AMERICAN CIVIL LIBERTIES UNION

Vol. 17. NO.1. Summer/Fall 2003 • ISSN 1076-769X

ACLU Applauds Alabama's Move to Open Rehabilitative Programming to
HIV+ Prisoners
The American Civil Liberties Union
commended the reversal of a nearly 20-year-old
segregation policy within the Alabama Department
of Corrections in January that led to the integration
of more than 200 HN-positive prisoners into
educational and vocational training programs.
"Since 1987, prisoners withHIV/AIDS in
Alabama have fought to receive the same
opportunities to learn and rehabilitate themselves
as other prisoners," said Margaret Winter,
Associate Director ofthe ACLU's National Prison
Project. "Male prisoners with HN are closer to
equality in Alabama than they have ever been
before."
After months of speculation and a
comprehensive report from the Governor's HN
Commission for Children, Youth and Adults
recommending full integration ofHN-positive
prisoners into prison programming, Commissioner
Donal Campbell announced the policy change.
Prisoners living with HIVI AIDS at the Limestone
Correctional Facility began attending in-prison
programs with prisoners housed in general
population in January.
In a letter sent to Commissioner Campbell,
the ACLU inquired about plans to integrate women
prisoners who are HN-positive and emphasized
the need for HIVIAIDS education in prison. "One
factor that we all believe is essential in ensuring a
completely successful and peaceful transition to
program integration is appropriate HIV education
for all staff and prisoners," the ACLU letter said.
The only state prison system other than
Alabama to retain total HIV segregation into the
1990s was Mississippi. After a broad campaign by
the ACLU, prisoners, prisoners' family members,
and local and national advocates, Mississippi

integrated its in-prison programs in 2001. The
change was preceded by comprehensive HIVI AIDS
education for prisoners and staff, and has been an
unqualified success. "With this policy change,
Alabama now joins Mississippi in starting to bring
its HIV prison policies in line with national
standards," said Winter.
The policy change follows a long history of
litigation and advocacy opposing Alabama's
segregation of prisoners with HNIAIDS. In 1987,
the ACLU's National Prison Project filed a lawsuit
on behalf of prisoners with mv contesting their
exclusion from prison programs. After an
unsuccessful trial, an appeal to the 11 th Circuit in
1991 resulted in a reversal of the trial court's
decision and called for a new trial. In 1995, the
trial court ruled against the prisoners again, saying
any risk of transmission, no matter how
implausible, was a significant risk and warranted
segregation and exclusion of HN-positive
prisoners from rehabilitative programs. After
another appeal that went up to the U.S. Supreme
Court, the Alabama policy was left intact and
prisoners with HN committed to continuing their
long struggle for quality medical care and equal
access to prison programs.
"The end to educational and vocational
programming segregation in Alabama marks a
milestone for HNIAIDS activism," said Jackie
Walker, HIV/AIDS and Hepatitis Information
Coordinator for the National Prison Project. "This
new opportunity for HN-positive prisoners may be
too late for many former and deceased prisoners,
but it will dramatically improve the lives of current
HIV-positive prisoners and allow them to begin the
long road to rehabilitation and re-entry to society."

ACLU Tells Appeals Court That
Inhumane Conditions on Mississippi's
Death Row Must End
The American Civil Liberties Union in
November urged a federal appeals court in New
Orleans to end the deplorable conditions on
Mississippi's death row and reinstate remedies
ordered by a federal district court judge that protect
prisoners from serious physical and mental illness.
"The federal district court's courageous
decision in Mississippi sought to end the
dangerously high temperatures, pervasive filth,
uncontrolled mosquito infestation and grossly
inadequate mental health care on death row," said
Margaret Winter, Associate Director of the
ACLU's National Prison Project. "Every day that
Mississippi prison officials allow to pass without
implementing these changes leaves the men
confined to death row at high risk for heat stroke
and psychiatric breakdown."
The ACLU's oral argument before the 5th
Circuit Court of Appeals defended an order issued
in May 2003 by u.s. Magistrate Jerry Davis from
the Northern District of Mississippi, who said that
"no matter how heinous the crime committed, there
is no excuse for such living conditions" in
Mississippi's prisons. According to Judge Davis,
"the isolation of Death Row, along with the
inmates' pending sentences of death and the
conditions of Unit 32 C, are enough to weaken
even the strongest individual."
The ACLU said in its brief defending the
decision that three death row prisoners are
"extremely psychotic," six or eight more "very
psychotic," 20 or more have very serious mental
illness and at least half have significant mental
illness. "These conditions actually induce
psychosis. Prisoners who are not already mentally
ill become mentally ill and those on the verge of
illness are pushed over the edge," the ACLU brief
said.
Judge Davis's order resulted from a case
filed in July 2002 by the National Prison Project
and the Washington law firm of Holland & Knight
on behalf of the death row prisoners housed in Unit
32 of the State Penitentiary in Parchman.
Attorneys for the state appealed the decision
2

because of objections by Department of
Corrections officials that remedies like providing
fans , ice water and showers on excessively.hot
days are unnecessary -- despite expert medIcal
testimony that failure to provide any relief during
the brutally hot summer months is inhuman and
likely to cause heat stroke and death.
In August, the Fifth Circuit of Appeals
granted the state's appeal, but also granted the
ACLU's request for an expedited appeal of that
decision.
"Mississippians are distressed not only by
the Department of Corrections' inability to meet
minimal standards of decency, health and wellbeing in our prisons but by their claim that they
shouldn't have to," said Nsombi Lambright,
Executive Director of the ACLU of Mississippi.
"Locked prison doors cannot keep out the
Constitution's protections from cruel and unusual
punishment."
The oral argument was presented by Winter
of the ACLU's National Prison Project. Cocounsel in the lawsuit, Russell v. Johnson, include
Steve Hanlon, a partner with Holland & Knight,
Amy Fettig of the National Prison Project, and
civil rights attorney Robert McDuff.

I NATIONAL PRISON PROJECT JOURNAL
NPP Director: Elizabeth Alexander
Editor: Kara Gotsch
Subscriptions Manager: Thandor Miller
The National Prison Project is a special project of
the ACLU Foundation. It seeks to strengthen and protect
the rights of adult and juvenile prisoners, improve overa~l
conditions in correctional facilities, and develop alternatIves
to incarceration.
The Journal is published biannually by the
ACLU's National Prison Project, located at 733 15th St.,
NW, Ste. 620, Washington, DC 20005. Contact us by phone
at (202) 393-4930, by fax at (202) 393-4931 or through
email at kgotsch@npp-aclu.org for more information. (NO
COLLECT CALLS PLEASE)
The reprinting of Journal material is encouraged
with the stipulation that the Journal is credited as the so~ce
of the material, and a copy of the reprint is sent to the edItor.
Subscriptions to the Journal are $30 per year ($2 for
prisoners), prepaid by check or money order.

ACLU Joins Lawsuit Over Conditions at
Jail Run by Infamous Arizona Sheriff
The American Civil Liberties Union in
December joined an important litigation effort to
defeat Sheriff Joe Arpaio' s bid to terminate
existing federal protections for pre-trial detainees
housed in the Maricopa County Jail-- known
internationally for the degrading chain gangs and
other harsh policies introduced by its infamous
sheriff.
"For many years we have been concerned
about the extremist policies and practices
introduced by Sheriff Arpaio," said David C. Fathi,
an attorney with the ACLU's National Prison
Project. "Our involvement with this lawsuit renews
our commitment to bringing Maricopa County's jail
into compliance with constitutional requirements."
The self-described "toughest sheriff in
America" is notorious for policies requiring
prisoners to wear pink underpants and striped
uniforms and for spending less money to feed
prisoners than his police dogs. Recent tours
conducted by the ACLU found that seriously
dangerous and inhumane conditions persist in the
jail system, including inadequate medical and
mental health care and severe crowding.
"Allowing mentally ill prisoners to lie in a
catatonic state, naked on a bare concrete cell floor
for 23 hours a day, is not being 'tough on crime,"
said Alice Bendheim, a cooperating attorney with
the ACLU of Arizona. "The conditions I witnessed
in the Maricopa County Jail were cruel and
detrimental to the well-being of the people
confined there."
At issue is a 1995 federal consent decree
that Sheriff Arpaio seek to end that ensures
protections for the over 5,000 pre-trial detainees
housed in the jail. It requires Maricopa County
officials to reduce overcrowding, provide access to
religious services, improve medical, dental and
psychiatric care, and adhere to national fire
protection standards and suitable sanitation and
safety standards. Recent incidents at the jail
demonstrate that many provisions of the decree are
not being met.
"Sheriff Arpaio's practices and policies not
only harm the low-level offenders incarcerated in

the jail, but pre-trial detainees who cannot go home
only because they are too poor to post bail," said
Eleanor Eisenberg, Executive Director ofthe
ACLU of Arizona. "It is our belief that detainees
who have not even had a trial yet are entitled to a
high degree of security and decent treatment."
In 1998, a U.S. Department of Justice
report harshly criticized the use of excessive force
at the facility; the report led to a settlement
agreement with Sheriff Arpaio to restrict the use of
pepper spray, stun guns and restraint chairs. Earlier
this year, the Arizona Court of Appeals affirmed a
verdict for a prisoner who was severely beaten in
the jail's "Tent City," a unit housing 2,000
prisoners outdoors in the Arizona desert. The court
affirmed the finding that Sheriff Arpaio was
deliberately indifferent to the risk of attack in the
tent unit and affirmed an award of punitive
damages against him. Additional lawsuits are
pending on behalf of other prisoners who were
beaten in the facility.

Court Asked to Revive Lawsuit Against
Baltimore Jail to Protect Detainees from
Deplorable Conditions
Citing deplorable living conditions at the
Baltimore City Detention Center that violate a
federal consent decree, the American Civil
Liberties Union and the Public Justice Center filed
in December a motion to enforce crucial provisions
of the decade old order.
"The gross neglect of the health and wellbeing of detainees creates an intolerable and
inhumane environment for the 4,000 men, women
and children confined at the detention center," said
Elizabeth Alexander, Director of the ACLU's
National Prison Project. "We hope today's motion
will force Maryland officials to end these lifethreatening conditions."
In August 2002, the U.S. Department of
Justice issued a damning report on the BCDC after
an investigation found unconstitutional conditions
there. The report details how "persons confined
suffer harm or the risk of harm from deficiencies in
the facility's fire safety protections, medical care,
mental health care, sanitation, opportunity to
exercise and protections ofjuveniles."
3

Recent interviews of BCDC detainees
conducted by the ACLU and the Public Justice
Center found little has changed since the DOJ
investigation. Detainees complain that decent
medical care is difficult if not impossible to receive
in the crowded facility. Interviews and medical
records revealed that patients have waited up to
six months to receive treatment for serious medical
concerns, HIV-infected and mentally ill detainees
have been denied medications, and access to
physician services has been severely limited.
"The failures of the BCDC's medical
services have already resulted in the deaths of at
least two pre-trial detainees, and will likely lead to
more if care is not improved," said Wendy Hess, an
attorney with the Public Justice Center.
"Thousands of pre-trial detainees who remain
behind bars face dangerous punishment before they
are even convicted of a crime."
The December motion higWights multiple

cases of serious medical neglect at the jail and
points to some findings from last year's
Department of Justice report. In one case, a doctor
ordered a re-evaluation of a detainee with asthma,
but the re-evaluation never occurred. The detainee
eventually died of an acute asthma attack when his
inhaler failed to work because of overuse. In
another case, a woman committed suicide after a
physician's order regarding suicide precautions
was not followed.
"For far too long, Maryland officials have
allowed conditions at the Baltimore City Detention
Center to deteriorate," said local attorney Frank
Dunbaugh. "This filing brings Baltimore one step
closer to ending the cruel conditions at BCDC."
The request to restore the medical and
physical plant provisions of the consent decree in
Duvall v. Glendening was filed in U.S. District
Court by Alexander, Hess and Dunbaugh as well as
attorney Deborah Jeon of the ACLU of Maryland.

Court Approves Settlement of ACLU Lawsuit to Improve Conditions at Jail in
Washington State
Judge Ronald Leighton of U.S. District
Court approved a settlement agreement in January
between the American Civil Liberties Union and
Jefferson County officials to improve conditions
for prisoners at the Jefferson County Jail in Port
Hadlock on the Olympic Peninsula in Washington.
The agreement resolves a class-action lawsuit over
inhumane conditions for prisoners filed by the
ACLU of Washington and the ACLU's National
Prison Project in February 2002.
"The settlement will mean substantial
improvements to what had been inhumane
treatment of prisoners. We congratulate County
officials for their commitment to upgrade
conditions at the jail," said ACLU of Washington
Legal Program Director Julya Hampton.
The terms of the settlement address a range
of deficiencies in the jail's treatment of the people
it houses, including the following:
Health Care: The jail's health care program
was disorganized and understaffed. Prisoners who
requested medical help were often not seen by
licensed health care professionals, and untrained
jail staff often made medical decisions for the
4

prisoners. Jail staff frequently denied necessary
medication, leading to seizures or hospitalization
that could have been avoided. Under the
settlement, the jail will implement health care
policies and practices that will enable it to qualify
for accreditation by the National Council on
Correctional Health Care, a nonprofit organization
that sets standards in the area.
Sanitation: Prisoners were not provided
enough basic hygiene supplies, such as toilet paper
and feminine hygiene products. Prisoners have
been forced to use makeshift replacements, such as
pages from telephone books, towels, or paper bags.
Under the settlement, the jail will keep an adequate
supply of toilet paper and sanitary napkins on hand
and will deliver them to inmates whenever needed.
Use of Crisis Cell: Some of the worst
abuses in the jail involved use of the "crisis cell," a
bare concrete room with a hole in the floor for a
toilet. Although such cells are designed only for
prisoners who pose a danger to themselves or
others, the jail used it for discipline for routine
infractions and to terrorize prisoners. The cell was
not adequately monitored, leading to a prisoner

death in the cell in March 2001. Under the
settlement, the crisis cell will not be used as
discipline for infractions or misbehavior. The crisis
cell may only be used to house: (1) inmates who
show evidence ofbeing a risk of harm to
themselves, to others, or to jail property; (2)
inmates who require medical or psychiatric
supervision; or (3) inmates who are intoxicated.
Health care providers will be called when an
inmate is placed in the crisis cell for medical or
psychiatric reasons.
Temperature: Climate control had been
inadequate, often leading to extreme cold
conditions in winter and extreme heat conditions in
the summer. The jail did not provide adequate
blankets or cold-weather clothing. Under the
settlement, all inmate areas of the jail will be kept
between 60 and 80 degrees Fahrenheit. Inmates in
cells with exterior walls will be entitled to receive
up to two extra blankets.
Grievances: The jail had no functioning
grievance policy to allow prisoners to seek internal
corrections. Prisoners had to request grievance

forms from officers, who would refuse to provide
them if the prisoner intended to complain about the
officer. All written communication between
prisoners and guards was on scraps ofpaper that
guards sometimes threw away without response.
Under the settlement, grievance forms, medical
request forms, and regular request forms will be
made available in each cell block. All written
grievances will receive written replies within seven
days. Jail staffwill not retaliate against or deny
privileges to any inmate for writing grievances.
Mail: Under the settlement, mail may not
be delayed or denied as a disciplinary measure. The
rules forbidding receipt of outside books,
magazines, or material printed from the Internet are
rescinded.
The agreement will be enforced by
independent outside monitors who will visit the jail
at six-month intervals for three years and report on
the jail's compliance with the agreement.
Staff attorney Aaron Caplan of the ACLU
of Washington and staff attorney David Fathi of
the National Prison Project handled the case.

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
Pregnancy, Childbirth, and Abortion/Equal
Protection/Deference
Gerber v. Hickman, 291 F.3d 617 (9th Cir.
2002) (en banc). Prison officials refused to allow
the plaintiff, who was serving 100 years to life, to
provide a sperm sample so his wife could be
artificially inseminated. Life prisoners are
excluded from family visits.
The court concludes that a right to
procreate in prison is fundamentally inconsistent
with incarceration, and therefore it doesn't have to
reach the Turner analysis. "The fact that California
prison officials may choose to permit some inmates
the privilege of conjugal visits is simply irrelevant
to whether there is a constitutional right to
conjugal visits or a right to procreate while in
prison."
There is no equal protection violation vis-a-

vis inmates who receive conjugal visits because
they are not similarly situated. At 623: "Inmates
eligible for conjugal visits will eventually be
released from prison, ... while Gerber will not. "
Therefore rational basis review is applied, and
prison officials could rationally decide that
maintaining external contacts is more important for
those who will be released.
The prohibition doesn't violate the Eighth
Amendment because it doesn't deny plaintiff "the
minimal civilized measure of life's necessities."

PLRA--Exhaustion of Administrative Remedies
Dixon v. Page, 291 F.3d 485 (7th Cir.
2002). A dismissal for non-exhaustion without
prejudice is appealable when the reason for
dismissal can't be cured. This prisoner is out of
prison, so he can't exhaust. That doesn't excuse
him for having failed to exhaust in this suit, though
he may be able to re-file without having to exhaust
if the statute oflimitations permits (488 n.1). At
5

489: "§ 1997e applies only to prisoners, and a
plaintiffs status as a 'prisoner' is to be detennined
as of the time he brought the lawsuit."
The plaintiff won one grievance at an
intennediate stage, but prison officials did not
carry out the grievance decision. Defendants
argued that he should have done something
administratively to compel compliance, such as
filing another grievance. At 490: "Requiring a
prisoner who has won his grievance in principle to
file another grievance to win in fact is certainly
problematic." There is the prospect of a "neverending cycle of grievances." Defense counsel
conceded that such intentional action by prison
officials "could not be tolerated." However,
counsel said, the prisoner could have taken a
further appeal to the Director if after 30 days the
situation had not been resolved. The court assumes
that this representation is reliable and holds that
under Pozo v. McCaughtry, the prisoner has failed
to comply literally with the tenns of the exhaustion
requirement. It allows for the possibility that this
might not be the case, but simply affinns the
dismissal, leaving the prisoner no apparent avenue
for pursuing the matter further.

Federal Officials and Prisons/Trial--Conduct of
Trial/Evidentiary QuestionslPrivacy
Ueland v. United States, 291 F.3d 993 (7th
Cir. 2002). The plaintiff sued under the Federal
Tort Claims Act, complaining that he was injured
in a collision between a prison van and its "chase
car." The defendants said everyone was wearing a
seat belt; the plaintiff said that nobody was.
The district court erred in excluding the
deposition of another prisoner who was being held
in a prison more than 100 miles away from
Chicago, where the trial was held, since its use was
sanctioned by Rule 32(a), Fed.R.Civ.P.
There was nothing improper about the U.S.
Attorney talking to the Bureau of Prisons doctor
who treated the plaintiff and ultimately testified.
At 999:
Intoning "physician-patient
privilege" gets Ueland nowhere: the
Bureau of Prisons is entitled to upto-date medical infonnation about
persons in its custody--indeed is
constitutionally obliged to obtain
6

that infonnation, in order to prevent
the infliction of cruel and unusual
punishrnent--so it is entirely
legitimate for Dr. Reed to tell both
prison administrators and federal
lawyers what he knows about
Ueland's condition.... That is not
to say that the federal government
could gratuitously reveal a
prisoner's medical infonnation to
third parties; Ueland may have
some privilege with respect to
particular uses of infonnation....

Color of Law/Use of Force
Townsend v. Moya, 291 F.3d 859 (5th Cir.
2002). The plaintiff was injured by an officer with
a knife in an incident of stupid horseplay for which
the officer was fired. The officer did not act under
color oflaw. The parties were engaged in "mere
horseplay, which involves a 'purely private aim and
no misuse of state authority.'..." "They were
calling each other names, a 'purely private aim,'
and a physical reaction ensued." (862) The fact
that the officer in this case had direct authority over
the prisoner and used a knife he possessed only by
virtue of his position and authority does not
distinguish this case from Fifth Circuit precedent;
the "key inquiry" is whether he had a "purely
private aim," (862), and there is no indication that
the officer actually exercised any authority during
the incident.
Searches--Living Quarters/Access to Courts-Punishment and Retaliation/Procedural Due
Process--Disciplinary Proceedings
Carter v. McGrady, 292 F.3d 152 (3d Cir.
2002). The plaintiff alleged he was subjected to
cell searches and disciplinary proceedings in
retaliation for his jailhouse lawyering.
Allegations of retaliation for the exercise of
constitutional rights are governed by the_Mount
Healthy "but for" standard under prior Third
Circuit precedent. (158) Under it, prison officials
may prevail in the face of a prima facie case of
retaliation if they show that they would have made
the same decision absent the protected conduct for
reasons reasonably related to legitimate
penological interests. (154) The court grants

summary judgment with respect to the disciplinary
proceedings because the plaintiff was clearly guilty
of, e.g., stealing a typewriter and unauthorized use
of the maiL At 159: "Even if prison officials were
motivated by animus to jailhouse lawyers, Carter's
offenses ... were so clear and overt that we cannot
say that the disciplinary action taken against Carter
was retaliatory."
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Torres v. Fauver, 292 F.3d 141 (3d Cir.
2002). The "favorable termination" rule of Heck v.
Humphrey "does not apply to claims that implicate
only the conditions, and not the fact or duration, of
a prisoner's incarceration." (l43) Therefore the
plaintiff, who was placed in segregation for a
disciplinary offense but not deprived of good time,
was not barred from seeking damages. At 150:
"Because these punishments did not alter the length
of his incarceration, the success of his claim would
not 'necessarily imply the invalidity of the fact or
duration of his confinement."
The plaintiffs IS-day placement in
disciplinary detention and 120-day placement in
administrative segregation is not "the type of
atypical, significant deprivation in which a State
might conceivably create a liberty interest" (151,
quoting Sandin, emphasis supplied); the court then
notes that these events took place in a state where
prisoners have no protected interest in being free of
indefinite segregated confinement. Exactly how
the two propositions relate is not explained.
Procedural Due Process--Disciplinary
Proceedings/Pendent and Supplemental Claims;
State Law in Federal Courts
Gaines v. Stenseng, 292 F.3d 1222 (lOth
Cir.2002). The plaintiff served 75 days in
disciplinary segregation after hearings that a state
court held denied due process.
Violation of state statutes and regulations
does not state a § 1983 claim.
The question whether plaintiffs
confinement was atypical and significant under
Sandin could not be determined summarily at the
pleading stage, "[a]lthough the court might
properly conclude at the summary judgment stage
that such segregation mirrors conditions imposed

upon inmates in administrative segregation and
protective custody, and that therefore the complaint
should be dismissed." (1226) Id.: "In particular
the district court must determine whether the
seventy-five day duration of Gaines's confinement
in disciplinary segregation is itself 'atypical and
significant.'" (Citing the Second Circuit decision
in Colon v. Howard.) The court acknowledges that
a lesser period of segregation might fail as a matter
of law to reach the atypical and significant
threshold.
PLRA--Exhaustion of Administrative Remedies
Medina-Claudio v. Rodriguez-Mateo, 292
F.3d 31 (lst Cir. 2002). The plaintiff was injured
in a Puerto Rico prison and transferred to a federal
institution, from which he filed suit. His claim is
dismissed for non-exhaustion, since there's nothing
in the Puerto Rico grievance rules that make the
process unavailable to persons outside the Puerto
Rico prisons (except the statement that it's
available to prisoners "in" that system, but never
mind that).
Dismissal without prejudice is the
appropriate remedy for non-exhaustion.
Homosexuals and TranssexualslDeference
Veney v. Wyche, 293 F.3d 726 (4th Cir.
2002). The court holds that a homosexual
prisoner's complaint that male homosexuals, unlike
heterosexuals or lesbians, are not allowed to be
placed in double cells, does not state an equal
protection claim. Outside prison, this claim would
be subject to rational basis scrutiny. At 732:
"When equal protection challenges arise in a prison
context, however, courts must adjust the level of
scrutiny to ensure that prison officials are afforded
the necessary discretion to operate their facilities in
a safe and secure manner." So the court applies the
Turner reasonable relationship test.
There is a valid, rational connection to
legitimate penological interests in keeping
homosexual prisoners out of double cells, which
include avoiding sexual activity between cellmates
(which presents risks to security and of disease
transmission) and avoiding friction and possibly
violence between cellmates. The differential
treatment of male and female homosexual
prisoners is justified by the less violent and less
7

homophobic character of female prisoners, which
the court bases on two articles from the Prison
Journal and a case from the Eighth Circuit, rather
than anything in the non-existent record in this case
(see below).
The impact of accommodating the asserted
constitutional right would consist of prison
officials' having to spend more time to making cell
assignments to avoid putting homosexuals together
or with violent homophobic inmates, and "the
sexual tension caused by such a living
arrangement" would make it more difficult for
guards to manage.
There are no reasonable alternatives to the
policy that would address the problems of double
ceiling gay male prisoners.
The court reaches this disposition even
though the district court dismissed the complaint
on initial screening and prison officials denied that
the policy exists. Nonetheless the court applies the
Turner standard with no factual assertions or even
an answer to the complaint from the defendants. It
is not clear to what extent the defendants made the
arguments in support of the policy that they deny
that they have, or whether the court just made them
up on its own.
Use of Force/Personal Involvement and
Supervisory Liability/Procedural Due Process-Disciplinary Proceedings/PLRA--Exhaustion of
Administrative Remedies
Smith v. Mensinger, 293 F.3d 641 (3d Cir.
2002). The district court should not have focused
nearly exclusively on the lack of a serious physical
injury in dismissing the plaintiffs use of force
claim; "the Eighth Amendment analysis must be
driven by the extent of the force and the
circumstances in which it is applied; not by the
resulting injuries." (648) Injuries are only one
factor in the analysis, though de minimis injuries
might support a conclusion that the defendants'
account is more credible than the plaintiffs, or that
the force used was not of constitutional dimension.
At 649: "Punching and kicking someone who is
handcuffed behind his back and under the control
of at least six prison guards as he is being thrown
into cabinets and walls is 'repugnant to the
conscience of mankind,' absent the extraordinary
circumstances necessary to justify that kind of
8

force." Defendants' claim that earlier the plaintiff
had struck an officer would not justify the
treatment described, given plaintiffs allegation that
he did not resist and was in handcuffs when he was
beaten.
The fact that the plaintiff could not say
whether particular defendants who were present
actually participated in the beating does not require
their dismissal, since they were alleged to have
been immediately present; the extent of their
participation presents a factual issue. An officer
who did not participate could be held liable for
failure to intervene ifhe "had a reasonable
opportunity to intervene and simply refused to do
so." (650)
The district court held that seven months in
segregation was not atypical and significant under
Sandin. The plaintiff says the court missed the
point and that his complaint is that the discipline
was in retaliation for his misconduct and to cover
up a beating. However, such a complaint is
actionable only when the retaliation is for the
exercise of a constitutional right. Here, where
there is no such allegation, Sandin governs.
Medical Care--Standards of Liability-Deliberate IndifferencelMedication/Denial of
Ordered Care
Walker v. Benjamin, 293 F.3d 1030 (7th
Cir. 2002). The plaintiff sustained a hand injury
but was not allowed to go to sick call for two days;
then he was not allowed to see a doctor, because
the nurse insisted on treating the wound, which
became badly infected. A doctor then ordered
penicillin, which he did not receive, and an x-ray,
but did not refer him to a specialist and did not
review the x-ray, though another doctor reviewed
the x-ray. His next complaint of continuing serious
infectionresulted in treatment with a topical
antibiotic. Two days later, he got a different
antibiotic. A week later, he was told he had a bone
infection. After another couple of weeks of
fumbling around, during which he finally saw a
specialist, he received "emergency" surgery. He
did not get pain medication during this period or
after the surgery, even though there was an "as
needed" prescription for it, with medical staff
accusing him of wanting to get high.
The initial delays between the plaintiffs

complaint of infection and the specialist referral
were not shown to be within the defendants'
control or to have aggravated his injury, so they do
not amount to deliberate indifference. The failure
to receive prescribed antibiotics does not state a
deliberate indifference claim against the doctor
who prescribed them, absent evidence that the
matter was in his control. The failure to prescribe
IV antibiotics once osteomyelitis was diagnosed
was at most negligent, as was the failure to
diagnose it earlier.
The allegation that a nurse purposefully
refused to provide the plaintiff prescribed pain
medication, accusing him of wanting to get high,
stated a deliberate indifference claim. The court
notes that he had an injury likely to cause
considerable pain and his doctor prescribed
medication for it. The same analysis applies to a
doctor who refused to give the prescribed
medication. Whether these defendants had a goodfaith belief that the plaintiff was malingering and
trying to get high presents a jury question.
Pro Se Litigation/PLRA--In Forma Pauperis
Provisions--Screening and DismissallPleading
Grayson v. Mayview State Hospital, 293
F.3d 103 (3d Cir. 2002). The PLRA does not
change the rule allowing amendment of deficient
complaints before they are dismissed. The court
reviews the case law at length and explains why it
rejects the Sixth Circuit's rule that forbids
amendments to avoid dismissal in cases governed
bythePLRA.
Government Benefits/Procedural Due Process-PropertylNon-Constitutional Rights/Access to
Courts--Punishment and Retaliation
Higgins v. Beyer, 293 F.3d 683 (3d Cir.
2002). The plaintiff was sent a check for $7,608 in
Veterans Administration disability benefits, and
prison officials deducted $1,000 of it to pay a fine
he owed, notwithstanding 38 U.S.C. § 5301(a),
which says that such benefits are exempt from the
claims of creditors and not liable to attachment,
levy, or seizure under any circumstances.
§ 5301(a) creates a right enforceable under
§ 1983, since it meets the standard of Blessing v.
Freestone that Congress must have intended that
the provision benefit the plaintiff, the right asserted

must not be so "vague and amorphous" as to strain
judicial competence, and the statute must
unambiguously impose a binding obligation on the
states. The court rejects a prisoner exception to the
statute on the ground that Congress knows how to
make exceptions, and didn't.
The federal statute pre-empts the New
Jersey Criminal Injuries Compensation Act
authorizing seizure of prisoners' funds for the
benefit of crime victims. The Victims of Crime
Compensation Board is a creditor under the federal
statute.
Since prisoners have a property interest in
funds in their accounts, and the seizure of funds
was done pursuant to state policy, the plaintiff was
entitled under Zinermon v. Burch to predeprivation
notice and hearing.
At 694: "A person may state an
independent cause of action for retaliation for the
exercise of his or her right of access to the courts,
regardless of whether the allegations of a
deprivation of federal statutory or constitutional
rights are meritorious."
PLRA--Mental or Emotional Injury
Malik v. McGinnis, 293 F.3d 559 (2d Cir.
2002). Applicability of the exception from the
PLRA three strikes provision for cases in which
"the prisoner is under imminent danger of serious
physical injury" is assessed as of the time the
complaint is filed.
Appointment of CounsellMedical Care-Standards of Liability--Deliberate Indifference,
Serious Medical NeedslDenial of Ordered
Care/Medical Records/Color of Law/Pleading
Montgomery v. Pintchak, 294 F.3d 492 (3d
Cir. 2002). The plaintiff appeals in a complex
medical care case in which the defendants include
Correctional Medical Services, Inc.
The plaintiffs assertion that defendants
violated his rights "with deliberate indifference"
was sufficient to plead a deliberate indifference
claim under "the more lenient standard that district
courts are required to apply to pro se submissions."
(500)
The plaintiffs complaint about treatment
for HIV and a cardiac condition sufficiently
demonstrated a serious medical need, since the
9

conditions can be life-threatening if not properly
treated.
The mere loss of medical records is not
deliberate indifference. However, the plaintiffs
assertion that for nine months the defendants
refused to provide him with treatment prescribed
before the records disappeared, despite his repeated
requests for care; that they refused to recreate his
medical records and then falsified material when
they finally did start to recreate them, supported a
deliberate indifference claim, as did the ten-month
failure to perform a prescribed cardiac
catheterization or to provide prescribed
medication.
The district court is held to have abused its
discretion under this court's Tabron v. Grace
standard in refusing to appoint counsel for the
plaintiff, given that he presents a clear prima facie
case with more than an "extremely slim" chance of
success on the merits. The court cites the
plaintiffs inexperience as a jailhouse lawyer, his
inability to take depositions in prison, defendants'
resistance to discovery, and the complexity of
factual and legal issues, and the need for expert
testimony.
Protection from Inmate AssaultlDiscovery
Peate v. McCann, 294 F.3d 879 (7th Cir.
2002). The plaintiff was attacked twice by the
same prisoner and alleged that the second assault
resulted from deliberate indifference by prison
staff.
The plaintiffs allegation that after the first
assault, an officer gave the assailant his weapon (a
bag of bricks) back and then stood by and watched
the beating, sufficiently alleged deliberate
indifference to defeat summary judgment. Actual
knowledge of the risk of the second assault was
provided by the first assault.
Protection from Inmate Assault/State Officials
and Agencies/Municipalities
Cortez v. County ofLos Angeles, 294 F.3d
1186 (9th Cir. 2002). The decedent was beaten to
death by five ofhis cellmates; he was a former
gang member who had disavowed his membership
before incarceration. His survivors alleged that he
and they had notified the Sheriff of the danger from
gang members but they left him in the same cell.
10

A California sheriff is an official of the
county, not the state, for purposes of implementing
security procedures for the county jail.
Medical Care--Standards of Liability-Deliberate Indifference/Appeal/Color of Law
Burke v. North Dakota Dept. ofCorrections
and Rehabilitation, 294 F.3d 1043 (8th Cir. 2002).
The plaintiff alleged failure to treat him for
Hepatitis C. His complaint should not have been
dismissed. He "alleged that he was denied
treatment entirely; that NDDCR's medical director
(whom he sought to add as a defendant in his
amended complaint) prevented him from being
seen by doctors; and that she was using her
position to block his treatment because of his prior
lawsuits against her." (1044) He also stated a
claim against Medcenter One, the prisons' medical
services contractor: "he alleged that its hepatitis C
treatment protocol and its doctors' complicity with
the actions ofNDDCR's medical director were
damaging his health in violation of his Eighth
Amendment rights." (1044)
PLRA--Mental or Emotional Injury/Procedural,
Jurisdictional and Litigation Questions
Mitchell v. Brown & Williamson Tobacco
Corp., 294 F.3d 1309 (11th Cir. 2002). The
plaintiff sued five tobacco companies in Alabama
state court and the defendants removed to federal
court based on diversity of citizenship. The district
court erred in dismissing under the
mental/emotional injury provision.
The plaintiff argued that § 1997e(e) does
not apply to actions that were removed from state
court. At 1315: "We agree, insofar as the action
filed in state court by Mitchell solely alleged statelaw claims unrelated to prison conditions. This
matter is in federal court because the defendants
exercised their right to remove Mitchell's state-law
claims based on the district court's diversity
jurisdiction." The court cites the statutory term
"brought" as requiring an assessment of the case at
the time it was filed. "Applying this interpretation
of the term 'brought' to the matter sub judice, §
1997e(e) has no application to Mitchell's case,
which was clearly not a federal civil action when it
was brought--it was filed in state court and based
solely on state law." This all leaves it completely

unclear whether a state court case raising federal
claims would be a "federal civil action" governed
by § 1997e(e), or would become one if removed.
PLRA--In Forma Pauperis Provisions-Applicability
United States v. Campbell, 294 F.3d 824
(7th Cir. 2002). A criminal defendant moved for
disclosure of matters before a grand jury. The
court holds that such a motion under Rule 6(e) is
civil, and thus governed by the PLRA's filing fee
prOVISIOns.
DisabledlDrug Dependency Treatment
Thompson v. Davis, 295 F.3d 890 (9th Cir.
2002). The plaintiffs alleged that the defendant
parole authorities have an unwritten policy of
automatically denying parole to prisoners with
substance abuse histories. The court previously
held that this claim is not barred by the Heck v.
Humphrey rule.
Drug addiction that substantially limits a
major life activity is a recognized disability under
the ADA. Persons currently engaging in the illegal
use of drugs are not protected by the ADA, but the
statute protects persons who have successfully
completed or are participating in a supervised drug
rehabilitation program and are no longer using
illegal drugs. Persons who are statutorily eligible
for parole have sufficiently pled that they are
"otherwise qualified for the public benefit they
seek, consideration for parole." (896)
The district court erred in holding that the
Americans with Disabilities Act "does not apply to
the substantive decision making process in the
criminal law context." At 897: "Although the
power to fashion and enforce criminal laws is
reserved primarily to the States, many functions
traditionally reserved to the states are subject to the
ADA, including quarantine laws and, significantly,
prison administration." There is no per se rule
exempting substantive decision-making from ADA
scrutiny. Case law and the EEOC guidelines
prohibit policies resulting in discriminatory arrests
or abuse of disabled people.
Moreover, state powers to determine parole
release are "already curtailed by federal antidiscrimination guarantees. For example, ... race is
an impermissible criterion in the parole decision-

making process." (897) At 898: "... [S]ince a
parole board may not categorically exclude
African-Americans from consideration for parole
because of their race, and since Congress thinks
that discriminating against a disabled person is like
discriminating against an African-American, the
parole board may not categorically exclude a class
of disabled people from consideration for parole
because of their disabilities."
In addition, state parole boards fall squarely
within the statutory definition of "public entity."
The court does not address Younger v.
Harris abstention and its systemic offspring
O'Shea v. Littleton.
PLRA--Prospective Relief ProvisionsIPLRA-Judgment TerminationlDental Care/Mental
Health Care/Medical Care--Staffing/
Psychotropic Medications/Suicide
Prevention/ContemptlUse of Force/Chemical
AgentslDiscovery/Women
Hallett v. Morgan, 296 F.3d 732 (9th
Cir.2002), superseding 287 F.3d 1193 (9th Cir.
2002). Plaintiffs at a women's prison moved to
extend the term of a consent decree and for
contempt. The defendants moved to terminate the
decree. The district court denied the plaintiffs'
motions and granted the defendants'.
At 742-43: A motion to extend the duration
of a consent decree is a request for prospective
relief under the PLRA. Even though an extension
calls for no "new remedy," the statute says that
anything other than money damages is prospective
relief. Cases in which plaintiffs seek only to
enforce substantive terms of a decree are
distinguishable.
PLRA--In Forma Pauperis Provisions-Applicability
Agyeman v. Immigration and
Naturalization Service, 296 F.3d 871 (9th Cir.
2002). At 885-86: The PLRA filing fee provisons
do not apply to alien detainees as long as they do
not also face criminal charges, because they are not
"prisoners" under the PLRA; deportation
proceedings are civil rather than criminal in nature.
Correspondence--Non-LegallDeference
Duamutefv. Hollins, 297 F.3d 108 (2d Cir.
11

2002). The plaintiff alleged that a "mail watch"
was placed on his mail after he received a book
titled Blood in the Streets (subtitled Investment
Profits in a World Gone Mad). The plaintiff has a
history of disciplinary problems and involvement
in "prohibited organizational activities." The mail
watch entailed "stopping, opening, and reading all
non-privileged correspondence" for 30 days; the
court doesn't say exactly what this means, i.e.,
whether his mail was delayed, whether he got all
his mail after 30 days or not, etc.
The court cites the "heightened deference"
due in prison cases and concludes that defendants'
actions were reasonably related to legitimate
penological interests under the Turner standard in
light of the "background facts" about the plaintiff.
Even if a more thorough examination of the book
would have shown it innocuous, "we find that it is
generally sufficient for a prison official to base a
security decision on the title alone." (113) The
court doesn't discuss the fact that there is almost no
constitutional protection of the confidentiality of
non-legal mail anyway.
Federal Officials and Prisons/Media/Deference
Wolfv. Ashcroft, 297 F.3d 305 (3d Cir.
2002). A federal prison policy prevents prisoners
from viewing movies rated R or NC-17, in order to
implement the Zimmer Amendment, which
prevents the expenditure of funds for viewing such
movies. The district court correctly held that the
Turner standard is applicable, but did so in too
cursory a fashion. It "never stated or described the
interest purportedly served by the prison policy,
nor did it determine whether the interest was
neutral and legitimate" (308); the appeals court
can't tell which of several rationales the court
accepted, or how any of them are rationally
connected to the restriction at issue. At 308: "We
have noted that the party defending the policy
should 'demonstrate' that the policy's drafters 'could
rationally have seen a connection' between the
policy and the interests, and that this burden,
though slight, must 'amount[] to more than a
conclusory assertion. Part of the Turner inquiry
is determining whether that requirement is met. Id.
at n.2: "We do not reach the issue pressed by the
government in its brief as to how the 'reasonable
relationship' aspect compares to the 'rational basis'
III

12

test for equal protection, nor do we see the need to
elaborate on the nature of the government's burden,
as our statement in Waterman that it must
'demonstrate' the necessary relationship should
suffice."
The district court didn't bother with an
evidentiary record, believing that the Third Circuit
has endorsed a "common sense" approach to the
Turner standard; the prisoners argued that evidence
must be presented. At 308-09:
We eschew both categorical
approaches and hold, instead, that
while the connection may be a
matter of common sense in certain
instances, such that a ruling on this
issue based only on the pleadings
may be appropriate, there may be
situations in which the connection is
not so apparent and does require
factual development. Whether the
requisite connection may be found
solely on the basis of "common
sense" will depend on the nature of
the right, the nature of the interest
asserted, the nature of the
prohibition, and the obviousness of
its connection to the proffered
interest. The showing required will
vary depending on how close the
court perceives the connection to
be.
Here the connection between barring R-rated
movies in jail and reducing crime is not so clear, so
the court must address the valid, rational
connection on remand. The district court also
failed to evaluate the other three Turner factors,
and it must do so even though the "valid, rational
connection" factor is "foremost" in the sense that
without it the challenged restriction fails. At 309:
As to the need for a
foundation for these three prongs, it
is worth noting that we have
historically viewed these inquiries
as being fact-intensive.... If the
District Court concludes that the
Turner analysis cannot be
undertaken on an undeveloped
record, then the Court should treat
the matter as on summary judgment,

and rule only after
considering the factual basis
developed by affidavits or
depositions.

PLRA--Exhaustion of Administrative Remedies
Strong v. David, 297 F.3d 646 (7th Cir.
2002). The plaintiffs complaint was erroneously
dismissed for non-exhaustion. Normally dismissal
without prejudice is not final and therefore not
appealable, but this plaintiff had no more remedies
to exhaust, so his dismissal was final.
The degree of specificity required in a
grievance depends on what the grievance rules
require, under Pozo v. McCaughtry. At 649:
It is up to the administrators to
determine what is necessary to
handle grievances effectively.
Systems with more money to hire
investigators will require less of
prisoners than do resource-starved
systems that are strapped to handle
even those claims made with
particularity. The only constraint is
that no prison system may establish
a requirement inconsistent with the
federal policy underlying § 1983
and § 1997e(a).... Thus, for
example, no administrative system
may demand that the prisoner
specify each remedy later sought in
litigation--for Booth v. Churner ...
holds that § 1997e(a) requires each
prisoner to exhaust a process and
not a remedy. No comparable
doctrine prevents a prison system
from requiring factual particularity
in an internal grievance.
... When the administrative
rulebook is silent, a grievance
suffices if it alerts the prison to the
nature of the wrong for which
redress is sought. As in a noticepleading system, the grievant need
not layout the facts, articulate legal
theories, or demand particular relief.
All the grievance need do is object
intelligibly to some asserted
shortcoming. Strong's two

grievances were comprehensible
and contained everything that
Illinois instructed him to include.
Defendants can't complain that he
failed to do more....
At 650: The court questions whether the
plaintiff has a good claim against supervisory
defendants. "But ours is a system of notice
pleading, and Strong may be able to show that he
has a real claim against someone other than David.
Given what we said above it should not be
necessary to add--though we add it anyway--that
Strong's entitlement to do this is not limited to or
by the contents of his intraprison grievances." In
other words, they don't buy the Sixth Circuit's
position that exhaustion must be done as to each
defendant.

Use of Force--Chemical AgentslDamages-Assault and Injury/Personal Involvement and
Supervisory LiabilitylDiscovery/Sanctions/
PLRA-Attorneys' Fees
Lawrence v. Bowersox, 297 F.3d 727 (8th
Cir. 2002). After a riot, search teams went around
the prison. When they got to the two plaintiffs'
cell, an officer called out, "Niggers get naked," and
one plaintiff asked, "What did you say?" The
officer called for a movement team, and when it
arrived another officer immediately sprayed the
two plaintiffs (cellmates) with pepper spray,
soaking them and the entire interior of the cell.
After ten minutes or so they got a shower.
A prior decision holding that a one-second
burst from a small can of pepper spray amounted to
de minimis injury did not mean that all applications
of pepper spray result in de minimis injury. There,
the prisoner refused direct orders, became
threatening, was not confined to his cell and was
much larger than the staff member. Here, the
plaintiffs were confined to their cell and did not
disobey orders, and they were soaked from a large
container resembling a fire extinguisher. The jury
was not bound in assessing their injuries by the
testimony and records of the nurse who treated
them; that is a credibility judgment.
A jury awarded nominal damages of$1.00
each and punitive damages totaling $10,000. It
found that the officer who sprayed the gas used
excessive force, but did not find him liable;
13

liability was found against the officer who made
the racial comment and called for the movement
team. These findings are entirely consistent; the
officer who sprayed said he arrived at the cell with
no knowledge of what had happened, and the jury
could have concluded that he was following the
other officer's orders. At 733: "Orchestrating an
unnecessary pepper spray shower violated clearly
established rights of which a reasonable person
should have known."
An award of nominal damages does not
mean that injury was de minimis as a matter of law.
The district court awarded $8,125 in
attorneys' fees and $587.19 in expenses for failing
to produce the original videotape of the incident
and giving conflicting stories about which staff
members were involved in the incident. It did not
abuse its discretion. Defendants gave assurances
that they would produce an original videotape, but
never did, producing only tapes that had been
"conveniently edited." Then they found 14
videotapes and, rather than determining which was
the original, simply handed them over to plaintiffs
to do the work (which showed the original did not
exist). Their claim they couldn't determine who
was present because of bad memories ignored that
they could have looked at the videotapes or
conducted their own investigation. Providing a
long list of those who might have been involved
violated the letter and spirit of Rule 26(a)(l). The
award was appropriate for prison officials who
"were playing 'hide the ball'" (734)--in fact,the
court was generous in not striking their pleadings
and entering a default judgment.
The court notes (734 n.2) "a disturbing
tendency ... to 'misplace' videotapes of prison
incidents," citing three instances in five years as
"more than mere coincidence. Perhaps it is time to
remind" the DOC of provisions for striking
pleadings and entering default judgments against
parties who violate the discovery rules.
PLRA--Exhaustion of Administrative Remedies
Ahmed v. Dragovich, 297 F.3d 301 (3d Cir.
2002). A dismissal for non-exhaustion was a final
and appealable order because the statute of
limitations had expired, so the prisoner's failure to
appeal within 30 days left the appeals court without
jurisdiction.
14

A plaintiff who filed a grievance appeal
five months later and sued before completing the
grievance process did not substantially comply
with the exhaustion requirement.
Released prisoners need not exhaust.
PLRA--In Forma Pauperis Provisions--Three
Strikes Provision
Robinson v. Powell, 297 F.3d 540 (7th Cir.
2002). Plaintiff got his third strike in the district
court, which, contrary to the literal language of the
three strikes provision, granted him IFP status on
appeal. At 541 :
That authorization was
contrary to the language of the
statute. Three strikes and you're out.
Two of our sister circuits, however,
have refused to apply the statute
literally, on the ground that to do
that in a case such as this would
prevent the prisoner (ifhe couldn't
pay the fees required of litigants
who are not permitted to proceed in
forma pauperis) from obtaining
appellate review of the correctness
of the ruling by the district court
that resulted in his getting his third
strike. Adepegba v. Hammons, 103
F.3d 383,387 (5th Cir.1996);
Jennings v. Natrona County
Detention Center Medical Facility,
175 F.3d 775, 779-80 (lOth
Cir.l999). The concern expressed
by those courts is legitimate, but it
does not require twisting the statute
and allowing a fourth strike.
Robinson had a perfectly good
remedy, which was to ask us for
leave to proceed in forma pauperis.
Fed. R.App. P. 24(a)(5); ...
Consideration of his motion would
require us to decide whether indeed
he had three strikes, in which event
the Rule 24(a)(5) motion would
have to be denied, while if we
thought the district court might have
erred in dismissing Robinson's
complaint for failure to state a claim
we would permit him to proceed in

forma pauperis. This
procedure is in conformity
with the statute; that of our
two sister circuits is not and
has the anomalous result of
allowing a prisoner to file,
without payment, a frivolous
appeal from his third strike.
Robinson did not follow the
prescribed procedure, and therefore
his appeal is dismissed unless
within 14 days of the date of this
decision he shall pay the appellate
fees in full.

Use of Force--Chemical AgentslMedical Care-Standards of Liability--Serious Medical Needs,
Deliberate IndifferencelNegligence, Deliberate
Indifference, and Intent/Qualified Immunity
Clement v. Gomez, 298 F.3d 898 (9th Cir.
2002). An officer administered two 2-5 second
applications of pepper spray against two prisoners
who were fighting in their cell and refused to stop;
they were removed and attended to shortly
afterward. The officers said that the initial
application was blocked by the bodies of the
fighting inmates, necessitating a second one.
Inmates in neighboring cells complained that
pepper spray vapors drifted into their windowless
cells; at least two suffered asthma attacks or
difficulty in breathing, others began coughing and
gagging. The officers opened the yard door and
placed a fan in the doorway and left the ventilation
system on, but those actions did not solve the
problem and may have made it worse. The
bystander inmates did not get removed from their
cells for showers for four hours.
The record described does not support a
finding of force used maliciously and sadistically,
even if one credits the allegation of neighboring
inmates that the final spray was dispensed after
coughing and gagging were heard from the cell.
The bystanding prisoners had a serious
medical need, since the effects of pepper spray
were painful and a serious medical need is present
whenever there is the unnecessary and wanton
infliction of pain (904). There is a factual issue as
to deliberate indifference in the staffs four-hour
delay in getting the prisoners out of their cells for

showers and medical attention. Evidence of actual
knowledge on their part includes that they took
turns stepping outside for fresh air, prisoners were
heard coughing and gagging in the hall, they made
repeated requests to the staff for medical attention,
and the officers opened the door and put a fan in
the doorway. ill addition, the prisoners allege that
the supervisory defendants did not have adequate
policies for minimizing the effects of pepper spray
on bystanders; the court says they must meet the
Canton v. Harris deliberate indifference standard
without commenting on how that standard differs
from the Eighth Amendment subjective deliberate
indifference standard. Plaintiffs cited numerous
prior instances of pepper spray use that harmed
bystanders; a factfinder could conclude that the
defendants were on "'actual or constructive notice'
of the need to train." (905)
The defendants are not entitled to qualified
immunity because the general law of prison
medical care was clearly established, as was the
rule that officers cannot intentionally delay or deny
access to it. At 906: "Specificity only requires that
the unlawfulness be apparent under preexisting
law."

Rehabilitation/Res Judicata and Collateral
Estoppel/Habeas Corpus/Ex Post Facto
Laws/Procedural Due Process
Reed v. McKune, 298 F.3d 946 (10th Cir.
2002). The plaintiff complained of being ordered
to participate in a Sexual Abuse Treatment
Program (SATP), which requires disclosure of
sexual history including uncharged offenses
without guarantees of confidentiality, as well as
polygraph and penile plethysmograph testing.
When he refused, he was transferred to maximum
security and lost numerous privileges.
The plaintiffs self-incrimination claim is
barred by the intervening Supreme Court decision
in Life v. McKune. Although there is no majority
opinion in that decision, the plaintiffs situation is
close enough to the Life plaintiffs that he cannot
show a constitutional violation.
The plaintiffs claim for denial ofparole is
not precluded because the denials had not
happened at the time of his state court adjudication.
Since he is challenging the fact of his
imprisonment, under Heck and Balisok he must get
15

the denials set aside in a state proceeding or via
habeas corpus before he can bring a § 1983 action
about them. His injunctive claim seeking to
correct unlawful procedures is not barred by
Heck/Balisok. The court thinks he has a viable due
process theory based on the interest in
"participating in a state's parole program,"
overlooking the holding in Greenholtz. He also
might have an Ex Post Facto Clause claim because
his crime antedates the parole provisions relied on.
However, since the parole board relied in part on
the seriousness of his offense, he can't show that he
was denied parole based on the new parole
standard.

Federal Officials and PrisonsIPLRA-Exhaustion of Administrative
Remedies/Statutes of Limitations
Clifford v. Gibbs, 298 F.3d 328 (5th Cir.
2002). The plaintiff's claim was previously
dismissed for nonexhaustion; the case was
remanded after prior appeal without reference to
exhaustion; but that doesn't mean it was law of the
case that he had satisfied the exhaustion
requirement, since the appeals court did not
actually pass on the question.
The exhaustion requirement applies to the
plaintiffs failure to protect claim. The holding in
McCarthy v. Madigan that exhaustion is not
required when it would cause "undue prejudice to
subsequent assertion of a court action" is no longer
good law, being cast into doubt by the PLRA text.
At 332: "Moreover, to the extent that the McCarthy
exception had any application in § 1997e cases
prior to its 1995 amendment, the Supreme Court's
interpretation of § 1997e's new language in Booth
v. Churner and Porter v. Nussle unambiguously
forecloses application of such exceptions under the
current statutory scheme. "
When the district court dismissed without
prejudice for non-exhaustion, the statute of
limitations had run, so the dismissal functioned as
a dismissal with prejudice. The court holds that
the limitations period should be equitably tolled
during the pendency of this action and during any
additional state administrative proceedings. The
court analogizes to Wright v. Hollingsworth but
does not otherwise explain its action or when
equitable tolling is appropriate. (332-33)
16

Visiting-Conditions/Homosexuals and
Transsexuals/StandinglDeference
Whitmire v. State ofArizona, 298 F.3d
1134 (9th Cir. 2002). The plaintiff and a visitor
challenged a rule forbidding same-sex "kissing,
embracing (with the exception of relatives or
immediate family) or petting" at visits. At 1136
n.2: The visitor has standing.
The district court dismissed under the
Turner standard without a factual record. At 1136:
A dismissal on the pleadings,
without requiring any evidence
corroborating that a rational
connection exists between the
visitation policy and correctional
safety, is appropriate only when a
cornmon-sense connection exists
between the prison regulation and
the asserted, legitimate
governmental interest. . .. Here, the
ADOC asserts that its visitation
policy protects inmates from being
labeled as homosexuals and from
being targeted for physical, sexual,
or verbal abuse on account of such
labeling. The ADOC's visitation
policy, however, does not possess a
cornmon-sense connection to the
concern against homosexual
labeling; thus, the district court
erred when it upheld the ADOC
policy without requiring any
corroboration.
Cornmon sense indicates
that an inmate who intends to hide
his homosexual sexual orientation
from other inmates would not
openly display affection with his
homosexual partner during a prison
visit. ...
The court cites Turner and then continues "[u]nder
rational basis review, ..." (1136), without stating
whether it means to equate the Turner reasonable
relationship test with the equal protection rational
basis test.
Communication with MedialDeference
California First Amendment Coalition v.
Woo4ford, 299 F.3d 868 (9th Cir. 2002). A policy

restricting the public and the press from viewing
the entirety of executions by lethal injection at San
Quentin is "an exaggerated, umeasonable response
to prison officials' legitimate concerns about the
safety of prison staff and thereby unconstitutionally
restricts the public's First Amendment right to view
executions from the moment the condemned is
escorted into the execution chamber." (870-71)
Rehabilitation/Religion/Procedural Due
Process--Property
Searcy v. Simmons, 299 F.3d 1220 (lOth
Cir. 2002). The plaintiff, who pleaded nolo
contendere to sexual exploitation of a child, was
assigned to a Sexual Abuse Treatment Program,
and signed a statement that the program was
optional but failure to participate or complete it
would result in withholding of good time credits.
The program required that he sign an "Admission
of Responsibility" form, listing all past behavior,
charged or uncharged, that might have been a sex
offense. It also requires submission to videotaped
polygraph and penile plethysmograph
examinations. The plaintiff refused to complete
the form and hence was not allowed to participate
in the program.
The plaintiffs allegation that penalizing
refusal to participate in the program violates the
Fifth Amendment right of self-incrimination is not
foreclosed by the Supreme Court's decision in Life
v. McKune; there, length of incarceration was not
an issue, but this plaintiff is subject to a regulation
withholding good time for refusal to participate in
assigned programs. However, the result is the
same: the loss of opportunity to earn good time "is
not a new penalty, but only the withholding of a
benefit that the KDOC is under no obligation to
give." (1226) Id.: "Mr. Searcy's lost privileges and
lost opportunity to earn future good time credits are
quite simply not the result of his refusal to
incriminate himself, but are a consequence of his
inability to complete rehabilitation the KDOC has
determined--in light of the serious offense for
which Mr. Searcy was convicted--is in the best
interest for Mr. Searcy and society."
The plaintiff asserted that the Admission of
Responsibility requirement violated his religion
because it would require him to lie, and he is
innocent. The claim fails because the court refuses

to treat the loss of opportunity to earn good time as
compulsion, and because the requirement is
generally applicable to all inmates in the program
and not directed at any particular religion or
religious belief (citing Employment Div. v. Smith).
In any case, the requirement passes muster under
the Turner standard. The interest in rehabilitating
sex offenders is valid, and the requirement of
admission of responsibility is a legitimate part of
the process. The plaintiff has an easy alternative
for exercising his rights (don't join the program,
which is voluntary), and accommodating him
would undermine a basic premise of the entire
program.
Sending the plaintiffs property (items he
was no longer allowed to have because of his noncooperation with the program) to his relatives did
not deny due process. Since he still retained
formal ownership of it, "the requirements of
procedural due process were met when the prison
authorities provided him the opportunity to dictate
where to send the property." (1229) Sending the
property to his relatives when he refused to give
any other instruction was proper.
Telephones
United States v. Friedman, 300 F.3d 111
(2d Cir. 2002). The criminal defendants were
convicted based in part on recordings of their
telephone calls from jail. Title III of the Omnibus
Crime Control and Safe Streets Act of 1968
generally forbids telephone surveillance without a
warrant, but has exceptions for instances where one
party has consented and for telephones used by "an
investigative or law enforcement officer in the
ordinary course of his duties." Consent may be
express or implied, and implied consent has often
been found based on notice that calls will be
listened to. The telephones in the jail cells did not
have signs indicating that calls made over them
might be recorded; however, the booking area
telephones had signs saying that calls to attorneys
made over them would not be monitored or
recorded.
The district court had found "a reasonable
person could understand" that the booking area
telephone signs meant that calls from other
telephones might be recorded, but that was not
sufficient notice to create implied consent. fustead,
17

it relied on the "ordinary course" exception,
holding that notice was not required. The appeals
court says that no circuit has ever applied the
"ordinary course" exception in a situation where at
least one participant had not received some notice
of the possibility that the conversation would be
recorded. However, it holds that "notice sufficient
to support a finding of implied consent: .. is not
required ... for a recording to fall within the
'ordinary course' exception." The notice the
defendants got in this case is sufficient to support
application of that exception. "Some notice" that
calls may be monitored is all that is required where
the monitoring practice is related to jail security.
Procedural Due Process--Administrative
Segregation/Punitive SegregationlRecreation
and Exercise
Rahman Xv. Morgan, 300 F.3d 970 (8th
Cir. 2002). The plaintiff, sentenced to death, asked
to be placed in a segregation cell. Independently,
prison officials decided to place him in a
segregation cell for security reasons. He didn't like
the cell he was placed in and complained about it,
but was kept there for some 15 months.
Placement in the segregation cell did not
deny equal protection, since the plaintiffs prior
violent assaults and attempts to break out of his
cell provided a rational basis for placing him in a
more secure location. Nor did it deny due process,
since it was not "atypical and significant hardship."
At 973-74:
Although the length of time he was
kept in a segregation cell was
substantial, he was not subject to
the hardships that prisoners placed
in that ward for punitive reasons
face. For example, he was allowed
out of his cell for recreation for
three hours per week, the same
amount of time that prisoners
housed in death-row cells were
allowed, whereas this privilege was
not available to prisoners on
punitive status. The main hardship
that Mr. X seems to identify that he
suffered that inmates housed on
death-row did not was an inability
to watch television in his cell. This
18

is not a significant hardship, even
combined with the other minor
deprivations Mr. X alleges.
The plaintiff also received sufficient process. He
said he didn't get notice, but he knew enough to
request a hearing, and at the hearing he was
allowed to make a statement and be heard, and his
assignment was reconsidered every 60 days at a
hearing where he was allowed to address the
committee. The court cites no authority for its
view that this process was sufficient.
The plaintiff was not allowed to go outside
and exercise for three months, but he was
permitted to use a dayroom with exercise
equipment three days a week during this time,
which meets Eighth Amendment standards.
Pre-Trial Detainees/Protection from Inmate
Assault/Pleading
Calderon-Ortiz v. Laboy-Alvarado, 300
F.3d 60 (lst Cir. 2002). The plaintiffwas held as a
detainee in a state prison, which did not take
measures to separate and house inmates according
to their safety needs and the security risks they
posed. No officer patrolled in the housing area.
Several inmates approached the plaintiff, threw a
blanket over his head, and sexually assaulted him.
The district court erred in applying the
"deliberate intention" standard of Daniels v.
Williams; the deliberate indifference standard of
Farmer v. Brennan applies.
The plaintiffs allegations state sufficient
facts from which deliberate indifference could be
inferred and therefore survive even if a heightened
pleading standard is applied (a question the court
does not address). Knowledge "may be averred
generally" under Rule 9(b), Fed.R.Civ.P. At 65:
"The knowledge required is not knowledge that a
specific harm would befall the inmate, ... but
rather, knowledge of facts from which the official
can draw the inference that a substantial risk of
serious harm exists." Allegations that the
defendants knew about disregard of custody and
security needs, that that practice is unreasonably
dangerous, that custodial staff do not provide direct
supervision to prisoners, were sufficient.
Allegations that these practices were unreasonably
dangerous were sufficient.

Habeas Corpus
Dotson v. Wilkinson, 300 F.3d 661 (6th Cir.
2002). The plaintiff challenged the retroactive
application of new parole eligibility regulations
under the Ex Post Facto Clause. That claim is not
barred by Heck and Balisok since a challenge to
eligibility rules does not "necessarily imply" the
invalidity of conviction or sentence; a
determination of the claim will have no immediate
effect on his sentence. At 666: "Therefore, our
unpublished decisions notwithstanding, we now
join our sister circuits and hold that when a
prisoner challenges his parole eligibility, and the
challenge does not necessarily affect the duration
of his confinement, the suit is cognizable under §
1983."
PLRA--Exhaustion of Administrative Remedies
Lewis v. Washington, 300 F.3d 829 (7th
Cir. 2002). The plaintiff alleged assault by another
prisoner and the defendants moved to dismiss for
non-exhaustion. At 833:
Lewis first argues that he
was not required to exhaust
administrative remedies because the
prison officials' failure to respond to
many of his grievances and requests
rendered those remedies
unavailable. Lewis must exhaust
only those administrative remedies
that are available to him. . .. The
Eighth and Fifth Circuits have
deemed administrative remedies
exhausted when prison officials fail
to respond to inmate grievances
because those remedies had become
"unavailable." . .. Both circuits
based their holdings on the plain
meaning of "available." ... Wejoin
the Eighth and Fifth circuits on this
issue because we refuse to interpret
the PLRA "so narrowly as to ...
permit [prison officials] to exploit
the exhaustion requirement through
indefinite delay in responding to
grievances. "
However, the plaintiff was obliged to appeal the
grievance that officials did respond to. (He did
appeal, but late, because he was waiting for

responses to other requests that never arrived.)
Some courts apply a "substantial
compliance" rule to exhaustion for claims that
arose before enactment of the PLRA. The court
declines to extend that rule to cases where prison
officials did not respond to grievances. The court
also declines to hold the defendants estopped from
raising exhaustion because equitable estoppel
requires a party to show "(1) a misrepresentation
by the opposing party; (2) reasonable reliance on
that misrepresentation; and (3) detriment. ...," as
well as some affirmative misconduct rather than
just omission (834).

Federal Officials and Prisons/Telephones/
Consent Judgments/PLRA-Exhaustion of
Administrative Remedies
Smith v. Federal Bureau o/Prisons, 300
F.3d 721 (6th Cir. 2002). The plaintiff filed suit to
enforce the settlement agreement in the telephone
litigation against the Federal Bureau of Prisons.
He followed the exhaustion requirement of the
settlement agreement but his claim is still
dismissed for non-exhaustion because the PLRA
exhaustion requirement now governs and requires
exhaustion of all available remedies.
The Sixth Circuit reiterates its unique rules
for exhaustion (at 723):
To demonstrate exhaustion
of administrative remedies, the
prisoner should attach the decision
containing the administrative
disposition of the grievance to the
complaint, or in the absence of
written documentation, describe
with specificity the administrative
proceeding and its outcome....
When a prisoner fails to exhaust
administrative remedies before
filing a civil rights complaint in
federal court, or only partially
exhausts administrative remedies,
dismissal of the complaint is
appropriate.
Consent Judgments/Contempt/Personal
Property
Floyd v. Ortiz, 300 F.3d 1223 (lOth Cir.
2002). A settlement of a challenge to prison
19

officials' keeping prisoners' money in non-interestbearing accounts and taking proceeds from the
prisoner canteen program for the state treasury has
"all the attributes of a consent decree" and was
"incorporated as an order ofthe court" per the
docket sheet, though there was no separate
judgment entered and no formal dismissal. An
amended agreement was later adopted and
"incorporated as an order of the court." Though
the action was never certified as a class action,
there was consensus that the settlement "would
benefit, and be enforceable by, all DOC inmates,
not just the named plaintiffs. "
A currently incarcerated prisoner had
standing as an intended third-party beneficiary to
enforce the agreement, and the trial court retained
jurisdiction to enforce it.

Searches--Person--Living Quarters
Willis v. Artuz, 301 F.3d 65 (2d Cir. 2002).
The plaintiffs cell was searched without a warrant
at the behest of the police, who were seeking
evidence of an uncharged crime; prison security
was not at issue.
Under Hudson v. Palmer, a prisoner has no
expectation of privacy in prison living quarters.
The court distinguishes its prior decision in u.s. v.
Cohen, which held Hudson inapplicable to a nonsecurity-related search instigated by non-prison
officials, on the ground that Cohen involved a pretrial detainee. At 69:
Unlike the pre-trial detainee
in Cohen, a convicted prisoner's loss
of privacy rights can be justified on
grounds other than institutional
security.... One of the incidents of
confinement for a convict is the loss
of privacy, which serves the
legitimate purpose of retribution as
well as the institutional security
needs of the prison system. We
therefore hold that "society is not
prepared to recognize as legitimate
any subjective expectation of
privacy that a [convict] might have
in his prison cell." Hudson . ..
Protection from Inmate Assault
Case v. Ahitow, 301 F.3d 605 (7th Cir.
20

2002). The plaintiff alleged that he was assaulted
by another prisoner.
The Seventh Circuit continues its habit of
compromising the Farmer v. Brennan Eighth
Amendment standard (at 605) (Posner, J.):
Of course the defendants were not
the actual attackers, but if they
behaved with deliberate indifference
to the plaintiffs safety, meaning that
they knew of a serious danger to
him (really knew--not just should
have known, which would be all
that would be required in a
negligence case) and could easily
have prevented it from materializing
but failed to do so, they are liable.
E.g., Farmer v. Brennan . ..
(In fact, Farmer requires prison officials to "act
reasonably" in response to threats to prisoners'
safety, not just do what is easy.)
This plaintiff was assaulted by another
prisoner who had an extremely violent record and
had given abundant notice that he was out to get
the plaintiff. The plaintiff walked by his assailant's
workplace after leaving the dining room and the
assailant leaped out and beat him with a
broomstick. The plaintiffs theory is that the
assailant was placed in that location to work
without supervision despite his terrible record
because the defendants had it in for the plaintiff
because of his own disciplinary problems and his
having agreed to testify against a guard in a drug
case. There is a triable factual issue even if the
plaintiff can't prove his conspiracy theory. At 607:
"There is evidence that the defendants knew that
Jones posed a serious danger to Case, and they
could have averted the danger either by leaving
Case in segregation (it is common to place
prisoners in segregation for their own protection
...) or by placing the predatory Jones in
segregation or at least by assigning him to work in
a part of the prison not traversed three times a day
by Case."

Protection from Inmate Assault/Qualified
Immunity
Estate ofFord v. Ramirez-Palmer, 301 F.3d
1043 (9th Cir. 2002). The decedent was killed by
his cellmate in a Psychiatic Administrative

Segregation Unit, and his estate sued, arguing that
allowing the two to be double celled was
deliberately indifferent.
The plaintiffs murderer, though he had a
substantial record of violence and was on a list for
transfer to a special unit for "extremely dangerous
inmates," had been double celled before (with the
decedent among others) without problems.
Although the assailant was classified as a
"predator," the decedent was not classified as a
"victim." Under these circumstances, none of the
defendants had actual knowledge that double
ceiling the assailant with the decedent "posed such
a substantial risk of serious harm that doing so
would be constitutionally impermissible." (1053)
Disabled/State Officials and Agencies/Denial of
Ordered Care/Hygiene/Equal Protection
Kiman v. New Hampshire Dept. of
Corrections, 301 F.3d 13 (lst Cir. 2002). The
plaintiff, who has amyotrophic lateral sclerosis
(ALS), alleged that he was deprived of a cane and a
shower chair, handcuffed so as to cause pain, made
to stand in lines and climb stairs though it was
painful to do so, denied a suitable toilet, and
deprived of prescribed medication. The district
court dismissed his ADA suit against the
Department of Corrections on sovereign immunity
grounds.
The court ducks the more general question
whether Title II of the ADA exceeds Congress's
enforcement power under section 5 of the
Fourteenth Amendment. It holds that in this case,
wherethe conduct alleged would violate the
Constitution if proved, it is not necessary to
address the statute's facial constitutionality by
inquiring into Congress's justification for also
addressing conduct that is not unconstitutional.
The statute, as applied, simply provides an
additional remedy for conduct that is clearly within
the reach of the Fourteenth Amendment.
The plaintiff's allegations may also state an
equal protection claim under the Supreme Court's
Village of-Willowbrook v. Olech holding that
singling an individual out for arbitrary and
irrational treatment may deny equal protection even
if the individual is not a member of an identifiable
class.

Pre-Trial Detainees/Telephones/Federal
Officials and Prisons/Attorney
Consultation/Habeas Corpus/Procedural Due
Process
Valdez v. Rosenbaum, 302 F.3d 1039 (9th
Cir.2002). The plaintiff, a federal pre-trial
detainee held in a local jail, was placed in
administrative segregation and lost telephone
access based on a letter from the prosecutor to the
U.S. Marshal, which requested such action because
the plaintiffs superseding indictment named five
new defendants who were not yet in custody and he
might warn them. He was able to telephone no one
but his attorney, and that based on a written
request; however, he was able to visit personally
with his attorney and with family and friends. His
telephone access was restored after four and a half
months.
Alaska law did not give rise to a liberty
interest in telephone use. The relevant statute only
requires "reasonable access" to a telephone, rather
than prescribing an outcome, leaving prison
officials with discretion to determine what
reasonable access means, and accompanying
regulations provide that access may be limited if
there are reasonable grounds to think restrictions
are required to protect the public. (l044 n.3:
Sandin, which rejects this mode of analysis
altogether, does not apply to pre-trial detainees.)
At 1045: "Pretrial detainees have a
substantive due process right against restrictions
that amount to punishment." The defendants'
actions were not punishment, since they were done
for the non-punitive purpose of avoiding tipping
off the plaintiffs co-defendants and thereby
minimizing the risk of injury to the arresting
officers. They were not an exaggerated response,
given the actual risk of notifying plaintiffs coconspirators and the fact that the restriction was
kept only until after three of the co-conspirators
had been arrested and one released on bail, which
mooted the restrictions. As to his First
Amendment claim, the court has stated in dicta
prisoners have a First Amendment right to
telephone access, subject to reasonable security
limitations, but the basis of the right is obscure and
statements of it have been conclusory and
unnecessary to the decisions. The right at issue is
the right to communicate with persons outside
21

prison walls. Use of a telephone provides a means
of exercising this right. Under the Turner standard
the court upholds the restrictions, since they were
reasonably related to a legitimate purpose; the
plaintiffhad other ways of communicating with
persons outside the jail (visits, letters); allowing
him access would have required additional
resources to monitor his calls; and there were no
obvious, easy alternatives. The court does not
explain why it applies the Turner standard in this
pre-trial detainee case.
The plaintiff raised a Sixth Amendment
claim, arguing that the requirement to obtain
permission to call an attorney made it practically
impossible speak with the attorney. The claim
would necessarily imply the invalidity of Valdez's
subsequent conviction, so it is barred by the rule of
Heck v. Humphrey.
Federal Officials and Prisons/Accidents/PreTrial Detainees
Paschal v. United States, 302 F.3d 768 (7th
Cir. 2002). The Inmate Compensation Program is
the exclusive remedy for federal pre-trial detainees,
as well as convicts, who are injured while working.
Protection from Inmate AssaultNerbal Abuse
Blades v. Schuetzle, 302 F.3d 801 (8th Cir.
2002). The plaintiff was assaulted by another
pnsoner.
The fact that the assailant had a violent
record did not mean that releasing him to general
population was deliberate indifference; he was a
life prisoner, meaning prison officials had reason to
believe he had an incentive to behave, and he had
assured the warden he would do so.
The fact that the assailant had made a threat
against the plaintiff did not make defendants'
failure to protect him deliberate indifference.
Defendants had acted reasonably by segregating
the assailant and transferring the plaintiff; the
plaintiff was back only for medical treatment and
officials at the first prison did not know he was
there when they released the assailant. At worst
they were negligent. In any case, the plaintiff had
told them that the assailant posed no risk of harm
against him; this is "a bar to his claim." (804)
Defendants' failure to notify the plaintiff
about a threat to him was not deliberate
22

indifference, since the plaintiff knew about the
threat and repeatedly told them there was no real
danger, and as noted they had taken action
previously as a result of the threat.
Racially derogatory language, unless it is
pervasive or severe enough to amount to racial
harassment, will not by itself violate the Fourteenth
Amendment.
Rights of StafflDisabled/State Officials and
Agencies
Koslow v. Commonwealth ofPa., 302 F.3d
161 (3d Cir. 2002). Pennsylvania waived its
Eleventh Amendment immunity from suit under
the Rehabilitation Act against its Department of
Corrections when it accepted federal money under
the State Criminal Alien Assistance Program.
Habeas Corpus/Searches--Person
Kutzner v. Montgomery County, 303 F.3d
339 (5th Cir. 2002). The plaintiff sued to obtain
the release of biological evidence for DNA testing,
alleging it would be exculpatory as to his criminal
conviction. His suit was, in effect, a challenge to
the validity of his criminal conviction that must be
pursued via habeas corpus. Since he had already
lost a habeas proceeding on the subject, this action
was properly dismissed as a successive habeas
petition. (That is an interesting application of Heck
and Preiser. The Heck rule bars federal suits in
which success would "necessarily imply" the
invalidity of the state judgment on which
confinement is based. However, suits which do
not directly challenge the basis of confinement, but
seek relief that would lead to another proceeding
which might or might not affect the basis of
confinement, are generally not barred. See, e.g.,
Dotson v. Wilkinson, 300 F.3d 661 (6th Cir. 2002)
(holding that a challenge to denial of parole
eligibility, which if successful would entitle the
prisoner only to a parole hearing that could go
either way, is not barred by Heck). The court in
this case does not explain why the existence of a
further contingency between success in obtaining
evidence for DNA testing and the ultimate
invalidation of his conviction does not insulate this
claim from dismissal under Heck.)
PLRA--In Forma Pauperis Provisions--Filing

Fees/PLRA-In Forma Pauperis
Provisions-Screening and Dismissal
Troville v. Venz, 303 F.3d 1256 (lIth Cir.
2002). The plaintiff is civilly committed under a
sexual predator statute; though he is held in a unit
located within a prison, he is not charged with a
crime or serving a term of incarceration. He is
therefore not subject to the PLRA filing fee
prOVISIOns.
At 1260 n.5: The PLRA's amendment to the
IFP statutes "does not allow the district court to
dismiss an in forma pauperis complaint without
allowing leave to amend when required by
Fed.R.Civ.P. 15."
PLRA--Exhaustion of Administrative Remedies
Jernigan v. Stuchell, 304 F.3d 1030 (lOth
Cir.2002). At 1032: "We review de novo the
district court's finding offailure to exhaust
administrative remedies." Id.: "An inmate who
begins the grievance process but does not complete
it is barred from pursuing a § 1983 claim under
PLRA for failure to exhaust his administrative
remedies.... Nor is his argument that he gave
notice of his claims to various Defendants by
means other than the grievance process persuasive-the doctrine of substantial compliance does not
apply. The plaintiffs claim that he got no response
to his grievance is unavailing, since the grievance
director told him he had ten days to "cure the
deficiency" (the lack of a decision by the warden),
and he didn't do so.
PLRA--Exhaustion of Administrative
Remedies/Statutes of Limitations
Casanova v. Dubois, 304 F.3d 75 (1st Cir.
2002). The reality ofwhat is grievable is shown to
diverge from the written policy, in that staff
practice was to treat compalints of alleged civil
rights abuses by staff as not grievable. At 77 n.3:
Exhaustion is an affirmative defense; great string
cite.
The prisoners' claims were timely because
the complaint is deemed filed when handed over to
prison officials under the Houston v. Lack
"mailbox rule." The fact that the prison did not
have a system for recording legal mail did not
defeat this conclusion; the state can adopt such a
system if it wants, and Federal Rules of Appellate

Procedure 4 and 25 make it clear that prisoners can
attest to timeliness by declaration or notarized
statement.

Inmate Legal Assistance/lnjunctive Relief-Preliminary/Deference
Bear v. Kautzky, 305 F.3d 802 (8th Cir.
2002). Prison officials banned prisoners from
providing legal assistance to each other and
directed them to seek assistance from a private
attorney under contract with the prison system.
The district court granted a preliminary injunction
on behalf of four prisoners with post-conviction
proceedings pending or planned who said they did
not have the skill to prosecute them on their own
and who were receiving or seeking to receive
effective assistance from jailhouse lawyers. At
804: "This testimony satisfied, at least for
preliminary injunction purposes, the requirement
that an inmate plaintiff demonstrate actual injury,
that is, 'that the alleged shortcomings in the
[prison's] library or legal assistance program
hindered his efforts to pursue a legal claim. III One
plaintiff testified that the attorney had a conflict of
interest, another that he had tried for a year to meet
with the attorney, and a third that the attorney
knew nothing about criminal law and was unable
to provide research assistance, conduct
investigations, or file papers.
The district court properly granted a
preliminary injunction. At 805:
We agree there is no absolute First
Amendment right to communicate
with other inmates about legal or
other matters.... First, plaintiffs in
this case alleged that ISP has
imposed a total ban on all inmate
legal communications, and they
presented evidence that they have
no satisfactory alternative way of
obtaining needed legal assistance to
pursue specific post-conviction
claims. Second, and even more
important, defendants introduced no
evidence justifying the new policy
under the deferential Turner
standard, despite the Supreme
Court's repeated caution that
inmates do have First Amendment
23

rights and therefore free
speech restrictions must be
justified by legitimate
penological concerns.
This case is important because it applies a liberal
definition of "hindering" efforts to pursue a legal
claim, and therefore of actual injury.
PLRA--Exhaustion of Administrative Remedies
Lyon v. Vande Krol, 305 F.3d 806 (8th Cir.
2002). The plaintiff said he didn't exhaust with
respect to his exclusion from Jewish activities
because the warden told him the decision was not
his to make and rested in the hands of "Jewish
experts." At 808: "... Under the PLRA, ... the
question is a simple one: Was there a procedure
available? There is no question in this case that
there was, that Mr. Lyon was aware of it, and that
he chose not to follow the steps that the procedure
outlined." The statement made to him "was, at
best, a prediction that Mr. Lyon would lose ifhe
complained through the administrative grievance
procedure. It was not a denial of Mr. Lyon's right to
complain, nor could the statement have misled him
about the availability of the procedure." The
reference to "Jewish experts" did not change the
fact that remedies were available.
PLRA--Exhaustion of Administrative
Remedies/PLRA--Screening and Dismissal
Baxter v. Rose, 305 F3d 486 (6th Cir.
2002). Here, the Sixth Circuit reiterates its
adherence to two uniquely regressive
interpretations of the PLRA and uses them to
justify a third one.
The court has previously held that
exhaustion must be pled with specificity by the
plaintiffand supported where possible with
documentation; the court now characterizes this as
a "heightened pleading" requirement. It has also
held that the existence of sua sponte screening
regimes under the PLRA means that courts have no
discretion to permit amendment of complaints to
avoid dismissal. At 489:
There is no reason to exempt
the issue of exhaustion from this
court's bar on amendment. This
court's heightened pleading
standards for complaints covered by
24

the PLRA are designed to facilitate
the Act's screening requirements,
which require district court[s] to
dismiss defective actions sua
sponte, in many cases, before any
responsive pleading by the
defendant. . .. The bar on
amendment similarly serves the
purpose of the heightened pleading
requirement, permitting courts to
assess the fundamental viability of
the claim on the basis of the initial
complaint. The possibility of
amendment undermines the
screening process, preventing courts
from efficiently evaluating whether
the plaintiff met the exhaustion
requirement.
The court does not mention the fact that every
other circuit to consider the question has rejected
that no-amendment view.
The Supreme Court's recent Swierkiewicz
decision "does not displace our heightened
pleading standard for exhaustion in PLRA cases"
because that standard derives from the PLRA and
not from the Federal Rules of Civil Procedure. At
490:
The PLRA established an [sic]
unique procedure under which the
court, not the parties, is required to
evaluate whether a claim on which
relief may be granted is stated.
Unlike in typical civil litigation,
courts discharging their screening
duties under the PLRA must not
wait until the complementary rules
of civil procedure, such as civil
discovery or responsive motions,
are implemented by the defendant.
While the Federal Rules of Civil
Procedure shift the burden of
obtaining clarity to the defendant,
the PLRA shifts that burden to the
courts. The heightened pleading
requirement, in cases to which the
PLRA applies, effectuates the
PLRA's screening requirement.
Courts would be unable to screen
cases effectively if plaintiffs were

able, through ambiguous
pleading, to avoid dismissal
of claims on which relief
could not be granted.

Pre-Trial DetaineeslProtection from Inmate
Assault
Burrell v. Hampshire County, 307 F.3d 1
(lst Cir. 2002). The plaintiff was assaulted by
another prisoner who had a record of several
incidents of violence or threats ofviolence as well
as other disruptive behavior. There had been prior
arguments between the two, which the plaintiff had
reported to staff, but he did not ask to be placed in
protective custody. He did ask that the assailant be
moved to avoid violence, but was told that he had
already been moved around a lot and there was no
place to put him.
The' defendants were not deliberately
indifferent. At 8: "Given the totality of the
circumstances as understood by prison officials at
the time, the defendants did not fail to take
reasonable measures to avert potential harm."
Burrell represented that he was proficient in
martial arts and a decorated war hero, and he never
asked for protective custody. Defendants knew of
no motive for any future attack on the plaintiff,
since the plaintiff was neither a rival gang member
or an informant, nor was there any history of
violence between the two, and the assailant's last
violence against anybody was nine months
previously. The plaintiff had the option of going
into his cell and locking his door.
The county's policy of not screening and
segregating potentially violent prisoners is not
itself a facial violation of the Eighth Amendment,
though lack of classification may be part of an
Eighth Amendment violation. Here, prisoners
were housed in individual cells that they could lock
from inside, so the danger from other prisoners was
considerably lessened. The policy also was not the
cause of the plaintiffs injury, since he could lock
his cell and could have requested protective
custody or transfer, and there was no evidence of a
pattern of harm going beyond his own assault.
Qualified Immunity/Protection from Inmate
Assault
Lawrence v. Norris, 307 F.3d 745 (8th Cir.

2002). The plaintiff was attacked by another
prisoner at a time when the only guard on duty was
controlling traffic in the hallway. The plaintiff has
stated a constitutional claim. The court lacks
interlocutory appellate jurisdiction over defendants'
qualified immunity appeal insofar as defendants
are challenging the sufficiency ofthe evidence to
support the conclusion that there are genuine issues
of fact barring summary judgment.
Use of Force--Chemical Agents/Qualified
Immunity
Treats v. Morgan, 308 F.3d 868 (8th Cir.
2002). The plaintiff alleged that he was sprayed in
the face with Capstun without warning after
declining to take his copy of a receipt for
confiscated property, then slammed to the floor and
handcuffed. He alleged that he did not
intentionally disobey the defendant (he understood
it wasn't mandatory to take the receipt) or threaten
any officer.
On the plaintiffs version of the facts, there
was no objective need for the force used since the
plaintiff "had not jeopardized any person's safety or
threatened prison security." (872) The record does
not suggest that the plaintiff would have remained
noncompliant ifhe had received clearer directions
or warned him before spraying him, and there is no
indication of any rule or reason why the plaintiff
was required to take the receipt. A prior decision
holding that "a limited application of capstun to
control a recalcitrant inmate" is de minimis force
does not necessarily immunize all such uses
against "disobedient or querulous" inmates. At
873: "... [U]se of pepper spray will not be
justified every time an inmate questions orders or
seeks redress for an officer's actions. . . . A basis
for an Eighth Amendment claim exists when, as
alleged here, an officer uses pepper spray without
warning on an inmate who may have questioned
his actions but who otherwise poses no threat."
The claim that defendants "tempered their
response" by getting the prisoner prompt medical
attention did not establish that the force was
reasonable. The use of force would have been
"tempered" if the defendant had followed the
prison regulation requiring staff to warn prisoners
before spraying.
Evidence that there was no objective need
25

for the degree of force used or the pain inflicted,
that the plaintiff could not reasonably have been
perceived as a threat to staff or security, and that
defendants did not temper their forceful response
could support a jury finding that the defendant
acted maliciously with the intent to cause injury.
The defendants are not entitled to qualified
immunity. The right is well established. At 875:
"It is also clearly established that force may be
justified to make an inmate comply with a lawful
prison regulation or order, but only if the inmate's
noncompliance also poses a threat to other persons
or to prison security." !d.: "Prison regulations
governing the conduct of correctional officers are
also relevant in determining whether an inmate's
right was clearly established. Hope. ..." The
prison regulations authorize use 9f capstun only
when an inmate threatens physical harm, refuses to
produce an item, or refuses to relocate, and prohibit
its use without warning or as punishment. There is
evidence that all of these rules were violated.
Access to Courts--Punishment and
Retaliation/Qualified Immunity
Bell v. Johnson, 308 F.3d 594 (6th Cir.
2002). The plaintiff alleged that two officers
shook down his cell and confiscated his legal
papers and medical diet snacks, as well as
threatening him, in retaliation for his filing a civil
rights lawsuit.
The district court erred in granting
judgment as a matter of law on the ground that the
"deter a person of ordinary firmness" standard,
which the Sixth Circuit had just adopted, was not
"a judicially or juridically satisfying proposition"
and in any case was not met, nor was the "shock
the conscience" standard that the Sixth Circuit had
just discarded.
Whether retaliatory action would deter a
person of ordinary firmness is a jury question, and
there was enough evidence to go the jury here.
Courts have held that confiscating legal papers and
destroying property are sufficient injury to support
a First Amendment retaliation claim, as are a
retaliatory shakedown and seizure of documents.
The plaintiff testified that defendants' actions
caused him to fear leaving his cell and to wony
that guards were tampering with his food.
Repeated thefts of legal papers could directly
26

impede his pursuit of a claim and deter others from
preparing legal papers. A jury could find that
deliberately taking dietary supplements designed to
ameliorate a deadly disease like AIDS could deter a
person of ordinary firmness from exercising legal
rights.
Food/Pleading
Phelps v. Kapnolas, 308 F.3d 180 (2d Cir.
2002). The plaintiff alleged that he complained
about an improper search and was then subjected to
a worse improper search, falsely charged with
throwing food, and placed in SHU. For the first 14
days (seven before, seven after his disciplinary
hearing) he was fed raw cabbage and diet loaf. He
alleged that he lost over 30 pounds and suffered
severe abdominal pain as a result.
The district court erred in dismissing for
failure to plead an Eighth Amendment violation.
The alleged treatment satisfies the requirement of
objective seriousness. With respect to defendants'
knowledge, the plaintiff was not required to plead
additional facts besides asserting that the
defendants knew or recklessly disregarded that the
diet was nutritionally inadequate. The district
court's contrary holding "amounted to a heightened
pleading standard and is unwarranted under FRCP
8(a)(2)."
Protection from Inmate Assault/Qualified
Immunity
Krein v. Norris, 309 F.3d 487 (8th Cir.
2002). The plaintiff was attacked by another
prisoner. He alleged no basis for prison officials to
have anticipated the particular attack, but did allege
that defendants provided inadequate security.
Specifically, they provided only one guard for three
barracks housing 150 inmates; the violence level in
one of these was five times that of any other, but
they did not change the staffing; the number of
isolation cells was inadequate; and defendants
failed to keep track of the number and location of
assaults in the prison.
The plaintiff sufficiently alleged a
deliberate indifference claim; the claim does not
arise from the attack per se, "but arises from
plaintiffs substantiated allegation that defendants
were deliberately indifferent to a known substantial
risk that such an attack would occur." (491)

Hazardous Conditions and
SubstanceslDamages--Assault and Injury,
Punitive/Qualified Immunity
Reilly v. Grayson, 310 F.3d 519 (6th Cir.
2002). The district court awarded $36,500 in
compensatory damages and $18,250 in punitive
damages for exposure to environmental tobacco
smoke. The plaintiff had asthma and asserted a
need to be in a smoke-free unit.
The defendants were not entitled to
qualified immunity. They said Helling and
relevant Sixth Circuit authority dealt only with
persons celled with a smoker, but "the language of
the opinions is broader than those facts would
indicate, repeatedly emphasizing the right to be
free from exposure to second-hand smoke." (521).
The district court did not err in finding that
the plaintiff suffered from a serious medical
condition that was exacerbated by exposure to ETS
and that the defendants refused to respond to
repeated medical recommendations to place the
plaintiff in a smoke-free environment. The
evidence supported damages for actual injury and
the district court's finding of reckless disregard
supported punitive damages.
This case is to my knowledge the only one
in which a prisoner has actually recovered damages
in a second-hand smoke case.
Work Assignments/PLRA--Exhaustion of
Administrative Remedies
Jones v. Norris, 310 F.3d 610 (8th Cir.
2002). The plaintiff alleged that he was assigned
to a job inappropriate to his medical condition. He
filed repeated grievances, all denied. The district
court said he didn't exhaust because his grievances
were not considered on the merits because he didn't
follow the rules, and that his grievance forms
weren't submitted until after he had filed suit. At
612: "Because Jones's medical classification is
unchanged, filing a proper grievance against all
defendants remains an available remedy."
The court affirms on the merits because to
prevail, the plaintiff must show deliberate
indifference, and he received quite a bit of medical
treatment. At 612: "Neither differences of opinion
nor medical malpractice state an actionable
Constitutional violation." Also, the plaintiff failed
to refute the defendants' assertion that his medical

complaints are an attempt to avoid the prison's
requirement of work without pay. (At 612: "Jones'
current medical classification notes Jones cannot
grip with his right hand, but can accomplish field
work.")

Ventilation and Heating/Use of Force-Restraint/Qualified Immunity
Burchett v. Kiefer, 310 F.3d 937 (6th Cir.
2002). At 944-45:
The right to be free from
"excessively forceful handcuffing"
is a clearly established right for
qualified immunity purposes, ...
and applying handcuffs so tightly
that the detainee's hands become
numb and turn blue certainly raises
concerns of excessive force. Our
precedents allow the plaintiff to get
to a jury upon a showing that
officers handcuffed the plaintiff
excessively and unnecessarily
tightly and ignored the plaintiffs
pleas that the handcuffs were too
tight.
This plaintiff loses because the officers removed
the handcuffs on his first complaint after he said he
would behave.
The plaintiff alleged that he was detained
for three hours in a police car with the windows
rolled up in ninety degree heat. At 945: "We agree
that unnecessary detention in extreme
temperatures, like those that could be reached in an
unventilated car in ninety-degree heat, violates the
Fourth Amendment's prohibition on unreasonable
searches and seizures." The court cites Hope v.
Pelzer. On these facts, where the plaintiff was
engaging in no conduct that made it necessary to
keep the windows rolled up, the officers violated
the law. Under Hope v. Pelzer that law was clearly
established, given prior decisions holding that the
Fourth Amendment limits detention to the least
intrusive means reasonably available, and that
excessive force does not require assault but can
consist of the physical structure and conditions of
the place of detention.
NON-PRISON CASES

27

Use of Force--Restraints
Rodriguez v. Farrell, 294 F.3d 1276 (11th
Cir. 2002). The plaintiff complained that he was
handcuffed behind his back and kept that way for a
long time even though he told the arresting officer
that he had an arm injury. The officer was not
obliged to believe what a suspect told him.
Non-Constitutional Rights
United States v. Duarte-Acero, 296 F.3d
1277 (11 th Cir. 2002). The International Covenant
on Civil and Political Rights "does not create
judicially-enforceable individual rights. Treaties
affect United States law only if they are selfexecuting or otherwise given effect by
congressional legislation. " (1283)

I U.S. District Court Cases I
Federal Officials and Prisons/Religion-Practices--Hair, Beards,
Dress/Transfers/lnjunctive Relief
Gartrell v. Ashcroft, 191 F.Supp.2d 23
(D.D.C. 2002), appeal dismissed, 1003 WL
1873847 (D.C. Cir., Apr. 11,2003). The Federal
Bureau of Prisons' placement of prisoners whose
religious beliefs require them to wear beards and
long hair in the Virginia prison system, which
forbids both, violated the Religious Freedom
Restoration Act. RFRA continues to apply to
federal officers and agencies, and each placement
in a Virginia prison is subject to RFRA scrutiny,
since the statute applies to all federal law and its
implementation.
The Virginia grooming policy substantially
burdens plaintiffs' religious belief. At 37: "A
substantial burden on a sincerely held religious
belief exists where the government imposes
punishment or 'denies ... a benefit because of
conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to
modify his behavior and to violate his beliefs.'"
(Citations omitted)
Plaintiffs' showing of a substantial burden
on their religious beliefs requires defendants to
show that their practice is the least restrictive
means of achieving a compelling interest. As a
less restrictive alternative, the Bureau of Prisons
could house plaintiffs in prisons run by BOP or
28

other contractors that do not so burden plaintiffs'
beliefs. The court rejects the defense that BOP's
prisons are overcrowded, since capacity concerns
are not implicated by individualized designations,
because the BOP population is in constant flux
around the country. It also rejects the argument
that the Bureau of Prisons can't possibly decide
who has sincere religious objections to shaving and
hair-cutting; the Supreme Court has made it clear
that government can and must do this for free
exercise purposes, and prison officials in other
systems can and do assess sincerity of belief in
order to administer prison programs and policies.
At 39: "Moreover, the government cannot meet its
burden to prove least restrictive means unless it has
actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged
practice." Here they didn't, even when they were
required to adopt it temporarily under a preliminary
injunction; they reverted to prior practice when the
injunction was lifted.
The court enjoins the Bureau of Prisons to
consider inmates' religious beliefs before sending
them to Virginia; burden on religious belief should
"militate against" designation to Virginia. BOP is
required to evaluate prisoners presently in Virginia
and move them out if their religious beliefs and
practices are burdened by Virginia's policies.
Disciplinary action imposed for violation of the
Virginia policy should be expunged.
Medical Care--Standards of Liability-Deliberate Indifference, Serious Medical Needs
Use of Force--Restraints
Searches--Person--Arrestees
Turner v. Kight, 192 F.Supp.2d 391 (D.Md.
2002). The plaintiff was arrested on an
outstanding warrant and detained for about 14
hours. Her neck brace and medication were
confiscated and not returned during that period.
The pain the plaintiff suffered from lack of
medication and neck brace was not a serious
medical need. Even if it had been, defendants were
not deliberately indifferent. At 402: "Although
Plaintiff walked with a cane and carried a neck
brace, it does not follow that Defendants drew the
inference that a substantial risk of serious harm
existed." Anyway, when she was arrested, she
walked without cane or noticeable limp. The

plaintiffs complaints to a defendant of pain and
muscle spasms do not provide "objective evidence
from which [a defendant] would infer that a serious
medical need existed." (403) The fact that the
defendant noticed the plaintiffs surgical scars
doesn't impress the court.
A strip search on arrest did not violate the
Fourth Amendment because the searching officer
was of the same gender, the search was in private
and preceded a mandatory shower, and there was
no physical contact with the plaintiff. The court
cites no authority for this proposition, but the
search apparently was not a complete strip search.
Procedural Due Process--Disciplinary
Proceedings, Work Assignments,
Classification/Pendent and Supplemental
Claims; State Law in Federal Courts/Access to
Courts--Punishment and Retaliation/Equal
Protection/Appointment of Counsel/Pro Se
Litigation
Williams v. Manternach, 192 F.Supp.2d
980 (N.D.Iowa 2002). The plaintiffs placement in
disciplinary detention for 30 days, his loss of "level
status," and the loss of his job are not atypical and
significant hardship under Sandin and do not call
for due process protections. There is no
constitutionally protected interest in having state
officers follow state law in connection with prison
disciplinary proceedings.
At 986: "... [W]hen giving a pro se
complaint the liberal construction to which it is
entitled, the question is whether factual allegations
support a legal theory, not whether the legal theory
is specifically articulated."
The plaintiffs allegations that defendants
retaliated against him for his legal activities should
have been considered by the magistrate judge even
though the plaintiff did not use the word
"retaliation" in his complaint. The absence of a
due process violation does not mean the
disciplinary proceeding was not retaliatory;
manifestations of retaliation need not be
independently unconstitutional. Under Eighth
Circuit law, however, a retaliation claim fails if the
prisoner was guilty of the disciplinary offense,
which is established by the presence of "some
evidence," but that cannot be determined at the
pleading stage.

The plaintiffs allegations of disparate
treatment of "lifers" with respect to jobs and
classification sufficiently pled an equal protection
violation, even though defendants might later
prevail under the rational relationship test. It is
implicit in these claims that persons who are not
lifers are similarly situated to the plaintiff but are
not subject to the treatment complained of.
PLRA--Exhaustion of Administrative
Remedies/Protection from Inmate Assault
Williams v. McGinnis, 192 F.Supp.2d 757
(E.D.Mich.2002). The plaintiff was assaulted
after he was named as an inmate informant in a
disciplinary report. The court refuses to reconsider
summary judgment for the hearing officer, since
plaintiff shows no facts indicating that the hearing
officer was aware of a significant risk before
including his name in the report.
The court
previously said the plaintiff had substantially
complied with the exhaustion requirement, but
now cites Sixth Circuit law that substantial
compliance is not applicable in post-PLRA cases,
and dismisses because there is no evidence that
Step I and Step II grievances were received, and
the plaintiff did not appeal to Step III (he only sent
a letter).
Medical CarelEvidentiary Questions/Summary
Judgment/Qualified Immunity
Fenner v. Suthers, 194 F.Supp.2d 1146
(D.Colo.2002). The plaintiffalleged inadequate
policies, procedures, and protocols for treatment of
Hepatitis C.
The magistrate judge incorrectly
recommended granting summary judgment on the
grounds that the policies were appropriate, based
largely on material on Internet sites which "appear
to have some connection to the National Institute
of Health." That material was probably not
appropriate for judicial notice under Rule 201(e),
Fed.R.Ev., and in any case the plaintiff had no
opportunity to be heard concerning it.
The defendants have not established a
factual basis for qualified immunity on the ground
that there is no clearly established right to
treatment of hepatitis C. It might be that there is a
single, clear treatment for the disease which
defendants refused to provide; or it might be that
29

the proper course of treatment is experimental or
that defendants might reasonably believe the
plaintiff did not meet the conditions for that
treatment. In any case, defendants are not entitled
to qualified immunity for their injunctive claim.
Federal Officials and
Prisons/Accidents/Immunities--Federal Officials
and Employees
Bultema v. United States, 195 F.Supp.2d
1001 (N.D.Ohio 2002). The plaintiff fell out of a
bunk bed and injured his knee. He had an order to
be placed in a lower bunk but didn't tell anybody
about it. The order was in the prison computer but
the responsible employee didn't look at it.
The plaintiffs claim under the Federal Tort
Claims Act is barred by the discretionary function
exception. His argument that the medical
restriction eliminated all discretion misses the
point; "the issue is whether there is generally any
federal statute, policy, regulation or the like that
requires a particular method for assignment of
quarters ... or whether that is simply left to the
discretion of individual prison authorities." The
second prong of the exception is whether the
judgment is of the kind the discretionary function
exception was designed to shield, and it is met. At
1008: "Here, the policy-makers apparently decided
that the quickest and most efficient method for
communicating a medically-necessary bottom bunk
assignment to the unit officer was to utilize the
inmate himself."
The failure to place guard rails on bunk
beds was also discretionary; they could be removed
and turned into weapons, so the determination
should be left to prison administrators' judgment.
The plaintiff would lose on the merits in
any case, since under Ohio law, contributory
negligence greater than the defendant's negligence
bars any recovery, and the plaintiffs failure to tell
anybody he was assigned to a bottom bunk
constitutes such contributory negligence.

(S.D.N.Y. 2002). The plaintiff alleged that he had
serious back pain over a period of time that was
not adequately treated. Defendants do not dispute
that this is an objectively serious injury, and prior
decisions support that conclusion. However,
plaintiff has not pleaded sufficient facts to support
a deliberate indifference claim. There are no
allegations of the defendant doctor's culpable
mental state, that he knowingly and intentionally
rendered improper treatment, that he knew of and
disregarded a substantial risk of serious harm, etc.
The plaintiff continuously received pain
medication, was seen by a physician's assistant, had
x-rays done, received physical therapy, etc. The
fact that the plaintiff wanted an MRI and didn't get
it shows only a difference of opinion over medical
treatment.
The Superintendent could not be held liable
based on his affirmance of the plaintiffs grievance.
At 506: "... [A] prison administrator is permitted
to rely upon and be guided by the opinions of
medical personnel concerning the proper course of
treatment. ..."
Another doctor could not be held liable
based on the plaintiffs sending him a letter of
complaint. At 507: "The general rule is that 'an
allegation that an official ignored a prisoner's letter
of protest and request for an investigation of
allegations made therein is insufficient to hold that
official liable for the alleged violation.'" (Not
necessarily. See Gentry v. Duckworth, 65 F.3d
555,561 (7th Cir. 1995); Pacheco v. Commisse,
897 F.Supp. 671, 678 (N.D.NY. 1995); Mandala
v. Coughlin, 920 F.Supp. 342, 351 (E.D.N.Y.
1996); Barry v. Ratelle, 985 F.Supp. 1235, 1239
(S.D.Cai. 1997) (holding prisoner's letters to prison
medical director sufficient to allege liability);
Boone v. Elrod, 706 F.Supp. 636, 638 (N.D.lli.
1989) (holding prisoner's letters sufficient);
Strachan v. Ashe, 548 F.Supp. 1193, 1204
(D.Mass. 1982) (holding letter from plaintiffs
attorney sufficient).)

Medical Care--Standards of Liability-Deliberate Indifference, Serious Medical
Needs/Grievances and Complaints about
Prison/Personal Involvement and Supervisory
Liability
Joyner v. Greiner, 195 F.Supp.2d 500

PLRA--Exhaustion of Administrative Remedies
Perez v. Blot, 195 F.Supp.2d 539 (S.D.N.Y.
2002). The plaintiff didn't grieve, but he
complained, and the Inspector General did an
elaborate investigation, and referred the case for
criminal prosecution. In the subsequent suit

30

plaintiffsought discovery re his contacts with
prison officials concerning the alleged assault; the
defendants refused to answer except as to fonnal
grievances. The court allows the discovery, since
the plaintiff may have satisfied the less fonnal
harassment grievance procedure maintained by the
prison system.
In addition, case law that says infonnal
efforts to resolve don't meet the exhaustion
requirement was overruled by Marvin v. Goard.
Defendants said that Marvin is inapplicable
because that plaintiff solved his problems "at the
correctional level." However, plaintiff alleges that
he complained in the prison as well as writing to
the IG. As in Marvin, this plaintiff says he got as
favorable an outcome informally as he could have
through the grievance process.
AIDSlMedication
Evans v. Bonner, 196 F.Supp.2d 252
(E.D.N.Y. 2002). The plaintiff complained that he
did not get his HIV medication on time. However,
the evidence showed that his viral loads got better
rather than worse during the relevant period, a
doctor testified that it really didn't matter whether
he got his medications on time, and the nurse
defendant was not shown to have known that
untimely medication delivery would cause a
substantial risk to the plaintiffs health.
PLRA--Exhaustion of Administrative Remedies
Brady v. Dr. Attygala, 196 F.Supp.2d 1016
(C.D.Cal. 2002). The plaintiff filed a grievance to
see an ophthalmologist. The grievance was
granted at the second level on the ground that he
had already seen an ophthalmologist. The plaintiff
need not have appealed his victory to have
exhausted; the court relies on Booth v. Churner,
which says that the possibility of "some redress" is
required for a remedy to be "available." At 1020:
"Further pursuit of an administrative appeal is
therefore not required when no relief whatsoever is
left available for the inmate to obtain through the
prison administrative process. At that point, the
inmate has 'nothing [left] to exhaust. '"
PLRA--Exhaustion of Administrative Remedies
Floyd v. Shelby County, Tenn., 197
F.Supp.2d 1101 (W.D.Tenn. 2001). The plaintiff

sued over an assault by other prisoners. The court
dismisses for failure to exhaust, notwithstanding
his arguments that he did not receive a copy of the
jail handbook and did not know about the
grievance procedure; that he told staff who asked
him that he wanted to press charges; and that a
drug counselor said it would be difficult for him to
stay in the program if he filed a claim against the
gang members. Even ifhis actions constituted
"substantial compliance," that standard applies
only to cases in which the claim arose before the
effective date of the PLRA.
PLRA--Mental or Emotional Injury/Damages-Intangible Injuries
Ford v. McGinnis, 198 F.Supp.2d 363
(S.D.N.Y. 2001). Plaintiff alleged a First
Amendment violation and argued that he was not
subject to the mental/emotional injury provision.
The court finds the statute unambiguous and says
(at 366):
The plain language of the
statute does not permit alteration of
its clear damages restrictions on the
basis of the underlying rights being
asserted. The underlying
substantive violation, like Canell's
First Amendment wrong, should not
be divorced from the resulting
injury, such as "mental or emotional
injury," thus avoiding the clear
mandate of § 1997e(e). The statute
limits the remedies available,
regardless of the rights asserted, if
the only injuries are mental or
emotional. ...
Searles v. Van Bebber, 251 F.3d
869,876 (lOth Cir.2001).
Accordingly, plaintiff may be
awarded an amount to compensate
him for the denial of his religious
meal. See, e.g., Bryant v. McGinnis,
463 F.Supp. 373, 388
(W.D.N.Y.1978) (awarding
plaintiffs $3,000 each for violations
of their First Amendment rights to
practice their religion in prison).
Such an award, however, may not
be based on plaintiffs "mental
31

anguish, depression,
increased anxiety, difficulty
sleeping, and psychological
suffering." Complaint at 7.
PLRA--Exhaustion of Administrative Remedies
Hemphill v. New York, 198 F.Supp.2d 546
(S.D.N.Y. 2002). The plaintiffs letter to the
Superintendent complaining of excessive force,
sent five months after the incident, was not a
grievance and did not meet the exhaustion
requirement. At 549: "Prison officials are entitled
to require strict compliance with an existing
grievance procedure." Even if the letter were
construed as a grievance, it was late, and the
plaintiffdid not ask for an exception to the time
limits.
Appeal
Knickerbocker v. Artuz, 198 F.Supp.2d 415
(S.D.N.Y. 2002). A pro se prisoner's notice of
appeal is deemed filed when the prisoner delivers it
to prison authorities for forwarding, but that rule
does not benefit a prisoner who does not use the
prison mail system.
Protection from Inmate Assault/PLRA--Mental
or Emotional Injury
Kemner v. Hemphill, 199 F.Supp.2d 1264
(N.D.Fla. 2002). The plaintiff alleged that he was
sexually assaulted by another prisoner for nearly
two hours and forced to perform oral sex, suffering
physical pain, cuts, scrapes, and bruises, and also
vomiting when his assailant ejaculated. He was
later found hiding in shock. The defendants argued
that his claim was barred by the PLRA
mental/emotional injury provision. At 1265-66:
Despite the way it is worded, the
statute limits the types of relief, not
causes of action. Ifthere is no
"physical injury" alleged, then
mental or emotional monetary
damages, as well as punitive
damages, cannot be recovered, but
declaratory and injunctive relief
may be available.
The plaintiff has alleged physical injury.
At 1271: "Any physical force which causes the
human body to convulse in vomiting and to go into
32

shock has caused a physical injury as intended by §
1997e(e)." The court gets there after examination
of sexual assault cases under the mental/emotional
injury provision, cases involving other kinds of
physical injury that don't involve cuts and bruises,
and the categorization of this kind of assault under
state criminal law. At 1269-70: "Sexual battery is
a serious felony in Florida." At 1270:
A sexual battery involves, at a
minimum, the physically forceful
activity of the assailant. Copulation
requires movement. It is alleged
here that there was "physical force"
as those words were used in the
footnote in Harris. The penetration
of Plaintiffs mouth was an act of
force, and there may have been
other kinds of "physical force" used,
though not alleged. This kind of
physical force, even if considered to
be de minimis from a purely
physical perspective, is plainly
"repugnant to the conscience of
mankind." Surely Congress
intended the concept of "physical
injury" in § 1997e(e) to cover such a
repugnant use of physical force.
Correspondence--Legal and Official/Access to
Courts/Grievances and Complaints about
Prison/Heating and Ventilation/Procedural Due
Process--Disciplinary Proceedings
Moore v. Gardner, 199 F.Supp.2d 17
(W.D.N.Y. 2002). The plaintiff made numerous
complaints about mishandling of his legal mail,
disappearance of documents sent for copying, etc.,
but absent any evidence of actual injury or of
involvement of the named defendants, they are
dismissed. Complaints of retaliation for
complaints are dismissed for similar reasons.
At33:
It is clear that" [p]rison inmates
have a First Amendment right to the
free flow of both incoming and
outgoing mail," and that "[p]rison
restrictions on inmate mail must be
reasonably related to prison interests
in security." ...
With regard to outgoing

legal mail, "prison officials
can only open an inmate's
outgoing legal mail if there
is a 'rational justification' for
doing so." . . . Although a
single, isolated incident may
fail to state a constitutional
claim, multiple occurrences
of prison officials opening
an inmate's privileged mail
may give rise to a Section
1983 action.
The plaintiff's allegation that prison
officials opened and returned an outgoing letter to
an FBI agent, and that he had sufficiently identified
the addressee, raised a triable issue of fact. The
plaintiff's allegation that when he tried to send
documents to an attorney, the envelopes were
opened and documents were missing, raised a
triable issue of fact. The plaintiffs allegation that a
letter from the U.S. Department of Justice was
opened before delivery raised a triable issue of fact.
The allegation that a defendant refused to deliver
16 pieces of mail addressed to the plaintiff, but
returned them all to sender, raised a triable issue of
fact. At 36: "It is well-settled that '[p]rison
regulations or practices affecting a prisoner's
receipt of non-legal mail must be reasonably
related to legitimate penological interest."' (Sic,
citation omitted.)
The plaintiff's allegation that in 10 to 12degree weather, he was provided only with one and
a half bedsheets and a summer weight blanket for a
period of several weeks, and that he complained to
staff about it, raised a triable issue
Two months in SHU does not constitute
atypical and significant hardship under Sandin. In
any case, the plaintiff's disciplinary conviction for
fighting was supported by some evidence, since he
admitted he was fighting, though he said the other
prisoner was the aggressor.

Religion-Practices/Religion--Services Within
InstitutionlDeference/Evidentiary
Questions/Publications
Marria v. Broaddus, 200 F.Supp.2d 280
(S.D.N.Y. 2002). The plaintiff challenged a prison
policy excluding all publications of the Five
Percent Nation and denying his request to assemble

with other members of the group, pursuant to a
"non-recognition strategy for security threat group
management." Prison officials said that letting
them assemble and receive literature would
legitimize their status.
Prison officials said that the publications
did not go to the Media Review Committee
because "literature defined as contraband does not
fall under the jurisdiction of the Media Review
Committee." (285 n. 7)
The defendants moved to exclude the report
of plaintiff's expert, Toni Bair, under Daubert and
Kumho. The court rejects their argument that he is
unqualified to opine on whether Five Percenter
literature poses a security threat. It rejects the
argument that he did not use a reliable
methodology; he relied on his twenty years'
experience and could testify to why he, as a
warden, would not have banned the publication. It
rejects the argument that Bair's assessment of the
publication's contents is irrelevant because it is its
presence that they object to; plaintiffs are not
bound by the way the defendants have framed the
Issue.
The plaintiffs moved to exclude the report
of defendants' expert, George Camp, and the court
excludes it based on the unreliability of the survey
he conducted. Camp sent it bye-mail to members
of the Association of State Correctional
Administrators with an introduction reading "Dear
Members, We need your help. We are helping to
defend the NYS Department of Correctional
Service" etc. It identifies the issue in the litigation
and the defendants' position on it. The survey is
biased, its results unreliable, so it is inadmissible.
It has other methodological deficiencies as well.
Plaintiffs also persuasively challenged Camp's
analysis of unusual incident and other reports (e.g.,
a drop in the percentage of Five Percenters
involved in unusual incidents actually reflected a
rise in the numbers of members of other groups
involved in them).
The court rejects the defendants' claim that
the plaintiff can't invoke the Religious Land Use
and Institutionalized Persons Act because he has
failed to demonstrate that he has sincere religious
beliefs, citing his statement that the Five Percenters
are not a religion but a way oflife. That is
semantics; there is a triable issue whether the
33

plaintiff sincerely believes what he says and
whether his beliefs are religious. At 292-93:
"Plaintiff explains that although he would not use
the word 'religion' to describe the Nation, the
Nation holds the same significance in his life as
Christianity to an observant Christian. "
The court denies summary judgment on the
First Amendment claim as well, applying the
Turner standard. The plaintiff has created a
material issue of fact with respect to the valid,
rational connection of policy to legitimate security
interests by submitting evidence that the Five
Percenters as a group are committed to
righteousness and nonviolence, that the Supreme
Alphabet and Supreme Mathematics are not a code,
that there are no initiation rites, and members can
leave when they want; the fact that some Five
Percenters have acted violently does not justify
banning the whole group. There is also evidence
that the ban is not really content-neutral. At 295:
... [A]lthough DOCS bans
possession of such literature as the
120 Degrees by Nation members,
inmates who have registered as
[Nation of Islam members] may
possess some of the exact same
material. The position that DOCS
has chosen to advance, namely, that
one religious group may possess the
same materials that if possessed by
another contribute to gang
formation, is, we think, a
challenging one to sustain.
With respect to alternative means of
exercising the right, there is a material factual
dispute: defendants say Five Percenters can read
other religious groups' materials and discuss Five
Percenter principles during meals and recreation,
plaintiff says they have to have access to the
literature that comprises the lessons central to the
practice of the religion.
There are factual disputes concerning
accommodation of the right and alternatives to the
challenged policy--e.g., whether redaction of
offensive emblems or language, submitting Five
Percenter material to the Media Review process,
providing a secluded place to read the literature,
etc., would sufficiently serve defendants' interests.
Under RLUIPA, the plaintiff has to show
34

that his free exercise rights have been
"substantially burdened." His claims that study of
Five Percenter writings, individually and with
others, are integral to his practice, raise a material
issue of fact, as does the question whether the
prison policy is the least restrictive alternative.
The failure to send Five Percenter literature
to the Media Review Committee does not deny due
process, since the adequacy of procedures for
content-based review is more of a First
Amendment argument, and defendants argue that
the Media Review Committees are not appropriate
for material categorized as contraband.
The defendants are granted qualified
immunity from damage claims, since the status of
the Five Percenters as a security threat group is
unsettled.
Programs and Activities--Education and
Training/Punitive Segregation/Equal Protection
Little v. Terhune, 200 F.Supp.2d 445
(D.N.J.2002). The plaintiffhas spent 15 years in
"administrative segregation," where he was sent for
"disciplinary reasons," and complains he has been
denied educational opportunities.
The plaintiffs equal protection claim is
governed by the rational basis standard. At 450:
Although inmates do not have a
constitutional right to educational
and work programs, once the state
grants such rights to prisoners it
may not invidiously discriminate
against a class of inmates in
connection with those programs
unless the difference in treatment is
rationally related to the legitimate
governmental interest used to justify
the disparate treatment.
The disparate availability of educational
programming between general population and
administrative segregation is "rationally related to
overlapping security concerns and budgetary
constraints." (453) The fact that prisoners in other
administrative segregation units get educational
programming does not create an equal protection
violation, since only the plaintiffs prison is
deemed "maximum security," and that fact creates
"a distinct set of institutional imperatives,
especially related to security." Also, if uniformity

...

in programming were required, prison officials
would be less willing to experiment and innovate.
"Varying arrays of variables affect the
programmatic posture of an institution...." (454)
The plaintiffs argument that it is irrational
to deny him programming because doing so
interferes with his rehabilitation is rejected, since
"the Supreme Court suggests that rehabilitation is
not an overriding goal, but rather is a contingent
value depending on scarce resource distribution,"
and prison officials could rationally determine that
it's better to spend scarce resources to reach more
people in general population.
The distinction between prisoners under 21,
who get education, and older ones, who don't, is
rational because state law requires providing
education for young people and provides the funds
for it. At 457: "It cannot be gainsaid that the State
acts rationally in requiring and funding the
education of children, including childhood
offenders housed in prisons." Young people may
be more susceptible to rehabilitation, and in any
case they are more likely to gain eventual release.

Grievances and Complaints about
Prison/Procedural Due Process--Disciplinary
Proceedings/Publications
Farid v. Goard, 200 F.Supp.2d 220
(W.D.N.Y.2002). The plaintiff prepared a petition
alleging abusive conduct by a correction officer.
He was subsequently disciplined after searches of
his cell and work area turned up articles he had
written which were deemed to be inflammatory,
threatening, etc. The disciplinary conviction was
ordered expunged in state court because the
hearing was not timely.
At 235: "It is settled law that an inmate's
'right to complain to public officials and to seek
administrative relief is protected by the First
Amendment.'" At 236: "Farid's claimed conduct,
filing a petition, is constitutionally protected....
The right to petition government for redress of
grievances--in both judicial and administrative
forums--is 'among the most precious of the liberties
safeguarded by the Bill of Rights.'" The Second
Circuit has said that so long as a grievance
procedure is available, it is permissible for prison
officials to bar the circulation of petitions.
However, there is no such rule, and the plaintiff

was not disciplined for sending the petition; instead
they sent it through channels for investigation.
"From these facts it can be inferred that petitioning
was a proper--or at least non-objectionable--means
to communicate grievances." (236)
There is a question of fact whether
circulating the petition was a substantial or
motivating factor in the subsequent discipline. The
plaintiff submitted circumstantial evidence that one
of the officers had a bias against Muslims
generally; there was temporal proximity between
the petition and the disciplinary action; it was
possible for the charging officer to have known
about the petition before the misbehavior report.
In addition, the gravity of the charges are so
disparate from the evidence in support as to
legitimize the retaliation claim. The plaintiff was
found guilty of improper solicitation based on
having copies of a freely available application for
membership in an approved organization and on
intending to solicit, which the rules do not bar. He
was found guilty of threats based on the contents of
an article without any evidence that he ever tried to
distribute it to other inmates. One of them had
been published in a newspaper and a "reasonable
reading" would support the conclusion that it did
not advocate violence or disruption.
The court concludes that there is sufficient
evidence that the plaintiff would not have been
disciplined absent protected conduct.
The content of the articles seized from the
plaintiffs cell does not present any threat to prison
security. The court notes that there was no effort to
send the material to the facility Media Review
Committee, which is charged with making such
content-based determinations, and there is no
explanation why not. At 241: "... [W]here a
corrections officer chooses to ignore established
standards or procedures, he must be prepared to
demonstrate that his decision is supported by
reasonable justification." !d.: "Most decisive, the
articles are quite benign and obviously satirical.
They are thoughtful, well-written political and
social commentaries that use historical allusions to
make their point. Simply because the Rip article
contains the words 'mass mobilization' does not
mean that it can reasonably be interpreted as
Farid's issuing a call for mass mobilization of
prisoners." The point seems to be that the
35

discipline may have violated the First Amendment
independently of any retaliation for the petition.
The denial to the plaintiff of witnesses he
requested at his disciplinary proceeding, and the
refusal of a hearing officer to recuse himself
despite some evidence of a bias against Muslims,
raised factual issues barring summary judgment as
to plaintiffs due process claim.
Damages--Conditions of Confinement/PLRA-Mental or Emotional Injury
Caldwell v. District ofColumbia, 201
F.Supp.2d 27 (D.D.C. 2001). The plaintiff was
awarded $174,178.00 by a jury based on evidence
of subjection to "feces in his cell, small cells and
beds, lack of outdoor recreation, general lack of
cleanliness, poor ventilation, smoke and mace in
the air, flooding in the cellblocks, noise and odors
in the cell blocks, foul water dripping in his cell
and poor temperature regulation" (33), not to
mention failure to treat his skin cancer.
The plaintiffs claim is not barred by the
PLRA mental/emotional injury provision. The
court rejects defendants' position that plaintiffs
must show "serious, 'lasting' physical injury" and
notes cases to the contrary. The plaintiff testified
that as a result of the unconstitutional jail
conditions he was dizzy, dehydrated, and
disoriented, which were symptoms of heat
exhaustion; he sustained a severe rash from the
heat and plastic mattress, which increased his risk
of skin infection and additional skin cancer; smoke
from repeated fires caused bronchial irritation
(reflected in his medical records); a small bunk
aggravated his pre-existing back condition; the
frequent use of mace caused his eyes and nose to
run and made him choke and sneeze. At 34:
"Plaintiff has alleged and proven significant
physical injury which is more than sufficient to
satisfy the PLRA."
Cruel and Unusual Punishment--Proofof
Harm, Totality ofConditions (34-35): The verdict
need not be vacated, insofar as it relies on proof of
exposure to second-hand smoke, for lack of proof
of the quantity of smoke and the resulting injury.
The case is not just about cigarette smoke. At 34:
"Plaintiff testified to a variety of conditions that,
taken together, resulted in an unconstitutional
situation in the cell to which he was confined,
36

including excessive heat, lack of ventilation, the
plastic mattress, the occasional lack of drinking
water, flooding, and feces in the cells." Similarly,
the lack of proof of hearing loss did not invalidate
the verdict insofar as it rested on evidence of
excessive noise, given that the jury was instructed
that it must :find a substantial risk of serious harm.
Evidence of "exposure to feces in his cell,
foul water, filth, excessive heat, smoke, and mace,
and the lack of outdoor exercise" could support a
conclusion of substantial risk of serious harm. In
addition, plaintiffs medical expert testified that he
experienced symptoms of heat exhaustion from
excessive heat without ventilation and lack of
water; bronchitis from smoke exposure; and back
pain from the refusal to provide a bed suited to his
height, which caused him additional back pain. At
36: "As Plaintiff points out, a violation of the
Eighth Amendment may occur when a prisoner is
subjected to unnecessary pain."
Negligence, Deliberate Indifference and
Intent (36): Grievances, a consent decree, and a
study by the Department of Justice showed that
individual defendants and the District of Columbia
were on notice ofmany of the conditions.
Damages--Punitive (40-41): Punitive
damages were not rendered improper by the lack of
evidence of the defendants' financial resources; it
was defendants' job to present such evidence.
Religion--Practices/Deference/Qualified
Immunity
Murphy v. Carroll, 202 F.Supp.2d 421
(D.Md.2002). Prison officials' designation of
Saturday as cell cleanup day violated the Free
Exercise clause as applied to an Orthodox Jewish
prisoner. (They made him clean his cell on other
days, but they wouldn't provide him with cleaning
supplies on other days, so he had to do it with his
bare hands.) Defendants' management concerns
"are understandable but they are not persuasive,
i.e., they are not 'minimally rational' in the face of
Murphy's weighty free exercise claim."
Defendants have "obvious, readily available
alternatives," i.e., providing the plaintiff cleaning
materials on Sunday. The court invokes the Turner
standard but does not analyze all the factors.
The defendants are entitled to qualified
immunity because there was at the relevant time

virtually no guidance regarding the observance of
the Jewish Sabbath in the context of prison work,
programming, and assignments.
Procedural Due Process--Disciplinary
Proceedings
Hoskins v. McBride, 202 F.Supp.2d 839
(N.D.Ind.2002). The plaintiff was convicted ofa
disciplinary drug offense based on circumstantial
evidence related to the finding of drugs in a trash
can in the visiting area.
The right to witnesses can be satisfied with
written statements. At 844: "There is no right to
confront witnesses at a CAB hearing." Here, the
witnesses the plaintiff called did not answer the
questions he wanted answered in their written
statements. However, the decision was not based
on their statements. At 844: "Due process is not
denied if witnesses are not asked to give testimony
that is irrelevant or repetitive."
A prisoner has the right to have security
videos viewed in considering whether the prisoner
violated prison rules. At 845: "Security videos are
documentary evidence that the [Conduct
Adjustment Board] is required to review if the
inmate requests the tapes." Id.: "However, no
court has as yet found that the inmate, himself, has
that right." The right to have exculpatory evidence
disclosed is limited by security considerations.
It was sufficient for the disciplinary board
to see the contraband items and for them to be
described to the plaintiff.
The conviction was supported by some
evidence, since the visiting room videotape showed
a child throwing something into the trash can
where the drugs were found, and the petitioner was
the only person who had a child visitor at the time.
"This is not much evidence," but it suffices in
combination with other evidence showing that
someone was trafficking in contraband.
The petitioner got his conviction thrown
out but received a harsher sentence on rehearing.
There is no right not to receive a harsher sentence
on remand in prison disciplinary proceedings.
There is a right not to be judged by a partial trier of
fact, but there's no evidence ofpartiality here.
Procedural Due Process-Transfers/Transfers/Color of Law

Koos v. Holm, 204 F.Supp. 1099
(W.D.Tenn. 2002). Transferring a prisoner to a
private prison outside the state does not deny due
process or waive jurisdiction over the prisoner,
since prisoners do not have a liberty interest in
assignment to a particular prison. Such a transfer
is not atypical and significant under Sandin. The
court cites the Fifth Circuit's Orellano decision
holding that "only deprivations that clearly impinge
on the duration of confmement, will henceforth
even possibly qualify for constitutional 'liberty'
status." (1103) /d.: "It is a popular myth among
prisoners that a state's authority over a prisoner
ends at the state's geographical border."
Prisoners do not have a right to travel to
another country and renounce their citizenship.
Prisoners cannot compel the Attorney General or
Immigration and Naturalization Service to deport
them.
PLRA--Prospective Relief Provisions--Entry of
Relief/Procedural Due Process--High Security,
Administrative Segregation,
Classification/Monitoring and Reporting
Austin v. Wilkinson, 204 F.Supp.2d 1024
(N.D.Ohio 2002). The court previously held that
prisoners at the Ohio State Penitentiary, which is
operated as a supermax facility, have a liberty
interest at stake because the length of their
placement and the severity of its restrictive
conditions impose an atypical and a significant
hardship upon them. The court held that by
denying the plaintiffs adequate notice, adequate
hearings, and sufficiently detailed decisions
concerning their placement at the aSP, they denied
due process. At 1026: "Because the defendants
have violated the plaintiffs' constitutionally
protected liberty interest, the Court orders the least
intrusive means to correct the violation. See 18
U.S.C. § 3626(a)(1)(A)." The order provides for
detailed notice of placement, a hearing with Wolff
rights, statement of reasons, appeal mechanism,
and greater specificity in the rules governing
reasons for placement in the unit. Defendants are
required to produce documents on an ongoing basis
for monitoring putposes, and monthly meetings to
discuss implementation are required.
Religion--Services within Institution/Res
37

Judicata and Collateral Estoppel/Pendent and
Supplemental Claims; State Law in Federal
CourtsIPLRA--Exhaustion of Administrative
Remedies/Pleading/Grievances and Complaints
about Prison/Qualified Immunity/Access to
Courts--Punishment and Retaliation
Cancel v. Mazzuca, 205 F.Supp.2d 128
(S.D.N.Y. 2002). The Shi'ite Muslim plaintiff
alleged that prison authorities did not provide
separate services for Shi'ites and they were pressed
by the dominant Sunnis to give up their Shi'ite
beliefs. His grievance was denied, but a state court
held that the denial of the grievance was arbitrary
and capricious and violated state statutes. He then
sued for damages under § 1983.
The state court's decision, which rested on
state law and not the Constitution, estopped
defendants from contesting only those issues in the
present litigation that were "necessarily decided" in
the state case, limited to the finding of fact that
there are "significant dogmatic differences"
between Shi'a and Sunni sects and the legal
conclusion that defendants' actions violated the
state Correction Law.
The suit is not barred by the PLRA
mental/emotional injury provision. At 138:
It is certainly true that Mr. Cancel
does not allege a physical injury.
Nevertheless, it is equally true that
he brought this action, inter alia, for
alleged violations of his First
Amendment rights, rather than "for
mental or emotional injury." Id.
(emphasis supplied). Accordingly, §
1997e(e) does not present an
obstacle to the instant action.
The defendant Imam, former Ministerial
Program Coordinator and Islamic Affairs
Coordinator for DOCS, who allegedly used his
position to discriminate against Shi'ites, is not
entitled to qualified immunity. The allegation that
he hired only Sunnis does not state a violation of
law that was clearly established before the state
court decision in plaintiffs case, but the allegation
that he engaged in an active campaign of hostility
towards Shi'ites does state a violation of clearly
established law, since it amounts to a violation of
the obligation to provide all prisons with
"reasonable opportunities" to exercise religious
38

rights, proclaimed in 1972 in Cruz v. Beto.
Pregnancy, Childbirth and AbortionlMedical
Care--Standards of Liability--Serious Medical
N eeds/Deference
Victoria W v. Larpenter, 205 F.Supp.2d
580 (E.D.La. 2002). A policy requiring a prison
inmate to obtain a court order and pay all attendant
costs of a non-therapeutic abortion did not violate
the Fourteenth Amendment. (The Sheriff said that
this policy applied to all "elective surgery.")
Under the Turner standard, the Sheriff has
a valid penological purpose in maintaining security
and in avoiding liability if there is an escape
attempt or a prisoner is negligently released in
connection with an abortion. While prisoners are
taken outside the prison for other purposes, the
Sheriff has a valid interest in limiting the
circumstances. (Here, the Sheriff would have had
to take the plaintiff to New Orleans, since
abortions are not available in Terrebone Parish.)
Accommodating the plaintiff would therefore have
had an effect on prison resources, and there are no
ready alternatives to the court order policy that
would serve the Sheriffs interests. The court does
acknowledge that there is no alternative way to
exercise the right to abortion other than having an
abortion. The court dismisses the contrary decision
in Monmouth County Correctional Institutional
Inmates v. Lanzaro on the ground that it failed to
acknowledge the difference between transportation
for procedures that are medically required and
those that are not, and (at 597):
Besides its failure to
recognize the validity of any
restriction on the abortion right,
perhaps the most troubling aspect of
the Monmouth decision, is its
imposition of an affirmative duty on
the part of the government to
preserve inviolate the abortion right
during incarceration--a stance
wholly at odds with the
jurisprudence interpreting prisoner
access to virtually every other right
guaranteed by the Constitution. The
gist of the Monmouth decision is
that incarceration serves to broaden
the right to abortion rather than

curtail it any way--a result
completely opposite from
the norm. Under
Monmouth, inmates are
given far greater protections
of the abortion right in
prison than they ever would
have been entitled to in the
free world.
At 598:
Further, the exceptionally
broad reach of Monmouth is
demonstrated best by the court's
requirement that the prison
accommodate the abortion right in
those cases where the inmate is
unwilling or unable to pay for the
procedure--even where public funds
would necessarily have to be
allocated in order to accommodate
the inmate's request.
Monmouth was also decided before the Supreme
Court cases that applied the "undue burden" test.
A non-therapeutic abortion sought for
financial and emotional reasons is not a serious
medical need; it is "simply lacking in similarity and
intensity to the other medical conditions that have
been found to be serious medical needs under the
Eighth Amendment. . .. The inconvenience and
financial drain of an unwanted pregnancy are
simply insufficient in terms of the type of
egregious treatment that the Eighth Amendment
proscribes." (601)
Sexual Abuse/PLRA--Exhaustion of
Administrative Remedies/Personal Involvement
and Supervisory Liability/Qualified
Immunity/Pendent and Supplemental Claims;
State Law in Federal Courts
Morris v. Eversley, 205 F.Supp.2d 234
(S.D.N.Y.2002). The plaintiff complained of
sexual assault by a staff member.
The court rejects the claim that the plaintiff
failed to exhaust. She exhausted under the
summary "harassment grievance" procedures,
which the court deems a substitute for the usual
grievance procedure, in contradiction to the
decision in Houze v. Segarra. She complained to
the employee's supervisor; at that point, the

Superintendent was supposed to render a decision
within 12 working days, but did not do so. The
plaintiff did not appeal this non-decision, but was
not required to do so; the regulation says she "may"
appeal. The allegations were also brought to the
attention of the Inspector General's office, the
Attorney General's office, and the Manhattan DA's
office. "Under the circumstances," the plaintiff has
exhausted.
The plaintiff is also now released from prison.
If the court were to dismiss without prejudice, the
plaintiff could simply refile without exhausting.
Considerations ofjudicial efficiency and economy
advise against dismissal (241).
The plaintiffs allegations that defendants
knew officers at Bayview were engaging in sexual
contact with women prisoners (e.g., from prior
complaints, some corroborated by pregnancy) but
failed to act, and that they failed to act based on
reports (i.e., this plaintiffs report), sufficiently
alleged the personal involvement of the
Superintendent and the Assistant Deputy
Superintendent.
The defendants are not entitled to qualified
immunity, since sexual contact between officers
and staff is illegal in New York, and defendants are
charged with knowledge ofthe law.
Food/Pre-Trial Detainees/Justiciability/Cruel
and Unusual Punishment--Proof of Harm
Drake v. Velasco, 207 F.Supp.2d 809 (N.D.lll.
2002). The plaintiff alleged that Aramark Food
Services prepared food under unsanitmy
conditions.
The defendants argued that the plaintiffs
claim of injury was so abstract as not to state a case
or controversy. However, he "alleges that
Aramark's food preparation is so unsanitary as to
pose both an immediate risk to Drake's health, ...
and that the food served has hindered recovery
from his illnesses," and that is sufficient (812).
The plaintiffs allegations state a constitutional
claim. At 812:
Inmates are entitled to nutritionally
adequate food that is prepared and served
in such a manner that it does not
constitute an immediate danger to the
health of the inmates who consume it. ...
Food that "occasionally contains foreign
39

objects or sometimes is served
cold, while unpleasant, does not
amount to a constitutional
deprivation. . . . Even a dead
mouse in an inmate's meal was
only a minimal deprivation
without a showing of injury....
Drake is not merely complaining
about the quality of the food. He
claims that the food served does
not meet the minimal standards of
safety, and he alleges that the food
actually prevents his recovery and
that it is so routinely unsanitary
that it presents an immediate
threat to his safety. The constant
presence of contaminants can rise
to constitutional levels. [Citations
omitted]
The plaintiff sufficiently pled deliberate
indifference. At 813: The plaintiff "alleges that
Aramark failed to rectify deficiencies and failed to
ensure appropriate food handling practices and that
it knowingly provides food to inmates that is so
unsanitary that it presents an immediate risk to
Drake's health." It doesn't say that he ever told
Aramark about his illness or the quality of the
food, but a pleading need only convey enough
information that the defendant can understand the
gravamen of the complaint. "Furthermore,
defendants can be expected to know of systemic
conditions."
The risk of future injury pled by the plaintiff is
comparable to the risk held to be actionable in
Helling v. McKinney. At 813: "... [A]n even
closer analogy exists between unsafe drinking
water and unsafe food. In unsafe water cases,
courts have allowed claims to proceed without a
showing of present injury."

Federal Officials and
PrisonslRehabilitation/Procedural Due Process
Montalvo v. Snyder, 207 F.Supp.2d 581
(E.D.Ky. 2002). The plaintiff complained he was
wrongfully classified as a sex offender based on a
prior state conviction for criminal sexual abuse.
The court finds that federal prison policy supports
the classification, and classification decisions do
not present constitutional issues.
40

The classification based on a prior sex offense
does not violate the Ex Post Facto Clause because
it is not a punishment.
The classification does not deny due process
because there is no protected liberty or property
interest in avoiding the classification and the injury
(community notification) is speculative.

PLRA--Exhaustion of Administrative
Remedies/Exhaustion of RemedieslFederal
Officials and Prisons
Indelicato v. Suarez, 207 F.Supp.2d 216
(S.D.N.Y. 2002). The plaintiff alleged he was
placed on "refusal status" for declining to pay more
to the Inmate Financial Responsibility Program.
The plaintiff failed to exhaust his
administrative remedies. He said he repeatedly
asked for the necessary grievance form and did not
get it because inter alia his counselor was away for
two weeks. However, he made no attempt to
request the form when she returned, even though
there was time to do so, so he failed to make
sufficient reasonable efforts to exhaust. Since the
remedies are time-barred, the claim is dismissed
with prejudice.
The plaintiff also failed to follow the Federal
Tort Claims Act administrative claim requirement,
and his FTCA claim is dismissed on that ground.
PLRA--In Forma Pauperis Provisions--Filing
Fees
Burke v. Helman, 208 F.R.D. 246 (CD.Ill.
2002). In a multi-plaintiff case, defendants moved
to make each plaintiff pay the entire filing fee,
relying on Hubbard v. Haley. The court points out
that Hubbard doesn't support their position, since it
holds that the PLRA repeals the joinder provisions
of the Federal Rules for prisoners and every
prisoner has to file a separate lawsuit. The Sixth
Circuit has said that multiple plaintiffs should split
the filing fee. At 247:
None of these cases hold that multiple
plaintiffs in a single suit must each pay the entire
filing fee, which is what the defendants ask here. In
fact, such an interpretation would arguably
contradict the imprecation of the PLRA that "in no
event shall the filing fee collected exceed the
amount of fees permitted by statute for the
commencement of a civil action." 28 U.S.c. §

1915.
Inference of Congress' intent to
repeal Rule 20's joinder provisions from
the Act's use of the singular word
"plaintiff' (and nothing more) would be
unsound statutory construction. "In
determining the meaning of any Act of
Congress, ... words importing the
singular include and apply to several
persons, parties or things." I U.S.C. § 1.
I therefore conclude that there is no
conflict between the PLRA and
Fed.R.Civ.P.20, and I further disagree
with the prediction that the Seventh
Circuit would adopt the reasoning of the
Hubbard court.

Religion--Services Within InstitutionlReligion-Practices--Diet/Color of Law/Grievances and
Complaints about PrisonlRecreation and
ExerciselProcedural Due Process--Property
Allah v. al-HaJeez, 208 F.Supp.2d 520
(E.D.Pa.2002). The plaintiff, a member of the
Nation of Islam, complained that he was barred
from services for two months after a dispute with
the chaplain. The exclusion met the Turner
standard. At 529: "In a prison setting, avoiding
conflict is critical to maintaining order as well as a
safe and secure environment." The plaintiff had
alternative means of practicing his religion; he
could pray, meditate, study, and discuss religion
with other inmates. If he had been allowed to
attend services, prison officials would have needed
to monitor the services more closely, straining
prison resources. The plaintiff has not identified a
ready alternative.
The court notes (530 n.?) a conflict between
circuits as to whether prison chaplains act under
color of state law.
At 531: "The State does not have an
affirmative duty to provide every prisoner with the
clergy person or the service of his or her choice."
The plaintiff alleged significant differences
between Nation of Islam beliefs and those of the
prison chaplain; defendants said their policy was to
keep to a minimum the number of separate inmate
religious groups, since having too much
fragmentation "was perceived to permit or
encourage gang activity and inmate leadership

which contributed to incidents of unrest. "
Prisoners can't be allowed to lead religious groups
because their position of authority could be used to
exploit others. Defendants' policy of neither
recognizing a separate NOI group or hiring another
minister meets the Turner standard.
The policy prohibiting group exercise in the
yard is upheld under the Turner standard.
Defendants' policy allows no more than 10 inmates
in a group in the yard; the purpose is to avoid
prisoners' congregating where they cannot be
readily overheard. Monitoring larger groups would
strain prison resources.
The court rejects the plaintiffs' claim that he
received retaliatory disciplinary charges as a result
of his complaints, they followed his grievances by
two or three months, and he has no other evidence
of causal connection. In any case, the defendants
showed that they would have taken the same action
anyway. Apparently the court relies on the
disciplinary reports themselves (i.e., their recitation
of the plaintiffs conduct) as sufficient evidence
that the defendants would have done the same
thing anyway.

RehabilitationlMental Health Care/Statutes of
LimitationslEqual ProtectionlPre-Trial
Detention/Transportation to Court
Munoz v. Kolender, 208 F.Supp.2d 1125
(S.D.Cal. 2002). The plaintiff was held after the
expiration of his sentence pursuant to the state
Sexually Violent Predators Act. He spent some
time in a county jail after that point, in connection
with hearings on his commitment, and alleges that
such confinement is unconstitutional.
The plaintiff was not denied equal protection
because sexually violent predators are not similarly
situated to others civilly committed. Housing of
these civilly committed persons in county jails is
not unconstitutional because it is implicitly
contemplated by the state statute and "the need to
safely produce dangerous detainees for judicial
proceedings and associated logistical challenges
support the use of local law enforcement detention
facilities for that purpose and do not run afoul of
any constitutional right Munoz has identified."
(1144)

PLRA--Exhaustion of Administrative Remedies

4'

Rodriguez v. Hahn, 209 F.Supp.2d 344
(S.D.N.Y. 2002) (Marrero, J.). The plaintiffdid
not grieve his medical care complaint, so he failed
to exhaust. He grieved and appealed his use of
force case, but failed to exhaust because he did not
show that he had received a decision. The court
does not discuss and it can't be determined from
the opinion how long he waited for a decision; the
court simply says "there must be a final disposition
from CORC before such remedies are considered
exhausted" (348).

Certification of Classes
Skinner v. Uphoff, 209 F.R.D. 484 (D.Wyo.
2002). The plaintiff alleged that defendants'
policies, practices, and customs created an
unreasonable risk of assault, injury, and death at
the hands of other prisoners. These include
inadequate staffing, inadequate training, failure to
investigate inmate assaults and assess possible
remedial action, and failure to ensure reporting and
documentation of threats. The plaintiff seeks
damages for himself and injunctive relief for
himself and all other prisoners.
The fact that the state and the Department of
Justice have already entered into a settlement
agreement addressing inmate-inmate assaults does
not preclude class certification. (Plaintiffs argued
that "the report was too vague and general to effect
any real changes.") The court conditionally
certifies the class and says it will revisit
certification at the time of the dispositive motions
hearing.

Pleading/Statutes of Limitations
Mosley v. Jablonsky, 209 F.R.D. 48 (E.D.N.Y.
2002) (Wall, M.J.). The plaintiff sued over
excessive force and now seeks to amend to add
new defendants after the statute of limitations had
run.
Claims against new defendants relate back for
limitations purposes only if they were not named
because of a mistake (i.e., not because their
identities weren't known). There is no mistake of
fact here, since the plaintiff clearly knew their
identities. However, the rule also allows for
mistakes of law, and the plaintiff appears to have
made them, in that he was apparently not aware
that he needed to list individuals in the caption of
his complaint to make them parties, or that he
needed to make allegations about municipal
defendants in order to assert a Monell claim.
Rule 15(c) also requires that the defendants
have notice of the action and that but for an error
they would have been sued. They almost certainly
knew this, since they would have to have been
consulted or subject to discovery in connection
with the defendants who were named, and
knowledge of the pendency of an action can be
imputed to a new defendant where the defendant's
attorney knew that the additional defendant would
be added. The Nassau County Attorney's Office
"should have known that, given the deficiencies of
the original complaint," the new defendants would
be named, and would be added when the
mispleading became evident, except for one who
was not alleged actually to have taken part in the
beating and had no reason to think he would be
joined.

Publications/Deference
Dixon v. Kirby, 210 F.Supp.2d 792
(S.D.W.Va.2002). A prison rule prohibiting
prisoners from receiving catalogs does not violate
the Constitution. The justification was that
permitting catalogs on an "unlimited, unrestricted
basis" would swamp the mailrooms in sheer
volume, especially since they read and monitor the
mail. The defendants stated that they make
selected catalogs (J.C. Penney, Land's End)
available in the prison commissary and inmates
may "suggest" additional catalogs.
There is a valid, rational connection between
prohibiting catalogs and the legitimate interest in
avoiding overwhelming the mail rooms (also
security interests in avoiding smuggling and fires,
which the court picks up from other cases and not
the defendants' representations). The plaintiff has
alternatives, since catalogs are made available in
the commissary. Accommodating the plaintiffs'
desire to receive catalogs personally would have a
major impact on prison staff and resources. The
"ready, cost-effective and acceptable alternative" is
exactly what they are doing, making catalogs
available in the commissary.

Protection from Inmate Assault/Class Actions--

Good TimelReligion/Drug Dependency

42

Treatment
Nusbaum v. Terrangi, 210 F.Supp.2d 784
(E.D.Va.2002). Prison officials established a
"Therapeutic Community Program" emphasizing
religion for persons with a substance abuse history
and conditioned good time credits on participating
in it. The court previously found an Establishment
Clause violation. Now prison officials have
revised the program to make it more secular, but
the plaintiff complains about its continued
religious character.
Applying the per se rule against religious
coercion rather than the Lemon v. Kurtzman test,
the court holds that there is still an Establishment
Clause violation, since inmates must participate in
the Program or lose good conduct credits and be
unable to earn good conduct credits, and it retains
its religious character. At 789: "It may not be
possible, nor even necessary from a First
Amendment perspective, to remove all mention of
God or religion in discussions related to coping
skills and overcoming addictions. Nevertheless, it
does not appear from the record that staff members
have been intervening to negate any proselytizing."
The relevant law is clearly established based
on the prior district court decision from the same
institution, which the same defendants did not
appeal. To rule otherwise would let defendants
avoid liability by never appealing. Nonetheless,
the defendants have made a good faith effort to
comply, even though they failed, and reasonable
officers could have believed their conduct lawful.
Use of Force/PLRA--Termination of
Judgments/Judicial Disengagement
Sheppardv. Phoenix, 210 F.Supp.2d450
(S.D.N.Y. 2002) (Patterson, D.l.). The court
terminates a consent decree governing use of force
in the Rikers Island Central Punitive Segregation
Unit and engages in extensive discussion of the
remedial measures, their implementation, and the
important role of the "joint expert consultants"
named by the parties to monitor and report to the
court. It quotes the defendants' characterization
approvingly (at 452-53):
The Stipulation comprises 104 paragraphs
covering most aspects of the operation of
the CPSU, as well as investigations into
uses of force and discipline of staff found

guilty of misconduct. Not only have
defendants fully implemented the
provisions of the Stipulation, but DOC
personnel, on their own and in
conjunction with the expert consultants,
have implemented policies and
management structures that have
furthered the goals of the Stipulation even
though not specifically required by its
terms. Likewise, the IG has played an
oversight role beyond that specified in the
Stipulation, consistent with his
responsibilities under the City Charter. In
short, the success in the operation of the
CPSU is not merely a function of the
specific provisions of the Stipulation, but
is more fundamentally a function of the
commitment of DOC personnel and the
IG, assisted by the experts, to undertake
the difficult work of institutional reform.
Measures taken under the Stipulation included a
new use of force policy, a CPSU operating manual,
a revised training curriculum, a protocol for
evaluating prisoners' mental fitness for housing in
CPSU, orders requiring medical screening before
the use of chemical agents and the use of hand-held
video cameras for some use of force incidents,
detailed screening procedures and performance
reviews for CPSU staff, protocols for preparing use
of force reports, maintenance of a special unit to
investigate CPSU use of force, and maintenance
and expansion of a wall mounted camera system.
In addition, defendants implemented a "progressive
inmate disciplinary system" (an incentive program
providing privileges for good behavior), a cell
study program, segregation of the most problematic
and assaultive inmates, measures to deal with
refusal to close food slots, assignment of staff to
address social services issues, intensive monitoring
and tours by the Inspector General's staff.
Backlogs of investigative and disciplinary cases
were cleared up. Disciplinary penalty guidelines
were promulgated.
The court states that the goals of the
stipulation have been met, as demonstrated by
sharp declines in serious use of force incidents,
incidents of self-mutilation, inmate grievances, and
staff sick days and compensation claims. Since
there is no "current and ongoing violation ofthe
43

plaintiff class' constitutional rights" and "the
control mechanisms, including departmental and
independent oversight, are in place to ensure
continued safe operation of the CPSU" (460), the
court ends the injunction.
The plaintiffs did not oppose termination, and
no formal PLRA motion was filed.

NON-PRISON CASE
Use of Force--Restraints/Qualified Immunity
Threlkeld v. White Castle Systems, Inc., 201
F.Supp.2d 834 (N.D.IlI. 2002). Defendant police
officers are not entitled to summary judgment on
the plaintiffs claim of excessively tight

handcuffing in light of evidence that the cuffs left a
mark visible nearly two years later and continuing
pain in the plaintiffs wrists; there is no evidence
that the plaintiff resisted; the officers did nothing
in response to her complaint of pain, not even
checking how tight they were. At 841: "A
reasonable jury could conclude here that the
Officers placed the handcuffs tighter than was
reasonably necessary under the circumstances, and
that their indifference to Ms. Threlkeld's
complaints led to long-term injuries to her wrists."
Defendants are not entitled to summary
judgment on qualified immunity absent more
information about the training they received and
the circumstances of the cuffing.

Know Your Rights While in Prison
Now available on the ACLU's website at www.aclu.org/Prisons/PrisonsMain.cfm is the National Prison
Project's latest series of fact sheets on prisoner rights. The information can be easily downloaded by
prisoners' friends and family and then mailed to their loved ones in prison. Topics covered include:

Disabled Prisoners
Excessive Heat/Cold in Prison
Exposure to Environmental Hazards
Transfers
Disciplinary Sanctions
Mail

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

Prison Law Libraries
Medical Care
The Prison Litigation Reform Act
Visitation
Smoking

Non-Profit
U.S. Postage

PAID
Permit No. 5248
Washington, DC

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