AMERICAN CIVIL LIBERTIES UNION
Vol. 18, No.1, Summer/Fall 2004 -ISSN 1076-769X

Appeals Court Says Texas Prison Officials Can Be Sued for Discrimination
Based on Sexual Orientation
In a legal first, a unanimous federal appeals
court has ruled that seven ranking Texas prison
officials can be sued for damages due to
discrimination based on sexual orientation. The
September ruling by the Fifth Circuit Court of
Appeals came in a lawsuit filed by the American
Civil Liberties Union on behalf of a gay man who
was repeatedly raped by prison gangs and whose
pleas for help were ignored by officials.
Margaret Winter, Associate Director of the
ACLU's Nationa1.Prison Project and lead attorney
for the former prisoner, Roderick Keith Johnson,
applauded the decision. The ruling also upheld the
right to proceed in the case under the Eighth
Amendment's protection against cruel and unusual
punishment.
"I could not be more pleased that we are one
step closer to Roderick Johnson havin~ his day in
court," said Winter. "Once heard, Mr. Johnson's
testimony about the horrifying abuse he endured and
the prison staffs deliberate indifference to that
abuse will shock Texas citizens and hopefully bring
about improvements for all prisoners in similar
circumstances."
For 18 months, Johnson was housed at the
James A. Allred Unit in Iowa Park, Texas where
prison gangs bought and sold him as a sexual slave,
raping, abusing, and degrading him nearly every
day, the ACLU said in legal papers. Johnson filed
numerous grievances, letters, and complaints with
prison officials and appeared before the unit's
classification committee seven separate times
asking to be transferred to safe-keeping, protective
custody, or another prison, but each time they
refused, telling him that he must "fight or fuck."
Prison officials moved Johnson out of the Allred
Unit and into a wing designated for vulnerable
prisoners only after the ACLU intervened on his
behalf.

In its brief to the
appeals court, the ACLU
showed that Johnson had
produced ample evidence
that Texas prison officials
"were well aware of the
significant risk that ...[he]
would be raped and that they
consciously disregarded the
risk, arbitrarily denying him
protection." Indeed, direct
evidence provided by
Roderick Johnson, a
Johnson includes statements Navy veteran, was raped
by prison officers
and abused by Texas
prison
gangs.
announcing that they were
denying him protection
because it was up to Johnson to fight off predators if
he did not choose to sexually submit to them and
that he should "choose someone to be with" ifhe
wanted protection from rape.
In its unanimous ruling, the appeals court
noted the U.S. Supreme Court's 1994 ruling that
officials have a duty to protect prisoners from
violence at the hands of other prisoners. "[H]aving
stripped them of virtually every means to se1fprotection and foreclosed their access to outside aid,
the government and its officials are not free to let
the state of nature take its course," wrote Justice
David H. Souter in Farmer v. Brennan. "Being
violently assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses
against society."
Attorneys Winter and Craig Cowie ofthe
National Prison Project represented Johnson in his
lawsuit, Johnson v. Johnson, before the U.S. Court
of Appeals for the 5th Circuit. The case has now
been remanded to the U.S. District Court for the
Northern District of Texas. A trial date is set for
September 2005.

NATIONAL PRISON PROJECT JOURNAL

Threat of Illness Prompts Appeals Court
to Affirm Order to Cool Supermax Prison

SummerlFall 2004

health consequences or death is not a reasonable
alternative."
Prior to an agreement reached in Jones-El v.
Berge in January 2002, prisoners at Wisconsin's
supermax lived in isolation cells where lights burned
24 hours a day and mentally ill prisoners suffered
from inadequate mental health care.

The American Civil Liberties Union in July
welcomed a ruling from the U.S. Court of Appeals
for the Seventh Circuit that prison officials must cool
prisoners' cells at a super-maximum facility where
the heat index is known to have reached 125 degrees.
"Doctors have found the extreme heat at
Officials Seek to End Consent Decree
Wisconsin's Secure Program Facility jeopardizes the
lives and safety of the men confined in isolation
Despite Violations at Baltimore Jail
there," said David C. Fathi of the ACLU's National
At a hearing in August before U.S. District
Prison Project. "Providing mechanical cooling is not
Court Judge Frederick Motz, the American Civil
a luxury, it is a medical necessity."
Liberties Union and Public Justice Center countered
Today's decision upholds a U.S. District
Maryland officials' attempt to end a federal consent
Court order issued in November 2003 by Judge
decree governing conditions at the Baltimore City
Barbara Crabb in a lawsuit brought by the National
Detention Center, where constitutional violations
Prison Project and the Madison law firm Garvey &
persist.
Stoddard regarding inhumane conditions at
"Dangerous inadequacies in the provision of
Wisconsin's super-maximum prison in Boscobel.
medical services and maintenance at the j ail pose
"Defendants constructed a facility in which
grave risks to the health and safety of detainees
inmates are subjected to temperatures that can pose a confined there," said Elizabeth Alexander, Director of
serious risk to their well-being, particularly ifthey are the ACLU's National Prison Project. "Maryland
taking medications or have health conditions that
officials' move to terminate federal oversight of the
prevent their bodies from adjusting to high heat,"
detention center is exceedingly premature."
wrote Judge Crabb in her ruling. "If air conditioning
The ACLU and Public Justice Center
is the only means of avoiding that risk, that is a
highlighted at the hearing numerous complaints from
function of defendants' decision to build the facility
j ail detainees who have encountered long delays in
as they did. Leaving inmates vulnerable to serious
receiving medical evaluations and treatment. For
example, many detainees entering the jail already
taking medications for HIV wait months to receive
the drugs they need and risk developing HIV that is
NATIONAL PRISON PROJECT JOURNAL
resistant to drug therapy. Detainees with diabetes,
hypertension and mental illness suffer similar neglect
NPP Director: Elizabeth Alexander
because proper medical evaluations when entering the
Editor: Kara Gotsch
jail are not conducted and necessary treatments are
The National Prison Project is a special project of
delayed. The ACLU and PJC found that detainees
the ACLU Foundation. It seeks to strengthen and protect
with mental health problems deteriorate because of
the rights of adult and juvenile prisoners, improve overall
the
excessive delay in seeing a psychiatrist and lack
conditions in correctional facilities, and develop alternatives
to incarceration.
of access to their medications.
The Journal is published biannually by the
Arguments on behalf of detainees also pointed
ACLU's National Prison Project, located at 915 15 th St.,
th
to problems with sanitation, plumbing and rodent and
NW, 7 Floor, Washington, DC 20005. Contact us by phone
at (202) 393-4930, by fax at (202) 393-4931 or through
insect infestations at the jail that pose a serious threat
email at kgotsch@npp-aclu.org for more information. (NO
to
public health. Sewage has repeatedly flooded
COLLECT CALLS PLEASE)
dormitories and inadequate laundry facilities cause
The reprinting of Journal material is encouraged
with the stipulation that the Journal is credited as the source
detainees to resort to washing their clothes in toilets,
of the material, and a copy of the reprint is sent to the editor.
increasing the risk of dangerous drug-resistant staph
Subscriptions to the Journal are $30 per year ($2 for
infections. Furthermore, public health authorities
prisoners), prepaid by check or money order.
have noted that if food services at the jail were a

I

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NATIONAL PRISON PROJECT JOURNAL

private operation, they would seek to close it.
"The dilapidated cellblocks at BCDC, in
combination with the constitutionally inadequate
medical care provided to detainees, create hazardous
living conditions," said Sally Dworak-Fisher, an
attorney with the Public Justice Center. "The only
way to protect the safety of the men and women
housed at BCDC is to continue the independent
oversight the court system now has in place."
In December 2003, the ACLU and PJC filed a
motion to enforce the medical and physical plant
provisions in a decade-old consent decree that is now
being challenged by Maryland officials. The terms of

SummerlFaIl 2004

the order in Duvall v. Glendening require BCDC to
maintain suitable health and safety standards but,
according to detainees, jail officials have not fulfilled
their obligations.
In August 2002, the U.S. Department of
Justice issued a damning report on the BCDCafter an
investigation found unconstitutional conditions there.
The report concluded that "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."

New Report Documents Harsh Conditions Faced by Women on Death Row
A new report released in November by the
American Civil Liberties Union -- the first-ever
national survey of women currently on Death Row-found that women who have been sentenced to death
are often subjected to harsh living conditions,
including being forced to live in virtual isolation, and
many are sentenced for crimes that do not result in a
death sentence for men.
"For the first time, we have a snapshot of the
. experience of women on Death Row - and the picture
is grim," said Rachel King, a staff attorney with the
ACLU Capital Punishment Project and one ofthe
authors of the report. "Women who have been
condemned to death are put into isolation and forced
to endure abusive and degrading conditions that
simply have no place in our criminal justice system."
The report, The Forgotten Population: A Look
at Death Row in the United States Through the
Experiences of Women, details the experiences of 56
women living on death row, and also reviews the case
files of 10 women who have been executed since
1976. The report found that women on Death Row
face similar problems as men, such as inadequate
defense counsel and struggles with drug and alcohol
addictions, but that women are subj ected to harsher
living conditions because of their small numbers.
The report was released as Texas prepared to
execute Frances Newton, despite serious doubts about
the evidence in her case. The state's case against
Newton, who has maintained her innocence from the
beginning, was based almost entirely on ballistics
evidence processed at Houston's now-discredited

crime lab, which has been under widespread
investigation since August when police found 280
boxes of mislabeled and improperly stored evidence
from 8,000 cases dating back more than a decade.
Newton's court-appointed attorney also failed to
interview any witnesses in preparation for the trial.
Her story, along with the personal stories of seven
other women on Death
Row, is detailed in an
appendix to the report.
The report makes
13 recommendations to
improve conditions for
women on Death Row as
well as ensure that women
receive fair and adequate
defense counsel when
charged with capital
offenses. The
recommendations include:
Rev. Jesse Jackson comforts
establishing training
Oklahoma Death Row prisoner
programs for defense
Wanda Jean Allen, shortly
lawyers to investigate
before her execution.
abuse and raise the issue at
trial; integrating women on Death Row into regular
prison units and providing them with opportunities to
work; adopting prison staffing policies to prevent
abuse; and amending the Prison Litigation Reform
Act to provide women who are sexually abused in
prison with access to the court.
Among the key findings of the report:
•
Women on Death Row often had
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NATIONAL PRISON PROJECT JOURNAL

ineffective legal counsel and were
victims of misconduct by prosecutors
or law enforcement.
More than half of the women have
•
suffered regular, ongoing physical
abuse by family members or spouses.
Half ofthe women on Death Row
•
acted with at least one other person,
but in most of those cases, the codefendant received a sentence other
than death-even in cases where they
appeared to be equally culpable.
Many women on Death Row live in
•
almost complete isolation, which puts
them at a serious risk of developing
mental illness, or exacerbating
existing mental illness.
•
A third of the women surveyed said
that corrections officers watch them
when they use the toilet, shower or
change clothes.
Since 1973, 148 women have been sentenced
to death in the United States. There are currently 50
women on Death Row, according to the Death
Penalty Information Center.
The report is online at www.aclu.org. A
Spanish language version will be available soon.

Discrimination Against HIV+ Prisoners Ends
The American Civil Liberties Union in June
applauded a federal court order that finally ends all
sanctioned discrimination against prisoners with
HIV/AIDS who are banned from participation in
community work programs because of their illness.
"After 14 years of battling Mississippi's
policy of segregating HIV-positive prisoners, these
men and women will no longer be denied access to
community corrections programs that help to
rehabilitate them and speed their return home," said
Margaret Winter, Associate Director ofthe ACLU's
National Prison Project and lead-counsel for the
prisoners.
"Now, with only Alabama continuing to
exclude all prisoners with HIV/AIDS from
community corrections programs, we hope to soon
see the end of the era of officially sanctioned HIV
discrimination in American prisons," Winter added.
U.S. Magistrate Judge Jerry A. Davis issued
4

Summer/Fall 2004

his decision ordering the Mississippi Department of
Corrections to "allow HIV-positive prisoners who
otherwise meet the criteria for Community Work
Centers to participate in Community Work Centers,
on the same basis as prisoners who do not have HIV."
Lifting the ban on prisoners with HIV/AIDS
remedies the last discriminatory component of
Mississippi's decades-old segregation policy. In
2000, then-Commissioner Robert L. Johnson
appointed a task force to study the issue of access to
in-prison programs for HIV-positive prisoners. The
Task Force, which included staff from the ACLU's
National Prison Project and the Mississippi ACLU,
recommended the integration of prisoners with HIV
into educational and vocational programs. Shortly
thereafter, the commissioner announced that he had
decided to adopt the recommendations of the Task
Force. In September 2001, Mississippi began
allowing people with HIV to participate in all inprison vocational, rehabilitation and educational
programs. HIV-positive prisoners were still excluded
from community corrections programs, but a huge
step forward had been taken.
"I am proud to say that Mississippi has closed
the door on sanctioned HIV discrimination within its
prisons," said Nsombi Lambright, Executive Director
of the ACLU of Mississippi. "This new change
protects prisoners and the public because providing
employment opportunities to more prisoners eases
their reentry into the community and lessens~the
likelihood of recidivism."
As of March 2004, there were 238 prisoners
with HIV in Mississippi prisons. In 1985, 38 state
prison systems segregated all prisoners with HIV, and
another eight segregated prisoners with asymptomatic
HIV. Today, only Alabama continues a segregation
policy that blocks all prisoners with HIV from
participating in community corrections programs.
There is no valid evidence that segregating prisoners
with HIV reduces the transmission ofHIV within
pnsons.
Winter of the ACLU's National Prison Project
and Jackson attorney Elizabeth Jane Hicks represent
the prisoners in the lawsuit, Gates v. Collier,
consolidated with Moore v. Fordice.

Man Raped by Guard Receives Damages
A 25-year-old Texas prisoner, who was

SummerlFaIl 2004

NATIONAL PRISON PROJECT JOURNAL

repeatedly raped by a prison guard with a history of
sexual assault, accepted a settlement in which his
rapist and the assistant warden who failed to protect
him agreed to pay money damages, the American
Civil Liberties Union announced in December.
"This settlement victory provides hope for the
untold men and women raped in prison by officers
and staff," said Margaret Winter, Associate Director
of the ACLU's National Prison Project and the
prisoner's attorney. "Victims of sexual assault in
prison often feel powerless in opposing their attackers
and must overcome tremendous intimidation and fear
of retaliation before they can even report abuse.
Nathan Essary's success in fighting back provides a
powerful reminder that abuse of prisoners will not go
unpunished."
According to an ACLU lawsuit, Nathan
Essary was ordered to masturbate and perform oral
sex on Officer Michael Chaney at the Luther Unit in
Navasota, Texas on multiple occasions in October
2001. Essary reported the abuse to Luther Unit
Assistant Warden Jerry Barratt, who promised him
protection. However, that same day Essary was
forced to return to work at the prison laundry where
Chaney supervised him and sexually assaulted him
agam.
During two separate attacks, Essary secretly
collected Chaney's ejaculate on a handkerchief and

mailed a sample to the United States Attorney in
Houston. After DNA testing on the sample linked
Chaney to the sexual assaults, Prison Prosecutor
Kelly Weeks issued an affidavit for Chaney's arrest
in January 2002.
When the ACLU filed its lawsuit against
Chaney and Barratt on Essary's behalf in October
2002, information emerged that Chaney had sexually
harassed and abused other prisoners at the Luther
Unit, but complaints from prisoners to prison staff
were repeatedly ignored. In a statement filed in
federal court, former prisoner Garrett Cunningham
said he was anally raped in the same laundry area one
year prior to Essary's assault. After reporting the rape
to prison staff, Cunningham was transferred from his
job in the laundry to a position in the room next door.
Chaney continued to harass Cunningham but
complaints against the officer were never
investigated.
"Victims of prison rape suffer at the hands of
both their attackers and the administrators who
choose to ignore their pleas for protection," said
Meredith Martin Rountree, Director ofthe ACLU of
Texas' Prison and Jail Accountability Project and cocounsel in the lawsuit. "The Texas Department of
Criminal Justice's inaction is intolerable and
unconstitutional."

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

IUnited States Court of Appeals Cases I
Use of Force--Weapons/Qualified Immunity
Marquez v. Gutierrez, 322 F.3d 689 (9th Cir.
2003). The defendant officer shot the plaintiff in the
leg during a prisoner melee. The plaintiff and others
alleged he was not involved in the fight, though he
was close to it. Under Whitley v. Albers, plaintiffs
version of the facts states a claim, and the relevant
law was clearly established by Whitley.
The court rejects the argument that a
defendant "cannot act maliciously and sadistically
while, at the same time, believing his actions conform
to clearly established law." (693) This is the same

argument the Supreme Court rejected in Saucier v.
Katz. The qualified immunity inquiry is separate. A
reasonable official standing in a tower 360 feet away
from the disturbance could have perceived the
plaintiff as involved and as threatening the victim's
safety. Since a reasonable officer could believe that it
was legal to shoot one inmate in the leg to stop an
assault that might injure or kill another inmate, the
defendant is entitled to qualified immunity.

PLRA--Exhaustion of Administrative Remedies
Days v. Johnson, 322 F.3d 863 (5th Cir.
2003). The plaintiffs grievances were dismissed as
untimely. He said that he couldn't file a timely
grievance because his hand was broken.
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NATIONAL PRISON PROJECT JOURNAL

At 866: "Since the amendment of § 1997e, this
Court has taken a strict approach to the exhaustion
requirement." The court acknowledges that it has
implicitly held that "one's personal inability to access
the grievance system could render the system
unavailable." (867) Here, the facts as alleged by
plaintiff indicated that his injury prevented his timely
filing a grievance and his untimely grievance was
returned unprocessed (meaning he couldn't appeal).
He has sufficiently exhausted. At 867-68:
We, of course, do not hold that
an untimely grievance in and of itself
would render the system unavailable,
thus excusing the exhaustion
requirement. Such a holding would
allow inmates to file suit in federal
court despite intentionally evading the
PLRA's exhaustion requirement by
failing to comply with the prison
grievance system. . .. We emphasize
that our holding is limited to the
narrow facts of this case. More
specifically, administrative remedies
are deemed unavailable when (1) an
inmate's untimely filing of a grievance
is because of a physical injury and (2)
the grievance system rejects the
inmate's subsequent attempt to exhaust
his remedies based on the untimely
filing of the grievance.

SummerlFall 2004

damages." The district court, however, said the state
court order in question did not prohibit the defendants
from transferring the plaintiff to put him in protective
custody or from protecting him where he was held.
The question presented is one of law, not fact, so the
court has appellate jurisdiction over their immunity
appea1. The court agrees with the district court's view
ofthe order.
The district court rejected the defendants'
claim of quasi-judicial immunity as to the Central
Institutional Classification Committee, citing
Cleavinger v. Saxner's similar conclusion about
prison disciplinary officials. However, Cleavinger
"did not hold per se that prison officials can never
receive quasi-judicial immunity" (786); it analyzed
the degree of independence of the officials involved
and the procedural protections in the process, and the
district court failed to do so here.

Mootness/Publications/Administrative
Segregation--High Security/Religion/Deference/
Qualified Immunity
Sutton v. Rasheed, 323 F.3d 236 (3d Cir.
2003) (per curiam). In maximum security
segregation units, prisoners were forbidden any books
except legal materials and "a personal Bible, a Holy
Koran, or equivalent publication," or in some cases
other religious materials. The Nation ofIslam
plaintiffs were denied materials by Fard Muhammad,
Elijah Muhammad and Louis Farrakhan by Imam
Rasheed, the Muslim Chaplain, as allegedly not
Protection from Inmate Assault/Judicial and
religious in nature. A Reverend Smith agreed, stating
Prosecutorial Immunity
inter alia "Religion, by definition, begins and ends
Hamilton v. Leavy, 322 F.3d 776 (3d Cir.
with a search for and discovery of God." The policy
2003). The plaintiff, who has been repeatedly
was later changed, but prisoners were still denied
attacked by other prisoners for cooperating with law
NOI materials, in part because "religious" was poorly
enforcement, was transferred to another state; he was defined. After more policy changes the district court
held the controversy moot.
returned to Delaware so he could prosecute those
The case is moot, since it was not certified as
actions effectively. While he was there, a guard
accused him of being a snitch, and officials
a class action, the plaintiffs are released or
confirmed this event. Although the "Multitransferred, the defendants have changed their policy
Disciplinary Team" recommended protective custody, and have represented to the court that it would not be
the Central Institutional Classification Committee did rescinded, and there are "strong administrative
nothing. A month later a new cellmate seriously
incentives making it unlikely that the new policy will
injured the plaintiff.
be reversed" (i.e., they'd have to waste more time
At 782-83: "The defendants are correct that
determining what is "religious" or not). (249)
action taken pursuant to a facially valid court order
Before commencing a Turner analysis for
receives absolute immunity from § 1983 lawsuits for plaintiffs' damage actions, the court must determine
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NATIONAL PRISON PROJECT JOURNAL

whether plaintiffs' request for NOI materials
"stemmed from a constitutionally protected interest"-i.e., whether their beliefs were sincerely held and
religious in nature. (Why their desire to read any
book, religious or not, isn't constitutionally protected
is not explained.) The court reiterates its prior
definition of religion, based on "indicia" including
"(1) an attempt to address 'fundamental and ultimate
questions' involving 'deep and imponderable matters';
(2) a comprehensive belief system; and (3) the
presence of formal and external signs like clergy and
observance of holidays." (251 n.9). It adds that the
Supreme Court "has provided some guidance" in
Church ofthe Lukumi Babalu Aye, Inc. v. City of
Hialeah, which said that religious beliefs "need not
be acceptable, logical, consistent, or comprehensible
to others," and that given the "historical association
between animal sacrifice and religious worship,"
plaintiffs' claim that animal sacrifice is religious must
be accepted. The court then visits the Nation oflslam
Web site and concludes that its tenets meet those
"definitions." (252)
The defendants lose under the Turner
standard on the policy as applied, because they
improperly denied access to Nation oflslam materials
as not religious, so there is no valid, rational
connection to a legitimate purpose. (The purpose
cited was to maintain a secure environment with
respect to searches and fire safety and to encourage
"recalcitrant" prisoners "to engage in more
responsible and acceptable behavior.")
The plaintiffs did not have alternative means
of religious exercise. The court distinguishes its prior
case saying a Buddhist denied his religious diet had
alternative means of practice; here the plaintiffs
"were deprived oftexts which provide critical
religious instruction and without which they could
not practice their religion generally." (255) The court
emphasizes that these works are viewed as divinely
inspired. It attempts to distinguish deprivations that
mean a person cannot "practice his religion generally"
from mere "single aspect[s] ofre1igious worship,"
and suggests that a complete prohibition on the
Catholic Mass would also fall into the former
category.
The consequences of accommodating the
plaintiffs' rights are not serious, since the defendants
now accommodate the plaintiffs' rights. There is an

Summer/Fall 2004

"obvious, easy alternative"--let them have the books-which the defendants now do.
The defendants are entitled to qualified
immunity. It has not always been clear that the
Nation oflslam is a religion, nor is it always clear
what restrictions on religious rights pass muster.

Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Gomez v. Graves, 323 F.3d 610 (8th Cir.
2003). The petitioner challenged his disciplinary
conviction, arguing that he should have been
convicted only of fighting, not of assault. He
proceeded via petition for habeas corpus after
exhausting state remedies, since he lost good time.
In habeas, review is limited to whether the
state courts' ruling "was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court."
This conviction was reasonable in light ofthe "some
evidencell standard. Evidence that the petitioner
struck another prisoner repeatedly in the face, which
is consistent with an intent to injure, brought the
charge within the assault rule. The allegation that the
incident involved mutual combat between two
individuals does not require classification as fighting;
it could fit either offense's definition, and the
evidence could be understood as showing "more than
just a fight."
PLRA--Exhaustion of Administrative Remedies/
Procedural Due Process--Disciplinary Proceedings
Ortiz v. McBride, 323 F.3d 191 (2d Cir. 2003)
(per curiam) (Calabresi, Sack, and Pauley, D.J.).
The plaintiffs allegation that he was subject to
"unusually harsh" conditions in SHU for 90 days
means that his due process claim is not frivolous. At
195: "... [D]uration is not the only relevant factor.
The conditions of confinement are a distinct and
equally important consideration in determining
whether a confinement in SHU rises to the level of
'atypical and severe hardship' as required by Sandin."
For that matter, this circuit's prior decisions don't
necessarily establish a per se rule that 101 days of
ordinary SHU confinement don't involve a liberty
interest.
Use of Force/Summary Judgment
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NATIONAL PRISON PROJECT JOURNAL

Martinez v. Stanford, 323 F.3d 1178 (9th Cir.
2003). The plaintiffs failure to comply with a local
rule requiring timely opposition to a summary
judgment motion did not justify the grant of summary
judgment; the moving party must demonstrate its
entitlement to judgment.
In this use of force case, the officers' claims
about the incident were contradicted by the plaintiffs
deposition, which was in the record and which was
referred to in the officers' papers even though he did
not file an opposition to their motion. Moreover, the
district court, reviewing that evidence, had found a
triable issue of fact on the officers' prior summary
judgment motion.

Establishment of Religion
Freedom From Religion Foundation, Inc. v.
McCallum, 24 F.3d 880 (7th Cir. 2003). State
funding of a halfway house that incorporates
Christianity into its treatment program did not violate
the Establishment Clause. Parole officers who
recommend the program explain that the
recommendation is non-binding and offer a secular
alternative (though the secular alternatives are all
much shorter programs). This practice is similar to
the school vouchers upheld by the Supreme Court in
Zelman v. Simmons-Harris in that the choice is left
up to the individual. The fact that the religious
program is a better program than the others doesn't
make it coercive.
Pre-Trial Detainees/Protection from Inmate
Assault/Municipalities/Personal Involvement and
"
Supervisory Liability/Summary
Judgment
Palmer v. Marion County, 327 F.3d 588 (7th
Cir.2003). The plaintiffwas attacked by members of
the Gangster Disciples. He identified his assailants
after being assured he would be moved elsewhere in
the jail for safety, but was placed in a unit with other
gang members, where he was attacked again and not
found until the next day; another prisoner who was
beaten was not found for two days. The plaintiff sued
the City, the County, and the Sheriff, but not the
officers he dealt with.
The Sheriff could not be held liable because
there was no showing that he "acquiesced in some
demonstrable way in the alleged constitutional
violation." That means the plaintiff must show that
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SummerlFall 2004

the Sheriff "actually knew that Palmer was assigned
to Cell Block 2T and that the Sheriff inferred from
that assignment that there was a substantial risk of
serious harm" to him. (This appears contrary to
Farmer v. Brennan, which states explicitly that a
defendant need not be shown to have known of the
particular risk to the particular prisoner to be held
liable if there was actual knowledge of a risk to some
or all prisoners.)
The municipality could not be held liable
because the plaintiff submitted no evidence to
support his allegation of a jail policy of placing black
prisoners in "gladiator" blocks and failing to respond
to overt acts of violence in them. The plaintiffs
affidavit stating his own observations over a short
period oftime of assaults he observed (i.e., two in a
year's time) fail to demonstrate a pattern indicating an
unconstitutional custom or practice. At 596: "When
a plaintiff chooses to challenge a municipality's
unconstitutional policy by establishing a widespread
practice, proof of isolated acts of misconduct will not
suffice; a series of violations must be presented to lay
the premise of deliberate indifference." His assertion
of racial segregation is supported only by his own
affidavit. At 596: "This Court, on numerous
occasions, has made it clear that self-serving
affidavits, without any factual support in the record,
are insufficient to defeat a motion for summary
judgment." He could have asked the criteria for cell
assignment in discovery or could have obtained raw
data about cell assignments and the frequency of
inmate-inmate assaults.

Federal Officials and Prisons/Protection from
Inmate Assault
Verdecia v. Adams, 327 F.3d 1171 (10th Cir.
2003). The plaintiff alleged that he was placed in a
cell with gang members who assaulted him because
he was Cuban. The defendants were entitled to
qualified immunity. The fact that there had been two
recent incidents of violence between Latin King and
Cuban inmates, one in the same prison, was
insufficient to show that the defendants were
subjectively aware of a substantial risk of serious
harm or that they were deliberately indifferent. (An
investigation had shown that the incident in the same
prison was an "isolated incident." Exactly what that
has to do with the prospect of future retaliation for

NATIONAL PRISON PROJECT JOURNAL

SummerlFall 2004

that same incident is not explained.) Failure to
alleviate "a potential risk that should have been
perceived, but was not, does not satisfy the deliberate
indifference standard ...."

date and location of his punishment, since he was not
free to leave and jail time was the sanction for failing
to perform the exercise regimen. The court reserves
whether non-prison punishment such as community
service or drug rehabilitation is reviewable under the
Evidentiary QuestionslUse of Force
Eighth Amendment.
Parker v. Reda, 327 F.3d 211 (2d Cir. 2003)
The boot camp program did not violate the
(per curiam) (Jacobs, Straub, Wood, JJ.). The
Eighth Amendment proportionality principle. At
plaintiff lost his excessive force claim before a jury.
209: "Requiring youthful offenders to perform
The district court did not abuse its discretion in
military-styled exercises for one day is neither cruel
allowing a defendant correctional sergeant who said
nor unusual; it is a deliberate policy choice to instill
he remembered nothing about the incident to read his much-needed discipline." The court disagrees that it
contemporaneous memorandum into evidence. The
the punishment was disproportionate to the crime,
evidence was admissible under Rule 803(5),
"emphasizing the reasonable flexibility that should be
Fed.R.Ev., as past recollection recorded. That
accorded local authorities to deal with wayward
holding is not inconsistent with the trial court's prior
youths."
ruling that the memorandum lacked sufficient indicia
Defendants were not entitled to qualified
of reliability to be admitted as a business record,
immunity for failing to call for an ambulance until the
since the business records hearsay exception is based plaintiff had been unconscious almost two hours.
on a different rationale than the past regulation
The lack of a case in point does not matter under the
recorded rule.
"fair warning" principle of Hope v. Pelzer. At 210:
It would have been "the better practice" to
"Given the serious medical consequences of
exclude the memo's conclusion ("The amount of
dehydration, a reasonable person would not have
force used was minimal and only that much necessary waited nearly two hours to call an ambulance once
to gain control of the inmate"), but the error was
John E became unconscious."
harmless because the sergeant was available for
Defendants were not entitled to official
cross-examination (e.g., had he ever concluded that
immunity from state law negligence and gross
there had been undue use of force?) and because the
negligence claims, since the immunity depends on a
record included "opposing accounts ofthe use of
good faith element substantially similar to qualified
force that were sufficiently detailed to permit the
immunity. One defendant is immune from state law
jurors to draw their own conclusions as to whether
claims for breach of fiduciary duty and fraud, since he
the force used was proper." (215)
made sufficient disclosure of the program's
conditions.
Juveniles/Heating and Ventilation/Work
Assignments/Qualified Immunity/Cruel and
False Imprisonment/Municipalities
Unusual Punishment/Medical Care--Access to
Brass v. County ofLos Angeles, 328 F.3d
Medical Personnel/State Law Immunities_
1192 (9th Cir. 2003). The plaintiff was arrested,
Austin v. Johnson, 328 F.3d 204 (5th Cir.
proved to be the wrong guy, but was detained for 39
2003). The minor plaintiff was caught stealing a
hours after a court ordered him released.
candy bar and was sent to a one-day boot camp, the
The County's alleged policy and custom of not
"Strength through Academics and Respect" program, processing court-ordered releases until all other
releases have been processed (e.g., those finishing
where after a day of exercise he suffered heat stroke
and was hospitalized for two weeks, suffering acute
their sentences) does not violate the Constitution. At
renal failure, hepatitis, and pancreatitis. (He
1200: "The order in which the Sheriffs Department
recovered.)
handles prisoner releases is an administrative matter
Commitment to a one-day boot camp program primarily within the Department's discretion."
is subject to Eighth Amendment scrutiny,
notwithstanding that the offender could choose the
Publications/Qualified Immunity/Injunctive Relief
9

NATIONAL PRISON PROJECT JOURNAL

SummerlFall 2004

Krug v. Lutz, 329 F.3d 692 (9th Cir. 2003).
The plaintiff complained of censorship of a
magazine. The plaintiff has a "liberty interest in the
receipt of his subscription mailings sufficient to
trigger procedural due process guarantees."
Procunier v. Martinez recognized a liberty interest
grounded in the First Amendment in uncensored
communication by letter, and it extends to "receipt of
subscription publications" as well as letters (696-97).
At 697 n.4: Defendants' claim that there is no liberty
interest in obscene material misses the point; the
plaintiff "has a right to receive his nonobscene
subscription materials and a corresponding right to
fair procedures governing the withholding of
allegedly obscene materials." This circuit has
repeated said the procedural protections of Procunier
are applicable to publications, and two-level review is
one of those protections (and it has said this after
Thornburgh v. Abbott, so it rejects the notion that the
procedural aspects ofProcunier are now limited to
outgoing mail).\c
The defendants are entitled to qualified
immunity. Even though the right to two-level review
was over 20 years old at the relevant time, defendants
could have believed their conduct legal because ofthe
existence of a consent decree about censorship that
didn't mention two-level review.

relevant official "educated himself about Muslim
practices" before determining that a vegetarian diet
was unnecessary. Apparently no argument was
presented that the plaintiffs own beliefs and not some
orthodoxy are the measure of his rights.

Pre-Trial Detainees/Religion--Practices--Diet
Kind v. Frank, 329 F.3d 979 (8th Cir. 2003).
The Muslim plaintiff asked for a vegetarian diet but
was given only a pork-free diet absent any
documentation that Islam requires a vegetarian diet.
After the Minnesota Department of Human Rights
found probable cause to support the plaintiffs
complaints, the jail changed its policy, but the
plaintiff was out of the jail by then.
The defendants are entitled to qualified
immunity, since it is not well established that
Muslims must be offered a meat-free diet, and the

Homosexuals and Transsexuals/Medical Care-Standards of Liability--Serious Medical Needs,
Deliberate Indifference
De'Lonta v. Angelone, 330 F.3d 630 (4th Cir.
2003). The plaintiff, consistently diagnosed with
gender identity disorder, was receiving estrogen
therapy until it was terminated pursuant to a policy
that "neither medical nor surgical interventions
related to gender or sex change" will be provided.
The policy said hormone treatment should be tapered
off, but the plaintiffs treatment was stopped abruptly,
resulting in an uncontrollable urge to mutilate her

Qualified Immunity/Procedural Due Process-Classification, Disciplinary Proceedings
Wilkerson v. Stalder, 329 F.3d 431 (5th Cir.
2003). The three plaintiffs alleged that their
confinement in Angola State Penitentiary in extended
lockdown (23-hour cell confinement) for about 30
years violated the Eighth Amendment and that the
reviews they receive every 90 days are shams and
deny due process. (The prisoners alleged that the
review board members discussed subjects like
hunting and fishing, and when they tried to discuss
the merits oftheir cases, were told that the review
board was "not the place to litigate.") Two of them
had apparently been convicted of murdering a guard;
the third was convicted of murdering an inmate (his
conviction was overturned after 29 years).
At 435-36:
Generally, courts are not concerned
with a prisoner's initial classification
level based on his criminal history
before his incarceration. This circuit
has continued to hold post-Sandin that
an inmate has no protectable liberty
Searches--Person/Prison Records
interest in his classification.
Velasquez v. Woods, 329 F.3d 420 (5th Cir.
2003) (per curiam). The compelled collection of
Thus, if the inmates'
DNA samples from prisoners under state statute does·
confinement in extended lockdown is
not the result of their initial
not violate the Fourth Amendment. The refusal to
classification, the Sandin test would be
expunge false information from the plaintiffs prison
triggered.
record does not violate a constitutional right.

10

NATIONAL PRISON PROJECT JOURNAL

genitals.
The plaintiff did not dispute the district court's
ruling that the abruptness oftennination ofhonnone
therapy did not violate the Eighth Amendment.
However, the failure to address her urge to selfmutilation did state an Eighth Amendment claim, in
light of the uncontradicted allegation that defendants
knew that her compulsive self-mutilation began after
the discontinuation ofhonnone therapy, and the lack
ofjustification in the record either for the policy
requiring tennination ofhonnone treatment or for the
denial of any other treatment to prevent her
continuing self-mutilation.
This is not a case of disagreement with
medical judgment; the record supports the inference
that the denial ofhonnone treatment "was based
solely on the Policy rather than on a medical
judgment concerning De'lonta's specific
circumstances." (635) Besides, the appropriateness
of denial ofhonnone treatment did not refute the
allegation of denial of treatment to suppress the
compulsion to self-mutilate. The fact that she was
placed in a mental health facility and received some
treatment that may have alleviated her compulsion
does not show that the treatment was provided for
that purpose or was deemed to be a reasonable
method of preventing further mutilation. The court
says it is not addressing issues not yet addressed by
the district court, including the type of treatment to
which the plaintiff is entitled. The need for
protection against continued self-mutilation
constitutes a serious medical need.

SummerlFall 2004

Gean v. Hattaway, 330 F.3d 758 (6th Cir.
2003). Persons adjudicated as juvenile delinquents
alleged that their social security benefits were used by
the state to offset the cost oftheir placement in live-in
treatment center.
The state officials in their official capacities
are not "persons" under § 1983. The state officials in
their individual capacities are entitled to qualified
immunity from the claims under the social security
statute, the Takings Clause of the Fifth Amendment
and the due process clauses. The Supreme Court's
decision in Washington State Dep't ofSoc. & Health
Servs. v. Keffeler obliterates these claims anyway,
along with the claim of breach of fiduciary duty.
The plaintiffs' equal protection claim (that
persons who received social security benefits had to
contribute to their maintenance costs while others did
not) is rejected under the rational basis test. The
plaintiffs' Individuals with Disabilities Education Act
is dismissed for non-exhaustion.
The plaintiffs may proceed directly under the
Rehabilitation Act against the defendants in their
official capacities, but their § 1983 claim against
defendants in their individual capacities based on the
Rehabilitation Act (assuming they have one, which
this court has not detennined) is barred by qualified
immunity.

False ImprisonmentlMunicipalities
Alkire v. Irving, 330 F.3d 802 (6th Cir. 2003).
The plaintiff was arrested and held for 72 hours
before a probable cause hearing. The policy of not
holding court over weekends was a municipal policy,
and the Sheriffs policy of not releasing accused
Rehabilitation
United States v. TM, 330 F.3d 1253 (9th Cir. persons who had not had such a hearing by the
2003). Requiring a defendant convicted of a drug
weekend was attributable to the municipality. The
offense and sentenced to supervised release to
court remands to detennine whether the detention
participate in sex offender treatment, avoid children
was really for the new charge or because of a warrant
and pornography, refrain from possessing a camera or from another jurisdiction.
recording device, etc., based on incidents in 1981 and
1961 and his association with a person who
Communication and Expression
unbeknownst to him had been convicted of sex
United States v. Cabot, 325 F.3d 384 (2d Cir.
offenses, is not reasonably related to protecting the
2003). The defendant, convicted of a child
public and preventing recidivism.
pornography offense, was sentenced to imprisoriment
with three years of supervised release to follow.
Juveniles/Government Benefits/State Officials and Conditions of supervised release that prohibited him
Agencies/Personal Property/Exhaustion of
from possessing "pornographic" matter were not
Remedies/Disabled
unconstitutionally vague, since the statute under
11

NATIONAL PRISON PROJECT JOURNAL

which he was convicted contained a definition of
pornography. However, prohibitions on possessing
matter that "depicts or alludes to sexual activity" or
that "depicts minors under the age of eighteen," and
on any internet usage, were excessively broad, as the
government conceded.
Use of Force--Restraints/Attorney Consultation
Lumley v. City ofDade City, Florida, 327
F.3d 1186 (11 th Cir. 2003). The plaintiff committed
a robbery, shot it out with Wells Fargo in the parking
lot, and escaped with a bullet in his jaw. A week
later he was arrested and taken to a hospital, where
Sheriffs deputies strapped him to his bed, guarded
him around the clock, and prohibited all visitors
including his family and lawyers. The plaintiff
consented to the bullet's removal at a doctor's
recommendation; the Sheriffs office took the bullet.
The refusal to let the plaintiff see a lawyer did
not violate the Sixth Amendment because the
prosecution had not formally commenced. The fact
that he was under arrest and was the sole suspect did
not matter. Escobedo is irrelevant, since here there
was no interrogation.
The plaintiffs restraint claim is governed by
the Due Process Clause, which as a general rule
imports the "shock the conscience" standard. (Bell v.
Wolfish is not cited even though the court states the
principle as applying to "arrestees or pretrial
detainees. It) The court's conscience is not shocked,
since the plaintiff was a dangerous criminal with a
violent record who presented a significant risk of
flight, having escaped from prison twice.
Removal of the bullet did not violate the
plaintiffs expectation of privacy since it was done
solely by the doctor against whom the plaintiff had
dropped his claim.

IUnited States District Court Cases I
Medical Care/Refusal of Treatment/Mental
Health Care/Privacy/Deference
Iseley v. Dragovich, 236 F.Supp.2d 472
(E.D.Pa.2002). Prison officials' requirement that
prisoners undergo a psychological evaluation before
they can receive treatment for Hepatitis C and that
they consent to the release ofthe results is upheld.
The purpose of the evaluation is to enable medical

12

SummerlFall 2004

personnel to assess the risk that the patient will suffer
certain psychological side effects from the medication
(which is apparently contraindicated for persons with
depression).
Prisoners' right to refuse medical treatment is
subject to the Turner reasonable relationship
standard. The policy serves the legitimate end of
protecting prisoners from the psychological side
effects of Hepatitis C medication. The Turner factor
regarding alternative means to exercise the right "is
not applicable to these facts." Accommodating the
plaintiffwould impose significant costs on prison
resources, since ifhe developed psychological side
effects, the defendants would have to treat him for
them. There are no alternative means of serving the
defendants' interests that would not substantially
affect the relevant penological interests.
The court rejects the plaintiffs argument that
he is being forced to submit to unwanted medical
treatment to get treatment he needs, since the Turner
standard is met, and since the psychological
evaluation is "part and parcel of the treatment the
plaintiff is requesting."
The defendants' release requires disclosure of
medical information "if it is believed that the plaintiff
poses a threat to his own health and safety, the health
and safety of others or the orderly operation of the
prison facility." Such a requirement has been
approved by prison case law "as a proper basis for
infringing upon a prisoner's right to privacy in his
medical information."
Disclosure is also required to the extent
necessary "to prepare reports or recommendations, or
to make decisions," about current or future custody,
including housing, work or program status, prerelease or parole. This requirement is upheld under
the Turner standard. At 479: "First, in order for
prison officials to provide safe and appropriate
conditions of confinement, they have a legitimate
need to gather and evaluate information that is
relevant to an inmate's psychological condition."
The court will not "second guess prison authorities
and devise alternatives to prison regulations...."
Religion--Practices/Religion--Practices--Beards,
Hair, Dress/Religion--Practices--Diet/Equal
Protection
Adams v. Stanley, 237 F.Supp.2d 136 (D.N.H.

NATIONAL PRISON PROJECT JOURNAL

2003). The plaintiff sought a preliminary injunction,
alleging that he was denied a long list of items he said
he need for his practice of Taoism, and that these and
other restrictions were more onerous than those
imposed on other religions.
The prison requires that inmates be able to
"substantiate a claim that a particular religious
practice or article is essential to his religion through a
verifiable outside source." (141) The plaintiff
refused to answer 11 questions posed by the prison
chaplain, such as the location of Taoism's national
headquarters, its basic teachings, whether there are
religious holidays, etc. The plaintiff contended that
completing the questionnaire "would violate the very
nature of Taoism since the practice of Tao is specific
to the individual." (The chaplain asked nine Taoist
organizations what was necessary for Taoist practice;
only three responded, and gave three different
answers.)
The court says that the questionnaire is a
reasonable attempt to "substantiate his claim that the
practices he seeks to engage in are essential to the
practice of his religion." (142) At 143: "... [P]rison
officials unfamiliar with the practices of a particular
religion must be given some latitude to determine its
legitimacy." (But see Thomas v. Review Board, 450
U.S. 707, 715-16 (1981) (holding religious freedom
"is not limited to beliefs which are shared by all of
the members of a religious sect").)
The plaintiff is receiving opportunities to
practice his religion. Taoist inmates have been
scheduled for two to four hours of meeting time a
week. This is comparable to time permitted to other
religious groups; Christians get more time overall,
but that's because there are more different Christian
sects.
The prison reasonably required that the
practice of Tai Chi be conducted without any face-toface confrontation between inmates.
The number of religious articles permitted the
Taoists (five) is comparable to that allowed other
religious groups with the exception ofthe NeoPagans, who were allowed 13 because the pagan
group has been around for eight or nine years and its
leader has substantiated the need for the items. The
chaplain has said he will consider additional items
based on outside verification. The court finds no
violation.

Summer/Fall 2004

The plaintiffs dietary complaint is rejected
because the prison is providing him a no-meat, noegg diet.
The plaintiffs complaint about not being able
to grow a beard is rejected, since the Chaplain said he
did not show that facial hair is required or central to
religious Taoism.

PLRA--Exhaustion of Administrative Remedies
Abney v. County ofNassau, 237 F.Supp.2d
278 (E.D.N.Y. 2002).
The plaintiff said he
couldn't get grievance forms from the officers on his
housing unit, so he sent a handwritten letter to the
Grievance Coordinator asking for a form and setting
out the details of the incident he was complaining
about. He never got a response. The court concludes
he exhausted. Decisions holding that the prisoner
must appeal even in the absence of a response are not
applicable, since the Nassau County procedure does
not provide for appeals in the absence of a response.
The defendants failed to raise exhaustion in
their answer, but the court has the discretion to treat
their motion to dismiss for non-exhaustion as
including a threshold motion to amend the answer,
which motion should be freely granted. The
circumstances support relief from waiver. At 281:
"Although a trial date has been set, consideration of
the exhaustion issue requires no further discovery or
other pretrial proceedings." Also, defendants weren't
dilatory because under Second Circuit law, when they
filed their complaint excessive force wasn't subject to
exhaustion.

Protection from Inmate Assault/Color of Law and
Liability of Private Entities
Figalora v. Smith, 238 F.Supp.2d 658 (D.Del.
2002). A prisoner who assaulted the plaintiff did not
act under color of state law and the plaintiffs § 1983
claim was therefore frivolous.
Use of Force/Res Judicata and Collateral
EstoppeJJPersonal Involvement and Supervisory
Liability/Pendent and Supplement Claims; State
Law in Federal Courts
Pizzuto v. County ofNassau, 239 F.Supp.2d
301 (E.D.N.Y. 2003) (Garaufis, J.). The plaintiffs
sued over the murder oftheir son by officers in the
13

NATIONAL PRISON PROJECT JOURNAL

Nassau County Correctional Center, and move for
summary judgment against certain defendants, which
the court grants as to liability.
The officer defendants' pleas of guilty or jury
convictions of conspiring to violate the decedent's
Eighth Amendment rights, or of actually violating
them, collaterally estop them from contesting liability
for plaintiffs' civil claim of conspiracy and of actual
violation of those rights. The court mostly relies on
the elements of the crimes but relies on the
defendant's testimony as to one defendant.
PLRA--Exhaustion of Administrative Remedies
Clemons v. Young, 240 F.Supp.2d 639
(E.D.Mich. 2003). The plaintiff argued that a
previous case should not be counted as a strike
because some claims were dismissed as frivolous but
others were dismissed for failure to exhaust. The
court holds (at 641) "that an action dismissed entirely
without prejudice is not a 'strike' for the purpose of §
1915(g) .... Likewise, if any of the claims were
found to have merit, the presence of frivolous claims
would not by themselves draw the action into the
circle traced by § 1915(g)." But where as here some
claims were frivolous and there was no finding any of
the others had merit, the case should be treated as a
strike. Otherwise prisoners could just append
unexhausted claims and thereby protect themselves
against three strikes determinations.
Use of Force/Damages--Assault and Injury,
Punitive/Evidentiary Questions/Pendent and
Supplemental Claims; State Law in Federal
Courts/Personal Involvement and Supervisory
Liability
Jackson v. Austin, 241 F.Supp.2d 1313
(D.Kan. 2003). The plaintiff, who had a knee injury,
was sitting in the clinic rather than standing in the
medication line. An officer told him to stand up and
refused to look at his medical excuse, and then called
for additional staff. He was taken to the floor and his
injured leg re-injured; he was then dragged by his
arms about 50 yards. He was handcuffed so tightly
that his hands swelled. His injuries were painful for
several months and he was given an excuse from
work for a month.
The court finds excessive force after a bench
trial. There was no need for assistance or to use force
14

SummerlFall 2004

against the plaintiff, a 60-year-old man, significantly
smaller than two of the defendants, who was only
explaining why he was sitting. The officers knew of
the plaintiffs injury and of the practice of letting
injured prisoners sit in the clinic. At 1319: "The
Court recognizes that plaintiff refused a direct order.
He attempted to show Johnson and Austin his written
medical excuse, however, to explain his
noncompliance, and officers do not have carte
blanche authority to punish inmates for refusing to
obey orders." Id.: "If defendants perceived any threat
to institutional security, it had to be one which they
themselves created, with their aggressive attitudes
and absolute refusal to honor (or even look at) a valid
KDOC medical restriction."
The court awards $15,000 in compensatory
damages jointly and severally against all three
officers, and awards $10,000 in punitive damages
against each.
Use of Force
Bafford v. Nelson, 241 F.Supp.2d 1192
(D.Kan. 2002). The plaintiff engaged in various
disruptive behavior and was forced to the floor. He
alleged that after he was on the floor, a sergeant
punched him in the face and grabbed his nostrils
while he was lying flat on his back. He was then
placed in leg irons and he spit blood in an officer's
face. The officers forced him to the floor and put a
spit net on his face. The plaintiff alleged that the
sergeant then punched him in the head several times.
The initial encounter with the sergeant did not
violate the Eighth Amendment; the plaintiffs
"conclusory allegations" that it wasn't necessary to
punch him in the face and grab his nostrils, absent
evidence that the sergeant acted with malice or evil
motive, did not raise a factual issue precluding
summary judgment. Since the plaintiff had
threatened them, staff had to make an immediate
decision to restore discipline.
The second encounter, during which the
plaintiff alleged that he was beaten while restrained,
was not explained or justified by the defendants, and
the plaintiffs allegations raise an issue of material
fact. At 1203 n. 9: The plaintiffs injuries, swelling
and lumps to the back of his head, are sufficient to
support his claim, especially given the evidence of
"unnecessary and wanton infliction of pain."

NATIONAL PRISON PROJECT JOURNAL

SummerlFall 2004

The defendants are not entitled to qualified
immunity on these alleged facts.

complained of pain, and frequently
complained that such pain was
debilitating, and that although he was
examined regularly by medical staff,
Medical Care--Standards of Liability--Serious
there is an ongoing pattern of ignoring,
Medical Needs, Deliberate Indifference/
and failing to timely respond to or
Grievances and Complaints about Prison/
effectively manage, plaintiffs chronic
Personal Involvement and Supervisory Liability/
Medication/Disabled
pain. In addition, the record reveals
Lavender v. Lampert, 242 F.Supp.2d 821
that the nature of defendants'
(D.Or. 2002). This is the best decision I have ever
responses demonstrates deliberate
seen on prison pain management.
indifference to the pain and damage to
plaintiffs right foot caused by delays
The plaintiff complained of inadequate
medical treatment for partial spastic paralysis, caused
in plaintiffs receipt of appropriate,
by a gunshot wound, which causes his right foot to
properly fitted, orthopedic footwear.
flex and curl his toes into a claw. He complained of
[Footnote omitted.]
protracted failure to provide him with sufficient
The plaintiffwas also allegedly denied the use
(sometimes, any) pain medication and protracted
of a wheelchair when he needed it. At 849: "To
delay (21 months) in providing orthopedic footwear.
unnecessarily deny the use of a wheelchair to
The Superintendent is not entitled to summary someone who obviously has an injury, and who lacks
judgment on lack of personal responsibility because
mobility without it, would constitute deliberate
indifference to a serious medical need."
the plaintiff alleges that the Superintendent was
The plaintiff was assigned to a housing area in
notified repeatedly of his medical needs and the
failure to meet them and did nothing about them.
hilly terrain that increased his orthopedic problems;
The same is true of the health services manager.
there are factual issues as to whether this housing
At 842:
assignment exacerbated his medical problems and
.... [A] "serious" medical need
violated the Eighth Amendment.
The defendants are not entitled to qualified
exists if the failure to treat a prisoner's
immunity. At 845: "Any reasonable official would
condition could result in further
significant injury or the "unnecessary
understand that to deny or delay treatment for such
pain, or to ignore it, would constitute deliberate
and wanton infliction of pain." ...
Examples of instances where a
indifference to a serious medical condition...." The
prisoner has a "serious" need for
defendants have not shown that their conduct was
medical attention include the existence
reasonable. At 845:
of an injury that a reasonable doctor or
The record on summary
judgment indicates that there is a
patient would find important and
worthy of comment or treatment; the
repeated pattern in SCRI health
presence of a medical condition that
services of failing to respond to
plaintiffs frequent requests for
significantly affects an individual's
daily activities; or the existence of
effective treatment of his pain;
allowing plaintiffs prescriptions for
chronic and substantial pain....
The plaintiffs medical condition is clearly serious.
pain medication to lapse; and
At 845: "'the existence of chronic and substantial
arbitrarily cancelling or reducing the
pain' itself demonstrates a 'serious' medical need."
level of pain medications provided to
The plaintiffs allegation of deliberate
plaintiff, particularly while he was
indifference is not refuted by the fact that he regularly
housed in disciplinary segregation....
utilized medical services. At 843:
Regarding the delay in
providing properly fitting orthopedic
Nevertheless, the record also
footwear, a prisoner cannot make a
reveals that plaintiff consistently
15

NATIONAL PRISON PROJECT JOURNAL

claim for deliberate indifference to a
serious medical condition based
merely on delay of treatment, unless
the denial of medical attention was
harmful. ... In this case plaintiff has
alleged, and the record supports, that
the delays in receiving properly fitted,
and medically necessary, orthopedic
footwear forced plaintiff to have to
walk on the clawed toes of his right
foot [for 11 months], causing pain and
lesions on the toes from friction
against his shoes or the ground.
At 848:
Chronic pain is long-term,
unrelenting pain, and yet defendants,
knowing that plaintiff suffers from
such pain, still failed to provide
continuous and effective painrelieving medication. On at least two
occasions, plaintiff's pain medication
was discontinued or reduced when he
was placed in disciplinary segregation,
so that he suffered from increased
pain. These actions cannot be other
than "unnecessary and wanton
infliction of pain," the very touchstone
of an Eighth Amendment violation.

SummerlFall 2004

placed on the head of a man immured in a lockup
room when the action of the court has become a
matter of public record. Ignorance and alibis by a
jailer should not vitiate the rights of a man entitled to
his freedom." (Quoting Whirl v. Kern, 407 F.2d 781,
785 (5th Cir. 1979).
The assistant warden for operations, who
signed the denial of the plaintiff's grievance because
it "appeared to be a reasoned response," without
knowing anything about sentence calculation, could
be held deliberately indifferent if the information
showing entitlement to release were shown to him.
It has long been clearly established that a
prisoner can't be held in prison beyond the end of his
sentence.

Rehabilitation/Transfer and Admission to Mental
Health Facilities/Ex Post Facto Laws/ Procedural
Due Process/Mental Health Care
Woodard v. Mayberg, 242 F.Supp.2d 695
(N.D.Cal. 2003). The petitioner sex offender was
civilly committed after a jury trial under the state
Sexually Violent Predator Act on completion of his
sentence.
Proceedings under the statute are civil, not
penal, and therefore are not subject to Ex Post Facto
Clause and double jeopardy principles, even though
its applicability is generally triggered by criminal
convictions, since it does not affix culpability or seek
retribution for criminal conduct.
The fact that the plaintiff was not notified of
the proceedings under the statute until 14 hours
before he was to meet with the first "evaluator" did
not justify habeas relief, since "it is not clearly
established that the Due Process Clause requires such
notification. The screening and evaluation process
does not appear to amount to the sort of dispositive
hearing for which a prisoner needs advance notice to
marshal the facts and prepare a defense." (704)
Subsequent proceedings met that criterion and the
plaintiff had plenty of due process in them.
The alleged failure of the Director of
Corrections to provide treatment for the petitioner's
alleged disorder before seeking civil commitment for
it does not justify habeas relief.

False Imprisonment/Grievances and Complaints
McCurry v. Moore, 242 F.Supp.2d 1167
(N.D.Fla. 2002). The plaintiff's release date was
miscalculated and he spent five more months in
prison than he was supposed to.
The plaintiff's allegations support a violation
of a clearly established constitutional right not to be
held beyond the end of a lawfully imposed sentence.
Whether that right is secured by the Eighth
Amendment or by the Due Process Clauses does not
matter, since both are governed by the subjective
deliberate indifference standard.
Ifthe plaintiff's allegation was correct that the
information necessary to demonstrate his entitlement
to release was attached to his grievance, the
defendant who denied his grievance could be found
deliberately indifferent. At 1180 n.8: "The
responsibility for a failure of communication between Federal Officials and Prisons/Procedural Due
the courts and the jailhouse cannot justifiably be
Process--Disciplinary Proceedings/Exhaustion of
16

NATIONAL PRISON PROJECT JOURNAL

Remedies
Seehausen v. van Buren, 243 F.Supp.2d 1165
(D.Or. 2002). The petitioner challenged a
disciplinary proceeding via habeas corpus on the
ground that his offense, telephoning a prisoner at his
home who was nominally in a halfway house, was not
against the rules. The government conceded it wasn't
in the rule book, but said that the petitioner should
have figured it out based on a meeting in which rules
governing telephone use were discussed, an article in
the prison newsletter discussing telephone activities
that would subject a prisoner to discipline, and rules
limiting correspondence between inmates.
Due process requires fair notice of what
conduct is prohibited before a sanction can be
imposed. The meeting, the article, and the
correspondence rule cited by the government did not
provide fair notice. (The meeting provided fair notice
that you can't call somebody at a halfway house, but
the petitioner placed his call to a private residence.)
The disciplinary proceedings are ordered expunged.
Federal Officials and Prisonsmrug Dependency
Treatment
Bohner v. Daniels, 243 F.Supp.2d 1171
(D.Or.2003). A federal statute authorizes one-year
sentence reductions for nonviolent offenders who
complete a substance abuse treatment program. The
Bureau of Prisons defined "nonviolent offender" to
exclude those who possessed firearms, precisely the
opposite of Congress's definition. On being told to
stop, the BOP changed the definition of nonviolent
offender, but then exercised its discretion by rule to
exclude exactly the same people from the program.
The court holds that the BOP violated the
Administrative Procedures Act by not complying
with the notice and comment requirements and not
giving any reason at the time for not doing so (i.e.,
not invoking the "good cause exception"). It doesn't
matter what explanation they provide now. An
internal program statement based on the invalid rule
is itself invalid (though there is actually a conflict of
authority on this point).
False Imprisonment/Municipalities/Negligence,
Deliberate Indifference and Intent/Pendent and
Supplemental Claims; State Law in Federal
Courts/State Law Immunitiesmamages--

SummerlFall 2004

Intangible Injuries
Biberdorfv. Oregon, 243 F.Supp.2d 1145
(D.Or. 2002). The plaintiff was denied credit for
time served through a record-keeping error arising
from the existence of two indictments for the same
criminal act. A county policy allegedly prohibited
staff from counting days for the same charge under
two different court case numbers for jail time credit.
Municipal liability may be established either
by showing a policy of omission, which requires a
showing of deliberate difference under Canton, or by
showing that an affirmative policy caused the
violation, which does not require proof of deliberate
indifference. The plaintiffs claim is of the second
type so no deliberate indifference showing is
necessary for his Fourteenth Amendment due process
claim. However, his Eighth Amendment claim
requires a showing of deliberate indifference under
the actual knowledge standard of Farmer v. Brennan,
since that is part of the substantive cause of action.
The evidence does not support that claim, since there
was only one prior incident of similar nature in the
preceding 10 years, and no county employee knew
that the plaintiffs two cases involved the same
incident early enough to do anything about it.
The plaintiff had "a well-settled Fourteenth
Amendment liberty interest in credit for time served
in County custody," but there are factual issues
whether the county policy was the moving force in
the violation.
If the plaintiffs over-detention resulted from
county policy, his state law false imprisonment claim
is barred by discretionary immunity; if it resulted
from employees' errors in applying policy, it is not.
The false imprisonment claim does not
require a showing of deliberate indifference, just
intent to confine.
The plaintiff can recover damages for noneconomic injury on his state law claims
notwithstanding limitations on recovery for emotional
injury. His claim for non-economic damages "is for
loss of his liberty over several weeks and, therefore,
is broader than 'mere' emotional distress." (1164)
This is entirely a state law holding with no mention
ofthePLRA.
Federal Officials and Prisons/Protection from
Inmate AssaultiStaffing--SurveillancelMedical
17

NATIONAL PRISON PROJECT JOURNAL

Care/Personal Involvement and Supervisory
Liability
Robinson v. United States Bureau ofPrisons,
244 F.Supp.2d 57 (S.D.N.Y. 2003) (Hurd, J.). The
plaintiff was stabbed to death in an altercation over a
chess game and died awaiting surgery.
The defendants were not deliberately
indifferent. At 64: "The mere allegation that having
one corrections officer supervise 219 inmates with
violent proclivities, without more, is an insufficient
basis upon which a fair minded trier of fact could
reasonably conclude that defendants were aware of an
excessive risk to Miller's safety or the FCI Ray Brook
prison population in general."
The court rejects the plaintiffs Federal Tort
Claims Act negligence claim because there is no
evidence or law "from which a fair minded trier of
fact could reasonably conclude that it is a departure
from the ordinary standard of care to have one
corrections officer supervise 219 inmates." The court
distinguishes Sanchez v. State (N.Y. 2002), where
there was much evidence pertaining to the
foreseeability of the assault. There is also no
evidence of negligence in rendering medical
assistance.

SummerlFall 2004

civilized measure of life's necessities."
The hostility and insulting and offensive
language and expressions of the officer satisfy the
requirement of a culpable state of mind at the
pleading stage.

PLRA--Exhaustion of Administrative Remedies
Arnold v. Goetz, 245 F.Supp.2d 527
(S.D.N.Y. 2003) (Knapp, J.). Plaintiff wrote on the
complaint form, where it asked whether he had filed a
grievance, that he had not because "I did not know
what to do." He never responded to defendants'
motion to dismiss.
The PLRA exhaustion requirement is not
jurisdictional but is an affirmative defense (532)
(extensive string cites for this). The court then cites
all the cases to the contrary in New York and musters
all the arguments in response, relying on Handberry
among others and citing the Second Circuit's
characterization ofPLRA exhaustion as an
affirmative defense.
Dismissal under Rule 12(b)(6) is not available
because exhaustion is an affirmative defense, but
since the plaintiff pleads that he didn't exhaust
(because he didn't know what to do), the court goes
on with it. At 536: "Under certain circumstances, a
correctional institution's failure to provide an inmate
Hygiene/Injunctive Relief/Cruel and Unusual
with sufficient information about the available
Punishment--Proof of Harm/Negligence,
Deliberate Indifference, and Intent/PLRA--Mental grievance procedures may excuse his failure to
or Emotional Injury
exhaust administrative remedies." The court cites
Mitchell v. Newryder, 245 F.Supp.2d 200
Hall v. Sheahan 's holding that officials can't keep
(D.Me.2003). The plaintiff alleged that he was
inmates in ignorance and then fault them for not
arrested and kept in a cell without a toilet. He asked
using the procedure. At 537:
to use a toilet before he was locked in, asked again
This is a common sense
several hours later, asked a third time after four and a
approach to a situation where
half hours, and was ignored. He soiled himself and
correctional authorities obstruct an
then told staffhe needed to use the bathroom to clean
inmate's ability to comply with the
up. He was insulted and told he would have to "sit in
exhaustion requirement when they
it and suffer," and did so for five more hours.
provide him with a grievance
Defendants' argument that there is no Eighth
procedure but fail to supply him with
Amendment claim because there was no serious risk
the materials by which he can secure
of harm "ignores that there are different subinformation about how to avail
classifications of deliberate indifference claims under
himself of that process. The approach
the Eighth Amendment." The plaintiff isn't claiming
is derivative of the general principle
failure to protect, he is claiming that he was
that an inmate's technical failure to
"purposefully subjected to dehumanizing prison
exhaust administrative remedies
conditions." The facts alleged amount to "an
before commencing a § 1983 action
omission that resulted in the denial of a minimal
may be excused where officials

18

NATIONAL PRISON PROJECT JOURNAL

Summer/Fall 2004

prevented him from utilizing a
grievance procedure. [Good string cite
here]
At 537: Defendants win "as long as the institution has
made a reasonable, good faith effort to make the
grievance procedure available to inmates; an inmate
may not close his eyes to what he reasonably should
have known." (Quoting Hall.) At 538: a claim of
ignorance of the grievance system presents a question
of fact whether the grievance procedure was
available.
This plaintiff said he knew there was a
procedure but did not know how to follow it, but the
court can't tell from the complaint whether this was
because he didn't try to find out or because prison
officials failed to provide access to the information.
If the latter, he wins. "An institution keeps an inmate
ignorant of the grievance procedure when
correctional officials either fail to inform him of the
procedure altogether or fail to provide him with
access to materials which could otherwise educate
him about the use ofthat process." (538)
Plaintiffs failure to explain the situation
doesn't require mechanical dismissal. The court must
construe the complaint to raise the strongest
arguments a pro se litigant could be raising. His
pleading is sufficient under that standard; this
conclusion is consistent both with principles for
dealing with pro se cases and with defendants' burden
of proof. Defendants' alleged provision of an "inmate
behavior book" and their claims about other
information made available about the grievance
system don't suffice absent corroboration by affidavit,
and they're outside the pleadings anyway, so
dismissal is inappropriate. Besides, it's unclear
whether this was the "inmate behavior book" the
plaintiff got when he was admitted in 1994 before the
PLRA, and plaintiff was in SHU and didn't have
access to the prison law library. The court converts
the motion to one for summary judgment and gives
plaintiff the appropriate notice.

another prisoner while in a private detention facility
that contracted with the U.S. Marshals Service to
house prisoners.
Employees of a private correctional facility
act under color of federal law. "Under the public
function test, a private party may be deemed a
government actor if that party exercises 'powers
traditionally exclusively reserved to the government.'"
(60, citation omitted) Incarceration of individuals
accused of committing crimes has been exclusively a
government function; the fact that it has sometimes
been delegated to and performed by private parties
doesn't make it any less governmental. This
conclusion is consistent with the weight of authority
holding private prison staff to be state actors for
purposes of § 1983.
There are no other "special factors counseling
hesitation" in allowing Bivens suits against private
prison personnel. Congress has expressed no intent
to preclude them and has not provided a
comprehensive scheme for redress or any alternative
remedy (in fact, the Bureau of Prisons administrative
remedy scheme doesn't apply to them). No
governmental policy or program would be
undermined. Malesko is not to the contrary, since it
dealt only with liability of private corporations
themselves, and acknowledged that the core purpose
of Bivens actions is individual deterrence. It also
indicated a desire "to maintain parity between the
remedies afforded to prisoners at privately-operated
facilities and those at government-operated facilities."
(63)
The jail staff did not act under color of state
law, since holding federal prisoners is not a state law
power or one traditionally exclusively reserved to the
state. In reaching this conclusion the court does not
discuss the fact that the jail was established pursuant
to a state law that authorizes municipalities to create
public corporations to own and operate jails, and it
doesn't discuss whether the j ail contains state or local
prisoners as well as federal prisoners.

Federal Officials and Prisons/Pre-Trial
Detainees/Color of Law and Liability of Private
Entities
Sarro v. Cornell Corrections, Inc., 248
F.Supp.2d 52 (D.R.I. 2003). The plaintiff, a federal
pre-trial detainee, alleged that he was assaulted by

DisabledlMental Health Care/Pendent and
Supplemental Claims; State Law in Federal
Courts/Class Actions--Effect of Judgments and
Pending Litigation
Atkins v. County ofOrange, 251 F.Supp.2d
1225 (S.D.N.Y. 2003) (Conner, J.). Several plaintiffs

19

NATIONAL PRISON PROJECT JOURNAL

alleged that they were subjected to over-medication
with psychotropic drugs and denial oftimely
psychiatric care, timely prescription drug
administration, adequate staffing of observation
holding cells, adequate therapeutic psychiatric care,
and discharge planning and treatment plans.
The plaintiffs do not state a claim under the
disability statutes. They do not allege that they were
denied the benefit of a program, service, or activity.
Nor, in alleging that violent and self-destructive
mentally ill prisoners were placed in keeplock
isolation, did they allege that they were treated any
differently from non-mentally ill violent and selfdestructive prisoners. Plaintiffs' complaints about the
quality of their mental health services are "already
covered under their § 1983 claims." (1232-33)

Federal Officials and Prisons/Transfers
Jacaboni v. United States, 251 F.Supp.2d
1015 (D.Mass. 2003). The three petitioners moved to
vacate their sentences on the ground that they had
been imposed on the understanding that the
petitioners would serve their short sentences of
imprisonment in community correction centers, but
the Department of Justice had subsequently decided
that serving a prison sentence in such facilities was
illegal and proposed to transfer them to prisons.
The court concludes that the Justice
Department's reinterpretation of the statute is wrong
under the controlling statute and therefore invalid; the
Bureau of Prisons' abrupt action, without notice or
opportunity for comment, violated the Administrative
Procedure Act; and the retroactive application of the
change denies due process. The court enjoins the
transfers of two petitioners and orders the Bureau of
Prisons to place the third under the old standards.
The court describes the Department of
Justice's rationale as "transparently specious" and the
manner in which the new policy was communicated
to the courts as "highly offensive and gratuitous."
This change of policy by the Bureau of
Prisons has yielded a large amount of litigation on
various legal theories. Granting relief: Ashkenazi v.
Attorney General a/the United States, 246 F.Supp.2d
1 (D.D.C.), vacated as moot, 346 F.3d 191 (D.C.Cir.
2003); Howard v. Ashcroft, 248 F.Supp.2d 518
(M.D.La. 2003); Ferguson v. Ashcroft, 248 F.Supp.2d
547 (M.D.La. 2003); Culter v. United States, 241
20

SummerlFall 2004

F.Supp.2d 19 (D.D.C. 2003); United States v. Serpa,
251 F.Supp.2d 988 (D.Mass. 2003); Byrd v. Moore,
252 F.Supp.2d 293 (W.D.N.C. 2003). Denying
relief: United States v. James, 244 F.Supp.2d 817
(E.D.Mich. 2003). There are many other more recent
decisions on this issue.

Grievances and Complaints about Prison
Hale v. Scott, 252 F.Supp.2d 728 (C.D.Ill.
2003), aff'd, 371 F.3d 917 (7th Cir. 2004). The
plaintiff filed a grievance against an Officer Drone
for various misdeeds including having sex with
officers and supervisors on the midnight shift. He
was found guilty of insolence for that suggestion,
which he admitted was based on rumors. At 732: "It
is settled that prison officials may discipline inmates
for insolent and disrespectful behavior, for obvious
legitimate penological concerns of security and
order." First Amendment objections to such
discipline are governed by the Turner standard. The
court rejects Bradley v. Hall's holding that discipline
merely for using hostile, sexual, abusive, or
threatening language in a grievance, stating that it
was "implicitly disapproved" in Shaw v. Murphy.
Here, the Turner determination "turns in large part on
whether the plaintiff had any basis for making the
allegation," which he did not.
Federal Officials and Prisons/Procedural Due
Process--Disciplinary Proceedings/Procedural Due
Process--Administrative Segregation/Habeas
Corpus/Magistrates
Sinde v. Gerlinski, 252 F.Supp.2d 144
(M.D.Pa. 2003). The petitioner was disciplined for
allegedly using a contraband cellphone based on
evidence that the number called from that telephone
was only on the petitioner's approved list.
Habeas corpus is not the proper vehicle for
challenging the frequency of segregation review
hearings or the number of telephone calls a prisoner
is permitted. Matters that do not challenge the fact or
duration of custody are not properly raised via
habeas.
The disciplinary hearing met due process
standards. An eight-month delay in giving notice of
the charges did not violate federal regulations, since
those regulations required deferring the proceeding
while a criminal investigation was pending, and did

NATIONAL PRISON PROJECT JOURNAL

SummerlFall 2004

not deny due process since the petitioner got the
notice more than 24 hours before the hearing.
The written statement ofthe reporting officer
indicating that a cellular telephone had been found on
prison property that had been used to call a number
on the petitioner's, but no other prisoner's, approved
calling list, plus testimony that the petitioner had
made calls on the phone, met the "some evidence"
standard. The fact that some testimony was later
recanted did not matter, since the hearing officer
found the recantation not credible.

54: "The conditions of tuberculin hold are such that a
reasonable prisoner would quickly consent to the
PPD test absent a matter of conscience. Selah has
consented to a shorter stay on TB hold, one that
would allow the results of a sputum test to come back
prior to release." Monitoring of persons who refuse a
PPD test is not legitimately connected with the TB
hold practice; defendants' medical director testified
that it was no harder to monitor them in general
population, and they are kept in their own cells rather
than a central location. Limiting the exposure of
other prisoners to a potentially contagious person is
Injunctive Relief--Preliminary/Medical Care-the most persuasive argument, especially after a
lsolation/ReligionlDeference
contact trace or on initial entry to DOCS. However,
Selah v. Goard, 255 F.Supp.2d 42 (N.D.N.Y.
it makes no sense as to prisoners who have had their
2003) (McAvoy, J.). The plaintiff refused a
status determined in some way and subsequently
tuberculosis test and was placed in TB hold (23-hour object on religious grounds. There is no more reason
lock-in, no telephone calls or personal visits) for a
to limit the contacts of a person who has tested
year. The court grants a preliminary injunction.
negative than someone who has left TB hold, and
The plaintiff demonstrated irreparable harm in they can be subjected to x-rays or sputum testing if a
that his religious beliefs were sincere and the loss of
test is needed. The latter proposal is unlikely to have
First Amendment freedoms even for limited time is
any effect on prison resources. People with latent
irreparable. He displays a likelihood of success under tuberculosis (i.e., those not identified through x-rays
the Turner standard.
or sputum testing) are no threat to the prison
The question of the burden of proof under
population. Prison officials' fears of a "flood" of
Turner is not settled. At 53:
religious objectors is unsupported by the record;
As a practical matter, the Court finds
DOCS has no data on the number of religious
that defendants must come forward
objectors, and the Second Circuit's Jolly decision did
with some rational basis for the policy
not provoke a "flood."
at issue. . . . Plaintiff cannot be
expected to "guess" what rationale
PLRA--Exhaustion of Administrative Remedies
DOCS provide. Further, if DOCS
McCoy v. Goard, 255 F.Supp.2d 233
fails to articulate a rational connection
(S.D.N.Y. 2003). Exhaustion questions should be
between the policy at issue and
resolved as early as possible, both for judicial
legitimate penological interests, the
economy and consistently with the policy underlying
Court need go no further. . .. Where,
PLRA to "reduce the quantity and improve the
however, DOCS has articulated a
quality" of prisoner litigation."
reasonable connection between the
At 251:
policy and legitimate penological
--If nonexhaustion is clear from the
interests, it then falls to Plaintiff to
face of the complaint (and
show the availability of other
incorporated documents), a motion to
alternatives that are less burdensome
dismiss pursuant to Rule 12(b)(6) for
to his religion and, yet, equally
failure to exhaust should be granted.
effective for DOCS purposes....
--If nonexhaustion is not clear from
Thus, the burden is ultimately on the
the face ofthe complaint, a defendant's
Plaintiff.
motion to dismiss should be
converted, pursuant to Rule 12(b), to
Coercion to take the PPD test is not reasonably
one for summary judgment limited to
related to keeping people in TB hold for a year. At

21

NATIONAL PRISON PROJECT JOURNAL

the narrow issue of exhaustion and the
relatively straightforward questions
about the plaintiffs efforts to exhaust,
whether remedies were available, or
whether exhaustion might be, in very
limited circumstances, excused....
Rule 12(b)(1), which addresses dismissal for lack of
jurisdiction, is inappropriate because exhaustion is
not jurisdictional, even though some courts treat it
that way.
Conversion of a motion to dismiss for nonexhaustion to a summary judgment motion is
appropriate if extrinsic material is to be considered,
though in practice courts routinely consider extrinsic
material on motions to dismiss without conversion.
At 250: "Even without conversion, the court may
consider documents annexed to the movant's papers--although not annexed to the complaint--in limited
circumstances, such as when a plaintiff relies upon or
has knowledge of certain documents in bringing suit."
Courts also routinely consider some extrinsic material
when examining a pro se complaint, but that is in
keeping with the liberality afforded to the pleadings
ofpro se plaintiffs and is usually done for a pro se
plaintiffs benefit; it is not clear that such
incorporated materials may be used to support the
dismissal of a pro se complaint.
The court rejects the "middle ground, where
limited extrinsic materials may be considered to settle
the exhaustion defense," proposed by the Ninth
Circuit, which treated failure to exhaust remedies as
"a matter in abatement, which is subject to an
unenumerated Rule 12(b) motion, rather than a
motion for summary judgment," in light of the
general principle that "summary judgment is on the
merits, whereas dismissal for failure to exhaust" is
not.
A court may consider unexhausted claims on
the merits only to dismiss them as frivolous or
malicious or for failure to state a claim.
Dismissal for non-exhaustion is generally without
prejudice, though it may be with prejudice "where a
plaintiff is effectively barred from administrative
exhaustion," such as when the time for administrative
exhaustion has expired and the inmate has been
denied a waiver to file a late grievance.
The proper course is less clear when a
plaintiff may be barred from refiling by the statute of

22

Summer/Fall 2004

limitations. At 252: "... [A] dismissal without
prejudice is tantamount to a dismissal with prejudice
if the statute of limitations has expired, or is likely to
expire before re-filing. In practice, tolling may
ameliorate this result." Under New York law, it may
be that the time spent exhausting is tolled, which
would give the inmate up to 11 weeks of additional
time. At 253: "In addition, traditional defenses to the
bar of the statute of limitations may apply, including
waiver, estoppel, or equitable tolling. Courts may
combine a dismissal without prejudice with equitable
tolling (when a judicial stay is not available) to
extend the statute oflimitations "as a matter of
fairness where a plaintiff has ... asserted his rights in
the wrong forum." (Citation omitted)
The court has no option to stay a case rather
than dismissing even to save a case from being timebarred, since the amendment ofthe statute eliminated
the courts' authority to do so.
Pest Control, Food, Hygiene (260): "... [T]he
mere presence of vermin in a prisoner's housing area
does not constitute 'punishment' under the Eighth
Amendment. ... The denial of warm food is not, by
itself, a deprivation of the 'minimal civilized measure
of nutrition.' ... [A] two-week suspension of shower
privileges does not suffice as a denial of 'basic
hygiene needs,' ... nor does failure to provide razors
for shaving rise to the level of constitutional
concern."
Access to Courts (260-61): Delayed filing of
court papers does not deny access to court where
there is no evidence that it actually interfered with the
litigation.
Use afForce (261-62): Allegations that
officers tried to make the plaintiff fall on the stairs,
which he prevented by grabbing hot water pipes that
burned him, stated an Eighth Amendment excessive
force claim, as did allegations that officers forced him
to the ground, handcuffed him, cleared the area of
witnesses, and beat him.

Searches--Person--Arrestees/Res Judicata and
Collateral Estoppel
Maneely v. City ofNewburgh , 256 F.Supp.2d
204 (S.D.N.Y. 2003) (McMahon, J.). The plaintiff
challenged an alleged municipal policy of strip
searching all arrestees. A state court decision holding
the policy unconstitutional in an individual's case was

NATIONAL PRISON PROJECT JOURNAL

SummerlFall 2004

not preclusive in this § 1983 class action, since there
was no claim in that case about strip searches, and the
issue only came up during the trial. Defendants did
not have a full and fair opportunity to litigate the
issue, since there wasno discovery or time for
preparation.
At 213 (citations omitted):
Under Second Circuit
precedent, blanket policies subjecting
all newly-arrested misdemeanor
detainees in a local correctional
facility to visual body cavity searches
are unconstitutional. ... In order for a
visual body cavity search to be found
reasonable under the circumstances,
there must be some "'particularized
suspicion,' arising either from the
nature of the charge or specific
circumstances relating to the arrestee
and/or the arrest," that the arrestee is
concealing weapons or other
contraband. . .. In addition, as this
Court recently concluded, the law of
this Circuit requires that the
"individualized reasonable suspicion"
rule apply to accused felons as well as
misdemeanants upon arrival at a local
correctional facility.
The challenged policy provides for strip
searches when the arresting officer "reasonably
believes that the prisoner may have concealed
weapons or contraband." That policy is not
unconstitutional on its face, i.e., plaintiff doesn't
show that it could never be applied constitutionally.
Whether it was applied constitutionally is a jury
question.

(D.N.J.2003). Participation in parole decisions of
temporary Parole Board members, appointed by the
Governor without Senate confirmation allegedly in
violation of state law, did not deny due process. At
325: "As Defendants have conceded, New Jersey
prisoners have a state-created liberty interest in parole
decisions...." The plaintiffs appear to be
complaining about both release hearings and
revocation hearings (i.e., they complain of "continued
or renewed incarceration").

Grievances and Complaints about Prison/Medical
CarelWork Assignments
Pate v. Peel, 256 F.Supp.2d 1326 (N.D.Fla.

Color of Law and Liability of Private Entities/
Dental Care
Wall v. Dian, 257 F.Supp.2d 316 (D.Me.

2003). The plaintiff, who has HN and Hepatitis C,
alleged that after he filed a grievance about his
medical care he was assigned to field labor, with
serious medical consequences.
The court adopts the Mt. Healthy burdenshifting approach to retaliation claims after a pretty
thorough examination of the case law. In the prison
context, the question is whether the prisoner was

2003). The plaintiff alleged that the jail dentist
refused to treat the plaintiffs infected tooth because
the plaintiff had Hepatitis C, resulting in gangrene
and damage to his jaw.
The court adopts the "majority view" that
"when a private entity contracts with a county to
provide jail inmates with medical services that entity
is performing a function that is traditionally reserved

"engaged in constitutionally protected activity;
whether he suffered adverse action; and whether his
exercise of the protected right was a substantial or
motivating factor in the defendant's alleged retaliatory
conduct." (1340)
At 1336: "It is well established that a
prisoner's constitutional rights are violated if adverse
action is taken against him in retaliation for the
exercise of his First Amendment rights."
At 1340: "An inmate has a First Amendment
right to file grievances against prison officials, but
only if the grievances are not frivolous. See Lewis v.
Casey, ..." (That appears mistaken. Lewis applies to
the right of access to courts, not to internal prison
complaints.)
The plaintiffs retaliation claim is rejected for
lack of factual support, and the defendants showed
they would have taken the same action without a
retaliatory motive.
The plaintiffs Eighth Amendment claim is
rejected on the ground that there was a medical basis
to support defendants' claim that they were not aware
of any risk to him.

Procedural Due Process
Sonntag v. Papparozzi, 256 F.Supp.2d 320

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to the state; because they provide services that are
municipal in nature the entity is functionally
equivalent to a municipality for purposes of 42
U.S.c. § 1983 suits." (319) The plaintiffs
allegations that he was denied adequate medical care
and that he filed several complaints sufficiently pled
that the private medical contractor had a policy and
custom that denied him his rights. Even ifthere was
no blanket policy or custom concerning prisoners
with Hepatitis C, he may be able to show that a final
policymaker decided not to treat his condition
pursuant to a custom or policy.

Access to Courts--Punishment and Retaliation/
Habeas Corpus/Procedural Due Process
Burhman v. Wilkinson, 257 F.Supp.2d 1110
(S.D.Ohio 2003). The plaintiff alleged that
prosecutors reneged on a plea bargain by failing to
submit favorable letters to the parole board and
instead submitting unfavorable letters, and that the
parole board retaliated against him for having filed
federal court litigation.
The plaintiffs claim for breach of a plea
agreement must be raised via habeas under the
Preiser/Heck rule.
At 1120: "It should go without saying that if a
parole board acts against a prisoner because he
exercised his right to file a civil complaint, such
conduct is actionable as a violation of the First
Amendment." The court rejects the retaliation claim
on the facts.
The plaintiff cannot challenge his parole
eligibility determination in federal court, both
because of the Heck/Preiser rule and because there is
no liberty interest in parole in Ohio. However, his
allegation that neither he nor his lawyer received
notice of his hearing may state a due process claim,
since state law does create a right to be represented
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Washington, DC 20005
~21

SummerlFall 2004

by counsel at such hearing.

Searches--Person/Pre-Trial Detainees
Bynum v. District ofColumbia, 257
F.Supp.2d 1 (D.D.C. 2002). The plaintiff alleged that
jail officers strip search inmates who return to the jail
after receiving release orders, before they are
"returned to the general prison population to await the
results of a search for additional criminal charges
against them." (1) This allegation states a Fourth
Amendment claim; the court notes earlier authority
holding that jail officials can keep persons in such
status in a separate area from the j ail general
population, obviating any need for the strip search.
The question why people who are entitled to be
released must be returned to jail at all does not seem
to have been asked.
Use of Force--Restraints/Qualified Immunity
Aceto v. Kachajian, 240 F.Supp.2d 121
(D.Mass. 2003). The plaintiff alleged that she was
arrested for a thirteen-year-old traffic violation. On
the way to court, a police officer insisted on
handcuffing her behind her back even though she told
him she was recovering from a separated shoulder.
She sustained a herniated disc in her neck as a result.
The police procedures manual says that prisoners are
to be handcuffed behind their backs "unless there are
extenuating circumstances such as injury."
The plaintiffs allegations state a claim for
excessive force, since there was no evidence that she
posed a flight risk or a safety risk, and since she
provided the officers with the information necessary
to verify her injury. It was clearly established that
police must take known injuries into account when
handcuffing a non-threatening individual. The police
regulation provided additional warning to defendants
on that point.
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