.~:~~~~AL JOURNAL
AMERICAN CIVIL LIBERTIES UNION

. PROJECT

Vol. 18, No.2, Winter/Spring 2005· ISSN 1076-769X

Recent Supreme Court Rulings Impact Prisoners
The U.S. Supreme Court completed its 2004
term in June and the Justices handed down three
important decisions affecting prisoners during the first
half of 2005. In February, the use of racial segregation
as a routine method of prison administration was
rejected. In May, an unusual unanimous vote upheld
the constitutionality of a federal law that requires
states to allow prisoners to practice their religious
beliefs. Finally, in June, the extreme deprivation and
punishment found in "supermax" prisons was found
to warrant protections for prisoners' due process
rights. Unfortunately, the Court rejected arguments
for more extensive due process protections against
transfer to Ohio's "supermax."
Johnson v. California
The Supreme Court first held that racially
segregated prisons were unconstitutional in a 1968
case brought by the ACLD. At issue in Johnson v.
California was the California Department of
Corrections' longstanding policy of racially
segregating its prisoners during an initial
classification period when they first arrived in the
system or were transferred to a new facility. Although
no other state adopted a similar policy, the lower
courts in this case held that California's decision to
segregate prisoners by race was entitled to deference
rather than the strict judicial scrutiny that would
normally apply to racial classifications in other
settings.
"Protecting prisoners from racial
discrimination is critical to maintaining public
confidence in a criminal justice system that is often
criticized for its mistreatment of racial minorities, "
said Elizabeth Alexander, director of the ACLU's
National Prison Project, which filed a friend-of-thecourt brief in the case. "The ruling upholding

prisoners' protection from racial discrimination is a
triumph for prisoners and the disproportionate number
of minority men and women that this country chooses
to incarcerate."
"We rejected the notion that separate can ever
be equal. ..50 years ago in Brown v. Board of
Education, and we refuse to resurrect it today," said
the Court in a 5-3 majority decision authored by
Justice Sandra Day O'Connor (Chief Justice
Rehnquist did not participate). "Compliance with the
Fourteenth Amendment's ban on racial discrimination
is not only consistent with proper prison
administration, but also bolsters the legitimacy of the
entire criminal justice system."
In its amicus brief filed on behalf of California
prisoner Garrison Johnson, the ACLU cited a 1997
Gallup poll finding that 72 percent of black
respondents believe blacks are treated more harshly

HIV-Positive Prisoners in
Mississippi Aided By Litigation
The American Civil Liberties Union
applauded the dramatic improvements in medical
treatment and living conditions for hundreds of
HIV- positive Mississippi prisoners as a result of
litigation that concluded in April.
"In 1999, Mississippi prisoners with
HIV/AIDS were denied life-saving drugs and were
barred from the rehabilitation programs available to
other Mississippi prisoners," said Margaret Winter,
Associate Director of the ACLU's National Prison
Project and lead attorney for the prisoners. "Their
lawsuit has accomplished its purpose of saving
lives and ending discriminatory policies against
prisoners with HIV/AIDS." Continued on page 4

NATIONAL PRISON PROJECT JOURNAL

than whites in the criminal justice system. Among
white respondents, nearly half believed that blacks are
treated more harshly.
"There is no area of our national life in which
the perception of continuing racial discrimination is
more widespread," the ACLU said in its brief.
"Racial segregation is not the solution to the problem
of prison violence," added Steven R. Shapiro, the
ACLU's Legal Director.

Cutter v. Wilkinson
In the Cutter v. Wilkinson ruling in May, the
Justices unanimously sided with Ohio prisoners who
had been denied access to religious items, literature
and time for worship. The prisoners filed a legal
challenge against Reginald Wilkinson, Director of the
Ohio Department of Rehabilitation and Correction,
stating that the department was in violation of federal
law.
"Prison officials often place unjustified
burdens on prisoners who wish to practice their
religion," said Alexander, who also joined a friend-ofthe-court brief in this case. "This important law
allows prisoners to challenge such arbitrary burdens,
and we welcome this decision upholding its
constitutionality. "
The federal law at issue, the Religious Land
Use and Institutionalized Persons Act of2000
(RLUIPA), requires in part that states that receive
federal money must accommodate prisoners' religious

I

NATIONAL PRISON PROJECT

JOURNAL

Director: Elizabeth Alexander
Editor: Kara Gotsch
The National Prison Project is a special project of the
ACLU Foundation. It seeks to strengthen and protect the rights of
adult and juvenile prisoners, improve overall conditions in
correctional facilities, and develop alternatives to incarceration.
The Journal is published biannually by the National
Prison Project, located at 915 15 th St., NW, 7th Fl., Washington, DC
20005. Contact us by phone at 202-393-4930 or by fax at 202-3934931 for more information. (NO COLLECT CALLS PLEASE)
The reprinting of Journal material is encouraged with the
stipulation that it is credited and a copy ofthe reprint is sent to the
editor. Subscriptions to the Journal are $30 per year ($2 for
prisoners) and require prepayment by check or money order.

2

Summer/Fall 2004

beliefs unless prison officials can show that such
accommodation would be disruptive. The decision
struck down a ruling by the Sixth Circuit Court of
Appeals that RLUIPA violated the separation of
church and state. However, as the ACLU argued in its
brief, the federal law mandates nothing more than the
removal of substantial government-imposed burdens
on religious exercise. RLUIPA avoids constitutional
scrutiny by not giving prisoners and other
institutionalized persons incentives to become
religious or to change their religious beliefs.
"It is wrong to punish prisoners by denying
them their religious liberty," said Alexander. "We
urge the states to fully implement RLUIPA's
requirements. "

Wilkinson v. Austin
Finally, the June decision in Wilkinson v.
Austin sterns from a lawsuit brought by the ACLU of
Ohio and the Center for Constitutional Rights. At
issue were the guidelines that governed prisoner
placement at the Ohio State Penitentiary (OSP), the
state's notorious superrnax prison.
Justice Kennedy wrote in the Court's
unanimous decision that "incarceration at OSP is
synonymous with extreme isolation," and that "OSP
inmates are deprived of almost any environmental or
sensory stimuli and of almost all human contact."
"Prisoners confined in superrnax facilities
endure 23- or 24-hour isolation, limited access to
rehabilitative programming, and few opportunities for
visits with family," said Jeff Gamso, Legal Director of
the ACLU of Ohio. "The Supreme Court recognizes
the unique severity of superrnax conditions and so
will require officials to uphold basic due process
protections for prisoners."
In 2002, a federal district judge held that
confinement at the Ohio State Penitentiary creates an
"atypical and significant hardship." Prisoners housed
in the high maximum-security unit are subject to
extreme isolation in tiny cells that fail to meet
national standards established by the American
Correctional Association. When the institution was
first built, officials sent I00 prisoners to the prison
without notice or hearing, and before the state had

NATIONAL PRffiON PRomcTJOURNAL

written guidelines for the classification of high
maximum-security prisoners. The Court upheld the
new procedures adopted to prevent arbitrary
placements in the facility.
"Prior to the current policy, transfers to Ohio's
supermax had been so haphazard that prisoners who
did not pose major security issues nonetheless ended
up there," said Staughton Lynd, an ACLU of Ohio
cooperating attorney. "For that reason, the Supreme
Court carefully noted that, if such practices occur
under the current policy, prisoners can bring a new
legal challenge."
For its next term, the Supreme Court has
already accepted at least one prisoner rights lawsuit
for argument, Goodman v. Georgia. In this case, the
Court will review whether state prisons that
discriminate against prisoners with disabilities can be
sued under the Americans with Disabilities Act.

ACLU Returns to Challenge Inhumane
Conditions at "Supermax" Unit in MS
Seeking to improve the 'supermax' prison
conditions for nearly 1000 men confined in a unit
once ruled unconstitutional for death row prisoners in
2003, the American Civil Liberties Union and the law
firm Holland & Knight LLP filed a lawsuit in June
against Mississippi corrections officials.
"The disgusting conditions that tormented
Mississippi's death row prisoners until recently still
exist for the other men living in Unit 32 of the
Parchman prison," said Nsombi Lambright, Executive
Director of the ACLU of Mississippi.
Unit 32 of the State Penitentiary in Parchman
is a supermaximum prison housing about 1000 men,
almost all of them in segregation cells where they are
locked down 23 to 24 hours a day in total isolation.
According to the complaint, the same filth, stifling
heat and poor treatment first described in litigation on
behalf of death row prisoners housed in the same unit
continue to harm non-death row prisoners today.
"The conditions of confinement in Unit 32 are
so barbaric, the deprivation of medical and mental
health care so extreme, and the defects in security so

Summer/Fall 2004

severe, that the lives and health of the men confined
there -- and the correctional staff who work there -are at great and imminent risk," charges the
complaint.
In one incident, a disturbed, deaf-mute
prisoner was left for months in his cell on the special
needs psychiatric tier of Unit 32, without a mental
health evaluation or any attempt to communicate with
him. His cell became filthy and he was allowed to
remain unwashed for weeks. Correctional staff threw
things at him to get his attention, and when he threw
things back, he was cited for rule violations.
"Defenseless mentally ill prisoners are
warehoused in Unit 32, left alone without appropriate
medication and counseling," said Stephen F. Hanlon,
a partner with Holland & Knight LLP and co-counsel
in the case. "The result of locking these troubled men
away is a continued deterioration of their health and
well-being."
The June filing builds upon the successful
litigation, Russell v. Johnson, brought by the ACLU's
National Prison Project and Holland & Knight in
2002. In that case, U.S. Magistrate Judge Jerry A.
Davis issued a strongly worded decision in 2003
finding the deplorable conditions in Unit 32 inflicted
cruel and unusual punishment on death row prisoners
and required correction.
"No matter how heinous the crime committed,
there is no excuse for such living conditions," wrote
Davis. The decision was affirmed by the Court of
Appeals for the Fifth Circuit in 2004.
While conditions for death row prisoners on
Unit 32 have improved because of the litigation, men
housed in the same unit, not awaiting a death
sentence, endure conditions equivalent to those
condemned by Judge Davis.
"The isolation and sensory deprivation of a
'supermax' prison, combined with lethal heat,
pervasive filth, grossly inadequate medical care, and
the barbaric treatment of prisoners who are severely
mentally ill-- it all adds up to torture," said Margaret
Winter, Associate Director of the ACLU's National
Prison Project and counsel for the prisoners. "In our
system ofjustice, torture cannot be part of the penalty
that criminal offenders pay for their offenses against
3

NATWNALPRmONPRoncTJOURNAL

society."
The lawsuit, Presley v. Epps, was filed in U.S.
District Court for the Northern District of Mississippi
by attorneys Winter and Gouri Bhat of the ACLU's
National Prison Project, Hanlon and Cecily Baskir of
Holland & Knight LLP, Mississippi civil rights
attorney Robert McDuff and Ranie Thompson of the
ACLU of Mississippi.
Contmued from cover

HIV-Positive Prisoners
An order issued by u.s. Magistrate Judge
Jerry Davis in Moore v. Fordice concludes litigation
in which the ACLU's National Prison Project became
involved seven years ago. The judge's order
celebrated the litigation's achievements.
"The court appreciates the commitment of
both sides in reaching the conclusion of this
litigation," wrote Davis. "Great strides were made in
the treatment of HN -positive inmates, not only
through the perseverance of plaintiffs counsel, but
also through the recognition of the problem and desire
to correct it shown by the defendants."
ill court documents, Dr. Robert L. Cohen, a
former jail medical director in New York, described
the conditions for HN-infected prisoners at the
Mississippi State Prison in Parchman before changes
were made to improve care. "ill 1999, it is appalling

Summer/Fall 2004

to discover men with HN infection being treated with
callous disregard for their medical problems," wrote
Cohen. Prisoners' "lives are being shortened and they
are enduring preventable pain and suffering because
the basic medical needs are being ignored."
ill June 2004, a federal court order in this case
also ended sanctioned discrimination against
prisoners with HN/AIDS who were banned from
participation in community work programs because of
their illness. For 14 years, Mississippi's prison policy
segregated HN positive prisoners from the general
population, barring them from educational and
vocational opportunities available to other prisoners.
Today, only Alabama continues a segregation policy
that blocks all prisoners with HN from participating
in community corrections programs, although there is
no valid evidence that segregating prisoners reduces
the transmission of HN within prisons.
"Seven years ago, HN- positive prisoners in
Mississippi were being warehoused and were rapidly
dying from lack of medical care," said Winter. "The
struggle they undertook all those years ago has made
an enormous difference. Weare very hopeful that the
Mississippi Department of Corrections will work hard
to preserve the gains accomplished through this
litigation."

Indiana's "Supermax" Confinement Worsens Mental Illness in Prisoners
The extreme isolation and sensory deprivation
found in illdiana's Secured Housing Unit spurred four
suicides and numerous self-mutilations by mentally ill
prisoners, said the American Civil Liberties Union in
February in a lawsuit filed against state prison
officials.
"Locking up prisoners with mental illness in
. small windowless cells is psychological torture," said
Ken Falk, Legal Director of the illdiana Civil
Liberties Union. "Confinement for lengthy periods of
time in 24-hour isolation would compromise even a
healthy person's sanity."
At issue in the February complaint, filed by
the ACLU's National Prison Project and illdiana Civil
4

Liberties Union, are the brutal conditions faced by
mentally ill prisoners confined in the Secured
Housing Unit (SHU) at the Wabash Valley
Correctional Facility in Carlisle, illdiana, a
"supermax" facility. The ACLU charges that the
prisoners' mental illness is exacerbated by the
unbearable conditions in the SHU, which have caused
prisoners to hallucinate, rip chunks of flesh from their
bodies, rub feces on themselves and attempt suicide.
"A disproportionately high number of
mentally ill prisoners are transferred to the SHU
because they are often misidentified as trouble-makers
in prison," said David C. Fathi, an attorney with the
ACLU's National Prison Project. "If mentally ill

NATIONAL PRISON PROJECT JOURNAL

prisoners receive inadequate mental health care or
their disease worsens because of the extreme
deprivation within the SHU, it is likely they will find
it difficult to obey prison rules and will remain stuck
at the facility indefinitely."
For prisoners at the SHU, little has changed
since 1997 when Human Rights Watch detailed many
of the abuses faced by mentally ill prisoners in the
report Cold Storage: Super-MaJCimum Security
Confinement in Indiana. "Warehousing severely ill
and psychotic individuals under conditions that
increase their suffering by exacerbating their
symptoms, and in facilities that lack adequate mental
health services, can only be characterized as cruel,"
the report stated.
Prisoners only leave their cells at the SHU to

Summer/Fall 2004

shower or for solitary recreation in a small walled
compound, but recreation is often canceled because of
bad weather. The cells remain illuminated at night
and the unit is extremely noisy, as the prisoners, who
cannot see each other, shout in order to communicate.
Prisoners are also restricted in their ability to keep
books, letters, family photographs or other personal
items in their cells. There is no limit on how long a
prisoner can spend in the SHU, and many remain
there for years on end.
The lawsuit, Mast v. Donahue, was filed in
U.S. District Court in the Southern District of Indiana
by Falk and Fathi and seeks a ban on placing mentally
ill prisoners in the Secured Housing Unit. No money
damages are sought.

ACLU Urges Maryland to Reject Contract with Correctional Medical Services
Citing Correctional Medical Services' poor
record for dispensing medical care to prisoners, the
American Civil Liberties Union and Public Justice
Center in June urged Maryland's Board of Public
Works to reject a proposed contract with the for-profit
company.
"Correctional Medical Services' history of
cutting comers to maintain profits jeopardizes the
lives of thousands of incarcerated people across the
country," said Elizabeth Alexander, Director of the
ACLU's National Prison Project. "Many states have
already learned a painful lesson from their dealings
with Correctional Medical Services. Maryland must
avoid handing over the care of its prisoners andjail
detainees to a company with a disastrous reputation."
Correctional Medical Services (CMS)
currently holds contracts in 27 states. In Michigan,
where the company provides care to prisoners
statewide, CMS has come under heavy scrutiny for its
attempts to save money by limiting prisoners' referrals
to outside medical specialists. A federal court found
that excessive delays in providing prisoners with
referrals contributed to three deaths during an 18month period. Five other prisoners who died during
the same time period also experienced significant

delays in treatment.
In May, the Maryland Board of Public Works
announced that it would review a two-year statewide
medical services contract between the state's
Department of Public Safety and Correctional
Services and CMS. The board awarded a new
contract to CMS which was scheduled to begin July 1,
2005.
Under the new contract, CMS will provide
care to more than 4,000 detainees confined at the
Baltimore City Detention Center, which has come
under fire in recent years for providing deficient
medical care. In August 2002, the U.S. Department
of Justice cited the jail for 107 violations of health
and safety standards. Since 2002, the ACLU and
Public Justice Center have been involved in litigation
about the medical care provided at the Baltimore Jail
by the current for-profit medical and mental health
care provider, Prison Health Services.
Even with the significant rise in spending for
the new contract, according to the state's estimates,
health services are still underfunded by several
million dollars. The ACLU and Public Justice Center
expressed concern that simply switching for-profit
providers without increasing resources to fund
5

Summer/Fall 2004

NATIONAL PRISON PROJECT JOURNAL

treatment and maintaining close contract oversight
will leave detainees with the same poor care they
received under Prison Health Services.
"There is little point in changing company
names if the continuation of inadequate funding and
indifference from the state regarding detainee health
remains the same," said Sally Dworak-Fisher, an
attorney with the Public Justice Center. "In an
environment without consistent outside oversight and
inspection, the motivations of for-profit companies
like CMS and Prison Health Services become
dangerous. Cutting comers to preserve profits but
risk the health and lives of detainees is inexcusable,
and Maryland officials are responsible when the care
is constitutionally inadequate."

MN Officials End Censorship of NPP
Journal After Threat of Lawsuit
The American Civil Liberties Union in May
applauded prison officials' policy revision allowing
Minnesota prisoners in segregation to receive
publications containing legal material. The policy
change came on the eve ofthe ACLU's filing that
would have challenged the censorship of the
organization's legal journal for prisoners.
"Access to legal information is the most
fundamental tool that prisoners have to protect their
rights," said Teresa Nelson, an attorney for the ACLU
of Minnesota. "Minnesotans value constitutional
rights and the Department of Corrections' move to lift
this ban on legal information should be
congratulated. "

Peter J. Orput of the Minnesota Department of
Corrections officially notified the ACLU about the
policy change. "I believe that this change in our
segregation policy will assuage your concerns
regarding the constitutional rights of segregation
inmates to possess legal material," wrote Orput.
At issue was a Minnesota Department of
Corrections directive that "[0 ]ffenders on disciplinary
segregation are not allowed subscription
magazines/newspapers and publications." The policy
made no exception for legal publications. As a result,
officials censored the ACLU's National Prison
Project Journal and Prison Legal News.
Since the censorship policy was announced in
April, the ACLU and other organizations had received
complaints from subscribers about the ban. Until this
year, Minnesota prisoners who subscribed to legal
publications received their copies without incident.
The newsletters teach prisoners about their rights to
adequate medical and mental health care, protection
from abuse, and many other criminal justice related
issues. Nationally, several thousand prisoners
purchase subscriptions to these publications.
"Minnesota's decision to reform its
publication ban is the right one," said David C. Fathi,
an attorney with the ACLU's National Prison Project.
"Individuals confined in our nation's prisons and jails
have limited access to legal information and
materials. Censoring the little information available
about the Constitution and the protections it provides
against abuse and mistreatment stops prisoners from
protecting themselves against unlawful treatment and
conditions."

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

I U.S. Court of Appeals Cases
Procedural Due Process--Disciplinary
Proceedings/Qualified Immunity
Hanrahan v. Doling, 331 F.3d 93 (2d Cir.
2003) (per curiam). A disciplinary hearing officer can
6

be held liable for an unconstitutionally imposed
disciplinary sentence even after it has been
administratively affirmed. (97 n. 4). The qualified
immunity of the hearing officer is determined by the
length of the sentence the hearing officer imposed and
not by a reduced sentence imposed on administrative
appeal, so if it was not clearly established that the

NATIONAL PRISON PROJECT JOURNAL

reduced sentence was atypical and significant, that
doesn't give the hearing officer who imposed a longer
sentence qualified immunity. Qualified immunity
cannot be based on ''unpredictable subsequent events"
(99).
Rehabilitation/Theories--Due ProcesslMental
Health Treatment/Pendent and Supplemental
Claims; State Law in Federal Courts/Pre-Trial
Detainees/State, Local and Professional Standards
Allison v. Snyder, 332 F.3d 1076 (7th Cir.
2003). The plaintiffs, civilly committed under the
state Sexually Dangerous Persons Act before trial,
complained that they were held in a wing of a state
prison, that their treatment includes self-accusatory
features, and that it is conducted on a group rather
than an individual basis.
The plaintiffs didn't argue that it is
unconstitutional to hold them in a prison, but that the
Constitution requires compliance with the least
restrictive alternative principle of the state law and
that they must be entirely segregated from the general
prison population as state law requires. However, the
Constitution does not require states to follow their
own laws, and federal courts cannot enforce state laws
directly. The relevant federal standard is the no
punishment/professional judgment/reasonable
relationship standard of Youngberg v. Romeo and
Seling v. Young. Under Wolfish, placement in a
prison subject to prison rules is not punishment. At
1079: "Our plaintiffs were not assigned to highsecurity institutions, solitary, lockdown, or otherwise
onerous confinement." Also they are pre-trial
detainees, so Wolfish authorizes the ordinary
conditions of confinement.
The self-incrimination features of the
treatment program are not unconstitutional, since their
participation is voluntary. No one has ever been
criminally prosecuted for acts admitted to during the
program, but nothing in the state's rules prevents such
information from being used in criminal proceedings.
That is not a ground for recovery of damages. Chavez
v. Martinez (US 2003) says (counting votes in the
separate opinions) that damages may not be awarded
for wrongfully eliciting information.

Summer/Fall 2004

Detainees are entitled to non-punitive
programs designed using professional judgment.
Many professionals think that self-accusatory features
are therapeutically essential and polygraphs are
appropriate parts of treatment, and the fact that the
Association for Treatment of Sexual Abusers
recommends different programs from what defendants
provide is neither here nor there. At 1081: "The
Constitution does not command state officials to
follow the majority view of a given professional
association."
Treatment may be in groups and not
individually tailored; the one contrary decision
(Ohlinger v. Watson) presents no rationale and
precedes Youngberg.
PLRA--Exhaustion of Administrative Remedies
Kozohorsky v. Harmon, 332 F.3d 1141 (8th
Cir.2003). The plaintiff sued officers for abusing
him and a supervisor, Harmon, for refusing to take
action against the officers, failing to train officers, and
retaliating for his complaints. At 1143: "Because
Kozohorsky did not exhaust his administrative
remedies on his failure-to-supervise claim against
Harmon, he failed to exhaust all available
administrative remedies as to all of his claims."
The court reiterates its total exhaustion rule
but says that the plaintiff has the option to amend his
complaint to omit unexhausted claims. Rose v. Lundy
allows such amendments to "mixed petitions" in
habeas proceedings, the court thinks the rule is
applicable here, and in fact such amendments have
been permitted in prison conditions cases.
Federal Officials and Prisons/PLRA--Exhaustion
of Administrative Remedies
Cox v. Mayer, 332 F.3d 422 (6th Cir. 2003).
A case filed without exhausting is subject to dismissal
even if the prisoner has been released by the time
exhaustion becomes an issue. At 425: Plaintiff
argued that dismissal would be inconsistent with the
statute's policies because the case would just be
refiled, resulting in "waste ofjudicial time and
resources." "Stated differently and more plainly,
plaintiff argues that to apply the statute as written in
7

NATIONAL PRISON PROJECT JOURNAL

this instance would be to contravene legislative intent.
In this regard, plaintiffs argument is not without
intuitive appeal." However, the statute is free of
ambiguity and therefore should be applied as written
without resort to legislative purpose.
Failure to exhaust cannot be cured by filing a
supplemental complaint under Rule 15(d) recounting
post-filing exhaustion.
At 425 n.2: The plaintiff filed a grievance, got
no response; he didn't exhaust because he could have
appealed to the next level even without a response.

RehabiIitationlMental Health Treatment/Theories-Due Process
West v. Schwebke, 333 F.3d 745 (7th Cir.
2003). Persons civilly committed as "sexually violent
persons" after the end of their prison sentences
challenged the use of "therapeutic seclusion"
(placement in a cell with only a concrete platform to
sleep on, a toilet, and sink, sometimes without
clothing; placement in shackles during the one hour a
day out of cell on weekdays) for periods of time up to
82 consecutive days.
Under Youngberg v. Romeo, detainees are
entitled to the exercise of professional judgment; "if
professional judgment leads to the conclusion that
restraints are necessary for the well-being of the
detainee (or others), then the Constitution permits
those devices. Cf Bell v. Wolfish . .. (similar
conclusion with respect to pretrial detainees, who like
civil detainees are held for reasons other than
punishment)." Defendants said this was fine for
normal detainees but not for "'nontraditional'
detainees who may be handled more roughly. The
word 'nontraditional' is a mantra in defendants'
briefs." But Seling v. Young quoted Youngberg, and
it's about persons detained as sexually dangerous
predators; so did Foucha v. Louisiana, about persons
acquitted by reason of insanity. At 748:
To the extent that plaintiffs are
uncontrollably violent, and thus pose a
danger to others, Wisconsin is entitled
to hold them in segregation for that
reason alone; preserving the safety of
the staff and other detainees takes
8

Summer/Fall 2004

precedence over medical goals....
Just as a pretrial detainee may be put in
isolation--indeed, may be punished for
violating institutional rules, provided
that the jailers furnish notice and an
opportunity for a hearing ...--so a civil
detainee may be isolated to protect
other detainees from aggression.
Institutions may employ both
incapacitation and deterrence to reduce
violence within their walls--though if
mental limitations render a detainee
insensible to punishment, the only
appropriate goal would be
incapacitation. Either way, if at trial
defendants can establish that their use
of seclusion was justified on security
grounds, they will prevail without
regard to the question whether
extended seclusion is justified as a
treatment. There is nothing that
invocation of [qualified] immunity can
do for them, however, as long as the
evidence is in conflict on the question
whether a reasonable person could
have thought the use of seclusion
appropriate from a security
perspective.
It was clearly established by Foucha that
Youngberg applies to civil detainees who have
committed criminal acts. The question is whether
defendants' use of seclusion could be justified on
either security or treatment grounds. Plaintiffs' expert
affidavits say that the seclusion periods far exceeded
what could be justified for security or treatment, and
that is sufficient to require a trial. At 749: "To get
anywhere on this appeal, defendants would have to
establish that no decision by a person with an
advanced degree is open to question in litigation....
What sets this case apart from others in which the
defendants received immunity ... is that respected
experts have opined, on plaintiffs' behalf, that the
defendants' choices exceed the scope of honest
professional disagreement."

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NATIONAL PRISON PROJECT JOURNAL

PLRA--Prospective Relief Provisions--Judgment
Termination
The Para-Professional Law Clinic at SCIGraterford, 334 F.3d 301 (3d Cir. 2003). Prison
officials moved to terminate an injunction requiring a
prisoner-run law clinic. Plaintiffs conceded that there
was no current and ongoing constitutional violation,
but said if the judgment is terminated there will be
because the defendants will shut down the clinic. The
court says that argument does not meet the PLRA's
requirements. The court "encourages" the defendants
in the "strongest terms" not to terminate the clinic.

escalating pattern of abuse was not supported by the
record (he had been crime and discipline free for 13
months), nor was its finding of lack of remorse
supported in light of numerous psychological reports
and the prisoner's testimony to the contrary.
However, the finding that the gravity of the offense
and conduct before imprisonment precluded release
did not deny due process. "Over time, however," if
the petitioner continues his exemplary behavior,
continued denial of a parole date based only on the
nature of the crime and prior conduct would raise
serious questions.

Access to Courts--Law Libraries and Law
Books/Habeas Corpus
Egerton v. Cockrell, 334 F.3d 433 (5th Cir.
2003). The absence of a copy of the Anti-Terrorism
and Effective Death Penalty Act from the prison law
library was a state-created impediment that tolled the
AEDPA limitations period. At 438: "The absence of
all federal materials from a prison library (without
making some alternative arrangements to apprise
prisoners of their rights) violates the First
Amendment right, through the Fourteenth
Amendment, to access to the courts."

Ex Post Facto Laws/Good Time
Hunter v. Ayers, 336 F.3d 1007 (9th Cir.
2003). State law provided for prisoners who lost
good time to get it back ifthey met objective criteria
for avoiding discipline. Before the plaintiffs
disciplinary offense, the statute was changed to allow
the prison system to change the governing regulations.
After his offense, the regulation was changed so good
time could not be restored for serious disciplinary
offenses.
Application of the new regulation to the prior
disciplinary offense violated the Ex Post Facto
Clause, since restoration of good time was not
discretionary under prior law and therefore not a
"speculative and attenuated possibility" in Ex Post
Facto-speak.

Procedural Due Process
Biggs v. Terhune, 334 F.3d 910 (9th Cir.
2003). The California parole statute, which requires
the parole board to set a release date for a prisoner
unless it determines that the gravity of the convicted
offense or past offenses mandate deferral of release,
gives rise to a liberty interest in parole release.
Sandin is inapplicable; it addresses internal prison
discipline and has nothing to do with parole. The fact
that this prisoner never got a release date does not
mean that he never had a liberty interest. Due process
is satisfied if some evidence supports the parole
board's decision and the evidence underlying the
decision has some indicia of reliability. State law
permits the board to consider "a myriad of factors";
consideration of materials from a proceeding in
another tribunal was an appropriate exercise of
judicial notice. This petitioner was denied due
process in that the parole board's finding of an

Ex Post Facto Laws
Himes v. Thompson, 336 F.3d 848 (9th Cir.
2003). Application of a parole regulation that
postdated the petitioner's offense and created a
"significant risk of a more onerous sentence" violates
the Ex Post Facto Clause. It need not be certain that
the particular petitioner would serve more time. Here,
a regulation that permitted the parole board to deny
rere1ease after parole revocation based on a finding of
"aggravation" and allowed a range of intermediate
sanctions was changed to require denial of rerelease
and confinement until the expiration of sentenced
based on that finding.
Procedural Due Process
9

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Noel v. Norris, 336 F.3d 648 (8th Cir. 2003)
(per curiam). At 649:
Because clemency is extended
mainly as a matter of grace, and the
power to grant it is vested in the
executive prerogative, it is a rare case
that presents a successful due process
challenge to clemency procedures
themselves. See Ohio Adult Parole
Auth. v. Woodard. .. , On the other
hand, if the state actively interferes
with a prisoner's access to the very
system that it has itself established for
considering clemency petitions, due
process is violated. See Young v.
Hayes, 218 F.3d 850,853 (8th Cir.
2000).
The state's refusal to give the plaintiff more time to
prepare for his clemency hearing and to allow him to
undergo a brain-scan procedure to prove he had brain
damage did not deny due process; he submitted a 400page record including some evidence of brain
damage.
PLRA--Exhaustion of Administrative Remedies
Thomas v. Woolum, 337 F.3d 720 (6th Cir.
2003). The plaintiffs grievance was filed after five
months when the deadline was 30 days. He appealed
all the way up. The incident he complained of had
been investigated promptly and the officer who beat
him was eventually fired. The plaintiff was awarded
$70,000 in damages.
The court declines to reverse for failure to
exhaust. Failure to comply with a prison grievance
system's time limits does not constitute failure to
exhaust. Exhaustion is not the same as procedural
default. (725) The court thinks that civil rights
statutes like Title VII are a better analogy to PLRA
exhaustion than habeas corpus, and under Title VII,
noncompliance with state procedural rules in the
administrative process does not bar a subsequent
federal action. (727 n.2) The danger that prisoners
will purposefu111y make procedural errors in prison
grievance systems is not large, since it is not in
prisoners' interest to do so-they might get a favorable
10

Summer/Fall 2004

decision in the grievance process if they do it right.
The court affirms the district court's denial of
relief with respect to bystanding officers who were
not named or mentioned in the grievance, even though
they he did name them in the use of force
investigation carried out shortly after the incident. At
733: "... [A] grievance that does not give officials
notice of the nature of the inmate's grievance does not
afford the officials the opportunity the PLRA
requires." At 734: "Although an inmate need not
identify each officer by name when the identities of
the particular officers are unknown, Thomas here
knew one on-looking officer's identity and knew that
others had watched the beating as well. Accordingly,
his grievance form should have noted either the other
officers' names or the fact that other officers had seen
the beating."
The plaintiffs cooperation in the use of force
investigation, though it may have given notice to
prison officials, doesn't exhaust under this circuit's
law. At 734: "In determining whether the inmate has
exhausted his or her remedies, we thus look to the
inmate's grievance, not to other information compiled
in other investigations."
Plaintiff argues that grievances need not be
filed "against" particular defendants but are filed
"regarding certain problems; accordingly, a grievance
should be understood to exhaust remedies so long as
it alerts prison officials to a problem to be
investigated, whether or not it identifies specific
individuals." Sims v. Apfel seems to support this
position, the court explains at some length, but Sixth
Circuit case law is to the contrary and this panel is
stuck with it.
Pro Se Litigation
United States v. Fiorelli, 337 F.3d 282 (3d
Cir. 2003). Delays in the delivery of an appealable
order through a prison's mail system should be
excluded from the time for filing a motion for
reconsideration. The court has already so held in
connection with notices of appeal, analogizing to the
Houston v. Lack mailbox rule applicable to outgoing
mail. There must be some allegation of actual delay
or interference by the prison (as opposed to slow

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JOURNAL

mail), but the burden of establishing the relevant dates
is on the prison, which is the party most likely to have
access to the relevant evidence.
Marriage/Qualified Immunity/Attorneys'
Fees/Consent Judgments
Toms v. Taft, 338 F.3d 519 (6th Cir. 2003). A
prisoner and his fiancee sought to get married, but
could not get a marriage license because state law
requires both applicants to appear personally before
the probate court; prison officials were unwilling to
be designated as deputy clerks, as the probate court
offered; and the probate court was unwilling to send a
clerk to the prison. Eventually the injunctive claim
was settled (an Assistant Attorney General was
deputized as clerk), the plaintiffs married, and the
injunctive claim was dismissed as moot with
plaintiffs' consent.
At 527: "Although it was not previously
clearly established, we now hold that the distinction
between actively prohibiting an inmate's exercise of
his right to marry and failing to assist is untenable in a
case in which the inmate's right will be completely
frustrated without officials' involvement. Therefore,
when an inmate will be unable to marry without
prison officials' affirmative assistance, Turner's
strictures apply."
Punitive Segregation/Punishment/Procedural Due
Process--Disciplinary Proceedings/Cruel and
Unusual Punishment/Hygiene/Clothing/
Furnishings/Heating and VentilationlNegligence,
Deliberate Indifference and Intent
Trammell v. Keane, 338 F.3d 155 (2d Cir.
2003). The plaintiff, held in SHU for disciplinary
convictions, piled up more disciplinary violations in
SHU (many for throwing various items and
substances), and the sanctions imposed did not cure
his behavior. Prison officials issued an order
depriving him of all property except one pair of
shorts, recreation, showers, hot water, and cell bucket;
he was either deprived of toilet paper or ran out. His
"nutriloaf' diet was also extended for abut 95 days.
The other deprivations went on for about two weeks.
A state court determined that the deprivation order

Summer/Fall 2004

"went too far" under state regulations by using
deprivations as punishment and not for security
reasons.
The plaintiffs Eighth Amendment claim is
governed by the deliberate indifference standard. At
162:
In Farmer, the Court made
clear that the use of the "malicious or
sadistic" standard was appropriate in
excessive force cases in part because
the decision to use force is generally
"made in haste, under pressure, and
frequently without the luxury of a
second chance." Farmer. '" We
believe that standard to be
inappropriate in the instant case where
the disciplinary measures taken were
preplanned and monitored.
However, the disciplinary measures at issue "plainly
implicate prison safety and discipline....
Accordingly, the deliberate indifference standard must
be applied in a way that accounts for the precise
circumstances of the alleged misconduct and the
competing institutional concerns." (163) The court
notes that Hope v. Pelzer "took into account--as one
would do in an excessive force case---whether the
punishment was justified by 'any safety concern' in the
prison." Therefore this case is no exception to the
principle of "wide-ranging deference" in matters of
order and discipline. At 163:
Consequently, we ask not simply
whether the [relevant] Order was
imposed with "deliberate indifference"
to Trammell's health and safety, for it
is indisputable that the Order was
intended to make Trammell
uncomfortable in an effort to alter his
behavior. Rather, we consider whether
the Order was reasonably calculated to
restore prison discipline and security
and, in that purposive context, whether
the officials were deliberately
indifferent to Trammell's health and
safety.
The court concludes that the deprivation order, "while
11

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indeed onerous, even harsh, was reasonably calculated
to correct Trammell's outrageous behavior." It notes
that "Trammell held the keys to his own cell door,
figuratively speaking, and could have rid himself of
the harshest aspects of the Order by simply reforming
his behavior." (164)
The defendants were also not deliberately
indifferent to the plaintiffs health and safety; a nurse
regularly observed him. The plaintiff said he was
kept virtually naked for a "prolonged period in bitter
cold," but he does not allege conditions or
temperatures of the sort the court has cited in prior
cases where prisoners alleged that they were "directly
exposed for lengthy periods in winter weather." (165)
He was certainly uncomfortable but there is no health
or safety issue.
At 165: "... [d]eprivation of toiletries, and
especially toilet paper, can rise to the level of
unconstitutional conditions of confinement. ..."
However, it appears that the deprivation of toilet
paper was inadvertent, and the two-week deprivation
of other toiletries does not pose a risk to health or
safety so obvious as to suggest defendants' deliberate
indifference.
At 166:
Unlike the defendants in Hope
[v. Pelzer}, who implemented a
particularly harsh disciplinary measure
with no regard for the inmate's health,
the less severe disciplinary measure
here was regularly monitored by a
nurse in order to ensure that his health
was not jeopardized by the various
deprivations imposed in response to
his misconduct. Under such
circumstances, the risk of harm to
Trammell was not "obvious," as was
the case in Hope.
Here, unlike Hope, the measures had a penological
purpose because they were an attempt to control
ongoing misconduct.

Searches--Person--Arrestees/Qualified Immunity
Savard v. State ofRhode Island, 338 F.3d 23
(1st Cir. 2003) (en bane). The lower court's judgment
12

Summer/Fall 2004

is affirmed by an equally divided court.
The plaintiffs were arrested for non-violent,
non-drug-related misdemeanors, and strip searched
incident to their detention at the Adult Correctional
Institution (in Rhode Island the penitentiary and pretrial detention functions are integrated). After their
arrests, another decision struck down the practice of
blanket strip searches.
The defendants were entitled to qualified
immunity. Prior law striking down blanket strip
searches in local jails or police stations did not
address detention in a maximum security prison.

Sexual Abuse/Temporary Release/Qualified
Immunity/Cruel and Unusual Punishment/Color
of Law and Liability of Private Entities
Smith v. Cochran, 339 F.3d 1205 (10th Cir.
2003). The plaintiff alleged that she was raped by a
state drivers' license examiner while on work release
and working at a license examination center.
At 1212: "Sexual abuse is repugnant to
contemporary standards of decency and allegations of
sexual abuse can satisfy the objective component of
an Eighth Amendment excessive force claim. . .. The
right to be secure in one's bodily integrity includes the
right to be free from sexual abuse." The plaintiffs
allegations that the defendant forced her to expose
herself and that he raped her on several occasions
meet the objective requirement of the Eighth
Amendment. They also meet the subjective prong.
Sexual abuse or rape in itself is "sufficient evidence
that force was used 'maliciously and sadistically for
the very purpose of causing harm.' ... Because there
can be no legitimate purpose" for sexual abuse and
rape, those allegations satisfy the malicious and
sadistic standard. (1212-13)
The fact that the defendant license examiner
was not a prison guard does not make the Eighth
Amendment inapplicable. While "only prison
officials and those to whom they delegate penological
responsibilities for prisoners have Eighth Amendment
duties and attendant liabilities" (1213), the plaintiffs
placement at the Department of Public Safety
encompassed a delegation of the prison system's
penological function of supervising her behavior. At

NATIONAL PRISON PROJECT JOURNAL

1214: "In fact, the contract invoked a state law that
extends, as a legal matter, the boundaries of the
prisoner's place of confinement to the site of the
plaintiffs public works project."

Procedural Due Process--Property/Personal
Property
McIntyre v. Bayer, 339 F.3d 1097 (9th Cir.
2003). Nevada prisoners are required to keep their
money in a personal property trust fund run by the
state; it is pooled for interest purposes and the interest
credited to a fund for the benefit of all prisoners. The
relevant statute says that it does not create a right of
prisoners to interest or income from the money. The
district court initially found that the statute's
retroactive application had unconstitutionally
deprived the plaintiff of $3.93, but upheld the statute
in its prospective application. After remand based on
Phillips v. Washington Legal Foundation and a Ninth
Circuit decision, the district court adhered to its
finding of constitutionality.
Interest income is a property interest
sufficiently fundamental that it can't be appropriated
without implicating the Takings Clause. This statute,
which takes the interest and spends it for the benefit
of the prison population, takes it for public use. The
question is whether any "just compensation" is due.
The court must determine whether the interest accrued
exceeds the costs of administering the fund. Here, it
does not in the aggregate (the costs of administration
were almost $400,000, while the interest transferred
was slightly over $100,000, in the most recent fiscal
year). But the question is whether the interest earned
by plaintiffs principal exceeds his_share ofthe fund's
administrative costs, and the court vacates and
remands for that determination.
PLRA--Special Masters/Cruel and Unusual
Punishment/Class ActionslUse of Force
Webb v. Goord, 340 F.3d 105 (2d Cir. 2003)
(Pooler, J., with Sack and B.D. Parker concurring).
Thirty prisoners sued 14 superintendents, 50 officers,
and 100 officer John Does, plus the administrators of
the system, for various instances of excessive force,
assault by other prisoners attributed to staff failures,

Summer/Fall 2004

and denial of medical care, extending over a period of
10 years.
The case was not pled as a class action, but the
plaintiffs rely on class action law, so the court
explains to them that in such a case you have to have
a policy or practice through the system, or at least in a
facility, so as to make a "sustainable lawsuit" with
"manageable discovery" or a "reasonable trial." (109)
Same here. At 110: "The sheer diffuseness ofthe
plaintiffs' allegations completely subverts their federal
law claims." You can't find a prison system
unconstitutional based on "a series of discrete
incidents ... over a long period of time."
The plaintiffs haven't shown that 40 unrelated
incidents over 10 years at 13 prisons can establish an
Eighth Amendment claim. At 110: "Specifically, the
necessary foundation of a finding that a prison system
has violated the Eighth Amendment is evidence of a
concerted intent among prison officials, one
expressed through discernable regulations, policies or
practices.. It is impossible for us to be more precise
here without resorting to the vocabulary of
metaphysics, but we hope we are not misunderstood
when we assert that an accumulation of incidents--we
do not say 'a mere accumulation'--does not
necessarily amount to a qualitative violation of the
Eighth Amendment."

PLRA--Exhaustion of Administrative Remedies
Johnson v. Jones, 340 F.3d 624 (8th Cir.
2003). Dismissal is required ifthe plaintiff did not
complete exhaustion before filing his complaint.
Federal Officials and AgenciesIPLRA--Exhaustion
of Administrative Remedies
Perkins v. Hedricks, 340 F.3d 582 (8th Cir.
2003). A claim by a civilly committed person at the
Federal Medical Center in Springfield was not
required to be exhausted because he was not a
prisoner under the PLRA.
Good Time/Habeas Corpus
Hadley v. Holmes, 341 F.3d 661 (7th Cir.
2003). The petitioner challenged a change in state
good time law that restricted his ability to earn
13

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NATIONAL PRISON PROJECT JOURNAL

discretionary good time in the future. That claim
should have been brought under § 1983 rather than
habeas corpus. It is analogous to disputes about
parole release procedures, which the Supreme Court
has analyzed under § 1983.

Procedural Due Process
Paige v. Hudson, 341 F.3d 642 (7th Cir.
2003). The plaintiff was sentenced to spend six
months in a "home detention" program as a condition
of probation; he was arrested on probation revocation
charges, jailed for three days, and then reinstated on
probation.
Removal from home detention to jail is a
"sufficiently large incremental reduction in freedom
to be classified as a deprivation of liberty under the
Sandin doctrine." (643)
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Piggie v. Cotton, 342 F.3d 660 (7th Cir. 2003)
(per curiam). At 666: "Although prison disciplinary
committees may deny witness requests that threaten
institutional goals or are irrelevant, repetitive, or
unnecessary, they may not exclude witnesses
requested by an offender with no explanation at all.
... Nor may staff members simply refuse to appear
based on a blanket institutional policy." However, the
failure to call the witness or provide a reason was
harmless error in the absence of any showing of
prejudice by the plaintiff.
The fact that the disciplinary board charged
the plaintiff as a habitual rule violator after four
violations, while others were not charged until after
more violations, did not show the board was not
impartial. At 667: "Due process does forbid officials
who are directly or substantially involved in the
factual events underlying the disciplinary charges, or
the investigation thereof, from serving on the board
hearing the charge." However, disqualifying anyone
who was involved with an earlier disciplinary
proceeding from adjudicating a subsequent habitual
violator charge would be "infeasible" (dictum).
Religion--Practices--DietlEqual
14

Summer/Fall 2004

ProtectionlEvidentiary
Questions/Deference/Summary Judgment
Williams v. Morton, 343 F.3d 212 (3d Cir.
2003). The plaintiffs sued for failure to serve Halal
food to Muslims; instead, the prison served a
vegetarian diet for persons who couldn't eat the
regular diet for religious reasons (except for the four
Jews, who got kosher food with meat). The plaintiffs
alleged a religious belief that they had to eat Halal
meat.
The practice does not violate the Free Exercise
Clause. (Apparently no statutory claims were pled.)
It is connected to the legitimate penological interests
of simplified food service, prison security, and
budgetary constraints, since to serve Halal meat,
prison officials would have to "coordinate a new
program for food service that would require more
kitchen help and could potentially cause problems
between prisoners," and there was no evidence that
Halal meat could be provided "in a cost efficient
manner or within the prison's budget." (217) One
witness's concession that it "would be no great
problem" to serve Halal meat doesn't create a material
issue of fact in light of an official's testimony that it
would cause a "considerable disruption" and that each
Halal meat meal would have to pass individually
through an x-ray machine, and they would create
"additional security concerns." (218) The fact that
providing Jewish inmates with kosher food costs
$3650 a year apiece does not make it unreasonable to
refuse to spend $280 a year per person on Muslims,
since there are 225 Muslims. The court says that
under the relevant standard (218), "Prisoners have the
burden of disproving the validity of of the regulation.
It is not enough to show there are different views as to
the relevant issues and underlying facts." (This on a
motion for summary judgment.)
The prisoners have an alternative way of
following their dietary laws, and they are permitted
various other forms of religious practice; in fact, they
showed no other way in which their religious
expression was not being accommodated.
The impact of accommodation on guards and
other inmates weighs in prison officials' favor, since
even if some food is not x-ray scanned, it would all

NATIONAL PRISON PROJECT JOURNAL

have to be searched coming into the prison. The
district court concluded that providing Halal food to
everybody, which would simplify things, could be
viewed as "imposing Islam on the whole prison
community." The court distinguishes its prior DeHart
decision on the ground that the Buddhist plaintiff in
that case was asking only for a cup of soy milk to be
added to existing meals, and there was only one of
him. There are no ready alternatives at de minimis
cost.
The Turner standard does not require
prisoners to establish that a challenged policy
"substantially burdens" their beliefs; if the belief is
sincere, the court determines only if the challenged
practice is reasonable under Turner (217).
The differential treatment of Jews and
Muslims did not deny equal protection, since Jews did
not receive meat; a statement to the contrary was
retracted by the person who made it.
The district court was not required to exclude
the late-identified testimony of the Deputy
Commissioner because he did not take the position
during the discovery period and the plaintiffs were
given adequate opportunity to depose him and
supplement the record.
Pre-Trial DetaineesIPLRA--Prospective Relief
Provisions--Termination of Judgments
Benjamin v. Fraser, 343 F.3d 35 (2d Cir.
2003). Pretrial detainees challenging environmental
conditions ofjails must show deliberate indifference,
but it may generally be presumed from an absence of
reasonable care. (49) The district court's finding of
deliberate indifference "was primarily based on the
City's failure to remedy serious violations to which it
had long been alerted...." (51) Detainees need not
show "wantonness or, more specifically, that officials
knew of and disregarded an excessive risk to inmate
health or safety." That requirement "is unique to
Eighth Amendment claims, stemming from that
amendment's prohibition of cruel and unusual
punishments as opposed to cruel and unusual
conditions. ... [I]n a challenge by pretrial detainees
asserting a protracted failure to provide safe prison
conditions, the deliberate indifference standard does

Summer/Fall 2004

not require the detainees to show anything more than
actual or imminent substantial harm." At id. n. 18:
"In other types of challenges--for example, when
pretrial detainees challenge discrete judgments of
state officials--meeting the deliberate indifference
standard may require a further showing."
The defendants' compliance efforts do not
protect them from liability; the district court found
that the violations "were, for the most part,
'continuations of deficiencies that have been known,
obvious, and commented upon ... for years,' and that
the City's remedial efforts were largely ineffective."
(51-52)
Heating and Ventilation (52): The court's
finding of constitutionally inadequate ventilation was
adequately supported by "the presence of large
numbers of inoperable windows, clogged or dirty
ventilation registers and exhaust vents in showers and
cells, and poor air quality" and "specific findings
concerning the threatened and actual health hazards
resulting from these conditions." The finding of
inadequate heat and extreme temperatures was
adequately supported by "the evidence of extreme
temperatures, including no heat at all at times during
the winter, [that] was essentially uncontroverted."
Lighting (52): "In finding constitutionally
inadequate lighting at nine facilities, the district court
found, among other things, that inmates on occasion
were left with inoperable lights in their cells for days
on end, ... and that in some cells where the lighting
fixtures did work, the light emitted was barely
discernible...." The court affirms the finding of
unconstitutionality based on the lower court's
findings of: "(1) non-working light fixtures; (2)
inadequate light-bulb wattage; and (3) obstructed
luminary covers." However, it remands the question
of how many foot-candles of light are required to
ensure that the court imposes a remedy based on
actual lighting conditions.
Crowding, Heating and Ventilation (53): The
court rejects on PLRA grounds the requirement, as an
element of ventilation remedy, that beds be spaced so
that detainees' heads are six feet apart, because the
record contains no showing of "actual or imminent
substantial harm."
15

NATIONAL PRISON PROJECT JOURNAL

Heating and Ventilation (53-54): The court
affirms the district court's finding that it is less
intrusive to require all windows to be made
operational rather than considering the utility of each
window individually, since "a comprehensive repair
program would be more effective and less intrusive
than an individual review of each window at the
various facilities."
Pest Control, Injunctive Relief--Changed
Circumstances (57): The district court's fmding of no
constitutional violation with respect to vermin
infestation in living areas, which was premised on the
very recent introduction of an "Integrated Pest
Management" program, is affirmed. Though under
the PLRA the courts should assess a record made as
of the time termination is sought, the record may
include "bona fide steps that prison officials are
taking to alleviate poor prison conditions." (57)

Correspondence--Legal and Official/Damages-Intangible Injuries
Saltier v. Brooks, 343 F.3d 868 (6th Cir.
2003). The Sixth Circuit rules comprehensively on
legal mail confidentiality. At 873-74:
A prisoner's right to receive
mail is protected by the First
Amendment, but prison officials may
impose restrictions that are reasonably
related to security or other legitimate
penological objectives.... As we
have noted, "prison officials may open
prisoners' incoming mail with an eye to
maintaining prison security." ...
However, prison officials who open
and read incoming mail [874] in an
arbitrary and capricious fashion violate
a prisoner's First Amendment rights.
Moreover, when the incoming
mail is "legal mail," we have
heightened concern with allowing
prison officials unfettered discretion to
open and read an inmate's mail because
a prison's security needs to not
automatically trump a prisoner's First
Amendment rig4t to receive mail,
16

Summer/Fall 2004

especially correspondence that impacts
upon or has import for the prisoner's
legal rights, the attorney-client
privilege, or the right of access to the
courts....
In an attempt to accommodate
both the prison's needs and the
prisoner's rights, courts have approved
prison policies that allow prison
officials to open "legal mail" and
inspect it for contraband in the
presence of the prisoner. See, e.g.,
Wolffv. McDonnell. ... "Opt-in"
systems that require prisoners to
request affirmatively that privileged
mail be opened only in their presence
are constitutionally sound "as long as
prisoners received written notice of the
policy, did not have to renew the
request upon transfer to another
facility, and were not required to
designate particular attorneys as their
counsel." (874)
Id.: "Not all mail that a prisoner receives from
a legal source will implicate constitutionally protected
legal mail rights. Indeed, even mail from a legal
source may have little or nothing to do with protecting
a prisoner's access to the courts and other
governmental entities to redress grievances or with
protecting an inmate's relationship with an attorney."
At 875: "In general, when there is no specific
indication to the contrary, an envelope from an
organization such as the ABA may be opened
pursuant to the regular mail policy without violating
the First Amendment rights of a prisoner." "Specific
indication to the contrary" seems to mean markings
on the envelope to alert prison staff that it should be
opened in the prisoner's presence.
Mail from county clerks is not privileged legal
mail because county clerks don't provide legal advice
or direct legal services and don't have authority to
take direct action on a prisoner's behalf. Therefore
such mail "does not implicate a prisoner's right of
access to the courts, of petitioning the government to
redress grievances, or of competent representation by

NATIONAL PRISON PROJECT JOURNAL

counsel." (876) The issues county clerks deal with-birth, marriage, or death certificates, tax and real
estate services, automobile title, etc., "are not the
types of legal matters that raise heightened concern or
constitutional protection."
Mail from state and federal courts "will
frequently, but not necessarily, involve a currently
pending legal matter affecting the prisoner's rights. "
(876) The court rejects the Seventh Circuit's holding
that since court mail involves matters of public
record, it is not privileged. In some cases the
correspondence involves complaints that have not yet
been filed publicly. At 877: "In order to guard
against the possibility of a chilling effect on a
prisoner's exercise of his or her First Amendment
rights and to protect the right of access to the courts,
we hold that mail from a court constitutes 'legal mail'
and cannot be opened outside the presence of a
prisoner who has specifically requested otherwise."
At 877-78:
We find that the prisoner's
interest in unimpaired, confidential
communication with an attorney is an
integral component of the judicial
process and, therefore, that as a matter
of law, mail from an attorney
implicates a prisoner's protected legal
mail rights. . . .. There is no
penological interest or security concern
that justifies opening such mail outside
.of the prisoner's presence when [878]
the prisoner has specifically requested
otherwise.
The defendants are entitled to qualified
immunity on the claims about court mail, but not
attorney mail.
A jury award of$750 in compensatory
damages and $250 in punitive damages for each
violation "is not clearly excessive, does not show the
jury acted from passion, bias, or prejudice, and does
not shock our judicial conscience." (880) The court
says absolutely nothing about the theoretical basis for
awarding damages for intangible violations or about
the PLRA mental/emotional injury provision.

Summer/Fall 2004

Grievances and Complaints about
Prison/Summary Judgment/PLRA--Screening and
Dismissal
Hart v. Hairston, 343 F.3d 762 (5th Cir. 2003)
(per curiam). A retaliation claim requires a prisoner
to allege "(1) a specific constitutional right, (2) the
defendant's intent to retaliate against the prisoner for
his or her exercise of that right, (3) a retaliatory
adverse act, and (4) causation." (764, citation
omitted) Retaliation for complaining about staffs
misconduct is unlawful. The plaintiff alleged a
"chronology of events" showing retaliatory motive,
since the disciplinary charge was based on a
grievance. The 27 days of commissary and cell
restriction constituted an "adverse act." Causation
was shown by the direct link between complaint and
punishment.
Defendants argued that the 27 days' loss of
privileges was de minimis. At 764: "Although we
have not specifically addressed the quantum of injury
necessary to constitute an 'adverse act' for purposes of
a retaliation claim, the penalties imposed on Hart do
not qualify as de minimis under various standards
cited by other circuits."
PLRA--Exhaustion of Administrative
Remedies/Searches--Person--Convicts
United States v. Carmichael, 343 F.3d 756
(5th Cir. 2003). The federal DNA Act requires
collection of DNA samples from "qualified" persons
by Bureau of Prisons officials. Neither the text nor
the legislative history suggest any part for district
courts at sentencing in the process. This contrasts
with provisions for DNA sampling as a condition of
placement on supervised release and probation, which
require courts to order it. DNA sampling is not
analogous to restitution, criminal forfeiture, or special
assessments, which constitute part of a criminal
sentence, since each of these requires a district court
order. Therefore it is a "prison condition" for
purposes of the PLRA. Conditions of confinement
claims are not limited to complaints such as cell
overcrowding and inadequate medical care; Porter v.
Nussle says that they include prisoner petitions
alleging not only "continuous conditions," but also
17

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"isolated episodes of unconstitutional conduct," and
implicate "all inmate suits about prison life, whether
they involve general circumstances or particular
episodes, and whether they allege excessive force or
some other wrong." At 76l: "Accordingly, we hold
that the DNA Act's provision for the BOP's collection
of federal offenders' DNA during incarceration is not
part of appellants' sentence, but is rather a prison
condition that must be challenged through a separate
civil action after exhaustion of administrative
remedies."

Grievances and Complaints about
Prison/Procedural Due Process--Disciplinary
Proceedings/PLRA--Exhaustion of Administrative
Remedies/Summary Judgment/Use of Force
Scott v. Coughlin, 344 F.3d 282 (2d Cir.
2003). The plaintiff alleged that after he submitted a
statement supporting another prisoner's excessive
force claim, he was singled out for a pat frisk,
subjected to excessive force, and falsely disciplined.
In a separate incident, after filing a complaint about
an officer who confiscated his legal papers, he was
subject to harassment and physical abuse, and falsely
disciplined.
At 287-88 (citations omitted):
To establish a prima facie case
of First Amendment retaliation, a
plaintiff must establish "(1) that the
speech or conduct at issue was
protected, (2) that the defendant took
adverse action against the plaintiff, and
(3) that there was a causal connection
between the protected speech and the
adverse action." . . . Conclusory
allegations or denials are ordinarily not
sufficient to defeat a motion for
summary judgment when the moving
party has set out a documentary
case. . .. Yet, in a retaliation case that
is supported by detailed and persuasive
factual allegations summary judgment
without full discovery may be
inappropriate. . .. Regardless of the
presence of retaliatory motive,
18

Summer/Fall 2004

however, a defendant may be entitled
to summary judgment if he can show
dual motivation, i.e., that even without
the improper motivation [288] the
alleged retaliatory action would have
occurred. See Mt. Healthy . ...
Plaintiff has the initial burden of
showing that an improper motive
played a substantial part in defendants'
action. The burden then shifts to
defendant to show it would have taken
exactly the same action absent the
improper motive....
Accord, Bennett v. Goard, 343 F.3d 133 (2d Cir.
2003). The plaintiffs "involvement in filing claims
against prison officials and helping others do so was
protected activity, as it was an exercise of his right to
petition the government for redress of grievances
under the First Amendment." (288)

Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Piggie v. Cotton, 344 F.3d 674 (7th Cir.
2003). The prisoner petitioner has a liberty interest
protected by due process in earned-credit time and his
credit-earning class, which was reduced as a
disciplinary sanction.
The petitioner asked for a witness, prison
officials said the witness refused to cooperate, but the
witness says in an affidavit that that's not true.
However, neither the witness nor the petitioner says
how the witness might have helped him in his
hearing, so reliefwas properly denied.
The refusal to let the petitioner see the
videotape that was used as evidence against him
denied due process. This court has held that the
Brady rule applies in prison disciplinary proceedings
"to insure that the disciplinary board considers all of
the evidence relevant to guilt or innocence and to
enable the prisoner to present his or her best
defense. . . . Accordingly, an inmate is entitled to
disclosure of material, exculpatory evidence in prison
disciplinary hearings unless such disclosure would
unduly threaten institutional concerns." (678)
The fact that the Brady rule has not been

NATIONAL PRISON PROJECT JOURNAL

applied to prison disciplinary proceedings by the
Supreme Court does not mean it can't be enforced in
habeas under AEDPA. The Seventh Circuit once
suggested that in habeas proceedings challenging
prison discipline, prisoners must show that the
challenged conduct was unlawful under decisions of
the Supreme Court. However, it has since
disapproved that suggestion, since prison disciplinary
boards are not "courts" for habeas purposes.
On remand, the district court should determine
whether the state had a valid security reason for
failing to disclose the tape; and, if not, did the tape
contain exculpatory information; and, if so, was the
error harmless? At 679: "We have never approved of
a blanket policy of keeping confidential security
camera videotapes for safety reasons, ... and the
logistics of the prison surveillance system are not at
issue here because ... [the petitioner] knew he was
being videotaped [with] a hand-held camera." Where
is it not apparent whether the tape is exculpatory or
not, "minimal due process" requires that the district
court review the tape in camera. (679)
Personal Property/Procedural Due Process-Property/Grievances and Complaints about Prison
Vance v. Barrett, 345 F.3d 1083 (9th Cir.
2003). A state statute provided for crediting monies
earned by and sent to prisoners to their prison
accounts. The Department of Prisons required all
prisoners to sign an agreement in order to be eligible
for prison employment which provided that their
savings accounts would not accrue interest for their
sole benefit. The plaintiffs refused to sign the
agreement, were fired, and brought this suit alleging
retaliation for exercising their constitutional rights.
The plaintiffs raised claims under the Takings
Clause and the Due Process Clause. At 1089
(footnotes and citations omitted):
... [T]he protections afforded by each
are distinct. The Takings Clause limits
the government's ability to confiscate
property without paying for it. It is
"designed to bar Government from
forcing some people alone to bear
public burdens which, in all fairness

Summer/Fall 2004

and justice, should be borne by the
public as a whole." . . . The Due
Process Clause, on the other hand,
requires that the government provide
appropriate procedural protections
when taking such property--with or
without compensation.
Id. n.6: Both these claims depend on the existence of
an underlying constitutionally protected property
interest. The court has previously held that interest on
prisoner accounts is a constitutionally protected
property interest, both as a result of state statute and
as an independent constitutional matter.
The Takings Clause analysis is confined to
those deductions that were authorized by statute;
actions officials took without statutory authorization
were done without any authority, and are analyzed
under the Due Process Clause.
Officials have the right to deduct expenses
incurred in creating and maintaining the prisoners'
accounts. Reasonable user fees for the reimbursement
of the cost of government services are permissible,
and absent any allegation that the charges were
unreasonable or unrelated to administration of the
accounts, the Takings Clause challenge fails.
At 1090: "Without underlying authority and
competent procedural protections, NDOP could not
have constitutionally confiscated the net accrued
interest." Since officials had neither statutory
authority nor a procedure, the plaintiffs due process
claim is valid.
The "well-settled doctrine of unconstitutional
conditions" says that government may not require a
person to give up a constitutional right in exchange
for a discretionary benefit that has little or no
relationship to the property. That doctrine applies in
prison, but the law is unclear whether the standard
"essential nexus/rough proportionality" test or the
Turner standard governs. Also, the standard test is
directed towards Takings Clause claims, not
procedural due process claims, and they may be
different. So the defendants are entitled to qualified
immunity on the unconstitutional conditions claims.
The plaintiff prevails on his claim of
retaliation for refusing to waive protected rights.
19

NATWNALPRmONPRoDCTJOURNAL

Summer/Fall 2004

Procedural Due Process--Disciptinary
Proceedings/Disabled/Equal
Protection/Classification--Race
Serrano v. Francis, 345 F.3d 1071 (9th Cir.
2003). The wheelchair-bound plaintiff alleged that
prison officials refused to allow him to present live
witness testimony at a disciplinary hearing.
There is no single standard for determining
whether a prison hardship is atypical and significant;
the court looks to
whether the challenged condition
"mirrored those conditions imposed
upon inmates in administrative
segregation and protective custody,"
and thus comported with the prison's
discretionary authority; (2) the duration
_. of the condition, and the degree of
restraint imposed; and (3) whether the
state's action will inevitably affect the
duration of the prisoner's sentence....
Typically, administrative
segregation in and of itself does not
implicate a protected liberty interest.

... [T]he placement of a wheelchairreliant inmate into an unequipped
administrative segregation facility
worked an atypical and significant
hardship on Serrano in relation to the
ordinary incidents of prison life. The
removal of his wheelchair dropped him
from the relative baseline status that he
maintained outside administrative
segregation and forced him to endure a
situation far worse than a non-disabled
prisoner sent to the SHU would have
to face.
A blanket denial of live witnesses at a
disciplinary hearing is impermissible, even where
authorities allowed interviewing of witnesses outside
the disciplinary procedure. The hearing officer cannot
rely on a regulation that says witnesses will be called
unless the appearance would endanger the witness,
the official determines the witness has no relevant
additional information, or the witness is unavailable,
provides no defense, since it also calls for the hearing
officer to document the reasons for refusing.
The hearing officer is entitled to qualified
immunity because the court has never dealt with the
question of the effect of disabilities on the existence
of liberty interests in segregation.
The plaintiff alleged sufficient facts to go to
trial on a claim that the decision to disallow live
testimony was racially motivated. The hearing officer
said that he didn't "know how black people think" and
made references to the ongoing O.J. Simpson trial.

However, the plaintiff "wallowed in a nonhandicapped-accessible SHU for nearly two months-25 days of which immediately followed" his being
sentenced to a year in SHU. He was denied use of his
wheelchair and alleges he could not take a proper
shower, had to drag himself onto the toilet with his
arms, could not go to the yard, and had to drag
himself around a vermin-infested floor. Here, "the
conditions imposed on Serrano in the SHU, by virtue
of his disability, constituted an atypical and
significant hardship on him." (1079, footnote omitted)
At 1079:

Personal Property/Procedural Due Process-Property
Schneider v. California Dep't ofCorrections,
345 F.3d 716 (9th Cir. 2003). California prisoners are
allowed to establish savings accounts that pay interest
and Inmate Trust Accounts (ITAs) that do not pay
interest; a prisoner must have an ITA to make canteen
purchases and must keep at least $25 in it to maintain
a savings account. Interest earned on the ITA money
is not paid to the prisoners but to an Inmate Welfare
Fund.
Allocation of interest on the ITAs to the

Defendants could prevail if their action advanced
legitimate goals and was tailored narrowly to them,
but here they don't have a legitimate goal. Their
interest in recouping costs and running the prisons
efficiently "does not extend to avoiding the limits
placed upon them by the state legislature and failing
to provide constitutionally adequate procedural
protections." (1093)

20

NATIONAL PRISON PROJECT JOURNAL

Inmate Welfare Fund is a taking of property "because
it appropriates the interest earned by the ITAs and
allocates them [sic] for a public use." (720) The
district court found that the expense of administering
an interest-bearing ITA system would be larger than
the interest generated, leaving nothing for
distribution. At 720: "Notwithstanding the district
court's reliance on these average cost estimates, there
remains the fundamental question for takings
purposes of whether an individual inmate was
deprived of any net interest." At 721 :
For takings purposes, ... the relevant
inquiry is not the overall effect on fund
administration but whether any of the
individual inmates themselves have
been deprived of their accrued net
interest. The government is not
absolved of its constitutional duty to
pay "just compensation" to an
individual whose property has been
taken for public use merely because
the same government has benevolently
conferred value on another affected
property owner. Indeed, even if the
total costs of operating a pooled fund
outweigh the total interest generated,
individual account holders in that fund
are not precluded, on a proper
showing, from enjoyment oftheir
constitutionally protected property
rights.
The relevant law has been in a "state of flux," so the
defendants are entitled to qualified immunity.
The court notes that the state has stopped
putting the ITA money in an interest-bearing account.
At 722 n.3: "Curiously, California appears concerned
that it would actually have to compensate individual
prisoners for their net accrued interest and sought to
forestall such calamity by eliminating deposits of ITA
funds to the State treasury system altogether." The
court reserves comment on the propriety of that
action.

Medical Care--Standards of Liability--Deliberate
Indifference/Medical Care--Denial of Ordered

Summer/Fall 2004

Care/Summary JudgmentlProtection from Inmate
Assault
Scicluna v. Wells, 345 F.3d 441 (6th Cir.
2003). The plaintiffs skull was fractured by another
prisoner; he said he had previously told his counselor
and unit manager that the assailant (his co-defendant)
had a hostile relationship with him, and called to his
attention the prison regulation concerning "known
conflict situations," but no action was taken to
transfer either of them. After the attack, a civilian
emergency physician removed part of his skull and
recommended continued treatment including
cranioplasty. Rather than authorize further surgery,
the prison's Medical Director recalled him from the
hospital, prescribed Dilantin, and sent him for a
neurosurgical consultation to a prison that could not
provide a neurosurgical consultation. The Medical
Director said he didn't know and wasn't deliberately
indifferent. He was then transferred to a second
facility with an order for the consultation, but wasn't
seen for 20 days, at which time a doctor determined
that his level of Dilantin was toxic and he still needed
the consultation. He was then transferred two and a
half months later to another facility in the same
complex as the one he had initially been transferred
from, and was put back under the care of the same
Medical Director.
The plaintiffs deposition testimony that he
told the unit manager about the risk is sufficient to
defeat summary judgment; as the district court
recognized, documentary testimony is not necessary.
The unit manager is not entitled to qualified
immunity on the ground that he could not have known
that "failure to follow up on general information
pertaining to an inmate-housing conflict situation
would expose the official to liability," since the
plaintiff testified he had "far more than general
information" before him, i.e., information about a
specific threat, and the prison regulation requiring the
segregation of former co-defendants because of the
risk of assault. The plaintiff, therefore, "was a
member of an identifiable group of prisoners for
whom risk of assault was a serious problem...."
(445, citation omitted).
This is important. Courts often brush aside
21

Summer/Fall 2004

NATIONAL PRISON PROJECT JOURNAL

evidence of violation of prisons' internal regulations
as not constituting evidence of deliberate indifference.
This court has provided a rationale for giving such a
regulation considerable weight in the deliberate
indifference analysis.
The doctor who sent the plaintiff to a prison
where he couldn't get the care he was sent for was not
entitled to summary judgment; he supplied no
affidavit in support of his statement that he didn't
know theplaintiffwouldn't get care, but the plaintiff
testified under oath that the doctor did know (not
clear how the plaintiff knew that). He was not
entitled to qualified immunity, even though there
wasn't a case in point. At 446: "Transferring a
prisoner in need of urgent medical attention to a
facility that the official knows is unable to provide the
required treatment is conduct that would alert a
reasonable person to the likelihood of personal
liability."
The doctor who didn't see the plaintiff for 20
days despite his serious and urgent condition said that
he was entitled to summary judgment because there
was no evidence he even knew the plaintiff was there.
At 446: "In the absence of an explanation for the
delay, however, a reasonable inference arises that
Harvey purposefully ignored the emergency-treatment
report specifYing that Scicluna required an 'immediate
neuro consult. '" He wasn't entitled to qualified
immunity either. At 447: "Knowingly waiting three
weeks to examine a prisoner referred to one's care for
urgent attention is conduct that a reasonable prison
official in 1992 should have known would subject
him to personal liability. "

Use of Force
Martinez v. City a/Oxnard, 337 F.3d 1091
(9th Cir. 2003). The plaintiff alleged that a police
officer "brutally and incessantly questioned him" after
he had been shot in the face, back, and leg (eventually
causing blindness and partial paralysis), and interfered
with his medical treatment while he was screaming in
pain and going in and out of consciousness. The
Supreme Court reversed this court's holding that those
facts stated a violation of the Fifth Amendment's
privilege against self-incrimination regardless of
22

whether his statements were ever used in a trial, but
left open the possibility that they stated a violation of
the plaintiffs clearly established Fourteenth
Amendment due process rights. They do.

U.s. District Court Cases
Procedural Due Process--Administrative
Segregation/Classification
Miller v. McBride, 259 F.Supp.2d 738
(N.D.Ind.2001). There is no constitutional right to a
hearing when a prisoner is removed from protective
custody.
Procedural Due Process--Temporary
Release/Grievances and Complaints about
Prison/Pleading
Segreti v. Gillen, 259 F.Supp.2d 733 (N.D.Ill.
2003). The plaintiff was on work release. He alleged
that he had a dispute with an officer, filed a grievance
against the officer, who then filed a false disciplinary
report against him; the officer was allowed to
participate in the hearing and dictated its result. He
was transferred and could no longer participate in
work release.
The plaintiff alleged a sequence of events
which could support a claim of retaliation, which is
all that is required at the pleading stage.
The plaintiff had a liberty interest in staying in
work release, which is analogous to parole; removal
from it is an '" atypical and significant hardship [upon
an inmate] in relation to the ordinary incidents of
prison life. [Citations omitted] Therefore, the inmate
has a statutory liberty interest in participation in the
work-release program, once it has been awarded
pursuant to [statute], which cannot be terminated
without due process." (Ifthe analogy is parole, then
the liberty interest would be constitutionall based and
not statutory. Also, application of the Sandin
"atypical and significant/ordinary incidents of prison
life" standard to a work release case doesn't make
much sense, since the prisoner is being subjected to
what most prisoners get.)

NATIONAL PRISON PROJECT JOURNAL

PLRA--Exhaustion of Administrative Remedies/
Burgess v. Morse, 259 F.Supp.2d 240
(W.D.N.Y. 2003) (Larimer, J.). The court dismisses
for non-exhaustion. It notes that the plaintiff "will
likely face expired administrative deadlines.
Therefore, the Court directs that the IGRC Supervisor
consider referral from this Court a mitigating
circumstance for any such untimely filing." (247,
emphasis supplied) But the court implicitly rejects
any emergency exception to the exhaustion
requirement (at 247):
Though the rule requiring
dismissal at first glance may appear to
be harsh, it must be applied here. The
rationale underlying the PLRA's
exhaustion requirement is based on the
goals of resolving inmate grievances
quickly, expeditiously remedying
errors by prison officials, and
streamlining and clarifying issues that
may need to be decided in a
subsequent federal court action. Neal,
267 F.3d at 122. To allow plaintiff to
file his complaint and a motion for a
temporary restraining order, and then
exhaust his administrative remedies
with prison officials would undermine
the exhaustion requirement altogether.
Id.
The court directs plaintiff to file the necessary
grievance with the IGRC on the appropriate form
within 30 days of receiving this decision.
PLRA--Exhaustion of Administrative Remedies
Morgan v. Maricopa County, 259 F.Supp.2d
285 (D.Ariz. 2003). The court, contrary to the great
weight of authority, dismisses for non-exhaustion
despite the fact that the complaint was not filed until
after the plaintiffs release, criticizing and denying the
relevance of the Ninth Circuit's decision in Page v.
Torrey, where the plaintiff was civilly committed
after a criminal sentence and the court held that only
current criminal incarceration makes one a prisoner
for PLRA purposes. In other words, this court holds
that a statute that says prisoners must exhaust means

Summer/Fall 2004

that people who are not prisoners must exhaust.

PublicationslReligion/lnjunctive Relief-Preliminary
Neal v. Lewis, 259 F.Supp.2d 1178 (D.Kan.
2003). The Kansas prison system allows prisoners 15
books in their cells, consisting of one primary
religious text, one dictionary, one thesaurus, and 12
others of the prisoner's choice, not to exceed a
cumulative value of $100. The plaintiff alleged that
the confiscation and destruction of excess books
violated his religious rights.
The court grants a preliminary injunction
against destroying the books removed from the
plaintiffs cell and requiring the prison to make them
available to the plaintiff by exchange that will keep
him within prison regulations. Constitutional
violation constitutes irreparable injury. The balance
of harms favors the plaintiff, since though the books
could be paid for if destroyed, interference with his
religious rights is a greater injury. The threatened
injury to the prison from holding the books is minor.
At 1181: "The promotion of the constitutional right
of freedom to exercise one's religious beliefs is one
deeply rooted in this nation's history. The protection
of this right is always in the public's best interest and
this case, being inside a prison, is no exception."
There is a fair ground for litigation of the issue.
PLRA--In Forma Pauperis Provisions-Applicability
United States v. Boyd, 259 F.Supp.2d 699
(W.D.Tenn.2003). The PLRA (here, the filing fees
provisions) "does not apply to appeals of orders
denying § 2255 motions." (710)
Sexual Abuse/Municipalities/Pendent and
Supplemental Claims; State Law in Federal
Courts
Faas v. Washington County, 260 F.Supp.2d
198 (D.Me. 2003). The plaintiff was sexually abused
by a jail officer on two occasions. The plaintiff
denied this conduct when jail administrators
investigated based on another prisoner's report. She
filed a grievance upon leaving the jail and the officer
23

NATIONAL PRISON PROJECT JOURNAL

was suspended and a criminal investigation begun.
Evidence of prior sexual misconduct by
officers in the jail precludes summary judgment for
the municipality. At 206: "Sexual misconduct by the
corrections officers towards inmates, consensual or
otherwise, if it were a common practice, may have
contributed to the environment in which, ultimately,
Plaintiff was sexually assaulted." Evidence of other
inappropriate relationships between staff members
and inmates may also support the claim even though
the staff members were investigated and disciplined.
The plaintiffs failure to train claim is rejected,
since the officer was trained not to sexually assault
inmates, jail policy was to the same effect, and
common sense would have informed him of that
anyway.

Access to Courts--Confiscation and Destruction of
Legal Materials/Personal Involvement and
Supervisory Liability/Habeas Corpus
Lueck v. Wathen, 262 F.Supp.2d 690
(N.D.Tex.2003). The plaintiff alleged that
documents he needed to prepare his state court habeas
corpus petition were confiscated by prison officials
and not returned.
The loss of the affidavit of a key witness who
was not interviewed by his criminal trial attorney
constituted actual injury under Lewis v. Casey. At
695: "Without this affidavit, plaintiff cannot establish
the materiality ofthe missing testimony which is
necessary to prove his ineffective assistance of
counsel claim."
The court cannot say the plaintiffs claims are
frivolous; although his ineffective counsel argument
has been dismissed on direct appeal, it was not based
on the failure to interview the witness, which would
have been raised for the first time on collateral
reVIew.
The plaintiffs claim is not barred by the Heck
v. Humphrey rule, even though it implicated his
criminal conviction, since the plaintiff "seeks redress
for being deprived of the opportunity to even
challenge his conviction." (697) Such a claim does
not necessarily imply the invalidity of his conviction
or sentence. The court notes that the plaintiff seeks
24

Summer/Fall 2004

an Injunction. At 698:
If plaintiff prevails on his access claim,
the court could order defendants to
search for the missing legal materials
and, if they have been destroyed or
cannot be found, replace the state court
records and appellate briefs.
Defendants could also be ordered to
search for [the witness] so plaintiff can
obtain another affidavit. Clearly, Heck
does not bar this type of relief.
The plaintiff may also be able to seek damages, since
five Justices in Spencer v. Kemna said that Heck is
not available to persons without recourse to the
habeas statute. At 698-99:
Applying Heck to the instant case puts
the plaintiff in an untenable "Catch-22"
situation. He would be precluded from
suing defendants for violating his right
of access to the courts until he
successfully overturns his conviction,
but cannot effectively challenge that
conviction because defendants have
confiscated important legal materials
. .. necessary to obtain post-conviction
relief.
The defendants are not entitled to qualified
immunity on the present record. At 700: "This
evidence suggests that defendants violated established
prison policy by scattering, destroying, and otherwise
disrupting plaintiffs legal materials during a
shakedown." They failed to safeguard the materials,
provide plaintiff with written notification identifying
it or the reason for its removal; the plaintiff was
initially told that the materials had been returned,
which was false; later defendants admitted they
couldn't find the material; the plaintiff was threatened
to keep him from pursuing the matter. Defendants
have offered nothing to justify the objective
reasonableness of their conduct.

Federal Officials and Prisons/Transfers/lnjunctive
Relief--PreliminarylExhaustion of Remedies
Tipton v. Federal Bureau ofPrisons, 262
F.Supp.2d 633 (D.Md. 2003). The court grants a

NATIONAL PRISON PROJECT JOURNAL

preliminary injunction against the transfer of three
persons serving sentences in community confinement
centers who have been notified that they will be
transferred to a federal prison for the remainder of
their sentences based on the Department of Justice's
new theory that the practice of decades, to follow
judges' recommendations to place certain offenders in
community confmement centers, is illegal.
The hardships to the prisoners and their
families is clear, and there is no comparable harm to
the government, since the Bureau of Prisons was quite
satisfied with the old policy until told it could not
continue. At 636: "Further, the public interest in
maintaining the defendants as productive, wageearning members of the community with stable
families far outweighs any statement the Department
of Justice hopes to make concerning the need to treat
certain offenders more harshly, as whatever legitimate
policy concerns may have motivated this change will
be equally served by a prospective application of the
new rule." The plaintiffs are likely to prevail because
(a) the government's interpretation is wrong, (b)
judicial review is not barred by statute, and the new
rule appears invalid for failure to follow the notice
and comment procedures of the Administrative
Procedures Act, (c) there is a strong Ex Post Facto
Clause argument, and (d) the requirement of
administrative exhaustion is excused on grounds of
futility (PLRA not mentioned).
Color of Law and Liability of Private
Entities/Dental CarelMedical Care--Standards of
Liability--Serious Medical NeedslMedical Care-Standards of Liability--Deliberate Indifference
Goodnow v. Palm, 264 F.3d 125 (D.Vt. 2003).
The plaintiff was transferred from Vermont to
Virginia, broke a tooth in Virginia, and was returned
to Vermont, where EMSA provides dental and
medical services. A dentist examined him and
developed a treatment plan but said he would have to
wait possibly more than a year. After six weeks he
complained of dental pain and was referred to the
dentist for evaluation and treatment, which he did not
receive. Three and a half months later, he filed a
grievance, which was referred to the dentist and never

Summer/Fall 2004

acted on. Two months later, he complained again,
was diagnosed again, got a new treatment plan, and
was then transferred to Virginia again. In Virginia, he
was found only to be in need of cleaning; the dentist
declined to work on the broken tooth.
EMSA was not entitled to summary judgment
for lack of "personal" responsibility for the denial of
care, since the plaintiff "alleged that his
treatment/non-treatment involved several different
EMSA employees and has otherwise demonstrated
the possibility of a broader awareness of the
problem." (129) At 130: "EMSA has argued that
administrative back-logs and patient prioritization,
not deliberate indifference, led to the delay in
Goodnow's treatment. . .. Such statements could lead
a reasonable jury to find 'personal responsibility' on
the part of EMSA as an employer." The plaintiffs
complaints to several EMSA personnel, his verbal
complaint to Superintendent Lanman, and his formal
grievance could support a jury finding of "an
organizational awareness that Goodnow was
experiencing mouth pain." In addition, EMSA's
contract with the state requires it to provide a program
of on-site dental services including preventive and
restorative care. At 130: "When Goodnow requested
dental care, EMSA was obligated to provide a dentist
who would complete such care in a way that did not
violate Goodnow's constitutional rights.... If its
policy and protocols have insufficient checks on its
doctors by which a patient is left without care for an
unreasonable amount of time, EMSA could be held
institutionally responsible for such delays."
The plaintiffs medical need was sufficiently
serious, notwithstanding observations of no edema,
foul odor, or oral drainage, and a nurse's note that he
was "calm, laughing and comfortable." He was in
enough pain to complain on more than one occasion
and for his mother to have contacted the
Superintendent between 10 and 15 times, and the
nurse thought it serious enough to refer him to the
dentist for treatment. He states that he had trouble
eating, brushing his teeth, and breathing in the winter
air, and presents an affidavit from a doctor
documenting his damaged tooth and noting that pain
is consistent with his condition.
25

NATIONAL PRISON PROJECT JOURNAL

The seven-month delay in treating the
plaintiffs painful condition supported a deliberate
indifference claim. At 134: "EMSA points to its
policy and its back-log as a reason for having failed to
treat Goodnow. But it has not presented significant
evidence indicating where Goodnow fits into its backlog or priority list of patients or even evidence
establishing that a back-log actually existed during the
time in question."
Under Wyatt v. Cole, EMSA said it was
entitled to an affirmative defense of good faith
reliance on its contract, and it treated his routine
problem consistently with the contract. At 134: "But
that argument misses the point. The real concern
raised in this case is the fact that in seven months,
EMSA never actually treated this dental problem,
whether it was routine or not. Nothing in EMSA's
policies or in its contract with Vermont would suggest
the propriety of such a delay."

PLRA--Exhaustion of Administrative
Remedies/Medical Care--Standards of Liability-Deliberate Indifference/Personal Involvement and
Supervisory Liability
Sulton v. Wright, 265 F.Supp.2d 292
(S.D.N.Y. 2003) (Sweet, J.). The plaintiff
complained of medical neglect during a period in
which he was transferred among facilities; he filed
two grievances and exhausted them. Defendants
argued that he did not sufficiently exhaust all the
occurrences at all the prisons. The court addresses a
series of major PLRA exhaustion issues favorably to
prisoners. At 297-98:
... So long as the prisoner's
grievance "present[s] the relevant
factual circumstances giving rise to a
potential claim ... sufficient under the
circumstances to put the prison on
notice of potential claims and to fulfill
the basic purposes of the exhaustion
requirement. . .. [T]here does not
appear to be any reason to require a
prisoner to present fully developed
legal and factual claims at the
administrative level." . .. This has
26

Summer/Fall 2004

particular application to the complex
issues involved in medical care cases.
Rigid "issue exhaustion"
appears inappropriate when the
fundamental issue is one of medical
care from the same injury....
A prisoner need not name every
defendant in the grievance to preserve
his right to sue. It is enough for the
prisoner to "provide as much relevant
information as he reasonably can." ...
As this Circuit has noted, an
unrepresented prisoner may have
difficulty identifying all defendants....
The Defendants' argument for
total issue and party exhaustion is a
view borrowed from federal habeas
corpus law that has not been adopted
by this Circuit in civil rights cases or in
the administration of the PLRA. The
distinctions between Section 1983
cases and habeas corpus filings are of
long and venerable duration, and the
claims are analytically very different.
Heck v. Humphrey, 512 U.S. 477
(1994); Preiser v. Rodriguez, 411 U.S.
475 (1973).
[A] grievance suffices if it
alerts the prison to the nature of the
wrong for which redress is sought. As
in a notice-pleading system, the
grievant need not layout the facts,
articulate legal theories, or demand
particular relief. All the grievant needs
to do is object intelligibly to some
asserted shortcoming.
A delay of nearly four years in treating tom
knee ligaments, during which time the plaintiff had
repeated falls, tears of tendons, pain, muscle wasting,
and the possibility of becoming crippled, states an
Eighth Amendment claim; the court characterizes it as
an example ofprison officials' "intentionally denying
or delaying access to medical care" as described in
Estelle. (300) Id.:
Where "deliberate indifference

NATIONAL PRISON PROJECT JOURNAL

cause[s] an easier and less
efficacious treatment to be
consciously chosen by the
doctors," a claim is stated.
Williams v. Vincent, ....
Indeed, even if an inmate
receives "extensive" medical
care, a claim is stated if, as
here, the gravamen of his
problem is not addressed.
At 300: "Liability for deliberate indifference
by supervisors does not require that they have an
individual doctor-patient relationship with the
plaintiff." An Eighth Amendment claim is supported
by allegations that the chief medical officer of the
prison system "adopted a utilization review
mechanism for specialist consultation and surgery
approval that used a contractual vendor whose goal, in
practice, was to limit care as much as possible"; that
he failed to correct the failures of the medical tracking
system which resulted in surgery having to be reapproved after transfers; and that he failed to correct
the failure of medical holds and coordination of
patient work-up between prisons.

PLRA--Exhaustion of Administrative
RemedieslMootness/lnjunctive Relief--Changed
Circumstances/Class Actions--Conduct of
Litigation/Class Actions--Effect of Judgments and
Pending Litigation/Protective Custody/Qualified
Immunity
Lewis v. Washington, 265 F.Supp.2d 939
(N.D.IlI. 2003). Plaintiffs challenged protective
custody conditions, and the court certified a class. As
in Title VII cases, the exhaustion requirement is
satisfied when one member of the class has
exhausted.
The transfer of the named plaintiffs to another
unit did not moot the case. At 943:
While the general rule is that an
Article III case or controversy must
exist at every stage of litigation, there
is a special rule for class actions that
allows named plaintiffs to continue
representing a class even after their

Summer/Fall 2004

own claims are moot. . .. This is
based on the fiction that once a class is
certified, the class obtains a legally
cognizable interest independent of that
of the named plaintiffs, and the class
claims thus preserve the adversarial
interest needed for the invocation of
jurisdiction.
Changes in the length of stay and the number
of inmates held in the unit do not obviate the need for
injunctive relief, since voluntary cessation of
allegedly illegal conduct does not moot a case unless
the defendant can show there is no reasonable
expectation that the wrong will be repeated. (943)
Absent a statute or regulation implementing the
change, defendants fail to show that there is no
reasonable expectation of repetition.

PLRA--Exhaustion of Administrative
Remedies/PublicationslDeference
Cline v. Fox, 266 F.Supp.2d 489 (N.D.W.Va.
2003). The plaintiff challenged the censorship of "the
'Paper Wings' line of books, an adult-fiction serial"
after exhausting. During discovery, he said that he
had found similar material in the prison library.
Prison officials then purged the library.
The prison policy prohibiting materials "which
are obscene because they depict explicit sexual
activity" (enumerating acts), is not unconstitutional as
applied under the Turner standard. The justifications-protecting security by minimizing violence arising
from barter of obscene materials, minimizing inmates'
"titillation and arousal," and protecting rehabilitation-are legitimate and content-neutral. (Avoiding
titillation and arousal promotes security insofar as it
reduces the incidence of sexual attacks, the court
finds, based on no discernible evidence.) The
connection between the censorship and its objectives
is supported by common sense; prison officials need
not show that the terrible things they are trying to
prevent have actually occurred. There are alternative
means of exercising First Amendment rights, i.e., read
non-obscene books. The impact ofletting the
plaintiff have the books would be to compromise the
interests the policy serves; the fact that he personally
27

NATIONAL PRISON PROJECT JOURNAL

might be unaffected is not dispositive, since others
might read them. The plaintiff does not show an
alternative at de_minimis cost; his proposal to make
individualized determinations for each prisoner and to
ban only pictorial representations of sexual activity
respectively are unworkable and would require the
court to substitute its judgment for prison officials'.

Disabled/Use of Force--Restraint/Medical Care-Denial of Ordered Care/Personal Involvement and
Supervisory Liability/Cruel and Unusual
Punishment--Proof of Harm
Bane v. Virginia Dep't ofCorrections, 267
F.Supp.2d 514 (W.D.Va. 2003). The plaintiff alleged
that he was injured when prison staff ignored an order
to handcuff him in front because of a medical
problem with his shoulder, which he said resulted in
dislocation of his shoulder.
The plaintiff alleged a violation of the
Rehabilitation Act. The defendants do not contest
that they regard him as an individual with a disability;
they had issued him a pass from rear-cuffing based on
it. A permanent shoulder injury limiting the arm's
range of motion would appear to be a disability in any
case (520 n.2). The general rehabilitative and
correctional activities of prisons are "programs" under
the statute, and prison officials are obliged to
accommodate disabilities in day-to-day prison
operations. The allegation of failure to carry out the
reasonable accommodation he was granted states a
claim. The Department of Corrections may be held
liable on a respondeat superior theory for the actions
of its staff in that respect.
The Rehabilitation Act supports a private right
of action. It is not unconstitutional as applied. The
state accepted federal funds and has waived sovereign
immunity; the requirement to do so in order to receive
federal funds is not a coercive condition in violation
of the Tenth Amendment.
The plaintiffs allegations raise a factual
dispute precluding summary judgment; "the allegation
that [defendants] ignored the requirements of a
medical order they knew to be valid and deliberately
caused harm to the Plaintiff state claims for deliberate
indifference ... and excessive force." A defendant
28

Summer/Fall 2004

who allegedly ripped the medical waiver off the
plaintiffs cell door could be held liable even ifhe did
not physically participate in the handcuffing; he could
also be held liable on a theory of bystander liability
for excessive force. An allegation that a higher
supervisor was notified of the existence of a medical
waiver, but chose to disregard it and ordered his
subordinates to violate it, states a deliberate
indifference claim against him.
The plaintiffs allegation that his shoulder was
dislocated and he suffered intense pain for a week is
not negated by the absence of medical reports or
permanent scars. At 532: "It is up to a jury to
determine whether the pain allegedly suffered by the
Plaintiff amounts to anything more than de minimis
injury."

Correspondence-Non-Legal/Communication with
Media/Standing/Deference
Canadian Coalition against the Death
Penalty, 269 F.Supp.2d 1199 (D.Ariz. 2003). A state
statute prohibited prisoners from sending mail to or
receiving mail from a communication service
provider or from having access to the Internet through
a provider. Prisoners who were suspected of violating
the policy were ordered to have all information about
themselves removed from web sites.
The statute is unconstitutional under the
Turner standard. It lacks a valid, rational connection
to the defendants' asserted interests, the need to
prevent attempts to defraud the public and to preclude
inappropriate contact with minors, victims, or other
prisoners. Existing statutes and regulations already
prohibit such conduct. The prison also has methods
in place to enforce those existing regulations. Inmates
have no direct Internet access; prison staff may open
all incoming mail and inspect for contraband, and
incoming non-privileged mail may be read to see if it
might facilitate criminal activity; outgoing mail may
also be read and examined for contraband. Telephone
calls may be monitored and recorded.
Other interests asserted by defendants fail
because "prison authorities cannot avoid court
scrutiny under Turner by reflexive, rote assertions."
(1203, citation omitted) Thus the court rejects the

NATIONAL PRISON PROJECT JOURNAL

claim that society may perceive confinement as less
punitive and that crime victims may perceive that
their perpetrators are not being adequately punished.
It rejects the claim that rehabilitative opportunities
will be limited, since prisoners are not going to get
Internet access under any circumstances. There is no
evidence supporting the speculative outcome that
deterrence will be impaired because prisoners and the
general public will perceive incarceration as less
arduous. At 1203: "Although prison authorities are
permitted to establish regulations in anticipation of
potential problems, 'they must as a minimum supply
some evidence that such potential problems are real,
not imagined.'"
Since the statute fails the rational relationship
factor of Turner, the other Turner factors need not be
considered.
Access to Courts--Legal Assistance Programs
White v. Kautzky, 269 F.Supp.2d 1054
(N.D.Iowa 2003). The state stopped keeping up its
law libraries and switched to a system of "contract
attorneys." The plaintiff alleged that the contract
attorneys failed to assist him in determining whether
he had a viable claim for post-conviction relief under
state law.
The plaintiff raised an issue of material fact as
to whether the contract attorney system provided a
reasonable opportunity for him to present his claimed
violation to the courts. The contract required
assistance to persons who wish to file pleadings for
post-conviction relief and advice about the merit or
lack of merit of proposed litigation, but the plaintiff
said that he did not receive those services; the
attorney just handed him a form without advising
him, and he had no other source of information to
assess the merits of his claim. At 1062: "...
[H]anding an inmate an application for postconviction relief, standing alone, does not appear to
be nearly enough. "
To show actual injury as required by Lewis v.
Casey, the plaintiff must show that he was hindered in
pursuing a nonfrivolous claim. His affidavit, which
sets out the legal and factual basis for the alleged
violation, raises an issue of material fact that his claim

Summer/Fall 2004

was not frivolous, and the record indicates that he had
no other source of information because the law library
was out of date and he was not allowed to consult
with jailhouse lawyers. Because filing a meritless
post-conviction relief petition would have allowed the
refiling of charges carrying substantial additional
prison sentences, the plaintiff has raised an issue of
material fact that he was "so stymied" that he couldn't
even file a timely complaint.
Religion--Services Within InstitutionlReligion-PracticeslReligion--Practices--Beards, Hair,
DresslMootness/Damages--Intangible
InjuriesIPLRA--Mental or Emotional
InjurylPendent and Supplemental Claims
Wilson v. Moore, 270 F.Supp.2d 1328
(N.D.Fla.2003). The plaintiffs release from prison
mooted his claims for declaratory and injunctive
relief.
The plaintiff sought compensatory and
punitive damages for violations of his religious rights.
At 1328: "However, there are no allegations of
physical injury or harm to Plaintiff and, without
physical injury, Plaintiffs request for monetary
damages must necessarily be limited to nominal
damages by virtue of 42 U.S.C. § 1997e(e)." Thus the
court simply assumes without explanation that the
injury resulting from violation of intangible rights is
no more than mental or emotional in nature, and also
fails to explain why the plaintiff can't seek punitive
damages.
The plaintiff alleged that restrictions on Native
American worship were more onerous than
restrictions on other religions (e.g., that they couldn't
wear headbands and bone-choker necklaces, while
other groups were allowed to wear religious headgear
and/or necklaces). The defendants did not address
this claim in their summary judgment motion, so it
should go to trial.
The refusal to designate "Holy Ground" did
not violate the First Amendment because the plaintiff
did not show "that he could not engage in other
religious practices and express his faith without Holy
Ground, or that Holy Ground is so essential to the
practice of his faith that its absence would be a
29

NATIONAL PRISON PROJECT JOURNAL

substantial burden on the exercise of his religion. In
any case the burden was reasonable, "since prisons
cannot be expected to set aside and police patches of
land for every religious sect."
The refusal to allow "smudging" is upheld in
the absence of "evidence showing the importance of
smudging to Plaintiffs Native American faith or that
smudging is so essential that its absence would be a
substantial infringement." In any case the risk of fire
and of concealment of the smell of burning marijuana
or crack justifies the burden.
The prayer pipe is undisputedly a significant
practice of the plaintiffs faith, but it wasn't
defendants' fault the plaintiff could not participate in
that ceremony, since prison officials had tried to get
someone to corne in from outside and lead the
ceremony without success. At 1352: "Defendants do
not have the obligation to hire a minister of every
faith to conduct religious services for prisoners, nor
do they have the obligation to drum up volunteers. "
Prison officials could not be required to let him have a
prayer pipe in his cell, since it was sacred and couldn't
be touched by anyone else, giving him a perfect place
to hide contraband. The refusal to let him keep a
prayer pipe in the chapel for supervised private or
group prayer requires a trial, since it looks like an
exaggerated response--it can't take up much room,
they keep drums in the chapel, and it is very difficult
to find an outside volunteer to bring a pipe in.
Refusal to allow construction and use of a
sweat lodge is upheld. Exclusive use of an area for
one group of inmates could create discord and unrest
among others. At 1353: "Though not argued by
Defendants, the court can see how non-Native
Americans might view this as a sauna and would
demand their own." Also, the sacred nature of such a
structure would restrict access by prison officials, and
there are concerns about allowing fires on prison
grounds. The fact that other prisons in other states
allow sweat lodges does not require a different
conclusion. At 1353: "Admittedly ... Native
American inmates do not appear to have many
alternative means of exercising their faith beyond
reading books, but that finding alone is insufficient to
overcome Defendants' security interest." Building a
30

Summer/Fall 2004

sweat lodge would also require building storage
facilities, require work by officers, etc.
Evidence that Native Americans are denied
headbands except during religious services while
Muslims and Jews are allowed to wear their headgear
at all times supports an equal protection claim. The
prohibition looks like an exaggerated response, since
prison officials can regulate size, shape, etc., so they
don't look like gang symbols.
Defendants are entitled to summary judgment
on their denial of a craft shop. Although their
evidence of security risk related to tools was
countered by plaintiffs' evidence that similar tools
were used with minimal supervision in work
assignments, plaintiffs failed to show that craft work
had religious importance.
Defendants are entitled to summary judgment
on their policy that prisoners cannot personally
possess drums and rattles, but can only use them at
meetings and ceremonies. They could become
unreasonably disruptive in housing areas.
The defendants have qualified immunity, since
there is virtually no case law on these subjects.
Homosexuals and Transsexuals/Medical Care-Standards of Liability--Serious Medical
Needs/Medical Care--Standards of Liability-Deliberate Indifference/Grievances and
Complaints about Prison/Qualified Immunity
Brooks v. Berg, 270 F.Supp.2d 302 (N.D.N.Y.
2003). The plaintiff, a pre-operative transsexual, tried
to get treatment for gender identity disorder in prison
and was ignored for two years. His grievance
requested "all of the minimal, though appropriate
treatments," and the grievance response said that
cosmetic surgery was not performed unless medically
required and, on appeal, "body altering requests" were
not granted. Prison policy was to continue treating
prisoners (including hormone therapy) whose gender
dysphoria was identified before incarceration.
The handling of the plaintiffs grievance did
not raise a constitutional issue. Prison grievance
procedures do not confer substantive rights on
prisoners. However, the superintendent under whose
authority his grievance was denied was not entitled to

NATIONAL PRISON PROJECT JOURNAL

summary judgment for involvement in the denial of
medical care.
Defendants don't dispute that plaintiffs gender
identity disorder is a serious medical need.
At 310: "Courts have found that under the
Eighth Amendment inmates with Gill must receive
some fonn of treatment. . .. In addition, courts have
held that the treatment plan for an inmate with Gill
must be fonnulated by a medical professional and not
by prison administrators." Defendants don't dispute
that the plaintiff was never treated despite his requests
and have not provided any evidence that the decision
to refuse treatment was "based on sound medical
judgment." (310) They are not entitled to summary
judgment on the question of deliberate indifference.
The defendants are not entitled to qualified
immunity despite the absence of precisely identical
case law. Hope v. Pelzer held that a general
constitutional rule already identified may "apply with
obvious clarity" to the challenged conduct even if
there is no case in point.
Defendants argued that their conduct was
objectively reasonable because it was consistent with
prison system policy. At 311: "Although defendants
fail to cite a case in support of this argument, courts
have found that a defendant's claim of qualified
immunity is bolstered by evidence that he was
following orders when he acted unconstitutionally."
However, a policy could not make reasonable a belief
that is contrary to decided case law, and "defendants
who act pursuant to a facially invalid policy are not
entitled to qualified immunity." (311-12) At 311 n.6:
An official cannot rely on an agency policy if he
promulgated the policy.
Here, defendants "do not explain the puzzling
distinction that the policy makes between those
inmates who were diagnosed before incarceration and
those who were diagnosed after being incarcerated."
(312) Diabetics, schizophrenics, etc., are surely not
denied treatment if they were diagnosed in prison. At
312: "This blanket denial of medical treatment is
contrary to a decided body of case law. . .. Prison
officials cannot deny transsexual inmates all medical
treatment simply by referring to a prison policy which

Summer/Fall 2004

makes a seemingly arbitrary distinction between
inmates who were and were not diagnosed with Gill
prior to incarceration." The numerous cases holding
that prisoners are entitled to some treatment for Gill
negates their claim of objective reasonableness.
Publications/Procedural Due Process/Deference
Prison Legal News v. Lehman, 272 F.Supp.2d
1151 (W.D.Wash. 2003), aff'd, 397 F.3d 692 (9 th Cir.
2005). Defendants' policies prohibited prisoners from
receiving "bulk mail" except for subscription
publications, and from receiving catalogs regardless
of how they were mailed. The special rate for
nonprofit publications is a bulk mail rate.
The policies are unconstitutional under the
Turner standard. They do not have a valid, rational
connection to reducing the volume of mail that may
contain contraband. At 1156: "As a matter of
common sense and the defendants' experience, it is far
more likely that contraband would be contained in
personal first class mail from, for example, an
inmate's friends or family members, than in bulk mail,
which consists of identical pieces of mail sent to
numerous recipients."
The policies do not have a rational
relationship to reducing the volume of mail generally.
Although all the mail must be sorted, prohibiting
receipt of mail by postage rate is an arbitrary means of
achieving volume control. If lifting the ban leads to
an unmanageable influx, they can find other means to
control it.
The policies do not have a rational
relationship with avoiding fire hazards, since the
prison system already has limitations on volume of
paper and other property.
The policies do not have a rational
relationship with the efficiency of cell searches, given
the limitations on volume of property.
Receipt of publications is not only a First
Amendment right but a liberty interest protected by
due process. Since catalogs and bulk mail are
constitutionally protected, their addressees must be
afforded the same procedural protections afforded to
recipients of first class, second class, and subscription

31

NATIONAL PRISON PROJECT JOURNAL

standard rate mail. The plaintiffs sought "notice and
review," and there is no detail about what is actually
at stake.
A policy prohibiting delivery of materials not
delivered directly from the publisher/retailer is upheld
under the Turner standard. It has a rational
relationship with the goal of reducing contraband;
prisoners have alternative ways of obtaining reading
material (a big library system as well as their own
purchases); PLN can send subscriptions to prisoners.
The court also upholds application of the policy to bar
PLN's sending contributor's copies to prisoners,
although the policy is not applied to books the PLN

ACLU National Prison Project
915 15th Street, NW, 7th Floor
Washington, DC 20005
~21

Summer/Fall 2004

sells (apparently it's an approved vendor for that
purpose). Striking down the policy would require
mailroom staff to search mailed books and magazines
more thoroughly. There are no obvious alternatives.
Prohibition of "third-party legal materials"
(i.e., materials that are from a case other than the
recipient's) that violate a ban on information which
might create a risk of physical harm or violence is not
unconstitutional. The basic ban is clearly
constitutional. Its application to legal materials,
which the plaintiff says convey information that is
already available, requires a case-by-case inquiry.

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