JOURNAL
Challenging Conditions of Confinement at
Mississippi’s Supermax
By Margaret Winter, Associate Director, ACLU National Prison Project

Volume 20, Issue 1
Spring/Summer 2008
Inside this issue:
Challenging Conditions of
Confinement at Mississippi’s
Supermax______________1
Ely Prison’s Appalling
Health Care ____________6
A Fight for Life_________10
Know Your Rights:
Religious Freedom _____13
SAVE on Capitol Hill ___16
Case Law Review: U.S.
Supreme Court
Cases________________19
Contact Information ____24

Page 1

Mississippi State Penitentiary, known for nearly a century as
the notorious “Parchman Farm,”
grew out of the Reconstruction era
movement to restore white supremacy and ensure a source of cheap
free labor to replace slave labor. It
was set on 20,000 acres in the Mississippi Delta, and in the words of
the state’s Governor in 1903 it was
run “like an efficient slave plantation,” in order to provide young
black men with the “proper discipline, strong work habits, and respect for white authority.”
For most of the twentieth
century Parchman Farm continued
to function as a virtual slave plantation, complete with a small army of
“trusty shooters,” rifle-toting inmates who were overseers for prisoners working in the fields and
throughout the prison camp. But in
1971 four prisoners brought suit in
federal court to challenge conditions at the Farm. That case was
Gates v. Collier, and in 1972 the
presiding judge found that the mistreatment of prisoners at Parchman
was an “offense to present-day concepts of decency and human dignity". Gates, 349 F. Supp 881, 895
(N.D. Miss. 1972). The judge ordered an immediate end to all of the
unconstitutional conditions and
practices – including punishment by
putting prisoners naked in a dark
National Prison Project Journal

hole without a toilet, or by “beating,
shooting, administering milk of magnesia, or stripping inmates of their
clothes, turning fans on inmates while
they are naked and wet, depriving
inmates of mattresses, hygienic materials and/or adequate food, handcuffing or otherwise binding inmates to
fences, bars, or other fixtures, using a
cattle prod to keep inmates standing
or moving, or forcing inmates to
stand, sit or lie on crates, stumps or
otherwise maintain awkward positions for prolonged periods.” Id. at
900
Big changes resulted from the
decree in Gates v. Collier and from
subsequent enforcement activities
over the years. But eventually, active
independent monitoring stopped and
horrific conditions again prevailed in
many parts of the prison, including
Unit 32, Mississippi’s supermaximum security prison at Parchman.
In January 2002, prisoners on
Mississippi’s death row, which is located inside Unit 32, went on a hunger strike to protest conditions of
confinement. They described profound isolation, unrelieved idleness
and monotony, denial of exercise,
intolerable stench and pervasive filth,
grossly malfunctioning plumbing,
and constant exposure to human exContinued on page 2 (“Reforming”)

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Mississippi State Penitentiary at Parchman

crement. Each and every cell had a “ping-pong”
toilet, allowing waste from one cell to back up
into the toilet in the adjoining cell. The temperatures in the cells during the long Delta summers
were lethal, with heat indexes, we later proved,
of over 130 degrees Fahrenheit.
The cells were so infested with mosquitoes that inmates had to keep their windows
closed and their bodies completely covered even
in the hottest weather. Leaking rain water and
foul water from flooded toilets soaked their beds
and personal items; they weren’t provided clean
water, soap, and other basic cleaning supplies,
even when they were moved into a cell smeared
with excrement by the previous tenants.
Lighting in the cells was so dim that the
prisoners couldn’t see to read, write, groom
themselves or clean their cells. They were denied
basic medical, dental and mental health care.
They were exposed day and night to the screams,
ravings, and hallucinations of severely mentally
ill inmates in adjoining cells.
The ACLU decided to take the prisoners’
case, knowing that without a doubt this was going to be a hard case in many ways. There is little sympathy for death-sentenced prisoners in the
U.S., and in Mississippi it is widely considered
altogether fitting that the prisoners should suffer
as much as possible before their execution. Holland & Knight, which has one of the best pro

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bono programs of any law firm in the nation,
agreed to co-counsel the case with us.
We filed the Complaint and Motion for
Class Certification in July 2002, with an emergency motion for a court order directing Mississippi Department of Corrections to let us tour
death row with our medical, mental health, corrections and environmental experts. The judge
granted our motion and in early August plaintiffs’ lawyers and experts met in Clarksdale, the
Birthplace of the Blues, a few miles north of
Parchman.
The next day we arrived at the prison at
dawn and toured Death Row until past eleven
o’clock that night. That long day at the prison
proved to us that the prisoners hadn’t exaggerated about the hellish conditions in Unit 32. We
marveled that anyone could be confined there
without going insane.
One of the men we interviewed was our
lead plaintiff, Willie Russell. An imposing man,
6'7" tall Willie was being held in a “special punishment cell” covered by a Lexan door, which
cut off virtually all airflow to the cell. He was
removed from the cell for a few minutes so that
we could enter it one by one. Our medical expert said afterwards, “It was just like getting into
a car parked in the hot sun and sitting with the
windows rolled up. I couldn’t understand how
anyone could be locked up in that hot box for

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Reforming Mississippi’s Supermax
any length of time without losing control.”
A few days later, we filed a motion for
expedited discovery and trial, which the judge
granted. We went to trial in February 2003. The
Honorable Jerry A. Davis took care to appear
impassive, but there were moments during descriptions of sane men being driven raving mad
by the conditions in Unit 32, when he was visibly moved. In May 2003 he entered an opinion
and far-reaching injunction granting most of the
relief we had asked for. The Fifth Circuit issued
a unanimous decision upholding, with a few minor exceptions, all the relief ordered by Judge
Davis. Gates v. Cook, 376 F.3d 323 (5th Cir.
2004).
As soon as the Fifth Circuit issued its decision, we knew it was time to redeem the pledge
we had made to ourselves and to the prisoners: to
extend the relief we had won for the death row
prisoners to the other 1,000 men in Unit 32. The
lethal heat, the filth and stench, the malfunctioning plumbing, the lack of access to exercise,
fresh air, and basic medical and mental health
care were just as bad as in Death Row; but in
some ways conditions were even worse.
The men in Unit 32 in administrative segregation were all permanently locked down in
even deeper isolation than on death row. There
was a pervasive culture of violence and excessive force. Corrections officers gratuitously beat
prisoners already in full restraint gear. Takedown teams forcibly extracted shackled prisoners from their cells, sprayed them with chemical
agents that cause vomiting and shortness of
breath, and then assaulted them again.
The combination of all these conditions
was causing serious mental illness to emerge in
previously healthy prisoners, and causing psychosis and complete mental breakdown in less
healthy prisoners. Suicides and attempted suicides occurred with alarming frequency.
In some ways, this case would be easy
since all of the horrendous conditions we had
successfully challenged in the death row case
were identical throughout the rest of Unit 32. We

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knew where the bodies were buried, so to speak,
and we had a detailed road-map for trying those
issues. The problem was that the additional issues in Unit 32 would not be so easy to resolve:
chief among them, the fundamental problem that
the overwhelming majority of the 1,000 men in
Unit 32 did not belong there at all.
Although Unit 32 is supposedly used to
incarcerate the most dangerous and incorrigible
offenders in the State, in reality the vast majority
of the men housed in Unit 32 – for years, sometimes for decades – did not have the kind of
criminal or institutional history that would justify incarceration under “supermax” conditions.
Many prisoners were placed in Unit 32 simply
because they had special medical needs, were
severely mentally ill, or had requested protective
custody. And once classified to Unit 32, there
was no leaving. Hundreds of prisoners were
doomed to stay there forever. “Abandon all
hope, ye who enter here” might as well have
been carved over the entry gate.
So the Unit 32 case wasn’t just a
“simple” Eighth Amendment case as the Death
Row case had been; it was to be, in addition, and
above all, a challenge to classification – to the
arbitrary assignment and retention of prisoners in
permanent administrative segregation. And that
was a daunting task: it was firmly established in
the Fifth Circuit that prison officials had essentially unfettered discretion to classify prisoners
and to confine them to whatever degree of isolation they saw fit.
We filed the Complaint on June 22, 2005.
In August, Judge Davis told the parties that we
ought to be able to resolve the Unit 32 case without further discovery or litigation, and asked if
we would be willing to sit down together to negotiate. He made it clear that his opinion of the
facts had not changed since the death row trial,
and that he wanted to extend his remedial order
to all of Unit 32. In November 2005, we all met
for settlement discussions in Judge Davis’ courtroom. By the end of the day we had hammered
out a proposed consent decree.

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The proposed settlement incorporated all
cent of the 1000 men did not belong in adminisof the relief upheld by the Fifth Circuit in the
trative segregation at all, and should be released
death row case, and on that foundation added
from lockdown into the general prison populaprovisions on excessive force, procedural due
tion.
process, and classification. The provision on
In December 2006, we met with
classification was only sixty-five words long. It
MDOC’s Commissioner and classification offiread, simply, “Defendants will formulate and imcials. Dr. Austin presented his findings to
plement a plan, clearly communicated to prisonMDOC and explained that prisoners should be
ers, whereby all prisoners who are assigned to
housed in administrative segregation only when
Unit 32 and not sentenced to death may, through
there is evidence of the prisoner’s potential for
good behavior and a step-down system, earn
violence resulting in serious injury to others,
their way to less restrictive housing. The Parties
based on recent acts of assault while in custody.
agree to work together to prepare a written plan
He proposed collaborating with MDOC to help
to effectuate the goals of this
them reform their system within
paragraph and to present the “Prisoners with untreated
a twelve-month period.
agreed-upon plan to the Court mental illness became more
The Commissioner acfor approval.”
cepted this proposal, and
disturbed in isolated confineThat brief paragraph
ment, their illness led them to promptly established a Classifilooked like an awfully fragile
cation Task Force under the dibreak rules, then they would
little vehicle to carry us to our
rection of Deputy Commisbe
routinely
sprayed
with
pepgoal – nothing less than emptysioner Sparkman to work
ing Mississippi’s super-max per spray and forcibly subclosely with Dr. Austin and
prison of all but a small fraction dued, and then they were
other key MDOC officials. The
thrown
into
unbelievably
of the 1,000 prisoners incarcerClassification Task Force spent
ated there; but we figured this harsh ‘special management
the next several months considwas likely to be the best shot we isolation cells’ where their
ering options for reform of the
would ever have. The guaran- mental health deteriorated to
system.
tee that all prisoners in Unit 32 the point of no return.”
But we were having less
“may, through good behavior, -Margaret Winter
success negotiating with
earn their way to less restrictive
MDOC on mental health. The
housing” was the very essence
mental health issues were too
of what the men in Unit 32 wanted.
complex and far-reaching for any simple fix. The
Judge Davis approved the consent depsychosis-inducing effect of permanent adminiscree, noting that the relief we had obtained for
trative segregation, the culture of excessive force
the class went well beyond what he could have
in Unit 32, and the lack of basic mental health
ordered had we gone to trial and won. But wintreatment, made Unit 32 an incubator for serious
ning this piece of paper was only the first step –
mental illness and violence. Prisoners with unnow we had to begin the task of monitoring and
treated mental illness became more disturbed in
enforcement to transform those paper rights into
isolated confinement, then they would be roua living reality.
tinely pepper-sprayed and forcibly subdued, and
At the core of the problem was Missisthrown into unbelievably harsh “special managesippi Department of Corrections' (MDOC) clasment isolation cells” where their mental health
sification system. Our classification expert, Dr.
deteriorated to the point of no return.
James Austin, did an analysis of the population
In April 2007, we had an evidentiary
in Unit 32 and concluded that about eighty perhearing on the mental health issues. Dr. Terry

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Kupers gave vivid testimony about the crazymaking conditions in Unit 32. One case he described was that of James C. James had a long
history of bizarre behaviors which the MDOC
psychiatrist characterized as merely
“manipulative,” and which security staff punished with extreme and increasing harshness and
brutality. Mr. C’s behavior became more and
more desperate and he repeatedly tried to kill
himself. At last, one of his botched suicide attempts, by hanging, left him in a permanent
vegetative state. Dr. Kupers testified that the
very same conditions that resulted in this tragedy
were bound to result in dozens more such cases
unless those conditions were changed.
At the end of six hours of such testimony,
Judge Davis said he had had enough. He called
the lawyers into chambers and told the state
something had to be done, and told us we should
start negotiating. We told Judge Davis that the
mental health issues could not be solved without
addressing classification and use of force provisions issues, too. When we left his courtroom
that day, Judge Davis had made it clear to the
parties that he feared Unit 32 was a tinder box,
about to explode.
And only a few weeks later, Unit 32 did
explode. Beginning at the end of May 2007, and
continuing throughout June, July, and into August, there was an outburst of gang warfare in
which many inmates were stabbed and some
died. There was a suicide. A gun was found in
one prisoner's cell.
The bloody conflict had a devastating
effect on the entire population of Unit 32. The
institution was under such stress that for weeks
on end during high summer prisoners weren’t
even let out of their cells to shower or for their
daily allotted hour of exercise. There was a
breakdown in basic services such as sanitation,
maintenance of plumbing, and food service. A
mood of anxiety and despair prevailed among
the prisoners. The legal team was frustrated and
essentially helpless. It appeared that the tremendous progress we had been achieving had been

Page 5

not only halted but reversed.
But then there was a really extraordinary
development. Commissioner Epps, instead of
allowing MDOC to retreat into its old ways in
the face of this deep crisis in security, decided to
plow forward to implement the recommendations of Dr. Austin and the Classification Task
Force. Deputy Commissioner Sparkman left his
home in Jackson in order to be at Parchman
round the clock. Sparkman essentially lived in
the prison for the next several weeks, overseeing
the release of several hundred carefully selected
men into general population, walking among
them, speaking and interacting with them, getting to know their histories, and showing his
staff at the prison that these men were not so
dangerous that they needed to be in 23 hour a
day lockdown.
Within a very few months, a striking
transformation of Unit 32 had taken place. More
than eighty percent of Unit 32’s total population
had been released from administrative segregation. Prisoners with serious mental illness were
no longer locked down but were being treated at
a psychiatric hospital. Program and recreation
areas were being built at Unit 32. General population housing areas had been created, and the
inmates were spending several hours a day out of
their cells. The Task Force was developing a
clearly defined incentive program that would
allow prisoners to earn their return to the general
population as they met behavior-based criteria.
Plans were in the works to offer remedial classes
and college courses. There were plans to allow
contact visits for the first time. A dining hall
was being constructed so that for the first time
prisoners would be able to eat meals together
rather than in their cells. Prisoners were being
allowed for the first time to play sports and to
recreate together.
Most remarkable of all, violence and incidents of use of force had plummeted. Monthly
statistics showed a drop of almost seventy per
cent in incidents of use of force, coinciding with
the reforms of the classification system.
When we visited Parchman in October

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2007 and entered the courtyard of Unit 32, we
came upon an amazing, almost unbelievable,
scene: Dozens of prisoners laughing and shouting as they played basketball in the sunshine.
In November, 2007, we entered into a
far-reaching supplemental consent decree with
MDOC on classification, mental health and use
of force, and took it to Judge Davis in Aberdeen
to have him approve the settlement. He greeted
us all by saying, “With this Consent Decree I’ve
seen what y'all have been able to agree to, I'm
just floored, candidly. I just think it's a tremendous step forward in corrections."
Presley v. Epps, 4:05-cv-148 (United States District Court, Northern District of Mississippi).

Margaret Winter is the lead attorney from
the NPP fighting to improve conditions at
Mississippi’s Parchman Facility.

ACLU Challenges Appalling Health Care at
Ely State Prison in Nevada
By Amy Fettig, Staff Attorney, ACLU National Prison Project

Prisoners’ letters kept pouring in, each
describing an untreated medical problem more
horrible than the last. The ACLU of Nevada was
convinced that the State’s correctional medical
care was in crisis. And one of the biggest problems was clearly the care prisoners received – or
didn’t receive – at Ely State Prison (ESP). ESP
is Nevada’s only maximum security prison and
the site of its death row. Located in the remote
mountain town of Ely, Nevada, the facility
houses over 1000 men.
The Federal Defender of Nevada, the
government agency tasked with defending many
of the State’s death row inmates, also found that
their clients were often so sick and maltreated by
the medical staff at ESP that the men could no
longer assist in their own defense. In a state
where 10 of the 12 men executed by the government have actually volunteered to waive their
appeals and proceed straight to lethal injection –
the highest rate of “volunteerism” in the nation –

the debilitating impact of medical abuse on prisoners was all the more troubling. Seeking relief
for their clients, the Federal Defender’s office
requested the court to intervene in the provision
of medical care at ESP, to no avail.
Public attention in Nevada also focused
on the issue in the spring of 2006 when the Legislative Commission’s Subcommittee to Study
Sentencing and Pardons, Parole and Probation
heard testimony from a number of Nevada citizens regarding grossly inadequate medical care
for seriously ill prisoners, in particular at ESP.
As a result of this hearing, on October 6, 2006,
the Subcommittee sent a formal request to the
Governor’s Office to have the Executive Branch
carry out an evaluation of the adequacy of inmate access to medical care in Nevada. But the
Governor’s Office took no action on the Legislature’s request.
Faced with governmental inaction and
Continued on page 7 (“Poor”)

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Poor Health Care in Ely, NV
indifference, the ACLU of Nevada and Federal
Defender sought the assistance of lawyers from
the National Prison Project of the ACLU (NPP).
In early 2007 NPP began a formal investigation
of medical care at ESP.
Initial findings of the investigation revealed deprivations of medical care at ESP so
extreme that NPP’s lawyer believed that all the
men confined there were at significant risk of
serious injury, great physical pain and suffering,
and even premature death. The 1000 man facility had no medical doctor on staff except a psychiatrist, and instead relied on a Physician’s Assistant (PA) for most care. This PA denied a request for pain medications by a prisoner who has
advanced joint disease and suffers crippling pain
by stating on a medical kite, “nope, gonna let
you suffer.” On another medical request the
same PA wrote to a prisoner that he was being
put back on an allegedly dangerous medication
so that his “chances of expiring sooner are increased.” The level of horrific medical care at
ESP was as bad as any NPP lawyers had seen in
any of the systems they monitor around the nation.
Given the urgency of the problems at
ESP, in May 2007, the ACLU informed the Director of the Nevada Department of Corrections
(NDOC), Howard Skolnik, of the grave medical
situation at ESP and the need for immediate intervention.
The ACLU then retained a medical expert, Dr. William K. Noel of Boise, Idaho, to review prisoner medical records at ESP. Dr. Noel
reviewed the medical records of the thirty-five
ESP prisoners that Defendant Skolnik made
available for his review, toured the facility
speaking with prisoners and medical staff, and
produced an expert report on his findings (the
“Noel Report”). In December 2007 this report
was promptly provided to Director Skolnik and
state leaders.
The Noel Report found overwhelming
evidence that the grossest possible systemic

Page 7

medical abuses at ESP are occurring and have
been occurring there for years. Dr. Noel’s review of the records found that not only are prisoners at ESP in imminent danger of death or
grave irreparable medical injury, but that they
are being callously and wantonly subjected to
needless physical agony inflicted by grossly improper medical treatment. Moreover, the medical records themselves were so poorly and unprofessionally maintained that he found the
charting practices alone constitute a danger to
prisoners at ESP. The Noel Report also found
that at least one man has already died an unnecessary, slow and agonizing death and that in all
likelihood there will be more such deaths and
unnecessary suffering if immediate systemic
changes are not made in the provision of health
care at ESP.
Among the cases Dr. Noel reviewed is
that of Patrick Cavanaugh, who was an insulindependent diabetic. He lived in the ESP infirmary for at least two years before his agonizing
death on April 10, 2006. Mr. Cavanaugh’s cause
of death was complications of diabetes mellitus,
peripheral gangrene of both lower extremities,
hypertension, and congestive heart failure – all
untreated. In the best of circumstances
(hospitalization, quick antibiotics, and early detection) gangrene has a 30% mortality rate, but
untreated, it is essentially 100% fatal. Mr. Cavanaugh received almost no treatment for his illnesses, so his slow, painful death in the ESP infirmary was virtually assured. Given the profound and unmistakable smell of putrefying
flesh, there can be no question that every medical provider and correctional officer in that infirmary was acutely aware of Patrick Cavanaugh’s
condition.
Although Mr. Cavanaugh was an insulindependent diabetic, there is an order in his chart
stopping all his medications, including his insulin, three years before his death. The medical
order is unsigned and there is no indication as to
why this was done. Insulin was ordered sporadi-

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Poor Health Care in Ely, NV
cally thereafter but for the next three years until
sugar checks since 2003. Moreover, when ESP
his death was never given. There is no indicamedical placed Mr. Leonard on insulin on April
tion that consideration was ever given to surgi2, 2003, he was left on metformin (oral agent to
cally removing the gangrenous limbs. This prolower blood sugar) even though the metformin
cedure could have saved Mr. Cavanaugh’s life.
can cause ketoacidosis in insulin-dependent diaInstead, ESP medical staff literally left him to rot
betics.
to death.
Like most ESP medical records, Mr. LeoThe records suggest that Mr. Cavanaugh
nard’s chart is frequently illegible. Vital signs
“would not let” people come into his cell and
are rarely taken or recorded. Like many ESP
that he started refusing all medications except for
prisoners, Mr. Leonard also experienced major
aspirin. Even though progress notes in his chart
problems with his multiple medications at ESP.
detail increasing paranoia and probable demenHe received his HIV medications sporadically
tia, and even though gangrene is known to dewhich undermines their efficacy and puts him at
range the mind, there was no order to force lifegreat risk for resistance to entire classes of HIV
sustaining medications.
medications, thereby danger“The
medical
care
provided
at
Although a signed and
ously limiting treatment opnotarized full, non-limited Ely State Prison amounts to the tions. In addition, although Mr.
Power of Attorney Authoriza- grossest possible medical malLeonard’s health requires tight
tion giving power to a guardian practice, and the most shocking control of his blood pressure,
is present in his chart, there is and callous disregard for huhis prescriptions are rarely reno indication that prison offi- man life and human suffering,
filled in a timely manner and he
cials ever contacted Mr. Cava- that I have ever encountered in consistently runs out of his
naugh’s guardian to advise her the medical profession in my
medications despite his vigilant
of Mr. Cavanaugh’s medical
efforts to obtain refills without a
thirty-five years of practice.”
condition and the need to adlapse. The Noel Report noted
minister medications without -Dr. William Noel
that it is astonishing that Mr.
his consent because of his inLeonard is still alive, given the
ability to make medical decisions for himself.
grossly inadequate medical treatment revealed in
Even during his last days before death,
his records.
when an order was given for 5 mgs. of morphine
The Noel Report further examined the
sulfate every 4 to 5 hours to alleviate his terrible
case of John Snow, an ESP prisoner with severe
pain and suffering, there is no evidence that this
degenerative hip disease and requires surgery.
order was ever carried out. Patrick Cavanaugh
An orthopedist recommended hip surgery for
was left to die in prolonged agony, suffering
Mr. Snow years ago but this procedure was dewithout palliative care.
nied as “not life-threatening.” If he is not given
The Noel Report also analyzed the case
surgery, Mr. Snow’s bones will eventually wear
of Greg Leonard, who suffers from HIV, diabethrough his acetabulae, which are the large socktes mellitus, hypertension, two spinal injuries
ets at the base of the hip bones into which the
and a botched back surgery resulting in chronic,
head of the femur fits. Because of Mr. Snow’s
debilitating pain, and kidney disease. Despite
condition, he is in constant, excruciating pain but
Mr. Leonard’s severe and chronic pain, he rehe is given no pain medications. There is no
ceives almost no treatment for that pain. He is
medically justifiable reason for leaving this man
also an insulin-dependent diabetic who needs
in agony.
daily sugar tests, but he has not received regular
Another case reviewed in the Noel Re-

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Poor Health Care in Ely, NV
port is that of Robert Ybarra. Mr. Ybarra suffers
from deep vein thrombosis (DVT) and chronic,
non-healing venous stasis ulcers on both lower
legs and ankles. DVT is extremely painful and
Ybarra suffers severe and chronic pain that is not
treated. Mr. Ybarra’s chronic leg ulcers could be
easily cured, but instead his open, draining, painful wounds remained untreated for years. Without adequate treatment, he will lose his feet and
legs.
Dr. Noel emphasized in his report that
the ESP records “show a system that is so broken
and dysfunctional that, in my opinion, every one
of the prisoners at Ely State Prison who has serious medical needs, or who may develop serious
medical needs, is at enormous risk.” He further
found that “[b]ased on my review of the medical
records and my interviews at Ely State Prison, it
is my opinion that the medical care provided at
Ely State Prison amounts to the grossest possible
medical malpractice, and the most shocking and
callous disregard for human life and human suffering, that I have ever encountered in the medical profession in my thirty-five years of practice.”
After the Noel Report was published in
December 2007, the ACLU went to the Board of
State Prison Commissioners (the “Board”), the
state governmental body responsible for oversight of all prisons in Nevada. In order to avoid
prolonged litigation and to try and prevent the
further suffering of the men at ESP, the ACLU
offered to enter into a Consent Decree with the
Board that would allow for neutral medical
monitoring, ensure that a full-time, qualified
physician was hired to treat men at ESP, and
mandate that the Nevada Department of Corrections (NDOC) comply with the nationally recognized correctional health care standards promulgated by the National Commission on Correctional Health Care (NCCHC). The Board rejected this offer.
During the next two months the ACLU
attempted to work with the Department of Cor-

Page 9

rections to find a non-litigation solution to the
medical care crisis at ESP. NDOC moved some
medically fragile prisoners to other facilities and
made a half-hearted attempt to suggest a
“neutral” medical expert to evaluate care at ESP.
During this time, however, reports of grossly inadequate medical care continued to stream out of
ESP. ACLU lawyers concluded that ESP prisoners remained at substantial risk of injury, great
physical pain, deterioration of their health, and
possibly premature death. Faced with the ongoing, unmet critical health care needs of the prisoners and the unaddressed, systemic deficiencies
in the provision of medical services at ESP,
ACLU lawyers concluded that a lawsuit was
necessary. The urgent problems at Ely required
immediate resolution and it was clear that
NDOC would not comply with the law and provide prisoners constitutional medical care unless
the courts were involved.
On March 6, 2008, the NPP, the ACLU
of Nevada, and Holland & Knight LLC, filed a
federal civil rights suit in the District of Nevada
alleging deliberate indifference to the serious
medical needs of all prisoners incarcerated at
ESP and seeking declaratory and injunctive relief under the Eighth and Fourteenth Amendments to the United States Constitution.
(Riker, et al. v. Gibbons, et al., 3:08-CV-115ECR-VPC, United States District Court, District
of Nevada)

Amy Fettig, A staff attorney with the National
Prison Project, is spearheading the investigation
into conditions at Ely State Prison in Nevada

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A Fight for Life
Presentation on Medical Care and Deaths in
ICE Custody
by Francisco Castaneda
For a hearing on “Detention and Removal: Immigration Detainee Medical Care” before the
House Subcommittee on Immigration,
Citizenship, Refugees, Border Security,
and International Law
October 4, 2007

Francisco Castaneda testifying before Congress

In 2006, the ACLU first came in contact with
Francisco Castaneda, a detainee at the San Diego
Correctional Facility (SDCF) in the custody of U.S.
Immigration and Customs Enforcement (ICE).
SDCF is a detention center run by Corrections Corporation of America, Inc, the nation’s largest forprofit correctional services provider. Throughout his
eleven months in immigration custody, Mr. Castaneda suffered from an extremely painful lesion on his
penis that many doctors feared was cancer. Despite
the opinions of medical experts that Mr. Castaneda
required a biopsy, immigration authorities denied
this request, stating that it was an “elective procedure” that could be done once he was released from
custody or deported. In the meantime, Mr. Castaneda experienced constant pain, bleeding and discharge.
After strong advocacy by the ACLU, Mr.
Castaneda was ultimately released from immigration
custody in February 2007. Within a matter of days,
he was diagnosed with metastatic penile cancer. In
the year following his release, Mr. Castaneda became very outspoken about the poor treatment that
he and other detainees received in immigration custody. Mr. Castaneda’s personal story was featured
in several newspaper articles, and on October 4,
2007, he appeared before Congress to testify about
this critical issue. His congressional testimony is
presented below.

Page 10

Good afternoon. Thank you to Chairwoman Lofgren for inviting me, and to the Immigration Subcommittee for holding this hearing. My name is Francisco Castaneda. I was
held in immigration detention for over 10
months, and was just released this past February
due to my medical condition, after many letters
from the ACLU were sent on my behalf.
First, I would like to tell you a little bit
about myself. I am 35 years old. I came to the
United States from El Salvador with my mother
and siblings when I was ten years old to escape
from the civil war. My family moved to Los Angeles where I went to school and began working
at the age of 17. My mother died of cancer when
I was pretty young, before she was able to get us
all legal immigration status. After my mom
died, I looked to my community for support, and
found myself wrapped up in drugs instead,
which, today, I deeply regret. I worked, doing
construction, up until I went to prison on a drug
charge, where I spent just four months before I
was transferred into ICE detention.
When I entered ICE custody at the San
Diego Correctional Facility in March 2006, I immediately told them I had a very painful lesion
on my penis. After a day or two, Dr. Walker examined me and recognized that the lesion was a
problem. He said he would request that I see a
specialist right away.
But instead of sending me directly to a

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A Fight for Life
specialist, I was forced to wait, and wait, and
wait, and wait. All the while, my pain got
worse. It started to bleed even more and smell
really bad. I also had discharge coming out of it.
Apparently the Division of Immigration Health
Services was deciding whether to grant the request. Dr. Walker submitted the request more
than once and, after more than a month, it was
finally granted. When I saw an oncologist he
told me it might be cancer and I needed a biopsy.
He offered to admit me to a hospital immediately
for the biopsy, but ICE refused to permit a biopsy and told the oncologist that they wanted to
try a more cost-effective treatment.
I was then referred to a urologist, Dr.
Masters, but I only got to see that urologist twoand-a-half months later, after I filed sick call requests and grievances with ICE. The urologist
said I needed a circumcision to remove the lesion and stop the pain and bleeding, and also
said I needed a biopsy to figure out if I had cancer. ICE and the Division of Immigration Health
Services never did either of those things. They
said that it was “elective surgery.”
My pain was getting worse by the day.
When you are in detention, you can’t help yourself. I knew I had a problem, but with everything you have to ask for help. I tried to get
medical help every day. Sometimes I would
show the guards my underwear with blood in it
to get them to take me to medical, but then they
would say they couldn’t do anything for me. All
they gave me was Motrin and other pain pills.
At one point, the doctor gave me special permission to have more clean underwear and bedsheets, because I was getting blood on everything. A guard from my unit once told me he
would pray for me because he could see how
much I was suffering.
Several more requests for a biopsy were
denied. They told me in writing that I could get
the surgery after I left the facility – when I was
deported.
In late November 2006, I was transferred

Page 11

from San Diego to the San Pedro Service Processing Center. When I got there I immediately
filed sick call slips about my problem. After a
few days I saw the doctors. I told them about
my pain and showed them the blood in my boxer
shorts and asked them to examine my penis.
They didn’t even look at it -- one of them said I
couldn’t be helped because I needed “elective
surgery.” They just gave me more pain pills.
In the middle of December, I noticed a
lump in my groin. It hurt a lot and was a little
bit smaller than a fist, so I filed a sick call slip
about it. Another detainee told me it could be a
hernia. I never got any treatment for it, and I
later found out that was a tumor, because the
cancer had already spread.
In the beginning of January, one of the
guards told me I was going to Harbor-UCLA
Medical Center. They put me in handcuffs and
leg shackles and drove me in a van to the emergency room. When I got there the officer walked
all around trying to find someone to see me, but
he was told I would have to wait in line like everyone else. After about an hour of following him
all chained up, he took me back to San Pedro and
I didn’t get to see anyone.
Back when I was in San Diego, another
detainee gave me the phone number for the
ACLU and said they might be able to help me. I
called them, and spoke with Mr. Tom Jawetz,
here, and told him my story and about how much
pain I was in. When I got to San Pedro he sent
letters and called the people at the facility to try
to help me get medical care. Finally, around the
end of January, immigration agreed to let me get
a biopsy. They made an appointment with the
doctor, but just before the surgery they released
me from custody. A doctor actually walked me
out of San Pedro and told me I was released because of my serious medical condition and he
encouraged me to get medical attention.
The first thing I did was call the doctor to
see whether I could still get my biopsy. The secretary told me ICE had cancelled it. I then went

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A Fight for Life
back to the emergency room at Harbor-UCLA—
the same place they had left me in the waiting
room in shackles—and I waited to see a doctor
and finally get my biopsy. A few days later, the
doctor told me that I had cancer, and would have
to have surgery right away to remove my penis.
He said if I didn’t have the surgery I would be
dead within one year. On February 14—
Valentine’s Day—nine days after ICE released
me from custody, I had the surgery to remove
my penis. Since then, I have been through five
aggressive week-long rounds of chemotherapy.
Doctors said my cancer spreads very fast—it had
already spread to my lymph nodes and maybe
my stomach.
I’m sure you can at least imagine some of
how this feels. I am a 35-year-old man without a
penis with my life on the line. I have a young
daughter, Vanessa, who is only 14. She is here
with me today because she wanted to support me
– and because I wanted her to see her father do
something for the greater good, so that she will
have that memory of me. The thought that her
pain – and mine – could have been avoided almost makes this too much to bear.
I had to be here today because I am not
the only one who didn’t get the medical care I
needed. It was routine for detainees to have to
wait weeks or months to get even basic care.
Who knows how many tragic endings can be
avoided if ICE will only remember that, regardless of why a person is in detention and regardless of where they will end up, they are still human and deserve basic, humane medical care.
In many ways, it’s too late for me. Short
of a miracle, the most I can hope for are some
good days with Vanessa and justice. My doctors
are working on the good days and, thankfully,
my attorneys at Public Justice here in Washington, Mr. Conal Doyle in California, and the
ACLU are working on the justice – not just for
me, but for the many others who are suffering
and will never get help unless ICE is forced to
make major changes in the medical care pro-

Page 12

vided to immigrant detainees.
I am here to ask each of you, members
of Congress, to bring an end to the unnecessary
suffering that I, and too many others, have been
forced to endure in ICE detention.
Thank you for your time.

Francisco Castaneda died on February 16,
2008, a year and eleven days after he was released
from ICE custody. He will be remembered warmly as
a courageous and perseverant advocate for those
who suffered, and continue to suffer, unnecessarily,
in ICE detention.

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Know Your Rights: Religious Freedom
The free exercise of religion principally
derives protection from some combination of
three federal legal sources: (1) the Free Exercise
Clause of the First Amendment to the U.S. Constitution; (2) the Religious Freedom Restoration
Act of 1993 (RFRA), 42 U.S.C. § 2000bb et
seq.; and (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. § 2000cc et seq. While the Supreme
Court has substantially restricted the rights of
prisoners when interpreting the First Amendment, Congress has made it easier for prisoners
to win cases regarding religious freedom by
passing RFRA and RLUIPA.
THE FREE EXERCISE CLAUSE:
When is Religious Exercise Constitutionally Protected?
Generally, beliefs that are “religious” and
“sincerely held” are protected by the Free Exercise Clause of the First Amendment to the
United States Constitution.
Courts often disagree about what qualifies as a religion or a religious belief. So-called
“mainstream” belief systems, such as Christianity, Islam and Judaism, are universally understood to be religions. Less well-known or nontraditional faiths, however, have had less success
being recognized as religions. While Rastafari,
Native American religions, and various Eastern
religions have generally been protected, belief
systems such as the Church of the New Song,
Satanism, the Aryan Nations, and the Five Percenters have often gone unprotected. The Supreme Court has never defined the term
“religion.” However, in deciding whether something is a religion, lower courts have asked
whether the belief system addresses
“fundamental and ultimate questions,” is
“comprehensive in nature,” and presents “certain
formal and external signs.” Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981); see
also Dettmer v. Landon, 799 F.2d 929, 931-32
(4th Cir. 1986). If you want a nontraditional belief system to be recognized as a religion, it may

Page 13

help if you can show how your beliefs are similar to other, better-known religions: Does your
religion have many members? Any leaders? A
holy book? Other artifacts or symbols? Does it
believe in a God or gods? Does it believe that
life has a purpose? Does it have a story about
the origin of people?
In addition to proving that something is a
religion, you must also convince prison administrators or a court that your beliefs are sincerely
held. In other words, you must really believe it.
In deciding whether a belief is sincere, courts
sometimes look to how long a person has believed something and how consistently he or she
has followed those beliefs. See Sourbeer v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986);
Vaughn v. Garrison, 534 F. Supp. 90, 92
(E.D.N.C. 1981). Just because you have not believed something your entire life, or because you
have violated your beliefs in the past, does not
automatically mean that a court will find that
you are insincere. See Reed v. Faulkner, 842
F.2d 960, 963 (7th Cir. 1988); Weir v. Nix, 890
F. Supp. 769, 775-76 (S.D. Iowa 1995). However, if you recently converted or if you have
repeatedly acted in a manner inconsistent with
your beliefs, you will probably have a hard time
convincing a court that you are sincere.
When are Prison Restrictions on the Exercise of
Religion Constitutionally Permitted?
You have an absolute right to believe
anything you want. You do not, however, always have a constitutional right to do things (or
not do things) just because of your religious beliefs.
The constitutional right of free exercise
does not excuse anyone, including prisoners,

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Know Your Rights: Religious Freedom
from complying with a “neutral” rule (one not
intended to restrict religion) of “general applicability” (one that applies to everyone in the same
way) simply because it requires them to act in a
manner inconsistent with their religious beliefs.
See Employment Div. v. Smith, 494 U.S. 872,
879 (1990). A rule that applies only to a religious group is not generally applicable. See
Church of the Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 543 (1993).
In prison cases, courts permit restrictions
on religious exercise as long as such restrictions
are “reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). This standard is not very protective of
prisoners’ First Amendment rights. In O’Lone v.
Estate of Shabazz, the Supreme Court upheld
two regulations that effectively prohibited Muslim prisoners from attending Friday afternoon
congregational services. 482 U.S. 342 (1987).
The Court reasoned that although some prisoners
were completely unable to attend services, the
restrictions were reasonable because prisoners
could practice other aspects of their faith. Id. at
351-52.
RFRA & RLUIPA: EXPANDED STATUTORY
PROTECTIONS FOR RELIGIOUS ACTIVITIES
Congress has passed two statutes providing heightened protection for religious exercise
in prison. The Religious Freedom Restoration
Act (RFRA) applies to federal and District of
Columbia prisoners. O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (federal
prisoners); Kikumura v. Hurley, 242 F.3d 950,
960 (10th Cir. 2001) (same); Jama v. U.S.I.N.S.,
343 F. Supp. 2d 338, 370 (D.N.J. 2004)
(immigration detainees); Gartrell v. Ashcroft,
191 F. Supp. 2d 23 (D.D.C. 2002) (District of
Columbia prisoners). The Religious Land Use
and Institutionalized Persons Act (RLUIPA) applies to state or local institutions that receive
money from the federal government; this includes most local and every single state prison
system. See Cutter v. Wilkinson, 544 U.S. 709,

Page 14

716 n.4 (2005).
Both RFRA and RLUIPA balance a prisoner’s right to exercise his or her religion against
the government’s interests. The general balancing test is that the government may not impose a
substantial burden on the religious exercise of
prisoners unless that burden (1) is in furtherance
of a compelling governmental interest; and (2) is
the least restrictive means of furthering that interest. RLUIPA additionally defines “religious
exercise” to include “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5
(7)(A).
This test is more protective than the
Turner standard that applies to Free Exercise
claims under the First Amendment. Therefore, if
a religious practice was protected under the Free
Exercise Clause, it will probably be protected
under RFRA or RLUIPA. And even if a practice
was not protected under the Free Exercise
Clause, it may sill be protected under RFRA or
RLUIPA. The cases below discuss the application of the First Amendment to various aspects
of religious exercise. Cases brought under
RFRA and RLUIPA can be expected to yield
similar or more favorable results.
Religious foods
Prisoners have enjoyed a fair amount of
success with claims protecting religious dietary
practices. Ford v. McGinnis, 352 F.3d 582, 597
(2d Cir. 2003) (“[A] prisoner has a right to a diet
consistent with his or her religious scruples.”);
Lomholt v. Holder, 287 F.3d 683 (8th Cir. 2002)
(prisoner’s allegation that he was punished for
religious fasting stated a First Amendment
claim).
Courts have often found that prisoners
have a right to avoid eating foods that are forbidden by their religious beliefs. See Moorish Science Temple of Amer., Inc. v. Smith, 693 F.2d
987, 990 (2d Cir. 1982). Where reasonable accommodations by the prison can be made to provide religious meals, courts have ordered such

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Know Your Rights: Religious Freedom
for Native American religious activities violates
First Amendment).

diets be made available to prisoners. See Ashelman v. Wawrzaszek, 111 F.3d 674, 678 (9th Cir.
1997). Courts have also required accommodations for special religious observances related to
meals. See Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1211-14 (10th Cir. 1999)
(failure to accommodate Muslim fasting requirements during Ramadan infringed on First
Amendment rights); Levitan v. Ashcroft, 281
F.3d 1313, 1322 (D.C. Cir. 2002) (reversing
summary judgment for defendants in Catholic
prisoners’ challenge to denial of communion
wine). Some courts have rejected efforts by
prison officials to charge prisoners for religious
diets. See Beerheide v. Suthers, 286 F.3d 1179,
1192 (10th Cir. 2002) (no rational relationship
between penological concerns and proposed copayment for kosher diet).
Prisoners requesting highly individualized diets, however, have rarely been successful.
See DeHart v. Horn, 390 F.3d 262, 269-72 (3d
Cir. 2004).
Religious services
Notwithstanding the Supreme Court’s
decision in Estate of Shabazz, courts have generally protected prisoners from interference with
their ability to attend religious services or engage
in prayer. Mayweathers v. Newland, 258 F.3d
930, 938 (9th Cir. 2001) (upholding injunction
against disciplining Muslim prisoners for missing work to attend Friday services); Omar v.
Casterline, 288 F. Supp. 2d 775, 781 (W.D. La.
2003) (refusal to tell Muslim prisoner the date or
time of day to allow him to pray and fast states
First Amendment claim); Youngbear v. Thalacker, 174 F. Supp. 2d 902, 912-15 (N.D. Iowa
2001) (one year delay in providing sweat lodge

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Sabbath
Courts have also found that restrictions
requiring prisoners to violate the Sabbath or
other religious duties violate the First Amendment. McEachin v. McGuinnis, 357 F.3d 197,
204-05 (2d Cir. 2004) (intentionally giving Muslim prisoner an order during prayer may violate
First Amendment); Hayes v. Long, 72 F.3d 70
(8th Cir. 1995) (requiring Muslim prisoner to
handle pork violated First Amendment); Murphy
v. Carroll, 202 F. Supp. 2d 421, 423-25 (D. Md.
2002) (prison officials’ designation of Saturday
as cell-cleaning day violated Free Exercise rights
of Orthodox Jewish prisoner).
Religious objects
Courts have often concluded that prison
officials may generally ban religious objects if
they can make a plausible claim that the objects
could pose security problems. See Spies v.
Voinovich, 173 F.3d 398, 406 (6th Cir. 1999);
Mark v. Nix, 983 F.2d 138, 139 (8th Cir. 1993).
However, prison officials must present evidence
that such restrictions responded to valid security
concerns. Boles v. Neet, 486 F.3d 1177, 1182-83
(10th Cir. 2007). Also, prison officials may not
ban some religious objects and not others without any justification. See Sasnett v. Litscher, 197
F.3d 290, 292 (7th Cir. 1999) (Free Exercise
Clause violated where prison regulation banned
the wearing of Protestant crosses but allowed
Catholic rosaries without any reasonable justification for distinction). Courts have also concluded that prison officials are not required to
provide religious objects as long as prisoners are
free to purchase or obtain the objects themselves.
See Frank v. Terrell, 858 F.2d 1090, 1091 (5th
Cir. 1988).
Religious literature
Courts have concluded that although officials may limit the amount of reading material

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Know Your Rights: Religious Freedom
that a prisoner keeps in his or her cell, officials
may not bar religious literature when other literature is permitted and prisoners generally have a
right to read the primary text of their faith tradition. See, e.g., Sutton v. Rasheed, 323 F.3d 236,
250-58 (3d Cir. 2003); Jesus Christ Prison Ministry v. California Dep’t of Corrections, 456 F.
Supp. 2d 1188, 1201-02 (E.D. Cal. 2006) (policy
barring prisoners from receiving religious books
from organizations not on approved vendor list is
unconstitutional).
Personal grooming
Prisoners have rarely been successful in
challenging grooming and dress regulations.
Courts have generally upheld restrictions on
haircuts. See Hines v. South Carolina Dep’t of

Corrections, 148 F.3d 353, 356 (4th Cir. 1998);
Sours v. Long, 978 F.2d 1086, 1087 (8th Cir.
1992). This has also been true with regard to
headgear and other religious attire. See Muhammad v. Lynaugh, 966 F.2d 901, 902-03 (5th Cir.
1992); Sutton v. Stewart, 22 F. Supp. 2d 1097,
1106 (D. Ariz. 1998).
A prison rule about grooming may, however, be vulnerable to attack if it is not enforced
equally against all religions. See Sasnett v.
Litscher, 197 F.3d 290, 292 (7th Cir. 1999); Swift
v. Lewis, 901 F.2d 730, 731-32 (9th Cir. 1990)
(where prison permitted long hair and beards for
some religions but not others, it must present
evidence justifying this unequal treatment); Wilson v. Moore, 270 F. Supp. 2d 1328, 1353 (N.D.
Fla. 2003).

SAVE on Capitol Hill
In November of last year, the SAVE Coalition presented testimony before Congress to advocate for
fixes to the Prison Litigation Reform Act (PLRA). In that same month, Rep. Bobby Scott (D-VA) introduced H.R. 4109, the “Prison Abuse Remedies Act” to address specific areas of the legislation. The
testimony of the SAVE Coalition is included in full below.
Testimony of the Stop Abuse and Violence
Everywhere (SAVE) Coalition
for the House Judiciary Subcommittees on
Crime, Terrorism and Homeland Security
and Constitution, Civil Rights and
Civil Liberties
November 8, 2007
By the Coalition to Stop Abuse and Violence
Everywhere (SAVE)
The SAVE (Stop Abuse and Violence Everywhere) Coalition is a broad, bi-partisan group of
organizations and individuals dedicated to protecting the U.S. prison and jail population--a
group that is increasingly vulnerable to violence
and abuse since the 1996 enactment of the Prison
Litigation Reform Act (PLRA). The SAVE
Coalition includes faith-based organizations; le-

Page 16

gal organizations; advocacy organizations for
rape victims, children, and the mentally ill; and
others. Members of the SAVE Coalition have
studied the impact of the PLRA and developed
proposed reforms to the law that do not interfere
with its stated purpose: to reduce frivolous litigation by prisoners. The SAVE Coalition’s proposed reforms, which are described below, seek
to preserve the rule of law in America’s jails and
prisons and better protect prisoners from rape,
assault, denials of religious freedom, and other
constitutional violations by fixing the unintended
consequences of the PLRA. We would like to
thank the House Judiciary Subcommittee on
Crime, Terrorism, and Homeland Security and
the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties for holding a hearing
on this important issue that requires Congress’s
attention. In addition to our recommended
changes to the PLRA, we have included as an

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SAVE on Capitol Hill
attachment a list of members of the SAVE Coalition, as well as a list of ten cases in which prisoners’ constitutional rights were not protected
because of the PLRA.
Under the PLRA, prisoners are required
to prove a physical injury, regardless of any
mental or emotional injury, in order to obtain
compensatory damages in federal court. As a
result, prisoners can be raped and sexually assaulted but be barred from filing a civil rights
action against those responsible because some
courts say they’ve suffered no “physical injury.”
Other forms of abuse,
such as disgusting, unsanitary conditions and degrading treatment, also do
not meet the “physical injury” requirement of the
PLRA. Many other constitutional violations do
not result in physical injuries. As a result of the
PLRA’s “physical injury”
requirement, many courts
deny prisoners remedies
for violations of their First
Amendment rights to freedom of religion. The
SAVE Coalition recommends that Congress repeal this provision prohibiting prisoners from
bringing lawsuits for mental or emotional injury
without demonstrating a “physical injury.” (Repeal 42 U.S.C. § 1997e(e).)
The PLRA's exhaustion provisions require courts to dismiss prisoners' suits if they
have failed to exhaust their facilities' grievance
process, no matter how meritorious the claims,
and many prisoners who are ill, hospitalized, intimidated, traumatized, or otherwise incapacitated have meritorious cases dismissed for missing those short deadlines. In addition, prisoners
are forced to use internal grievance systems to
exhaust administrative remedies regardless of
whether use of those systems can even resolve
Page 17

the issue being grieved. While it is essential that
prison officials have an opportunity to resolve
issues before they are brought to court, exhaustion requirements are an enormous barrier for
prisoners because prison and jail grievance systems have created a baffling maze in which a
barely literate, mentally ill, physically incapacitated, or juvenile prisoner’s procedural misstep
in a facility’s informal grievance system forever
bars even the most meritorious constitutional
claims. These grievance systems often have
many levels for appeals
and grievance deadlines are
often a matter of days, with
rare exceptions. Exhaustion is especially problematic for the most vulnerable
prisoners, who are the least
likely to be aware of exhaustion requirements and
grievance procedures, even
though they are frequently
the victims of sexual abuse
and other violations. For
these reasons the SAVE
Coalition calls on Congress
to amend the requirement
for exhaustion of administrative remedies to require
prisoners to present their claims to responsible
prison officials before filing suit, and, if they fail
to do so, require the court to stay the case for up
to 90 days and return it to prison officials to provide them the opportunity to resolve the complaint administratively. (Amend 42 U.S.C. §
1997e(a).)
The power imbalance inherent in prison
leaves incarcerated people, and especially children, concerned about experiencing retaliation if
they file grievances. This means that many prisoners, including youth, will not take part in the
grievance system because they fear its consequences. For example, children detained by the
Texas Youth Commission were subject to sexual
abuse by staff for years and could not safely

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SAVE on Capitol Hill
complain. In one facility, a supervisor who
forced children to perform sexual acts on him
also held the key to the complaint box, leaving
children with no where to go for help and the
courts powerless to intervene. Once the scandal
broke and the Texas legislature stepped in, detained children and their parents were able to
come forward and over 1,000 complaints of sexual abuse have now been alleged. But such
atrocities should never have happened. Because
of the PLRA, federal courts frequently cannot
protect incarcerated children from rape and other
forms of abuse. Therefore, children must be exempted from the PLRA. (Amend 18 U.S.C. §
3626(g), 42 U.S.C. § 1997e(h), 28 U.S.C. § 1915
(h), 28 U.S.C. § 1915A(c).)
The PLRA’s “three strikes” provision,
intended to prevent prisoners from filing more
than three frivolous cases in a lifetime, bars not
only cases that are frivolous or malicious, but
also those filed by prisoners who make mistakes
in their legal documents due to their lack of access to counsel or legal training. The SAVE
Coalition calls on Congress to amend the “threestrikes provision” (which requires certain indigent prisoners who have previously had three
cases dismissed to pay the full filing fee up
front) by limiting it to prisoners who have had 3
lawsuits or appeals dismissed as malicious
within the past 5 years. (Amend 28 U.S.C. §
1915(g).)
Courts must be able to decide on the best
remedies for constitutional violations, and their
authority to ensure that violations do not recur
should not be curtailed when hearing cases
brought by prisoners. Although the purpose of
the PLRA was to lessen the burden of prisoner
suits on the courts, many of its provisions actually increase that litigation burden. For example,
the PLRA requires defendants to admit that they
violated the Constitution in order to enter into a
settlement agreement. Because defendants are
understandably reluctant to admit such liability,
even the strongest cases rarely settle. As a result, parties often find themselves going to trial
Page 18

where they would preferably have settled the
case prior to the implementation of the PLRA.
Congress should restore judicial discretion to
grant the same range of remedies in prisoners’
civil rights actions that they possess in other civil
rights cases. (Repeal 18 U.S.C. § 3626.)
The PLRA’s attorney’s fee restrictions
make it cost-prohibitive for attorneys to represent prisoners. Ironically, this places greater
burdens on courts to process cases in which prisoners, who are not conversant with the law and
court rules, must represent themselves. The
PLRA needs to be fixed to allow prisoners who
prevail on civil rights claims to recover reasonable attorney’s fees to the same extent as others
whose civil rights have been violated. (Repeal
42 U.S.C. § 1997e(d).)
The PLRA’s filing-fee provisions may
deter indigent prisoners whose constitutional
rights have been violated from seeking the legal
redress to which they are entitled. On average,
prisoners who are given the opportunity to work
while in prison make less than $1-$2/day. Congress should change the PLRA to allow indigent
prisoners whose cases are found to state a valid
claim at the preliminary screening stage to pay a
partial filing fee rather than the full filing fee,
now $350 in district courts and $450 in appellate
courts. (Amend 28 U.S.C. § 1915(a), (b).)
The screening provision of the PLRA
allows the courts to dismiss a case that appears
to be frivolous before the case is served on defendants or entered into the docket. This provision is the core of the law and these recommended reforms will leave the core unchanged.
With the screening provision in place, and the
adoption of amendments we have recommended,
the PLRA will still serve its purpose and not
open the flood gates to frivolous litigation. Instead, our recommendations, if adopted, will allow meritorious constitutional claims to be heard
while continuing to protect the courts from frivolous litigation.

National Prison Project Journal

Volume 20, Issue 1

Case Law Review: U.S. Supreme Court
Cases
By John Boston
Director, Prisoners’ Rights Project of the New York
City Legal Aid Society

PLRA—Exhaustion of Administrative
Remedies
Jones v. Bock, 127 S.Ct. 910 (2007). The Supreme Court held that the PLRA exhaustion requirement is an affirmative defense, not a pleading requirement. Therefore, although exhaustion
is necessary, prisoners are not required to specially plead or demonstrate exhaustion in their
complaints. Id. at 919.
Additionally, the Sixth Circuit below dismissed two of the prisoners’ suits because those
prisoners had not identified each defendant they
later sued in their initial grievances. The Supreme Court did not determine whether the
grievances filed by the petitioners satisfied the
requirement of “proper exhaustion,” but concluded that exhaustion is not per se inadequate
simply because an individual later sued was not
named in the original grievance. Id. at 923.
Finally, the Court rejected the “total exhaustion rule” and held that while no unexhausted claims may be heard under the PLRA, a
court may not dismiss an entire action simply
because the Complaint includes both exhausted
and unexhausted claims. Id. at 923. The Court
rejected the respondent’s analogy that the PLRA
is similar to the total exhaustion rule in habeas
corpus. The Court found that the PLRA’s language does not support total exhaustion, stating
that: “As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad.” Id. at
924.
The Court essentially held in this case
that the PLRA exhaustion requirement is not intended to overturn the ordinary practices of litigation except where it says so. It said that the
statute’s failure to make exhaustion a pleading
requirement is strong evidence that the usual
practice should be followed, and the usual pracPage 19

tice under the Federal Rules of Civil Procedure
is to regard exhaustion as an affirmative defense.
In a series of recent cases, we have explained that “[c]ourts should generally not depart
from the usual practice under the Federal Rules
on the basis of perceived policy concerns. . . .”
Id. at 919. With respect to “total exhaustion,”
the Court said that the usual practice in litigation
should prevail even though the subject is not addressed in the Federal Rules: “As a general matter, if a complaint contains both good and bad
claims, the court proceeds with the good and
leaves the bad.” Id. at 924.
Pro Se Litigation
Erickson v. Pardus, 127 S.Ct. 2197 (2007). The
Plaintiff’s suit alleges that prison officials violated the Eighth Amendment by withholding
from him Hepatitis C treatment, and thereby
subjecting him to potential further liver damage
and endangering his life. The district court dismissed the claim on the ground that the prisoner
failed to allege “substantial harm.” The Court of
Appeals affirmed, stating that the prisoner’s allegations were too conclusory for pleading purposes.
The Supreme Court reversed, noting that
while the district court may ultimately find no
substantial harm and dismiss the case, the Court
of Appeals erred in finding that the allegations in
question were too conclusory. Id. at 2199. The
Complaint stated that the prisoner had been prescribed Hepatitis C medication, which was to
last for one year. However, shortly after it was
prescribed, the prison officials refused him treatment while he was “still in need of treatment for
this disease.” Id. at 2200
The Supreme Court found that the Court
of Appeals had departed from the liberal pleadings standards laid out in Federal Rule of Civil
Procedure 8(a)(2). Id. at 2200. The Court emphasized that a document filed pro se should be
construed even more liberally, “however inart-

National Prison Project Journal

Volume 20, Issue 1

Continued from previous page

Case Law Review: U.S. Supreme Court Cases
fully pleaded . . . .” Id. As a result, the Court
reversed and remanded the case for further consideration.
Bowles v. Russell, 127 S. Ct. 2360 (2007). The
district court granted petitioner’s motion to reopen and extend his time to appeal his previously denied habeas corpus petition. Without
explanation, the district court gave petitioner 17
days to file the appeal, rather than the statutory
14 days. Relying on the district court’s order,
petitioner filed his appeal to the Sixth Circuit
within 17 days, but after 14 days. His appeal
was denied because it was not timely. The Sixth
Circuit stated that, because a timely filing has
been long held as “mandatory and jurisdictional,” his appeal had to be denied. Id. at 2363.
In a split decision, the Supreme Court
affirmed the Sixth Circuit ruling, declaring that
the rule has been long-standing and the Court
had no authority to create equitable exceptions
to jurisdictional requirements. Id. at 2366. The
dissenting opinion, in which four Justices joined,
stated that: “It is intolerable for the judicial system to treat people this way, and there is not
even a technical justification for condoning this
bait and switch.” Id. at 2367 (Souter, J., dissenting).
Federal Officials and Prisons
Osborn v. Haley, 127 S.Ct. 881 (2007). This
case involves a federal statute commonly known
as the Westfall Act, which gives federal employees absolute immunity from tort claims arising
out of actions taken in the course of their official
duties. Under the Westfall Act, once the Attorney General certifies that an action is within the
scope of the defendant federal employee’s official duties, the employee is dismissed from the
action, the United States is substituted as a defendant, and the case proceeds under the Federal
Tort Claims Act.
In this instance, the plaintiff sued a fed-

Page 20

eral officer in state court for allegedly interfering
with her employment with a private contractor.
She claimed that the federal officer conspired to
cause her wrongful discharge and that his efforts
to bring about her discharge were outside the
scope of his employment. The local United
States Attorney filed a Westfall Act certification
and had the action removed to federal district
court. The District Court relied on the Plaintiff’s
allegations -- which stated that the federal officer’s actions arose outside of the scope of his
federal employment -- and entered an order rejecting the Westfall Act certification and remanding the case to state court.
The Sixth Circuit vacated the District
Court’s order, and held that a Westfall Act certification is not improper simply because the Attorney General so certifies that the employee
acted within the scope of federal employment
based on a different understanding of the facts
that the Plaintiff alleges. Id. at 891-92. The Supreme Court agreed, finding that once the Attorney General so certifies, the Westfall Act applies
and the federal district court has exclusive jurisdiction to hear the case. Id. at 899. The federal
court can reinstate the employee as a defendant,
but only after factual finding that the employee
did not act within the scope of federal employment. Id. at 899-90. Although this process calls
for a non-jury determination of a central fact, it
does not violate the Seventh Amendment because there is no constitutional right to a jury
trial in an action against the sovereign. Id. at
900.
Statute of Limitations/False Imprisonment
Wallace v. Kato, 127 S.Ct. 1091 (2007). Plaintiff brought suit for false arrest in violation of
the Fourth Amendment based on his arrest and
conviction on murder charges that were later
dropped. Plaintiff argued that his claim accrued
upon his release from incarceration, and he
sought damages up to that point, but the Court

National Prison Project Journal

Volume 20, Issue 1

Continued from previous page

Case Law Review: U.S. Supreme Court Cases
held that his cause of action accrued once his
detention was authorized by the legal process
(i.e., when he appeared before the magistrate and
was bound over for trial). Because more than
two years elapsed between that date and the date
of filing, the claim was time-barred. Id. at 1097.
The Supreme Court stated that “there can
be no dispute that petitioner could have filed suit
as soon as the allegedly wrongful arrest occurred, subjecting him to involuntary detention,
so the statute of limitations would normally
commence to run from that date.” Id. at
1095. The majority decision rejected Justice
Breyer’s suggestion in his dissent that equitable
tolling should be applied until the state proceedings are finished. Id. at 1100.
Wilkie v. Robbins, 127 S.Ct. 2588 (2007).
Plaintiff brought Bivens claims against employees of the Bureau of Land Management, alleging
that they had engaged in extortion and a campaign of harassment to force him to grant an
easement through his land. The Court held that
the Plaintiff did not have a private action for
damages for the sort of claims recognized in
Bivens.
In Bivens, the Court held that a victim of
a Fourth Amendment violation by federal officers could bring a claim for damages. Here, the
Court describes the two-step analysis it goes
through to decide whether to recognize additional Bivens claims: (1) the Court considers
whether any alternative process exists for protecting the interest that amounts to a convincing
reason for the Judiciary Branch to refrain from
providing a new remedy, and (2) the Court
weighs reasons for and against the creation of a
new cause of action, the way common law
judges do. Id. at 2598-2600.
After the two-step analysis, the Court
found that there is no Bivens remedy in this
case. The government’s purpose in pursuing the
easement was legitimate, even if the employees
were unduly zealous. Id. at 2604. Additionally,

Page 21

the Court noted that a judicial standard to identify illegitimate pressure beyond “legitimately
hard bargaining” would be very difficult to establish. Id. Finally, the Plaintiff had administrative and other judicial remedies for the majority
of his grievances.
Panetti v. Quarterman, 127 S.Ct. 2842 (2007).
A prisoner convicted of capital murder sought a
writ of habeas corpus arguing that he was not
competent to be executed. The Court found that
the state court failed to provide the procedures to
which the petitioner was entitled because the
state court had reached its competency determination without holding a hearing or providing
petitioner with a sufficient opportunity to present
expert evidence. Additionally, the Court found
that the Fifth Circuit’s incompetency standard
was too restrictive to afford a prisoner Eighth
Amendment protection.
A prisoner is entitled a “fair hearing”
once he has made “a substantial threshold showing of insanity” and requested a stay of execution. Id. at 2856. The standard for competency
to execute is not simply an ability to understand
that one is going to be executed because of his
conviction, but rather it must be a rational understanding of that fact. “A prisoner’s awareness of
the State’s rationale for an execution is not the
same as a rational understanding of it.” Id. at
2862. In this case, the prisoner made a substantial threshold showing of insanity, and was
therefore entitled to a competency hearing to
present evidence of his alleged incompetency
under the Eighth Amendment. The Court also
held that a habeas petition based on present incompetency, brought when the claim is first ripe,
is not barred by the statutory prohibition on
“second or successive” habeas petitions. Id. at
2855.

National Prison Project Journal

Volume 20, Issue 1

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