. ~~~~~~ALJOURNAL
AMERICAN CIVIL LIBERTIES UNION

. PROJECT

Vol. 16, NO.2, Winter/Spring 2003 • ISSN 1076-769X

Court Orders Immediate Remedies for Deplorable Conditions on
Mississippi's Death Row
Ruling in a lawsuit brought by the
American Civil Liberties Union, a federal
magistrate judge ruled in May that conditions on
Mississippi's death row inflict cruel and unusual
punishment on the prisoners confined there and
ordered the state to end its brutal practices.
"No matter how heinous the crime
committed, there is no excuse for such living
conditions," the court said in a strongly worded
rUling. "It is the duty of the State of Mississippi to
meet these minimal standards of decency, health
and well-being."
Margaret Winter, Associate Director of the
ACLU's National Prison Project, welcomed the
ruling. "This decision upholds the basic principle
that the state must not needlessly, wantonly inflict
pain on any human being -- not even a prisoner
condemned to death."
The order, issued by U.S. Magistrate
Judge Jerry A. Davis in the Northern District of
Mississippi, results from a case filed last July by
the ACLU's National Prison Project and Holland &
Knight on behalf of the death row prisoners
housed in Unit 32 of the State Penitentiary in
Parchman.
"The isolation of Death Row, along with the
inmates' pending sentences of death and the
conditions at Unit 32 C, are en~ugh to weaken
even the strongest individual," Judge Davis said.
"If the state is going to exact the ultimate penalty
against these inmates, then it must meet the
mental health needs of each Death Row inmate
and not merely warehouse them."
The ACLU first learned of the prisoners'
complaints last year when they sought relief from
the filthy, mosquito-infested and dangerously hot
isolation cells in which they lived for many years
while pursuing their appeals.
According to the report of expert
psychiatrist Terry A. Kupers, who toured the
facility last 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
added that
conditions on
the Unit
include
solitary
confinement
combined
with "the
extremes of
heat and
humidity, a
grossly
View of tier in Unit 32 at the State Penitentiary in
unsanitary
Parchman.
environment,
vermin, arbitrary and punitive disciplinary policies,
and inadequate health and mental health care."
The decision also addressed problems
documented by environmental health and safety
expert James Balsamo. Balsamo cited extreme
temperatures, filth, grossly malfunctioning toilets,
and mosquito infestations as major health
hazards, especially during Mississippi's brutally
hot summer months. He testified that with the heat
index frequently exceeding 100 degrees, and a
faulty plumbing system that can leave the cells
without water for hours or even days at a time, the
prisoners are at high risk for heat stroke or heat
death.
Dr. Susi Vassallo, an expert in
thermoregulation and a volunteer through Doctors
Continued on page 2

Winter/Spring 2003

NATIONAL PRISON PROJECT JOURNAL

Arizona Judge Strikes Down Law that Censored Anti-Death Penalty Web Sites
The American Civil Liberties Union
welcomed a federal judge's ruling in May that
permanently struck down a state law that punishes
prisoners who post information about themselves
on the Internet and denies organizations the right
to post information about prisoners on their own
web sites.
"We are delighted and encouraged by the
jUdge's order to protect the First Amendment
rights of prisoners and their advocates," said
David C. Fathi, staff attorney with the ACLU's
National Prison Project and lead counsel in the
case.
The lawsuit, Canadian Coalition Against
the Death Penalty v. Charles L. Ryan, was filed on
behalf of anti-death penalty and prisoner advocacy
organizations in July 2002. The lawsuit challenged
broadly worded legislation that also barred
prisoners from corresponding with a
"communication service provider" or "remote
computing service" and disciplined prisoners if any
person outside of prison contacted one of these
agencies at a prisoner's request.
In striking down the censorship law, the
court said that it was unconstitutional and "not
rationally related to legitimate penological
objectives." Today's decision makes permanent a
preliminary order issued last December that halted
enforcement of the law.

The Arizona Department of Corrections
imposed disciplinary sanctions on at least five
prisoners found to be in violation of the law,
according to the lawsuit. Penalties included
disciplinary detention and loss of privileges like
visits with family, phone calls and access to the
commissary.
"The Internet provides an integral
connection to the free exchange of ideas and
information," said Eleanor Eisenberg, Executive
Director of the ACLU of Arizona. "As the court
found, attempts by the government to punish
individuals in order to silence their unpopular
voices are clearly illegal. Given the court's
decision, I am hopeful other states will choose to
avoid Arizona's mistakes."
National ACLU Associate Legal Director
Ann Beeson and Alice Bendheim and Pamela K.
Sutherland of the ACLU of Arizona all served as
co-counsel in the lawsuit.
The ACLU's organizational clients are the
Canadian Coalition Against the Death Penalty;
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 of the ACLU's clients maintain
web sites with prisoner information.
Mississippi Death Row
Continued from cover

2

of the World-USA's Medical Advocacy Project, who
also visited Mississippi's death row in August of last
year, testified that the heat in the cells was
"inhuman" and highly likely to cause heat stroke and
other heat-related illness during the summer months.
She testified that it was merely a matter of luck that
no death row prisoner had yet died from the heat.
Of 183 death sentences imposed in
Mississippi since 1976, the Mississippi Supreme
Court has reversed the death penalty in 41 percent
of the direct appeals it has ruled on. In fact, almost
as many people have had their convictions reversed
as have been executed.
Along with Winter, Steve Hanlon, a partner at
the Washington law firm Holland & Knight, Amy
Fettig of the ACLU's National Prison Project, ACLU
of Mississippi attorney Sandi Farrell and Mississippi
civil rights attorney Robert McDuff served as cocounsel in the lawsuit, Russell v. Johnson.

NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2003

Prisoner Transport Company Pays Damages in Lawsuit Over Sexual Assault
A woman who was sexually assaulted and
threatened with death by a guard during a fourday prisoner transport accepted a settlement in
which the guard and the private prisoner transport
company that employed him agreed to pay money
damages, the American Civil Liberties Union
announced in March.
Filed on behalf of Robin Darbyshire by the
ACLU's National Prison Project, the lawsuit
confronts the horror of sexual assault committed
by correctional staff and the pitfalls associated
with for-profit prisoner transport companies. It was
the first of a series of lawsuits filed by the ACLU's
National Prison Project as part of its new
campaign to end rape and sexual assaults against
prisoners.
"The rape and sexual assault of female
prisoners is a nation-wide problem," said Craig
Cowie, an attorney with the ACLU's National
Prison Project and co-counsel in the lawsuit.
"When officials choose to ignore or dismiss a
woman's allegations of abuse they send a
message that violence against women prisoners is
acceptable," Cowie added. "This legal victory
serves as a reminder that sexual violence against
prisoners is cruel and unusual punishment and a
violation of the Constitution."
The settlement ends a lawsuit that arose
when Extraditions International, Inc. took custody
of Darbyshire in Carson City, Nevada on May 13,
2001 to transport her to a Colorado jail. During the
four-day van trip with two male officers and other
mostly male prisoners, an Extraditions
International guard sexually harassed and
threatened to kill Darbyshire and another female
prisoner.
The lawsuit said that the guard sexually
assaulted Darbyshire during one of the few van
stops where prisoners were permitted to use the
restroom. The driver, Richard Almendarez,
brought Darbyshire to the bathroom and told her
to lie down on the floor facing him. The 325-pound
officer, who was armed, ordered her to expose her
breasts and lift up her skirt. He then masturbated
while standing above her and ejaculated onto her
breasts. The officer told Darbyshire that if she
screamed he would shoot her and claim that she
tried to escape.
A corrections expert investigating the case
concluded that the offending officer, Almendarez,

had a history of being "callous" in his treatment of
prisoner transportees and the company that
employed him, Extraditions International, was
"deficient" in its operations.
"Extraditions International, Inc. hired
Almendarez to transport prisoners for its company
knowing that the Texas prison system had fired
him for assaulting a prisoner there and failing to
report it," Cowie said. "Darbyshire's cruel and
violent treatment could have been prevented if the
company effectively investigated its potential
employee."
The lawsuit alleged that the company
failed to train or supervise their staff appropriately,
allowing the assault to occur. Despite complaints
made by Darbyshire during a stop at the
Extraditions International office in Commerce City,
Colorado, the company placed her back in the van
with the driver whom they knew had sexually
harassed and threatened to kill her.
Information discovered after the lawsuit
was filed revealed that Extraditions International
operated illegally by transporting prisoners without
proper licensing or insurance, and the ACLU
contends, its successor, American Extraditions,
continues to do so.
"This case provides an excellent example
of why contracting with private for-profit
companies to conduct correctional functions can
be dangerous to prisoners and the public," said
David C. Fathi of the National Prison Project and
co-counsel in the case.
Another lawsuit filed against Extraditions
International last year alleged similar inhumane
and degrading treatment by its employees. In that
case, officers left a woman alone overnight in a
company holding cell with five male prisoners. The
next day when guards returned to release the
prisoners, the plaintiff overheard company workers
state that they had left her in the cold and vacant
warehouse because they did not want to pay to
have her confined in a local jail.
The settlement, of an undisclosed amount
of damages, resolves the lawsuit, Robin
Darbyshire v. Extraditions International, Inc., filed
in U.S. District Court for the District of Colorado by
Cowie, Fathi and Mark Silverstein, legal director of
the ACLU of Colorado.

3

NATIONAL PRISON PROJECT JOURNAL

ACLU and Alabama Prison Project Release
Report Urging Community Corrections as Cost
Saving Measure
Citing Alabama's bUdget crisis and
dangerously overcrowded prisons, the American
Civil Liberties Union and the Alabama Prison
Project released in April a new budget analysis
highlighting a potential savings of $300,000 to
$400,000 if the state accepted prisoners liVing with
HIV into existing community-based corrections
programs.
"I commend Governor Bob Riley and the
state legislature for passing emergency legislation
and for considering additional legislative efforts
that reduce corrections costs by utilizing
community programming," said Lucia Penland,
director of the Alabama Prison Project. "But
problems continue to plague Alabama's prison
system," Penland added. "In light of the findings
that support admission of HIV-positive prisoners
into diversion and community corrections
programs, the time is right to explore more costsaving measures and stop the needless
segregation of HIV-positive prisoners."
Alabama currently bars all prisoners living
with HIV/AIDS from participating in activities with
other prisoners and offers few alternative
opportunities for rehabilitative programming. No
other state in the country completely segregates
prisoners with HIV/AIDS in this way. The
misguided HIV/AIDS segregation policy applies
both to in-prison programs -- such as education,
jobs, vocational training, and religious services -as well as to community-based programs run by
the state or outside organizations. Communitybased options include work release, supervised
intensive restitution, boot camp, and other
programs.
The April analysis examines the Alabama
Sentencing Commission's findings that the state
pays $26 a day to house an individual in prison but
only $11 a day to divert a prisoner into
intermediate sanctions. Another recent report on
Alabama's corrections system by Carter Goble
Associates found that the state pays $9000 per
person per year for incarceration versus $2000 for
community corrections prog rams. The analysis
also goes on to illustrate that if HIV-positive
prisoners could participate in these programs at
the same rate as other Alabama prisoners, 56
men and women could be transferred resulting in
4

Winter/Spring 2003
a cost savings to the state of $300,000-$400,000.
"Governor Riley has publicly announced
his commitment to expanding community-based
correctional programs as an effective low-cost
criminal justice sanction," said Jackie Walker,
HIV/AIDS/Hepatitis Information Coordinator at the
ACLU's National Prison Project. "His swift
response to this new analysis could redress a
misguided and expensive one-of-a-kind policy in
Alabama."
The briefing paper, Cost of Excluding
Alabama State Prisoners with HIVIAIDS from
Community-Based Programs, was written by Dr.
Rachel Maddow, an expert consultant for the
ACLU's National Prison Project. Copies of the
report are available on line at:
www.aclu.org/Prisons/Prisons.cfm?ID= 12495&c= 123.

Judge Finds Poor Conditions at Virgin Islands
Jail Violate Court Orders
Citing the defendants' willful failure to
comply with court orders and provisions of a 1994
settlement agreement to eliminate unconstitutional
jail conditions, a federal judge in May held territory
and corrections officials in St. Thomas in civil
contempt for the third time in six years, the
American Civil Liberties Union said.
"Even after defendants agreed almost 10years ago to improve medical and mental health
care and end fire code violations, dangerous
conditions within St. Thomas's Criminal Justice
Complex continue to jeopardize the health and
safety of the men and women housed there," said
Eric Balaban, a staff attorney with the ACLU's
National Prison Project.
The order, issued by U.S. District Judge
Stanley Brotman, follows a November 2002
evidentiary hearing where medical and corrections
experts cited numerous problems plaguing the St.
Thomas facility. Dr. Charles Braslow testified that
after touring the facility in September 2002 he
found lapses in the treatment of prisoners with
chronic illnesses. Despite a 2001 court order,
prisoners were still not receiving care consistent
with community standards.
The May ruling criticized St. Thomas
officials for inadequacies in the jail's mental health
care system as well. Judge Brotman found that
prisoners who exhibit signs of mental illness were
not appropriately referred to a psychiatrist for
treatment.

NATIONAL PRISON PROJECT JOURNAL

Most striking is officials' continued failure
to remedy problems with the complex's fire safety
system despite repeated warnings, Balaban
noted. In his order, Judge Brotman wrote, "the
incomplete fire detection and suppression
systems; the absence of fire safety training;
inadequate numbers of correctional staff;
inadequate fire drills; lack of fire system
replacement parts and supplies; absence of a
preventative maintenance contract for the fire
detection, suppression, and alarm systems; and
the lack of written policies and procedures of
which all staff are knowledgeable, results in these
facilities remaining a serious and imminent threat
to the lives, safety, and health of the prisoners and
staff."
Officials in the Virgin Islands -- which is a
U.S. territory consisting of three islands: St.
Thomas, St. Croix and St. John -- will have 45days to submit a comprehensive progress report
to prove claims that conditions at the jail complex
have improved since last fall's facility tour. In
addition, medical and correctional experts will
again tour the jail within 30-days and issue new
reports outlining their own findings.
"The contempt order against territory
officials sends an important message that a laisez
faire approach to maintaining constitutional
conditions of confinement will not be tolerated,"
Balaban said.
Prisoners in the lawsuit, Lawrence Carty,
et al. v. Charles W. Turnbull, et al. filed in the
District Court of the Virgin Islands, Division of St.
Thomas and St. John are represented by Balaban
and local attorney Benjamin A. Currence.
New Report to Congress Describes Health
Crisis in Prisons and Jails
With millions of people leaving prisons and
jails every year, a new federal study highlighting
the dismal health status of confined individuals
demonstrates why Congress must investigate the
medical care crisis in the country's correctional
systems.
A press conference held on January 27 in
San Antonio, Texas officially announced the
publication of The Health Status of Soon-To-BeReleased Inmates: A Report to Congress,
produced by the National Commission on
Correctional Health Care (online at
www.ncchc.org) and sponsored by the National

Winter/Spring 2003
Institute of Justice. The double volume document
includes recommendations for care and promotes
the adoption of nationally accepted clinical
guidelines for treatment of prisoners.
Growing numbers of incarcerated
individuals suffer disproportionately from
tuberculosis, HIV/AIDS, hepatitis, mental illness,
substance addiction and many chronic diseases.
Corrections departments are overwhelmed by the
high cost of providing medical care and face
serious challenges to providing treatment to
patients. Untreated patients jeopardize the health
and safety of prison and jail staff, institution
visitors, prisoners and the communities to which
they return.
According to the report, releasees from
prison or jail comprised 35 percent of the U.S.
population infected with tuberculosis in 1996 and
accounted for 17 percent of the AIDS infected
population. Nearly 330,000 imprisoned individuals
tested positive for Hepatitis C in 1997 and
approximately 1.4 million Hepatitis C infected
individuals left prison or jail in 1996.
Releasing sick prisoners into the
community without proper treatment or
opportunities to continue treatment presents a
major threat to public health. The American Civil
Liberties Union in Michigan filed suit in January
alleging that some prisoners infected with hepatitis
were not notified of their status or educated on
how to prevent the disease. Last year, the
Philadelphia Inquirer reported that numerous
prisoners in New Jersey were released into the
community never knOWing they had been
diagnosed with Hepatitis C. Infected persons can
unwittingly spread the disease to loved ones and
sexual partners.
A coalition of over 30 organizations,
formed to support the report's findings and
support federal legislation to improve correctional
health care, called on Congress in January to
conduct hearings to explore the report's findings.
In May, Congressman Ted Strickland introduced
H.R. 1993, the Office of Correctional Health Act of
2003. The legislation establishes and Office of
Correctional Health within the Department of
Health and Human Services and creates a small
federal grant program for prisons and jails. The
aid would allow local officials to vaccinate
prisoners for Hepatitis A and B and/or provide for
the care of prisoners with Hepatitis C. A Senate
version of the bill has not yet been introduced.
5

Winter/Spring 2003

NATIONAL PRISON PROJECT JOURNAL

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

I U.S. Court of Appeals Cases

I

Protection from Inmate Assault/Staffing-Training/Class Actions--Effect of Judgments
and Pending Litigation
Tucker v. Evans, 276 F.3d 999 (8th Cir.
2002). Prison staff are not liable for a fatal
beating by other prisoners. There is no evidence
of the prior danger to the particular prisoner. The
existence of a prison policy forbidding the officer
to enter the barracks until assistance arrived did
not matter, since the assault was over by the time
the officer knew anything was wrong. The
allegation that he failed properly to supervise by
returning to the officers' station after lights out and
turning his attention elsewhere amounted to
negligence at most, though the argument would
have been stronger if he had had prior knowledge
of the risk to the decedent.
The Warden and Director could not be
held liable based on a prior Eighth Circuit decision
holding that understaffing of a dormitory presented
a triable issue of deliberate indifference. That
case, Smith V. Arkansas DOC, involved
noncompliance with an order governing a specific
unit in a specific prison, and there is no evidence
that dormitory understaffing has risen to
unconstitutional levels at this prison.
The officer defendant's attendance at a
training academy plus on-the-job training were
sufficient to support summary judgment for the
supervisory defendants on plaintiff's training claim.
Searches--Person-Convicts/StaffingSexlPrivacy/Mootness/Class Actions--Effect of
Judgments and Pending Litigation/Personal
Involvement and Supervisory Liability/Equal
Protection
Oliver V. Scott, 276 F.3d 736 (5th Cir.
2002). The plaintiff challenged the use of female
guards to monitor male prisoners in bathrooms
and showers even though male guards were not
used to monitor women under similar
circumstances.

6

Officials cannot be held liable for strip
searches and cross-sex monitoring "pursuant to"
state policies unless the policies are
unconstitutional or are the "moving force" of a
constitutional violation. The policies are not
unconstitutional and there is no explanation of
how they cause constitutional violations. Even if
the warden approved violations of the policies,
since the directive narrowly restricts discretion and
then delegates that discretion to the warden, the
higher-ups can't be held liable.
The plaintiff has no privacy claim. At 744:
Prisoners retain, at best, a very
minimal Fourth Amendment interest
in privacy after incarceration.
The Fourteenth Amendment
is an even more problematic source
for a right to bodily privacy. Courts
should not reverse the outcome of
the Fourth Amendment analysis
based on novel fundamental
implied rights. [Footnote omitted.]
And the existing set of fundamental
implied rights--marriage, family
procreation, and the right to bodily
integrity--does not include a right to
avoid exposure to members of the
opposite sex.
The omitted footnote cites Graham V. Connor's
holding that when the Fourth Amendment grants
an explicit right to privacy, courts shouldn't engage
in substantive due process analysis.
Even if there is a right to avoid being
viewed naked by members of the opposite sex,
the state's policy of "permitting all guards to
monitor all inmates at all times" survives under the
Turner standard. It "increases the overall level of
surveillance" and bathrooms and showers could
be the site of violence and sexual assault.
Inmates were permitted to shield themselves with
newspapers and paper towels (this is attributed to
CCA and not the state policy). Gender restrictions
on surveillance would have the "ripple effect" of
requiring reassignment of a high percentage of its
staff. The plaintiff offers no alternative at de
minimis cost in terms of security or equal
employment opportunities.

NATIONAL PRISON PROJECT JOURNAL

The disparate treatment of male and
female prisoners with respect to cross-sex
surveillance does not deny equal protection
because the plaintiff did not show that male and
female inmates were similarly situated, and he
conceded that the prison housed six times more
men than women and males had significantly
more violent criminal records and incidence of
violent gang activity and sexual predation, facts
which justify more intensive surveillance. The
court invokes Turner's reasonable relationship
standard in its equal protection analysis.
Federal Officials and Prisons/Protection from
Inmate AssaultJPleading/lmmunity--Federal
Officials and Agencies
Alfrey v. United States, 276 F.3d 557 (9th
Cir. 2002). Under the Federal Tort Claims Act, the
government is immune for the exercise of or
failure to exercise a "discretionary function," which
protects conduct that (a) "involves an element of
judgment or choice" that (b) "involves
considerations of social, economic, and political
policy." (561, citations omitted) The failure of
prison staff to perform a Central Inmate Monitoring
of the cell mate, who was a state prisoner,
presented a triable issue of fact, since if the
prisoner was in the particular institution solely to
serve his state sentence, he was subject to CIM
requirements by mandatory (Le., nondiscretionary) regulation. The failure to run a
SENTRY search was subject to the discretionary
exception because there is no mandatory duty to
perform such a search, and the fact that a prison
staff member might have thought there was does
not matter.
Staff did essentially nothing in response to
the plaintiff's complaint that he was in danger.
The failure to take different action in response to
the decedent's report of the threat was subject to
the discretionary exception, since regulations give
staff discretion in determining how to address
such reports, and that sort of discretion involves
policy considerations (how intrusive a search
should be conducted, how to set priorities among
all extant risks).
The plaintiffs constitutional claims are
dismissed because a heightened pleading
standard applies to Bivens claims with subjective
intent as an element, and no facts were pled
supporting such intent. (This holding is probably
overruled by Swierkewiecz v. Sorema, which

Winter/Spring 2003
generally disapproves heightened pleading
standards unauthorized by the Federal Rules of
Civil Procedure.)
Habeas Corpus/Procedural Due Process-Disciplinary Proceedings
Piggie v. McBride, 277 F.3d 922 (7th Cir.
2002). The petitioner sought a writ of habeas
corpus to overturn a disciplinary conviction which
reduced his good time-earning classification. He
complained that prison officials did not look at the
videotape of the incident in question.
Prisoners may not be denied exculpatory
evidence simply because other evidence supports
their guilt; they "are entitled to have exculpatory
evidence disclosed unless its disclosure would
unduly threaten institutional concerns." (925)
Prison officials need not explain denials of
exculpatory evidence at the hearing but in
subsequent litigation have the burden of proving
that the denial was not arbitrary or capricious.
Here, the state did not provide any
institutional or correctional justification, but said
only that the petitioner failed to request the tape
before or at the hearing. The court agrees that if
that is the case, failure to review the tape did not
deny due process. However, the prison
superintendent's finding that the petitioner failed
timely to request the tape is not binding on the
district court under AEDPA. Prison disciplinary
boards are not "courts" whose findings are entitled
to deference in federal habeas proceedings,
although it appears that if the state provided
judicial review of disciplinary proceedings, the
findings would benefit from such deference after
judicial affirmance. The district court therefore
should determine whether the tape had been
erased and if so when, and whether the petitioner
asked for the tape at or before the hearing. If the
tape was extant and he asked for it, he should
receive relief.
PLRA--Exhaustion of Administrative
Remedies/Sexual Abuse/Pleading/Grievances
and Complaints about PrisonlTransfer and
Admission to Mental Health Facilities
Morales V. Mackalm, 278 F.3d 126 (2d Cir.
2002). At 130: "Failure to exhaust administrative
remedies precludes only the current lawsuit. ...
Therefore, the dismissal of claims for failure to
exhaust should be without prejudice."
The defendant's involvement with a
7

NATIONAL PRISON PROJECT JOURNAL

decision to transfer the plaintiff shortly after the
plaintiff had filed a grievance against him supports
an inference of retaliatory motive. Calling the
plaintiff a "stoolie" in front of other prisoners was
not sufficient adverse action to support a
retaliation claim, but transfer to a psychiatric
facility was, and the plaintiff "should have the
opportunity to develop facts that would
demonstrate that the prospect of confinement in a
psychiatric facility would deter a reasonable
inmate from pursuing grievances." (132)
An allegation that a female staff member
asked the male plaintiff to have sex with her and
to masturbate in front of her and other female staff
did not state a constitutional claim for sexual
harassment.
Access to Courts/Municipalities/Transfers/
State Officials and Agencies/PLRA-Exhaustion
of Administrative Remedies/Procedural,
Jurisdictional, and Litigation Questions
Ali v. District of Columbia, 278 F.3d 1
(D.C.Cir. 2002). At 5-6: The PLRA's exhaustion
requirement is not jurisdictional.
Habeas Corpus
Harvey v. Horan, 278 F.3d 370 (4th Cir.
2002). A prisoner serving a sentence for a sexual
offense could not under Heck pursue a § 1983
action for an injunction to prove his innocence by
retesting DNA evidence, and if his action was
construed as a petition for habeas corpus, it was
barred as a successive petition brought without
leave of court.
Procedural Due Process--Disciplinary
Proceedings
Riggins V. Walter, 279 F.3d 422 (7th Cir.
1995). A prisoner who was placed in segregation
pending a hearing was provided due process by
the "postdeprivation" disciplinary hearing he
received.
Review of a disciplinary proceeding to
determine if it was supported by "some evidence"
must be limited to evidence in the administrative
record. Evidence from confidential sources meets
the "some evidence" test. Reliability of
confidential sources may be established after the
fact and not just from the administrative record.
The magistrate judge "implicitly" found that the
sources were reliable.
The plaintiff alleged that he was punished
8

Winter/Spring 2003
for refusing a polygraph test. There is no Fifth
Amendment issue here because "it would be
premature to find that punishing a refusal to attend
a polygraph examination violated the privilege
against self-incrimination because the witness,
upon showing up at the examination and being
asked potentially incriminating questions, still had
the right to claim the privilege and to be informed
of the availability of immunity." (431)
PLRA--Three Strikes Provision
Lewis v. Sullivan, 279 F.3d 526 (7th Cir.
2002). The three strikes provision is upheld
against various constitutional challenges. There is
no constitutional right to have one's litigation
subsidized. The constitutionality of filing fees for
civil litigation has been upheld.
It would be unconstitutional to leave
prisoners in a situation where fundamental rights
were at stake and no judicial forum was available.
However, that's not the case here; the court sets
out seven options by which a prisoner can get into
court: (1) pay the fee, (2) save in advance, (3)
refrain from frivolous litigation, (4) borrow from
friends or relatives, (5) borrow from a lawyer by
getting a lawyer to represent based on the
prospect of a fee, (6) go to state court, (7) "if all
else fails," rely on the serious physical injury
provision. That provision applies "[w]hen a threat
or prison condition is real and proximate, and
when the potential consequence is 'serious
physical injury.'" (531)
Procedural Due Process
Ex Post Facto Laws
Jones v. Ray, 279 F.3d 944 (11th Cir.
2001). The use of false information in a parole file
can be a due process violation, but such a claim
cannot be conclusory and must specify the false
information.
Deference/Religion
Schreiber V. Ault, 280 F.3d 891 (8th Cir.
2002). The plaintiff complained that prison
officials failed to dispose of his medical blood
samples consistently with his religious beliefs, i.e.,
by pouring it on the ground and covering it with
dust. Instead, they were sent to a contractor for
decontamination and disposition. The plaintiff is a
Jehovah's Witness, but "his interpretation goes
beyond Jehovah's Witness teachings."
The prison's practice withstands scrutiny

NATIONAL PRISON PROJECT JOURNAL

under the Turner test. Given the dangers of
infection from blood, it is rationally connected to
the "legitimate, neutral government interest of
protecting the health and safety of prison inmates
and employees." (893) There is no alternative to
accommodate the plaintiffs beliefs,
accommodating his practice could jeopardize
health and safety, and there are no ready
alternatives that would accommodate the plaintiff
without jeopardizing others.
Use of Force/Qualified Immunity/Personal
Involvement and Supervisory Liability
Skrtich v. Thornton, 280 F.3d 1295 (11th
Cir. 2002). The plaintiff alleged that officers
extracting him from his cell first shocked him with
an electronic shield and then kicked him
repeatedly in the back, ribs, and side, and struck
him with their fists. He did not resist. He had to
be airlifted to a hospital, where he remained for
nine days. He had left chest trauma with multiple
fractures to the left ribs and left
hemopneumothorax, back injury with fractured
multiple transverse processes, right scalp
laceration, abrasions and contusions with
markings of shoes on back and chest.
At 1301:
In this Circuit, a defense of qualified
immunity is not available in cases
alleging excessive force in violation
of the Eighth Amendment, because
the use of force "maliciously and
sadistically to cause harm" is
clearly established to be a violation
of the Constitution by the Supreme
Court decisions in Hudson and
Whitley. . .. There is simply no
room for a qualified immunity
defense when the plaintiff alleges
such a violation.
Absent evidence that any force was necessary
after the plaintiff was shocked, the allegations
make out an Eighth Amendment violation. The
plaintiffs close-management status based on his
disciplinary history did not justify the officers'
conduct once he had been incapacitated by the
stun shield. At 1302: "It is not constitutionally
permissible for officers to administer a beating as
punishment for a prisoner's past misconduct."
The court is not impressed by the defendants'
argument that they used de minimis force given
the plaintiff's injuries. Id.: "Moreover, we rejectthe

Winter/Spring 2003
argument that the force administered by each
defendant in this collective beating must be
analyzed separately to determine which of the
defendants' blows, if any, used excessive force."
The evidence is that the cell extraction team acted
in concert to inflict the injuries while others
watched. Officers who are present and fail to take
reasonable steps to prevent excessive force may
be held liable.
The court then returns to qualified
immunity, despite its earlier statement reading it
out of the case entirely in Eighth Amendment
excessive force cases. At 1303: "By 1998, our
precedent clearly established that government
officials may not use gratuitous force against a
prisoner who has already been subdued or, as in
this case, incapacitated." The fact that there is no
prior case in which excessive force was found
unconstitutional in the context of a cell extraction
does not distinguish this case from precedent. At
1304:
The law of excessive force in this
country is that a prisoner cannot be
subjected to gratuitous or
disproportionate force that has no
object but to inflict pain. . .. This is
so whether the prisoner is in a cell,
prison yard, police car, in handcuffs
on the side of the road, or in any
other custodial setting.
Two of the defendants moved to dismiss
(rather than for summary judgment) based on
qualified immunity. However, they did this in their
third motion to dismiss, which was filed after their
answer, all contrary to Rules 12(b)(6) and 12(g),
Fed.R.Civ.P., and their motion should have been
dismissed.
Federal Officials and Prisons/Procedural Due
Process--Administrative Segregation
Tellier v. Fields, 280 F.3d 69 (2d Cir.
2000), superseding 230 F.3d 502 (2d Cir. 2000).
The plaintiff was held in administrative segregation
for over 500 days because he was considered an
escape risk. He said he was neither informed of
the reason nor permitted to be heard concerning
the continuation of his confinement, contrary to
defendants' regulations. When he complained of
no hearings, he received false documentation of
earlier hearings, and was brought to subsequent
hearings where he did not have the opportunity to
present evidence or be heard.
9

NATIONAL PRISON PROJECT JOURNAL

The court reaches the merits of the
constitutional question on this qualified immunity
appeal notwithstanding Horne v. Coughlin, which
in any case "supports the need to address the
constitutional question when a court finds that
qualified immunity does not exist because the right
asserted is clearly established." (79)
The plaintiff alleged a confinement of 514
days "under conditions that differ markedly from
those in the general population, and we cannot
conclude as a matter of law that this confinement
was not 'atypical and significant under Sandin.
The court does not specify what the "marked"
differences were.
There is a liberty interest created by
federal regulations (28 C.F. R. § 541.22). Sandin
rejected only that portion of Hewitt holding that
explicitly mandatory language plus specified
substantive predicates "forces" a conclusion that
the state has created a liberty interest. This
regulation is "replete with words such as 'shall,'
'unless,' and 'only.' Although the mere use of
these words is neither dispositive nor talismanic,
[this fact] supports plaintiff's argument that the
Bureau of Prisons intended to guide the decision
making power of prison officials by requiring that
certain prerequisites be met and certain
procedures be followed whenever a prisoner was
subject to segregated housing." (81) Most
supportive of this conclusion is a statement that
the official "shall release" the prisoner when the
reasons for placement cease to exist.
At 82: "Because the regulation at issue
clearly indicates that the Warden's decision to
place a prisoner in SHU is discretionary as long as
certain predicates are satisfied, see 28 C.F.R. §
541.22(a)(1 )-(6), a prisoner has no protected
liberty interest that is violated when the Warden
removes him or her from the general population."
(This idea that there can be discretion defeating a
liberty interest if certain predicates must be
satisfied for placement is directly contrary to
Hewitt v. Helms.) But that discretion is not
boundless and continuing; the regulations provide
for hearings and reviews "that constrain the
Warden's discretion in maintaining a prisoner in
SHU" and further commands release when the
reasons for placement cease to exist. The court
rejects the claim that the procedures provided by
the regulations are not intended to affect the
duration of SHU time.
The court rejects defendants' claim that
lll

10

Winter/Spring 2003
Sandin rejected the examination of regulations for
mandatory language and substantive predicates:
"we do not read Sandin to have so radically
undone the tenets of Hewitt." (83) Id.:
In returning to the approach
used in Wolff and Meachum, the
Supreme Court shifted the
emphasis of the inquiry from the
strict language of the statute to an
analysis of the right safeguarded by
the statute. Read together, Sandin,
Wolff, and Meachum, all support
the proposition that a statute or
regulation which involves "statecreated right[s]," Wolff, ... creates
a protectable liberty interest when
an official's failure to adhere to the
statute results in an "atypical,
significant deprivation," Sandin, ...
of "real substance," Wolff . .. and
not simply "ephemeral and
insubstantial" violations. Meachum,
The procedural due process rights at issue
were clearly established under pre-Sandin law; the
cases are from state prisons but they are
grounded in federal rights. Decisions that
occurred after the alleged violation of rights
cannot establish that defendants' actions were
objectively reasonable. Whatever good faith belief
they might have had that a brief deprivation of the
plaintiffs rights was lawful, "it is simply
unreasonable for any official to believe that a
continuing violation of 514 days without a required
hearing was permitted by Section 541.22." (85)
They cannot plausibly claim to have relied on
unpublished decisions from other circuits, which
are distinguishable anyway.
Habeas Corpus/Procedural Due Process-Disciplinary Proceedings
Eads v. Hanks, 280 F.3d 728 (7th Cir.
2002). The petitioner said that a hearing
committee member at his disciplinary proceeding
was the live-in boyfriend of one of the witnesses.
The court suggests in dictum that such a claim
would probably establish bias even in a prison
disciplinary proceeding, but says that the prisoner
did not raise the issue in his administrative appeal,
so it is forfeited.
PLRA--Prospective Relief Restrictions/Use of

NATIONAL PRISON PROJECT JOURNAL

Force/Dam ages--Assau It and Injury,
Punitive/Qualified Immunity/Jury Instructions
and Special Verdicts/PLRA--Attorneys' Fees
Johnston v. Breeden, 280 F.3d 1308 (11th
Cir. 2002). The plaintiff alleged that he was
beaten unconscious and suffered a seizure in
addition to a laceration and multiple contusions. A
jury awarded $25,000 in compensatory damages
plus $45,000 in punitives divided between two
defendants.
The district court's jury instructions (quoted
at length) sufficiently conveyed the required
mental state for an Eighth Amendment violation
(though omitting defendants' requested phrase
"specific intent"). The real issue was the relative
prominence of the phrase "malicious and sadistic
intent." The district court did not err in refusing to
instruct the jury that "prison officials should be
presumed to have properly discharged their
duties"· (1316), since it got the legal standard and
the burden of proof right.
Punitive damages are prospective relief
under the plain language of § 3626. Use of force
is a "prison condition" for purposes of §
3626(g)(2). Therefore the restrictive standards of
§ 3626 apply to punitive damages awards, and the
district court must find that the damages are no
larger than reasonably necessary to deter the kind
of violations of federal rights that occurred in the
case, and against no more defendants than
necessary for that purpose. The district court
should have assessed the jury award in that light.
The court does not explain this apparent holding
that application of the PLRA factors is a question
for the court and not for the jury in a case
otherwise tried to a jury, or address the Seventh
Amendment question thereby presented.
A conclusory recitation of the PLRA
factors does not suffice to support the punitive
award; the court cites the cases requiring
provision-by-provision scrutiny of injunctions.
Food/Mental Health Care
Mabrey v. Farthing, 280 F.3d 400 (4th Cir.
2002). The decedent, held in a prison mental
health unit, died of severe dehydration after the
water to his cell was turned off as a response to
his flooding his cell believing that he smelled
smoke. Four days later he was sent to an
emergency room; two days after that he died. At
402: "One thing led to another, whether without
fault, by mishap, negligence or deliberate

Winter/Spring 2003

indifference, leading to Mabrey's death on the
29th from severe dehydration." (Emphasis
supplied) But they do dismiss the qualified
immunity appeal given the factual disputes.
Religion--Practices/Federal Officials and
Prisons/Deference
Levitan v. Ashcroft, 281 F.3d 1313
(D.C.Cir. 2002). The plaintiffs, Catholic federal
prisoners, challenged the denial of wine during
Communion services, which had formerly been
permitted. The result is a significant interpretation
of the Turner standard in religious freedom cases,
favorable enough to plaintiffs that one wonders if
the same result would have been reached in a
case brought by non-Christians.
The district court erred in holding that there
was no violation because partaking of wine at
Communion is not a mandatory practice from
which the participant deviates "at peril of his soul."
At 1319-20:
A requirement that a
religious practice be mandatory to
warrant First Amendment
protection finds no support in the
cases of the Supreme Court or of
this court....
The fact that a regulation
affects a mandatory religious
practice is, obviously, relevant
evidence of an infringement on the
free exercise of religion. But that is
far from the only circumstance in
which a rule impinges on free
exercise....
Nor would such a
requirement make sense. Under
the District Court's formulation,
religions that lack the concepts of
commandments necessary for the
salvation of the soul would find
themselves outside the scope of
First Amendment protection
altogether. ...
Many cherished religious
practices are performed devoutly by
adherents who nonetheless do not
or cannot insist that those practices
are mandated....
At 1320: "Instead, the First Amendment is
implicated when a law or regulation imposes a
substantial, as opposed to inconsequential,
11

NATIONAL PRISON PROJECT JOURNAL

burden on the litigant's religious practice." Id.: "In
determining whether a litigant has met the
threshold requirement, a court must consider
several factors. The litigant's beliefs must be
sincere and the practices at issue must be of a
religious nature." The Supreme Court has warned
that judging the centrality of different religious
practices is akin to evaluating the relative merits of
differing religious claims. At 1321: "Moreover, a
rule that bans a practice that is not 'central' to an
adherent's religious practice might nonetheless
impose a substantial burden, if the practice is
important and based on a sincere religious belief."
Id.:
A court may also consider
whether the litigants' beliefs find
any support in the religion to which
they subscribe, or whether the
litigants are merely relying on a
self-serving view of religious
practice. This inquiry is not a
matter of deciding whether
appellants' beliefs accord in every
particular with the religious
orthodoxy of their church. . .. Nor
is it a matter of adjudicating
intrafaith differences in practice or
belief.... Instead, a court may
determine whether the litigants'
views have any basis whatsoever in
the creed or community on which
they purport to rest their claim.
The court remands for application of the
foregoing test, making it pretty clear that it thinks
the plaintiffs meet the threshold test, and stating
that the Turner/O'Lone inquiry "should focus on
whether the change in regulatory regimes
is
justified by a legitimate penological interest.
.
[T]he District Court must bear in mind that, under
the new rule, the prison still allows alcohol to be
consumed on the prison grounds and in prisoners'
presence under the supervision of the chaplain."
(189)
This is important. This is the first time that
I have seen a court limiting the Turner analysis to
the incremental effect of a change in rules rather
than to the new rule considered in isolation. In
effect, it requires taking the earlier rule as an
acceptable baseline under Turner unless prison
officials show that it was causing problems, which
indirectly takes a big bite out of the usual rule that
prison officials don't have to show any actual
12

Winter/Spring 2003
problems justifying restrictive rules, they can
anticipate whatever they want to. (At 190: "Under
[the fourth Turner prong], the court should
evaluate any asserted problems with the previous
policy....")
The court also discusses the relationship
of the Turner/O'Lone standard to Employment
Division v. Smith, although the government
doesn't rely on Smith. The court says you can
assume that Smith supplants Turner, that Smith
has no application in "the unique and highly
regulated prison context" (1318); or that Smith
determines whether there is a First Amendment
issue at all, and Turner provides the analysis for
claims that get past that threshold. It notes that
most courts have taken the second approach. It
then drops the subject since the govemment didn't
make an issue of it.
PLRA--In Forma Pauperis Provisions--Filing
Fees
Taylor v. De/atoore, 281 F.3d 844 (9th Cir.
2002). The district court should not have
dismissed for failure to pay the $6.62 initial filing
fee. The plaintiff didn't pay because he didn't
have the money, and had had no money since two
months before the fee was ordered. At 848:
"Several circuits have already considered
constitutional challenges to § 1915(b) and have
uniformly concluded that the PLRA fee filing
requirements pass constitutional muster. [String
cite omitted.] We agree." The court rules
specifically on access to courts and equal
protection challenges, cursorily reciting the
standard justifications.
At 850: "Although the court can collect the
initial fee only 'when funds exist,' the court is to
assess the initial fee based on the prisoner's
account deposits and balances in the six-month
period immediately preceding the filing of the
complaint." Dismissal for nonpayment was
erroneous under the statute's "safety-valve
provision," which says "[i]n no event shall a
prisoner be prohibited from bringing a civil action
... for the reason that the prisoner has no assets
and no means by which to pay the initial partial
filing fee." 28 U.S.C. § 1915(b)(4) (emphasis
added).
PLRA--Three Strikes Provision
McAlphin v. Toney, 281 F.3d 709 (8th Cir.
2002). Plaintiff alleged that he needed dental

NATIONAL PRISON PROJECT JOURNAL

work, was sent to a half-completed prison that
could not accommodate his needs, as of filing the
complaint he had had five extractions and needed
two more, and dental infection was spreading in
his mouth. That allegation, made as of the time of
filing the complaint, was sufficient as a pleading
matter to qualify as "imminent danger of serious
physical injury" under the three strikes provision.
The concurring judge doesn't think this is serious
physical injury and is most disgruntled by the
defendants' concession that it is.
Municipalities/False Imprisonment
Fairley v. Luman, 281 F.3d 913 (9th Cir.
2002). The plaintiff alleged that he was arrested
without probable cause and subjected to
excessive force by the police. He was held for 12
days, despite his protestations that the warrant on
which he was held was for his twin brother. After
he was released, an internal affairs investigation
found the City's policies and procedures had been
fully complied with. A jury exonerated the
individual officers but found liability based on a
police department policy, custom, or practice.
The City is free from liability for excessive
force as a matter of law because the officers were
exonerated. However, it was properly held liable
for the claims for arrest without probable cause
and deprivation of liberty without due process,
since "[t]hese constitutional deprivations were not
suffered as a result of actions of the individual
officers, but as a result of the collective inaction of
the Long Beach Police Department." (917) Id.: "If
a plaintiff establishes he suffered a constitutional
injury by the City, the fact that individual officers
are exonerated is immaterial to liability under §
1983." Id. at n.4: "This is true whether the
officers are exonerated on the basis of qualified
immunity, because they were merely negligent, or
for other failure of proof."
At 917: "Even detention pursuant to a
valid warrant but in the face of repeated protests
of innocence will, after a lapse of time, deprive the
accused of a constitutional'liberty."' The plaintiff
had a liberty interest in avoiding 12 days of
incarceration without procedural safeguards in
place to verify that the relevant warrants were his
and in the face of his protests of innocence.
Evidence that the Chief of Police did not instigate
procedures to avoid detaining persons on the
wrong warrant, despite his testimony that he knew
such occurrences were not uncommon, especially

Winter/Spring 2003
where twins were involved, sufficiently supported a
claim of municipal policy. At 918: "A 'policy' can
be one of action ... or inaction...."
Sexual Abuse/Personal Involvement and
Supervisory Liability/Negligence, Deliberate
Indifference, and Intent
Riley v. Olk-Long, 282 F.3d 592 (8th Cir.
2002). An officer engaged in a course of sexual
harassment of the plaintiff; eventually another
inmate reported it, and the plaintiff was placed in
administrative segregation and the officer was
fired about two weeks later and then criminally
convicted. Several other prisoners had previously
complained about sexual abuse by the officer;
investigations had generally proven inconclusive.
A jury awarded $15,000 in compensatory
damages plus $5,000 in punitives against the
director of security and $25,000 against the
warden.
The jury had sufficient evidence upon
which to base a finding of deliberate indifference.
The security director was aware that such sexual
misconduct was a "big concern" and was advised
of the repeated allegations and investigations of
the officer, was concerned that he may actually
have done the things he was accused of, and
admitted that his threat during one investigation
"to get the snitch" could have been cause for
termination; and she recognized that after the
incident it would have been "prudent" to reassign
the officer away from inmate contact. At 596:
"We conclude that given her position as prison
security director and her admitted awareness that
Link was a problem guard," ajury could find that
she knew the officer posed a substantial risk of
sexually assaulting prisoners.
The warden had knowledge of the
allegations and investigations, admitted that she
was concerned about the officer's poor judgment
and the possibility that an inmate's safety was
jeopardized in his company, and had advised the
officer he should consider another line of work. A
jury could reasonably find that she "recognized
that Link was a problem employee who posed a
substantial risk of harm." (597)
The court brushes aside the defendants'
claims that they acted reasonably. The
investigations don't negate liability because the
defendants' responses "were not adequate given
the known risk." At 597:
Central to defendants' assertions in
13

NATIONAL PRISON PROJECT JOURNAL

support of the reasonableness of
their responses is the application of
the prison collective bargaining
agreement. Defendants contend
that the collective bargaining
agreement precluded the prison
from either permanently assigning
Link to an area without inmate
contact or from assigning another
employee to shadow Link.
Furthermore, until the episode with
Riley occurred, defendants believed
that under the collective bargaining
agreement, they had insufficient
cause to terminate Link.
Defendants cite the various
unfounded investigations in support
of their decision not to permanently
remove Link from contact with the
inmate population. The jury,
however, reasonably could have
found that Link was far too
significant of a risk to be allowed
unsupervised contact with inmates.
Defendants were responsible for
providing a safe environment for
inmates at the prison, and in Riley's
case, they failed to do so.
This amounts to a holding that prison officials
must disobey collective bargaining agreements if
following them results in an unconstitutional risk to
prisoners. Qualified immunity is not mentioned.
Use of Force--Restraints/Mental Health
Care/Rehabilitation/Equal Protection
Thie/man v. Leean, 282 F.3d 478 (7th Cir.
2002). The plaintiff, committed involuntarily as a
sexually violent person, challenged the
requirement that persons in his status be fUlly
restrained whenever transported, without an
individualized determination whether he poses a
danger or escape risk. The requirement is not
unconstitutional. A state statute providing mental
patients a right to be free from physical restraint
and isolation "except for emergency situations or
when isolation or restraint is part of a treatment
program," and more generally that patients have
the right to the least restrictive conditions
necessary to achieve legitimate purposes, does
not create a liberty interest under Sandin. Sandin
applies to this civil commitment case because
facilities dealing with sexual offenders are
14

Winter/Spring 2003
"volatile" environments and the logic of Sandin is
equally applicable to them. The court
distinguishes its precedent refusing to apply
Sandin to pre-trial detainees.
The restraint requirement is not an atypical
and significant deprivation. The plaintiff's
complaint that he should not be sUbjected to a
waist belt and leg chains in addition to handcuffs
is "the stuff of nickels and dimes. . .. This
'incremental' deprivation is not one cognizable as
a state-created liberty interest in the wake of
Sandin."
The more restrictive treatment of
committed sexual offenders as compared to other
mental patients does not deny equal protection,
since the rational basis test applies and
defendants could consider sex offenders more
dangerous than other mental patients.
Group Activity/Religion/Procedural Due
Process--Transfers, Administrative
Segregation/Deference/Publications
Fraise v. Terhune, 283 F.3d 506 (3d Cir.
2002). New Jersey prison authorities designated
the Five Percenters a Security Threat Group
(STG) and consigned "core members" including
the plaintiffs to the Security Threat Group
Management Unit (STGMU). Placement in that
unit commenced with placement in the PreHearing Security Threat Group Management Unit,
where the prisoner received notice and a hearing
at which the prisoner could appear in person (or
by a representative, or in writing), and the hearing
committee determined whether the evidence
supported STG membership. There was an
administrative appeal and judicial review was
available in state court. Prisoners could
theoretically get out of the STGMU by going
through a "three-phase behavior modification and
education program" involving anger management,
conflict resolution, and "social interactive skills that
feature alternatives to violence." The prisoner has
to sign a form renouncing all affiliation with STGs
to get out of the unit back into population. Five
Percenter literature is prohibited.
The court actually sets out what the Five
Percenters believe, which I have not seen before.
Though the Five Percent Nation claims not to
promote or advocate violence, it has been linked
with numerous incidents of prison violence and
planned or threatened violence, documented in
the "Holvey report," prepared in the prison

NATIONAL PRISON PROJECT JOURNAL

system's intelligence unit.
The parties and the court agree that the
Turner standard governs. (The Religious Land
Use and Institutionalized Persons Act is not relied
on.) The court raises the question whether it
should first determine whether the regulation
would violate the Constitution applied to persons
not in prison, but doesn't pursue it because the
defendants haven't argued the point (515 n.5).
The STG policy has a valid, rational
connection to a legitimate interest; it does not
target members of one religion (as the dissent
accuses) but is entirely neutral (dedicated to "the
legitimate and neutral objective of maintaining
order and security"). The Holvey report provides
sufficient basis to designate the Five Percenters
as an STG; this is the kind of judgment Turner
counsels courts not to second-guess. The
majority takes the dissent to task for dismissing
the report as anecdotal, requiring either proof that
the group's tenets promote violence or systematic
proof of disproportionately engaging in violence.
Demanding such proof before officials can act
against gang violence "is fundamentally
inconsistent with Turner and would in all likelihood
be paralyzing." (518)
The plaintiffs had sufficient alternative
means of practicing their religion. One of their
practices is "studying the lessons," but since their
teachings include the Bible and the Koran as well
as Five Percenter literature, banning the latter still
allows them to study some of "the lessons." They
are also permitted to discuss self-knowledge, selfrespect, responsible conduct, and righteous living,
even though they can't do it by studying and
discussing doctrines and materials distinctive to
the Five Percenters. As to core members, who
must renounce their affiliation in order to get out of
the STGMU, they don't have to renounce their
beliefs, so they have alternatives too.
The Turner "ripple effect" factor supports
defendants' policy, since the record shows that the
Five Percenters are a security threat.
There is no de minimis cost alternative to
the policy, since alternatives would have done less
to minimize the threat.
Equal protection was not violated by the
less harsh treatment of the Sunni Muslims, since
the author of the Holvey report said in his
deposition that the Sunnis have a lower propensity
for violence than the Five Percenters.
The failure to give notice of the new policy

Winter/Spring 2003
before the day the plaintiffs were transferred to the
STGMU did not deny due process by depriving
them of opportunity to change their behavior.
They were not deprived of a liberty interest, since
"maximum custody" is within the terms of their
sentences and is not atypical or significant. The
majority gives no detail about what maximum
custody involves; the dissent says it means only
five hours out of cell a week, shower or shave
every third day, strip searches every time they
leave their cells, one non-contact visit a month,
one monitored phone call a week; all meals in
cells; no access to regular prison programs (523
n.1). In any case, the majority says, the
procedures provided by the state satisfy due
process.

Federal Officials and Prisons/Procedural Due
Process--Disciplinary Proceedings
Espinoza v. Peterson, 283 F.3d 949 (8th
Cir. 2002). The plaintiff lost 13 days' good time in
a disciplinary hearing.
The identity of a confidential informant and
the specifics of the informant's statement need not
have been disclosed. Non-disclosure is
acceptable when there is a valid reason for
keeping the information confidential and a
determination that the informant was reliable.
However, the assurance of reliability is not
necessary where the proof meets the "some
evidence" standard without the confidential
information. In any case a declaration from the
hearing officer giving valid reasons for nondisclosure and supporting reliability was sufficient
to support the outcome.
The refusal to bring a transferred inmate
back to the prison to testify live at a disciplinary
hearing did not deny due process. A written
statement was obtained from the witness, and
prison officials have discretion to accept such
statements where the offered testimony was not
necessary to resolve a conflict. Here, returning
the witness to the sending prison would have been
a security risk and his live testimony would have
been cumulative of his written statement.
PLRA--Mental or Emotionallnjury/Mootness
Thompson v. Carter, 284 F.3d 411 (2d Cir.
2002). The Second Circuit weighs in on the
mental/emotional injury provision, adopting the
consensus of other circuits without getting to the
difficult fringe questions. At 416:
15

NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2003

... [W]e conclude that § 1997e(e)
applies to all federal civil actions
including claims alleging
constitutional violations. Because §
1997e(e) is a limitation on recovery
of damages for mental and
emotional injury in the absence of a
showing of physical injury, it does
not restrict a plaintiff's ability to
recover compensatory damages for
actual injury, nominal or punitive
damages, or injunctive and
declaratory relief.
The court rejects the argument that claims
of constitutional tort are outside the statute's
scope because they are premised on
constitutional wrongs and not mental or emotional
injury. The prior decision in Liner v. Goord does
not mean that the statute has no application to
constitutional claims; it just means that a plaintiff
might be able to recover "certain damages for an
Eighth Amendment violation even if he also
requests damages for emotional and mental
suffering." (417) The Canell holding that First
Amendment claims are not governed by the
statute "arguably could be extended to the Eighth
Amendment. . . . However, the weight of authority
is to the contrary." The court cites both Eighth
Amendment cases and the First Amendment
decision in Allah v. A/-Hafeez, suggesting that it is
the theory of Canell and not just its application to
the Eighth Amendment that the court is rejecting.
This discussion does not get to the point of
asking, much less answering, whether a claim for
violation of intangible rights is a claim for
mental/emotional distress.
At 418: The statute does not limit injunctive
or declaratory relief, nominal damages, or punitive
damages.
The court acknowledges the plaintiff's
argument that it would be unconstitutional to deny
him a damages remedy, but says (a) it doesn't
have to reach the question since its holding does
allow for some damages, and (b) other circuits
have upheld the limitation.

than just let the prisoner pay, since the statute
says that the filing fee must be paid at the
initiation of suit.

PLRA--In Forma Pauperis Provisions--Three
Strikes
Dupree v. Palmer, 284 F.3d 1234 (11th
Cir.2002). At 1236: When a court denies IFP
based on the three strikes provision, it should also
dismiss the complaint without prejudice, rather

PLRA--Exhaustion of Administrative Remedies
Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002).
Where both parties agree that the time for
exhausting administrative remedies has expired,
dismissal without prejudice for non-exhaustion is
appealable.

16

Pre-Trial Detainees/Protection from Inmate
Assault
Butera v. Cottey, 285 F.3d 601 (7th Cir.
2002). The plaintiff was raped by other prisoners.
He had previously told officers that he was "having
problems in the block," and his mother said she
told an unidentified jail employee shortly before
the assault that her son had been threatened with
sexual assault. The Sheriff had instituted a
classification system that segregated persons with
violent records; jail policy required "clock rounds"
by staff through each cellblock at least once per
hour, and transfers of detainees if any conflict was
reported; there was a system for writing notes to
officers requesting assistance.
The Sheriff did not have sufficiently
specific notice of a risk of harm to support a
finding of deliberate indifference; complaining of
"having problems" and wanting off the block is not
sufficient, and there was no evidence that any
complaint got to the Sheriff or any other
policymaker.
The plaintiff did not show a "systematic
pattern of violence" that would put the Sheriff on
notice that the policies of putting all the male
violent detainees in one cellblock and patrolling it
only once an hour were inadequate. A police
detective testified that he investigated about 50
fights and 10 to 15 allegations of sexual assault in
a five-year period, but there was no evidence that
any of them occurred in the cellblock at issue, and
there were no sexual assaults in the two years
before the plaintiff's incident. Evidence that
officers attend a two-week specialized training and
yearly in-service training dealing with issues
including violence, and of the other policies
mentioned above, also negated any finding of
deliberate indifference. The fact that the Sheriff
could have done more, like putting video
surveillance cameras in the block, did not
establish deliberate indifference.

Winter/Spring 2003

NATIONAL PRISON PROJECT JOURNAL

At 292: The exhaustion requirement is an
affirmative defense that must be pleaded and
proven by the defendants. The mandatory
language in the PLRA's exhaustion requirement,
which does not make that requirement
jurisdictional, also doesn't determine the burden of
proof; the court analogizes to statutes of
limitations, which are often phrased in mandatory
language.
The court relies on its own and other
courts' similar holdings about Title VII exhaustion
and ADEA exhaustion. The reasons this court has
cited for the exhaustion requirement are similar to
the reasons it has cited in Title VII cases.
At 294-95: Congressional concerns in
enacting this exhaustion requirement were to
lessen the burden of frivolous prisoner claims and
to reinforce the power of prison administrators to
control prison problems. These policies are not
inconsistent with holding exhaustion an affirmative
defense. Courts can dismiss frivolous claims
under other PLRA provisions, and the concern
with giving prison administrators first crack at
problems is addressed by the exhaustion
requirement itself. Pleading and proof rules don't
bear on the issue.
Also, "considerations of policy and
fairness" support placing the burden on
defendants: "... it appears that it is considerably
easier for a prison administrator to show a failure
to exhaust than it is for a prisoner to demonstrate
exhaustion.' They have greater legal expertise
and superior access to records. They can also
'readily provide the court with clear, typed
explanations, including photocopies of relevant
administrative regulations. Pro se prisoners will
often lack even such rudimentary resources.
The district court dismissed sua sponte
and held that the plaintiff had failed to meet a
heightened pleading requirement. Wrong on both
counts. Sua sponte dismissal is allowed by the
PLRA for specified reasons, and exhaustion is not
one of them; expressio unius, etc. The statute's
provision for dismissal on the merits even when
the case has not been exhausted further proves
that exhaustion is not a ground for sua sponte
dismissal. Sua sponte dismissal also is generally
inappropriate unless the basis is apparent from
the face of the complaint, and non-exhaustion was
not.
At 297: The district court's requirement that
exhaustion be "demonstrated" is wrong in light of
III

the Supreme Court's disapproval of interpreting
statutes to raise heightened pleading standards.
The court cites Leatherman, Crawford-E/ and
Swierkiewicz as supporting a general rule on this
point.
Religion--Practices--Diet/Financial
Resources/Deference
Beerheide v. Suthers, 286 F.3d 1179 (10th
Cir. 2002). Jewish prisoners challenged the
failure to provide them a kosher diet. The district
court granted a preliminary injunction and the
defendants set up a modified kosher kitchen in the
prison; the injunction was made permanent, and
the district court directed that the prisoners could
not be charged a co-payment for the kosher
meals, which were more expensive than the usual
meals.
This opinion, as is common in cases
involving Jewish and Christian religious
observance, applies the Turner standard in a
remarkably plaintiff-oriented fashion.
At 1185: "Turner constituted a corrective
to decisions that granted prison officials next to no
deference in how they accommodated the rights
of prisoners. At the same time, it did not take
from the courts all power to interpret and apply the
Constitution within the prison context." kL. (after
summarizing Turner standard): "Turner thus
requires courts, on a case-by-case basis, to look
closely at the facts of a particular case and the
specific regulations and interests of the prison
system in determining whether prisoners'
constitutional rights may be curtailed." At 1189:
"In order to warrant deference, prison officials
must present credible evidence to support their
stated penological goals." (Emphasis supplied)
At 1185: "This circuit recognizes that
prisoners have a constitutional right to a diet
conforming to their religious beliefs."
At 1186: "To satisfy this prong of the test
[the valid, rational connection requirement], the
prison administration is required to make a
minimal showing that a rational relationship exists
between its policy and stated goals." At 1186:
"Without doubt, prison administrators have a
legitimate interest in working within a fixed budget.
Moreover, there is a legitimate concern that other
inmates' [sic] might react negatively to providing
some prisoners with a kosher diet." This factor
weighs in prison officials' favor. The district court
correctly rejected prison officials' invocation of a
17

NATIONAL PRISON PROJECT JOURNAL

fear of lawsuits as speculative at best. Also (at
1186 n.2): "Denying protection of a constitutional
right in order to prevent other inmates from
seeking recognition and enforcement of their
constitutional rights is contrary to the most basic
principles of our system of government."
The plaintiffs did not have reasonable
alternatives for exercising the right to maintain a
kosher diet. They couldn't buy it in the prison
canteen because the meals cost too much. Also it
was not feasible for the local Jewish community to
provide the food, and the court can't order them to
do so. The prison's "common fare" diet (Le., no
pork or pork products, much of it vegetarian) was
not an alternative at all because it wasn't really
kosher, not being prepared in a kosher kitchen
and not obeying other rules about source, storage,
and preparation of ingredients, and service of
meals.
The district court correctly declined to allow
prison officials to impose a co-payment of 25% of
the cost of meals (estimated by defendants at
$2.50 to $4.50 per meal), which would have
amounted to about $90 a month. At 1188: "While
$90 dollars a month may seem like a pittance, it
must be assessed in the prison context where
inmates make between $1.00 and $1.87 per day
for a maximum of $56.58 per month." Prisoners
would have to go into debt to pay this. "One
prison official testified that ... he had yet to see
the state pursue a debt after a prisoner is
released. . . . Such an admission underscores the
unreasonable nature of the 25% co-payment
program." It would force prisoners into unpayable
debts, thus failing to teach them about responsible
spending, while doing little to curb costs since the
money would not actually be collected. Even
those prisoners fortunate enough to receive
money from outside would be required to sacrifice
nearly all of that income, leaving little or nothing
for "essentials such as stationary [sic], telephone
calls, medication, medical visits, and clothing." At
1189: "Forcing prisoners to decide between
communicating with family and legal
representatives, seeking medical treatment, and
following religious tenets constitutes a Hobson's
choice rather than a true alternative."
The effect of accommodating the right on
guards, other prisoners, and prison resources
does not help the defendants. While kosher
meals are more expensive than others, "evidence
of the actual cost of kosher meals was elusive,"
18

Winter/Spring 2003
with one witness providing three different
estimates, and the district court was not clearly
erroneous in holding it could not evaluate the
budgetary impact; defendants could not present
reliab/e evidence of a more than de minimis
impact. As for other impacts, a food service
supervisor testified that serving kosher food put
inmates who prepare the food in a position of
power relative to guards because the guards are
unfamiliar with kosher rules and the prison's
policy; but that is a problem with any new policy,
and will ease. It certainly has nothing to do with
the co-payment policy. Evidence of problems in
Oregon is irrelevant because that program placed
no restrictions on who could participate, while this
program screens before admission. (It also
throws people out if they are observed violating
kosher requirements, giving the food to others,
etc.) The court again rejects the "floodgate of
litigation" claim.
The district court correctly found that
providing kosher meals while screening admission
to the program was an available alternative with a
de minimis impact on the overall food budget
($13,000 out of $8.25 million, or .158%, even
under defendants' unreliable cost estimates).

Grievances and Complaints about
Prison/Transfers/Federal Officials and
Prisons/Privacy
Too/asprashad v. Bureau of Prisons, 286
F.3d 576 (D.C.Cir. 2002). The plaintiff alleged
that he was transferred and reclassified as a
"special offender" in retaliation for filing grievances
and contacting public officials, and not for the
reasons stated in an allegedly falsified transfer
memorandum. He sued under the Privacy Act.
The plaintiff makes out the necessary
elements of a Privacy Act claim for damages: that
an agency failed to maintain accurate records,
that it did so intentionally or willfully, and that an
adverse determination was made against the
plaintiff as a proximate result. An allegation that
prison staff "fabricated and falsified" documents to
punish him for grievances sufficiently alleged
agency intent even if other decision-makers relied
on the information reasonably. An allegation of
deprivation of constitutional rights sufficiently
alleges an adverse determination.
The plaintiff sufficiently alleged a
constitutional violation. The right to petition for
redress of grievances "extends not just to court

NATIONAL PRISON PROJECT JOURNAL

filings but also to the various preliminary findings
necessary to exhaust administrative remedies
prior to seeking judicial rule." (584) Prison officials
may reasonably limit inmates' ability to file
administrative grievances for penological
purposes, but they cannot retaliate for grievances
that are "truthful and not otherwise offensive" to
penological interests.
The plaintiff sufficiently alleged retaliatory
action "likely to deter a person of ordinary
firmness" from protected activity. He lost access
to jobs and was moved a distance from his ill
parents and from staff members who could have
testified at his parole hearing. The fact that he
can still exercise his First Amendment rights is
immaterial. At 585: "The relevant question is ...
whether the threat of a transfer would, in the first
instance, inhibit an ordinary person from
speaking."
Procedural Due Process--Temporary
Release/State Officials and Agencies
Kitchen v. Upshaw, 286 F.3d 179 (4th Cir.
2002). The Regional Jail Authority is not an arm
of the state for purposes of the Eleventh
Amendment, since it sues and is sued under its
own name, the state is not obliged to pay
judgments against it, and the state doesn't
substantially control its operations. A statesponsored insurance plan that pays judgments
does not bring the case within the Eleventh
Amendment. Two or more political subdivisions,
neither of which is entitled to Eleventh
Amendment immunity, can't create an agency that
is entitled to it.
The plaintiff alleged that he was kept from
participating in work release by jail officials. There
is no liberty interest, since not being allowed to
leave jail to work is not atypical and significant
under Sandin. The court notes that two circuits
have held that even removal from work release
once granted does not implicate a liberty interest,
not mentioning that other circuits have held to the
contrary. The parties assumed that Sandin was
inapplicable, but the plaintiff loses under a preSandin analysis. The relevant statutes do not
support a liberty interest, and the court's sentence,
which said that the plaintiff "may" participate in
work release "if he is eligible," doesn't either.
Disabled/Medical Care/Municipalities/
Negligence, Deliberate Indifference, and Intent

Winter/Spring 2003
Lawson v. Dallas County, 286 F.3d 257
(5th Cir. 2002). The paraplegic plaintiff was jailed
for two months awaiting a parole revocation
hearing. He was transferred to jail from a hospital
where he had been successfully treated for
bedsores and took with him instructions for his
care. He got little of the care, suffered the familiar
abuses of paraplegics in ill-equipped and
uninterested correctional institutions, and wound
up with new bedsores. The jail failed to follow the
dressing change prescription for the new
bedsores, and then put him in a solitary cell
because he was offensive to other prisoners
because he was frequently smeared with his own
wastes. The jail nurses did not document the
progress of his bedsores. An order for hospital
treatment was not carried out and he did not
receive dressing changes. Additional orders from
a hospital for dressing changes were not carried
out. Eventually the hospital refused to return him
to the jail and arranged a transfer to state custody,
by which time he had enormous infected bedsores
and eventually had to have flap repair surgery
resulting in extensive painful treatment and
convalescence. He is in continuing chronic pain.
The plaintiff's treatment violated the Eighth
Amendment. At 262: "To apply the Farmer test,
each individual's subjective deliberate indifference
must be examined separately." The court
construes the district court's references, e.g., to
"the jail" being put on notice, as a finding that all
the nurses who treated the plaintiff has the
necessary knowledge and engaged in the
challenged neglect. The jail nurses all had actual
knowledge of his condition, since it was plainly
visible, and they did not follow the instructions
they were given.
The evidence was sufficient to support
municipal liability. The plaintiff's injuries were
caused by official policies restricting the nurses'
ability to provide adequate care including, e.g.,
initial assessments of paraplegics were not
routinely done; dressing changes were done twice
a day (the plaintiff was prescribed them three
times a day); foam mattresses are not allowed;
hospital policies that conflict with jail policies are
disregarded; nurses are not allowed to enter
prisoners' cells; etc. There was evidence that the
County was aware of the seriousness of the
plaintiff's condition and should have been aware of
the danger its policies posed.
The last point is important. At 264:
19

NATIONAL PRISON PROJECT JOURNAL

"Unlike the deliberate indifference standard
applied to individual employees, this standard is
an objective one; it considers not only what the
policymaker actually knew, but what he should
have known, given the facts and circumstances.
..." The Canton standard applies to municipal
claims even in cases where Farmer governs
claims against individuals.
This is a case where egregious facts seem
to have caused the analysis to tilt significantly
toward the plaintiff.
PLRA--In Forma Pauperis--Filing Fees
/n re A/ea, 286 F.3d 378 (6th Gir. 2002). A
plaintiff who is barred from IFP under the three
strikes provision must still pay the filing fee on the
installment plan.
PLRA--Exhaustion of Administrative Remedies
Pozo v. McCaughtry, 286 F.3d 1022 (7th
Gir.2002). The plaintiff grieved and had 10 days
to appeal. He waited a year. The grievance
system has discretion to permit late appeals, but
they didn't in this case. The plaintiff is barred for
non-exhaustion. At 1023-24:
... [U]nless the prisoner completes
the administrative process by
following the rules the state has
established for that process,
exhaustion has not occurred. Any
other approach would allow a
prisoner to "exhaust" state
remedies by spurning them, which
would defeat the statutory objective
of requiring the prisoner to give the
prison administration an opportunity
to fix the problem--or to reduce the
damages and perhaps to shed light
on factual disputes that may arise
in litigation even if the prison's
solution does not fUlly satisfy the
prisoner.
The court notes the distinction between
administrative law exhaustion and collateral attack
exhaustion, then says that after O'Sullivan v.
Boercke/, 526 U.S. 838 (1999), the two are the
same. "After Boercke/, a procedural default also
means failure to exhaust one's remedies." At
1024:
Exhaustion under § 1997e(a) is
administrative only; a prisoner who
uses all administrative options that
20

Winter/Spring 2003

the state offers need not also
pursue judicial review in state court;
but a prisoner who does not
properly take each step within the
administrative process has failed to
exhaust state remedies, and thus is
foreclosed by § 1997e(a) from
litigating. Failure to do what the
state requires bars, and does not
just postpone, suit under § 1983.
The fact that the system has discretion to permit
late appeals doesn't mean that its failure to do so
means the prisoner has exhausted. That position
"would leave § 1997e(a) without any oomph."
(1025)
At 1025: "To exhaust administrative
remedies, a person must follow the rules
governing filing and prosecution of a claim." If the
system accepts a belated filing and considers the
merits, that step makes the filing proper and
avoids exhaustion, default, and timeliness hurdles.
Qualified Immunity/Use of
Force/Food/Religion--Practices--Diet
Walker v. Horn, 286 F.3d 705 (3d Gir.
2002). The Muslim plaintiff fasted periodically for
three to 15 days. On the fourth day of a fast, the
defendant doctor declared him to be on a "hunger
strike" and said he was lethargic, slow walking and
talked with a slight slur, and he should receive
nutrition and hydration as soon as possible. The
doctor did not examine him, just talked with him
through the cell bars. At prison officials' request a
state court entered an order authorizing force
feeding. As he was being hooked up, he said he
would stop his fast, but was told it was too late to
avoid force feeding. He was fed meat and milk
products even though he said he was a vegetarian
and his records confirmed that. He was
threatened with force feeding again when he said
he would not eat the meat on the menu. He was
required to eat five or six meals with the feeding
tube in his body, strapped to the bed by ankle and
wrist restraints.
Defendants' qualified immunity appeal
tums on the factual dispute whether the plaintiff
actually did tell the doctor he would eat before he
was force fed. Since that fact is disputed, the
court lacks appellate jurisdiction. At 711 n. 2:
Defendants could not plausibly claim qualified
immunity based on the facts assumed by the
district court, which were that the plaintiff did tell

NATIONAL PRISON PROJECT JOURNAL

the doctor he would eat.
Mental Health Care/Medical Care--Standards of
Liability--Deliberate IndifferencelTheories--Due
Process/Medical Care--Physical Facilities
Terrance v. Northville Regiona/ Psychiatric
Hospita/, 286 F.3d 834 (6th Cir. 2002). The
decedent, an obese diabetic suffering from
hypertension with a heart condition with abnormal
EKG readings, was involuntarily committed to a
psychiatric hospital where he took psychotropic
medications. He died on a day with 90 degree
heat and 90% humidity, of acute cardiopulmonary
arrest and hyperthermia exacerbated by
psychotropic medications.
At 842-43: "As the decedent was
involuntarily committed to NRPH for psychiatric
treatment, he was similarly situated to a prisoner
with regard to the Eighth Amendment right to
medical care." (The court later does a Youngberg
v. Romeo analysis in the alternative.) The court
cites the Farmer definition of deliberate
indifference and then says (at 843): "The federal
courts have also held that less flagrant conduct
may also constitute deliberate indifference in
medical mistreatment cases. For example, the
Eleventh Circuit has held that 'deliberate
indifference may be established by a showing of
grossly inadequate care as well as a decision to
take an easier but less efficacious course of
treatment.'" The court is guided by Waldrop v.
Evans, which says the relevant question is
"whether a reasonable doctor ... could have
concluded his actions were lawful."
His treating physician could be found
deliberately indifferent given his knowledge of the
decedent's condition and the weather for not
following the facility protocol and ordering that the
decedent stay within a cool area; in fact, he went
outdoors and over-exerted himself. He also took
an hour to respond to a page when the patient
went into crisis.
Another doctor could be found deliberately
indifferent for continuing to increase the
decedent's dosage of psychotropics, despite her
knowledge of the patient's condition and the
weather, and for failing to give immediate care
even when she suspected hyperthermia.
A nurse who referred the prisoner to offward activities given his condition and the weather
could be held deliberately indifferent. The failure
to ensure that the decedent's ward was properly

Winter/Spring 2003
equipped, e.g., with ice, an ice water enema, and
a rectal thermometer, and to provide emergency
care when the treating doctor didn't show up
promptly, could also support such a finding.
Defendants' conduct also presents
questions under the Fourteenth Amendment
"professional judgment" standard of Youngberg v.
Romeo. At 850: "... [W]here hospital staff
admittedly fail to follow institutional procedures,
questions about the State's adherence to
accepted professional conduct are not
unwarranted."
Use of Force--Stun Devices, Restraints
United States v. Durham, 287 F.3d 1297
(11th Cir. 2002). The application of a stun belt to
a criminal defendant is governed by the same
considerations and body of law as restraint
devices. Such a decision "must be subjected to
close judicial scrutiny to determine if there was an
essential state interest furthered by compelling a
defendant to wear shackles and whether less
restrictive, less prejudicial methods of restraint
were considered or could have been employed."
(1304) The reasons for a decision to restrain
must be placed on the record. At 1306:
... [S]tun belts plainly pose
many of the same constitutional
concerns as do other physical
restraints, though in somewhat
different ways. Stun belts are less
visible than many other restraining
devices, and may be less likely to
interfere with a defendant's
entitlement to the presumption of
innocence. However, a stun belt
imposes a substantial burden on
the ability of a defendant to
participate in his own defense and
confer with his attorney during a
trial. If activated, the device poses
a serious threat to the dignity and
decorum of the courtroom.
Therefore, a decision to use
a stun belt must be subjected to at
least the same "close judicial
scrutiny" required for the imposition
of other physical restraints....
Due to the novelty of this
technology, a court contemplating
its use will likely need to make
factual findings about the operation
21

NATIONAL PRISON PROJECT JOURNAL

of the stun belt, addressing issues
such as the criteria for triggering
the belt and the possibility of
accidental discharge. A court will
also need to assess whether an
essential state interest is served by
compelling a particular defendant to
wear such a device, and must
consider less restrictive methods of
restraint. Furthermore, the court's
rationale must be placed on the
record to enable us to determine if
the use of the stun belt was an
abuse of the court's discretion.
[Footnote omitted]
The lower court failed to make the appropriate
inquiry and findings. It should not have relied on
unsworn statements by the U.S. Marshals Service
about, e.g., what steps they take to avoid
accidental discharge. It should have considered
whether, e.g., leg shackles were sufficient to
prevent escape.
The defendant's right to be present at trial
and participate in his defense was violated, so the
government has to prove that the error was
harmless beyond a reasonable doubt. The court
orders a new trial.
On remand, the district court re-entered its
order after a hearing, 219 F.Supp.2d 1234
(N.D.Fla. 2002), finding inter alia that the
defendant is a serious security risk, and that the
belt has been worn 63,000 times and activated 45
times, with only 11 accidental activations, seven of
them before the manufacturer put a plastic shield
over the "on" switch. The court also emphasizes
the importance of amperage over voltage.

Federal Officials and Prisons/SearchesPerson--Prisoners/Deference/Summary
Judgment
Farmer v. Perrill, 288 F.3d 1254 (10th Gir.
2002). The pre-operative transsexual plaintiff
(same as in Farmer v. Brennan), housed in SHU,
challenged visual strip searches required before
going to the recreation yard, arguing that they
were unnecessary because the yard was secure
and closely supervised. The plaintiff provided
affidavits showing that the searches were
conducted in full view of other inmates.
Defendants appealed based on qualified
immunity.
The right "not to be subjected to a
22

Winter/Spring 2003
humiliating strip search in full view of several (or
perhaps many) others unless the procedure is
reasonably related to a legitimate penological
interesf' is well established. The district court
correctly held that the defendants "cannot
altogether ignore plaintiff's privacy rights whether
or not compelled to do so by valid and important
penological interests." (1260) Justifying the
searches does not end the inquiry; defendants
must justify doing them in the open.
The district judge did not err in placing the
burden on defendants to justify their policy by
denying summary judgment; both parties proffered
evidence and the district court concluded that
material facts were in dispute. Under the Turner
standard, it is not the case that the plaintiff must in
all cases identify an alternative means of
safeguarding the prison's interests; doing so may
be evidence that the practice does not satisfy the
standard.

Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Portley v. Brill, 288 F.3d 1063 (8th Gir.
2002). A claim challenging a decision that took
away good time is barred by Heck and Balisok
even if the plaintiff dropped the request for
restoration of good time. The fact that the plaintiff
made an equal protection claim alleging racial
discrimination is not a relevant distinction, since
the Heck rule applies to all claims that would
necessarily require proof of unlawfulness of
conviction or sentence.
Procedural Due Process/Rehabilitation/Mental
Health Treatment/Habeas Corpus
Leamer v. Fauver, 288 F.3d 532 (3d Gir.
2002). The plaintiff was sentenced under a
"somewhat unique" statutory scheme, now
repealed, that provided for an indeterminate term,
treatment, and release only when he "is capable
of making an acceptable social adjustment in the
community." He was placed on "Restrictive
Activities Program" (RAP) and was denied
participation in therapy while simUltaneously being
further restricted because of "poor institutional
adjustment"--for not communicating with his
therapist!
Plaintiff's claim need not be pursued via
habeas corpus. The Heck/Balisok rule does not
apply to all prison disciplinary proceedings, just
those that affect the length of sentence (relying on

NATIONAL PRISON PROJECT JOURNAL

Jenkins v. Haubert). This plaintiff complains about
a condition of confinement. It doesn't matter
whether the plaintiff would, if successful, appear
before the parole board; the question is whether
victory would "necessarily imply" a shorter
sentence.
The statutory scheme at issue here
presents "the type of liberty interest that is at the
heart of procedural and substantive due process."
The plaintiff's sentence links confinement
inextricably with treatment. "Therapy is thus an
inherent and integral element of the scheme, and
its deprivation is clearly a grievous loss not
emanating from the sentence." (544) Therefore
there is a state-created liberty interest in receiving
therapy.
During the course of the litigation, the state
changed its position from "denial of therapy was
justified" to "he wasn't denied therapy, RAP is
therapy." Without directly confronting this claim,
the court says that therapists' reports appear to
have been generated "without any contact, either
therapeutic or evaluative," with the plaintiff, and
that "pro forma reviews that were not based on
actual evaluations of Leamer's clinical condition
and progress would be violative of procedural due
process."
Placement in RAP--as opposed to the
denial of therapy--may not deny due process
under Sandin's atypical and significant standard.
The plaintiff's substantive due process
claim is reviewed under a deliberate indifference
and "shock the conscience" standard under
County of Sacramento v. Lewis. The plaintiff's
Eighth Amendment claim is one of deliberate
indifference to his physical and mental well-being.
Both are remanded for reconsideration.

PLRA--In Forma Pauperis--Filing Fees
Atchison v. Collins, 288 F.3d 177 (5th Cir.
2002). Filing fees are to be collected per case, up
to 100%; the statutory language is unambiguous
and the constitutional qualms expressed by the
Second Circuit are meritless, since the Supreme
Court has said there is no constitutional right to
proceed IFP.
PLRA--Mental or Emotionallnjury/Pre-Trial
Detainees
Oliver v. Keller, 289 F.3d 623 (9th Cir.
2002). The plaintiff alleged that he was subjected
to crowded conditions, sleeping on the floor

Winter/Spring 2003
without bedding, 24-hour lighting, excessive air
conditioning, and medical neglect.
At 627: The court joins the Second, Fifth
and Eleventh Circuits in holding that "for all claims
to which it applies [emphasis supplied], 42 U.S.C.
§ 1997e(e) requires a prior showing of physical
injury that need not be significant but must be
more than de minimis. . . . This interpretation
reflects Congress's intent in passing the PLRA"
(Le., to curtail frivolous suits and reduce the
volume of prisoner litigation). Id. at n.5: This
doesn't disturb the prior holding in Canell v.
Lightner, 143 F.3d 1210 (9th Cir.1998), refusing to
apply § 1997e(e)'s prior physical injury
requirement in a case alleging violation of First
Amendment rights because "deprivation of First
Amendment rights entitles a plaintiff to judicial
relief wholly aside from the physical injury he can
show, or any mental or emotional injury he may
have incurred ... regardless of the form of relief
sought." Id. at 13. At 628:
... [I]n embracing the de
minimis physical injury standard
under § 1997e(e) adopted by the
Second, Fifth, and Eleventh
Circuits, we do not subscribe to the
reasoning set forth by the Fifth
Circuit in Siglar, which purports to
follow established Eighth
Amendment standards for
determining when a prisoner has
been subjected to cruel and
unusual punishment, stating that
"the injury must be more than de
minimis." Siglar, 112 F.3d at 193.
This does not accurately describe
the Eighth Amendment standard
enunciated by the Supreme Court
in Hudson v. McMillian . ... In
Hudson, the Court held that "de
minimis uses of physical force" are
not constitutional violations,
focusing on the amount of force
used, not the nature or severity of
the injury inflicted.... The Fifth
Circuit has read Hudson to create a
de minimis physical injury
requirement under the Eighth
Amendment, stating ... that "to
support an Eighth Amendment
excessive force claim a prisoner
must have suffered from the
23

NATIONAL PRISON PROJECT JOURNAL

excessive force a more than de
minimis physical injury." The
Eleventh Circuit in Harris, while
embracing a de minimis physical
injury requirement for § 1997e(e)
as we do today, criticized the Fifth
Circuit's reasoning, pointing out that
the Fifth Circuit's interpretation of
Hudson differed from its own Eighth
Amendment jurisprudence....
In ruling that the requisite
physical injury must be more than
de minimis for purposes of §
1997e(e), we are not importing the
standard used for Eighth
Amendment excessive force
claims, which examines whether
the use of physical force is more
than de minimis.... Nor do we
alter our jurisprudence in the Eighth
Amendment arena, "but only use
the well established Eighth
Amendment standards to guide us
in our section 1997e(e) analysis."
Harris, 190 F.3d at 1286.
We decline appellant's
invitation to hold that "any" physical
injury is sufficient to meet the
demands of § 1997e(e), because
such an interpretation would ignore
the intent behind the statute.
However, we also decline the
invitation of appellees to adopt an
even more restrictive approach
than the "bare" de minimis
interpretation countenanced by
Sig/ar. Appellees cite Luong v. Haft
... to argue that de minimis
"physical injury" under § 1997e(e)
should be understood as "an
observable or diagnosable medical
condition requiring treatment by a
medical care professional," which
would cause a " 'free world person'
to seek such treatment." If
appellant's proposed standard
requires too little, appellees'
proposed standard requires too
much. Accordingly, the district
court did not err in applying a de
minimis analysis to evaluate
whether appellant's mental and
24

Winter/Spring 2003
emotional injury claims could
proceed.
The plaintiff alleged back and leg pain from sitting
and sleeping on the benches and floor of a
temporary cell; he said this was "nothing too
serious" at his deposition. He was in a fight, but
failed to describe the nature of the injuries he
sustained. He also complained of a canker sore.
These are all de minimis.
At 629: "To the extent that appellant has
actionable claims for compensatory, nominal or
punitive damages--premised on violations of his
Fourteenth Amendment rights, and not on any
alleged mental or emotional injuries--we conclude
the claims are not barred by § 1997e(e)." /d.: "To
the extent that appellant's claims for
compensatory, nominal or punitive damages are
premised on alleged Fourteenth Amendment
violations, and not on emotional or mental distress
suffered as a result of those violations, § 1997e(e)
is inapplicable and those claims are not barred."
Exactly what this distinction means is not
explained.
PLRA--Exhaustion of Administrative
Remedies/Appeal/Pro Se Litigation
Casanova v. DuBois, 289 F.3d 142 (1st
Cir. 2002). At 147: "Finding the analysis of our
sister circuits to be sound, we join the chorus of
voices concluding that exhaustion is not a
prerequisite to federal jurisdiction."
The court remands for the district court to
address exhaustion. Implicitly it rejects
defendants' argument that exhaustion must be
pled.
The notice of appeal in this pro se case
was signed by only one plaintiff, supposedly on
behalf of all. The court directed the clerk's office
to give the others a chance to sign, which they
took. Nonetheless the defendants move to
dismiss their appeals. The court criticizes the
defendants for waiting 18 months to call this
"error" to the court's attention, and says that
whether or not the plaintiffs intended to appeal
originally, they all responded within the time set for
the court, and the Supreme Court said in Becker
v. Montgomery that exhaustion is not jurisdictional.
At 146: "In this case, the other prisoners may very
well have believed that Casanova's appeal was
sufficient to preserve the rights of all plaintiffs, and
they corrected the error as soon as it was brought
to their attention. In light of Becker and our

NATIONAL PRISON PROJECT JOURNAL

general obligation to read pro se complaints
generously, ... we find that dismissal of the
appeal of the other inmates is unwarranted."
Publications/Qualified Immunity/Procedural
Due Process--Property
Sorrels v. McKee, 290 F.3d 965 (9th Cir.
2002). Prison officials promulgated a policy at
one prison forbidding prisoners to receive
publications as gifts; the decision striking that
policy down as unconstitutional was affirmed on
appeal. Meanwhile they had promulgated a
similar policy at the plaintiff's prison and applied it
to him. The defendants are entitled to qualified
immunity, since the right at issue is "the First
Amendment right to receive publications that the
inmate himself did not pay for from his own prison
account," and that law was not clearly established
until the policy was struck down at the first prison.
While defendants' justifications for the policy were
held inadequate under Turner, "it at least passes
the laugh test. ..." (970)
The plaintiff also alleged that he was
denied due process because a gift publication
sent to him was rejected without notice. Procunier
requires reasonable procedural safeguards for
rejecting inmate mail. However, there was no
evidence that the failure to give notice was other
than a rare and inadvertent mistake, so it wasn't
official policy, but negligence, which is not
actionable.
Mental Health Care/Medical Care-Examinations/Pre-Trial
Detainees/Medication/Use of
Force/Municipalities/Negligence, Deliberate
Indifference and Intent
Gibson v. County of Washoe, Nev., 290
F.3d 1175 (9th Cir. 2002). This extremely long
and complicated opinion is one of the most
sophisticated and plaintiff-favorable discussions I
have seen of municipal liability and the interaction
of the Farmer deliberate indifference standard with
the Canton v. Harris municipal liability standards.
The mentally ill decedent was jailed as a
result of conduct during a manic period. The
arresting officers delivered the drug containers
found in his truck to the nurse on duty, who
confirmed to one of them that the medications
were to stabilize mental illness, but told no one
else. The decedent continued to be disruptive
while locked in a cell, and was ordered to be

Winter/Spring 2003
transferred to a special watch cell, which was
done after spraying him in the face with pepper
spray. At the watch cell, he was restrained face
down with two deputies on his back and legs and
two more helping hold his arms and legs as he
continued to struggle. During the struggle, he had
a heart attack and died as a result of severe
arteriosclerosis, which neither he nor his wife
knew he had. Defendants' medical expert said his
psychiatric state combined with the restraint
efforts resulted in physiological stress which
precipitated a heart attack.
Jail policy provided for immediate medical
screening on intake for obvious signs of sickness
or injury requiring immediate attention, put
screening is to be delayed if the inmate is
"combative, uncooperative or unable to effectively
answer questions due to intoxication." It also
provided that the jail nurse will evaluate it and
determine whether it is put in secured property or
in the infirmary for follow-up care. During the
relevant period there was no mental health worker
at the jail "because of a soured relationship
between the jail's medical staff and the mental
hospital."
At 1186 n.7:
The municipal defendants
... assert that if we conclude, as
we do, ... that the individual
deputy defendants are not liable for
violating Gibson's constitutional
rights, then they are
correspondingly absolved of
liability. Although there are
certainly circumstances in which
this proposition is correct, see
Cityof Los Ange/es v. Heller, . . . it
has been rejected as an inflexible
requirement by both this court and
the Supreme Court.
Exceptions include cases in which the individuals
are exonerated via qualified immunity, cases in
which the injury was inflicted by the City, and
cases in which liability cannot be ascribed to a
single individual officer. The court quotes Owen v.
City of Independence, which states that a
"'systemic' injury" may "result not so much from
the conduct of any single individual, but from the
interactive behavior of several government
officials, each of whom may be acting in good
faith." /d.
The Due Process Clause "imposes, at a
25

NATIONAL PRISON PROJECT JOURNAL

minimum, the same duty the Eighth Amendment
imposes" as to medical care during incarceration,
and that includes psychiatric needs. (1187)
The court distinguishes the Eighth
Amendment deliberate indifference standard from
the Canton v. Harris deliberate indifference
standard based on the different mental elements
(1187 n. 8).
The evidence could support a finding that
the failure to respond to the decedent's medical
need was a direct result of an affirmative county
policy that was deliberately indifferent to the need,
i.e., the policy mandating delay in medical care for
those who are combative or uncooperative. There
is evidence that this is a common symptom of
someone in a manic state--which means that the
decedent's serious medical need was not met
because of his serious medical need. The
problem could also be found to have been
aggravated by the policy that medication would be
confiscated and either put in secure property or
given to the nurse for evaluation, rather than used
for immediate medical needs. The court notes
that the decedent's deranged mental state was
obvious even to the lay deputies.
A jury could find that County policymakers
knew that inevitably some prisoners would arrive
at the jail with urgent health problems, and it is
obvious from the County's policies that
policymakers were "keenly aware" that mental
illness, especially manic phases, were within the
range of urgent health problems. Other jail
policies pertaining to the mentally ill showed that
the policymakers "knew that they needed to deal
safely and effectively with the special challenges
posed by the mentally ill. ..." In previous years,
the County had a full-time mental health
professional on site at the jail to screen detainees,
and a reasonable jury could infer the County's
knowledge that one was needed to avoid serious
harm, and that a four-year lapse in this service
showed that the County chose to ignore
acknowledged mental health needs.
The court rejects the argument that the
decedent's serious medical need was
arteriosclerosis and not mental illness. This is an
argument about foreseeability, and there is
sufficient evidence to find that death is a
foreseeable result of not treating a manic person
and placing him in a penal setting, even if the
precise mechanism of the decedent's death was
not foreseeable. His other injuries besides death
26

Winter/Spring 2003
(confinement, restraint, and use of force) were
certainly a foreseeable consequence of not
identifying a manic condition. Under tort principles
applicable in § 1983 cases, the tortfeasor takes
his victim as he finds him.
The County could also be held liable based
on custom or policy amounting to deliberate
indifference (as opposed to the previously
discussed theory, which focuses on policies which
are deliberately indifferent). Such a finding would
require a County employee to have violated the
decedent's rights, unlike the other theory. Here,
the jail nurse could be found to have been
deliberately indifferent based on her medical
training, the fact that decedent behaved in a way
consistent with mental illness, and her knowledge
that he possessed medication that would stabilize
him. A jury could find that this violation resulted
from an omission in County policy concerning
detainees' medication, which said it should be put
in property or in the infirmary, without making
provision for medical personnel to use it to
address urgent needs. A jury could find that the
County made a deliberate choice to disregard a
known or obvious risk in adopting that policy along
with the policy of delaying medical evaluations for
combative and uncooperative persons.
The deputies present could not be found
deliberately indifferent because, absent medical
training, there is no evidence that they knew the
decedent's behavior connoted serious, treatable
mental illness.
The force used against the decedent was
reasonable. At 1197: "The Due Process clause
protects pretrial detainees from the use of
excessive force that amounts to punishment. ...
[W]e have determined that the Fourth Amendment
sets the 'applicable constitutional limitations' for
considering claims of excessive force during
pretrial detention." (Actually, the case they cite for
this proposition, Pierce v. Multnomah County,
says that the Fourth Amendment applies during
the period before an arrestee is arraigned or
released.) Here, the deputies had no reason to
believe that the decedent's crazed behavior was
related to treatable mental illness, so "we cannot
hold them accountable for having treated Gibson
as a dangerous prisoner rather than a sick one.
"
At 1188 n.9: "Because [the record shows
that the denial of medical attention directly
resulted from an affirmative County policy], we do

NATIONAL PRISON PROJECT JOURNAL

not address whether it is necessary to prove the
sUbjective Farmer state of mind in suits against
entities rather than individuals." Nor does the
court determine whether there are any
circumstances in which detainees can prove a
constitutional violation without meeting the Farmer
deliberate indifference standard. That standard is
based on the presence of the word "punishment"
in the Eighth Amendment; that word does not
appear in the Fourteenth Amendment, and
detainees are not subject to punishment. The
Fourteenth Amendment standard also applies not
only to penal settings but to anyone restricted by a
state from obtaining medical care on his own. "It
is quite possible, therefore, that the protections
provided pretrial detainees by the Fourteenth
Amendment in some instances exceed those
provided convicted prisoners by the Eighth
Amendment." Id.
At 1188 n.1 0: The fact that Farmer says it
is difficult to determine the subjective state of mind
of a government entity does not preclude the
possibility that a municipality might have the
sUbjective state of mind required by Farmer.
"First, it is certainly possible that a municipality's
policies explicitly acknowledge that substantial
risks of serious harm exist. Second, numerous
cases have held that municipalities act through
their policymakers, who are, of course, natural
persons, whose state of mind can be determined."

I U.S. District Court Cases

I

Searches--Person--Arrestees
Roberts v. Rhode Island, 175 F.Supp.2d
176 (D.R.1. 2000). In Rhode Island, pre-trial
detainees and convicts are both held by the state
Department of Correction. The prison system
policy calls for visual body cavity searches of all
new admissions. That policy is unconstitutional
under First Circuit law requiring such searches of
arrestees to be based on reasonable suspicion
that the arrestee is concealing contraband or
weapons. On reconsideration, the court says its
holding is restricted to pre-arraignment detainees.
Heating and Ventilation/Length of Stay
Scotti v. Russell, 175 F.Supp.2d 1099
(N.D. III. 2001). The court rejects the plaintiff's
claim that he was kept in an unconstitutionally cold

Winter/Spring 2003
cell for two winters, since temperature
measurements showed nothing colder than 64.6
degrees, except for a 24-hour period with no heat,
and that period was too short to "cause sufficient
damages." Also, prison officials provided extra
blankets and taped plastic over the cell windows
to keep the wind out. There was no substantial
risk to the plaintiff's health and the defendants
took reasonable measures to protect him, like
maintaining the heating system, covering the
windows, etc.
Emergency/Length of Stay
Waring v. Meachum, 175 F.Supp.2d 230
(D.Conn. 2001). The prison was locked down for
a week and plaintiffs sued for damages over the
conditions.
At 237-38: "While prison officials may
impose institutional lockdowns, the conditions
under which the inmates are confined must not
violate the Eighth Amendment." The court holds
these conditions constitutional and says the
defendants would be entitled to qualified immunity
in any case.
Food (239-40): The prisoners were served
cold cereal and sandwiches in their cells.
"Prisoners are guaranteed a nutritionally adequate
diet. . . . The provision of cold food is not, by
itself, a violation of the Eighth Amendment as long
as it is nutritionally adequate and is 'prepared and
served under conditions which do not present an
immediate danger to the health and well being of
the inmates who consume it.' . . . The court
agrees with the Eighth Circuit in noting that 'a diet,
such as this one, without fruits and vegetables
might violate the eighth amendment if it were the
regular prison diet.'" Because it was short-term,
however, it was not unlawful. The court says
there are no allegations that plaintiffs did not
receive nutritionally adequate meals. There were
statements that one prisoner lost seven pounds
during the lockdown and another was escorted to
the medical unit because of weakness and
dizziness from lack of food, but the court says
there is no evidence of serious injury, which
appears to be part of the court's definition of
nutritionally adequate.
Medical Care--Special Diets (240): one
plaintiff did not receive his prescribed diet for six
days. "Although in a different context the failure to
provide a special diet could constitute an Eighth
Amendment violation, the court does not believe it
27

NATIONAL PRISON PROJECT JOURNAL

to be so here." There is no deliberate indifference
under the circumstances, even though he told the
guards of his diet, and he failed to allege any
harm.
Hygiene (241-42): The failure to provide
inmates with showers was not unconstitutional.
"Although in some instances the failure to provide
inmates with clean clothing could constitute cruel
and unusual punishment," it isn't in this
emergency context.
Medical Care (242-43): temporary denial of
routine medical care, such as treatment for
rashes, headaches, nausea, and one complaint of
blood in stool, did not violate the Constitution.
Heating and Ventilation (243): Complaints
of lack of heat, broken cellblock windows, and only
a single sheet and blanket do not establish an
Eighth Amendment violation under the
circumstances. Prison officials said that the heat
was fully operational during the entire period,
temperatures were always above 60 degrees, and
the officers had no ability to adjust the
temperature. Broken windows were promptly
covered.
Pre-Trial Detainees/Medical Records/Federal
Officials and Prisons/Color of
Law/Medication/Non-Constitutional Rights
United States v. Wallen, 177 F.Supp.2d
455 (D.Md. 2001). The criminal defendant, a
federal detainee held at a Maryland jail, has
multiple medical problems and requires multiple
medications. He complained that he did not
receive his medication at the prescribed times, but
instead all in a single batch once a day, and
sometimes he did not receive some medication at
all. He lost consciousness in his cell and was
hospitalized for several days. The court says it
was initially skeptical of such claims, but changed
its mind when it leamed that the Prison Health
Services medication records indicated that his
medication was properly dispensed when he was
not even in the jail. A hearing revealed that even
when the system is working right, medication
dispensation is recorded by looking at what
medication is left over after dispensation. At 458:
If the Constitution forbids the
custodians of pretrial detainees
from being deliberately indifferent
to detainees' legitimate and
apparent needs for medical care,
then of necessity it forbids
28

Winter/Spring 2003
deliberate indifference in the
management, dispensing and
documentation of prescribed drug
therapy, a critical component of
overall medical care.
... The inadequate design
and deficient implementation of the
medication record system prevents
those in charge from being able to
determine whether the inmatepatients in their custody are
receiving the medical care-specifically drug therapy--ordered
by their treating physicians.
The court concludes it cannot be assured that the
defendant will receive the medical care he
requires. At 458-59:
It can be questioned whether the
Court may treat the Defendant's
oral request as a plea for
constitutional relief. Regardless,
and without deciding that question,
the Court no doubt has the inherent
authority to enter orders necessary
to protect persons detained by its
authority from the potentially Iifethreatening consequences of poor
medical care.
The court therefore orders that until the defendant
is discharged or transferred to the Federal Bureau
of Prisons, the United States Marshal shall hold
him at an infirmary or hospital, and the defendant
shall receive medical care "compliant with the
relevant standard of care" in whatever facility he is
placed in.
Medical Care--Standards of Liability-Deliberate Indifference/PLRA--Exhaustion of
Administrative Remedies
Lindsay v. Dunleavy, 177 F.Supp.2d 398
(E.D.Pa. 2001). The plaintiff was punched in the
jaw by another prisoner and was given pain
medication and cotton to bite on by medical staff.
He went back five of the next six days complaining
of continued severe pain, numbness, and swelling
in his jaw, and was told that it would take time to
heal and that if his jaw was broken he wouldn't be
able to talk. No x-rays were taken. When he was
sent to state prison on the seventh day, his jaw
was found to be broken.
The court declines to dismiss for nonexhaustion, since the plaintiff had been

NATIONAL PRISON PROJECT JOURNAL

transferred to state prison by the time he learned
his jaw was broken. Defendants provide no
information on what sort of remedies were
available at either institution or what remedies are
available in state prison for a prisoner complaining
of events elsewhere.
The plaintiff's claim is dismissed because
he has not pled facts sufficient to establish
deliberate indifference--for example, that the
defendant recognized his need for an x-ray and
refused to order it. At 402: "... [A] doctor's
decision not to order specific forms of diagnostic
treatment, an x-ray for example, constitutes
medical judgment, which is not actionable."

Medical Care/PLRA--Exhaustion of
Administrative Remedies
Gomez v. Wins/ow, 177 F.Supp.2d 977
(ND.Cal. 2001). The plaintiff filed a grievance
about treatment of his Hepatitis C. He did not
complete the grievance process because, in the
course of its various stages, he got satisfactory
results, including a grievance decision stating that
he was being referred to physicians to consider
starting interferon. Defendants asserted he hadn't
adequately exhausted because he really had three
claims: failure to timely diagnose, failure to timely
treat, failure to inform, and each of these had to
be fully exhausted.
The court declines to dismiss for nonexhaustion. The exhaustion requirement's most
relevant purpose is to give prison officials notice of
complaints so they can take proper action. The
court holds that a grievance that made clear that
his concern was over his inadequate treatment for
Hepatitis C gave prison officials sufficient notice of
the problem. It was not necessary for him to file
separate grievances about different aspects of the
problem such as failing to tell him he had tested
positive for the disease, long delay in beginning
treatment, failing to inform him adequately about
the disease, etc. At 982 n.3: Defendants'
argument would be better in a case where the
claims were unrelated, Le., where "it would be
clear that the facts involved are distinct, and thus
require separate exhaustion ...."
The plaintiff's grievance was granted at an
intermediate stage and he did not appeal all the
way up. The court holds that he has exhausted.
Since he sought effective treatment and
information about side effects, got them, said his
concerns had been addressed, and won his

Winter/Spring 2003
appeal on the remaining issue, there was nothing
more he could get from the administrative
process. At 985: "Because Gomez had, in
essence, 'won' his inmate appeal, it would be
unreasonable to expect him to appeal that victory
before he is allowed to file suit. Indeed, it appears
that plaintiff would have been rebuffed by prison
officials had he for some reason tried to pursue
his grievance to another level. At oral argument on
this motion, counsel for plaintiff noted that one of
the grounds for rejecting or canceling an appeal is
that the issue had been resolved at a previous
level."

Use of Force/Municipalities/State Law
Immunities
Perrin v. Gentner, 177 F.Supp.2d 1115
(D.Nev.2001). A statement by one police officer
that the defendant officer who shot the plaintiff's
decedent was "known to use 'heavy handed'
tactics with citizens and was 'out to perform [his]
job overzealous[ly] with prejudice towards people'"
and that he was uncomfortable working with him,
plus two accounts of prior excessive force and
threats to shoot citizens, supported a claim
against the municipality. At 1124: "If Officer
Gentner's own fellow officers [Le., one of them]
were afraid to work with him, surely Metro [Las
Vegas] was on constructive notice that Gentner
was not only a potential threat to public safety, but
that he regularly flaunted [sic] constitutional
safeguards intended to protect citizens against the
use of excessive force." The plaintiff also
presented sufficient evidence of inadequate
training, which the court does not detail.
The decision to stop the decedent may
have been discretionary, but subsequent actions
including the decision to shoot at him 14 times
were operational, so the municipality is not
immune from state law claims.
The decedent was shot after he jaywalked,
had a brief conversation with another person, and
then refused to show his hands at the officer's
order.
Religion
Freedom From Religion Foundation, /nc.,
179 F.Supp.2d 950 (W.D.Wis. 2002). A contract
between the Department of Correction and "Faith
Works," a "faith-based program designed to meet
the needs of individuals recovering from addiction
to alcohol and other drugs," to operate a halfway
29

NATIONAL PRISON PROJECT JOURNAL

house raises an Establishment Clause issue
because Faith Works engages in religious
indoctrination which can be attributed to the state,
since probation or parole agents determine which
individuals are referred to which programs, and
since Faith Works is the only such long-term
program in the Milwaukee aea. The defendants
will have to prove at trial that the offender makes a
genuinely independent, private choice to attend
Faith Works in order to refute the claim that its
contract amounts to "direct funding" of a religious
organization. It is not possible to separate the
religious components of the program from its
secular components for funding purposes.
Faith Works' argument that barring it from
its government contracting activities would violate
its free speech rights is wrong. Government's
contracting out its responsibilities does not create
a public forum for private speech.
Procedural Due Process--Disciplinary
Proceedings/Injunctive Relief--Preliminary
Espinal v. Goord, 180 F.Supp.2d 532
(S.D.N.Y. 2002). The plaintiff's request for a
preliminary injunction releasing him from punitive
segregation is a challenge to "government action
taken in the public interest pursuant to a statutory
or regulatory scheme" and would alter the status
quo, and must therefore be supported by a
showing of irreparable harm and a clear or
substantial showing of likelihood of success on the
merits, not the lesser "fair ground for
litigation/balance of hardships" standard. The
plaintiff fails to show a likelihood of success.
The plaintiff met the Sandin requirement of
atypical and significant hardship, having spent
nearly 1,300 days in SHU under conditions in
"stark contrast" to general population conditions,
especially since he was in Southport, where SHU
conditions are harsher than in other SHUs.
A notice charging the plaintiff with both
fighting and assault was not defective even
though the two offenses are different; it was
reasonable for the officers to charge him with both
since further fact-finding might have been
necessary to figure out which charge was correct.
The lack of information about the basis for
knowledge or veracity by a confidential informant
was not required to appear on the notice.
The plaintiff's claim that the hearing officer
was biased because he is the supervisor of the
involved security staff and because he assumed
30

Winter/Spring 2003
the role of a quasi-prosecutor in his questioning
did not establish lack of impartiality. At 539: "As
Schneider neither witnessed nor investigated the
incident in question, he was sufficiently impartial
under the legal standards laid down in Powell v.
Ward. ..."
The court cannot determine on this record
whether the hearing officer made an independent
assessment of the reliability of the confidential
informants. It notes that the Second Circuit has
said the existence of a right to such an
assessment remains an open question; since this
is the plaintiff's motion, not the defendants', it is
not necessary to resolve the question in denying
relief.
Religion--Practices--Seards, Hair,
Dress/Injunctive Relief--Preliminary
Goodman v. Money, 180 F.Supp.2d 946
(N.D.Ohio 2001). The court issues a temporary
restraining order alloWing two Orthodox Chassidic
prisoners to maintain their religious beards and
hairstyles. The fact that they had been allowed to
do so until recently suggests that defendants are
engaging in an exaggerated response to security
needs, and the loss of their hair would be
irreparable harm. At 947: "Once their hair is cut,
their loss cannot be restored." Temporary relief
will not adversely affect the public interest in
letting prison officials maintain order. The court
says that although the regulations "may be
enforceable, ... that fact does not preclude the
plaintiffs from going forward with an as-applied
challenge to the regulation." The plaintiffs alleged
that they had been permitted to maintain their
beards and sidelocks previously, then had been
"encouraged to transfer" to another prison where
they would be able to practice all religious tenets
freely.
Use of Force--Restraints
Ball v. Baker, 180 F.Supp.2d 1293
(M.D.Ala.2000). The court makes findings of fact
memorializing its decision to require the plaintiff to
be leg-shackled during his jury trial. He had a
history of one escape, significant mental disability,
and numerous disciplinary charges. The court
relied in part on the "independent assessment" of
the United States Marshal. The court notes that it
ameliorated the effect of the shackles by allowing
the plaintiff to remain behind the counsel table and
have exhibits brought to him by court personnel to

NATIONAL PRISON PROJECT JOURNAL

minimize the visibility of the restraints.
Communication with Media/Prison
Records/Damages--Intangible Injuries,
Conditions of Confinement, PunitivelTransfers
Spruytte v. Hoffner, 181 F.Supp.2d 736
(W. D.Mich. 2001). Plaintiffs were transferred after
writing a letter to the local newspaper responding
to another letter saying prisoners should be less
comfortable. That conduct was protected by the
First Amendment. The court cites the holding of
Thornburgh v. Abbott that outgoing mail is entitled
to greater protection than incoming mail. Sending
the letter did not violate any legitimate prison
regulation or constitute a security risk. The letter's
contents "were a matter of concern to the public"
(742), though the court does not hold that this is a
necessary element of the claim.
Plaintiffs must show that they "suffered
adverse action that would deter a person of
ordinary firmness from continuing to engage in
that conduct." (742) Transfer alone is insufficient
to constitute adverse action, but the plaintiffs lost
library jobs which were paid at the highest rate;
they were labeled security threats; and they lost
personal property pertaining to official impropriety.
These facts meet the "ordinary firmness"
threshold.
The court concludes that the transfer was
caused by the letter to the newspaper. The court
rejects as pretextual the claim that the real reason
was circulation in prison of a satirical "Trivia
Contest," since there was no evidence that either
plaintiff was involved in writing it, some prison
officials testified that they didn't believe they were
responsible for it, and other prisoners had signed
for the copying of the contest and were not
investigated or suspected. The court rejects the
argument that investigation showed the plaintiffs
should be transferred to keep order because staff
were angry about the Trivia Contest, since the
investigation was not neutral and was directed at
the plaintiffs by a staff member angry at them
about the letter to the newspaper. This decision is
generally remarkable for the court's willingness to
probe the credibility of prison staff's testimony.
The court declines to order rescission of
the transfers because the plaintiffs are still in the
same security level and no worse off than before
the transfer, and the plaintiffs no longer press that
request anyway. It awards damages of $3,330
and $2,430 respectively. (The fact that there is no

Winter/Spring 2003
due process liberty interest in prison jobs doesn't
mean they can't recover damages for loss of them
as an element of their First Amendment claim.)
The court awards them $500 apiece for "noneconomic damages, such as pain, suffering, and
mental anguish," after finding they didn't suffer
any pain and suffering. The PLRA
mental/emotional injury provision is not
mentioned.
The court denies punitive damages absent
evidence of evil motive or intent or callous
indifference to rights.
The court directs defendants to clear
plaintiffs' records of the label of security threat,
insofar as it is based on this incident.
PLRA--In Forma Pauperis Provisions--Filing
Fees/Personal Property
Doty v. Doyle, 182 F.Supp.2d 750
(E.D.Wis. 2002). Prison "release accounts" of
$500 "are held in trust for the prisoner, and thus
are trust fund accounts and are subject to trust
law. ... The terms of a trust are set when the
trust is created." Those terms may be changed if
their purpose becomes impossible, but that is not
the case, since the plaintiff's release will not be
affected by his transfer out of state. Therefore
there is no ground to terminate the trust.
However, the court directs the Department of
Corrections to pay the appellate fee out of the
release account, and not to replenish the release
account out of the plaintiff's out of state income.
PLRA--Exhaustion of Administrative
Remedies/Correspondence--Legal and
Official/Access to Courts
John v. N. Y. C. Dept. of Corrections, 183
F.Supp.2d 619 (S.D.N.Y. 2002). Once again, a
New York federal judge mistakenly applies the
New York State grievance regulations to a claim
that arose in the New York City jails.
The plaintiff filed two grievances and then
when he got no response appealed directly to the
Commissioner and still did not receive a response.
The court rejects the argument that he must wait
for a response. He didn't fail to appeal properly to
the Central Office Review Committee because he
didn't get a decision to appeal. He did not get a
hearing within seven days as regulations require.
Nevertheless, he apprised the Commissioner of
the situation. These actions are sufficient to
exhaust.
31

NATIONAL PRISON PROJECT JOURNAL

At 627: "To state a valid constitutional
claim ... for denial of access to the courts due to
interference with an inmate's legal mail, an inmate
must allege that a defendant's deliberate and
malicious interference actually impeded his
access to the court or prejudiced an existing
action." Here, material was seized from him after
an interview with counsel; he had the interview
and was able to review the material. Since the
materials were given back to his attorney, there
was no interference with his defense.
At 629: "Prison inmates have a First
Amendment right to the free flow of mail. ...
Although an inmate must be present when his
legal mail is opened, ... in order to state a
constitutional claim for the mistreatment of mail,
plaintiff must allege facts which show that
defendants acted with invidious intent." Injury
must also be alleged. The absence of a claim of
injury requires dismissal here.
Use of Force--Stun Devices/Personal
Involvement and Supervisory
Liability/Procedural Due Process-Classification/Medical Care--Standards of
Liability--Serious Medical Needs/Medical Care-Denial of Ordered Care/Eye Care
Shelton v. Angelone, 183 F.Supp.2d 830
(W.O.Va.2002). The plaintiff alleged that he was
beaten and repeatedly shocked with an electric
stun gun by staff without justification and while he
was in restraints. These allegations are sufficient
to defeat summary judgment for defendants since
the conduct alleged is "repugnant to the
conscience of mankind" and "would not require
proof of any permanent, serious physical effect."
(835)
Supervisory defendants who were not
alleged to be responsible for developing the
prison's use of force policy could not be held liable
for the plaintiff's injuries absent evidence of tacit
authorization of misconduct that has a causal
relationship to the injuries. No such causal
relationship was shown here.
The plaintiffs reclassification to a higher
security level was not atypical and significant
under Sandin; except that the court then says it
can't decide whether it was atypical and significant
because it can't tell which security level the
plaintiff would have been in previously; but he got
due process anyway, since he had the opportunity
to be heard and to appeal, and since classification
32

Winter/Spring 2003
is based on an objective scoring system.
The plaintiff was not denied medical care.
Though a doctor prescribed glasses with shields
and sides, he was told that they would present a
security threat and the doctor agreed. (Allegedly
sunglasses could be used as a weapon or as
disguise.) The security director also testified that
he understood that the doctor ordered the special
glasses more for convenience than as a matter of
medical necessity. The court concludes that the
plaintiffs ailment, sensitivity to the fluorescent
lighting in his cell, was not shown to be a serious
medical need, and that no physician who
examined him mandated it. (Actually, two ordered
the glasses: the one who was talked out of it, and
another one later.)
Pre-Trial Detainees/Protection from Inmate
Assault/Medical Care
Hedrick v. Roberts, 183 F.Supp.2d 814
(E.OVa. 2001). The two plaintiffs were subjected
to serious assaults by other prisoners. While the
plaintiffs were subjected to an objectively serious
risk, the Sheriff was not deliberately indifferent.
He inherited an aged, overcrowded jail but began
an aggressive campaign to clean things up,
requesting relevant studies, implementing work
release and diversion programs, suing the state to
get rid of state ready prisoners, and complaining
to the local and state legislatures. The plaintiffs
(one of them a former police officer) were put in
multi-person cells and not single cells because the
latter were not available. Although there is no
evidence of anything the Sheriff did to try to
prevent assaults in general or on these particular
individuals within the limits of the facilities, the
court finds he acted reasonably. There is no
discussion of an official capacity or municipal
claim that would permit the plaintiff to claim that
the lousy facilities themselves demonstrated a
municipal policy of deliberate indifference.
The Sheriff also acted reasonably with
respect to medical care. The court reaches this
conclusion despite the fact that one of the
plaintiffs did not get hospitalized until 12 hours
after the attack, at which time he was said to be
within an hour of death. "... [A]lthough there is
some dispute regarding when Jones requested
transportation to the hospital, there is no question
that he was eventually transported to the hospital."
This is bad judgment at worst.

NATIONAL PRISON PROJECT JOURNAL

Religion--Services Within Institution/Injunctive
Relief--Preliminary/PLRA--Exhaustion of
Administrative Remedies
Pugh v. Goord, 184 F.Supp.2d 326
(S.D.N.Y. 2002) (Lynch, J.). The plaintiff Shi'ite
Muslims alleged that they were subject to
discrimination because the Muslim worship and
accommodation program in the state prisons
combines Shi'ite and Sunni observance and the
Sunnis are in charge. A state court held earlier in
Cancel v. Goord that discrimination against Shi'ite
belief and practice was arbitrary and capricious
and violated the state statutory right to religious
freedom. To comply with that court's order, DOCS
officials met with a Shi'ite scholar and
promulgated a new protocol calling for equal
treatment for Shi'ites, but still providing for joint
services. After implementation of those changes,
plaintiffs sought a preliminary injunction seeking
separate services.
The preliminary injunction is denied
because plaintiffs cannot show likelihood of
success on the merits. The Turner standard
governs. The plaintiffs do not argue that the new
policies are unconstitutional on their face, but that
their administration at one prison by a Sunni Imam
who has shown overt bigotry against them is
unconstitutional. At 334: "While the First and
Fourteenth Amendments do not require that
prison inmates have access to religious advisors
whose own views are completely congruent to
their own, their protections are certainly not
satisfied where the religious leader purportedly
responsible for inmates' spiritual guidance overtly
despises the deeply held beliefs of inmates under
his charge." Therefore the question is whether
the actions taken by defendants are reasonable.
Having said that, the court does not
address whether the defendants reasonably
responded to the alleged bias of the Imam
because that issue had not been exhausted. The
grievances filed by plaintiffs addressed only the
question of separate services. The new
procedures provide for addressing complaints
such as plaintiffs'.
Under the Turner standard, the combined
service practice is upheld. There is a valid,
rational connection between that practice and
avoiding the burdens on space, personnel, and
budget that separate services would impose. The
Muslim program "provides more than adequate
opportunities for plaintiffs to worship in a manner

Winter/Spring 2003
that is both meaningful and consistent with their
faith" (336)--on its face, that is. Id.: "... [P]rison
officials have documented that multiplying the
number of sects or groupings entitled to separate
services would have an adverse impact upon
security ... by increasing opportunities for
inmates to exchange contraband and carry on
gang-related activity under the cloak of religion."
There are no readily available alternatives that
would be any better for the plaintiffs than the
policies DOCS has already adopted.
The court notes (at 336 n.6) that the
current protocol was devised in consultation with a
Shi'a scholar, and as to plaintiffs' claims that that
scholar's sanctioning of the protocol is incorrect,
that "[i]t is not for this Court to adjudicate
differences of opinion regarding Shi'a doctrine....
The Constitution does not require prison officials
to accommodate particular inmates' views
concerning the orthodoxy of those authorities'
recommendations. "
The court not only denies the preliminary
injunction but dismisses the complaint, since
resolution of the motion has essentially resolved
the dispute and further discovery won't help.
At 332 n.3: It is disputed in this Circuit
whether claimed loss of First Amendment rights is
presumed to constitute irreparable harm. Here,
where plaintiffs claim the DOCS prog ram is
administered by an openly hostile Sunni chaplain,
they have sufficiently alleged non-speculative
irreparable harm regardless of any presumption.
PLRA--Exhaustion of Administrative
Remedies/Pro Se Litigation
Evans v. Nassau County, 184 F.Supp.2d
238 (E.D.N.Y. 2002). The plaintiff said there was
no prison grievance procedure; the defendants
attached parts of an inmate handbook describing
such a procedure (with a 6-day time limit). The
plaintiff said that he filed three grievances as
prescribed and never received a response. These
claims raise disputed factual allegations regarding
whether he filed a grievance and whether jail
officials responded.
The opinion is full of boilerplate about the
appropriate lenient treatment of pro se litigants.
Protection from Inmate Assault/Medical
Care/Procedural Due Process--Disciplinary
Proceedings
Nichols v. Maryland Correctional
33

NATIONAL PRISON PROJECT JOURNAL

/nstitution--Jessup, 186 F.Supp.2d 575 (D.Md.
2002). The plaintiff said he told a defendant
officer that his cellmate was threatening him with
assault, and the officer responded, "I don't roll like
that. Deal with it." The plaintiff was assaulted and
seriously injured. The officer could not be held
liable. Even if plaintiffs version is true, that
statement, coupled with the advice to talk to the
captain about a cell change and the
acknowledgement that assignment to protective
custody would follow if there was really a threat,
shows that the officer did not draw the inference
that his failure to act would increase the danger to
the plaintiff. That is, the court is using the
defendant's failure to act as evidence that he did
not know about the risk!
The plaintiff was prescribed Tylenol 3 and
then disciplined for a positive drug test; his appeal
was denied; only after one of his relatives
interceded was the sanction overturned and the
plaintiff released from segregation. However,
placement in segregation does not deny liberty
under Sandin.
Medical Care
Bakerv. B/anchette, 186 F.Supp.2d 100
(D.Conn. 2001). The plaintiff complained of long
delay in surgery to close his colostomy. A
reasonable jury could find that the plaintiff had a
serious medical condition because (at 103)
(1) the colostomy prevented him
from eliminating waste in a normal
manner; (2) the colostomy required
him to wear a bag that constantly
emitted a foul odor; and (3) the
colostomy required significant
maintenance by the plaintiff and
medical personnel. "Though these
consequences do not inevitably
entail pain, they adequately meet
the test of 'suffering' that Gamb/e
recognized is inconsistent with
contemporary standards of
decency."
A jury could also find the potential to develop a
hernia, which could produce pain and affect the
ability to perform normal activities.
While some of the delay was explained,
four months of it was not. At 105: "On the
plaintiffs version of the facts, which has some
evidentiary support, he was denied access to
reasonably necessary surgery, not because of
34

Winter/Spring 2003
medical decisionmaking involving the use of
professional judgment, but solely because of
cost."
At 105 n.4: "... [C]lassifying surgery as
elective does not abrogate a prison's duty to
promptly provide treatment necessary to address
a serious medical need."
Mental Health Care/Psychotropic
Medication/Medical Care--Serious Medical
Needs
Page v. Norvell, 186 F.Supp.2d 1134
(D.Ore.2000). The plaintiff was receiving
treatment including medication for bipolar
disorder; the psychiatrist resigned. The plaintiff
shouted angrily at the mental health director and
refused to calm down; he was escorted out and
later sanctioned for use of abusive speech. Two
days later, the mental health director sent plaintiff
a memo stating that he was removing the plaintiff
from scheduled mental health treatment based on
"clinical findings" that he was highly antisocial and
did not have an Axis I mental disorder. He added:
"I am now your primary mental health worker and
will decide the level of service you require. If you
violate this order I will hold you accountable for
disobedience of an order as provided by the DOC
disciplinary code." Nonetheless the plaintiff
continued to receive his medication, though
nobody met with him before renewing it.
The plaintiffs mental disorder and the
anxiety resulting from lack of medication review
constitute a serious medical need.
A reasonable jury could find that the
defendant caused the plaintiff not to receive a
medication review. Evidence suggests that the
defendant downgraded the plaintiffs mental health
status after meeting with him for less than two
minutes and may have purposefully misdiagnosed
him. There is no evidence in the record to support
the cited "clinical findings."
At 1139: "When a claimed Eighth
Amendment violation results from a delay in
medical treatment, the delay must cause some
sort of harm," but it need not be "substantial" or
"significant." The plaintiff said he was concerned
that his medications were not having the desired
effect and he "desperately wanted to talk to a
qualified mental health professional" and felt like
his world was falling apart. When he eventually
saw a practitioner, his Lithium dose was
increased. There is a material issue of fact as to

NATIONAL PRISON PROJECT JOURNAL

the seriousness of his psychological harm.
Medical Care
E/-Uri v. City of Chicago, 186 F.Supp.2d
844 (N.D. III. 2002). The plaintiff alleged that he
accompanied police officers to the station to assist
in an investigation and that an officer kicked him
and punched him, then told him the investigation
was over and he could go home. After they took
him home he went to the hospital and was treated
for a ruptured spleen, which was removed.
There was a deliberate indifference claim
against the officer who beat the plaintiff. At 848:
"A reasonable person would know that, other
things being equal, someone who had been
beaten in the head hard enough to knock him to
the floor and then kicked in the midriff would need
medical attention, especially if, immediately
afterwards, he was screaming in pain, throwing up
bile, walking bent over and extremely slowly....
As for the subjective element, [the beating
alleged] was conduct that was "so dangerous that
the defendant's knowledge of risk can be
inferred," and anyway the plaintiff's condition was
observed by the defendant. The court adds later,
"Now, normally screaming in pain will do to
register a complaint."
PLRA--Exhaustion of Administrative Remedies
Martinez v. Dr. Williams R., 186 F.Supp.2d
353 (S.D.N.Y. 2002). At 357: The failure of prison
officials to respond to a grievance did not excuse
plaintiff's failure to exhaust; he could and should
have appealed anyway per the grievance
procedures.
Use of Force/Municipalities/Pre-Trial
Detainees/Personal Involvement and
Supervisory Liability
Gailor v. Armstrong, 187 F.Supp.2d 729
(W.D.Ky. 2001). The plaintiff's argument that
there is a municipal custom of failing to follow the
jail's use of force policy is not supported by
evidence of a single incident which violated the
policy or by evidence that there were 30 or 40
instances of excessive force over ten years (in 31
of which the officers were punished). At 734: "To
support his claim, plaintiff would need to show the
existence of a significant number of credible
complaints of force in violation of the policy where
no discipline or review occurred." The lack of a
policy providing for availability of a CERT team at

Winter/Spring 2003
all times is unsupported by evidence of a causal
relationship to the present excessive force
incident. The alleged policy of not providing
enough videotapes to tape incidents of
misconduct has no causal connection since part of
this incident was videotaped.
At 735-36: "Because Reynolds was in
pretrial detention, the Eighth Amendment
determines his relevant constitutional protections."
Allegations that four officers repeatedly
struck the decedent while he was shackled, baited
him and beat him when he responded,
disregarded requests from a nurse to stop so she
could treat him, and helped roll him over so a fifth
defendant could stand on his neck, supported an
Eighth Amendment claim. Even those defendants
who did not strike the plaintiff acted in concert to
restrain him and to turn him over, and could be
held liable on that basis.
The claim against a sixth defendant who
applied no force but knew excessive force was
being used and did not intervene was governed by
the deliberate indifference standard, which these
allegations met.
Trial--Conduct of Trial/State, Local and
Professional Standards/Color of
Law/Evidentiary Questions/Medical Care-Standards of Liability--Deliberate
Indifference/Mootness/Evidentiary Questions
Bowman v. Corrections Corporation of
America, 188 F.Supp.2d 870 (M.D.Tenn. 2000).
Here, the court appears to hold unconstitutional
certain contract incentives for medical providers,
even though a jury ruled for the defendants on the
individual damage claim and, since the prisoner
had died, his claim appeared to be moot. The
court cites "exceptional circumstances" justifying a
ruling.
The contract between eeA and the doctor
made the doctor the sole medical provider, gave
him a "capitated rate" per prisoner for his services,
subject to adjustment which gave the doctor more
money the lower the corporation's non-personnel
medical charges were (Le., the less money was
spent on referrals and hospitalization). Those
expenses went from $3.07 per capita to $1.48 per
capita in three and a half years even though the
same doctor was the provider both before and
after introduction of the capitated rate scheme.
The contract is a corporate policy for §
1983 purposes, since it represents a "written
35

NATIONAL PRISON PROJECT JOURNAL

understanding for a fixed plan to provide medical
care for inmates at SCCF."
The court determines that the financial
incentives placed on the contract doctor, a general
surgeon with some psychiatric experience, to
reduce referrals, viewed in light of the drastic
reduction in referrals by the same physician under
the capitated rate system, is unconstitutional. It
relies on a report of the AMA Council on Ethics
and Judicial Affairs and Medicare regulations, and
says (at 889): "Applying these professional
medical standards, CCA's contract permits Dr.
Coble effectively to double his income under the
contract, that is clearly at variance with these
medical standards." At 890:
[The policy] violates
contemporary standards of
decency, by giving a physician who
provides exclusive medical services
to inmates, substantial financial
incentives to double his income by
reducing inmates' necessary
medical services. Under this
contract, Dr. Coble is the sole and
exclusive person to determine if
referrals to medical specialists are
necessary as well as which
prescriptions and laboratory tests
are necessary for an inmate's
medical care. According to the
proof, Dr. Coble reached the
maximum of his financial incentives
for each year of his contract.
Although CCA argues that Dr.
Coble would not make medical
decisions based upon costs
because to do so increases long
term costs, that is an economic
analysis. The Eighth Amendment
forbids unnecessary suffering in the
short term for inmates who are
wholly dependent upon the state to
provide such basic medical care.
The Court's conclusion
should not be construed as barring
a managed health care system with
physician incentives in a prison
setting. . .. The Court simply
concludes that this contract goes
too far, as reflected in the actual
expenditures....
36

Winter/Spring 2003
The court grants the plaintiff's motion for judgment
as a matter of law as to this contract and "enjoin[s]
the current contract." Exactly what this means, it
does not say.
Procedural Due Process--Administrative
Segregation/PLRA--Prospective Relief
Provisions/Injunctive Relief--Changed
Circumstances/Habeas Corpus
Austin v. Wilkinson, 189 F.Supp.2d 719
(N.D.Ohio 2002). Prisoners alleged that their
placement and retention at the supermax Ohio
State Penitentiary denied due process. The court
notes that opening the asp had created too much
capacity for the highest security level, that no clear
standards govern assignment to it, and that
defendants consider prisoners for it that don't
need its restrictions. Higher officials frequently
and unilaterally overruled the recommendations of
classification committees that particular prisoners
not be sent there.
The Heck rule does not bar plaintiffs'
procedural due process claims, since they seek
prospective relief against administrative decisions
to transfer and retain in aSP, not to invalidate
past decisions. (738 n.21)
Conditions at asp are atypical and
significant. The court rejects defendants'
suggestion that since inmates are often
transferred to aSP, the appropriate com parison is
between asp and itself. At 739: "However, the
[Sandin] Court did not suggest that the existence
of a condition somewhere within a state's prison
system automatically made such a condition
normal." Id.: "... [T]he better approach is to
compare the range of prison conditions
experienced by the plaintiffs against the complete
range of conditions experienced by a broad range
of similarly situated inmates." The court usefully
inventories the bases of comparison used by the
various circuits in the "atypical and significant"
analysis.
The court notes that the vast majority of
prisoners sent to asp stay a minimum of two
years, and 200 have been there more than three
years. Length of stay is a result of the timing of
reclassification under asp procedures, which call
for annual reviews; at other high-security units,
review is every 30 days. asp terms are indefinite.
At 741:
In contrast [to death row],
inmates at the asp have extremely

NATIONAL PRISON PROJECT JOURNAL

limited contact with other
individuals. The inmates remain
alone in their solid-door cells for
twenty-three hours a day. Metal
strips along the cell doors do not
allow conversation with adjacent
inmates. anlya small, inoperable
window allows the inmate to view
the outside his cell. [sic] A
correctional officer only opens the
small "cuff-port" in the cell door to
affix handcuffs or to drop off food.
An asp prisoner only goes outside
the building in the rare case of a
necessary medical procedure or a
court appearance....
Inmates at the asp also are
never allowed outdoor recreation.
Their closest contact to the
outdoors is exercise in a completely
enclosed room with a grated
opening approximately six inches
wide and four feet long. The Court
finds it hard to believe anyone
would seriously suggest such a
space constitutes "outdoor"
recreation. The lack of outdoor
recreation is important to the Court
as denial of outdoor recreation can
impair a liberty interest. ...
In those instances when the
asp inmates are allowed out of
their cells, they are escorted by two
or three officers. In contrast,
inmates on death row walk without
a hands-on escort. At the asp,
when inmates leave their cellblock,
they are strip-searched, shackled,
and placed in full restraints, which
include the uncomfortable rigid
"black box" enclosing their hands.
Inmates at the asp are stripsearched before and after meeting
visitors even though physical
contact with visitors, who are
behind solid glass, is impossible. In
all, other correctional facilities have
significantly less intrusive
conditions than the asp.
In addition, confinement at
the asp affects the duration of
some inmates' incarceration....

Winter/Spring 2003

[The court agrees that this] is one
factor, among many, showing that
placement and retention at the
asp imposes an atypical and
significant hardship.
asp inmates are ineligible for parole until they
have been reclassified to maximum security for a
year and then reclassified to close security.
At 744: "Under Wolff and Hewitt, the
amount of process a prisoner requires depends on
whether the prisoner's transfer is characterized as
disciplinary or administrative. In deciding the
nature of the transfer, nomenclature is less
important than the substance of the transfer." It's
not clear that all transfers to asp are
administrative. "In light of the lengthy and
indeterminate time inmates are held at the asp,
the minimal procedural requirements of Hewitt are
insufficient." Also, conditions and length of
confinement are harsher and longer than for
disciplinary offenses. The court resorts to
Matthews v. Eldridge and notes that additional
procedural protections will advance an important
interest of the prisoners, won't impair defendants'
interest in putting only "the worst of the worst" in
asp, and will cause minimal hardship because
giving specific notice of all the grounds for
placement in asp would not be burdensome and
would make overall operations more efficient by
keeping prisoners from being placed
unnecessarily in this expensive housing.
The court concludes that the plaintiffs are
entitled to Wolff process before their placement in
asp.
Defendants argued that they had
promulgated a new policy and under the PLRA's
prospective relief provisions, no relief was
necessary. The court finds that the new policy is
still inadequate. It doesn't ensure that inmates are
given notice of the evidence relied upon and the
specific grounds for placement at asp. It doesn't
specify the offenses that can lead to placement
there. It is vague about the type of gang
involvement that may lead to placement at asp
(the criterion is whether the prisoner has been
"identified" as a leader, enforcer, or recruiter,
rather than what the prisoner has actually done).
The new policy fails to require that the true
ultimate decision maker identify the evidence
relied upon and explain his reasoning. As to
reclassification, the new policy does not call for
any information to be given to the prisoner before
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NATIONAL PRISON PROJECT JOURNAL

the hearing as to the reason for their retention,
and it is completely unspecific as to what is
necessary for prisoners to get out of the OSP.
The standard for retention--"whether there has
been a diminishing of the inmate's risk to the
safety of persons or institutional security"--is too
vague. Written dispositions should be set out in
sufficient detail to show the evidence actually
considered and that a reasoned judgment was
made, rather than by boilerplate language and
form decisions.
The parties are directed to file proposed
injunctive orders meeting the PLRA standards.
Use of Force/Class Actions--Certification of
Classes/PLRA--Exhaustion of Administrative
Remedies/Pleading/Procedural, Jurisdictional,
and Litigation Issues/Emergency
In re Bayside Prison Litigation, 190
F.Supp.2d 755 (D.N.J. 2002). The plaintiffs-hundreds of them--alleged reprisals against the
inmate population during a lockdown after an
injury to a guard. The district court previously
denied class certification on the ground that
individual differences in injury, treatment, time,
etc. overwhelmed the common issues.
There is no heightened pleading standard
under § 1983. The court concludes that contrary
Third Circuit precedent, which has not been
revisited in ten years, has been overruled by
Leatherman v. Tarrant County and by the
reiteration of the Leatherman reasoning in a
different context in Swierkiewicz v. Sorema N.A.,
which relies on the underlying rule that all civil
actions are governed by Rule 8(a)'s liberal
pleading requirements except for matters set out
in Rule 9(b).
There are some 300 plaintiffs as to whom
there are yet no specific factual allegations.
However, until the completion of discovery, those
plaintiffs may be retained in the case based on the
general allegations of the complaint about the
conduct of defendant officers.
The plaintiffs have sufficiently pled a
conspiracy under § 1983 by stating the relevant
time period, the names of many alleged
conspirators, and the object and purpose of the
conspiracy. (765) Several of them have pled a
conspiracy motivated by racial animus under §
1985(3).
At 770-71: The court rejects the
Concepcion holding that only a procedure
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Winter/Spring 2003
promulgated statewide through the state APA
constitutes an administrative remedy for PLRA
purposes. The Supreme Court in Booth "set an
arguably low threshold" for "availability, and the
Third Circuit has never mentioned any
requirement of formal promulgation but rather has
focused on "minimum standards necessary to
deem administrative procedures to be 'available.
Quoting Nyhuis, the court says that regardless of
compliance with the APA, "procedures contained
in a prison handbook may constitute such an
administrative remedy if they are 'understandable
to the prisoner, expeditious, and treated seriously'
and enable prison authorities to take 'some
responsive action' to prisoner complaints."
Nonetheless the court concludes that the
handbook procedure is not an administrative
remedy under the PLRA. At 771-72, the court
notes that the handbook indicates that the
grievance procedure is "optional not mandatory"
and not intended to restrict access to courts. "No
one reading that language would understand that
it was necessary to exhaust the ARF process
before filing a civil action with the courts." It is not
"expeditious" because there is no time period for
response. It does not appear that the complaints
are taken seriously. A separate Ombudsman
procedure is no better, since it is presented as
optional and has only the power to "make
recommendations for change," which is not the
type of "responsive action" envisioned in Booth. It
appears that Ombudsman investigations are
resisted and recommendations are not taken
seriously.
1lI

Hazardous Conditions and Substances
Jones v. Bayer, 190 F.Supp.2d 1204
(D.Nev. 2002). Placing the non-smoking plaintiff
in a cell for 42 days with a heavy smoker did not
violate the Eighth Amendment, since he suffered
only discomfort, irritation, and coughing, and 42
days doesn't pose an unreasonable risk to future
health (based on what evidence, the court doesn't
say).
Disabled/Exhaustion of Remedies/State
Officials and Agencies
Mitchell v. Massachusetts Dept. of
Correction, 190 F.Supp.2d 204 (D.Mass. 2002).
The plaintiff complained of exclusion from certain
programs because he had a heart condition and
diabetes, resulting in his loss of good time credits.

NATIONAL PRISON PROJECT JOURNAL

He sued under the disability statutes.
At 209: "Every decision unearthed by the
court with respect to this issue ... holds that
administrative exhaustion is not required for a Title
II claim." The plaintiff has been released, so there
is no issue of PLRA exhaustion. The defendants
raise the issue in a novel form late by arguing
laches, i.e., that the plaintiff should be barred from
challenging conditions at a prison when he did not
raise his concerns contemporaneously. At 215:
"Defendants cite no authority stating that Plaintiff
was required to bring his concerns to the attention
of NCCI officials as they were happening."
Defendants' claims of lost evidence, diminishing
recollection, etc., are no different than in many
other civil cases (plaintiff filed suit nine months
after he was transferred from prison at issue).
The ADA's abrogation of state sovereign
immunity does not violate the Eleventh
Amendment.
Individuals are not subject to liability under
Title II (211, citing "resounding authority").
However, officials may be named in their official
capacities (n.6).
Defendants don't dispute that diabetes and
heart conditions are physical impairments and that
work and education are major life activities; they
claim the plaintiff is not disabled because he isn't
in such bad shape. At 212: "... Defendants miss
the central theme of Plaintiff's Title II claim,
namely, that Defendants 'regarded' him as having
an impairment which substantially limits a major
life activity, whether or not such limitation actually
exists."
The Rehabilitation Act claim survives on
the same ground, though it must be dismissed as
to individual defendants.
Searches--Person--Convicts/PLRA--Mental or
Emotional Injuryllnjunctive Relief
Seaver v. Manduco, 178 F.Supp.2d 30
(D.Mass. 2002). The plaintiff sex offenders
alleged that they were harassed because of their
status and were subject to retaliatory body cavity
searches.
Injunctive relief was not appropriate
because there was no allegation that the

Winter/Spring 2003
misconduct was ongoing. Declaratory relief is
inappropriate for the same reason. At 37: "The
court will dismiss all claims of harassment under §
1997e(e) as being claims for emotional distress
without an accompanying physical injury.... The
court ... recognizes that at some point, if
discriminatory harassment occurs, its nature and
consequences may support claims of
constitutional violations that would permit recovery
of damages against defendants in their individual
capacities even where no physical injury is
proved." But harassment that is primarily if not
entirely verbal is barred.
The searches present a more difficult
issue. At 37:
First, a visual cavity search causes
a physical invasion of privacy that
may qualify as a physical injury for
the purposes of § 1997e(e).
Second, different views have been
expressed about whether a claim
for recovery for violation of a
constitutional right is materially
different from a claim for recovery
for emotional or psychological
distress and thus is not precluded
by § 1997e(e).
The court notes that the First Circuit has not
addressed the issue, but quotes with approval the
statement in Shaheed-Muhammad v. Dipaolo that
where the harm alleged is violation of intangible
rights, rather than physical or emotional injury
caused by a violation of rights, the provision does
not apply. At 38: "It appears likely that the
conducting of an unwarranted visual cavity search
could be determined to be the type of rights
violation that would be actionable under Judge
Gertner's formulation. A visual cavity search is a
very serious intrusion on any individual's privacy."
However, the court ultimately avoids the issue by
deciding on the basis of qualified immunity.
The defendants had qualified immunity
because the searches were preceded by an alarm
indicating that inmates were fighting, creating
reasonable suspicion for searching everyone in
the area.

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Winter/Spring 2003

NATIONAL PRISON PROJECT JOURNAL

Your Right to Reproductive Health Care in Prison or Jail
FACT:

If you are pregnant, being in prison or jail does not mean you lose your right to decide to
continue your pregnancy or to have an abortion,

Your constitutional rights are being violated, if you are told that you must:
1. Have an abortion you do not want.

2. Get a court order before getting an abortion.
3. Pay for prenatal care or an abortion out of your own pocket if you cannot afford the care.
4. Pay for the costs of the jail transporting you to a clinic or hospital to have an abortion or otherwise
get care related to a pregnancy.
If you are experiencing any of the above, you should:

1. Determine if it is one particular nurse or guard who's giving you a hard time. If it is, then ask
other medical staff or officials to help you.

2. Document your requests, both by making them in writing and by keeping a list of the people
you've spoken to when, what responses they've given, and when and to whom you've made
written requests.
3. File an "administrative grievance" as well as a written request for medical assistance. If officials
refuse to give you the forms you need, write letters making the requests (and again, keep track of
the people you send them to and when). Make these requests even if they don't seem to get you
anywhere and mark them "urgent".
If you are still told that you must terminate a wanted pregnancy or you are unable to get an abortion, you
should contact your lawyer or the ACLU Reproductive Freedom Project (212-549-2633). The ACLU may
be able to help your lawyer file a lawsuit on your behalf as quickly as possible. If you are facing pressure
to continue your pregnancy, or obstacles to ending your pregnancy, be sure to call your lawyer or the
ACLU quickly:

Contact:

American Civil Liberties Union
Reproductive Freedom Project
125 Broad Street, 18th Floor
New York, NY 10004
Tel.: (212) 549-2633
e-mail: rfp@aclu.org

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

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