alleged retaliation and failure to set out the nature
of the disciplinary order. The rest are dismissed·
because labeling a prisoner a rat is not an adverse
action supporting a retaliation claim.
Pre-Trial Detainees/Searches--Person-Arrestees
Roberts v. Rhode Island, 239 F.3d 107
(1st Cir. 2001). In Rhode Island, pre-trial
detainees and convicts are held in the same
institutions. The plaintiff was arrested for not
showing up in court and was subjected to a strip
and visual body cavity search upon admission.
The state claimed that strip searching minor
offenders was necessary because they get thrown
in with the felons. The court doesn't buy it.
Religion--Practices/Equal
Protection/Classification--Race/Deference
Morrison v. Garraghty, 239 F.3d 648 (4th
Cir.2001). The defendants refused to let the
plaintiff have Native American religious items
because he is not of Native American heritage.
Prison equal protection claims aregoverned by
the Turner reasonableness standard even in cases
like racial discrimination claims where a higher

THE NATIONAL PRISON PROJECT JOURNAL

standard of scrutiny would obtain outside of
prison.
The court rejects the notion that sincerity
of adherence to Native American religion can be
determined from race or heritage. Courts must
consider whether the religious "occupies a place
in the lives of its members 'parallel to that filled
by the orthodox belief in God'" in other religions.
Defendants' claim, that the items sought
by the plaintiff are dangerous, fails since they
allow some inmates to have them. Defendants
failed to substantiate the claim that the policy
promotes security by appeasing Native Americans
who are offended by whites practicing their faith.

Suicide Prevention/Mental Health Care
Domino v. Texas Dept. ofCriminal
Justice, 239 F.3d 752 (5th Cir. 2001). The
decedent had a long history of psychological
problems including hospitalization and suicide
attempts. He had been found in his cell with a
homemade noose 17 months earlier and had a
diagnosis of recurrent major depression and then
of bipolar disorder. He had been released from
the mental health caseload because he was
noncompliant with medication and refused blood
work. He later asked to see mental health staff
and expressed apprehension to the defendant
psychiatrist apprehension saying "I can be
suicidal." The defendant thought that this was
"an attempt to achieve 'secondary gain'." The
decedent began banging his head on the table and
the psychiatrist had him returned to his cell. Two
and a half hours later he hanged himself. The
record does not show deliberate indifference.
Mental Health Care/Release of Prisoners
Government ofthe Virgin Islands v.
Martinez, 239 F.3d 293 (3d Cir. 2001). In
revoking the defendant's probation, the court said
that he should receive psychiatric counseling, and
also said it realized that local facilities for that
purpose were nonexistent. The defendant now
argues that his probation should therefore have
been continued. If his needs were not met his

Winter/Spring 2002
remedies would be in a civil action seeking the
treatment."

PLRA--Three Strikes Provision
Abdul-Akbar v. McKelvie, 239 F.3d 307
(3d Cir. 2001). The court overrules the holding
of Gibbs v. Roman that the "imminent danger of
serious physical injury" exception to the three
strikes provision is assessed as of the time ofthe
alleged incident, not the time the complaint is
filed. The statute doesn't deny equal protection.
Use of Force/Personal Involvement and
Supervisory Liability/EmergencY/Qualified
Immunity
Jeffers v. Gomez, 240 F.3d 845 (9th Cir.
2001). The plaintiff was shot in the neck during a
disturbance in the yard, apparently accidentally,
while he was being attacked by another prisoner.
The defendant officers are entitled to qualified
immunity for the shooting in the absence of
evidence that they acted maliciously or
sadistically. A defendant who let prisoners out
into the yard even after hearing that Hispanic
inmates were going to attack "one of their own"
could not be found deliberately indifferent. The
Director was entitled to qualified immunity from
a claim based on the use of force policy, which
said that firearms shall only be used when
reasonably necessary to prevent or stop escapes,
the taking of hostages, or other immediate danger.
The district court erred in holding that the
excessive number of shootings supported his
liability. The warden was entitled to qualified
immunity with respect to the claim that he created
an unsafe and potentially volatile situation by
housing inmates of various races and gang
affiliation together. Those policies antedated the
warden.
Suicide Prevention/Pendent and Supplemental
Claims; State Law in Federal Courts
Brown v. Harris, 240 F.3d 383 (4th Cir.
2001). The decedent committed suicide injail
and brought state tort and federal constitutional
15

THE NATIONAL PRISON PROJECT JOURNAL

claims. Even if a jail supervisor knew about the
decedent's suicidal tendencies, he could not be
found deliberately indifferent where he put the
decedent on "medical watch" with constant video
surveillance of his cell. Even if the probation
officer who issued a warrant for the decedent's
arrest failed to inform jail personnel about his
suicidal tendencies, she could not be held
deliberately indifferent because she took steps to
reduce the risk.

Use of Force--RestraintslNegligence,
Deliberate Indifference and Intent
Hope v. Pelzer, 240 F.3d 975 (11 th Cir.
2001). The plaintiff was handcuffed to the
Alabama "hitching post" twice, once for seven
hours after an altercation with a guard, without
regular water or bathroom breaks. The court
holds this treatment unconstitutional.
At 980-81:
. . . [W]e find that the policy and
practice of cuffing an inmate to a
hitching post or similar stationary
object for a period oftime that
surpasses that necessary to quell a
threat or restore order is a
violation of the Eighth
Amendment. It is our intention
that this holding serve as a brightline rule.
The defendant officers are entitled to
qualified immunity because prior law was not
clear enough. (The Supreme Court is reviewing
the qualified immunity holding.)
Medical Care-Standards of Liability-Deliberate Indifference and Serious Medical
Needs/Sanitation/PLRA--Screening and
Dismissal and Mental or Emotional Injury
McBride v. Deer, 240 F.3d 1287 (10th Cir.
2001). The plaintiff alleged that he complained
of pain in his leg and received treatment, but the
doctor refused to see him again for almost two
months, and the plaintiff no longer has full
function of his leg. Contrary to the d,istrict court,
16

Winter/Spring 2002
the plaintiff alleged "substantial harm" in the
form of "a lifelong handicap or a permanent loss."
Allegations that the plaintiff was required to
live in a feces-covered cell for three days stated a
claim. If cleaning materials had been available to
him, he would not have a claim.

PLRA--Attorneys' Fees and Costs
Singleton v. Smith, 241 F.3d 534 (6th Cir.
2001). Plaintiff went to trial and lost; defendants
sought costs. The assessment of costs is not
unconstitutional. There is a presumption for
taxation of full costs, but partial remittance of
costs is a matter of discretion.
At 541: Before the PLRA, an unsuccessful
indigent litigant could subsequently challenge an
award of costs based on proof of inability to pay.
Costs in the case "made necessary and incurred"
after the PLRA are governed by the PLRA (54344).
PLRA--In Forma Pauperis Provisions--Filing
Fees/PLRA--Attorneys' Fees and Costs
Whitfield v. Scully, 241 F.3d 264 (2d Cir.
2001). The plaintiff was assessed costs. The
district court did not abuse its discretion in
refusing to reduce or eliminate the award based
on his limited means. The provisions for
collection of filing fees and costs call for
sequential, not simultaneous, collection--i.e., 20%
of monthly income at a time, not 20% times the
number of fees owed. However, the fees and costs
sections are separate and can be collected
separately, permitting a total assessment of 40%.
PLRA--In Forma Pauperis Provisions--Filing
Fees
Goins v. Decaro, 241 F.3d 260 (2d Cir. 2001).
A prisoner who withdraws his appeal may not get
a refund of partial fee payments or a cancellation
of the obligation to continue paying. '
Religion/Grievances and Complaints about
Prison/Deference
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001).

THE NATIONAL PRISON PROJECT JOURNAL

The plaintiff alleged that he was required to
participate in Alcoholics Anonymous and
Narcotics Anonymous in violation of his religious
rights as a condition of recommending him for
parole, and did not offer him a non-religious
alternative. He alleged that he was retaliated
against for asserting his rights.
A prisoner litigating a retaliation claim need
not prove that he had an independent liberty
interest in the privileges he was denied. As a
threshold matter, a prisoner-plaintiff in a
retaliation case must prove that the conduct which
led to the alleged retaliation was constitutionally
protected. Next, a prisoner litigating a retaliation
claim must show that he suffered some "adverse
action" at the hands of the prison officials that
"was sufficient to deter a person of ordinary
firmness from exercising his [constitutional]
rights."
Once a prisoner demonstrates that his
exercise of a constitutional right was a substantial
or motivating factor in the challenged decision,
the prison officials may still prevail by proving
that they would have made the same decision
absent the protected conduct for reasons
reasonably related to a legitimate penological
interest. In this case, the defendants did not
dispute that the conduct at issue was protected.
The court holds that denial of parole, transfer to a
distant location, and a financial penalty amount to
"sufficient evidence of adversity." The district
court should not have granted summary
judgment.

Religion--Practices--Hair, Beards,
Dress/Qualified Immunity/Deference
Flagner v. Wilkinson, 241 F.3d 475 (6th Cir.
2001). The Hasidic Jewish plaintiff challenged a
policy requiring him to cut his beard and
sidelocks. The defendants are entitled to
qualified immunity from damages. The plaintiffs'
claim is governed by Turner. Qualified immunity
does not protect defendants from declaratory or
injunctive relief. This plaintiffpresented
evidence challenging the validity ofthe

Winter/Spring 2002
defendants' asserted penological interests, and the
case is remanded for consideration of the asapplied declaratory and injunctive claim. There is
no evidence that any of the problems defendants
asserted as justifying the policy were ever
associated with thisplaintiff.

Medical Care--Access to Outside
Services/Medical Care--Standards of Liability.,.Serious Medical Needs and Deliberate
Indifference/Medical Care--Staffing-Qualifications of Personnel
Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir.
2001). The plaintiffs finger was accidentally
severed. The prison physician and his assistant
reattached it but it rotted. They declined to send
him to a specialist either before the surgery or
afterward.
Denial of access to "medical personnel
capable of evaluating the need for treatment" can
constitute deliberate indifference. The allegation '
that the doctor performed an operation he was not
qualified for without seeking specialized
assistance stated a deliberate indifference claim.
Federal Officials and PrisonslProtection from
Inmate Assault/Cruel and Unusual
Punishment--Proof of Harm
Benefieldv. McDowall, 241 F.3d 1267 (10th
Cir. 2001). The plaintiff alleged that an officer
labeled him as a snitch to other prisoners in order
to get him attacked, and filed a false report
resulting in his being disciplined. It is clearly
established in the Tenth Circuit that labeling an
inmate a snitch constitutes deliberate indifference
to the prisoner's safety. The fact that the plaintiff
had not yet been assaulted did not defeat his
claim. The government does not rely on the
PLRA mental/emotional injury provision.
Psychological harm is actionable under the Eighth
Amendment.
Medical CarelUse of Force
Chapman v. Keltner, 241 F.3d 842 (7th Cir.
2001). The plaintiff, who had had bowel
17

THE NATIONAL PRISON PROJECT JOURNAL

resection surgery five days previously, was
arrested in the hospital and taken to jail. When
she climbed into the van her incision reopened
and she sustained a hernia. The defendants were
not deliberately indifferent because there is no
evidence that the doctor totally prohibited her
from climbing stairs. Even ifhe had, there is no
evidence that the officers knew of such a
direction.

PLRA--Exhaustion of Administrative
Remedies/Federal Officials and
Prisoners/Religion--Outside
OrganizationsNisiting/Deference/Qualified
Immunity/lnjunctive Relief--Preliminary
Kikumura v. Hurley, 242 F.3d 950 (10th Cir.
2001). The plaintiff, who practices a mixture of
Buddhism and Christianity, was denied pastoral
visits with a Christian minister because he was
registered as a Buddhist.
Defendants argued that plaintiff had failed to
exhaust because he failed to adequately explain
during his administrative appeals his belief in
both the Christian and Buddhist religions. The
appeals adequately revealed his claim.
The district court correctly denied a
preliminary injunction under the Turner standard.
The plaintiffs Religious Freedom Restoration Act
claim was not barred by City ofBoerne_v. Flores
because that decision did not address the statute's
applicability to the federal government. Congress
amended RFRA in the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIP A),
redefining "exercise of religion" to mean "any
exercise Qf religion, whether or not compelled by,
or central to, a system of religious belief." On
remand, the court will have to apply the
"compelling interest" analysis ofRFRA as
amended rather than the reasonable relationship
test of Turner. A violation ofRFRA, like a
constitutional violation, constitutes irreparable
harm for purposes of injunctive jurisprudence.
PLRA--Termination of Judgments/Appeal
Ruiz v. United States, 243 F.3d 941 (5th Cir.
18

Winter/Spring 2002
2001). The termination provisions don't violate
separation ofpowers. There's no due process
violation. A decision to terminate or continue
prospective relief is to be reviewed for abuse of
discretion, except where it involves the
interpretation of § 3626(b), which is reviewed de
novo. The court adopts the "particularized
findings, on a provision-by-provision basis"
requirement of Cason v. Seckinger. Here, the
court "in a conclusory fashion and tracking the
pertinent statutory language, merely stated that
the relief contained in that judgment meets the
standards outlined in § 3626(b)(2)." (951)
However, outright reversal is not warranted. The
constitutional findings made by the district court
were based on the evidence in the record
concerning the current state ofTCDJ-ID and are
sufficient to permit the court to analyze the
continued necessity of each provision of the 1992
judgment. Therefore it should do so "in light of
its findings of the unconstitutionality of various .
conditions in TDCJ-ID."

Medical Care/Staffing--Training/Qualified
Immunity
Tlamka v. Serrell, 244 F.3d 628 (8th Cir.
2001). The decedent died of a heart attack in the
prison yard. Other prisoners began CPR and
seemed to be getting results, but officers then
made them stop, and he got worse. CPR was not
started until he arrived at an ambulance. Absent
an explanation for this conduct, defendants are
not entitled to summary judgment based on
qualified immunity.
Telephones/Standing/PLRA--Exhaustion of
Administrative Remedies
Arsberry v. Illinois, 244 F.3d 558 (7th Cir.
2001). The plaintiffs challenged a sole-source
contract for prisoner telephone service on the
ground of excessive rates. The plaintiff public
interest law firm lacks standing to challenge the
high rates, since it is reimbursed for the expenses
of the calls by state or federal government. The
plaintiff prisoners are barred from suing by the

THE NATIONAL PRISON PROJECT JOURNAL

PLRA exhaustion provision.
The filed rate doctrine prevents a court from
invalidating or modifying a tariff, but the
remaining plaintiffs (the prisoners' friends and
relatives) are not barred by it because they say
they are challenging the exclusive contracts rather
than the tariffs. The doctrine of primary
jurisdiction is not applicable either. The
telephone rates do not violate the First
Amendment. The plaintiffs have no equal
protection claim because a claim of
discriminatory rates is within the primary
jurisdiction of the telephone regulators. The
plaintiffs have no due process claim. The
plaintiffs have no antitrust claim.

Pre-Trial DetaineeslProtection from Inmate
AssaultlDeference/Classification/Prisoners as
Staff
Mayoral v. Sheahan, 245 F.3d 934 (7th Cir.
2000). The plaintiff, a former Latin King who
was accused of murdering a member of the Latin
Disciples, informed jail staff on intake and said
he needed protection. A little later, the plaintiff
was stabbed and beaten.
Defendants were under no legal duty to
separate inmates by gangs. Evidence that a tier
officer brushed off the plaintiff's request for
protective custody and that she knew that inmates
on the tier were rowdy and intoxicated, and her
testimony that she didn't know anything about
gangs were sufficient to withstand summary
judgment.
Evidence that the sergeant knew that some
inmates were drunk, that he thought the situation
serious enough to lock down the inmates, that
some of them refused to be locked down and that
he told an inmate to "control his guys" could
support a claim of deliberate indifference against
him (940). The shift commander is conclusorily
let off the hook.
PLRA--Termination of Judgments
Harvey v. Schoen, 245 F.3d 718 (8th Cir.
2001). Defendants moved to terminate a 1973

Winter/Spring 2002
decree governing disciplinary proceedings. The
district court did not abuse its discretion in
denying plaintiffs discovery.

Medical Care--Standards of Liability-Deliberate IndifferencelMedical Care--Access
to Medical Personnel/Drug Dependency
TreatmentlRefusal of Treatment/Qualified
Immunity
Pre-Trial Detainees/Personal Involvement and
Supervisory Liability
Thompson v. Upshur County, Texas, 245 F.3d
447 (5th Cir. 2001). The decedent was arrested
for DWI and later he began suffering from
delirium tremens. Jail personnel called for an
ambulance but the decedent signed a refusal of
treatment form. A jailer then arranged to transfer
him to a jail with a detoxification cell. His
condition worsened and he was placed in a strait
jacket after falling and striking his head. He had
a seizure and died. Returning the decedent, who
refused hospitalization, to a jail better equipped to
handle his problem was objectively reasonable.
A sergeant at the second jail was not entitled
to qualified immunity, and was sufficiently
alleged to have been deliberate indifference,
based on allegations that she knew ofthe
decedent's condition and that he was injuring
himself in his cell, but did not arrange for medical
care.
Correspondence/Protection from Inmate
AssaultlPLRA--Screening and Dismissal
Curley v. Perry, 246 F.3d 1278 (lOth Cir.
2001). The complaint is dismissed because the
plaintiff failed to allege facts showing a
substantial risk of harm or that the defendants
were deliberately indifferent.
The court considers sua sponte dismissal
under § 1915(e)(2)(B)(ii) and Rule 12(b)(6), since
the standards are the same. The court is not,
however, dealing with § 1915A, which deals only
with prisoners. Dismissal of a meritless complaint
that cannot be salvaged by amendment comports
with due process and does not infringe the right
19

THE NATIONAL PRISON PROJECT JOURNAL

of access to the courts.

PLRA--In Forma Pauperis Provisions/Access
to Courts/Sanctions
Kolocotronis v. Morgan, 247 F.3d 726 (8th
Cir.2001). A mental hospital inmate committed
pursuant to a finding of not guilty by reason of
insanity is not a prisoner for PLRA purposes.
The district court erred in directing the plaintiff to
file no more cases except through his courtappointed guardian.

PLRA--Exhaustion of Administrative
Remedies/Statutes of Limitations
Miller v. Norris, 247 F.3d 736 (8th Cir.
2001). Plaintiffs complaint was dismissed for
non-exhaustion, then plaintiff (by then transferred
from state to federal custody) filed a motion to
compel the defendants to provide him with
grievance forms, then filed a "motion to reinstate
cause" saying that the failure to provide forms
prevented him from exhausting administrative
remedies. The court construes the motion
liberally as initiating a new civil action on the
date it was filed. The action is timely because
Arkansas has a saving statute providing that a
litigant who files timely and is dismissed has a
year to commence a new action.
Plaintiffs argument that he is not a
"prisoner" for PLRA exhaustion purposes (having
been transferred from the system where the claim
arose to another prison system) is not considered
because itwas not raised below, and the district
court's decision that § 1997e(a) applied precludes
him. However, he may have complied with the
exhaustion requirement. Mr. Miller's allegations
raise an inference that he was prevented from
utilizing the prison's administrative remedies.

PLRA--Exhaustion of Administrative
Remedies
Curry v. Scott, 249 F.3d 493 (6th Cir. 2001).
The plaintiffs have satisfied the exhaustion
requirement. It does not decide what her
exhaustion is an affirmative defense. The Brown
20

Winter/Spring 2002
v. Toombs holding requiring sua sponte dismissal
"appears to remain viable" (501 n.2).
While the preferred practice is for inmates to
complete the grievance process prior to the filing
of an action and to attach to their complaint
documentation of that fact, because the
exhaustion requirement is not jurisdictional,
district courts have some discretion in
determining compliance with the statute. Here,
the district court could find that exhaustion prior
to filing an amended complaint sufficed.

Procedural Due Process--Disciplinary
ProceedingslHeating and Ventilation/Pest
Control
Gaston v. Coughlin, 249 F.3d 156 (2d Cir.
2001). The "some evidence" standard for
disciplinary hearings may be met even where the
only evidence was supplied by a confidential
informant. An independent assessment ofthe
informant's credibility, would not entail more
than some examination of indicia relevant to
credibility rather than wholesale reliance upon a
third party's evaluation of that credibility.
The plaintiff alleged that mice were constantly
entering his cell, that for several days the area in
front of his cell was filled with feces, urine, and
sewage water, and that windows remained broken
and unrepaired for the entire winter, when the
average outside temperature varied from 22 to 40
degrees. Defendants conceded that the
allegations of cold stated a claim.
Defendants argued that the unsanitary
conditions did not violate the Eighth Amendment
because they were "temporary." The court was
unwilling to adopt as a matter of law the principle
that it is not cruel and unusual punishment for
prison officials knowingly to allow an area to
remain filled with sewage and excrement for days
on end. The rodent infestation claim should be
reinstated as well.

Classification--Race/Protection from Inmate
Assault
Robinson v. Prunty, 249 F.3d 862 (9th Cir.

I

THE NATIONAL PRISON PROJECT JOURNAL

2001). An administrative segregation prisoner
alleged that he was attacked by other prisoners as
a result of a policy of racial integration in prison
yards, in the context of intense race-based gang
rivalries (allegedly defendants did segregate the
cells).
The defendants were not entitled to qualified
immunity. The law was clearly established after
Farmer v. Brennan, and accepting plaintiffs
allegations as true, there was a "gladiator-like
scenario, in which prison guards are aware that
placing inmates of different races in the yard at
the same time presents a serious risk of violent
outbreaks."

Winter/Spring 2002

Preliminary
Hawkins v. Comparet-Cassani, 251 F.3d 1230
(9th Cir. 2001). The plaintiff was shocked with a
stun belt in court at his sentencing because he
wouldn't shut up, by order of the judge. The
district court certified a class and enjoined the use
of the stun belt in court entirely.
The plaintiff had standing to seek injunctive
relief because there was a likelihood of
recurrence. Unlike the chokehold in Lyons, use
ofthe belt stems from official written policy.
Also, though plaintiff must establish his own
standing, "it is not irrelevant that he sought to
represent broader interests than his own." The
court erred in certifying the plaintiff, a convicted
prisoner, to represent a class including nonconvicted persons.
The injunction was supported by the Sixth
Amendment. The Eighth Amendment claim
would offer no greater support for it. The district
court credibly found that the belt had a chilling
effect, deterring defendants from participating in
their own defense. The district court should have
restricted its injunction to prohibiting the stun
belt's use to prevent disruption, leaving
undisturbed its use to maintain security.

False Imprisonment/Municipalities/Mental
Health Care/Theories--Due
Process/Evidentiary Questions/Procedural,
Jurisdictional and Litigation
Questions/Disabled
Lee v. City ofLos Angeles, 250 F.3d 668 (9th
Cir.2001). This is the case of the mentally
disabled plaintiff who was arrested in California,
mixed up with someone else, and sent to New
York, where he served two years in prison before
anyone listened to him.
Allegations that the City knew that arrestees
were often misidentified but did not properly train
and supervise their employees and implement and
maintain proper procedures which would check
the identities of people being extradited, that the
need for such training is obvious, and that the
City ignored it, sufficiently stated a claim of
municipal liability.
Mistaken incarceration denies due process
"after the lapse of a certain amount of time" or
after "it was or should have been known that the
detainee was entitled to release." The fact that he
got an extradition hearing after one day in custody
did not defeat his claim by breaking the causal
chain in light of his allegations that defendants
acted with reckless indifference.

Discovery/Telephones/Federal Officials and
Prisons
Smith v. U.S. Dept. ofJustice, 251 F.3d 1047
(D.C.Cir.2001). The plaintiff alleged that he
received inadequate assistance of counsel and his
attorney admitted it in conversations recorded by
the Bureau of Prisons. The government alleged
they didn't have to produce the conversations
because they were exempted from FOIA.
However, the recordings were not the product of
an "interception" governed by Title Ill, which
contains an exception for devices used "by an
investigative or law enforcement officer in the
ordinary conduct of his duties;" so disclosure
under FOIA was appropriate.

Use of Force/Standing/Class Actions-Certification of Classes/Injunctive Relief--

Searches--Person--Arrestees
Wilson v. Jones, 251 F.3d 1340 (11th Cir.
21

THE NATIONAL PRISON PROJECT JOURNAL

2001). The plaintiff was strip searched after
being arrested for DWI. The search, pursuant to a
policy requiring strip searches on intake without
reasonable suspicion, violated the Fourth
Amendment. However, the Sheriffwas entitled
to qualified immunity.
Procedural, Jurisdictional and Litigation
Questions
Porchia v. Norris, 251 F.3d 1196 (8th Cir.
2001). A prisoner who did not establish that
there was a prison mailbox or that he used it, and
did not provide an affidavit or notarized statement
recounting the precise date he left his notice of
appeal with prison authorities, is not entitled to
the benefit of the prison mailbox rule.
Dental Care/Medication/Procedural Due
Process--Property/Medical Care--Standards of
Liability--Serious Medical Needs; Deliberate
Indifference/Pleading
Wynn v. Southward, 251 F.3d 588 (7th Cir.
2001). The plaintiff alleged that he was denied
his dentures and his heart medication when he
was placed in the Isolation Detention Unit. He
claimed pain, injury,· inability to chew, and other
consequences from deprivation of the dentures.
Dental care is "one of the most important medical
needs of inmates." The plaintiff's allegations that
without his dentures he could not chew and
suffered resulting problems suffice at the pleading
stage.
Federal Officials and
Prisons/.Transfers/Habeas Corpus
Boyce v. Ashcroft, 251 F.3d 911 (10th Cir.
2001). 28 U.S.C. § 2241 is not the right
procedure to challenge the constitutionality of
plaintiff's transfer. Prisoners seeking to challenge
placement within a given jurisdictional entity
must use § 1983 or Bivens.
PLRA--Mental or Emotional InjurylReligion-Practices--DietIDamages--Intangible Injuries,
Punitive/Evidentiary Questions
22

Winter/Spring 2002
Searles v. van Bebber, 251 F.3d 869 (10th Cir.
2001). The plaintiffwas awarded compensatory
damages and punitive damages after being denied
a kosher diet. The court holds that the PLRA
mental/emotional injury provision applies to first
amendment claims. The PLRA does not restrict
punitive damages. The evidence was sufficient to
support punitive damages under the reckless
disregard standard.
Procedural Due Process--Disciplinary
Proceedings
Broussard v. Johnson, 253 F.3d 874 (5th Cir.
2001). The petitioner was convicted of
possessing contraband, bolt cutters, intended for
use in an escape, based on information from a
confidential informant. The investigating officer
who testified had not interviewed the informant
personally, just relied on what the warden had
said about him. The hearing officer did not allow
the inmates to question the hearing officer about
the informant's reliability, nor did the hearing
officer receive evidence in camera on the subject.
The disciplinary board failed to independently
assess the reliability of the informant's tip based
on some underlying factual information before it
can consider the evidence, although that
requirement could have been met by additional
documentation submitted outside the hearing.
The staffs finding of the bolt cutters does not
support the decision because, when one ignores
the informant's tip, the only evidence is the bolt
cutters' presence in an area to which about 100
inmates had access.
Medical Care--Denial of Ordered
Care/Medical Care--Standards of Liability-Deliberate Indifference/Waiver of
Rights/Summary Judgment
Beckv. Skon, 253 F.3d 330 (8th Cir. 2001).
The plaintiff's neurological condition led to a
medical recommendation that he be placed closer
to the cafeteria and infirmary. Because he didn't
meet the security criteria for the unit closest to the
cafeteria and did not have an acute or terminal

THE NATIONAL PRISON PROJECT JOURNAL

illness necessitating placement in a medical unit,
prison officials offered to allow him to use a
wheelchair to get to meals or have meals
delivered to him. The plaintiff also had a hernia.
Surgery was recommended but he refused to sign
the forms. He also refused the recommendation
ofa truss.
Defendants were not deliberately indifferent.
The plaintiff argued that the consent forms he was
required to sign conditioned the procedure on all
release of future liability. The consent forms
weren't in the record, and the defendants denied
the allegation only in a motion to supplement the
record. At 334: "... [I]f prison officials indeed
conditioned a necessary medical procedure on
Beck's release of liability, their action could
establish a deliberate indifference to Beck's
Eighth Amendment rights to basic medical care."

DisabledlMootness/State Officials and
Agencies
Randolph v. Rodgers, 253 F.3d 342 (8th Cir.
2001). The deaf plaintiff alleged that defendants
failed to provide a sign language interpreter
during disciplinary proceedings, medical
encounters, and on unspecified other occasions.
Injunctive claims against officials at one prison,
but not against the Commissioner were mooted
when the plaintiff was transferred. The plaintiff
may seek injunctive relief against the
Commissioner in her individual capacity. If the
state waived its Eleventh Amendment immunity
to receive federal funds and if the waiver is valid
under the Spending Clause, the plaintiff may seek
damages under the Rehabilitation Act.
Statutes of LimitationslDenial of Ordered
Care
Heard v. Sheahan, 253 F.3d 316 (7th Cir.
2001). The plaintiff developed a ruptured hernia
and a doctor recommended surgery, which jail
officials refused to act on. The district court
dismissed on limitations grounds, holding that the
limitations period ran from the time the prisoner
knew he had a problem. That would be correct if

Winter/Spring 2002
the suit were for medical malpractice, but it is
not; it is about medical neglect.
This refusal continued for so long as the
defendants had the power to do something
about his condition, which is to say until he
left the jail.
. .. [A]ll the pain after the date of onset, as it
were, of deliberate indifference was fair game
for the plaintiffs suit, by virtue of the doctrine
of "continuing violation" ....
The court then distinguishes the situation it
describes from cases in which repeated events
give rise to discrete injuries, as in suits for lost
wages.

PLRA--Exhaustion of Administrative
RemedieslReligion--Practices--Beards, Hair,
Dress
Jackson v. District ofColumbia, 254 F.3d 262
(D.C.Cir.2001). Rastafarians and Sunni Muslims
challenged a ban on beards and long hair under
the First Amendment and RFRA.
The PLRA exhaustion requirement applies to
RFRA. The defendants did not waive the
exhaustion issue. There is no irreparable injury
exception to the exhaustion requirement because
it is unnecessary. The Supreme Court has long
recognized that federal courts possess a
"traditional power to issue injunctions to preserve
the status quo while administrative proceedings
are in progress and prevent impairment of the
effective exercise of appellate jurisdiction."
Remedies must be exhausted before suit is filed;
exhaustion before trial is not good enough.
What these seemingly contradictory holdings
probably mean is that a plaintiff can bring an
action to maintain the status quo pending
exhaustion that is completely separate from the
suit about the merits of the claim, which must be
filed after exhaustion. Plaintiff Jackson said that
he exhausted his remedies because he filed an
informal complaint but never received a response,
and you have to have a response to file a formal
grievance. However, prison officials have 15
days to respond to an informal complaint, and he
23

THE NATIONAL PRISON PROJECT JOURNAL

didn't wait that long before filing suit.
Each individual plaintiff in a class-action suit
need not have pursued the available
administrative remedies 'if at least one member of
the plaintiff class has met the filing prerequisite. '
The complaint should have been dismissed
without prejudice pending completion of
grievance procedures.

Federal Officials and Agencies/PLRA-Exhaustion of Administrative
Remedies/Administrative Segregation--High
Security
Youse/v. Reno, 254 F.3d 1214 (lOth Cir.
2001). The plaintiff, convicted of participation in
the 1993 World Trade Center bombing,
challenged his placement in administrative
segregation in an isolated soundproof cell,
supplemented by "Special Administrative
Measures" ("SAMs") restricting his mail,
telephone access, media access, visitors, religious
materials, and recreation and exercise time. The
plaintiffs claims are subject to the exhaustion
requirement. The plaintiffs argument that the
Bureau of Prisons administrative remedy
procedure can't deal with SAMs because they are
ordered by the Attorney General is rejected.
The BOP is authorized to rule on challenges
to specific SAMs. Thus, despite the BOP's
inability to address challenges to the SAM's
overall validity, Mr. Yousefwas required to
exhaust all of his administrative remedies before
seeking judicial consideration of his claims.

Winter/Spring 2002
to transfer plaintiff for surgery, but he could only
recommend a transfer and could not order it or
have the surgery performed locally.
The questions whether the clinical director
could be held liable and whether the plaintiff
submitted sufficient evidence of actual harm for
the delay are the kinds of evidence sufficiency
questions not reviewable on a qualified immunity
appeal.

Homosexuals and Transsexuals/Protection
from Inmate Assault/Personal Involvement
and Supervisory Liability
Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).
The plaintiff, biologically male, diagnosed with a
gender identity disorder and with feminine
characteristics, dressed as a woman but was
placed in a male prison, was attacked in the
protective custody unit by a prisoner was in PC
but had a violent record. Plaintiff reported the
attack. Nothing was done and she was attacked?
twice more.
Defendants did not dispute knowledge ofthe
risk. A captain to whom the first assault was
reported could not be held deliberately indifferent
because he took steps to address the danger: he
asked the reporting officer if the prisoners should
be formally segregated and the officer said that
wasn't necessary. As to the officer who said
segregation was not necessary, and whom the
plaintiff said she gave all the details about the
physical attack and threats, there was a sufficient
issue of material fact that the court could not
review the qualified immunity claim.

.

Federal Officials and Prisons/Medical Care -Denial of Ordered Care/Discovery/Qualified
Immunity
Garrett v. Stratman, 254 F.3d 946 (lOth Cir.
2001). The plaintiffs shoulder was injured; he
said his condition was ignored for two months,
then an orthopedic consultant recommended
reconstructive surgery. No surgical consult was
ordered for another nine months, by which time
the surgery could not be performed successfully.
The clinical director said he "began the process"
24

u.S. District Court Cases
PLRA--Exhaustion of Administrative
Remedies/Class Actions--Certification of
Classes/Protective Custody/Pleading
Graham v. Perez, 121 F.Supp.2d 317
(S.D.N.Y. 2000). The plaintiffs complained of
conditions in protective custody. The case is
dismissed for non-exhaustion. Even if one

THE NATIONAL PRISON PROJECT JOURNAL

plaintiffs letters of complaint were adequate to
exhaust (which they probably are not), he would
be barred because he sent the last complaint letter
the same day he filed suit. At 322: "In seeking to
file an untimely grievance, plaintiff must offer an
explanation for his failure to file a timely
grievance." Ifhe doesn't get the exception, he
may refile his suit explaining his failure to file a
timely grievance, his efforts to file a later
grievance, and the alleged mitigating
circumstances justifying his failure.
Procedural Due Process--Disciplinary
Proceedings/Sanctions/Habeas Corpus
Williams v. Wilkinson, 122 F.Supp.2d 894
(S.D.Ohio 2000). The plaintiff was disciplined
based on a drug test; he said that the finding was
based on someone else's urine sample (which the
other prisoner confirms). He was not allowed to
call the other prisoner as a witness, apparently
because the hearing board decided he would not
be credible.
Plaintiffs claim that he was improperly
denied a witness is not a claim that he is innocent
of the charge, and he is not seeking invalidation
of the charge, so Heck v. Humphrey is not
relevant. In the Sixth Circuit, the state of mind
requirement for a procedural due process
violation is intentional or deliberately indifferent
conduct, and the standard is an objective one.
The "objective intent" requirement is satisfied by
the fact that defendants intentionally disallowed
plaintiffs witnesses.
PLRA--Termination of Judgments
Martin v. Ellandson, 122 F.Supp.2d 1017
(S.D.Iowa 2000). Defendants moved to terminate
a law library injunction from the 1970s. They
stopped updating the law library except for
statutes and regulations and contracted with the
state public defender to provide legal services.
The relief is terminable because the requisite
findings were not made back in 1974. The
plaintiffs are not entitled to a hearing because
plaintiffs had not alleged "specific facts which, if

Winter/Spring 2002

true, would amount to a current and ongoing
constitutional·violation. Judgment terminated.
Medication
Flowers v. Bennett, 123 F.Supp.2d 595
(N.D.Ala.2000). The plaintiff was arrested and
told jail personnel she would need insulin that
night; however, the jail had the wrong kind of
insulin. The plaintiff was placed on "medical
watch." A certified nursing assistant was present
in the jail. Early that morning, the plaintiff was
hospitalized with diabetic ketoacidosis. The
plaintiffs allegations raise a material question of
fact.
Recreation and ExerciselEmergency/Cruel and
Unusual Punishment
Delaney v. DeTella, 123 F.Supp.2d 429
(N.D.Ill. 2000). The plaintiff was in segregation
during a lockdown which resulted in a six-month
deprivation of yard time. His only alternative was
exercises within his cell. Ordinarily, segregation
prisoners got one hour a week during their first 90
days and five hours a week thereafter. The sixmonth denial of exercise was long enough to state
an Eighth Amendment claim regardless of its
proffered justification.
ContemptiCrowding/Intake
Morales Feliciano v. Rosello Gonzales, 124
F.Supp.2d 774 (D.P.R. 2000). After findings of
unconstitutional overcrowding, the court adopted
a stipulation that detention cells, holding pens or
admission areas would be used only for
temporary detention and transfer purposes, and no
one could be held in them for more than 24 hours,
and they must be under constant supervision to
ensure that their safety and hygienic needs are
met.
The court observes that admission cells,
holding cells, and detention cells lack fe,atures
that make housing units habitable, e.g. toilets,
beds, bathing or washing facilities, etc, They also
house inmates at a "particularly susceptible period
of their correctional tenure," s.ince they come
25

THE NATIONAL PRISON PROJECT JOURNAL

directly from the street.
Holding prisoners for up to 14 days in
overcrowded admission cells, sleeping on the
floor without mattresses or bedding, without
adequate toilet facilities, under grossly unsanitary
conditions, without adequate personal hygiene
supplies, with no sick call or limited access to
sick call, no drug withdrawal treatment,
inadequate security surveillance, etc., constituted
contempt of the court's prior orders. The court
rejects the defense of substantial compliance.

Searches--Person--Arrestees
Mason v. Village ofBabylon, 124 F.Supp.2d
807 (E.D.N.Y. 2000). Strip searches incident to
arrest must be justified by facts pertaining to the
particular arrest, such as the nature of the charge
or other circumstances, but cannot be justified by
factors relating to the correctional facility.
Therefore the commingling of misdemeanor
arrestees with the general jail population does not
justify a blanket strip search policy. Even less
than a full strip search, absent justification for the
intrusion, is unreasonable. The
{unconstitutionality of blanket strip search policies
is clearly established.
Use of ForcelTrial/Evidentiary Questions
Ruffin v. Fuller, 125 F.Supp.2d 105
(S.D.N.Y. 2000). The plaintiff said he was
kicked in the face several times by staff while
lying on the floor in the SHU, breaking his teeth
and filling his mouth with blood. The officers
said the plaintiff attacked them without
provocation and he must have hurt his mouth
when he hit the floor, or maybe his bed. The
incident was videotaped; however, only an edited
version of the tape was preserved. A
maxillofacial surgeon testified that the plaintiff's
injuries could not have occurred as a result of a
single blow or impact such as a fall. A jury found
for the defendants. The court grants a new trial
because the jury's verdict is against the weight of
the evidence.

26

Winter/Spring 2002

PLRA--Exhaustion of Administrative
Remedies/Use of Force/Procedural Due
Process--Disciplinary Proceedings/Habeas
Corpus/Negligence, Deliberate Indifference
and IntentlPersonal Involvement
Concepcion v. Morton, 125 F.Supp.2d 111
(D.N.I. 2000). A remedy system set up at the
individual prison level is not a remedy that must
be exhausted under the PLRA; the statute only
addresses department-wide remedies. The court
relies on the fact that regulations do not authorize
the promulgation of an administrative remedy
system.
The court concludes that the evidence of force
used against the plaintiffs initially, after they had
assaulted staff members, does not raise a material
factual issue under the Eighth Amendment.
However, after they were restrained, the urgency
to restore order had abated. One plaintiff's
testimony that he was kicked in the face, lifted off
his feet by his handcuffs, and hit in the face with
a stick while restrained does present a factual
issue for a jury. The same is true of the second
plaintiff's testimony that he was dropped on his
face from a height of several feet and then kicked.
Federal Officials and Prisons/Exhaustion of
Remedies/Protection from Inmate
AssaultiClassification--Pre-Trial vs.
Convicted/Service of Process
Palay v. United States, 125 F.Supp.2d 855
(N.D.IlL 2000). The plaintiff sued under the
Federal Tort Claims Act alleging that prison staff
negligently permitted him to be injured as a result
of a gang fight in which he was not involved, and
that he did not receive proper medical treatment.
His complaint alleged that he was negligently
reassigned from a pretrial unit to a holdover unit
which contained members of rival gangs. The
government said he hadn't exhausted his
negligent reassignment claim. At 859:
"Nevertheless, a plaintiff is not required to plead
legal theories in the administrative claim, or set
forth facts that were at least as well known to
MCC officials as to Palay. All that is required is

THE NATIONAL PRISON PROJECT JOURNAL

'sufficient notice to enable the agency to
investigate the claim. However, the
administrative claim did not sufficiently allege
medical malpractice or deficient medical care.
The plaintiffs assertion that he was
negligently reassigned to holdover status and
unnecessarily exposed to harm stated a claim.
However, the claim appears to be barred by the
discretionary function exemption, which applies
even to lower-level operational personnel if their
conduct involves an element ofjudgment or
choice. The plaintiff was a detainee and Bureau
of Prisons regulations call for detainees'
separation from convicts "to the extent
practicable" from sentenced persons. But it
allows discretion to defendants. Also, it may not
support a tort claim under state law.
The court declines to dismiss based on the
plaintiffs failure to serve process on the United
States within 120 days; such dismissal is
discretionary even without good cause, and the
plaintiff was an incarcerated layman who didn't
know whom he had to serve.
III

PLRA--Exhaustion of Administrative
Remedies
Johnson v. True, 125 F.Supp.2d 186
(W.D.Va.2000). The PLRA exhaustion
requirement is not jurisdictional. At 188: There
is "[n]othing in the language or legislative history
of the PLRA's amendments to section 1997e(a)
[that] supports a 'total' exhaustion requirement."
The plaintiff alleges that "to the extent some of
his claims were not fully prosecuted through the
various levels of the grievance procedure, his
efforts to so exhaust his administrative remedies
were frustrated by prison officials...." The
plaintiffs allegations create a factual issue barring
dismissal. Even if the plaintiff had adequate
access to the grievance procedure, relegating him
to that procedure now would be futile because his
claims would be time-barred under defendants'
30-day time limit and exhaustion would be futile.
Pre-Trial DetaineeslUse of Force

Winter/Spring 2002
Watford v. Bruce, 126 F.Supp.2d 425
(E.D.Va.2001). The plaintiff alleged that he
sustained bruising, scarring and swelling from an
unprovoked attack by an officer. Fourth Circuit
law seems to support the argument that such
injury is de minimis and not actionable. The court
says that such a conclusion would be contrary to
Hudson v. McMillian, which in its invocation of a
de minimis standard "is referring to trivial use of
force as distinct from categorizing injuries as
severe, moderate or trivial." The court applies the
Eighth Amendment to this detainee case without
discussion.
Hazardous Conditions and Substances/Cruel
and Unusual PunishmentlDisabled
McIntyre v. Robinson, 126 F.Supp.2d 394
(D.Md.2000). Defendants had issued a directive
to designate smoking areas and then banned all
indoor smoking in state prisons. The plaintiffs
alleged and submitted evidence showing that
smoking was still prevalent in the prisons and
was affecting their health.
The plaintiffs have alleged the violation of a
clearly established right in light ofHelling.
However, there is a question whether a reasonable
person would have had knowledge that conditions
in the prisons actually violated that right; each
damage claimant must show that he or she has a
serious medical condition, that defendants knew
of them and of their seriousness, and that the
defendants were personally responsible for the
conditions.
Defendants are entitled to qualified immunity
from damages. The plaintiffs are not entitled to
summary judgment under the disability statutes.
Under those statutes, the plaintiffs need to
establish the elements of an Eighth Amendment
violation such as violation of contemporary
standards of decency.
PLRA--Prospective Relief Restrictions-SettlementslProcedural Due Process.,Disciplinary Proceedings/Class Actions-Settlement, Conduct of Actions
27

THE NATIONAL PRISON PROJECT JOURNAL

Heit v. van Ochten, 126 F.Supp.2d 487
(W.D.Mich. 2001). The court approves
settlement of a challenge to disciplinary
procedures. Prison officials kept statistical
records of the decisions of Administrative Law
Judges and allegedly used disciplinary threats
against AU's to keep the conviction rates high.
The settlement forbids prison officials from
keeping statistics on dispositions for individual
hearing officers, from threatening hearing officers
with personnel action because ofthe percentages
of decisions favorable to the plaintiffs, and from
communicating with them about hearing results
outside of the rehearing process, and requires the
hearing officers to log any such communications.
It also directs hearing officers to refrain from
automatically crediting testimony of staff over
prisoners and to set forth the basis for their
credibility determinations. The settlement does
not provide injunctive relief but allows
reinstatement of the case within one year ifthe
settlement isn't followed.

Winter/Spring 2002
Relief
The Advocacy Center v. Stalder, 128
F.Supp.2d 358 (M.D.La. 1999). The plaintiff, a
Protection and Advocacy organization formed
under the PAMII legislation, sought medical
records of a complaining prisoner, and were
refused based on a state statute that required them
to obtain a court order first.
The release of the prisoner does not moot the
case. The plaintiff organization has standing to
bring suit for the records and has suffered a direct
injury to its statutory interest.
Compliance with the court's temporary restraining
order does not moot the issue. The plaintiffs
allegations of PAMII violation state a claim under
§ 1983. The plaintiff is entitled to the records.
To the extent that state statutes and policies
promulgated under them are inconsistent with
PAMII, they are pre-empted. The court grants a
permanent injunction requiring the defendants to
comply with PAMII.

Searches--Person--Arrestees/Suicide
Prevention/Pre-Trial Detaineesffieference
Wilson v. City ofKalamazoo, 127 F.Supp.2d
855 (W.D.Mich. 2000). The plaintiffs are
arrestees who refused to answer suicide screening
questions. They were treated as posing a suicide
risk and were placed in a cell completely naked
for periods from 6 to 18 hours, subjected to video
surveillance and in most cases viewed by
opposite sex officers. They were supposed to be
given "suicide gowns" but none were available.
Under Wolfish, the facts alleged state a
Fourth .Amendment claim. Under Turner v.
Safley, this appears to be a readily available
alternative to stripping them entirely. There is
also a Fourteenth Amendment privacy claim,
even though the allegations "only arguably make
out a denial ofthe 'minimal civilized measure of
life's necessities.'"

Pre-Trial DetaineeslMedical Care--Standards
of Liability--Deliberate Indifference and
Serious Medical Needs/Pleading
Castellano v. Chicago P.D., 129 F.Supp.2d
1184 (N.D.IlI. 2001). The plaintiff, who had had
a serious leg injury, was forced to stand, walk,
and/or hop for several hours after he was arrested
and the police refused to retrieve his crutches.
Upon entering jail, he had to do the same for
several hours until he was given crutches.
Allegations that the plaintiff told the
defendants about the serious pain in his leg and
repeatedly asked for treatment, but he was kept in
the segregation unit for several days without
treatment, and segregation officers ignored or
mocked him, support a claim of deliberate
indifference. Allegations that health care unit
staff twice transferred him out of that unit without
medical attention sufficiently allege intentional
denial of medical care.

Medical Records/StandingIMootnesslMental
Health CarelAssistance of Counsel/Injunctive

Homosexuals and TranssexualslMedical Care-Standards of Liability--Deliberate

28

THE NATIONAL PRISON PROJECT JOURNAL

Indifference and Serious Medical
Needs/Statutes of Limitations/Res Judicata
and Collateral Estoppel/PLRA--Mental or
Physical InjurylPendent and Supplemental
Claims; State Law in Federal Courts
Wolfe v. Horn, 130 F.Supp.2d 648 (E.D.Pa.
2001). The plaintiff, a pre-operative male-tofemale transsexual, was undergoing a course of
honnone therapy at the time she was incarcerated.
A prison doctor discontinued her honnones
abruptly.
Transsexualism is a serious medical need.
At 653: "Moreover, abrupt tennination of
prescribed honnonal treatments by a prison
official with no understanding of Wolfe's
condition, and failure to treat her severe
withdrawal symptoms or after-effects, could
constitute 'deliberate indifference. III There is a
rational basis for letting prisoners wear long hair
for religious reasons in a male prison while
denying that right to a transsexual.
The plaintiffs allegations that after her
honnones were tenninated she suffered
headaches, nausea, vomiting, cramps, hot flashes,
hair loss, reduced breast size, increased body hair,
and lowered voice, resulting in her becoming
depressed and suicidal, constitute direct physical
injuries, for purposes ofPLRA.
The existence of a deliberate indifference
claim means that there is a state law malpractice
claim. Such a claim must be supported by expert
testimony that the disputed treatment fell below
the applicable standard of care, to a reasonable
degree of medical certainty. The plaintiffs expert
reports created factual questions on those points
even though they didn't use those "magic words."
Federal Officials and Prisons/Statutes of
LimitationslHabeas Corpus/PLRA--Mental or
Emotional Injury/Criminal Prosecution
Turner v. Schultz, 130 F.Supp.2d 1216
(D.Colo.2001). The plaintiff alleged that he was
assaulted and maliciously criminally prosecuted
by a gang of guards in the federal prison who
falsified evidence against prisoners to cover up

Winter/Spring 2002
their own misconduct (the defendants are among
the "Cowboys" of Colorado). The statute of
limitations for the claim was tolled while he was
under indictment.
The malicious prosecution claim is barred by
PLRA because the plaintiff did not allege
physical injury in connection with the criminal
prosecution. The court dismisses the claims. The
defendants who didn't move under the PLRA are
entitled to qualified immunity.

Medical Care/PLRA--In Forma Pauperis
Procedures/Statutes of
Limitations/Municipalities/Modification of
Judgments/Pro Se Litigation/Color of
Law/Service of Process
Gil v. Vogilano, 131 F.Supp.2d 486 (S.D.N.Y.
2001). The plaintiff fell in the shower and his
back and heel injuries were not treated. After he
was convicted and in state custody he was found
to have bone deterioration caused by infection.
The plaintiff failed to complete the IFP
procedures required by the PLRA and his first
complaint was dismissed. Later, he filed a
second, more or less identical complaint, and got
the PLRA paperwork right. However, the
limitations period had expired. The court
construes his response to defendants' motion to
dismiss as a request for relief under Rule 60(b)(6)
from the initial judgment of dismissal and for the
application of equitable tolling to avoid the
statute of limitations. The court directs that the
initial action be reopened, reassigned to this
court, and consolidated with this action, so it
doesn't need to reach the equitable tolling
question.
The plaintiff did not explicitly allege the
existence of a municipal custom or policy. The
court rejects the argument that such a claim
cannot be based on a single plaintiffs experience.
The fact that the county contracted with, a private
corporation for medical care did not save it from
liability. The plaintiff relied on the Marshals to
serve his amended complaint, but it didn't happen
because the court didn't receive it. The court

29

THE NATIONAL PRISON PROJECT JOURNAL

gives him more time to serve process.

Standing/Procedural Due Process-Disciplinary Proceedings/PLRA--Prospective
Relief Restrictions--Entry of Relief/Personal
Involvement and Supervisory
Liability/Injunctive Relief
Williams v. Wilkinson, 132 F.Supp.2d 601
(S.D.Ohio 2001). The plaintiffwas denied a
witness at a disciplinary hearing because the
Rules fufraction Board decided he would not be
credible. A jury awarded damages. After a
subsequent hearing on the injunctive claim, the
court finds that, though written policy concerning
witnesses conforms to Wolff, unwritten policy
was to exclude witnesses based on a prejudgment of credibility. The plaintiff has
standing to seek an injunction. The court
distinguishes Lyons.
Defendants said that the prospective relief
provisions of the PLRA prevented the court from
entering relief except as to him individually, and
that because there was a new warden relief could
not be entered without evidence that the new
warden had violated the law. The court rejects
those arguments.
False ImprisonmentlEvidentiary
Questions/Negligence, Deliberate Indifference
and Intent
Johnson v. Herman, 132 F.Supp.2d 1130
(N.D.fud.2001). The plaintiff was kept in jail for
an extra 17 days, despite 14 inquiries. Jail
personnel called the court to determine whether
he should, be incarcerated, and an unknown
member of the judicial staff supposedly said to
keep him locked up until the court determined
otherwise.
An affidavit by ajail staffmember
recounting the conversation with the unknown
judicial employee is admissible, not to establish
the truth of its assertion, but to negate deliberate
indifference and show what jail staff did in
response to plaintiff's c9mplaints.
Under state law, the sheriffhad no authority
30

Winter/Spring 2002
to hold the plaintiff for the 17 days. The failure
ofjail staff to investigate the plaintiff's
complaints supports an inference of deliberate
indifference against them individually. A jury
could find that waiting 18 days to make the first
inquiry and then relying on an unknown judicial
staff person's statement established deliberate
indifference. The jail staffwere not entitled to
qualified immunity, since it is clearly established
that incarcerating someone without a judicial
order is unconstitutional.

Color of LawlMedical Care--Standards of
Liability--Serious Medical Needs and
Deliberate IndifferencelDisabledlMedical
Care--Staffing--Qualifications of Personnel
and Denial of Ordered Care
Palermo v. Correctional Medical Services,
Inc., 133 F.Supp.2d 1348 (S.D.Fla. 2001).
Several prisoners complained about the care
received from a private medical provider. The
court grants summary judgment against all but
one of them.
Failure to refer a prisoner with a back problem
to a spine specialist and refusal to authorize a
wheelchair even though crutches hurt the
plaintiff's armpits involve only medical
judgement. A prisoner determined to be in urgent
need of a bone graft had a serious medical need.
Seven months passed before the surgery was
approved, and then four months later a decision
was made to cancel the surgery. The delay
presents a genuine issue as to deliberate
indifference, though the court does not suggest
that the decision to cancel surgery is actionable.
Orthopedic shoes for a prisoner experiencing foot
pain are not a serious medical need.
A private medical care corporation cannot
have a policy of deliberate indifference if
government officials impose policy on it, though
they may be able to have a custom ofdeliberate
indifference. There is a jury question whether
there is a custom of denying or delaying surgery.

Communication with Media/Federal Officials

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

and Prisonsilleference
Entertainment Network, Inc. v. Lappin, 134
F.Supp.2d 1002 (S.D.Ind. 2001). The plaintiff
wanted to record and broadcast the execution of
Timothy McVeigh. The restriction is not contentbased. Anyway, Turner v. Safley applies; even
though the plaintiff is not a prisoner.

access unless read to affect only nonconstitutional claims. The plaintiffhas standing
because he can't file his case without paying a fee
that exceeds his monthly income.
The usual justification for deferring to prison
regulations under Turner is not present when
considering federal statutes.

Visiting--Conditionsillamages--Intangible
Injuries, PunitivelHygiene
Glaspy v. Malicoat, 134 F.Supp.2d 890
(W.D.Mich.2001). The defendant correctional
officer refused to permit a prison visitor to use the
restroom despite repeated requests, with
predictable results. The ostensible reason was
that the count was going on, but there is no rule
against visitors' using the bathroom during the
count. The plaintiffs Fourteenth Amendment
rights were violated. The deliberate indifference
standard is applicable.

PLRA--Prospective Relief Restrictions-Preliminary Injunctions/Religion--Services
Within Institutions/Injunctive Relief-Preliminary
Mayweathers v. Terhune, 136 F.Supp.2d 1152
(E.D.Cal. 2001). The court grants its third
successive preliminary injunction allowing
Muslim prisoners to attend Jumu'ah services.
The court rejects the defendants' argument that
successive injunctions cannot be granted under
thePLRA.

Survival of Actions and Wrongful Death
Litigation/Pendent and Supplemental Claims;
.State Law in Federal Courts
Gonzalez Rodriguez v. Alvarado, 134
F.Supp.2d 451 (D.P.R. 2001). The decedent died
in prison. Hi'S mother lacks standing to bring a §
1983 suit based on loss of the family relationship
with her son.
Food/Federal Officials and Prisons/Refusal of
Treatmentmeference
In re Soliman, 134 F.Supp.2d 1238
(N.D.Ala.2001). The petitioner is subject to
indefinite detention pursuant to a final order of
removal. He went on a hunger strike and was
force-fed. The Turner standard is applicable.
There is a valid, rational connection between
force-feeding and keeping him alive, and also
with orderly operations.
PLRA--Three Strikes Provision/Standing
Lewis v. Sullivan, 135 F.Supp.2d 954
(W.D.Wis.2001). The court holds that the three
strikes provision unconstitutionally restricts court

Sexual Abuse/Women/Color of
Law/Municipalities/Grievances and
Complaints about Prison/State Law
Immunities
Paz v. Weir, 137 F.Supp.2d 782 (S.D.Tex.
2001). The plaintiff alleged that she was sexually
abused by the jail chaplain, for whom she was
working. The court notes that provision of
ministerial services is required by state law and
that the Sheriffs Department determined who was
allowed access to the Jail. The chaplain, was
acting under color of state law.
Even without state action by the chaplain, the
County could be held liable for his conduct based
on a constitutional failure to protect theory. The
County argued that the sexual activity was
consensual. These circumstances raise an issue of
consent under those Texas criminal laws
regarding clergy and public servants.
The jail administrator was the relevant
policymaker for plaintiffs Monell claim" "as he
was authorized by the Sheriff to make policy for
the Jail, drafted the Standing Policies'for Inmate
Management, and approved the Ministries'
operational procedures."
31

THE NATIONAL PRISON PROJECT JOURNAL

Procedural Due Process--Disciplinary
Proceedings/Grievances and Complaints about
Prison/Federal Officials and Prisons/Habeas
CorpuslExhaustion of Remedies
Hinebaugh v. Wiley, 137 F.Supp.2d 69
(N.D.N.Y.2001). The petitioner challenged loss
of good time allegedly caused by discipline done
in retaliation. The court rejects the argument that
habeas will not lie. Restoration of good time and
expungement ofthe disciplinary record would
accelerate the petitioner's release.
Failure to exhaust administrative remedies
may be excused under the "cause and prejudice"
standard. The plaintiffs claim that his legal files
were confiscated and not returned for 14 months
meets that standard. Challenges to disciplinary
proceedings that resulted only in loss of
privileges, not in the deprivation of liberty
interests, can be pursued via habeas corpus if it
appears that they were relied on in imposing a
later sanction that directly affects the terms and
duration of confinement.
PLRA--Mental or Emotional Injury; Waiver
of Reply/Mootness
Shaheed-Muhammad v. DiPaolo, 138
F.Supp.2d 99 (D.Mass. 2001). The plaintiff
alleged various denials of his religious rights and
retaliation against him for asserting them. The
PLRA mental/emotional injury provision does not
cover the claims alleged by Muhammad because
the harms proscribed by the First Amendment,
Due Process, or Equal Protection are assaults on
individual freedom and personal liberty, even on
spiritual ~utonomy, and not on physical
well-being.
Where the harm that is constitutionally
actionable is physical or emotional injury
occasioned by a violation of rights, § 1997e(e)
applies. In contrast, where the harm that is
constitutionally actionable is the violation of
intangible rights--regardless of actual physical or
emotional injury--section 1997e(e) does not
govern.

32

Winter/Spring 2002

Procedural Due Process--Disciplinary
ProceedingslEvidentiary Questions/Use of
Force--Restraints
Laws v. Cleaver, 140 F.Supp.2d 145 (D.Conn.
2001). The plaintiff was summoned to a
disciplinary hearing, got there late, and
discovered he had been found guilty. He asked to
be heard and was maced and then beaten and
stomped. He was placed in four-point restraints.
A jury ruled in his favor on the due process clause
and against him on the use of force claim.
The deprivation of good time credits did not
deprive the plaintiff of a liberty interest under
Sandin. Although state law created such an
interest, the credits were restored on
administrative appeal. Four hours in four-point
restraints did not make the disciplinary
determination atypical and significant, since it
was not claimed to result from the disciplinary
determination.
The court correctly excluded evidence that
one of the defendants had previously been
disciplined for failing to report an incident in
which white guards had hung a noose from the
ceiling in the presence of an African-American
inmate. It was barred by Rule 404(b) (other
crimes, wrongs, etc.)
Use of ForcelEvidentiary Questions/PLRA-Mental or Emotional Injurymamages--Assault
and Injury
Romaine v. Rawson, 140 F.Supp.2d 204
(N.D.N.Y. 2001). The court finds for plaintiff
after a bench trial on his use of force claim. The
plaintiff was slapped or struck three times in the
face by an officer; he claimed pain, and hearing
loss, but the court found there wasn't any of the
latter. The force was de minimis, but nonetheless
"repugnant to the conscience of mankind"
because Defendant struck Plaintiff in a situation
where all parties admit that force was not
necessary. "Minor" physical injuries are
sufficient to support an award of damages for
mental or emotional injury under the PLRA.

THE NATIONAL PRISON PROJECT JOURNAL

Use of ForcelMedical
CarelMunicipalities/State Officials and
Agencies/Pendent and Supplemental Claims;
State Law in Federal Courts
Ramsey v. Schaube, 141 F.Supp.2d 584
(W.D.N.C.2001). The plaintiff alleged that his
fingertip was severed when ajail staffmember
forcefully slammed a cell window closed on it,
that medical care was delayed, and that jail staff
would not release his prescribed medication.
These allegations state a claim against the Sheriff.
Plaintiffs official capacity claim against the
Sheriff is not barred by the Eleventh Amendment
because a North Carolina sheriff is a local officer.
Searches--Person--Convicts/Sexual
Abuse/Grievances and Complaints about
Prison/Federal Officials and
Prisons/PleadingIDeference/Cruel and
Unusual Punishment--Proof of
HarmlNegligence, Deliberate Indifference, and
IntentiStaffing--Sex
Colman v. Vasquez, 142 F.Supp.2d 226
(D.Conn. 2001). The plaintiff alleged that she
was harassed and sexually abused by a staff
member and also challenged the use of crossgender pat frisks in the "sexual trauma unit" to
which she had been assigned.
The court rejects defendants' argument that
there is no Fourth Amendment claim for crossgender pat frisks. Defendants are also not entitled
to qualified immunity on the ground that the right
is not clearly established.
The plaintiffs allegations also implicate the
Eighth Amendment to the extent that the searches
are alleged to have caused extreme emotional
distress due to the plaintiffs history of sexual
trauma. Claims against supervisors for failure to
protect from sexual assault (by staff as well as
other inmates) are subject to the deliberate
indifference standard. Plaintiffs' allegation that
they did not conduct a meaningful investigation
of her complaints sufficiently stated a claim given
that she continued to be subjected to the officer's
sexual harassment during that time. The law was

Winter/Spring 2002
sufficiently established to defeat a qualified
immunity defense.

Recreation and Exercise/PLRA--Mental or
Emotional InjurylUse of Force-Restraints/Qualified Immunity
Williams v. Goord, 142 F.Supp.2d 416
(S.D.N.Y. 2001). The plaintiff complained that
while in SHU he was placed in mechanical
restraints during recreation for 28 days.
Exercise is a basic need provided by the
Eighth Amendment. However, "a plaintiff must
show that he was denied all meaningful exercise
for a substantial period oftime. . . . Factors to
consider in making this determination are: (1) the
duration ofthe deprivation; (2) the extent ofthe
deprivation; (3) the availability of other out-ofcell activities; (4) the opportunity for in-cell
exercise; and (5) the justification for the
deprivation." (425) Summary judgment has been
granted to plaintiffs in cases of very long
deprivation of exercise and to defendants in cases
involving short deprivations. This claim is in
between. In addition, there is a factual dispute
whether the plaintiff could engage in meaningful
exercise in restraints. Summary judgment is also
inappropriate as to whether defendants were
deliberately indifferent to a serious risk of harm.
The right to some out-of-cell exercise is
clearly established, though there is a "safety
exception" which is "limited to unusual
circumstances or circumstances in which exercise
is impossible because of disciplinary needs." But
even an unusual security risk cannot be subjected
to a blanket policy of denial of exercise. Since
there is a factual dispute whether the plaintiff was
denied all meaningful exercise, the supervisory
defendants are not entitled to summary judgment
on qualified immunity. Indeed, a finding of
deliberate indifference would be incompatible
with qualified immunity. The line staff are
entitled to qualified immunity. The question
whether plaintiff actually suffered a 'physical
injury' under the Prison Litigation Reform Act
('PLRA'), § 42 V.S.c. § 1997e, is a question of
33

THE NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2002

fact for the jury.

interpretation.

Color of LawlMedical Care/Personal
Involvement and Supervisory
Liability/Damages--Punitive
Segler v. Clark County, 142 F.Supp.2d 1264

Municipalities/Personal Involvement and
Supervisory LiabilitylNegligence, Deliberate
Indifference and Intent
Trigalet v. City of Tulsa, Okla., 239 F.3d 1150

(D.Nev.2001). A private medical care provider
(EMSA in this case) is not a municipality, and
punitive damages may be assessed against it. The
plaintiff needn't show that he was injured as a
result of a corporate policy.

Non-Prison Cases
V.S. Court of Appeals Cases

I

Communication and Expression
United States v. Loy, 237 F.3d 251 (3d Cir.
2001). The defendant, convicted of possessing
child pornography, was forbidden as a condition
of post-incarceration supervised release to
possess any pornography, child or otherwise. The
court rejects the government's position that the
condition isn't ripe for judicial review until it is
enforced. The court also rejects the view that the
plaintiff lacks standing.
To comport with First Amendment
standards, the release condition concerning
pornography must be narrowly tailored to serve
the goals of rehabilitation and protection of the
public. The government's argument that
supervised release conditions are akin to prison
conditions is "patently without merit," rejected
since it contradicts Morrissey v. Brewer's
statement about the difference between parole and
prison (264 n. 5). The term "pornography" is so
vague that the defendant is likely to avoid
materials not necessary for rehabilitation and
deterrence. Imposing a scienter requirement does
not mitigate the vagueness. Nor does advising
the defendant to consult his probation officer
about particular items, since this gives the
probation officer an unfettered power of
34

(lOth Cir. 2001). A municipality cannot be held
liable for a constitutional violation under § 1983
. unless there is a violation by individual officers.

Qualified ImmunitylUse of Force/Personal
Involvement and Supervisory Liability
Johnson v. Newburgh Enlarged School Dist.,
239 F.3d 246 (2d Cir. 2001). The plaintiff eighth
grade student alleged that his gym teacher choked
him, slammed his head repeatedly against
bleachers and then against a metal fuse box, and
punched him in the face. The court applies the
Johnson v. Glick balancing test to this "nonseizure, non-prisoner context" force case. The
teacher is not entitled to qualified immunity
despite the absence of precedent stating that
teachers can't strike students.
The complaint alleged that the principal and
superintendent knew of prior assaults but did not
act on those reports. Ifthose allegations are
proved, a jury could find the supervisors liable as
"either grossly negligent in supervising" or
deliberately indifferent to the students' rights by
failing to act on information that unconstitutional
acts were occurring.

Use of Force--Restraints/State Law
ImmunitieslMunicipalities
Cruz v. City ofLaramie, Wyo., 239 F.3d 1183
(lOth Cir. 2001). Hog-tying an obviously
mentally deranged suspect constituted excessive
force, though the individual defendants were
entitled to qualified immunity because it was not
clearly established that such conduct was
unlawful. However, defendants are not entitled to
immunity under state law because their conduct
was not reasonable.
Evidence that the municipality failed to
officers in the use of hobble restraints even

THE NATIONAL PRISON PROJECT JOURNAL

though they were available in police cars, and that
high-ranking officials were aware of positional
asphyxia attributable to them, raised an issue of
material fact as to municipal deliberate
indifference.

Pleading/Qualified Immunity
Currier v. Doran, 242 F.3d 905 (lOth Cir.
2001). The court concludes that the Supreme
Court decision in Crawford-El v. Britton
overrules its requirement of heightened pleading
in civil rights cases in which a qualified immunity
defense is pled.
Indemnification
Navarro v. Block, 250 F.3d 729 (9th Cir.
2001). An allegation that decisions by the county
Board of Supervisors to indemnify deputy sheriffs
were made in bad faith and proximately caused a
violation ofthe plaintiffs constitutional rights
stated a claim and the defendants were not
entitled to qualified immunity at the pleading
stage.
Use of Force/Survival of Actions and
Wrongful Death Litigation/Pendent and
Supplement Claims; State Law in Federal
CourtiPre-Trial DetaineeslMental Health
Care/Evidentiary Questions
Andrews v. Neer, 253 F.3d 1052 (10th Cir.
2001). The decedent was found not guilty by
reason of insanity and was committed to a mental
hospital. He caused a ruckus and was restrained
from five to 20 minutes by aides. He was placed
in leather restraints and died; his autopsy was
consistent with compression of the airway. Suit
was brought by his daughter in her own name.
The plaintiff had standing to pursue a § 1983
claim for her father's death, even though she had
not been appointed by the personal representative
ofthe estate. The state wrongful death statute,
which permits survivors to recover for the
decedent's loss and not just their own, provides
the only cause of action where th.e injury caused
death and governs this § 1983 action and permits

Winter/Spring 2002
the action to survive.

U.S. District Court Cases
Pendent and Supplementary Jurisdiction;
State Law in Federal Courts/lndemnification
Childress v. Williams, 121 F.Supp.2d 1094
(E.D.Mich. 2000). The federal court had
ancillary jurisdiction over a garnishment action
by a prevailing § 1983 plaintiff against a
municipality which employed a police officer
against whom he had obtained ajudgment.
Evidentiary Questions/Use of
Force/lndemnification
Munley v. Carlson, 125 F.Supp.2d 1117
(N.D.Ill. 2000). In a police brutality case,
evidence pertaining to prior, unrelated
disciplinary actions against the arresting officer is
held inadmissible in the absence of a showing of
any purpose other than to show that the officer
acted in conformity with his character, which is
forbidden by Rule 404(b), Fed.R.Ev.
Existence of liability insurance is
inadmissible, but if the defendant officer offers
evidence, testimony, or argument about his
financial circumstances or inability to pay a
judgment, liability insurance can come in as
rebuttal evidence.
Use of Force--Restraints
Johnson v. City ofEcorse, 137 F.Supp.2d 886
(E.D.Mich.2001). The plaintiff, who had a preexisting deformity of his wrist, complained of
being handcuffed too tightly and being pulled,
kicked, and pushed during an arrest. These
allegations would not state a claim absent injury,
but the injury need not be significant, and
unspecified injuries to his ankles from kicks and
to his wrists from the handcuffs met thejnjury
requirement.
Use of Force/Evidentiary
QuestionslMunicipalities/State Law
35

THE NATIONAL PRISON PROJECT JOURNAL

Immunities
Wright v. City ofCanton, Ohio, 138
F.Supp.2d 955 (N.D.Ohio 2001). The plaintiff
arrestee suffered massive injuries in police
custody. The police said he fell down, though the
details of their claim changed as the extent of
injury became known. The emergency room
doctor who treated him was competent to offer an
opinion as to whether the injuries were consistent
with the cops' story, notwithstanding defendants'
argument that only a forensic scientist or a
biomechanical engineer could offer such an

Winter/Spring 2002
governed by the "coercion test": "(1) whether
there was state action; (2) whether the action
amounted to coercion; and (3) whether the object
ofthe coercion was religious or secular." (1033)
Because participation in the program was
presented to plaintiff as a condition of remaining
out ofprison, defendants are not entitled to
summary judgment. The Secretary of Correction
waited three years before promulgating a directive
implementing the Seventh Circuit decision on this
point. A jury could find that this dereliction
caused line staff to violate the plaintiffs rights.

OpInIOn.

The police chiefs approval of the internal
investigation which found no excessive force
"constitutes municipal policy" because the police
chief was the policymaker, and a reasonable juror
could conclude that this constituted ratification of
defendants' misconduct.

Religion/Drug Dependency TreatmentIWaiver
of Rights/Personal Involvement and
Supervisory Liability
Bausch v. Sumiec, 139 F.Supp.2d 1029

Updated Prisoners' Assistance Directory
Now Available
Includes contact information and services
descriptions for over 300 organizations that
provide assistance to prisoners, ex-offenders
and families of prisoners.
Copies are available for $30. Contact the
NPP for more information.

(E.D.Wis.2001). The plaintiff parolee argued
that compelling his participation in a religiouslyoriented substance abuse treatment program
violated the Establishment Clause. His claim is

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

36

Non-Profit
U.S. Postage
PAID
Permit No. 5248
Washington, DC