··--.1

E
.:TIONAL
PRISON
PROJECT
A ProjecLqf the American Civil Liberties Union Foundation, Inc.
Vol. 16, No.1, Summer/Fall 2002 • ISSN1 076-769X

National Prison Project
Celebrates 30 Years
NPP Director Reflects on Protecting
Prisoners'Rights
By Elizabeth Alexander
When I arrived at the National Prison
Project in 1981, my firstmajor assignment was to
sue the Mecklenburg Correctional Center, a
"supermax" prison recently opened in Virginia.
That prison epitomizes the depths of despair and
the irrationality that a toxic prison can produce,
harming both. prisoners and staff. Official
videotapes documented patterns of abuse and
excessive force against prisoners. The facility's
"Special Management Unit" had floors covered
with so much human waste that our corrections
expert Vince Nathan and I had to throw out our
shoes after we toured the unit. In large part, the
disgusting and unhealthy conditions in the unit
resulted frofu an ongoing power struggle between
staff and prisoners that neither side could win.
Prisoners were deprived of all property and all
ordinary privileges. Only the bare minimum
necessary to keep alive was provided. Having
nothing to lose, prisoners fought against staff with
their own feces. The warden's response to the
problem was to order the prison doctor to stop
prescribing laxatives.
While at Mecklenburg I met a prisoner
Whose story exemplifies how prisons damage
~f1dividuals and leave them more likely to commit
... 'minal acts. Wendell, who was mentally retarded

and had difficulty responding to frustration, entered
the criminal justice system at 17 when he was
sentenced to six months in jail for trespassing.
Once injail, he was unable to avoid fights with
staff. At the time 1 met him, several years later, he
had never left prison and was serving an eight-year

In the Beginning. ...
By Alvin J. Bronstein l
The NationalPrison Project's roots developed
during the civil rights movement of the 1960s. The
NAACP Legal Defense and Education Fund (LDF),
an old-line civil rights legal program, began handling
some prisoners' rights lawsuits in New York and San
F~ancisco. At about the same time in Virginia, Philip
Hlrschkop, a civil rights lawyer, began to take-on
prisoners' rights cases arising out of conditions at the
Virginia State Penitentiary. Herman Schwartz, a law
professor at the State University of New York in
Buffalo, alsp began suing on behalf of prisoners
coming from the New York State Penitentiary at
Attica. The only other prisoners' rights program in
the country at the time was the Prisoners' Rights
Project ofthe New York City Legal Aid Society
which also began in the late 1960s. Lawyers, who
had been active in the civil rights struggle ofthe 60s,
saw prisoners as the next powerless segment of
society in America.
Continued on page 9

THE NATIONAL PRISON PROJECT JOURNAL

sentence for assault on a correctional officer.
The lessons of Mecklenburg provide a realworld counterpart to the famous Stanford
University experiment conducted by Professor
Philip G. Zimbardo. The experiment used
psychologically healthy college undergraduates to
simulate the prison experience. Nine students were
randomly assigned to play guards, and nine others
played prisoners at a facility on the Stanford
University campus. Guards were told that they
should do whatever was necessary to maintain law
and order. As the experiment progressed, the
guards began to use their power to inflict serious
psychological abuse on their wards and prisoners
struggled to resist. In fact, the experiment
prematurely ended after six days because four of
the prisoners had suffered emotional breakdowns.
The guards were escalating their abuse of fellow
students in the middle of the night when they
thought no one was watching. 1
The lesson from the Stanford University
experiment is enormously chilling. Prisons by
their inherent nature create an ever-present threat
of abuse. When that potential for abuse is realized,
as it was at Mecklenburg, the staff and the
prisoners can become locked in a downward spiral
of violence. At Mecklenburg, that spiral ended

I

The NPPJOURNAL

NPP Director: Elizabeth Alexander
Editor: Kara Gotsch
Subscriptions Manager: Thandor Miller
The National Prison Project is a special project of the
ACLU Fountlation. It seeks to strengthen and protect the rights of
adult and juvenile prisoners, improve overall conditions in
correctional facilities, and develop alternatives to incarceration.
TheJOURNAL is published biannually by the National
Prison Project of the ACLU, located at 733 15 th St., NW, Ste. 620,
Washington, DC 20005. Contact us by phone at (202) 393-4930,
fax at (202) 393-4931 or email at kgotsch@npp-aclu.org for more
information. (NO COLLECT CALLS PLEASE)
The reprinting ofjOURNAL material is encouraged
with the stipulation that the National Prison ProjectJOURNAL
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.

Summer/Fall 2002
only after a prison riot and a separate incident in
which six Death Row prisoners escaped from the
facility.
To control abuse and to prevent prisons
from becoming locked into the "Mecklenburg
dynamic" of escalating repression and rebellion,
there must be an external authority with both the
will and the power to maintain civilized values.
Since the birth of the National Prison Project 30
years ago, the federal courts have been the only
effective source of authority to assure that the
nation's prisons do not descend into savagery.
Indeed, there is substantial evidence that prison
litigation has been critical in achieving and
maintaining prisons that comply with the
Constitution. 2
Now, external restraint on the abuse of
prisoners is under attack. Just as too many
politicians have used "three strikes" legislation and
its variants as political tools, politicians have also
engaged in demagoguery with regard to protection
of the constitutional rights of prisoners. The peak
ofthat demagoguery occurred with the passage in
1996 of the Prison Litigation Reform Act (PLRA).
PLRA places multiple barriers in the path of
prisoners who attempt to challenge their conditions
of confinement through litigation. It makes it
substantially more difficult for prisoners to obtain
lawyers for these challenges, and it directly limits
the power of the federal courts to provide remedies
for violations of constitutional rights. As a result,
there has been a significant decrease in the
numbers of cases that prisoners file regarding their
conditions of confinement, and many court orders
attempting to protect the rights of prisoners have
been terminated. If the effects ofthe PLRA are
allowed to go unchallenged, prisoners will once
again be defenseless because no agency other than
the federal courts has the will and power to protect
prisoners from official abuse.
Therefore, notwithstanding the obstacles of
the PLRA, we have no choice but to continue to
engage in litigation to defend the constitutional
rights of prisoners. Ifwe do not do so, prisoners
will suffer abuse, some will die, and others will be
broken in body or spirit. There have already been
Continued on page 4

2

I

I

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THE NATIONAL PRISON PROJECT JOURNAL

Summer/Fall 2002

Ignored by Officials, TX Prisoner Secretly Collected DNA Evidence of Guard
Who Raped Him
The American Civil Liberties Union filed
in October its second lawsuit in recent months over
prisoner rape in Texas, charging that a guard who
repeatedly raped a 22-year-old man was not
punished until after the prisoner provided DNA
evidence of the assaults.
After the first attack in October 2001,
Nathan Essary secretly collected the guard's semen
on a handkerchief and mailed it to the United
States Attorney in Houston. Texas Prison
Prosecutor Kelly Weeks confirmed publicly in
June that testing conducted on the sample linked
Correctional Officer Michael Chaney to the
assaults.
"Despite the repeated sexual attacks and
warnings of deadly retaliation ifhe told, Nathan
Essary summoned the courage to report Officer
Chaney's criminal behavior to prison officials,"said
Margaret Winter, Associate Director ofthe
ACLU's National Prison Project. "Unfortunately,
the response of prison officials was disastrous.
Essary was told to return to work in the prison .
laundry with the guard who assaulted him, where
he was sexually assaulted again."
According to the ACLU lawsuit, Essary, a
past victim of a prison gang-rape, was ordered to
masturbate and perform oral sex on Officer Chaney
on multiple occasions in October 2001. The
ACLU complaint describes how the assaults on
Essary escalated along with the threats. His
attempts to refuse Officer Chaney's demands for
sex were met with warnings that Chaney would
make his life a "living hell" and would even pay
prison gangs to have him killed.
Melinda Essary, Nathan's mother, said the
attacks on her son filled her with despair. "My son
may not be perfect, but he doesn't deserve to be
raped in prison," she said. "I thought the people
who worked in prisons were supposed to prevent
attacks, not cause them. What is going on in Texas
prisons that lets this kind ofthing happen to my
boy?" Texas was identified as the worst state in
the nation for prisoner rape in Human Rights
Watch's 2001 book-length report, No Escape: Male

Rape in U.S. Prisons.
"Without lawyers
to carry their most
serious problems to a
federal judge, prisoners
are dependent on prison
administrators and
supervisors to protect
Nathan Essary, the ACLU's
them," said Meredith
Martin Rountree, director 22 year old client, secretly
ofthe ACLU of Texas's collected DNA evidence on
Prison and Jail
t~e prison guard who raped
Accountability Project.
him.
"Meaningful investigation of prisoners' complaints
and requests for help is essential to replacing
federal oversight with internal monitoring and
management,"added Rountree, who was involved
in the settlement of the case of David Ruiz, a Texas
inmate whose 1972 prison conditions lawsuit
ushered in two decades of federal oversight of the
Texas prison system. That oversight recently ended
in June.
In January 2002, Officer Chaney resigned
from his post at the Department of Criminal
Justice's Luther Unit after being arrested for raping
Essary. This past May he was indicted for the
attacks. The ACLU lawsuit seeks unspecified
punitive and compensatory damages on Essary's
behalf as well as court monitoring ofthe prison's
responses to prisoner complaints, particularly as
they relate to prison staff at the Luther Unit within
the Texas Department of Criminal Justice, where
Essary was attacked.
In April, the ACLU's National Prison
Project filed a lawsuit on behalf of another Texas
prisoner, Roderick Johnson. Over the course of 18
months, Johnson was sexually enslaved and
repeatedly raped by Texas prison gangs. His
multiple pleas to prison administrators to protect
him from the attacks were ignored and the
allegations of rape were never seriously
investigated.
Available data on the prevalence of
prisoner rape, particularly rape committed by
3

Summer/Fall 2002

THE NATIONAL PRISON PROJECT JOURNAL

guards with male victims, is limited. Legislation
introduced in Congress this year by Senators
Edward Kennedy (D-MA) and Jeff Sessions (RAL), authorized the Justice Department to conduct
annual reviews and collect statistics on prisoner
rape. [See article below.] The widely supported
bill failed to be passed during the waning days of
the 107lh Congressional session. Reintroduction of
the act is expected next year.
The lawsuit, Nathan Essary v. Michael
Chaney, et aI., was filed in U.S. District Court for
the Southern District of Texas by Winter, Amy
Fettig and Craig Cowie ofthe ACLU's National
Prison Project and Rountree of the ACLU of
Texas.

Prison Rape Reduction Bill Positive Step,
But Needs to Protect Current Victims
The American Civil Liberties Union in July
gave its qualified support to a prison rape reduction
bill, saying that the problem needs more
comprehensive reform.
"The ACLU is thankful that members of
Congress recognize the overwhelming pain victims
of prison rape experience, but the solution for
ending their suffering must be a comprehensive
effort for reform," said Rachel King, an ACLU
Legislative Counsel. "While the legislation may
some day significantly reduce rapes, it does little
for the current victims ofthis epidemic. Congress
should allow these victims full access to redress in
the courts."
The legislation, called the Prison Rape
Reduction Act of 2002, would establish a
commission to study the harmful effects of prison
rape and examine its prevalence in America's
correctional facilities. The commission would also
distribute recommendations and other information
necessary to help protect inmates from prison rape.
The bipartisan legislation was introduced by Sens.
Edward Kennedy (D-MA) and Jeff Sessions (RAL) and was the subject of a hearing in July before
the full Senate judiciary Committee.
While it is heartening to see Congress
paying attention to the serious problem of prison
rape, the ACLU said, the legislation does little to

4

immediately alleviate the problem. Under current
law, victims cannot ask the courts for protections
from repeated attacks until they exhaust the
prison's administrative complaint procedures, a
process that frequently takes up to six months and
makes the victim vulnerable to further rapes and
retaliation. As a result, many victims simply do
not report the crimes.

Director Reflects
Continued from page 2

far too many Wendells who have suffered
permanent damage rather than rehabilitation as a
result of imprisonment.
This battle has been fought for thirty years.
Our litigation has resulted in reduced crowding,
improved medical care and better environmental
conditions in jails and prisons in most states and
has established valuable case law. Indeed, since
1991 we have argued five cases in the United
States Supreme Court on behalf of prisoners. We,
have litigated tirelessly against the PLRA, and we
intend to continue that litigation. Among our new
and planned initiatives are offensives against
prisoner rape, our campaign for treatment of
prisoners with HIV and Hepatitis C infections, and
our focus on assuring mental health care for
prisoners. Highlights from a few of our recent
cases are listed below to provide you with more
information about the National Prison Project's
litigation efforts.

Joslyn v. Armstrong: The NPP sued Connecticut,
charging that it was allowing its prisoners to be
abused and subjected to cruel and unusual
punishment by housing them in a Virginia
"supermax" prison where they were subjected to
the use of five-point restraints and stun guns. The
NPP negotiated a settlement under which
Connecticut agreed to stop using the supermax.
Jones-El v. Berge: A district judge granted a
preliminary injunction forcing the Department of
Corrections to remove a number of mentally ill
prisoners from a Wisconsin supermax because the
prison was exacerbating their illness. The

THE NATIONAL PRISON PROJECT JOURNAL

defendants entered into a comprehensive
settlement that will substantially ameliorate the
dangerous conditions including those that produce
sensory deprivation and tend to cause susceptible
prisoners to develop mental illness.

Moore v. Fordice: At the request of prisoners in a
segregated HIV unit, the NPP sought to intervene
to represent prisoners who were being denied
necessary medical care. The trial court found that
the medical care being provided by the Mississippi
Department of Corrections was grossly deficient,
and it issued an injunction requiring the prison to
provide HIV care consistent with federal
guidelines. The district court, however, rejected
the prisoners' request to make the NPP class
counsel and prohibited the NPP from
communicating with members of the class. The
NPP appealed to the Fifth Circuit, which reversed
the trial court and vacated the gag order. The
Project was subsequently a moving force in an
advocacy coalition that was successful in
persuading the Commissioner of Corrections to
integrate HIV-positive prisoners into prison
programs. More recently, the district court,
responding to staff retaliation against prisoners on
the unit, granted an injunction barring retaliatory
cell searching and tampering with lawyer-client
mail.
Carty v. Schneider: The district court recently
found that the defendants were in contempt of the
court's orders addressing squalid conditions,
deficient medical and mental health care, and
physical plant and security problems that
endangere(t,the safety of prisoners in these Virgin
Island facilities. Part ofthe remedy for the
contempt involves funds to be deposited to a
remedial fund to improve conditions in the facility.
Duvall v. Glendening: The NPP won a consent
order protecting women in the Baltimore jail from
being housed in portions of the jail that placed
them at great risk of injury or death because of
excessive heat and the lack of ventilation. As a
result of the order, a number of areas of the jail
were air-conditioned, and the jail began screening

Summer/Fall 2002
newly-arrived women for chronic diseases and
pregnancy-related conditions and placing them in
safe housing as necessary.

Hadix v. Johnson: The NPP recently won a ruling
that the largest prison complex in Michigan had
subjected prisoners to "persistent, widespread and
terrible" violations of their constitutional rights.
The order will require the defendants to fix
problems with medical care, the accommodation of
prisoners with disabilities, fire safety, ventilation,
and the protection of chronically ill prisoners at
high risk from heat injury.
Caldwell v. District of Columbia: The NPP
obtained a jury verdict awarding the plaintiff
$175,000 in compensatory and punitive damages
because the defendants failed to treat his glaucoma
and skin cancer and because he was confined in a
sickening and disgusting mental health unit, even
though the defendants admitted that he had never
been mentally ill.
Gomez v. Vernon: The NPP won an order from the
trial court that a number of Idaho prisoners had
suffered retaliation from staffbecause they had
sought to exercise their right to access to courts,
and the court also sanctioned the defendants for
secretly reading the plaintiffs' lawyer-client mail.
The Ninth Circuit affirmed the trial court's rulings
and the Supreme Court denied review.
Heit v. Van Ochten: In this statewide Michigan
case, the NPP won a settlement agreement
requiring the defendants to stop harassing hearing
officers into finding prisoners guilty at disciplinary
hearings and to abolish a secret quota on the
percentage of prisoners who could be found not
guilty. Now the hearing officers must make
individual determinations of the relative credibility
of staff and prisoners accused of misconduct.
1. A fascinating history of the experiment by Prof. Zimbardo can be
found at www.prisonexp.org.

2. Sturm, S., "The Legacy and Future of Corrections Litigation,"
142 University ofPennsylvania Law Review 641, 662-686, 691-697
(Dec. 1993).

5

THE NATIONAL PRISON PROJECT JOURNAL

Summer/Fall 2002

Citing Expert Reports on Inhumane Prison Conditions, ACLU Asks Court to Speed
Review of MS Prison Case
The American Civil Liberties Union asked
a federal court in September to speed review of a
lawsuit over prison conditions at the Mississippi
State Penitentiary in Parchman, citing reports by
court-appointed experts detailing inhumane
conditions that have directly contributed to
psychiatric problems in the prison population.
The reports were submitted by the ACLU's
National Prison Project as part of a lawsuit filed in
July on behalf of six incarcerated men at
Parchman. All four reports describe a similar
picture of conditions so extreme that they seriously
jeopardize the health and safety of the prisoners
incarcerated in Unit 32, which houses Mississippi's
death-row prisoners, its severely mentally ill
prisoners, and prisoners being disciplined for rule
violations.
"When we brought this case in July we
knew that prison conditions were terrible," said
Margaret Winter, Associate Director of the
National Prison Project. "The expert reports we
have now received are so disturbing that we are
asking the court to move this case up on the docket
before prisoners suffer further harm or even death."
According to the report of expert
psychiatrist Terry A. Kupers, who toured the
facilities in August, "the presence of severely
psychotic prisoners who foul their cells, stop up
their toilets, flood the tiers with excrement, and
keep other prisoners awake all night with their
incessant screams and shouts," are "virtually
certain to cause medical illness and destruction of
mental stability and functioning." Kupers said that
conditions on the Unit include solitary confinement
combined with "the extremes of heat and humidity,
a grossly unsanitary environment, vermin, arbitrary
and punitive disciplinary policies, and inadequate
health and mental health care."
Dr. Susi Vassallo, an expert on heat-related
illnesses, describes in her report the conditions she
experienced in one death row prisoner's cell.
"When 1 closed the Plexiglass door, it was like
getting into a car parked in the hot Texas sun and
sitting with the windows rolled up," she wrote. "1
6

needed to
breathe
deeply just
to feel that 1
was getting
enough air.
. .1 could
not
understand
how anyone V·
f
..
,
lew 0 conditions III prisoner s cell shows
could b e
.
I k d
where shelves have been ripped off the wall
oc e up
and an exposed electrical outlet.
in that hot
box for any length oftime without losing control."
In a civilized society, Winter said, "no one
should be subjected to treatment like this. The state
may be authorized to execute death-sentenced
prisoners, but it may not torture prisoners to death
while they are pursuing their rights to appeal their'
sentences."
Many of those appeals will succeed, Winter
added. Of 183 death sentences imposed in
Mississippi since 1976, the Mississippi Supreme
Court has reversed the death penalty in 41 percent
ofthe direct appeals it has ruled on. In fact, almost
as many people have had their convictions reversed
as have been executed.
Any relief will come too late for Tracy Alan
Hansen. Hansen was a death row inmate on Unit
32 and named plaintiff in th~ lawsuit when he was
executed on July 17th. Requests from ACLU
attorneys and Hansen's defense attorneys to halt
the scheduled execution so that he could testify in
the conditions case were denied.
The reports by Kupers and Vassallo, as well
as by environmental expert James Balsamo and
corrections expert Vincent M. Nathan, were filed
in U.S. District Court for the Northern District of
Mississippi in connection with the ACLU lawsuit
Russell v. Johnson. ACLU of Mississippi attorney
Sandi Farrell, Stephen F. Hanlon of Holland &
Knight and Jackson, and Mississippi civil rights
attorney Robert McDuff are serving as co-counsel
in the case.

THE NATIONAL PRISON PROJECT JOURNAL

Hope Triumphs: Supreme Court Says
Hitching Post for Alabama Prisoners is
"Cruel and Unusual"
By Elizabeth Alexander
In an important victory for prisoners' rights,
the Supreme Court in June ruled prison officials in
Alabama have no right to handcuff prisoners to a
hitching post in situations where no emergency
exists. The High Court held that the Eighth
Amendment's guarantee against "cruel and
unusual" punishment was "clearly established" and
had been violated in this particular case.
The American Civil Liberties Union applauds the
decision for its recognition that acts of cruelty and
degradation are beyond the pale of a civilized
society. An instrument oftorture was finally
banished from Alabama, the last Department of
Corrections to use it. It was a banishment that was
long overdue.
Of particular importance, the Court was
careful to provide a broad holding on the nature of
the Eighth Amendment violation. Specifically, the
Court noted that, while the violation in this case·
was exacerbated by the failure of guards to give
inmate Larry Hope proper clothing, water, or
bathroom breaks, it is the use of the hitching post
itself in non-emergency situations that violates the
Constitution. The June decision should be
extremely helpful in litigation challenging various
kinds of prisoner abuse, such as restraint chairs and
other forms of physical restraint, when they are not
used in em~rgency situations.
The 6-3 ruling in Hope v. Pelzer, 01-309,
written by Justice John Paul Stevens, found the
constitutional violation "obvious" and stated that
Hope had been treated by prison staff in a manner
that offended human dignity. This decision will
allow Hope to take legal action against his jailers.
The Court also noted that Hope had been
hitched to a post for an extended period oftime in
a painful position "under conditions that were both
degrading and dangerous," saying that "this wanton
treatment was not done of necessity, but as

Summer/Fall 2002
punishment for prior conduct."
Hope was attached to the hitching post in a
manner that forced him to keep his arms above his
shoulders. Whenever he tried to move, the
handcuffs cut into his wrists, causing him pain.
According to the legal complaint, guards took
away Hope's shirt and left him exposed to the sun
for seven hours with no bathroom breaks and only
a few sips of water. When he asked for water, a
guard first gave water to some dogs and then
kicked the water cooler over, spilling its contents.

ACLU Reaches Agreement with
Maryland in Women's Jail Case
A settlement agreement providing
immediate and long-term relief for women housed
in Baltimore's antiquated and dangerously hot jail
was reached in August between the American Civil
Liberties Union and Maryland state officials.
Under the agreement, special "heat emergency"
procedures will be established to provide medical
screening for all women within hours of entering
the city's Women's Detention Center (WDC). In
addition, women suffering from conditions
exacerbated by excessive heat will have access to
over 200 air- conditioned bed spaces in the facility.
U.S. District Court Judge J. Frederick Motz
entered the agreement as a consent order at an
August hearing.
"We are pleased that women in the
Baltimore Detention Center will be medically
screened and appropriately housed to limit the risk
that the scorching heat may cause," said Joseph H.
Young of Hogan & Hartson, who serves as ACLU
pro bono counsel in the case. "Although we have
reached an important agreement, we will continue
to monitor the facility to ensure the state
complies."
Under the agreement, Maryland will
implement a comprehensive medical protocol for
screening all women in the facility to determine
who is at-risk of heat-related injury. The protocol
will be in place from May 1 through September 30
every year, and at all other times that state public
7

THE NATIONAL PRISON PROJECT JOURNAL

health officials detennine that a "heat emergency"
exists. In addition, the State"will perfonn studies
of the jail's physical plant to detennine how to
improve ventilation, excessive heat and air quality
over the long-tenn, and evaluate the short-tenn
feasibility of installing additional air-conditioning.
The ACLU first appeared in federal court
regarding conditions at the women's jail after filing
a preliminary injunction alleging that heat levels as
high as 117 degrees violated an existing consent
decree. U.S. District Judge Andre M. Davis
issued an emergency order requiring state officials
to immediately screen all women in the WDC for
medical conditions that place them at heightened
risk of heat-related injury or death and to provide
them alternative housing.
At a subsequent hearing, Judge Motz said
the conditions at the jail were so extreme and

Summer/Fall 2002

oppressive that they could not be allowed to
continue. He gave attorneys representing the state
and prisoners only a few days to reach a plan for
improvements.
"We remain concerned about the health of
the women inside the Women's Detention Center,
but are hopeful that the relief Maryland has agreed
to provide will help the situation considerably,"
said Raj Goyle, an attorney with the ACLU of
Maryland. "We look forward to working with the
state and the medical experts in the coming days
and weeks to see that the judge's order is being
followed vigilantly."
Plaintiffs are represented by Young, Frank
Dunbaugh of Annapolis, Elizabeth Alexander of
the ACLU National Prison Project and Deborah
Jeon and Goyle ofthe ACLU of Maryland.

ACLU Challenges Arizona Law That Censors Anti-Death Penalty Web Sites
Acting on behalf of anti-death penalty and
other advocacy groups, the American Civil
Liberties Union in July filed a lawsuit in Arizona
federal district court seeking to invalidate a state
law that bans all infonnation about Arizona
prisoners from the global Internet.
"It is extraordinary that Arizona prison
officials believe they can tell international groups
opposed to the death penalty what they can and
cannot say online about prisoners in Arizona," said
Eleanor Eisenberg, Executive Director ofthe
ACLU of Arizona. "It is equally absurd that this
law punishes prisoners even when they are not
responsible for the posting of infonnation about
them on these outside websites," she added.
The lawsuit, Canadian Coalition Against
the Death Penalty v. Terry L. Stewart, is brought
on behalf of three prisoners' rights groups against
the Arizona Department of Corrections which is
responsible for enforcing this law. The broadly
worded legislation (Arizona House Bill 2376) also
bars prisoners from corresponding with a
"communication service provider" or "remote
computing service" and disciplines prisoners if any
person outside prison walls accesses a provider or

8

service website at a prisoner's request.
The ACLU's organizational clients are the
Canadian Coalition Against the Death Penalty,
which has infonnation about 45 Arizona prisoners
on its website; Stop Prisoner Rape, a group that
seeks to end sexual violence against individuals in
detention; and Citizens United for Alternatives to
the Death Penalty, a group that organizes public
education campaigns with the intention of
abolishing the death penalty.
All ofthe ACLU's clients maintain
websites with prisoner infonnation. Recent
department notices demand that prisoners have
their names and case infonnation removed from
advocacy websites or face prison discipline and
possible criminal prosecution. "Ironically,
prisoners would be in violation of the statute
simply by communicating with a service provider
or website to have their infonnation removed,"
Eisenberg noted.
The ACLU's complaint alleges that the
legislation in question has the effect of suppressing
the flow of infonnation about prisoners to the
outside world and stifles the advocacy efforts of
the ACLU's clients and other anti-death penalty

THE NATIONAL PRISON PROJECT JOURNAL

and prisoner rights organizations. While the state's
department of corrections maintains its own
website offering prisoner information, the ACLU
complaint charges that Arizona is gagging critics
who challenge the state's version of the facts about
prisoners, including evidence that may establish
innocence. There has also been no evidence to
suggest that the department of corrections has
made any effort to remove Arizona prisoners'
information posted on the websites of pro-death
penalty groups and organizations that advocate
harsher punishment of prisoners.
"Prisoners forfeit many rights when they
are incarcerated, but they do not forfeit their
freedom of speech," said David C. Fathi, staff
counsel with the ACLU's National Prison Project.
"These basic rights may be limited only to the
extent necessary to maintain prison security, and
that is clearly not the issue here."
Fathi ofthe ACLU's National Prison
Project, Ann Beeson of the ACLU's Technology
and Liberty Program and Alice Bendheim and
Pamela K. Sutherland of the ACLU of Arizona are
all serving as co-counsel in the case.
Beginnings
Continuedfrom page I

The movement for prisoners' rights was
fairly quiet in its early days. The federal courts just
began to reexamine the "hands off' doctrine under
which the courts had declined to review prison
conditions or practices for many years. Then the
Attica uprising in September of 1971 occurred,43
prisoners and guards lost their lives and 80 others
were woun<1ed. The prisoners' rebellion and its
aftermath served as an opening into the dark world
of America's prisons and became the catalyst for
the development ofthe modem prisoners' rights
movement.
I had spent most of the 1960s in the south
as the Chief Staff Counsel of the Lawyers
Constitutional Defense Committee in Mississippi,
Louisiana and Alabama. In the early 1970s I was
continuing my civil rights work in New Orleans. A
meeting was arranged in Washington in the Spring
of 1972 where I met with the new national director

Summer/Fall 2002
of the ACLU, Aryeh Neier, Schwartz and
Hirschkop. Neier believed that groups of civil
liberties victims should be represented in one
project, an "enclave" theory that he brought to the
. ACLU.
At that meeting in Washington it was
decided to merge the Buffalo project and the
Virginia project into one new "National Prison
Project" to be directed by me and to be based in
Washington. It was felt that one national project
would be more effective than two local ones. The
project opened its doors during the first week of
June 1972. Two young lawyers, Nancy Crisman
and Michael Milleman, who had been working in
Hirschkop's office, a secretary and an office
administrator joined me to form the first National
Prison Project staff.
During its very early years the NPP
replicated the work done by Schwartz and
Hirschkop, bringing fairly narrow single issue
prisoners' rights litigation. For example, we
brought a suit against the US Parole Commission
to require them to provide some procedural due
process in the parole system. We brought some
actions asking for due process hearings before a
prisoner could be punitively transferred from one
prison to another. There were cases involving the
censorship of prisoner-lawyer mail and other single
issue kinds of cases. After a few years and in
consultation with Schwarz and Hirschkop, my
growing staff and I realized that the real problem in
prison was the unconstitutionality of prison life
itself. We realized that winning narrow victories
essentially changed nothing in what was going on
in the dark, secret confines of America's prisons.
We decided in 1974 to look for a case that would
involve a broad-based assault on prison conditions
and the totality of prison life and found such a case
serendipitously in Alabama.
An elderly black prisoner in Alabama,
Worley James, wrote a handwritten complaint to
the Chief Judge ofthe Middle District of Alabama,
Frank Johnson. It stated that he had been in and
out of Alabama's prisons for most of his adult life
and they didn't do anything for him. Judge
Johnson who had seen many pro se complaints
from the Alabama prison system finally decided

9

Summer/Fall 2002

THE NATIONAL PRISON PROJECT JOURNAL

that he should probably take a look at what was
going on in Alabama's prisons. He certified this
case as a statewide class action and appointed a
law professor at the University of Alabama,
George P. Taylor, as counsel for the plaintiffs.
Johnson suggested to Taylor that he get help by
contacting the National Prison Project. That case
was the birth of the "totality of conditions" concept
in prison litigation.
I had appeared before Judge Johnson in a
number of civil rights cases in the 1960s and knew
he was a thoughtful and decent judge. After a
series of meetings in Montgomery, Alabama with
local lawyers and local ACLU officials, the staff of
the NPP decided to enter into the case, James v.
Wallace. It was then consolidated with two other
cases, Pugh v. Locke and Newman v. Alabama.
The state filed a motion to dismiss and we drafted
the response for the team of plaintiffs' lawyers. In
the fall of 1974, Judge Johnson issued an opinion
denying the motion to dismiss. He also set the
framework for the case, telling us that if we could
prove that prison conditions in Alabama actually
made the prisoners worse, then that might be an
Eighth Amendment violation. Word of the
pending case spread around the country and to our
amazement a number of national experts
volunteered to participate in the case. In fact, eight
prominent experts in corrections, classification and
mental and environmental health assisted the
National Prison Project and the other plaintiffs'
counsel and testified in the case. None ofthem
charged a fee for their work because, for them, the
case was of national importance.

The rest is history. In January of 1976
Judge Johnson issued a sweeping opinion declaring
the entire state system unconstitutional because the
totality of conditions actually made people worse
off. 2 He entered a sweeping remedial decree.
This decision was the most significant
catalyst for setting the agenda of the National
Prison Project for the next decade and a half.
Shortly after Alabama, the NPP, together with
local counsel, brought similar totality of conditions
cases in Rhode Island and Tennessee. By the end
of 1987 the NPP had achieved similar victories and
court ordered reform in 30 states, the District of
Columbia and the U.S. Virgin Islands. It was truly
a "National" Prison Project.
The Project staff grew, foundation support
increased, and in the words of Herman Schwartz,
one of the National Prison Project's founders, it
became "the preeminent prisoners' rights
organization in the country, and probably in the
world.,,3 I believe it is fair to say that the work of
the National Prison Project over the past 30 years
has eliminated 19 th century dungeons in America.
However, much work remains to deal with the
serious problems in our 21 st century institutions.
I Founding Director, The National Prison Project, 1972 - 1995.
Currently a consultant to the ACLU National Legal Department;
Board member and consultant for Penal Refonn International.

Pugh v. Locke and James v. Wallace, 406 F. Supp. 318 (M.D. Ala
1976).

2

An article describing the early years of the NPP by Hennan
Schwartz. The National Prison Project Journal, 15 th Anniversary
issue, No. 13, Fall 1987, p. 5.

3

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

IU.S. Court of Appeals Cases I
PLRA--Exhaustion of Administrative Remedies
Smith v. Zachary, 255 F.3d 446 (7th Cir.
2001). Use of force claims are prison conditions
cases requiring exhaustion under the PLRA. Note
10

that this holding is now required by Porter v.
Nassle, 122 S. Ct. 983 (2002).
The court rejects the notion that the only
purpose of § 1997e(a) is to ferret our frivolous
claims. It serves to give the prison system prompt
notice of problems, which also gives them
opportunity to address situations internally (e.g. by

THE NATIONAL PRISON PROJECT JOURNAL

relocating the prisoner, firing guards, hiring new
ones, or providing additional training and
supervision). It also helps develop the factual
record. Deterring frivolous suits was not
Congress's only goal in the PLRA, since it included
provisions like attorneys' fees, telephonic hearings,
and waivers.
This is a pre-PLRA case. Plaintiff says that
by filing complaints he substantially complied with
the exhaustion requirement. The court adopts the
substantial compliance pseudo-retroactivity rule of
the Sixth Circuit--in dictum, it seems, because it
holds the argument waived, since the plaintiff
argued below only that he was not required to
exhaust.

PLRA--Prospective Relief Restrictions--Entry
of Relief/Access to Courts--Punishment and
Retaliation/Correspondence--Legal and
Official/Personal Involvement and Supervisory
Liability/State Officials and Agencies/Injunctive
Relief/Sanctions
Gomez v. Vernon, 255 F.3d 1118 (9th Cir.
2001). At 1122: Prison officials engaged in a
pattern of retaliation against several prisoners for
their litigation activity and cut law library services
drastically in order to prevent prisoners' access to
courts. After they filed suit, they were required to
keep their correspondence with class counsel and
other case-related materials in binders in the law
library. Prison employees read and made copies of
some of these materials and provided them to the
deputy attorney general defending the case, some
of them at her request. Eight months after this
started, the defense attorneys asked a state bar
official abQut it and were told to stop doing it and
tum the documents over to the court; but they
didn't stop.
"The Department's failure to investigate or
correct constitutional violations supports the
district court's finding that there was a policy or
custom [regarding retaliation] that led to violation
of the inmates' rights."
Two things are significant here: the court
equates the personal involvement requirement in
official capacity cases with the Monell policy
requirement, then it says that after-the-fact

Summer/Fall 2002
evidence can make the policy case by itself.
A prisoner who was subjected to repeated
threats of transfer because of his complaints about
the administration of the law library and who
eventually quit his job stated a First Amendment
claim based on the chilling effect ofthe conduct.
At 1129: "Although the PLRA significantly
affects the type of prospective injunctive relief that
may be awarded, it has not substantially changed
the threshold findings and standards required to
justify an injunction." The district court properly
concluded that an injunction was necessary despite
defendants' protestations that it wouldn't happen
agam.
The district court properly
limited its injunction to a
combination of prospective and
retrospective relief granted to just
six inmates, denying class-wide
injunctive relief. Three inmates
received retrospective relief of
expungement of record. Because
the retrospective relief does not
raise the same federalism concerns
as a court's ongoing supervision in a
prison's affairs, and because it was
limited to remedying the prison's
retaliatory acts, such relief passes
constitutional muster....
Five inmates received
prospective relief, such as enjoining
the Department from adversely
affecting pay levels and
employment because of this lawsuit.
None ofthese remedies requires the
continuous supervision of the court,
nor do they require judicial
interference in the running of the
prison system. . .. As required by
the PLRA, the prospective relief
focused specifically on those few
actions necessary to correct
violations of individual inmates'
rights.
In sum, the relief granted
addressed only the harm caused
each individual inmate. It did not
11

THE NATIONAL PRISON PROJECT JOURNAL

apply to the prison system as a
whole, or even to classes of
prisoners. At most, the injunction
affects a few isolated decisions over
the course of these inmates'
sentences. In the face of page after
page of findings with regard to
violation of the inmates'
constitutional rights, the narrow
injunction can only be characterized
as minimal and virtually
non-intrusive. Accordingly, the
court did not abuse its discretion in
granting such narrowly drawn
injunctive relief.
The district court properly imposed
sanctions on defense counsel. The
communications were privileged (and the privilege
wasn't waived by plaintiffs' obeying prison rules
about where to keep them), and the court had
inherent power to sanction counsel for bad faith
conduct (their actions "do not pass even the most
lenient ethical 'smell test"'). Sanctions were also
appropriate under 28 U.S.C. § 1927, which refers
to attorneys who "multipl[y] the proceedings in any
case unreasonably and vexatiously." These counsel
did so by moving for contempt based on their
surreptitious reading and thereby evoking a
counter-motion for sanctions.

Searches--Urinalysis/Procedural Due Process-Disciplinary Proceedings/Grievances and
Complaints about Prison/Transfers
Farver v. Schwartz, 255 F.3d 473 (8th Cir.
2001). The plaintiff alleged that he was disciplined
with loss"of good time after a urine test done for
retaliatory reasons. Under Heck, he can't challenge
it under § 1983 without first getting the
disciplinary conviction set aside. The claim of
retaliation was also properly dismissed because
there was evidence (a report from staff and test
results) supporting the discipline.
It was error to dismiss claims of other
retaliatory disciplinary charges that had been
dismissed by prison officials, and to dismiss a
retaliatory transfer claim based on a complaint
about staff.
12

Summer/Fall 2002

Summary Judgment/Heating and
Ventilation/Evidentiary Questions
Mays v. Rhodes, 255 F.3d 644 (8th Cir.
2001). The decedent died of heat exhaustion on
his first day on the hoe squad (on November 6,
mid-afternoon temperature 72 degrees). Unsworn
accounts in grievance forms filed by other
prisoners contradicted the defendants' account, but
those are inadmissible hearsay and the plaintiff did
not obtain deposition testimony or affidavits from
their authors. The defendants' account thus stands
unchallenged, and there is no evidence from which
any defendant could be found deliberately
indifferent.
Hazardous Conditions and Substances
Carroll v. DeTella, 255 F.3d 470 (7th Cir.
200 I). The plaintiff sued prison officials, the state
Environmental Protection Agency, and two EPA
employees alleging that the drinking water was
contaminated by radium and lead.
The lead contamination is "remote from
cruel and unusual punishment" because it results
from corrosion in the pipes, which occurs only
when the water is still, and prison officials had .
instructed prisoners to let the water run for a few
minutes in the morning before drinking it.
The radium contamination "presents a more
difficult question," since it is almost twice the
maximum level set by the federal EPA, and prison
officials (while telling the inmates the water was
safe) began providing free bottled water to the
staff. There is a 1/10,000 higher risk of cancer
from ingesting the EPA standard's worth of radium
for 70 years; the record doesn't say anything about
ingesting twice that for a shorter period. At 47273:
Failing to provide a
maximally safe environment, one
completely free from pollution or
safety hazards, is not ...required by
the Eighth Amendment.
If the
prison authorities are violating
federal antipollution laws, the
plaintiff may have a remedy under
those laws. . .. His remedy is not
under the Eighth Amendment.

THE NATIONAL PRISON PROJECT JOURNAL

The plaintiffs claim against the state EPA was
dismissed because it is not a "person" under §
1983, and his claim against EPA employees was
dismissed because they hadn't been served. The
plaintiff is proceeding pro se.

Pro Se Litigation/Conduct of Trial
Kulas v. Flores, 255 F.3d 780 (9th Cir.
2001). A pro se prison plaintiff was removed from
the courtroom during the trial after he persisted in
disrupting the cross-examination of one of his
witnesses (an adverse witness) with frivolous
objections. "In a civil suit, the parties do not have
a constitutional right to be personally present
during the trial." However, there is a due process
right for plaintiff or counsel to be present, which
right applies to a pro se litigant who is both. Here
the district court should have explored other
options, such as holding him in contempt or
postponing the proceedings, but removal was not
an abuse of discretion under the circumstances.
Access to Courts--Confiscation and Destruction
of Legal Materials/Procedural Due Process-Property/Equal Protection/Personal
Involvement and Supervisory
Liability/Discovery/Correspondence
Jackson v. Burke, 256 F.3d 93 (2d Cir.
2001). The plaintiffs mother sent him documents
to use to challenge his conviction; they arrived at
the prison but were sent back, arriving in a
mutilated condition with some ofthe documents
effectively destroyed. An official said he would
investigate, but never completed the investigation
because the plaintiff was transferred. The plaintiff
missed various deadlines in challenging his
conviction.
The district court granted summary
judgment. The court assumes that the plaintiff
states a claim for denial of access to the courts. He
should be allowed additional discovery to identify
the proper defendants (having served the wrong
prison employee).
The plaintiff did not state a court access
claim against the official who failed to investigate.
The p1aintiffhad no due process claim for
destruction of his papers because the state provides

Summer/Fall 2002
an adequate post-deprivation remedy, e.g., in the
Court of Claims. The plaintiffs failure to file his
claim because he thought he had to wait for the
never-completed investigation does not alter this
conclusion.
The plaintiff had no equal protection claim,
even under the Supreme Court's decision
authorizing "class of one" claims, because there
was no evidence that the destruction of his mail
was intentionally directed at him.

Correspondence--Legal and Official/Access to
Courts--Confiscation and Destruction of Legal
Materials; Punishment and
Retaliation/Typewriters
Cody v. Weber, 256 F.3d 764 (8th Cir.
2001). The plaintiff, a frequent litigator, was
allowed to have a word processor and then a
computer, then the prison changed its policy to bar
computers; the district court granted a TRO, then
granted summary judgment to defendants and
ordered that the p1aintiffbe given two weeks to
print out any legal documents he needed before
sending his computer out of the prison. The
plaintiff now alleges that his legal papers and
correspondence were read outside his presence and
that he was punished in various ways for bringing
lawsuits.
Defendants argued that the plaintiff couldn't
show actual injury because he didn't specify what
papers were read or how reading them affected any
particular litigation. The court says he has
sufficiently alleged injury. "He asserts that
defendants have obtained an unfair advantage in
defending themselves against his claims of
constitutional denials and violations by reading his
legal papers." An allegation of injury may not be
sufficient to withstand summary judgment, but
here defendants offered no evidence of a
penological interest justifying the intrusion (they
deny doing it).
The plaintiffs claim of retaliation should
not have been dismissed. The plaintiffs
allegations of numerous specific incidents claimed
to be retaliatory, including recitation of one
instance in which a prison employee told him he
was transferred to a mental health unit to convince
13

THE NATIONAL PRISON PROJECT JOURNAL

him not to "use the system," created an issue of fact
barring summary judgment.

Recreation and ExerciselEmergency/Negligence,
Deliberate Indifference and Intent
Delaney v. DeTella, 256 F.3d 679 (7th Cir.
2001). The plaintiff alleged he had been denied all
out-of-cell exercise opportunities for six months
during a lock-down.
The court reiterates the old Seventh Circuit
chestnut that deliberate indifference requires
"actual knowledge of impending harm easily
preventable," which suggests that "the officials
actually want the prisoner to suffer the harm." This
language is clearly wrong. See Helling v.
McKinney, Farmer v. Brennan.
"Given current norms, exercise is no longer
considered an optional form of recreation, but is
instead a necessary requirement for physical and
mental well-being." Short-term denials may be
acceptable, but this deprivation was long-term and
serious and no alternative arrangements were made
to mitigate it (in-cell calisthenics don't rise to that
level). "While there may in certain cases be
legitimate penological reasons justifying an
extended denial of exercise privileges, here none
are presented." Expert testimony isn't necessary at
this stage to show that the plaintiffs health was
threatened by the denial, since this is a qualified
immunity appeal, on which all the court does
factually is consider whether plaintiffs allegations,
if true, state a claim. The court also suggests that
there may be "some interplay" between the severity
of the deprivation and the required showing of
injury, and notes that it has acknowledged the
likelihood of psychological injury from lack of
exercise. The defendants are wrong to claim that
only physical injury meets the Eighth Amendment
standard. The asserted right was clearly
established by Seventh Circuit decisions going
back to 1986.
False Imprisonment
Campbell v. Peters, 256 F.3d 695 (7th Cir.
2001). The plaintiff served too much prison time.
He argued that "if through deliberate indifference
to the requirements of state law the correctional
14

Summer/Fall 2002
officials kept him imprisoned too long, his Eighth
Amendment rights were violated even if the
additional time was not very long." The court says
"he has articulated a constitutional right." (700)
The defendants were entitled to qualified
immunity. Even though the right not to be held
beyond one's sentence is clearly established, it was
not established that the kind of state law mistake
that occurred here violated the Eighth Amendment.
(In fact, some state courts had interpreted state law
ina way adverse to the plaintiffs claim.)

Sexual Abuse/Juveniles/Personal Involvement
and Supervisory Liability/Damages--Assault
and Injury/Negligence, Deliberate Indifference
and Intent/Qualified Immunity
Beers-Capitol v. Whetzel, 256 F.3d 120 (3d
Cir. 2001). Two former residents of a detention
facility for female juveniles alleged that they were
sexually assaulted by a staff member, who was
later convicted criminally. The supervisory
defendants were dismissed; plaintiffs were
awarded $200,000 in damages against the
employee.
The court rejects plaintiffs' theory that since
the supervisory defendants were all "trained
experts in the area ofjuvenile detention, ... they
must have been aware of the excessive risks of
harm to the plaintiffs...." (134)
The plaintiffs alleged that defendants'
policies were deficient in that they didn't require
female staff members in all female units at all
times; there was poor or no supervision of staff at
night; there was no observation or surveillance
system (so the staff member could take female
residents to unobserved areas); private interactions
between male staff and female residents were
permitted; and unsupervised trips off-grounds with
male staff were permitted. They alleged training
was deficient.
The Executive Director was not shown to
have been aware of a pattern of sexual assaults;
two allegations don't meet that standard, and
anyway they would only be a pattern of allegations,
not of injuries. The failure to implement policies
that are standard or recommended for juvenile
facilities doesn't create "so great and so obvious" a

THE NATIONAL PRISON PROJECT JOURNAL

risk that the defendant must have known about it
and have been indifferent to it.
The director of the housing unit cannot be
held liable for similar reasons. Also, her failure to
discipline a staff member for delaying reporting of
one plaintiffs complaint, and for then mishandling
the complaint, and for then botching the
investigation, could not support liability because
they occurred after the incident complained about,
and because they did not show deliberate
indifference to a subsequent risk to the other
plaintiff.
The manager of the housing unit could not
be held liable. He was aware of three allegations
of abuse by the staff member, but there is no
evidence that he believed they were likely to be
true or the evidence was so strong he must have
believed them likely to be true. He displayed a
"subjective mindset of basic skepticism" which is
inconsistent with deliberate indifference.
A counselor could be found deliberately
indifferent based on evidence she had heard
"general rumors from the residents" about the
malefactor's activities, but did not investigate or
report them (though she wrote them down "[t]o
cover my behind, in case it were true"); had
responded to another such report by setting up a
meeting with the abuser without reporting it to
supervisors; and had admitted that she "kind of
knew" he was "messing with students." (141)
There was some evidence that the rumors on which
she based that conclusion had antedated the
incidents of abuse.
"There is no question that the plaintiffs'
constitutional right that was violated--the right not
to be sexually abused by a state employee while in
confinement--was clearly established" in 1994.
"Conduct that is deliberately indifferent to an
excessive risk ... cannot be objectively reasonable
conduct."

AIDS/Privacy/Medical Records/Mootness/
PLRA-Mental or Emotional Injury
Doe v. Delie, 257 F.3d 309 (3d Cir. 2001).
The plaintiffs HIV-positive status was not kept
confidential; jail staff informed medical escort
officers of his condition, the door was left open

Summer/Fall 2002
during his medical appointments allowing inmates
and staff to eavesdrop, and nurses announced his
medication loudly enough for others to hear.
There is a right to privacy in one's medical
information, which extends to prescription records,
and is "particularly strong" in the case ofHIV
status. That right survives incarceration. "...
[The] right to privacy in his medical information is
completely different than the right extinguished in
Hudson [v. Palmer}. ... The [due process] right to
nondisclosure of one's medical information
emanates from a different source and protects
different interests than the right to be free from
unreasonable searches and seizures."
The right of medical privacy in prison is
subject to the Turner standard. The defendants
submitted no evidence about the justifications for
their "open-door" examinations, disclosure of
plaintiffs condition to officer escorts, and the loud
announcement of the names of plaintiffs
medications, so the court can't evaluate the Turner
factors. (The news here is that defendants must'
submit "evidence" and not just assertion.)
The defendants are entitled to qualified
immunity. The state HIV privacy statute doesn't
defeat qualified immunity. By 1995, no federal
appeals court, and only a handful of district courts,
had held that prisoners retained a right of medical
pnvacy.
At 314 n. 3: The PLRA mental/emotional
injury provision does not bar claims
seeking nominal damages to vindicate
constitutional rights, nor claims seeking
punitive damages to deter or punish
egregious violations of constitutional rights.
Doe's claims for compensatory damage are
barred by § 1997e(e). Moreover, to the
extent that Doe's punitive damages claims
stem solely from the violations of his right
to medical privacy, and not from any
emotional or mental distress suffered, those
claims are not barred by § 1997e(e)....

PLRA--Exhaustion of Administrative
Remedies/Sanitation/Plumbing/Correspondenc
e--Legal and Official/Pleading/Procedural Due
Process--Property/Protection from Inmate
15

THE NATIONAL PRISON PROJECT JOURNAL

AssaultlFood/Use of Force
Dellis v. Corrections Corporation of
America, 257 F.3d 508 (6th Cir. 2001). The court
held this case pending resolution ofBooth; it now
remands for dismissal without prejudice of nonfrivolous claims.
Claims that the plaintiff was deprived of a
lower bunk, was subjected to a flooded cell, and
was deprived of a working toilet, alleged only
temporary inconveniences (doesn't say how long).
"[C]onclusory, unsupported" allegations
that the plaintiffs legal mail was opened were
insufficient to state a claim.
The plaintiffs allegation of assault by other
prisoners might be shown to be "reasonably
preventable," and the fact that he had refused
protective custody a year earlier does not
necessarily excuse a subsequent failure to protect.
An allegation that the prison's water supply
was out for three days and the plaintiff received
only two half pints of milk and one 16.5 ounce
bottle of water during that time stated a
constitutional claim.
PLRA--Attorneys' Fees/Damages--Access to
Courts/Grievances and Complaints about
Prison/Special Verdicts and Jury Instructions
Walker v. Bain, 257 F.3d 660 (6th Cir.
2001). The plaintiff alleged that in retaliation for
his filing of grievances, officers arranged a
shakedown of his cell and improperly confiscated
documents and personal property and delayed
providing him grievance forms. After a jury trial
he was awarded $300 against one defendant and
$125 against another.
The portion of 42 U.S.c. § 1997e(d)(2) that
says "If the award of attorney's fees is not greater
than 150 percent of the judgment, the excess shall
be paid by the defendant" (excess over the
plaintiffs 25%, that is) means that defendants are
never liable for more attorneys' fees than 150% of
the judgment. "We caution that if non-monetary
relief is obtained, either with or without money
damages, § 1997e(d)(2) would not apply."
The prior decision in Hadix upholding the
PLRA fee rates is dispositive, since "we held that
the twin goals of decreasing marginal lawsuits and
16

Summer/Fall 2002
protecting the public fisc are legitimate
government interests, and that decreasing an
attorney fee award in the context of prisoner civil
rights litigation serves both of these interests."
The district court erred in instructing the
jury that the plaintiff had to prove as an element of
a First Amendment retaliation claim that
defendants actions "shock the conscience," but that
instruction didn't affect the result.

Religion--Beards, Hair, Dress/DeferencelEqual
Protection
Taylor v. Johnson, 257 F.3d 470 (5th Cir.
2001). The Muslim plaintiff challenged a
prohibition on beards. His free exercise claim is
foreclosed in the Fifth Circuit by Green v.:.
Polunsky.
The district court abused its discretion in
dismissing his equal protection claim as frivolous.
The plaintiff alleged that he was similarly situated
to persons who cannot shave for medical reasons.
His claim is governed by a reasonableness
standard, and not strict scrutiny, under Turner and
o'Lone.
The court declines to consider the plaintiffs
claim under the Religious Land Use and
Institutionalized Persons Act (RLUIPA) because he
didn't raise it except in a Rule 60 motion and then
didn't separately appeal the motion's disposition, so
the court lacks jurisdiction.
Hazardous Conditions and Substances/
Plumbing/Negligence, Deliberate Indifference
and Intent
Shannon v. Graves, 257 F.3d 1164 (10th
Cir. 2001). The plaintiff alleged that inmate
workers had to handle quantities of sewage because
of the deficiencies of the prison sewage system,
and that she got some on her because her protective
clothing was the wrong size and wasn't able to
wash the sewage off immediately (though she
showered later). There are also frequent sewage
backups, which are cleaned up with blankets which
are then given no more than standard laundering.
Clothing also comes back from the laundry
smelling bad.
Inmate exposure to sewage

Summer/Fall 2002

THE NATIONAL PRISON PROJECT JOURNAL

can constitute a serious risk to
inmate health and safety and satisfy
the objective component [of the
Eighth Amendment] ....
[E]xposure to the human waste of
others carries a significant risk of
contracting infectious diseases such
as Hepatitis A, shigella, and others.
. .. There is no requirement that an
inmate suffer serious medical
problems before the condition is
actionable....
Here, the plaintiff might satisfy the
objective component or Eight Amendment
violation, but she can't show deliberate indifference
for a one-time exposure to sewage. She wasn't
denied protective equipment; the complaint that the
clothing was inadequate and she wasn't allowed to
clean up immediately "at best" suggest negligence.
The alleged fecal contamination of blankets
and clothing raises a material issue of fact as to the
objective prong, but there is no evidence that
prison officials knew about this before the plaintiff
filed her complaint.
The sewage backups are "troubling," and
evidence suggests that prison officials know that
the existing sewage system is inadequate, yet there
is not enough evidence of frequency and duration
to create an Eighth Amendment issue. So the court
affirms summary judgment against this litigant
who was pro se in the district court, rather than
remanding, even though it appointed counsel on
appeal.

Disabled/State Officials and AgencieslDamagesPunitivelDamages--Assault and Injury/Special
Verdicts and Jury Instructions
Gorman v. Easley, 257 F.3d 738 (8th Cir.
2001). The paraplegic, wheelchair-bound plaintiff
was arrested and transported in a van without
wheelchair locks; he was strapped to a bench and
the unfolded wheelchair placed in the van with
him. He fell off the bench and sustained
permanent injuries and burst his urine bag (which
the police had not let him empty); his wheelchair
was damaged. A jury awarded actual damages of
$1,034,817.33 and punitive damages of$1.2

million on his claims under the Rehabilitation Act
and the ADA. .
The local Police Board is not protected by
the Eleventh Amendment.
The district court erred in holding that the
disability statutes do not permit punitive damages;
the court rejects the Sixth Circuit holding to the
contrary.
The defendants' argument that the plaintiff
is not a qualified person with a disability because
his wheelchair is a corrective device that must be
taken into account is given the short shrift that it
deserves (it doesn't replace his legs and anyway the
whole point is that he didn't have it in the police
van).
The court affirms jury instructions that said
making a reasonable accommodation meant
modifying defendants' practices for transportation
to transport him in a manner that was "safe and
appropriate consistent with his disability." This
doesn't mean that defendants had to hold the
plaintiff harmless from anything that might happen,
just that the defendants couldn't leave him helpless
by reason of his disability.

Use of ForceNerbal Abuse/Access to Courts-Punishment and Retaliation/Evidentiary
Questions
Proctor v. Harmon, 257 F.3d 867 (8th Cir.
2001). The plaintiff alleged (testifying at a pretrial hearing) that an officer jumped on him, bodyslammed him to the floor twice, stomped on his
head and back, and kicked and punched him
repeatedly, and that two other officers beat him
with a flashlight and their fists, all while he was
handcuffed. The district court should not have
dismissed this claim. Nor should it have dismissed
his claim ofthreats of physical harm by the
officers, since he testified that they made reference
to his newly filed lawsuits.
"Witnesses should not automatically be
excluded as 'cumulative' merely because they will
be testifying to the same events as the plaintiff
himself. The jury might find that corroboration of
this kind makes the plaintiff more believable."
StandinglReligion--Services Within
17

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Institution/PLRA--Prospective Relief
Restrictions--Preliminary Inj unctions/
Injunctive Relief- Preliminary/Deference
Mayweathers v. Newland, 258 F.3d 930
(9th Cir. 2001). The named plaintiffs alleged that
they were at risk of discipline or losing good time
for going to Jumu'ah services rather than to work.
They had standing. One plaintiff has a Friday work
assignment and has received unexcused absences
from work; others had either received unexcused
absences or had missed services for fear of
disciplinary proceedings, and although they do not
presently work on Fridays, prison officials retain
the power to change their assignments back.
The district court had power to grant a new
preliminary injunction while the first one was
being appealed. Although the district court
generally loses jurisdiction when a notice of appeal
is filed, it retains jurisdiction to preserve the status
quo, and may grant an injunction pending appeal
under Rule 62(c), Fed.R.Civ.P.
The PLRA did not preclude the district
court from entering a second preliminary
injunction after the first expired. At 936: "Nothing
in the statute limits the number of times a court
may enter preliminary relief." The PLRA does not
limit courts' authority to order prison officials to
violate state law to the grant of final relief
The district court did not abuse its
discretion in granting a preliminary injunction.
O'Lone is distinguishable, because that case
involved prisoners working outside the prison, and
relief would have required reassigning Muslims to
"preferential jobs." Here, all that was ordered was
to stop disciplining prisoners for attending Jumu'ah
services rather than working. Under the Turner
standard: The third and fourth factors, however,
weigh solidly in favor of the inmates. The
defendants have utterly failed to show any ripple
effect among inmates and staff from the narrow
scope of the injunction. Prison administrators have
implemented the injunction by logging inmates'
unexcused absences as always; the only change is
that unexcused absences attributable to Jumu'ah
attendance are offbounds to the disciplinary
process. Unlike O'Lone, this remedy does not
require that Muslims receive preferential work
18

Summer/Fall 2002
assignments.
The plaintiffs suffer irreparable injury when
they are unable to attend religious services
commanded by the Qu'ran. At 938: "And the free
exercise of religion in prisons is obviously in the
public interest."

PLRA--Three Strikes Provision
Higgins v. Carpenter, 258 F.3d 797 (8th
Cir.2001). The three strikes provision is upheld in
a typical superficial opinion which overrules Ayers
v. Norris, one of the two extant district court
opinions holding the provision unconstitutional.
Rational basis scrutiny applies. Inmates
and indigents are not suspect classes. Id. :
Even when § 1915(g) is applied, the
affected inmate can file his suit by
paying the full filing fee up front.
The indigent inmate who has three
strikes also may file if he is under
imminent danger of serious physical
injury. We conclude that an
inmate's right of access to the courts
is not impeded.
It is true that some indigent inmates
have no prison jobs or other income
sources and cannot save the full
filing fee--may be effectively
prevented from pursuing valid
constitutional claims after receiving
three strikes. Yet, "a constitutional
requirement to waive court fees in
civil cases is the exception, not the
general rule. "
Use of Force/Summary Judgment
Outlaw v. Newkirk, 259 F.3d 833 (7th Cir.
2001). The plaintiff complained that an officer
slammed a food service slot on his hand. The
officer said the plaintiff tried to throw trash
through the opening, that he didn't know the
plaintiffs hand was in the opening, and it was an
accident.
The defendant is entitled to summary
judgment. It is undisputed that the plaintiff said,
"Take this garbage, you bitch," and that prisoners
in the maximum unit sometimes threw garbage or

THE NATIONAL PRISON PROJECT JOURNAL

other objects out of their cells. Also, medical
records indicate that the plaintiffs injuries were
minor. The evidence suggests that the defendant
had a legitimate reason to close the door,
regardless of whether the plaintiff was throwing
garbage or offering it, and that the force applied
was de minimis.

PLRA--Exhaustion of Administrative
Remedies/Federal Officials and Prisons
Massey v. Helman, 259 F.3d 641 (7th Cir.
2001). The plaintiff complained of delay in hernia
surgery but did not exhaust administrative
remedies. His claim that he was denied the
necessary forms is rejected because he filed suit a
month before his memo requesting the forms.
Work Assignments
Ali v. Johnson, 259 F.3d 317 (5th Cir.
2001). Forcing prisoners to work does not violate
the Thirteenth Amendment. The fact that Texas
law omitted the explicit requirement that prisoners
work does not matter, and an earlier case that says
that a prisoner not sentenced to hard labor retains
Thirteenth Amendment rights is not good law.
Protection from Inmate Assault
Smith v. Gray, 259 F.3d 933 (8th Cir.
2001). Segregation prisoners flooded their cells in
protest over not receiving clean linens; the plaintiff
was ordered to mop up the water. The other
prisoners kicked and banged on their cell doors and
threatened him. The defendants let another
prisoner out of his cell without first restraining
him, and he attacked the plaintiff and injured him.
The defendants are entitled to summary judgment
because there was no evidence that the officers
knew releasing the unrestrained prisoner would
pose a significant risk to the plaintiff.
Access to Courts/Federal Officials and Prisons
Dahler v. United States, 259 F.3d 763 (7th
Cir.2001). The contents of certain applications for
post-conviction relief are specified by court rule.
The Federal Bureau of Prisons distributes a form
that states all applicants seeking leave to file a
second or subsequent petition must use this form,

Summer/Fall 2002
except in capital cases. The form apparently comes
from the Eleventh Circuit. At 766: "Yet the
Bureau of Prisons lacks authority to limit how
prisoners present their claims, for the Executive
Branch cannot prescribe rules of practice and
procedure in the federal courts." The court, having
already admonished prison officials on this point,
expresses its disappointment that they paid no
attention, and cites a case holding prison officials
in contempt.

PLRA--Screening and Dismissal
Vanderberg v. Donaldson, 259 F.3d 1321
(l1th Cir. 2001). 28 U.S.c. § 1915(e)(2)(B)(ii)
does not deny equal protection by permitting sua
sponte dismissal of indigents' claims. Strict
scrutiny does not apply because the statute only
addresses procedures once a claim is presented; it
does not affect the ability to prepare and file
complaints, "thereby bringing them to a court's
attention." (1323) Under rational basis review, the
statute passes muster, since prisoners initially pay a
reduced filing fee and have lots of free time, and
since the statute provides a rational way to serve
the interest in avoiding frivolous litigation in
conjunction with the three strikes provision.
The sua sponte dismissal procedure does
not deny due process. A district judge's review of a
magistrate's recommendation and opportunity to
object meet due process requirements.
The court does not resolve whether the
rules require that plaintiff have an opportunity to
amend (it notes the conflict between Gomez and
McGore), because the plaintiff missed the
appropriate deadline to file a motion to amend until
after the case was dismissed, disentitling him to
amendment as of right.
PLRA--Exhaustion of Administrative
RemedieslProcedural Due Process--Disciplinary
ProceedingslHabeas Corpus/Transfers
Johnson v. Litscher, 260 F.3d 826 (7th Cir.
2001). The plaintiff complained that after he won
a lawsuit for the denial of a liver transplant, he
became the object of a blitz of disciplinary reports
and was then transferred to a maximum security
prison. The district court dismissed for
19

THE NATIONAL PRISON PROJECT JOURNAL

nonexhaustion. The court says claims of retaliation
must be exhausted, and that this grievance system
does permit exhaustion of such claims. The
plaintiff may be right that his transfer can't be
challenged under any available remedy, but he can
challenge the retaliation that the transfer is part of,
and the fact that he can't get a particular remedy
(re-transfer) doesn't matter under Booth. If prison
officials refuse to consider his claim, he will have
exhausted.
Defendants argued that under Balisok the
plaintiff had to proceed via habeas corpus because
he challenged the fact or duration of his
confinement. Although he did say that he lost
good time, this claim was not the "crux" of his
complaint. Finding for him on this claim would
not necessarily imply the invalidity of his
conviction, sentence, or conduct reports, or result
in revocation of conduct reports or restoration of
good time. Other courts generally have held that if
the prisoner· is guilty of a disciplinary offense,
that's the end of any retaliation claim for it.
Hazardous Conditions and Substances/Work
Assignments/PLRA--Exhaustion of
Administrative Remedies
Richardson v. Spurlock, 260 F.3d 495 (5th
Cir.2001). Complaints of "sporadic and fleeting"
exposure to second-hand smoke on bus rides were
properly dismissed as frivolous absent "competent
evidence that [the plaintiffs] intermittent exposure
to smoke during bus rides was an unreasonable risk
to his health." (The magistrate judge appears to
have had some sort of evidentiary proceeding on
this motion to dismiss.)
The plaintiff failed to exhaust his
administrative remedies as to his claim of
retaliatory discipline because he filed an
administrative appeal rather than a disciplinary
appeal (499). As to other retaliatory claims,
administrative process was still pending when he
filed suit, so the claims were properly dismissed.
Suicide Prevention/Pendent and Supplemental
Claims; State Law in Federal Courts
Hott v. Hennepin County, Minn., 260 F.3d
901 (8th Cir. 2001). The 18-year-old decedent
20

Summer/Fall 2002
hanged himself in jail, where he had been for about
45 days. The record showed that he was lying dead
in a seated position at the foot of his bed during a
period when an officer repeatedly noted that he had
performed health and well-being checks and seen
nothing amiss.
The failure to identify the plaintiff as a
suicide risk by obtaining medical records from a
county hospital did not violate the Constitution.
There is no such duty in general, and evidence that
he .engaged in conduct that might be interpreted as
suggesting suicide did not establish deliberate
indifference absent evidence that jail personnel had
interpreted it that way.
The jail training materials are replete with
references to the risk of suicide, and a jury could
infer that the officer was aware that suicide
prevention was a purpose ofthe health and
well-being checks. However, there is insufficient
evidence ofthe actual risk of suicide to support an
inference that the officer was deliberately
indifferent to a "substantial risk to general inmate
safety.
The plaintiffs negligence claim against the
officer survives because there was enough
evidence to support a finding that ifthe officer had
done his job, the decedent might have been
deterred. The defendants having told the court
their policy was an effective means of deterring
and detecting suicide attempts, they "will not now
be heard to argue ... that as a matter of law" their
policy would have failed if carried out.
PLRA--Exhaustion of Administrative Remedies
Wright v. Hollingsworth, 260 F.3d 357 (5th
Cir. 2001). At 358: "Quibbles about the nature of a
prisoner's complaint, the type of remedy sought,
and the sufficiency or breadth of prison grievance
procedures were laid to rest in Booth." The
plaintiffs claim that, unlike the plaintiff in Booth,
his claim for a ruptured eardrum can only be
redressed by money damages, mischaracterizes
Booth and is unconvincing. The court rejects his
argument that he substantially complied, stating
that he did not pursue the grievance remedy to
conclusion, without saying whether or not
"substantial compliance" would be good enough.

I

?

THE NATIONAL PRISON PROJECT JOURNAL

It's too late for this plaintiff to raise waiver
after three years of litigation and remand from the
Supreme Court.
Plaintiff requests, "if all else fails, dismissal
without prejudice and equitable tolling ofthe
Texas statute oflimitations during the pendency of
this action and any additional state administrative
proceedings. These modifications of the judgment
are appropriate."

Publications/Correspondence/Deference/Mootness
Morrison v. Hall, 261 F.3d 896 (9th Cir.
2001). The plaintiff complained of a regulation
that prevented prisoners from receiving bulk rate,
third, and fourth class mail. This court has already
struck down such a rule as applied to a non-profit
publication in Prison Legal News v. Cook,238
F.3d 1145 (9th Cir. 2001). It applies the same
analysis to a for-profit publication here.
Under
the Turner standard, the defendants did not show a
valid, rational connection between the policy and
their legitimate goals. They failed to present any
evidence that the risk of contraband in first or
second class mail is any lower than that in bulk,
third, or fourth class mail. The rule does not serve
an interest in fire prevention or in expediting
searches because the defendants already have a rule
limiting the total volume of property permitted.
The prohibition does not significantly reduce
required staff time. The distinction among mail
sent at different postage rates is an arbitrary means
of achieving the goal of reducing the volume of
mail.
Prisoners do not have alternative means of
obtaining materials. Radio and television are not
an alternative to reading newspapers and
magazmes.
The Turner factor concerning impact on
guards and other prisoners is addressed by the
arguments showing a lack of valid, rational
connection between policy and interests.
There is an easy, obvious alternative to
serve defendants' goals. They were concerned with
"junk mail"; they should distinguish between junk
mail and subscriptions.
A change in the regulation does not moot

Summer/Fall 2002
the case under the "voluntary cessation of a
challenged practice" mantra (900 n.5).
The plaintiff also challenged a requirement
that incoming mail bear a return address and be
addressed to the prisoner using committed name
and prison identification. The court upholds the
rule. Defendants claim without contradiction that
under the policy, mail is delivered ifthe recipient
can be identified. The requirement of complete
name and return address facilitates return to sender,
allows the prison to inform the sender of prison
mail requirements, and assists defendants in
investigations. This last reason by itself is
sufficient.

PLRA-Attorneys' Fees/Attorneys' Fees and
Costs
Volk v. Gonzalez, 262 F.3d 528 (5th Cir.
2001). In a pre-PLRA suit, plaintiff won a postPLRA verdict for nominal damages.
Constitutional challenges to the PLRA fee limits
were waived for some unaccountable reason.
The district court did not abuse its
discretion in halving the pre-PLRA part ofthe fee
award because of limited success. The plaintiffs
injunctive relief was vacated on appeal, so the
relief here really was nominal. This is not a PLRA
holding, but one based on general attorneys' fees
law.
Legal assistant fees are recoverable under
the PLRA and therefore subject to the PLRA's
strictures. Exactly what this means in dollars isn't
stated.
Fees on fees are recoverable under the
PLRA; the court relies on the Third Circuit
decision in Hernandez v. Kalinowski, 146 F. 3d
196 (3d Cir. 1998). Those fees are also subject to
the PLRA's restrictions on fees, including the
150% ofjudgment limit. The court acknowledges
this may lead to "harsh results in some cases,"
presumably meaning that defendants can litigate
fees forever at no cost to themselves and wipe out
the benefit ofthe fees award to plaintiffs counsel.
PLRA--In Forma Pauperis Provisions--Filing
Fees
Hubbard v. Haley, 262 F.3d 1194 (11th Cir.
21

THE NATIONAL PRISON PROJECT JOURNAL

2001). Eighteen dialysis patients brought claims
about their medical care and diet. The district
court said each plaintiff had to file a separate
complaint and pay a separate filing fee. The
appeals court affirms. Not only does each plaintiff
have to pay a separate filing fee, the court says that
the plain language of the PLRA requires that they
file separate complaints. There is absolutely no
reasoning supporting the requirement of filing
separate complaints, which amounts to a repeal by
implication ofa big chunk of the Federal Rules of
Civil Procedure concerning joinder. Prisoners also
must file separate notices of appeal.

PLRA--Exhaustion of Administrative
Remedies; Attorneys' Fees/Use of Force-Chemical Agents/Statutes of
Limitations/Damages--Assault and
InjurylEvidentiary Questions
Foulk v. Charrier, 262 F.3d 687 (8th Cir.
2001). ThE( plaintiff got a jury verdict for $1.00 in
nominal damages after being sprayed with pepper
gas.
One defendant argued that the plaintiff
failed to exhaust as to him because the amended
complaint naming him was not filed until after the
PLRA (the rest were joined pre-PLRA). The
relevant question is whether the later complaint
relates back. The relation back issue should have
been raised before the case went to trial. This
holding is consistent with the prior holding that the
requirement is not jurisdictional and that the PLRA
exhaustion requirement is an affirmative defense
under Rule 8(c). Since the law was uncertain, and
the issue had been raised by the time of trial, the
court does not actually hold that the issue was
waived under these circumstances for this appeal.
The court then holds that the record was
insufficient for the district court to dismiss for nonexhaustion. At the trial, defendant elicited that the
plaintiff had filed an "informal resolution request"
and had not received an answer, and that he
couldn't file an actual grievance until he got an
answer. This testimony suggested that no further
proceedings were "available," and nothing in the
trial record contradicts it.
The district court did not abuse its
22

Summer/Fall 2002
discretion in excluding evidence of the specific
nature ofthe plaintiffs prior felonies (for rape and
sodomy). The evidence was not highly probative
as to credibility and the district court carefully
weighed its probative value versus its prejudicial
character. Nor did the court abuse its discretion in
limiting the redundant documents the defendants
could submit concerning the plaintiffs injuries and
disciplinary violations.
The district court correctly instructed the
jury that if they found in plaintiffs favor but that
his damages had no monetary value, they should
return a verdict for $1.00 in nominal damages. The
court rejects the argument that nominal damages
must mean de minimis force not actionable under
Hudson v.McMillian, reiterating that force can be
repugnant, malicious, or sadistic without inflicting
compensable injury.
The plaintiffs testimony that he was
following orders in a locked cell when the
defendant enticed him to put his face to the cell
door window and sprayed pepper spray directly
into his face, and he was not allowed to wash the
spray off and felt its effects for days, supported a
jury verdict of malicious and sadistic force.
The district court erred in awarding more
than $1.50 in fees based on the $1.00 damage
award. The court "agree[s] with the majority of
circuits" that the 150% cap does not violate the
Constitution.

Procedural Due Process--Disciplinary
Proceedings/Habeas Co~pus/Classification/
Good Time/Sanctions
Montgomery v. Anderson, 262 F.3d 641
(7th Cir. 2001). Deprivation of the opportunity to
earn good time credits, like revocation of already
awarded credits, may and must be pursued via
habeas corpus. At 643: "The stakes are the same:
the length of incarceration." However, only the
change in credit-earning status may be challenged
via habeas corpus. At 643-44: "Disciplinary
segregation affects the severity rather than duration
of custody. More-restrictive custody must be
challenged under § 1983, in the uncommon
circumstances when it can be challenged at all."
Also, this prisoner has been barred from filing §

THE NATIONAL PRISON PROJECT JOURNAL

1983 actions because he hasn't paid previously
imposed sanctions.
The deprivation of the opportunity to earn
good time does not deny liberty unless the state's
system creates a liberty interest. Indiana's does,
since it says prisoners may be reclassified to lower
credit-earning classes if they break the rules.
Reduction in credit-earning class "likely"
requires "less elaborate" process than required by
Wolff. It questions whether any findings of fact
need be made, but says it's adequate for the board
to rely explicitly on the detailed conduct report and
investigative report.

. Sexual Abuse
Fontana v. Haskin, 262 F.3d 871 (9th Cir.
2001). An allegation of sexual harassment during
arrest states a Fourth Amendment claim. The
seizure "continues throughout the time the arrestee
is in the custody of the arresting officers," so
excessive force in transporting an arrestee gives
rise to a Fourth Amendment claim. At 879 n.5:
The court notes a split among circuits on the issue
of how far in the arrest-to-court process the Fourth
Amendment continues to govern.
The excessive force analogy is not directly
applicable to sexual harassment because there is no
countervailing governmental interest justifying
sexual misconduct.
PLRA--Prospective Relief--Termination of
Judgments/Attorney Consultation/Use of ForceRestraints/Procedural Due Process/Pre-Trial
Detainees
Benjamin v. Fraser, 264 F.3d 175 (3d Cir.
2001). The ~ourt affirms a finding of continuing
and ongoing violation after hearing a termination
motion. It says little about the PLRA, nothing
about the specificity required of a district court's
findings in such a proceeding, and very little about
tailoring of remedy, except to state gratuitously
that one provision of the remedy looks unnecessary
to them even though the defendants didn't
challenge it, so they can take it up in the district
court if they want to. (At 191 n. 13).
Plaintiffs' claim of delays and obstructions
to attorney visits is governed by Procunier v.

Summer/Fall 2002
Martinez and not by Lewis v. Casey. Lewis did not
say it overruled Procunier, Procunier is factually
closer to this case, and Lewis is inapplicable to
Sixth Amendment claims by detainees.
Where the right at issue is provided directly
by the Constitution or federal law, a
prisoner has standing to assert that right
even ifthe denial of that right has not
produced an "actual injury." ...
... While a prisoner
complaining of poor law libraries
does not have standing unless he
can demonstrate that a direct right-namely his right of access to the
courts--has been impaired, in the
context of the right to counsel,
unreasonable interference with the
accused person's ability to consult
counsel is itself an impairment of
the right.
Sixth Amendment claimants have not previously
been required to demonstrate "actual injury"; the
court cites both jail conditions cases and a
Supreme Court habeas decision stating that denial
of access to counsel is not subject to "prejudice
analysis."
Under Procunier, the court examines the
institutional justification for obstructions to .
consultation with counsel. The district court's
findings that security reasons were not the sole or
even the primary reason for delays was supported
by the record. At 187 n.l 0: The court doubts that
Turner v. Safley applies, since it refers to
"penological interests" which include punishment,
deterrence, and rehabilitation. This is dictum,
since the challenged practices would not survive
Turner.
Detainees subject to unusual restraint
practices are deprived of liberty. The district court
found that the practices "have a severe and
deleterious effect ... tantamount to punishment"
and can be painful and injurious. The court
affirms, especially since the court did not restrict
the use of such restraints but merely required afterthe-face procedural protections.
Sandin's "atypical and significant" standard
has no application to detainees, since the premise

23

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THE NATIONAL PRISON PROJECT JOURNAL

of Sandin's analysis is that a criminal conviction
broadly extinguishes liberty, and Sandin itself
distinguished detainees.
Wolffprocess rather than Hewitt process is
required because a detainee's interest in freedom
from unjustified infliction of pain and injury is
more substantial than the interest in avoiding
administrative segregation, and there is no
governmental interest in avoiding subsequent
process after immediate imposition of restraints.
Sanitation/Use of Force--Chemical
Agents/Negligence, Deliberate Indifference and
Intent/Length of Stay/Emergency/Qualified
Immunity/Summary Judgment/PLRA--Mental
or Emotional Injury
DeSpain v. Uphoff, 264 F.3d 965 (lOth Cir.
2001). The plaintiff alleged that prisoners flooded
his tier and the toilets were shut off, resulting in his
being subjected to unsanitary flooding and
exposure to human waste for 36 hours.
In Eighth Amendment analysis: "In
general, the severity and duration of deprivations
are inversely proportional, so that minor
deprivations suffered for short periods would not
rise to an Eighth Amendment violation, while
'substantial deprivations of shelter, food, drinking
water, and sanitation' may meet the standard
despite a shorter duration." (974) The plaintiffs
allegations meet the standard. Id~:". .. Exposure
to human waste, like few other conditions of
confinement, evokes both the health concerns
emphasized in Farmer and the more general
standards of dignity embodied in the Eighth
Amendment."
The district court erred in applying the
'"
Whitley "malicious
and sadistic" standard that is
applied during prison disturbances. It was not
clear that there was an ongoing threat to safety; the
prisoners remained locked in their cells.
The district court erred in dismissing the
associate warden in charge ofthe unit, in view of
statements by guards that no one was allowed to
clean up by order of the associate warden, an
allegation that the rubber boots given the guards
were issued by him, the fact that the guards who
knew ofthe conditions reported to him, and the
24

Summer/Fall 2002
common sense proposition that a 36-hour
deprivation of toilets would lead to waste
management problems.
The defendants are not entitled to qualified
immunity.
The plaintiff alleged that an officer sprayed
pepper spray indiscriminately along the prison tier.
That claim is governed by the Whitley/Hudson
malicious and sadistic standard, since it involves
an instrument by which officers wield their
authority and therefore implicates excessive force,
even though it does create a "prison condition." If,
as alleged, the officer discharged the spray as a
practical joke, it violates the Eighth Amendment.
The plaintiffs allegation of burning eyes
and lung congestion and ongoing anxiety thereafter
meets the Hudson threshold of more than de
minimis force.
The officer is not entitled to qualified
immunity.
PLRA--Three Strikes ProvisionlRes Judicata
and Collateral Estoppel
Kinnell v. Braves, 265 F.3d 1125 (lOth Cir.
2001). Resjudicata prevents a prisoner with three
strikes from relitigating whether his prior
dismissals were actually frivolous. Constitutional
objections to the statute are rejected as foreclosed
by precedent or as insubstantial. At 1128: The
lack of a time limit for treatment of prior
dismissals as strikes does not make the statute
unconstitutionally vague.

Non-Prison Cases
Color of Law/Use of Force/Juveniles/
Evidentiary Questions
Robert S. v. Stetson School, Inc., 256 F.3d
159 (3d Cir. 2001). The plaintiff alleged that he
was physically abused by staff members of a
private school specializing in the treatment and
education ofjuvenile sex offenders.
The school and its staff did not engage in
state action, since the plaintiffs placement in it was
not mandated by any court order and was done
with the plaintiffs mother's consent. Receipt of
government funds and subjection to a detailed

THE NATIONAL PRISON PROJECT JOURNAL

contract with a state agency are not sufficient to
create state action. Nor did the school perform a
function that has been "traditionally the exclusive
province of the state"; the only schools performing
the relevant function are private. The fact that state
law required the agency to provide those services
did not create state action. Milonas v. Williams is
partly distinguished on the ground that some
commitments in that cases were involuntary, and
otherwise rejected.
Procedural, Jurisdictional and Litigation
Questions
WN.J v. Yocom, 257 F.3d 1171 (10th Cir.
2001). The plaintiffs sought to challenge the Utah
fornication and sodomy statutes, and to do so
pseudonymously. At 1172:
When a party wishes to file a
case' anonymously or under a
pseudonym, it must first petition the
district court for permission to do
so. . .. If a court grants permission,
it is often with the requirement that
the real names of the plaintiffs be
disclosed to the defense and the
court but kept under seal thereafter.
. .. Where no permission is
granted, "the federal courts lack
jurisdiction over the unnamed
parties, as a case has not been
commenced with respect to them."
A lack ofjurisdiction can't be corrected by an order
nunc pro tunc.
Rehabilitation
Doe Iv. Dtte, 259 F.3d 979 (9th Cir. 2001).
The Alaska Sex Offender Registration Act is
punitive for purposes of the Ex Post Facto Clause
and therefore cannot be applied to persons whose
crimes antedated the statute. It imposes an
affirmative disability by subjecting offenders to
onerous conditions that in some respects are
similar to probation or supervised release (e.g.,
they have to re-register at police stations four times
a year for the rest of their lives and provide large
amounts of personal information). It also requires
posting of name, address, and employer address on
."

Summer/Fall 2002
the Internet, creating a substantial likelihood that
the offender will not be able to find work. The
statute is excessive in relation to its purpose, since
proof of rehabilitation is irrelevant. Statutes that
have been upheld have generally tailored the effect
of the statute to the risk posed by the offender.
Intervention
United States v. Tennessee, 260 F.3d 587
(6th Cir. 2001). The United States and private
plaintiffs sued the state over the treatment of
mentally retarded and disabled persons. After
relief had been preliminarily approved, an
association of nonprofit agencies who provide
service to those persons, mostly with government
funding, sought to intervene.
The association was properly denied
intervention as of right. Timeliness weighed
heavily against intervention, since the case was
nearly over, with substantive relief pending final
approval. The intervenor had known of the
litigation for a long time. The complication that
this belated intervention would add to the litigation
presents a risk of prejudice to the parties if they are
forced to enter into collateral litigation over
economic issues. The intervenor doesn't have a
substantial legal interest because its members'
interest in getting paid, and paid enough, does not
concern the statutory and constitutional rights
asserted in the litigation, and the agencies have
other forums for pursuing favorable funding
arrangements.
Personal Involvement and Supervisory
Liability/Damages--Punitive/Jury Instructions
and Special Verdicts
Provost v. City ofNewburgh, 262 F.3d 146
(2d Cir. 2001). At 155:
... [T]he direct physical
participation of a defendant in the
constitutional violation is not alone
a sufficient basis for holding the
defendant liable if the defendant had
no awareness or notice of the facts
that rendered the action illegal. ...
Thus, what we have meant
by using phrases such as "direct
25

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THE NATIONAL PRISON PROJECT JOURNAL

participation" as a basis ofliability
is personal participation by one who
has knowledge of the facts that
rendered the conduct illegal.
A defendant may also be liable "who, with
knowledge ofthe illegality, participates in bringing
about a violation of the victim's rights but does so
in a manner that might be said to be 'indirect'--such
as ordering or helping others to do the unlawful
acts, rather than doing them him- or herself." (155)
The district court erred in instructing the
jury that punitive damages may depend on the
defendant's financial resources where the defendant
did not submit any evidence on that subject.
However, since the jury awarded the plaintiff
$10,000 in punitive damages against a police
officer (along with nominal damages), the award
approaches the limits of what would be
constitutional under recent Supreme Court
decisions. The error is therefore harmless.

Qualified ImmunitylUse of Force
Deorle v. Rutherford, 263 F.3d 1106 (9th
Cir.2001). The defendant police officer shot the
plaintiff with a "less lethal" "beanbag" round
consisting of lead shot in a cloth bag. It put out
one of the plaintiffs eyes and left shot embedded in
his head. At the time of the shot, the plaintiff,
unarmed, was walking toward the officer but was
unarmed, and had been given no warning. These
allegations support a finding of excessive force,
and the defendant is not entitled to qualified
immunity. At 1119: "Although there is no prior
case prohibiting the use ofthis specific type of
force in precisely the circumstances here involved,
that is in~ufficient to entitle Rutherford to qualified
immunity; notwithstanding the absence of direct
precedent, the law may be, as it was here, clearly
established."
Consent Decrees
Labor/Community Strategy Center v. Los
Angeles County Metropolitan Transp., 263 F.3d
1041 (9th Cir. 2001). Consent decree provisions
that set out mathematically precise criteria and
specific dates for defendants' performance could
not be interpreted to require only "best efforts."
26

Summer/Fall 2002
The decree does not excuse nonperformance based
on shortage of funds that would result in the
agency's failure to meet other legally required goals
if it met the consent decree requirements; the
decree requires reallocation of funds to meet
consent decree obligations.
The decree does not require the violation of
other state and federal laws. At most, it may
require noncompliance with legal preconditions for
receiving state and federal funds, and consequent
forfeiture of the funds.

Disabled/State Officials and Agencies
Gibson v. Arkansas Dept. ofCorrection,
265 F.3d 718 (8th Cir. 2001). Injunctive relief
remains available under the Americans with
Disabilities Act under the Ex parte Young fiction,
as indicated by the Supreme Court in Garrett. The
court rejects the argument that Seminole Tribe is
inconsistent with this conclusion; Seminole Tribe,
which held Ex parte Young inapplicable, involved
a statute which Congress had intended to provide a
more limited remedial scheme, while the ADA
relies on existing civil rights enforcement
mechanisms, and is distinguishable in other ways
as well.

IU.S. District Court Cases
Hazardous Conditions and SubstanceslReligionServices within Institution/Cruel and Unusual
Punishment--Proof of Harm
Crawford v. Artuz, 143 F.Supp.2d 349
(S.D.N.Y. 2001). The plaintiffs complained of
exposure to friable asbestos. Neither plaintiff
presented sufficient evidence of the risk of future
injury to withstand summary judgment. The
plaintiffs submitted a 1980 OSHA publication
which said one day's exposure can cause significant
disease; defendants' medical expert said their level
of exposure was trivial. Even if plaintiffs did show
a risk of serious future injury, "Helling requires a
more rigorous showing than plaintiffs have
presented"; as a matter oflaw, the risk they
complain of is not so grave as to violate
contemporary standards of decency. (It is

THE NATIONAL PRISON PROJECT JOURNAL

completely unclear what the court thinks plaintiff
has to show in this kind of case.)
Defendants did not violate the First
Amendment by allowing the Mosque to become
contaminated with asbestos, requiring its closure.
Prisoners have a right to participate in congregate
religious services, but there is no evidence that
plaintiffs have not been able to practice their faith
or to pray with other inmates.
Ex Post Facto Laws
Crump v. Kansas, 143 F.Supp.2d 1256
(D.Kan.2001). A 1996 statute authorizing the
parole board to defer the next parole appearance
for ten years, rather than the three years of prior
law, was not an ex postfacto law as to the plaintiff
because it did not present sufficient risk of greater
punishment for his crimes. (He is serving six
concurrent life terms consecutive with five other
determinate sentences as a result of setting a booby
trap dynamite bomb that, among other
depredations, killed his ex-wife and five members
of her family.)
Use of Force/Personal Involvement and
Supervisory Liability/Medical Care--Standards
of Liability--Serious Medical Needs
Jones-Bey v. Conley, 144 F.Supp.2d 1035
(N.D.Ind. 2000). The plaintiff alleged that he was
beaten without provocation or resistance and
thrown into a shower while clothed. He then
resisted being returned to his cell without medical
care and was beaten some more. Then he was
moved elsewhere and remained there in full
restraints, which were so tight as to damage his
hands. He sa,id he did not receive a proper medical
examination. He was then forced to remain
restrained on a cold concrete floor in handcuffs and
shackles for four to five hours. Later he had blood
in his urine, but the nurse lost the sample. The
plaintiffs allegations are sufficient to withstand
summary judgment. The court cites the Hudson v.
McMillian factors and says the Seventh Circuit
gives particular weight to factors 2 and 4 (severity
of force and relationship between the need for
force and the force applied).
A supervisor who was physically present

Summer/Fall 2002
and recording the cell extraction could be held
liable for failure to intervene ifhe stood idly by
when he could have prevented the excessive force.
Grievances and Complaints about Prison/Res
Judicata and Collateral Estoppel/Procedural
Due Process--Disciplinary Proceedings/Habeas
Corpus
Johnson v. Freeburn, 144 F.Supp.2d 817
(E.D.Mich.2001). The plaintiff alleged that after
he reported a threat to an officer, he was issued a
false misconduct ticket and was threatened with
being shot. The defendant argued that the facts
found in the disciplinary proceeding should
preclude the plaintiff from disputing them in the
federal action, even as to the claim concerning the
threat of shooting.
Findings in disciplinary proceedings are not
preclusive in subsequent civil actions under state
law, so they are not preclusive under federal law.
"Additional policy considerations argue against
providing preclusive effect to prison disciplinary
hearings." The court relies on these considerations
"as well as" state law without discussing whether
the policy considerations would trump state law if
they were in conflict.
The plaintiffs disciplinary proceeding,
which resulted in loss of 90 days' good time and
has not been overturned in a state forum, cannot be
pursued via § 1983 under Heck and Balisok.
Contempt/Pre-Trial Detainees/Financial
Resources/Medical Care/Environment
Carty v. Turnbull, 144 F.Supp.2d 395
(D.V.I.2001). The court finds that the defendants
have not complied with its orders with respect to
environmental health and physical plant, provision
of personal hygiene articles, repair and replacement
of cracked and tom mattresses, fire safety,
distribution of medication, mental health care, legal
supplies and law library access, faulty security
systems, and renovations.
Lack of financing is not a defense to the
failure to provide minimum constitutional
standards in jails. At 416: "While it is the
Government's prerogative to lock up criminals and
pretrial detainees in prisons, that power carries
27

THE NATIONAL PRISON PROJECT JOURNAL

with it the duty to provide funds for maintaining
those prisons in a constitutional manner." Also,
repeated setbacks in renovations which are funded
"demonstrate that there is more to Defendants'
intransigence than a lack of money."
The actions ofthird parties do not provide
an excuse for noncompliance. A contractor who
delayed work did so because the defendants did not
pay him on time and created other bureaucratic
obstacles. "The defense of impossibility is limited
to 'physical impossibility beyond the control ofthe
alleged contemnor' and does not include failure to
provide the wherewithal to comply."
Fashioning a contempt remedy is within the
courts' discretion, but the least possible power
adequate to its purpose must be used, and "the
court must take into account the interest of state
and local authorities in managing their own
affairs." (418) The court may assess fines; in
addition, it "may require the contemnor to
undertake affirmative acts, even acts not required
by the initial order." The court directs more expert
reports to inform its choice of remedy.

Searches--Person--Convicts/Use of
Force/PLRA--Mental or Emotional
Injury/Mootness
Ostrander v. Horn, 145 F.Supp.2d 614
(M.D.Pa.2001). The plaintiff alleges that the
defendants authorized a "live exhibition/exercise"
by CERT officers, with civilian witnesses, in
which he was forcefully extracted from his cell and
dragged to an exercise unit where he was placed in
a cage with his hands cuffed behind his back, then
dragged back, strip-searched, returned to his cell;
along the way the CERT officers shoved his face
into a comer while screaming at him not to tum
around. During this process he was repeatedly
cuffed and uncuffed while his arms were twisted.
The defendants say that this was an "emergency
preparedness drill involving an RHU fire drill
evacuation."
Since the plaintiff has been transferred, his
injunctive claim is moot. The plaintiffs allegations
do not state a constitutional claim. This was at
most a de minimis use of force.
In connection with the plaintiffs claims of
28

Summer/Fall 2002
humiliation and emotional distress, the court
maunders on inconclusively about the
mental/emotional injury provision of the PLRA but
then says there's no constitutional violation
anyway.
Prisoners do not have a Fourth Amendment
expectation of privacy in their cells, nor do they
have a Fourth Amendment right to be free from
strip searches, which need only be conducted in a
reasonable manner. This court thinks it's OK to
manhandle prisoners just for practice.

Medical Care--Standards of Liability-Deliberate Indifference/Qualified Immunity
Seals v. Shah, 145 F.Supp.2d 1378
(N.D.Ga.2001). The plaintiff, who had had
arterial grafts in both legs, began to have pain and
numbness in his legs and feet; a nurse saw a sign of
thrombosis. He got the typical jail medical
runaround. Eventually he had part of his foot
amputated. The defense of qualified immunity is
not available to a defendant guilty of deliberate
indifference to serious medical needs.
The plaintiffs deliberate indifference claim
was supported by evidence that the doctor did not
physically examine the plaintiff; that the doctor,
though knowing of plaintiffs prior vascular
problems, did not schedule a follow-up
appointment until six days later; that the doctor
refused to see him the day after the first nonexamination when his condition did not improve,
even though he had signed off on their notes
showing the plaintiffs deteriorating condition; and
that the doctor only sent the plaintiff to the
emergency room after two more days of nurses and
others voicing concern about his condition.

Pre-Trial Detainees/Crowding/Sanitation/
Ventilation and HeatinglMedical
Care/Furnishings/Food/Fire Safety/Recreation
and ExerciselUnsentenced Prisoners and
Convicts Held in Jails/PLRA--Prisoner Release
Orders/Injunctive Relief--Preliminary
Maynor v. Morgan County, Ala., 147
F.Supp.2d 1185 (N.D.Ala. 2001). The county jail
is grossly overcrowded, with prisoners sleeping on
the concrete floor space under bunks, between

THE NATIONAL PRISON PROJECT JOURNAL

bunks, on tables, between tables, sometimes
without sleeping mats, blankets, or sheets. There is
inadequate laundry and linen service, the cells are
dirty (there is no janitor service and the inmates are
not provided with adequate cleaning supplies and
equipment), the metal surfaces ofthe showers have
been eroded by rust. Ventilation and heating are
inadequate. Prisoners do not receive personal
hygiene items. Recreation occurs once or twice a
month. The food is "inadequate in amount and
unsanitary in presentation." Prescribed
medications are not provided and there are
dangerous delays in medical services. The jail is a
fire hazard.
The cause of the 'crowding is the state
prison system's persistent failure to remove "state
ready" prisoners from the jail upon sentencing.
The state prison system is at 96.7% per cent of
capacity, and nobody sleeps on the floor. The state
prison system pays nothing to the County for
leaving prisoners there.
The court finds an Eighth Amendment
violation and issues a preliminary injunction
requiring the jail administration to: (a) screen each
incoming prisoner for serious medical conditions
and to provide prescribed medications within 24
hours of admission; (b) provide bunk beds,
mattresses, sheets, and blankets to all prisoners; (c)
provide immediate diagnosis and appropriate
treatment by a qualified mental health specialist of
inmates with suicidal tendencies or other indicia of
serious mental illness; (d) clean and fumigate the
jail, and provide cleaning supplies and equipment
for daily cleaning; (e) provide clean bedding,
clothes, soap and toothpaste weekly; (f) clean the
ventilation ducts and maintain temperatures
between 65 and 85 degrees; (g) repair and maintain
fire safety equipment; (h) maintain proper
ventilation and lighting; (i) provide one hour a
week of outdoor exercise except during inclement
weather and emergencies.
The state prison system is enjoined to
present a plan for removing all state ready
prisoners within a month and to start transferring at
least one Morgan County state ready prisoner
whenever they accept a state ready prisoner from
another county.

Summer/Fall 2002
The court does not cite either the PLRA
prisoner release provision or the preliminary
injunction provision.

Visiting--Right to Visit; Contact
Visits/Deference/Standing/State, Local and
Professional Standards/Cruel and Unusual
Punishment--Proof of Harm/Procedural Due
Process
Bazzetta v. McGinnis, 148 F.Supp.2d 813
(E.D.Mich. 2001), affd. The plaintiffs challenged
restrictions on visiting which (1) prohibited visits
by siblings, nieces and nephews under 18 years
old; (2) prohibited visits by children whose
prisoner parents had had their parental rights
terminated, even if voluntarily so the child could
be adopted; (3) prohibited visits from former·
prisoners who are not immediate family; (4)
required children to be brought to visits by a parent
or legal guardian; and (5) imposed a permanent ban
on visiting for any prisoner found guilty of two
substance abuse misconducts. As to the first four
of these, the issue is only as to non-contact visits,
since the court has previously upheld those
restrictions as to contact visits. The court rules in
plaintiffs' favor, in what is probably the most
important visiting decision since Kentucky Dept.
of Corrections v. Thompson.
Many courts have recognized liberty
interests in familial relationship other than strictly
parental ones. The First Amendment and the
Fourteenth Amendment protect the fundamental
rights to establish and maintain family
relationships and to make child-rearing decisions.
The Turner standard applies. "Both the
prisoners themselves and their prospective visitors
are entitled to the protection of these rights, always
with the acknowledgment that the demands of the
prison system may involve significant restriction.
"In applying the Turner test, Defendants bear the
burden of demonstrating that the challenged
regulation is reasonably related to a valid
penological objective." Deference "does not mean
blind acceptance of the proffered rationales."
The interests asserted with respect to minor
children and former prisoners are preventing
physical and sexual abuse of children, preventing

29

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THE NATIONAL PRISON PROJECT JOURNAL

injury to children in visiting rooms, preventing the
smuggling of weapons, drugs, or other contraband,
and reducing the overall volume of visiting to ease
the crowding of visiting rooms and the
administrative burden on prison staff. The
establishment of "visiting standards" (limiting the
number of visits per inmate per month, the hours of
visiting, and weekend visits) and limiting each
prisoner's visiting list to 10 people, neither of
which the plaintiffs challenged, had already
reduced visiting by 50%. The restriction to
non-contact visits eliminates risk of abuse of
children or of contraband. Defendants therefore
failed to show a valid, rational connection between
their goals and these means.
As to the other Turner factors,
"[u]ncontroverted evidence establishes that letters
and telephone calls are not adequate alternate
means of staying in contact with minor children."
(849) Allowing non-contact visits for presently
excluded visitors would have no impact on guards
or other inmates and a minimal impact on the
allocation of prison resources. Allowing
non-contact visiting is an obvious alternative to the
present policy.
The permanent ban on visits based on two
substance abuse misconducts violates the Eighth
Amendment. At 851: "The unrefuted evidence
establishes that visitation with family and friends is
the single most important factor in stabilizing a
prisoner's mental health, encouraging a positive
adjustment to the prisoner's term of incarceration
and supporting a prisoner's successful return to
society." A permanent ban thus meets the
"sufficiently serious" test ofFarmer v. Brennan,
even though it isn't always permanent in
application but is theoretically reviewable in two
years.
The court concludes that the permanent ban
is not necessary to meet a penological objective,
since there was no evidence that the ban had
reduced substance abuse of violent, and substantial
evidence showed that the permanent ban is
counterproductive to prisoners' mental health,
stability, potential for future substance abuse, and
rehabilitation.
The ban also violates the First Amendment.
30

Summer/Fall 2002
It is questionable whether there is a valid, rational
connection between the permanent ban and
reducing substance abuse, since its effects on
substance abuse were not supported by much
evidence. It is an exaggerated response, since drug
abuse in the prison system had declined since the
1980s and was not a pervasive problem within the
system. Defendants' failure to provide enough
drug treatment programs to meet the demand
further shows that the restriction is used as a
substitute for treatment that might reduce drug
dependency and recidivism.
The ban also denies due process. The
permanent ban is atypical and significant under
Sandin. It is unique among state correction
systems, it contradicts American Correctional
Association standards, it differs sharply from past
practice, and it "creates an unusually harsh and
punitive environment for the prisoners restricted."
(858) One Sandin factor is duration of the
restriction imposed compared to discretionary
confinement.

Statutes of LimitationslUse of Force/Medical
Care--Standards of Liability--Serious Medical
Needs/Procedural, Jurisdictional and Litigation
Questions/Eye Care/Medical Care--Denial of
Ordered Care/Classification/Equal
Protection/Service of Process
Shelton v. Angelone, 148 F.Supp.2d 670
(W.D.Va.2001). A state statute provides that the
limitations period for claims brought by prisoners
about the conditions of confinement is one year, or
six months after exhaustion of administrative
remedies, whichever is longer. That statute does
not apply to the plaintiffs § 1983 action, since the
Supreme Court has directed use of the residual
limitations period for personal injury actions in §
1983 cases.
Small cuts on the plaintiffs wrist and
"signature marks" from a stun gun did not
constitute serious medical needs placing medical
personnel on notice that lack of immediate
treatment created any significant risk of harm.
Nonmedical defendants were entitled to rely on a
nurse's judgment whether treatment was required.
The allegation that prison staff ignored two

THE NATIONAL PRISON PROJECT JOURNAL

doctors' orders that the plaintiffbe provided with
tinted glasses with shields states a deliberate
indifference claim.
The claim against the former warden is
dismissed for lack of service of process, since
nobody can find him. What is notable here is the
efforts the court went to to assist: it obtained the
last known address from the defendants in
confidence, tried mail service, then directed the
Marshal to attempt service there.

Evidentiary Questions/Summary
JudgmentlMedical Care--Standards of
Liability--Serious Medical Needs/Personal
Involvement and Supervisory Liability
Davidson v. Scully, 148 F.Supp.2d 249
(S.D.N.Y. 2001). The court grants the plaintiffs
motion to submit additional evidence in opposition
to summary judgment on his medical care claim.
The evidence was of more recent events at a prison
to which the plaintiff had been newly transferred;
while it was not relevant to his prior treatment, it
was relevant to his injunctive claim
notwithstanding that it involved persons other than
the named defendants. At 254:
[L]ack of personal
involvement is not a bar to
consideration of the new evidence
as it relates to plaintiffs claim for
injunctive relief against the DOCS
Commissioner in his official
capacity.
Here, plaintiff seeks an
injunction directing the DOCS
Commissioner in his official
cap<l;~ity "to provide proper medical
treatment" to plaintiff." . .. The
DOCS Commissioner has the
overall responsibility to ensure that
prisoners' basic needs are met and
the authority to perform the required
act.
The new evidence will also be helpful in
determining whether the plaintiff has a serious
medical need, since two of the plaintiffs medical
conditions have been newly recognized by prison
doctors.

Summer/Fall 2002

Psychotropic Medication/Procedural Due
Process/Federal Officials and Prisons
United States v. Humphreys, 148 F.Supp.2d
949 (D.S.D. 2001). The decedent was provided
with a lay advocate in his hearing concerning the
involuntary administration of psychotropic
medication. The lay advocate wound up testifying
against the defendant and presented no evidence or
argument on his behalf. This denies due process.
Administrative determinations permitting
involuntary medication are judicially reviewable
for arbitrariness. This determination doesn't pass
muster because it does not satisfactorily explain the
hearing officer's findings, containing only a
summary of his impressions of the defendant and
the defendant's perceptions of himself, without
reference to his dangerousness, grave disability, or
inability to function in the prison population. The
court remands to the agency to do it right, and
reserving the right to have its own court appointed
expert in further proceedings.

Communication and Expression/Federal
Officials and Prisons/Deference
Kimberlin v. United States Dept. ofJustice,
150 F.Supp.2d 36 (D.D.C. 2001). In 1997
Congress enacted the Zimmer Amendment, which
inter alia prohibited any expenditure of funds for
the use or possession of electric or electronic
musical instruments. Before it was even passed,
the Bureau of Prisons issued an implementing
policy which prohibited the use or possession of
electric or electronic instruments by individual
prisoners. The plaintiff challenged the restriction,
arguing that it was impossible for him to play his
songs on an acoustic guitar.
Since the BOP policy antedates the Zimmer
Amendment, the court focuses on the policy rather
than the statute..
At 42: Prisoners "have a First Amendment
right to express themselves through music."
The policy is upheld. It serves a legitimate
interest, to decrease spending on prison amenities
and comforts.
There is a rational relationship between the
goal and the means. The notion that making prison
harsher will deter crime "may be optimistic, but it
31

·THE NATIONAL PRISON PROJECT JOURNAL

is not irrational." (45) Id.: "Congress does not
have a duty to create a factual record with respect
[to] its Amendment."
Prisoners have alternative means of
expression, i.e., using acoustic instruments.
Accommodation of the plaintiffs interest
would not have an impact on prison administration,
but it would contravene the statutory purpose.
There are no obvious, easy alternatives that
would serve the deterrent purpose.
The Bureau of Prisons' exception to the
electric instrument ban for religious purposes
violates the Administrative Procedures Act, since it
is not a reasonable interpretation of the statutory
language; the statute is not ambiguous and contains
no such exception.

Food/Religion--Practices--DietlClassification-Race/Qualified ImmunitylEvidentiary
Questions/Deference
Caldwell v. Caesar, 150 F.Supp.2d 50
(D.D.C. 2001). The plaintiff, a member ofthe
Liberal Catholic Church, alleged that he was
denied the vegetarian diet required by his belief
that such diet is ecologically sound and that meat
production is cruel to animals. (The Liberal
Catholic Church encourages a vegetarian diet but
does not require it; in fact, that church does not
appear to require anything.) Apparently the jail
authorized the diet, but the plaintiff still didn't get
it, and then refused to authorize renewal of the diet.
The plaintiffs and his expert's testimony
that his religion "strongly encouraged"
vegetarianism presents a genuine issue "as to the
nature of Plaintiffs religious beliefs and the extent
to which adherence to a vegetarian diet is essential
to his religion. "
There is a genuine issue of fact whether a
requirement that prisoners like the plaintiff renew
their requests for a religious diet every 90 days or
at arbitrary intervals was a substantial burden on
the plaintiffs religious exercise and whether it was
the least restrictive means of serving a compelling
interest. The record did not show whether the
plaintiff had other means of observing his religion,
e.g., engaging in group prayer.
The court assumes that the Religious
32

Summer/Fall 2002
Freedom Restoration Act is constitutional as
applied to the District of Columbia, then proceeds
to the constitutional questions. How it rationalizes
refusing to decide this question, which is squarely
raised and will determine the standard to be applied
by the jury, is not explained.
At 59: "Racial discrimination in the
administration of religious diet requests plainly
would violate clearly established constitutional
law, as any reasonable correctional officer or
prison psychologist knew or should have known."
The official was not entitled to qualified
immunity based on his not having heard ofthe
Liberal Catholic Church. The constitutional right
to nondiscriminatory treatment is clearly
established, and questions about the validity of the
individual's underlying claim are not part ofthe
mqUIry.
The court unconvincingly distinguishes
Scott v. D.C., the D.C. Circuit's decision about
second-hand smoke, on the ground that that was an
injunctive case and this is a damage case.
Evidence that defendants sometimes did not
provide the vegetarian diet, but instead merely
provided the regular meal with the meat removed
and no alternative source of protein, sufficiently
supported a nutritionally inadequate diet in
violation of the Eighth Amendment.
The evidence supported a negligence claim
for violation ofthe D.C. Municipal Regulation
requiring regular handwashing and for serving
unsanitary food. Expert testimony is not needed on
these points.

PLRA--Exhaustion of Administrative Remedies
Gibbs v. Bolden, 151 F.Supp.2d 854
(E.D.Mich.2001). The plaintiffs claim against a
defendant who was not mentioned in his grievance
must be dismissed under Sixth Circuit law.
PLRA--Attorneys' Fees
Sallier v. Scott, 151 F.Supp.2d 836
(E.D.Mich.2001). Hours spent responding to a
defendant's post-judgment motions are subject to
the attorneys' fees cap of 150% ofthe damage
award. The plaintiff recovered $13,000, so the
maximum fees that can be charged to the

THE NATIONAL PRISON PROJECT JOURNAL

defendants are $19,500. The court previously
applied $130.00 (1 %) of the judgment to the
attorneys' fees. Since the original fee award was
slightly less than $19,000, the defendants are
directed to pay the rest.
Disabled
Beckford v. Portuondo, 151 F.Supp.2d 204
(N.D.N.Y.2001). The wheelchair-bound plaintiff
alleged that he was denied a shower in retaliation
for filing a lawsuit; when he tried to bathe in his
cell sink, the defendant turned off the water in his
cell. He then smeared feces on his cell walls and
set fire to wastepaper, and was placed in a
plexiglass-front cell and on a restricted diet, denied
exercise, and refused showers for a week.
Hygiene (210-211): Deprivation of a single
shower did not violate the Eighth Amendment.
Turning off the water in the plaintiffs cell for six
days because he had previously flooded the cell did
not violate the Eighth Amendment; he was given
water twice each shift.
Denial of all shower privileges for a week
might violate the Eighth Amendment, especially in
view of defendants' knowledge that the wheelchairbound plaintiff had bladder problems and had to
clean himself frequently to avoid decubitus ulcers.
Punitive Segregation, Furnishings,
Clothing (211-12): Placement in a plexiglass-front
strip cell after the plaintiff had smeared feces on
his cell walls did not violate the Eighth
Amendment, especially since the plaintiff had
previously thrown urine and feces at officers.
However, an allegation that the plaintiff was
deprived of all clothing and bedding and forced to
sleep on cold steel because he would not cut a
fingernail stated an Eighth Amendment claim.
Food (213): Denial of two out ofthree
meals a day (even meals of "diet loaf') may violate
the Eighth Amendment if the remaining meal is not
nutritionally adequate and if done maliciously to
cause harm.
Recreation and Exercise (213-14): A six
month denial of outdoor recreation did not violate
the Eighth Amendment. Apparently the plaintiff
was allowed indoor recreation.
Use ofForce (215-16): An allegation that

Summer/Fall 2002
officers sprayed the plaintiff with a fire
extinguisher as punishment, causing minor injury,
supports an Eighth Amendment claim.
Protection from Inmate Assault (216-17):
An allegation that officers stood by while another
prisoner assaulted the plaintiff with bleach was
sufficient to withstand summary judgment; the
plaintiff would have to prove that the defendants
knew of a "substantial or pervasive risk of serious
harm" and acted with deliberate indifference by
failing to correct it.
Procedural Due Process--Disciplinary
Proceedings (218-19): Restricted diet, limited
water, and placement behind a plexiglass shield for
periods not exceeding a week were not atypical and
significant under Sandin. Placement in keeplock
for six months without a hearing also did not
implicate a liberty interest.
Disabled (220-22): Placement ofthe
plaintiff in a cell that was not wheelchair accessible
did notviolate the Americans with Disabilities Act
or the Rehabilitation Act because it was of short
duration and no cell was available that was
wheelchair accessible and equipped with a
plexiglass shield. There is no evidence of intent to
discriminate.
Dental Care/Pre-Trial Detainees/Personal
Involvement and Supervisory Liability/Medical
Care--Standards of Liability and Deliberate
Indifference/Statutes of Limitations/Summary
Judgment
Manney v. Monroe, 151 F.Supp.2d 976
(N.D.Ill.2001). The plaintiff alleged that he tried
for ten months to get treatment for a toothache,
despite his grievances. He saw a dentist several
times but his toothache was not treated.
Jail staff who processed grievances but had
no authority to take action on them could not be
held liable.
The Superintendent could not be held
liable; even though the plaintiff said he sent letters
to him, he did not provide documentary support for
this claim, nor did he provide deposition testimony
from family members who allegedly contacted
him.
A dental hygienist who had contact with the

33

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plaintiff and who had the power to schedule dental
examinations could be held liable for denial of
dental treatment. A prolonged and painful
toothache is a serious medical need.
The plaintiff sufficiently supported a
deliberate indifference claim. Although he saw a
dentist several times, he only received pain
medication, and the dental hygienist repeatedly
ignored his continuing complaints. (The court is
impressed by the fact that once he got to state
prison, he had four teeth pulled.)

Use of Force
Montero v. Crusie, 153 F.Supp. 368
(S.D.N.Y. 2001).
Sexual Abuse (375):
Allegations that on several occasions during pat
frisks, one defendant squeezed his genitalia, and
that the officer made sexual propositions, did not
state constitutional claims.
Procedural Due Process--Disciplinary
Proceedings (376): False disciplinary charges do
not violate the Constitution.
Verbal Abuse (376): "Verbal threats or
harassment, unless accompanied by physical force
or the present ability to effectuate the threat, are
not actionable under § 1983."
Protection from Inmate Assault;
Negligence, Deliberate Indifference, and Intent
(377): The plaintiff alleged that officers released
another prisoner into a recreation area in hopes that
he would attack the plaintiff. These allegations
stated a claim.
Federal Officials and Prisons/Access to Courts-Punishment and Retaliation
M~rritt v. Hawk, 153 F.Supp.2d 1216
(D.Colo.2001). Allegations of removal of
property, strip searches, deprivation of exercise and
medical care, and harassment such as coughing and
spitting into food may not support Eighth
Amendment claims, but they support a First
Amendment claim of retaliation for denial of
access to courts.
Use ofForce (1223-24): Defendants are
denied summary judgment on plaintiffs use of
force claim. At 1223: "Defendants' objection that
de minimis application of force is not actionable
34

Summer/Fall 2002
... misapprehends the Supreme Court's standard.
It is a de minimis application of force, not a de
minimis injury, that fails to rise to the level of a
constitutional violation...." Allegations that
defendants body-slammed him against walls and
floor, kicked, punched, and choked him, slammed
his head into walls, without justification while he
was restrained, while subjecting him to racial and
anti-semitic abuse, sufficiently alleged malicious
and sadistic intent. The plaintiff need not identify
which officer landed which blows for them to be
held liable.
The court disagrees with the magistrate
judge that an incident was de minimis force in
which officers took the plaintiff, handcuffed, from
the "lawroom," slammed and pinned him against
the wall, tripped him and lodged a knee in his solar
plexus while making threats because the plaintiff
was litigious.
Verbal Abuse, Equal Protection (1225):
The plaintiffs allegations of racial epithets
sufficiently support an equal protection claim.
Protection from Inmate Assault (1226-27):
Allegations that officers labelled the plaintiff a
snitch stated a failure to protect claim; the
magistrate judge erroneously dismissed on the
ground that the plaintiff was in SHU, where no one
could get at him, since there were ways to get at
him, and anyway he alleged repeated attempts to
remove him to general population.
Personal Involvement and Supervisory
Liability (1227-28): The plaintiffs assertions that
he had informed various supervisory officials about
his problems sufficed to support their personal
involvement.
Cruel and Unusual Punishment,
Environment (1228): Sleep is a basic life necessity,
deprivation of which can violate the Constitution.

PLRA--Exhaustion of Administrative
Remedies/PLRA--Screening and Dismissal
Henry v. Medical Dept. at SCI-Dallas, 153
F.Supp.2d 553 (M.D.Pa. 2001). Non-exhaustion is
not a failure to state a claim permitting sua sponte
dismissal at the screening stage (i.e. before service
of process); the court follows the Second Circuit's
reasoning in Snider v. Melindez. Courts do have

THE NATIONAL PRISON PROJECT JOURNAL

the power of sua sponte dismissal after service of
process.

Procedural, Jurisdictional and Litigation
Questions
Ramey v. Georgia Dept. ofCorrections,
153 F.3d 1382 (M.D.Ga. 2001). The plaintiff sued
the state in state court for deliberate indifference to
his medical needs. The defendants, through the
state Attorney General, removed the case to federal
court. The plaintiffs then moved to remand on the
ground that the district court lacked jurisdiction
because the Attorney General lacked authority to
waive Eleventh Amendment immunity from the
plaintiffs claim against the state. Under state law,
they are right.

Non-Prison Cases
Indemnification
Blumberg v. Gates, 144 F.Supp.2d 1221
(C.D.Cal. 2001). Past decisions to indemnify
police officers in civil rights suits may be
actionable on the theory that they have caused
subsequent civil rights violations. The court makes
it clear that it thinks the Ninth Circuit precedent
compelling this conclusion is wrong.
Use of Force/Municipalities/Staffing--Training
Hucker v. City ofBeaumont, 144 F.Supp.2d
696 (E.D.Tex. 2001). An arrestee's claim that a
police officer showed him off his porch and onto
the ground and hog-tied him with his belt to carry
him to the police car stated a constitutional claim.
Since such conduct was not in accordance with city
policy, it is bard to see how the defendant could
have thought his conduct was lawful.
Deposition testimony from a police captain
that officers transporting prisoners requiring
medical care have discretion whether to take the
prisoner to a hospital or the jail, and there was no
specialized training on how to distinguish who
should go where, sufficiently supported a claim of
municipal liability for failure to train.
Disabled
Pugliese v. Arizona Dept. ofHealth and

Summer/Fall 2002
Human Services, 147 F.Supp.2d 985 (D.Ariz.
2001). Damage claims under the Rehabilitation
Act are barred by the Eleventh Amendment. Prior
authority holding that the acceptance of federal
funds constitutes a waiver of Eleventh Amendment
protection under the Spending Clause is overruled
by the Supreme Court's decision in College
Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board, which requires waiver
of Eleventh Amendment immunity to be by "clear
declaration" and not by implication or construction.

Procedural, Jurisdictional and Litigation
Questions/AIDS/Standing
Roe v. City ofNew York, 151 F.Supp.2d
495 (S.D.N.Y. 2001). Intravenous drug users who
used state-authorized needle exchange programs
alleged that they were harassed by the police.
The plaintiffs had standing to seek
injunctive relief. There is no minimum number of
past incidents that must be pled to establish
standing, and in addition they plead an ongoing
pattern and practice by the police. Lyons is
distinguished because this case involves a police
response to lawful behavior. In addition, the
plaintiffs are all IV drug users who frequent needle
exchange centers in "known drug areas." At 504:
"Courts have repeatedly found that plaintiffs who
are members of such an identifiable class of
targeted individuals have standing to sue." The
chain of causation is also less speculative than in
Lyons, given the alleged police policy of targeting
members ofthe plaintiff class. A reasonable fear
of arrest also confers standing.
The new plaintiff is permitted to proceed
anonymously because ofms ongoing drug use and
HIV positive status. At 510: "Such a motion is
commonly granted in cases that 'concern[] matters
of a highly sensitive and personal nature. HIVpositive persons in particular have been allowed to
proceed anonymously.
III

Mental Health Care
Iowa Protection and Advocacy Services,
Inc. v. Gerard Treatment Programs, L.L. c., 152
F.Supp.2d 1150 (N.D.Iowa 2001). The plaintiff,
an organization with authority under Protection and
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THE NATIONAL PRISON PROJECT JOURNAL

Advocacy for Mentally III Individuals (liP AMII")
(a/k/a PAIMI), has the authority to investigate
incidents of abuse and neglect and to have access
to the records and facilities of publicly and
privately run institutions, notwithstanding state

Summer/Fall 2002

confidentiality laws. The plaintiff is entitled to a
preliminary injunction to obtain records even
where the parents, guardians, or guardians ad litem
ofthe allegedly abused child opposed such access.

National Prison Project Staff

Starting left: (seated)Eugenia Bigelow and Thandor Miller; (standing) Jackie Walker, Elizabeth Alexander,
Amy Fettig, David C. Fathi, Margaret Winter, Kara Gotsch, Terrance Moore and Eric Balaban; (missing) Craig
Cowie, Johnice Galloway and Mohamedu Jones.
""

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