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A PROJEG OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL 6, NO.4, FAll 1991 • ISSN 0748~;955

ACLUAwards Medal ofLiberty to Bryan Stevenson,
Stephen Bright
nJune 1991, the ACLU awarded its
Roger Baldwin Medal of Liberty to
Stephen B. Bright, director of the
Southern Center for Human Rights
(formerly the Southern Prisoners' Defense
Committee), and Bryan A. Stevenson, an
attorney with the Southern Center for
Human Rights and director of the
Alabama Capital Resource Center, in
recognition of their work on behalf of
death row inmates. The Medal of Liberty
is awarded biannually to a living American for distinguished contributions to
civil liberties in the United States. It
includes astipend of $25,000 and was
endowed by an anonymous donor who
fled Nazi Germany in the 1930s.
Former ACLU President Norman Dorsen
described the Medal as "a kind of Nobel
Prize of civil liberties." The Medal of
Liberty was established only recently, in
1989, and its first recipient was Anne
Braden. Braden is a lifelong civil rights

I

worker, labor organizer, and journalist.
Bright and Stevenson made the remarks
printed below at the awards ceremony at
the ACLU Biennial in Burlington, Vermont
onJune 29, 1991.

Remarks of Stephen B. Bright:
Iam most grateful to the American Civil
Liberties Union for this medal. Iam
especially grateful to the ACLU for
recognizing the capital punishment work
that we and others are doing. And of
course, we most appreciate the financial
award that accompanies this medal
because we urgently need it to carryon
the work.
Over twelve years ago, George Kendall
and Iwere contacted by Patsy Morris of
the Georgia ACLU and asked to prepare a
petition to the Supreme Court on behalf of
Donald Wayne Thomas, a poor, 18-year old
African American-severely handicapped
by schizophrenia-who had been sentenced to death in
Georgia.
Iwill never forget our
first look at the record
in that case. We were
horrified by what we
.:EOl saw. The entire record'" all the pleadings and the
~ transcripts of pretrial
::E hearings, jury selection,
Ji and trial-was about an
~ inch thick. It was less
(':J than 700 pages. The
j defense lawyer was
"8 terrible. The jury was
never told of Donnie's
"I can assure you that we will put [the award] to good
mental
handicap. Until
use in a living tribute to the ideals of Roger Baldwin-to
that
time,
I, like so many
shine the light of liberty, equal rights and racial
others in this country,
equality on some courts and communities where it has
never knew that a
never shone very brightly."- Stephen Bright
V)

"I feel quite fortunate to be engaged
in some small way in the struggle for
human rights for the very least among
us-to stand with those who most
desperately need the protection of the
Constitution. - Bryan Stevenson

person could be sentenced to death in
such a perfunctory proceeding. It was
simply alegal lynching.
Weare still horrified by what we see
today. The case on which Ihave been

working most recently involves a battered
woman,Judy Haney, sentenced to death
for the murder of her husband in
Alabama. Her case is one of the clearest
examples which show that the death
penalty is not restricted to punishing the
worst criminals for the worst crimes. Ms.
Haney was only a dangerto the man who
had abused her and her children for over
10 years. Nevertheless, she is one of
several battered women on Alabama's
death row.
During one morning of Ms. Haney's trial,
her court-appointed lawyer came to court
too drunk to go forward. The judge halted
the trial for the day and sent the lawyer
to jail. The next morning, he produced
both Ms. Haney and her lawyer from jail
and the trial continued. She was sentenced to death at the trial's conclusion.
The death sentence was vacated on
appeal and the case sent back for sentencing. We received notice at 5:30 p.m. one
Wednesday that Ms. Haney would be
resentenced the following Friday afternoon at 1:30. Even in the People's Republic
of China, the defendant gets more notice
than that. She was resentenced to death.
Just a couple of years after we took
Donnie Thomas' case, George Kendall and I
moved from Washington to Georgia to do
this work full time. George went to the
Georgia ACLU and did a magnificent job
bringing lawyers from all over the
country into this work-showing them
what we had seen in these cases, helping
them master capital litigation, vindicating
constitutional rights and saving lives.
And we have worked closely together to
this day. Any accomplishment that may
be attributed to me, George Kendall had a
major hand in it somewhere.
I am grateful as well for the help that
Al Bronstein has given us in the last 10
years. In those first few years in Georgia,
Al had more confidence in us than we had
in ourselves. I have no doubt that our
program wouldnot have survived had it
not been for the support and encouragement of Al Bronstein.
Weare particularly grateful to the
ACLU for recognizing this work at this
critical time. We realize that this award
does not so much recognize anything in
particular that Bryan and I have done, but
recognizes the importance of people
taking on the death penalty and the
importance of waging this battle in the
trenches-in some of the most Godforsaken parts of the country.
Today so many of our most precious
liberties are in jeopardy-liberties of all
citizens, including those of the upper and
middle classes. With the task of defending
2

FAll 1991

the important rights that protect us all
growing every day, there is a danger that
the importance of defending those parts
of the Bill of Rights which apply primarily to prisoners, the condemned, and
other despised members of the society
may be overlooked or forgotten. Or that
there will simply be no one left to defend
them.
But-as the American Civil Liberties
Union has so long recognized and recognizes again here tonight in presenting
these medals-it is the poorest, the
weakest, and the most powerless who
most desperately need the protections of
the Bill of Rights as a shield against the
passions of the moment.
The only currency that we have to
spend on behalf of those facing the death
penalty is the Bill of Rights. We represent
people who cannot call their Senators and
Congressmen and ask them to pass
legislation overruling a new Supreme
Court decision. Those condemned to die
cannot petition the state legislatures for
protections that are no longer available
from the federal government. Quite to the
contrary, they are victims of the most
vicious demagoguery.
This past week the UnitedStatesSenate
voted to enact legislationthat would remove
the availabilityof the once-greatwritof
habeascorpusfrom all prisoners,including
those under death sentence, if there has been
ahearing in statecourt. If passed by the
House, this legislationwill takeaway federal
courtenforcementof the entire Bill ofRights
with regard to the lifeand liberty of the
poorest and most powerless peoplein the
land. Yet it is being suggested in the Congress
that these most precious constitutional
protections may be traded away for very
modest gun control legislation. Surely,we
cannot do that
So weare most grateful to the ACLU for
recognizing the importanceof waging this
effortin the trenches on behalf of poor,
minority and disadvantaged personsfacing
the death penalty.
Atour shop, the$25,000that accompanies
this Roger Baldwin Medal of Liberty will
pay the salary and benefits for me or one
of our lawyers for over a year. Ican
assure you that we will put it to good use
in a living tribute to the ideals of Roger
Baldwin. That we will use it to shine the
light of liberty, equal rights and racial
equality on some courts and communities
where it has never shone very brightly
before, if at all. I hope that even in these
troubled times, we will help bring about a
new measure of justice in those places and
save some lives in the process.
Thank you very, very much.

Remarks of Bryan A. Stevenson:

Thank you very much. Iam deeply
honored by this award and by the very
kind words and introduction from Nadine
Strossen. This award from the ACLU is
truly special to me and it is a bit overwhelming for me to be here to receive
this.
I was talking to one of my clients on
death row yesterday and it was a very
difficult conversation. He was quite
discouraged about the events of the past
week and somew!tat hopeless about the
future. He had h~rd about the Supreme
Court's decision,in Payne v. Tennessee, a
decision that permits and encourages
states to introduce victim impact evidence
at the penalty phase of a capital trial for
consideration by juries in deciding
whether to impose the death penalty. It is
a very disturbing decision. This is so not
only because it undermines the opportunity of capital defendants to have an
impartial and rational decision made
about whether their lives have sufficient
purpose and value to avoid the death
penalty, but also because it sanctions the
already intolerable influence of race, class
and societal status in determining how
criminal justice is dispensed in this

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234·4830 FAX (202) 234·4890
The National Prison Project is a tax~exempt foundation-

funded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judicial channels; and to develop alternatives to
incarceration.
The reprinting of JOURNAL material is encouraged with
the stipulation that the National Prison Project JOURNAL
be credited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materials and suggestions
are welcome.

The NPPJOURNAL isavailableon16mm
microfilm,35mmmicrofilmand105mm
microfichefrom University Microfilms
International,300 North ZeebRd., Ann
Arbor, MI 48106-1346.
THE NATIONAL PRISON PROJEG JOURNAL

I

, . . . . , . , - - - - - - - - - - - -.._ . __. _ - - - - - - _ . _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

country. Acriminal justice system that
already devalues crimes committed
against racial minorities and poor people
is expressly authorized under Payne to
consider the tragedy of afour-year-old
murdered child whose mother is a
business executive differently from the
murder of a four-year-old whose mother
is a drug addict. This places an additional
burden on the poor and powerless within
the criminal justice system to prove their
pain, justify their tears, and to establish
that the victimization against poor and
marginalized people has "impact." My
client did not see how he had any hope
for relief in a judicial system that was so
dishonest about equal justice.
My client had heard about the Court's
decision in Coleman v. Thompson. In
Coleman, the Court had erected yet
another procedural barrier to correcting
even an undisputed violation of an
individual's constitutional rights by
precluding federal review of constitutional claims not adequately preserved in
state court. My client appreciated that
this most recent step in the march of form
over substance signaled agreater willingness to tolerate gross violations of
constitutional requirements out of
deference to state injustice and quicker
executions. My client did not see how he
had any hope for fairness when fairness
was so casually and effortlessly dismissed.
He had heard about the developments in

Congress. He knew that the Senate had
passed a bill that totally eliminates
federal habeas corpusfor death row
prisoners. He didn't see how he had any
hope for relief when the Senate had
eliminated the only opportunity for full
and fair review of his conviction and
death sentence by mindlessly passing
habeas legislation contained in the
President's crime bill.
My client knew ofjustice Marshall's·~·
resignation and he was just deeply};
discouraged because he could see no hope
for fair review of his case, he could see no
opportunity to have full constitutional
consideration of the problems he encountered during his trial. Iremember feeling
quite sad at the sense of despair that he
conveyed and I began to tell him that
sometimes you have to believe things
that you can't see. Itold him sometimes
you have to hope for things that you've
never had.
I thought about that idea as I came to
Vermont today to receive this award. It
is quite amazing to me to receive an
award for the work that I do as a
lawyer, mostly because when I was a
little boy I wanted to be a lawyer but I
had never seen or met a real lawyer. I
knew of the things that had become
possible because of lawyers, like
integrated school systems, which in my
community meant that little black
children could go to high school. Yet, to

Proving "Deliberate Indifference"
in the Wake of Wilson v. Seiter

I

n the Summer 1991 issue of the NPP
JOURNAL, john Boston presented an

extensive analysis of the Supreme
Court's decision in Wilson v. Seiter, 111
S.Ct. 2321 (1991).1 Regular readers of the
NPPJOURNAL undoubtedly noticed that
Mr. Boston's analysis differed in tone
from what they may have read elsewhere. Much of the media coverage of
the Wilson decision misleadingly
portrayed it as another 5-4 conservative
victory. The real legal significance of
Wilson is more complicated. In fact, the
Supreme Court unanimously ruled that
the Sixth Circuit had erred when it
applied a "persistent malicious cruelty"
standard to a prison conditions of
confinement lawsuit. Four members of
the Court would have gone further,
THE NATIONAL PRISON PROJECT JOURNAL

arguing that prisoners are not required
to make any shOWing about prison
officials' state of mind in order to
succeed in a cruel and unusual punishmentclaim.
The plaintiff, a prisoner at the
Hocking Correctional Facility in
Nelsonville, Ohio, contended that the
Eighth Amendment was violated by
conditions at the prison, including
overcrowding, excessive noise, insufficient locker storage space, inadequate
heating and cooling, improper ventilation, unclean and inadequate restrooms,
unsanitary dining facilities and food
preparation, and mixing mentally and
physically ill prisoners in dorms. The
district court granted summary judgment for the prison officials, and the

believe that I could become a lawyer
was to believe that I could be something
I'd never seen or experienced. Inever met
a lawyer until Ienrolled in Harvard Law
School and Imust admit that Iwas quite
horrified to find out exactly what they
were.
Yet,it is this dynamicof belief and hope,
sometimesin the face ofgreat uncertainty
and hopelessness, that compelsus to reach
out andstand with death row prisonersin
this country. Deathrow prisonersare the
most condemnEiP,despised and hated people
in oursociety. 1lteyhave literally been
rejected fromthe humancommunity. They
have beentold their lives have no meaning,
purpose or value. They have had to deal
with the reality of such harsh condemnation from a society that dares to judge
them while that same society accepts
and fosters the poverty, bigotry and other
injustices that this organization
so valiantly struggles against.
Ifeel quite fortunate to be engaged in
some small way in the struggle for human
rights for the very least among us-to
stand with those who most desperately
need the protections of the Constitution
and whose lives literally depend on the
development of a wiser, more just society:
Your work and your very kind recognition of our work is clearly a critical part
of the effort in creating that more just
society and Iam very, very grateful.
Thank you very much.•
Sixth Circuit Court of Appeals affirmed.
The Supreme Court, in an opinion by
justice Scalia, reversed the Sixth Circuit.
The Court said that the Sixth Circuit
had erred by requiring that the prisoner
show that prison officials acted with
"persistent malicious cruelty" in order to
prove that conditions of confinement
violated the Eighth Amendment.
Rather, prisoners need prove only that
prison officials were "deliberately
indifferent" in allOWing unconstitutional conditions to exist.
The majority opinion noted that the
prison officials in this case had not
claimed that lack of funds were
responsible for the failure to provide
decent conditions, and the Court did not
decide whether such a defense would
succeed. The opinion did not explore
how prison litigators could prove a
deliberately indifferent state of mind.
In addition, the lower court had said
that some of Mr. Wilson's claims,
including those involving overcrowding
and the failure to separate mentally and
physically ill prisoners, did not allege
FALL 1991 3

•
conditions bad enough to violate the
Eighth Amendment. The Supreme Court,
while not expressing a view on the
specific claims of the prisoner, held that
some conditions of confinement may
establish an Eighth Amendment
violation in combination with other
conditions, when the conditions have a
mutually enforcing effect that produces
deprivation of a specific human need,
such as food, warmth or exercise.
Four members of the Court concurred
only in the judgment vacating the
decision and remanding the case to the
Sixth Circuit. Justice White, in an
opinion joined byJustices Marshall,
Blackmun, and Stevens, argued that it is
unnecessary to examine prison officials'
state of mind to determine whether the
Eighth Amendment has been violated.
The concurrence expressed special
concern that the majority's intent
requirement "likely will prove impossible to apply in many cases. Inhumane
prison conditions often are the result of
cumulative actions and inactions by
numerous officials inside and outside a
prison, sometimes over a long period of
time. In those circumstances, it is far
from clear whose intent should be
examined, and the majority offers no
real guidance on this issue." 111 S.Ct.
at 2330.
This case is important because the
Supreme Court unanimously reversed
the Sixth Circuit's application of a
"malice" state of mind requirement to
prison conditions lawsuits. It is also
important because the Supreme Court
reinstated the overcrowding and
failure-to-classify claims dismissed by
the Sixth Circuit on the ground that
they did not rise to the level of an
Eighth Amendment violation.
Although the decision was a victory,
there is troubling language in the
majority opinio.p byJustice Scalia,
including the majority's failure to
clarify how prison litigators will show
that officials have a deliberately
indifferent state of mind, particularly
when officials claim that they were
prevented from acting by lack of funds.
In an attempt to assist prison litigators
on some of the issues raised by Wilson,
we reprint below an edited and abbreviated version of the brief that we
submitted to the district court on
remand in the Wilsoncase. 2
FACTS
Pearly Wilson is a prisoner at the Hocking
Correctional Facility (hereinafter "HCF") at
Nelsonville, Ohio. The defendants were, at
4 FAll 1991

the time the complaint was filed, Richard
Seiter, director of the Ohio Department of
Rehabilitation and Corrections, and Carl
Humphreys, superintendent of the HCF. On
August 28, 1986, the plaintiff filed a
complaint challenging a number of conditions of confinement, including overcrowding, excessive noise, lack of heat and warm
clothing, excessive heat in summer because
of a lack of ventilation, dirty and malodor- .
ous toilet facilities, unsanitary food service~
and a lack of classification and the mixingc'S
of physically and mentally ill prisoners in
the dormitory.
On November 10, 1986, plaintiff Wilson
filed for summary judgment. In the
affidavits accompanying the motion,
plaintiff alleged that onJuly 8, 1986, or a
month and a half before filing suit, he had
sent defendants Seiter and Humphreys a
three-page certified letter detailing the
conditions of confinement challenged in the
complaint. Defendant Seiter never responded to that letter. Defendant
Humphreys responded but failed to take any
action to alleviate the conditions; he simply
referred the letter to HCF unit manager
Friend. Mr. Friend did not, and could not,
take any actions to correct the conditions at
HCF, because he lacked any authority to do
so. At no point did defendants assert that
their failure to take corrective action was
due to a lack of funds. Wilson v. Seiter, 111
S.Ct. at 2326.

ARGUMENT
I. WHETHER DEFENDANTS SEITER AND
HUMPHREYS ACTED WITH DELIBERATE
INDIFFERENCE CANNOT BE RESOLYED ON
SUMMARY JUDGMENT
A.TheStandardforSummaryJudgment
Aparty requesting summary judgment has
the burden of demonstrating that there is no
genuine issue as to any material fact.
Pursuant to Fed.R.Civ.P. 56(c), in the absence
of such a demonstration, the party cannot be
granted summary judgment. See lOA Wright,
Miller & Kane, FederalPractice and
Procedure: Civil2d §2727.
For the reasons given below, if plaintiff
establishes the facts alleged in his affidavits,
he will have established that the defendants
were deliberately indifferent and that he is
entitled to an injunction against the
conditions of confinement that violate the
Eighth Amendment. Accordingly, summary
judgment is inappropriate.
B. The Defendants'DeliberateIndifference
The defendants have an affirmative
obligation under the Eighth Amendment to
provide prisoners with the basic necessities
of life. See, e.g., DeShaney v. Winnebago
CountyDSS, 109 S.Ct. 998, 1005-1006 (1989).
Because the consequences of the failure to

perform this affirmative duty are obvious
and foreseeable, such failures are deliberately indifferent under the standard set
forth in City ofCanton, Ohio v. Harris, 109
S.Ct.1197, 1205 (1989), the Supreme Court's
leading case on deliberate indifference.
Justice O'Connor, in her concurring
opinion in City ofCanton, indicated that the
deliberate indifference standard for a
municipality could be satisfied "where it can
be shown that policymakers were aware of,
and acquiesced in, a pattern of constitutional
violations involviftg the exercise of police
discretion." 109&~i. at 1209.
Consistent with this analysis,Justice
O'Connor's opinion characterizes the
"deliberate indifference" standard adopted
by the Court in City ofCanton as involving
"tacit authorization" by city policymakers.
Justice O'Connor's opinion cites four
appellate decisions, described below, as
properly applying the "deliberate indifference" standard. Under the standard as
applied in all four of the cases, the defendants' failure to act in response to notice of a
pattern of unconstitutional conditions is
enough to show deliberate indifference.
In Fiacco v. City ofRensselaer, N. Y. ,783
F.2d 319 (2nd Cir.1986), the Second Circuit
upheld a finding of liability against a city
based on the city's failure to supervise the
police officers who injured the plaintiff.
The court held that evidence of notice of
claims of police brutality demonstrated a
"policy of negligent supervision rising to the
level of a deliberate indifference to the
violation of constitutional rights." Id. at 327.
Similarly, in Patzner v. Burkett, 779 F.2d
1363,1367 (8th Cir.1985), the court stated
that a municipality may be liable for failure
to train or supervise its police officers if it
had notice of prior misbehavior by its
officers and failed to take remedial steps,
amounting to deliberate indifference to the
offensive acts. In Languirand v. Hayden, 717
F.2d 220, 226-227 n.7 (5th Cir.1983), the court
indicated that one way to demonstrate
municipal liability was to show notice of
prior misbehavior and a failure to act.
Finally, in Wellington v. Daniels, 717 F.2d
932,936 (4th Cir.1983), the court stated that
a failure to supervise gives rise to §1983
liability on the part of a municipality when
there is a history of widespread abuse, so
that knowledge can be imputed to the
supervisory personnel.
Accordingly, the four court of appeals
decisions discussed above and cited by
Justice O'Connor as correctly applying the
"deliberate indifference" standard set forth a
consistent test: knowledge of the constitutional violations and failure to act. Because
Justice O'Connor's opinion in City ofCanton
argues for a narrower standard of liability
THE NATIONAL PRISON PROJECT JOURNAL

l

L

than the majority opinion, deliberate
indifference indisputably includes the
situations described in these four cases.
Nothing in the Supreme Court's opinion
in Wilson v. Seiter indicates any change in
the standard for demonstrating deliberate
indifference on the part of prison officials.
For example, in Wilson the Court quoted
with approval from LaFautv. Smith, 834 F.2d
389 (4th Cir.1987). In that case, former
Justice Powell, sitting by designation, found
that prison officials had acted with
deliberate indifference when defendants
were aware that the plaintiff had inadequate toilet facilities, but it was two
months before any "significant" attempt to
modify the toilet facilities took place and
three months before the prisoner was
transferred to a room with adequate
facilities.
See also Powell v. Lemmon, 914 F.2d 1459
(lIth Cir.1990). In that case, the prisoner
plaintiff wrote to the Unit Manager
complaining that he was being exposed to
asbestos in his dormitory. The Unit Manager
stated that the matter fell outside the scope
of his authority, so the plaintiff sent the
letter to the defendant warden, who never
responded to the letter. [d. at 1461. The
court of appeals reversed dismissal of the
case, holding that the defendants were not
entitled to qualified immunity for their
deliberate indifference.
In this case, plaintiff's affidavits specifically contend that defendants had knowledge of the conditions denying the basic
necessities of life because plaintiff notified
the defendants about the conditions more
than six weeks before the complaint was
filed, yet defendants took no action to
change the conditions.
Accordingly, the defendants had knowledge of the facts constituting a denial of the
basic necessities of life. 3 They also had an
affirmative obligation, as a matter of law, to
supply those necessities. By virtue of their
positions as dJ.rector of the Department and
superintendent of the facility, they had the
power to remedy the complaints. For
example, the Superintendent had the power
to enforce sanitary procedures regarding
food services and the toilet facilities, to
repair the windows so that they would open
in summer, to install fans sufficient to
provide ventilation, to assure that the heat
was working and that prisoners had warm
clothing in the winter, and to patch the
holes in the walls. The director of the
Department necessarily had the power to
order prisoners classified by mental illness
and infectious disease status, so that such
prisoners would not be placed without
screening in the dormitories at HCF. In
particular, the defendants never suggested,
THE NATIONAL PRISON PROJEO JOURNAL

nor could they, that they lacked the power
to make the changes that would have
rendered the facility constitutional. 4
Plaintiff's affidavits necessarily created
an issue of material fact regarding defendants' deliberate indifference. Moreover,
continuing conditions of confinement diff~'
in fundamental ways from incidents of .,A;
police brutality. Police misconduct involver
individual acts, and these individual act~.afe'
generally not continuing in nature. Thu~
when a municipality ultimately receiv~
notice regarding a continuing practice of
police brutality requiring action, that notice
consists of information about a number of
past individual acts; municipal liability cases
never involve situations in which
policymakers received actual notice of an
incident of police misconduct that was still
in progress. Proof of deliberate indifference
in such circumstances requires that
policymakers have notice of a pattern of
incidents because otherwise policymakers do
not have compelling reasons to assume that
objectionable conduct will recur. In
contrast, the conditions of confinement
challenged in plaintiff's complaint are
intrinsically continuing conditions; the
sanitation and the ventilation violations, for
example, will not abate until someone takes
affirmative action to change the conditions.
The conditions challenged by plaintiff are
also obvious conditions. All the defendants
had to do was walk through the institution
for which they are responsible to see the
problems. Accordingly, the plaintiff's actual
notice to the defendants, coupled with the
defendants' failure to act, was more than
enough to establish deliberate indifference
under the standard endorsed by the Supreme
Court.
Finally, the plaintiff's complaint was filed
in August 1986. It makes no practical sense,
for the purposes of injunctive relief, to
determine whether or not the defendants
were deliberately indifferent in 1986. At
this point, defendants have had five years of
notice of the conditions of confinement
alleged by plaintiff, and failure of the
defendants to remedy any of the conditions
that the Sixth Circuit characterized as
"suggest[ing] the type of seriously inadequate
and indecent surroundings necessary to
establish an eighth amendment violation" 5
would clearly demonstrate deliberate
indifference. Accordingly, the appropriate
procedure is for this Court to deny summary
judgment and to reopen discovery so that the
parties can present their proof as to the
current realities of the conditions at the HCF.

SUMMARY JUDGMENT SHOULD BE
DENIED ON PLAINTIFF'S CLAIMS
In vacating the judgment of the Sixth

Circuit, the Supreme Court vacated the
dismissal of plaintiff's claims regarding
excessive heat, failure to classify so that
mentally and physically ill prisoners were
mixed in the dormitories, and overcrowding.
Wilson at 2327. Although the Supreme Court
expressed no opinion on the Sixth Circuit's
discussion of the specific Eighth Amendment
claims, the Court did give some guidance in
application of the Eighth Amendment test to
the totality of prison conditions:
Some conditions ofconfinement may
establish an Eihl!th Amendment violation
"in combinatifJ/'» when each would notdo so
alone, butonly when they have a mutually
enforcing effect thatproduces the deprivation ofa single, identifiable human need
suchasfood, warmth, orexercise,jor
example, a low cell temperature atnight
combined with afailure to issue blankets.
[d.

The claims in this case do interact so that
none of the claims should have been
dismissed. For example, the claims that the
dormitory is overcrowded cannot be
evaluated without considering the claims of
filth, lack of ventilation, and mixing of
physically ill prisoners into the general
population. Certainly the adequacy of the
ventilation is directly related to the degree
of crowding in the facility. The reasonableness of using two fans to supply ventilation
for a dormitory turns on the number of
bodies in the dormitory. Minimally adequate
ventilation for 143 prisoners is different
from the ventilation necessary for the
smaller number of prisoners that could be
accommodated were the dormitory not
double-bunked. Similarly, the overcrowding
may have caused the lack of sanitation in
the dormitory. Sanitation procedures that
may have been barely adequate before
overcrowding may have been overwhelmed
by the numbers of prisoners. Accordingly,
the allegations of filth, vermin infestation,
and build-up of urine around the toilets and
urinals may well be related to the greater
pressure on the sanitation of the facility
resulting from the increase in population.
Thus, the overcrowding has a "mutually
enforcing effect" with the sanitation
procedures that in combination may result
in a deprivation of sanitation. Plaintiff also
alleged that prisoners recovering from
surgery, including prisoners with open sores,
were put into the dormitories as a result of a
shortage of space in the infirmary. Again,
this allegation suggests an interrelation
between overcrowding and the other claims
of the plaintiff.
In addition, the plaintiff alleged that
defendants were planning steps that would
exacerbate the lack of adequate ventilation,
(cont'd onpage12)
FALL 1991

5

A PROJEG OF THE AMERICAN CIVil LIBERTIES ~NION FOUNDATION, INC.
VOl. 6, NO.4, FAll 1991 • ISSN 0748-2655'"

Highlights of
Most Important
Cases
What difference does Wilson v. Seiter make?
"Not much," we suggested in the last issue of
the JOURNAL. We argued that the Supreme
Court's adoption of "deliberate indifference" as
an element of all Eighth Amendment
conditions of confinement claims simply
ratified existing lower court practice. This is
true both for medical care and inmate assault
cases, in which deliberate indifference has
long been the governing standard, and for
other conditions cases, in which the courts
have in practice required proof of deliberate
indifference without invoking that phrase.
Logical enough, but do the courts agree? The
first post- Wilson opinions give divergent
answers.
In Albertiv.SheriffofHarrisCounty, Texas,
937 F.2d 984 (5th Cir.1991), the twenty-year
effort to ensure constitutional conditions in
the jails of Houston, has collided with the "epic
struggle" of Texas with its prison populations,
and specifically with the order in Ruizv.
Estelle limiting crowding in Texas prisons. The
backup of "ready-felons"-inmates sentenced
to state custody hut remaining in local jailsthreatened to frustrate the jails' substantial
progress toward compliance with a1975
consent judgment and with subsequent orders
designed to ensure humane conditions. At one
point, 2,800 to 2,900 prisoners were sleeping on
the floor at night, largely because of the readyfelon backup.
In previous proceedings, state officials were
joined as third-party defendants, and the Fifth
Circuit directed traffic between the Alberti
and Ruizcourts by transferring to the Ruiz
court any request for relief requiring the
transfer of prisoners into state custody or
otherwise intervening in the state prison
system. In reClements, 881 F.2d 145 (5th Cir.
1989). In subsequent joint proceedings in what
6 FAll 1991

the appeals court called an "intricate fracas,"
the Alberti and Ruizcourts entered orders
requiring population reductions in the jails, by
means of releases of inmates if necessary. The
Alberti court later ordered additional relief,
including payments by the state to the county
for housing ready-felons. Both state and
county appealed from the findings of a
continuing constitutional violation, reached in
late 1989, and all the subsequent remedial
orders.
Wilson v. Seiter was decided while the
appeal was pending. In supplemental briefs,
the state and the county each argued that the
other, and only the other, had acted with
deliberate indifference towards the "objectively cruel" conditions in the jails. Since the
district court had made no findings concerning
deliberate indifference, the appellate court
remanded so those findings could be made, but
not without commenting on the parties'
contentions. It observed that Wilson itself, as
well as lower court cases on which Wilson
relied, support the view that knowledge of
objectively cruel conditions can support a
finding of deliberate indifference. Here, the
conditions were well known and undisputed.
The Court also observed that the state had
means to accept the backed-upprisoners
without violating the Ruizdecree: building
new prisons, contracting with other suitable
facilities, or releasing inmates early pursuant
to state statute. Thus,
[tjhere is no doubt thatthe relevantstate
officialsknew thatreadyjelons were being
backloggeddespite the objectivelycruel
conditions in the county'sjails. Yet the state
chose to leave them in thejails. This isstrong
ifnotcompellingevidence ofdeliberate
indifference to theplightofthese readyfelons, and it is onlyaccented bythe
alternativesavailable to thestate .
The state's argument that it was thwarted by
the state legislature's failure to provide
funding was rejected for lack of factual
support; the appeals court thus did not reach
the question whether such a defense has merit
under Wilson.
In short, the Court concluded, a finding of
deliberate indifference by the state "would be
virtually unassailable" on this record; it

remanded the case ~nly because "[f]actfinding
is a province of the,ldistrict court."
The Court found the case less clear-cut with
respect to the county's liability. On one hand,
the county was faced with a huge increase in
the ready-felon population in a short period of
time. On the other, there also were significant
problems in the jails' plumbing, ventilation,
fire safety, supplies, food service and medical
care, and the jail would have been overcrowded even without backed-up ready-felons.
In its deliberate indifference analysis, the
most striking aspect of the Albertiopinion is
its consistent focus on the actual behavior of
state and county governments when confronted with "objectively cruel" conditions. It
neither explores the actual state of mind of
any of the defendants nor directs the district
court to do so. For this court-as for most
courts before Wilson v. Seiter-deliberate
indifference remains as much a state of fact as
astate of mind.
Asmaller-scale illustration of this approach
appears in Arce v. Miles, 1991 WL 123952
(S.D.N.Y.,]une 28, 1991), an unreported
magistrate's opinion. The plaintiff alleged that
for a four-month period he was subjected to
construction noise so injurious that he now
requires a hearing aid. The court held that the
plaintiff's allegation "that prison authorities
supplied ear plugs to guards and workers but
not to inmates, if true, would satisfy the
'deliberate indifference' standard" by
establishing "either actual knowledge, or
constructive knowledge as a supervisory
official," of the dangerous conditions.
Adifferent approach was taken by the
Seventh Circuit in Steading v. Thompson, 1991
WL 158070, No. 90-2588 (7th Cir., August 19,
1991), a challenge by an asthmatic prisoner to
exposure to environmental tobacco smoke.
Two federal circuits have recently held that
such exposure can violate the Eighth Amendment. McKinneyv. Anderson, 924 F.2d 1500
(9th Cir.1991); Clemmons v. Bohannon, 918
F.2d 858 (10th Cir.1990), rehearingand
rehearingen bancgranted. The Steading
court stated that these holdings are effectively
overruled by Wilson v. Seiter's requirement
that a "culpable mental state" be shown to
establish "punishment."
THE NATIONAL PRISON PROJEG JOURNAL

I

I

Thisapproach establishesahurdleSteading
cannotsurmount. Secondary tobacco smoke
is common in offices, restaurants, andother
publicplaces throughoutthe UnitedStates
and the restofthe world. No onesupposes
thatrestaurateurs who allowsmokingare
subjectingtheirotherpatrons to "punish
ment»ordesire to harm them. Theguards
andadministrators who breathesmokyair
in theprison are notpunishing themselves.
No one wouldsuppose, either, thatthe
gentlemen tobaccofarmers who wroteand
adopted the eighth amendmentcouldhave
conceivedofsmokeaspunishment ....
The trouble with this construction of Wilson
is that it has little to do with what Wilson
actually said, expressing instead the Court's
own idiosyncratic view of what constitutes
punishment. The Wilson Court stated that in
prison conditions cases, the punishment
inquiry is to be guided by "the 'deliberate
indifference' standard articulated in Estelle."
111 S.Ct. at 2327. Insofar as Wilson defines
deliberate indifference, it relies on the large
body of lower court interpretation of Estelle.
These cases generally hold that deliberate
indifference "encompasses acts oromissions so
dangerous (in respect to health and safety)
that a defendant's knowledge of [a large]...risk
can be inferred." Cortes-Quinones v.jiminezNettleship, 842 F.2d 556, 558 (lst Cir.1988), cited
in Wilson v. Seiter, 111 S.Ct. at 2327 (internal
quotation marks omitted, emphasis supplied);
accord, Canton v. Harris, 489 u.s. 378, 389-90
(l989) ("the need for more or different
training [maybe] so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of
the city can reasonably be said to have been
deliberately indifferent to the need").
The factors cited in Steading have little
relationship to the deliberate indifference
standard as developed in the federal courts.
The prevalence of second-hand smoke outside
prison certainly has little relevance. After all,
assaults and bad medical care are also
prevalent in some places outside prison; that
fact does not undermine Estelle v. Gamble and
Cortes-Quinonesv.jiminez-NettleshijJ .
Similarly, the generations of builders who
insulated prisons and other buildings with
asbestos had no intention to inflict punishment; that hardly absolves present-day prison
officials who knowingly fail to abate a
hazardous asbestos condition. Powell v.
Lennon, 914 F.2d 1459, 1463 (11th Cir.1990)
(exposure of prisoners to asbestos constituted
deliberate indifference).
It is particularly striking that Steading was
dismissed, and the dismissal affirmed, on the
pleadings. Despite the appeals court's
statement that Wilson "establishes a hurdle
Steading cannotsurmount" (emphasis
supplied), the deliberate indifference inquiry is
THE NATIONAL PRISON PROJEG JOURNAL

usually factual in nature, involving some
assessment of the degree of risk posed to the
plaintiff and the defendants' knowledge of the
risk (or its obviousness). Here, the factual
inquiry was apparently limited to the appellate
court's judicial notice of contemporary
restaurant conditions and the Founders' min~'
set and agricultural practices.
,~~

Other Cases
Worth Noting
U.S. SUPREME COURT
Attorneys' Fees and Costs
West Virginia University Hospitals, Inc. v.
Casey, 439 U.S. - - ' 111 S.Ct.1138, 113 L.Ed.2d 68
(1991). Expert witnesses appearing at trial are
compensated at $30 a day under 28 U.S.C.
§§1821(b) and 1920. Nontestimonial expert
services are not compensable at all under these
statutes. Neither testimonial nor nontestimonial services are compensable under 42
U.S.c. §1988.
Cruel and Unusual Punishment
Harmelin v. Michigan, 501 U.S - - ' 111 S.Ct.
2680,115 L.Ed.2d 836 (1991). Astatutorily
mandated sentence of life without possibility
of parole, with no consideration of mitigating
circumstances of the crime or the criminal, did
not violate the Eighth Amendment. There is
no majority opinion. Justices Rehnquist and
Scalia conclude that "the Eighth Amendment
contains no proportionality guarantee" and
that the 1983 case of Solem v. Helms should be
overruled.
U.S. COURT OF APPEALS
Administrative Segregation/
Financial Resources/Cruel and
Unusual Punishment
McCord v. Maggio, 927 F.2d 844 (5th Cir.
1991). In this pre- Wilson v.Seiter decision, the
plaintiff spent months in a "Closed-Cell
Restriction" cell that was flooded with sewage
and foul water with a bare mattress to sleep
on. These conditions violated the Eighth
Amendment. "[L]ack of funds is not a
sufficient justification for neglect of a
citizen's constitutional rights." (847) The
possibility that inmate vandalism was a
partial cause of sewage backup was not
dispositive of the plaintiff's claim.
The conditions of the plaintiff's confinement constituted a "clear violation of the
Eighth Amendment" and the defendants are
not entitled to qualified immunity unless they
can show some "extraordinary circumstances."
(848) This standard may be met if budgetary
constraints prevent constitutional compliance,
though the defense carries a "difficult burden"

on this point. The magistrate should
determine the truth of the claim and whether
there was any feasible alternative for housing
the plaintiff.
To recover damages, the plaintiff must be
found to have endured "pain, suffering, and/or
mental anguish sufficiently significant to
justify monetary relief," but not "lasting harm."
(849) The court presents this as an extension
of the "significant injury" requirement it has
imposed in use of force cases which is now
before the U.S. Supreme Court in Hudson v.
McMillian, #90"!P.531 (argument scheduled for
November 13, 19M.
··;''1l

Protectiorihom Inmate Assault
Moore v. Winebrenner, 927 F.2d 1312 (4th Cir.
1991). Inmate assault cases are governed by a
deliberate indifference standard and not a
negligence standard, and the two standards are
not the same thing. The question is whether
the warden acted "obdurately or wantonly." In
making the last statement, the court quotes
Whitley v. Albers but ignores Whitlejs holding
that, in effect, deliberate indifference can
constitute obdurate and wanton conduct.
(This point was reaffirmed in Wilson v.
Seiter.) The court also states incorrectly that
Whitley rejected the contention that its
holding is limited to the prison riot context.
Assuming that there was a pervasive risk of
assault, the warden could not be held liable
where he "embarked on a persistent campaign
to rectify the situation" (l316) and "did the best
he could under a regrettable set of circumstances and considerable handicap" (1317). His
campaign of renovations and staffing
enhancements was begun before the plaintiff
was assaulted but was not completed until
afterwards.
Use of Force
Davis v. Mason County, 927 F.2d 1473 (9th Cir.
1991). Damages were properly awarded against
the county for misuse of force by sheriff's
deputies where lack of training amounting to
deliberate indifference was shown and the
Sheriff was the policymaker with respect to
use of force training.
Remedial measures by the municipality did
not bar punitive damages against the individual defendants. Punitive damages may be
awarded despite the absence of compensatory
damages.
Contempt/Consent Decrees/Mental
Health Care
Langton v.Johnson, 928 F.2d 1206 (lst Cir.
1991). Inmates of a hospital for "sexually
dangerous persons" alleged constitutional
violations and contempt of a prior consent
judgment.
The district court properly refused to
consider the constitutional claims because the
FALL 1991

7

consent judgment set a standard for treatment
higher than constitutional requirements. "[I]f a
court can resolve a dispute without confronting an unsettled constitutional issue, it should
proceed in that fashion." (1217)
The district court properly exonerated the
defendants of contempt even though it appears
that they were not in compliance with all its
requirements. Perfection is not required;
"progress, after all, should not be reduced to a
mere numbers game." (1220) The decree is
"susceptible to satisfaction by diligent, good
faith effort, culminating in substantial
compliance." (1220) The district court
properly concluded that "in light of the
defendants' notable progress, there was
substantial compliance with the overall
mandate of the consent decrees, and hence, no
contempt...."
In private law litigation, appellate courts
have "greater freedom" in reviewing the
interpretation of consent decrees than in
public law litigation, where "the district court's
construction of a consent decree should be
accorded considerable deference, because
broad leeway is often necessary to secure
complicated, sometimes conflicting, policy
objectives." (1220-21) The court goes on at
some length about the trial judge's "pivotal role
in the conduct of public law litigation."

Use of Force/Qualified Immunity
Streetv. Parham ,929 F.2d 537 (10th Cir.
1991). Where the jury found that the force
used by police officers was unreasonable, there
was no basis for finding the officers entitled to
qualified immunity. At 540: "No officer could
reasonably believe that the use of unreasonable force did not violate clearly established
law....This is one of the rare instances where
the determination of liability and the
availability of qualified immunity depend on
the same findings."

Medical Care-Denial of Ordered
Care/Qualified Immunity
Kaminskyv.Rosenblum, 929 F.2d 922 (2d Cir.
1991). Defendantswere not entitled to
summary judgment on qualified immunity
grounds in a prison medical care case in which
there were disputed factual issues that would
"seriously undermine their argument that it
was objectively reasonable for them to believe
their acts lawful" if decided in plaintiff's
favor. The disputed allegations were whether
there was a five-day delay in acting on a
recommendation for immediate hospitalization, whether the Superintendent and the
medical administrator knew of the prisoner's
deteriorating medical condition during an
unexplained three-month gap in his medical
treatment, and whether they were aware of
previous allegedly inadequate medical care.

Use of Force-Beating

Protection from Inmate Assault

Hudson v. McMillian, 929 F.2d 1015 (5th Cir.
1991). Force that was unreasonable, malicious
and sadistic did not violate the Eighth
Amendment in the absence of "significant
injury." The plaintiff alleged that his lip was
split, his dental plate was cracked, and he was
bruised, but the court does not consider this
significant.
The Supreme Court has granted certiorari in.
this case. (Note: In April 1991, the Court
.
appointed Alvin]. Bronstein of the National ';'
Prison Project to represent petitioner.
Argument is scheduled for November 13, 1991.
See Highlights, p. 20.)

Andrewsv. Siegel, 929 F2d 1326 (8th Cir.
1991). The plaintiff and another inmate had
an argument at work and were separated by
other prisoners; the incident was witnessed by
staff. The next day the other inmate stabbed
the plaintiff.
To prevail in an inmate assault case, the
plaintiff "must show that he was faced with a
'pervasive risk of harm' and that the prison
officials failed to respond reasonably to that
risk." Although the court uses the phrase
"pervasive risk," m~t often found in cases
alleging a generali~d lack of safety rather
than a risk from-3:~specific inmate, the court
analyzes the specific risks posed by the
assailant in the usual fashion of individualthreat cases, concluding that neither a single
prior argument nor the assailant's history of
mental illness was sufficient to place
defendants on notice of the danger of assault.

Food/Qualified Immunity
Cooper v. Sheriff, Lubbock County, Texas, 929
F.2d 1078 (5th Cir.1991). The plaintiff's
allegation that he was denied food for 12
consecutive days should not have been
dismissed as frivolous. The officials responded
that they had a rule that an inmate who
refuses to "fully dress" for a meal "voluntarily
rejects" the meal, but the plaintiff denied this,
there was no copy of the regulation in the
record, and in any case the existence of such a
regulation "is not an automatic shield against a
civil rights suit." It is "questionable" whether
meals are a "privilege" that can be taken by
regulation. (1083)
"Because depriVing a prisoner of adequate
food is aform of corporal punishment," the
Eighth Amendment imposes limits on it. Due
process also forbids deprivation of food
without due process.
The plaintiff's allegation that the defendants acted outside their authority because the
regulation did not permit their actions was
sufficient to overcome qualified immunity at
the pleading stage. The right to "reasonably
adequate food" has long been established.

Searches-Person-Visitors/Procedural
Due Process-Visiting/
Qualified Immunity
Long v. Norris, 929 F.2d 1111 (6th Cir.1991). In
the mid-1980s, it was not clearly established
that visitors had the right to be free from strip
and body cavity searches without probable
cause, but it was clearly established that they
had the right to be free of such searches
without reasonable suspicion.
Prison regulations stating that prisoners
"shall" have visitation rights "limited only by
the institution's space and personnel resources"
and that they may be suspended only with
"good cause" created a liberty interest
protected by due process. Threats to remove it
in retaliation for refusing an illegal search,
without procedural protections, violated
clearly established rights.

Medical Care-Denial of Ordered Carel
Qualified Immunity
Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir.
1991). The plaintiff was returned to prison
after surgery for a gunshot wound with orders
for daily dressing changes and Motrin. He was
then transferred to a local jail, where he was
placed in a holding cell with no beds for five
days and received no dressing changes or
medication. He stated that he repeatedly asked
the nurses for help and they refused to call the
doctor or provide any treatment.
Defendants were not entitled to summary
judgment. "[I]nterruption of a prescribed plan
of treatment" is one of the forms of deliberate
indifference identified in Estelle.
The defendant is not entitled to summary
judgment based on qualified immunity because
this defense is available only to persons
exercising "discretionary functions." "Complying with a doctor's prescription or treatment
plan is a ministerial function, not adiscretionary one." (1156)

Contempt/Consent Decrees/Judicial
Disengagement/Searches-living
Quarters
Kendrick v. Bland, 931 F.2d 421 (6th Cir.
1991). Astatewide prison conditions case was
resolved by consent decree and was placed on
the inactive docket after a finding of
substantial compliance. The district court
ruled that it would take "major violations of
the consent decree" to reinstate it.
Several class members later moved for
contempt. The court held that "major
violations" meant "institution-wide violations."

Medical Care-Standards of LiabilityDeliberate Indifference/Summary
Judgment
Hughes v.JolietCorrectionalCenter, 931 F.2d

8 FAll 1991

THE NATIONAL PRISON PROJEO JOURNAL

425 (7th Cir.1991). The plaintiff arrived in
prison with a spinal injury; he complained for
six weeks about weakness in his legs and pain
in his back before he saw a neurologist, by
which time he was paraplegic.
If the defendants "were merely careless in
their diagnosis and treatment...-being honestly
convinced that he was a malingerer," the
plaintiff should be pursuing a malpractice
action. If they were "trying to cripple" him,
the Eighth Amendment would be violated. An
Eighth Amendment claim was also stated by
the "less egregious" misconduct alleged by the
plaintiff: that the defendants
were treatingHughes notasapatien~ butas
a nuisance;...thatalthough theydoubtless
underestimatedtheseverityofhisinjuries,
atthesame time they were insufficiently
interested in hishealth to take even
minimum steps toguardagainstthe
possibilitythatthe injury wassevere. Such
wordsanddeedsas tellingHughes he was
full of bullshi~ shiftinghim to the
psychiatric ward wherehe would notbe
allowed to havehiscrutchesand leg brace,
andorderingthe bed movedawayfrom the
toiletso thatHughes wouldhave togetup
and walk to it...suggestmore than mere
neglectsuggesthostility, brutality, even
viciousness.
Medical records showing that the plaintiff
received "more or less continuous medical
attention, of sorts" and that the defendants
genuinely thought he was malingering "greatly
undermine an inference of deliberate
indifference." The records were the only
evidence submitted on summary judgment.
However, the district judge, whose policy was
not to appoint counsel unless an evidentiary
hearing was scheduled, gave insufficient
thought to appointing counsel to help prepare
an affidavit to get the complainant's allegations into the summary judgment record.

Qualified Immunity
Romero v. Kitsap County, 931 F.2d 624 (9th
Cir.1991). At 627:
The plaintiffbears the burden of proof that
the right allegedly violated was clearly
established at the time of the alleged
misconduct....If plaintiff carries this burden,
then the officers must prove that their
conduct was reasonable even though it might
have violated constitutional standards.
The qualifiedimmunitytestnecessitates
three inquiries:(J) the identification ofthe
specific rightallegedly violated; (2) the
determination ofwhether thatrightwasso
"clearlyestablished»as toalerta reasonable
officerto itsconstitutionalparameters;and
(3) the ultimatedetermination Ofwhethera
reasonableofficercouldhave believed
lawfultheparticularconductatissue....The
first two inquiries...presentpure issuesOf
THE NATIONAL PRISON PROJEG JOURNAL

law....The third, although ultimatelya legal
question, may requiresomefactual
determinationsas well. (Citations and
footnote omitted.]
If the analysis reaches the third stage, the
court may permit limited discovery concerning
the reasonableness of the conduct.
11'
_if",

Procedural Due Process-Disciplina~¥' ' '
Proceedings,.'
Taylorv. Wallace, 931 F.2d 698 (10th Cir/;.
1991). The failure of a hearing committee!~
make an independent determination of thlt
reliability of confidential informant testimony
(on "[a]ny reasonable basis") denies due
process. At 702: "Without sufficient indicia of
reliability, the testimony of the confidential
informants can be given no weight, and the
requirements of due process as set forth in
[Superintendent v.] Hill are not satisfied."

Procedural Due Process-Disciplinary
Proceedings
Campbell v. Henman, 931 F.2d 1212 (7th Cir.
1991). The court reaffirms the holding of
Chavis v. Rowe (7th Cir.1981) that Brady v.
Maryland, requiring the disclosure of material
exculpatory evidence, applies to prison
disciplinary proceedings. The disclosure "may
be limited to its substance in situations where
disclosure of the entire report could create
security problems." (1214) Afinding that
information provided by confidential
informants is reliable does not end the
analysis; even if there is sufficient evidence to
support the conviction, the question whether
there was exculpatory evidence must be
answered.

Work Assignments
Gilbreath v. CutterBiologica4 Inc. ,931 F.2d
1320 (9th Cir.1991). The Fair Labor Standards
Act is an exception to the Eleventh Amendment and any claim for back wages against the
state was therefore not barred by that
Amendment.
Prisoners who worked for a private
company at a lab site inside the prison were
not "employees" entitled to the minimum wage
under the Fair Labor Standards Act. One judge
thinks that prisoners are perse not covered by
the Act. He goes on to write, and the concurring judge agrees, that these prisoners do not
meet the "economic realities" test because
neither the prison nor the company was an
"employer" within the statutory definition.

Correspondence-Legal and
Confidential
Lemon v. Dugger, 931 F.2d 1465 (11th Cir.
1991). An officer opened and read a letter from
the plaintiff's attorney. Ajury found for the
plaintiff. The fact that the letter contained a
photograph, arguably contraband, did not

constitute probable cause to read the letter as a
matter of law, and the issue was properly
submitted to the jury.

Prison Records/Procedural Due
Process
Monroe v. Thigpen, 932 F.2d 1437 (lIth Cir.
1991). Due process is denied by denial of parole
relying on admittedly false information even
if the parole statute does not create a liberty
interest in obtaining release.

DISTRICT COclRTS
'" ~~~'

Attorneys' Fees/Contempt
Morales Feliciano v. Hernandez Colon, 757
F.Supp.139 (D.P.R.1991). Private attorneys
pursuing systemwide litigation over prison
conditions without institutional support were
entitled to monthly fee payments from
contempt fines paid into court for violations of
population orders. The court notes in the
course of the opinion that the fees can be paid
from the interest on the accumulated fines
(over $30 million dollars) and that it does not
intend to give the money back to the defendants in any case. The court also notes that the
defendants have fought all prior fees motions .
"tooth and nail" and delayed payment until the
last possible moment.

Medical Records/Use of Force/Use of
Force-Restraints/Protection from
Inmate Assault
Jackson v. FortStanton Hospitaland
TrainingSchool, 757 F.Supp.1243 (D.N.M.1990).
At 1306: Medical care at schools for the
developmentally disabled is found not
"minimally adequate" because of "significant
lapses" in medical records. They
demonstrate an incomplete medical
analysisand understandingofthe
residents. The records lack broaddescriptions Ofa resident'sclinicalstatus. Instead,
the recordscontain repetitive listings which
reflecta lack Ofindividualizedanalysis.
These matters mayaffecta resident's health
and long-range outlook. They maylead to
the loss ofnecessaryinterventions.
The institutions also fail to provide
reasonable safety from physical abuse and
accidents. The court cites "unexplained" acts
of violence and the failure to terminate a staff
member who repeatedly kicked a resident.
With respect to accidents, "the evidence
showed that there are a number of injuries
occurring repeatedly with no attempted
pattern analysis and no intervention...to make
changes...to prevent further accidents or
injuries."
At two of the institutions, physical restraints
are used to constitutional excess because of
insufficient staffing.
FALL 1991 9

Medical Care/Pendent Claims; State
Law in Federal Courts
Rosen v. Chang, 758 F.Supp. 799 (D.R.I.1991)'

Rights of Staff/Color of Law
Corrente v. State ofRhode/sland, Dept. of
Corrections, 759 F.Supp. 73 (D.R.I.1990. Several

The prisoner's estate alleged that his repeated
complaints of abdominal pain were treated
with Metamucil while in reality he was dying
of acute appendicitis. Those allegations,
combined with the phrases "deliberate
indifference" and "so outrageously indifferent
as to amount to wanton recklessness," stated a
constitutional claim.
The court entertains supplemental (formerly
pendent) jurisdiction over a negligence claim
under the state wrongful death statute. Any
possibility of jury confusion based on different
legal standards is outweighed by the economies
of trying both claims in one suit.

officers alleged that they reported other
officers' misuse of force and were subjected to
harassment and threats.
Allegations that these threats were
"reported" to the Governor were insufficient to
show that he actually "knew" of the harassment. More specific allegations that the
Director of Corrections knew of the harassment but failed to investigate or take
...
disciplinary action stated a claim under §1983:
The Federal Rules of Civil Procedure
authorize suit against the unincorporated
officers' association for violation of federal
rights despite state law that did not permit
such suit. Allegations that the association
defendants "acted together with or obtained
significant aid from state officials," e.g., by the
latter's tolerating the association defendants'
conduct, sufficiently alleged action under color
of state law.

Medical Care-Standards of LiabilityDeliberate Indifference
Brown v. Coughlin, 758 F.Supp. 876 (S.D.N.Y.
1991). The plaintiff came to the city jail system
with a broken leg, was eventually transferred
to state prison, and had his leg amputated as a
result of an infection that was allegedly not
properly treated.
The municipal defendants, including the
City, were not entitled to summary judgment
on the merits, given evidence of
repeatedinstancesofdenied treatmen~
excessivelydelayed care, substantialdelays
infollow-up appointmentsanddiagnostic
testing, incorrectmedications, improperor
inadequate treatmen~failure to transfer
necessary medical records in a timely
fashion, noncompliance with medical
orders, andfailure toprioritize[the
plaintiff's}statusforplacementin a larger
tertiarycarefacility upon learningofthe
festering infection. This adequately
indicatesorconstitutesa systemicfailure to
follow minimumprofessionalstandards in
the delivery ofcare .(882)
The pendent malpractice claim against the
state defendants individually is barred by
Correction Law §24, which prohibits personal
suits against correctional employees. However,
the claim can be pursued against .the defendants in their official capacities.
Evidence of "elemental and systemic"
deficiencies in delivery "or lack thereof" of
medical care support the inference that the
Commissioner and the Superintendent of
Downstate "could be charged with knowledge
of the unconstitutional conditions." (889)
Their claim that they relied on medical
personnel's judgment is unavailing. "Each
defendant must be held to a standard of reasonable judgment for someone within the
range of professional competence in his or her
particular official position." (889) Th e Commissioner and Superintendent had personal
duties to ensure adequate delivery of medical
services.
10 FALL 1991

Damages/Pendent Claims/Indemnification
Hankins v. Finnel, 759 F.Supp. 569 (W.D.Mo.
1991). The plaintiff won a judgment of $3,000
in punitive damages in a §1983 case alleging
sexual harassment by a prison employee. The
State moved in state court to enforce th e
Missouri Incarceration Reimbursement Act,
which authorizes forfeiture of 90% of a
prisoner's assets. The prisoner moved i n federal
court to stay the state proceedings and enforce
the judgment.
The federal court has authority to enforce
its judgment through the mechanisms of state
law and has jurisdiction over the State of
Missouri because the State agreed to pay the
judgment that it is now trying to have
forfeited. The State also waived its Eleventh
Amendment immunity by agreeing to
indemnify the individual defendants.
The Missouri statute is pre-empted under the
Supremacy Clause insofar as it applies to a
damage award under §1983 because it conflicts
with the deterrent purpose of such damages.

Personal Involvement and Supervisory Liability/Use of Force
Martinez Correa v. LopezFeliciano, 759
F.Supp. 947 (D.P.R.1991). The court grants
summary judgment as to some supervisors but
not others in a police shooting case. At 954:
Failure ofthe supervisor to take remedial
action againstan individualofficerafter
numerous complaints;employmentbythe
supervisorofa wholly inadequateand
impotentdisciplinarysystem thatpermitted
officers to continue to violate citizens'rights;
...anddemonstration ofapattern of
violations "so strikingas to allowan
inference ofsupervisoryencouragemen~

condonation, oreven acquiescence, ~ .. all
have been basesforfinding supervisors
liable undersection 1983.

Personal Property
Muhammad v. Moore, 760 F.Supp. 86 9 (D.
Kan.1991). The plaintiff, a federal prisoner,
refused to cooperate with the Inmate Financial
Responsibility Program and was consequently
limited to maintenance pay of $5 a month.
"The IFRP clearly serves valid penologica I interests of rehabilitation, and the requirement
that an inmate cho"e between participation
in the program or ~isk significant reduction in
his employment oilncome potential does not
violate constitutional rights." (871) The
statute that permits discharge of court-ordered
obligations where a prisoner is incarcerated
solely because of inability to pay had no
application. The fact that the plaintiff' s family had had to provide funds for his personal
use did not state a constitutional claim.

Publications
Beckford-El v. Toombs, 760 F.Supp.1267
(W.D.Mich.1991)' Another inmate sent the
plaintiff a brochure from a correspondence
school; prison officials refused to deliver it,
citing a rule prohibiting inmates from entering
into certain contractual arrangements.
The brochure "is presumptively within the
First Amendment's protection" since it is "not
pornographic or obscene, does not contain
escape plans, incitement to violence, or any
other matter obviously inimical to prison order
or safety." Since the sender did not solicit the
plaintiff's enrollment and there was no
application form in the brochure, the use of
the contract rule "is a farfetched interpretation of the rule and is wholly arbitrary." (1271)
"No possible penological justification exists for
confiscating an educational brochure under
the pretext that its mere receipt constitutes a
forbidden contractual relationship." (1272)

Protection from Inmate Assault/Use
of Force
Williams v. Blackburn, 761 F.Supp. 24
(M.D.La.1991)' The plaintiff alleged that he
was twice attacked with scalding water by
another inmate and later beaten by an officer,
resulting in blisters and bruises, respectively.
The Eighth Amendment was not violated
because there was no "significant injury" in
either case. At 26:
The courtfeels compelled to note, however,
thatthe "significantinjury"standard...seems
destined to encourage venalprisonguards
in theirdeliberate use offorce upon
inmates. [By thisstandard}the courts in
effectpronouncean "open season"upon
inmates which is likely to encourage
unrestrainedcorrectionalofficeruseOf
force and violence inpenal institutions .
THE NATIONAL PRISON PROJECT JOURNAL

Pre-Trial Detainees/Crowding/Class
Actions-Settlement/Remedies/
Release of Inmates
Harris v. Reeves, 761 F.Supp. 382 (E.D.Pa.1991)'
Anew consent judgment in the Philadelphia
jail conditions case obligates the city to
develop ten-year population projections;
develop a"population management plan"
consistent with the projections; promulgate
"Physical and Operational Standards for
existing and any new prison facility that
comply with constitutional and correctional
industry standards," and comply with them;
and implement a Capital Projects Management
Plan, an Operational Management Plan, and a
Management Information Service Plan. A
Criminal]ustice Project Coordinator is to be
appointed to supervise this process.
The plan also provides short-term relief,
requiring the City to provide at least 250
alcohol and substance abuse beds and to
submit to the Special Master the names of 35
pre-trial detainees for early release per day,
five days per week, whenever the overall
population cap is exceeded. The District
Attorney will get notice and have 72 hours to
object in writing and to propose someone else
to be released.
ASpecial Master is to be appointed to
monitor compliance with these provisions and
provide quarterly plan compliance reports.
Afine of $100 a day is imposed for each
inmate admitted in violation of the population
limits or not released pursuant to the early
release provisions
Medical Care-Standards of LiabilityDeliberate Indifference
Lynsky v. City ofBoston, 761 F.Supp. 858
(D.Mass.1990). Ajail doctor who failed to
order additional diagnostic tests for heart
disease based on EKG abnormalities, but who
treated the patient continuously for his other
complaints, was not deliberately indifferent.
"Where a prisoner has received some medical
attention and the dispute is over the adequacy
of the treatment, federal courts are generally
reluctant to secon<l' guess medical judgment
and to constitutionalize claims which sound in
state law." (864, quoting Westlake v. Lucas, 537
F2d 857, 860 n. 5[6th Cir.1976D However, the
doctor was not entitled to summary judgment on
the state law gross negligence claim.

with case reporters available through interlibrary loan. The court characterizes this as
a "reasonable accommodation," with no
reference to any evidentiary proceedings or
further inquiry on the question, and declares
the case moot, noting that the plaintiff is no
longer incarcerated at the hospital.

Pre-Trial Detainees/Injunctive ReliefPreliminary
Youngv. Battis, 762 F.Supp. 823 (S.D.Ind.
1990). At 827: "In cases such as this, claims
that jail conditions are so poor that they are
constitutionally violative, money damages ate
inadequate." However, the plaintiffs are
denied a preliminary injunction on the merits.
The court cautions that this ruling is not
dispositive of the outcome of the trial on the
merits.
Medical Care (830-31): Medical care was not
constitutionally inadequate. Aphysician was
on call within walking distance, a nurse visited
the jail three times a week, a county nurse
located across the street was available during
business hours, and emergency cases were
transported to a local hospital. Asingle
incident of apparent inadequate treatment did
not establish a pattern supporting relief.
Crowding, Classification, Financial
Resources(831-32): The plaintiffs did not show
irreparable harm even though there was
evidence of prisoners sleeping on mattresses on
the floor and failure to segregate local
prisoners from state prisoners. "Further, the
defendants would bear great expense and
difficulty if required to change these conditions."
Ventilation (832): The ventilation is poor
and the plaintiffs likely to succeed at trial, but
there is insufficient evidence of irreparable
harm to support a preliminary injunction.
ExerciseandRecreation (833): The prisoners
get outdoor recreation four times a year
because of lack of staff; there is no exercise
equipment; exercise is limited to calisthenics in
the day room. These facts did not establish
irreparable harm.

his preliminary injunction motion providing
that he would be medically evaluated by
outside physicians and that if they found
he required hospitalization, they would
hospitalize him and not remove him until he
was discharged by the hospital staff or by
.' court order.

FEDERAL RULES
Transfers/Discovery
Green v. District0!f0lumbia ,134 F.R.D.1
(D.D.C.1991). The pl!lY1tiffs challenged
conditions of confin'ement of District of
Columbia prisoner~ transferred to
institutions outside the District in which
District prisoners are held by contract (e.g., the
Zavala County, Texas Detention Center).
After the defendants' blatant failure to
comply with discovery requests over a
period of months, the court imposes sanctions
including ordering that the facts as asserted
in plaintiffs' complaint be held as true.

John Boston is the directorofthe
Prisoners'RightsProject LegalAidSociety
ofNew York. He regularly contributes this
column to theNPPJOURNAL.

Medical Care
Rivera v. Dyett, 762 F.Supp.1l09 (S.D.N.Y.
1991). The plaintiff obtained a settlement of

Law Libraries and Law Books/
Mootness/Mental Health Treatment
Murray v. Didario, 762 F.Supp.109 (E.D.Pa.
1991). Prisoners held in mental hospitals have
a right of access to courts as set out in Bounds v.
Smith. When the court threatened to
appoint counsel for the pro se plaintiff, the
defendants agreed voluntarily to establish a
law library consisting of constitutions,
statutes, and evidence and criminal treatises,
THE NATIONAL PRISON PROJECT JOURNAL

FALL 1991

11

j

(cont'djrompage5)

including further increases in population
and the installation of cubicle divisions in
the dormitory. These changes, if they
occurred, would also be relevant in judging
the constitutionality of the resulting
conditions.
Similarly, the claims of excessive heat
cannot be viewed in isolation from the other
claims raised by plaintiff. The degree of
potential harm from air that is 95' Fahrenheit
depends on the relative humidity of the air,
the presence or absence of ventilation, the
general health of the persons exposed to this
condition, and the duration of exposure. In
this case, the plaintiff alleged that the air was
damp because of nonfunctioning windows.
This Court should also deny summary

judgment on the claim of mixing psychotic and
general population prisoners in the dormitory.
Plaintiff alleged that this lack of classification
caused stress because other prisoners could not
predict the behavior of the mentally ill
prisoners. Afear of psychotic prisoners is not
an unreasonable fear, and this Court should
allow an evidentiary inquiry into whether
psychotic, dangerous prisoners are actually
mixed into the general population as a result
of overcrowding, creating an unreasonably
dangerous situation.
For the above stated reasons, the Court
should deny summary judgment on all issues
and reopen discovery so that the parties can
present evidence as to current conditions of
confinement at the BCF. •

\~,,:

Prisoners Need Protection From
Environmental Hazards
• Prisoners andstaffat theStatePrison
inJackson, Michigan have been exposed to
AgentOrangeandDDT, stored illegally by
prison officials.
• In an Arizonaprison, a sign in the
visitingroom warnsfriendsandfamilies
ofprisoners, '1jyou arepregnantorof
childbearingage, do notdrink the water."
• OccupationalSafetyandHealth
standards, which existto ensure thesafety
ofall workers in the u.s., exemptstateand
federalprisons. In addition, manystate
prisonsare exemptfrom state employee
right-to-knowlaws, soprisonersare
unable even to determine whathazards
theymaYface.
ll of us, including prisoners, face the
environmental consequencesofour
culture's predominantindustrialage
.
values-cultural values that pnzeconsumption, competitionand conquest.
In the race toward acquisition,our
materialismandgreed have nearly ruined
theearth and have brought about agross
disparity ofwealth,opportunityand basic
human rights. The losersin the race are
rounded up and herded into overcrowded
prisons. Our national criminal justicepolicies
are too bankrupt to address the real issues of
poverty and racism.

A

..

Making the Connection: Prisons and
the Environment
Research has shownthat communitiesof
color are mostoftentargetsfor toxic
dumping and for placementof many
12

FAll 1991

hazardous industries. It is only ashort jump,
then, to make the connectionbetween
prisons and environmental hazards. Most of
society thinks of prisoners asgarbage,so why
should they not go hand in hand with other
"hazardouswaste": the prisonand the toxic
wastedump, the prisonand the landfill.
It beginsto makesense. Whatelsedo we
want to ignore, putout ofsight and outof
mind, as muchas these two? Asstateand
localgovernmentssearch outsites for new
prisons,their profit-seeking counterpartsin
the toxic wasteindustryare doing exactly
thesame thing: Where do wedump it?, they
both ask.
All this wreckage, both environmentaland
human, must, ofcourse,eventuallyreturn to
us. Do we treat it responsibly, or do we
ignoreit, poisonit, and leave it to rot?
If wedon't"recycle"responsibly,it may come backto us
even more toxic than
it was before.

1

John Boston, "Highlights of Most Important Cases,"

NPPJOURNAL, pp. 6-8 (Summer 1991).
2 The Supreme Court remanded the case to the Sixth
Circuit. That court, in turn, remanded the case to the
federal district court onJuly 29, 1991.
3 Because plaintiffs affidavits specifically aver that
defendants had actual notice of the conditions, there
is no need to infer notice on the part of the
defendants.
4 As the Supreme Court noted, the defendants never
attempted to raise a funding defense in this case.
Wilson at 2326. Nor would a funding defense make
any sense in a case in which the allegations included
a failure to attend to basic sanitation and safety.
5 Wilson v. Seiter, 893 F.ld 861, 865 (6th Cir.1990),
vac. and remanded,111~'Ct. 2321 (1991).
,;.'

Elizabeth Alexander is the NPP's
associate directorfor litigation.

Potential Environmental Problems
in Prisons

.Indoor pollution;
,Groundwatercontamination;
,Pesticideuse on prisonfarms;
,Exposure to and removal ofasbestos;
,Faulty or non-existent evacuation plans
in case of an accidentduring transportation
of hazardous wastes,atoxicspill, orafire;
,Lack of protection of workers in prison
industries.
Hereisa"snapshot" look at someofthe
problems uncovered in researching this issue:
1) Adamage case, brought by prisoners at
the Marion Federal Penitentiary inIllinois,
is pendingagainst the Environmental
ProtectionAgency, officialsof
the Bureau of Prisons and
the Marion Penitentiary. Thewater
suppliedto
the

l

staff and prisoners at Marion comes from
Crab Orchard Lake. The lake lies next to a
chemical waste dump and was designated
a Superfund site in 1984 by the EPA as one
of the nation's worst toxic hot spots.
There is currently a stay of discovery in
the case, pending a judge's ruling. 1
2) The Georgia Department of Corrections succeeded in obtaining an exemption
from the state Employee Hazardous
Chemical Right-to-Know Law of 1988. The
law protects state employees by requiring
that they be notified if they are working
with hazardous chemicals. In addition, it
requires that they receive proper training
in the safe usage of such chemicals and
that they be given proper equipment.
Prisoners in Georgia manufacture all the
solvents and cleaning products used by
the state, many of which are considered
highly toxic. 2
3) In Butner, North Carolina, a citizen's
group succeeded this year in stopping
construction of a hazardous waste
treatment facility near its communities.
Thermal-KEM, a for-profit company,
wanted to build afive-state incinerator
designed to burn 50,000 tons of hazardous
chemical waste per year.
The incinerator would have affected an
additional 3,000 people, either housed in
or employed by ten state institutions
located within three to ten miles of the
incinerator site. The facilities include
homes for the retarded, juvenile
institutions, minimum security
prisons and others, plus the
Federal Correctional
Institution. Besides
concern for the
surrounding

communities, local citizens were concerned about evacuation in case of an
accident either at the incinerator itself
or aspill during the transportation of
hazardous waste to or from the
incinerator.3
4) It was also discovered that Butnerthe town, not the prison-is the site of a
"cancer cluster." The rate of non-;?·
Hodgkin's lymphoma, a type of cancer, W.'
the Butner area is 50% higher than in the
rest of the state. Studies have linked ,1;
herbicides such as Agent Orange to this'
type of cancer. 4 The ground upon which
the prison now sits was defoliated at one
point, although reports differ over exactly
when that occurred. Some say that Camp
Butner was defoliated with herbicides for
experimental purposes during WorId War
II. Meanwhile, the editor of the local
newspaper told the NPPJOURNAL that
400 acres were defoliated much more
recently in order to build the prison.
5) In 1989 a fire broke out at the
hazardous waste incinerator in Rock Hill,
South Carolina. The incinerator was run
by Thermal-KEM, the same company that
tried to open the five-state incinerator in
Butner. Rock Hill is also the site of a
prison. In addition to the fire, state and
federal officials cited numerous explosions and excessive arsenic emission levels
among the violations. The company had
long ignored warnings about these
problems.5
6) The EPA recently fined the State of
Florida $100,000 for pollution violations at
the Florida State Prison near Starke.
Violations involved operation of the
prison sewage plant. 6
7) The Michigan State Prison in]ackson
houses the state's largest assortment of
toxic messes. Alocal newspaper's
investigative report uncovered violations
which included illegal storage of DDT
and Agent Orange. The prison
was fined $160,000 by
federal officials. The
State Attorney
General's
office,

>

however, persuaded the federal officials
to drop $33,000 of the fines. 7
8) In 1985, Buckingham Security Ltd.,
a private corrections firm, tried to build a
private prison on a toxic waste site in
Pennsylvania which they had purchased
for one dollar. They later tried to sell the
property for $790,000, without cleaning
it up.s
9) At the Arizona State Prison in
Florence, asign in the visiting room warns
visitors, "If you are pregnant or of childbearing age, do I\ot drink the water." Staff
bring bottled ;w,.~ter to drink. 9
10) The Florlqa Environmental Regulation Commission has approved a200-acre
site for a hazardous waste facility in
Raiford, near the Florida State Prison and
two other prisons. Any accident either at
or en route to the facility would require
the evacuation of thousands of prisoners.
When prison officials expressed concern
over lack of evacuation procedures, they
were told by state officials that no plan
would be needed. 10
More general areas of interest to
environmental justice advocates are:
1) Former military basesset to be used
forprisons. President Bush has signed
legislation authorizing the turnover of
some former military bases and buildings
for use as minimum security correctional
facilities. Ships, airplanes, tanks and
maintenance yards generate a variety of
solid and liquid paints, solvents, petroleum
products, propellants, explosives, obsolete
chemical weapons, and radioactive wastes.
2) Prisonfarms and the use ofpesticides. Pesticides are commonly used by
prison farms which grow their own food
and raise livestock for prison consumption. Some prison farms, such as Angola,
Louisiana, and Parchman, Mississippi
imprison many long-termers whose
exposure over the years to these chemicals
in their air, water and food is great. In
addition to the risk from breathing
pesticides, prisoners may risk health
hazards from eating the fish, livestock
and produce which have been subjected to
herbicides. Overexposure to pesticides has
been linked to various forms of cancer. 11
3) Exposure to asbestos. Notonlyare
prisoners put in proximity to asbestos in
antiquated buildings, they are sometimes
required to clean up the asbestos without
proper protective gear. Lead poisoning
from paint and old pipes and fixtures
presents another danger in outdated
prisons.
What Can be Done?

We know that prisoners are subject to
higher incidences of exposure to toxic
FALL 1991

13

NPPLawyer

Discusses
Wilson, Legal
Trends

substances, yet their legal and political
remedies are more restricted than other
citizens'.
What can be done to ensure that the
rights of prisonersto clean air and water
and to be free from toxics are upheld?
In the coming years, prisoners' rights
lawyers, jailhouse lawyers, and other
advocates should develop some expertise in environmental issues. Interdisciplinary study will be needed to meet
these challenges.
Action Advocates Can Take
Here are a few things to do if you
become aware of a serious environmental
problem in prison:
1) Contact alocal newspaper editor or
reporter. They can be good sources of
information and, of course, you may want
to interest them in writing astory. Any
information on the manufacturer of the
toxic substance in question, or
the chemical waste company, that you can
offer the reporter will be helpful. Make
sure your sources are reliable and
accurate.
2) Contact a lawyer. Attorneys may see
the advantage in linking prison litigation
to violations of state or federal environmental laws. Contact one of the growing
number of environmental law groups.
3) Connect with the local community,
especially in the case of a landfill or
hazardous waste incinerator. Air and
water are not static. They move. If the
problem affects the air and the water
in the prison, chances are it affects
the greater community. Certainly
it will affect the prison staff and
14 FAll 1991

probably the nearby townspeople.
We have seen some of the interconnections between race and environment, and prisons and the environment.
Now it is time to form new partnerships to accommodate a broader agenda.
The new agenda already has a name,
"environmental justice." We know how
"criminal justice" is dispensed among
racial minorities and the poor in the
United States. We are now beginning to
see how "environmental justice" is
allocated. Like toxic waste, it's not a
pretty sight. •

jan Elvin is editor of the NPPJOURNAL.
I

Linda Rocawich, "Toxins on Tap?"

The

Progressive, pp.24-27, (May, 1989).

Georgia Environmental Project, Atlanta, Georgia.
Numerous newspaper articles from the Butner
Creedmore News and the Oxford Ledger, (May,
June, and July, 1990).
4 "Reversing Twelve-Year Old Policy, VA Agrees
Agent Orange Linked to Cancer," The Veteran's
Advocate, VoU, No.1, Oune, 1990).
5 "S.C., Federal Officials Discuss Action Against
Waste Company," Durham MorningHerald, (May
10,1990).
6 "EPA Fining Florida Prison," Corrections Digest,
(May 2, 1990).
7 Jeff Alexander, "Officials Shrugged as Prison
Became a Pollution Hot Spot," The Grand Rapids
Press, (Sept. 3, 1989).
8 Jody Levine, "Private Prison Planned on Toxic
Waste Site," NPPJOURNAL, No.5, pp.10-11, (Fall
1985).
9 Observations by NPP staff.
10 "Waste Site Poses Penal Evacuation Controversy," Florida Times Union, (October 3, 1988).
II "Cancer in Humans and Potential Occupational
and Environmental Exposure to Pesticides:
Selected Abstracts," Prepared by Marion Moses,
M.D., San Francisco, CA, (May 31, 1988).
2

3

Elizabeth AleXfI. nder, associate director
for litigation attlJeNationalPrison
Project has bee~practicingprisoners'
rights lawsince the early1970s when, as an
attorney in Madison, Wisconsin, sheserved
as chiefstaffcounselatCorrectionsLegal
ServicesProgram, and then asassistant
statepublicdefender responsiblefor
conditionsofconfinementlitigation.
AlexanderjoinedtheNationalPrison
Projectin 1981 as a staffattorneyand has
since been responsiblefOr, or been involved
in, some oftheProject's mostimportant
cases. Injanuary 1991, sheargued Wilson
v. Seiter before the United StatesSupreme
Court. She discussed the Court's decision
and othercorrections issues in anAugust
interview with BetsyBernat editorial
assistantoftheNPPJOURNAL.
NPPJ: You began practicing prisoners'
rights law in the '70s in Wisconsin. What
kinds of cases did you handle, what was
the legal climate then, and how does it
compare with the work you're doing now?
Alexander: Iwas extraordinarily
fortunate because at the time, the federal
district judge who sat in Madison was
James E. Doyle, who was really asaint of a
person, ascholar, and someone extraordinarily sensitive to the issues that prison
law raised. In one of his well-known
opinions, he said he was convinced that
someday the institution of prison would
end. He had a real vision of what prison
law ought to look like.
So, it was an era in which we entertained hopes that we could move forward
to asociety that had a more rational idea
about the criminal justice system. That
vision of the future is hard to maintain
these days when Willie Hortonism
dominates the public dialogue on corrections issues. Even people on our side who
are working for prison reform have far
more modest hopes about what we can
accomplish. Ultimately, our goal ought to
be not just barely constitutional prisons
but a re-examination of the basics of
criminal justice policy.
NPPJ: Which of the cases that
you've worked on do you feel have been
THE NATIONAL PRISON PROJECT JOURNAL

most important?
Alexander: In importance to the
future of prisoners' rights, the Wilson v.
Seiter case is the most critical. Wilson
extended the "deliberate indifference"
standard to all conditions of confinement
cases. It was, in formal terms, a victory
for prisoners' rights because it rejected the
even heavier burden on prisonerplaintiffs that had been imposed by the
Sixth Circuit.
We had no choice but to seek certiorari
in Wilson. We have other very important
litigation from Michigan pending in the
Sixth Circuit and those cases would have
been seriously affected if the Sixth
Circuit's decision in Wilson had been
allowed to stand. Even so, we did
consider withdrawing the petition for
writ of certiorari afterJustice Brennan
resigned.
If Justice Brennan had remained on the
Supreme Court when Wilson was decided,
Wilson would have held by afive to four
majority that there is no state of mind
requirement under the Eighth Amendment. That would have been a tremendous victory.
Even so, Wilson is a decision that prison
litigators can live with. The "deliberate
indifference" standard is the standard
that federal courts have been applying to
medical care claims since 1976. The
standard hasn't had any negative impact
on plaintiffs pursuing injunctive medical
care claims.
The concerns that prison litigators have
about Wilson stem from the nasty
language thatJustice Scalia inserted in
the decision. I wish thatJustice Scalia
and ChiefJustice Rehnquist had dissented,
and agreed with the defendants. In that
case, if someone nearer the center of the
Court such asJustice O'Connor had
written the decision, the decision would
not have had any significant negative
impact.
NPPJ: What about some of the other
cases?
Alexander: An extraordinarily
rewarding case was the Mecklenburg
Correctional Center case. 2 It was a hard
case, but overall the litigation was just
about as successful as any in the Prison
Project since I've been here. We turned
Virginia's version of asupermax-Virginia's version of Marion Federal
Penitentiary--into just an ordinary bad
prison. That was a terrific accomplishment and I've always felt proud about
that.
Even though the appellate litigation
was disappointing, the South Dakota case 3
was rewarding because we had an
THE NATIONAL PRISON PROJECT JOURNAL

excellent
judge and we
made a lot of
difference in
the South
Dakota
system.
NPPJ:

There were
some strange
practices
going on
there, as I
recall, before
the litigation
was filed.
Alexander:
Prisoners
Elizabeth Alexander (center) conducts a recent NPP legal staff
meeting attended by Adjoa Aiyetoro (left) and David Fathi.
drilling other
prisoners'
teeth; inmates taking X-rays of other
question. As you know, coming up in the
prisoners. There were areas in which,
United States Supreme Court this term is a
because South Dakota had not been the
case called Rufo v. Inmates oftheSuffolk
subject of major prison litigation before,
CountyJail,5 out of the First Circuit. In
that case, the district court refused to
they had some practices that were
inconsistent with contemporary correcmodify an old consent decree requiring
tional practices. On the other hand, as
Boston to keep its new jail single-celled.
defendants go, after they lost the case they
The new jail was built as a result of a
were not particularly recalcitrant. In
consent decree that was entered after the.
many ways, I've had a good relationship
old jail was found to be unconstitutional.
The Supreme Court this year may overrule
with the State of South Dakota. In
contrast, some of the states with more
the district judge and make it much easier
progressive reputations, such as Michigan,
for states to get out of consent decrees
have made a decision to fight everything
that they have freely negotiated, and in
particular, consent decrees that involve
tooth and nail.
NPPJ: Why do you think that is?
restrictions on overcrowding. One of the
Alexander: It's not clear. How states
things that we attempted to do in the
react to litigation seems to reflect local
newest rounds of negotiations in Duran,
politics. There are not many generalizaand Al Bronstein is primarily responsible
tions that can be made about it.
for this, was to write provisions that
Another satisfying case to litigate is
would make the overcrowding limitations
Duran v. Carrutheri' from New Mexico. As
written in stone. For example, in the new
Duran modified settlement agreement,
a result of the riot, in which a large
the ban on double-ceIling is made
number of people were killed, the state
signed a comprehensive consent decree
enforceable in state court. This means
which was excellent. I became involved in
that even if the Supreme Court, in Rufo,
the litigation at a much later stage. Avery
makes the consent decree non-enforceable
in federal court, we'll still be able to
prestigious Washington, D.C. law firm had
enforce that ban on double-ceIling. We
been hired by the State of New Mexico to
break the consent decree. It was a
think we have developed a model to
professionally rewarding experience to do
protect the provisions we previously
battle with a top D.C. firm and beat them
negotiated. Whatever happens in Rufo,
in the district court and the court of
these provisions will still be enforceable.
appeals and to have certiorari denied by
NPPJ: If the Supreme Court does decide
in favor of the defendants in RUfo, do you
the Supreme Court.
think states will be more reluctant to
NPPJ: I wanted to talk about Duran
enter into that sort of settlement model?
because of the renegotiated settlement in
that case. How do you tie up these cases
Alexander: It's certainly going to make
that have been going on for so long in a
it harder for consent decrees to be
negotiated because plaintiffs are going to
way that will guarantee the prisoners
be more reluctant to enter into consent
continued reforms? Did we establish a
model in Duran that can be used in other
decrees when they know that, as soon as
the pressure's on, defendants are likely to
cases?
Alexander: That's a very interesting
be able to get out of them. Therefore,
FALL 1991

15

there will be fewer consent decrees and
more things will be litigated in federal
court. That concern, however, isn't nearly
as great as my concern about the fate of
existing consent decrees. Rufocould cause
severe disruption in the great majority of
jurisdictions in which one or more prisons
or the entire system is now under court
order. What will happen to prison
conditions when the great bulk of those
orders may possibly be opened to major
modifications? I hope that many of the
states will realize that it's in their own
interests to keep restrictions on their
prison systems to avoid even worse
problems.
NPPJ: The Standards Committee of the
American Correctional Association just
voted to allow double-ceIling and other
forms of multiple-occupancy housing in
medium security facilities. 6 How do you
see that decision playing itself out?
Alexander: Ifind it really depressing
that the ACA did that, and I think it
undermines their credibility. The
Supreme Court in Rhodes v. Chapman 7
had indicated that professional standards
are different from constitutional standards in that professional standards were
expected to be significantly higher than
constitutional standards. What's happened with the ACA is that they've bent to
political pressure and have decided that if
constitutional standards are decreasing,
then professional standards also have to
decrease. The political backbone of

16 FALL 1991

corrections officials has weakened.
Certainly nothing good will come of this.
The standards will have very little
credibility.
NPPJ: What do groups like ours do
now that this decision has been made?
Alexander: We continue to work with
progressive correctional officials to seek
to overturn the changed standards
because the changed standards are wron~..
We have to work state by state to
l;
persuade people in each correctional /~
system that they should not be misled by
the new standards. Finally, in those
systems in which overcrowding results in
unconstitutional conditions, we're simply
going to have to litigate. The standards
weren't standards of constitutionality in
any event, and their change doesn't make
those conditions any more constitutional.
NPPJ: You and [NPP attorney] David
Fathi have been investigating allegations
of inadequate medical care at the Federal
Bureau of Prison's medical facility in
Springfield, Missouri. What have you
found?
Alexander: We're very concerned
about Springfield. There's astrong
tradition, particularly among many
federal judges, that the Bureau of Prisons
is a progressive organization and not
prone to the sorts of ills that are common
to state systems. It has been, in many
areas, a professional organization, but in
part because of the tremendous impact of
overcrowding in the system and, in part,

because they have some long-standing
problems, medical care is an area in which
the Bureau does not appear to deserve its
reputation. We were struck with the
numerous problems we encountered when
we investigated the Springfield facility,
ranging from the use of mentally ill
prisoners as nursing attendants for other
prisoners, a use that's been routinely
condemned by everybody that's looked at
medical standards in prisons, to the lack
of appropriate numbers of staff. Virtually
none of the psyctyatric positions were
filled. There wa~o 24-hour physician
coverage. It's d;rilgerous to get sick at
Springfield unless you do it between 9 a.m.
and 5p.m., Monday through Friday.
Otherwise there's no on-site physician
coverage. We observed an apparent lack
of concern and lack of treatment by many
members of the staff who were there. I
was immediately concerned about an
apparent lack of diagnosis and treatment
for specific prisoners--medical problems
that needed urgent treatment. OnJuly 17
I testified before asubcommittee of
Congress about the medical problems we
found. I retain some hope that either
through legislation or through discussions
with the Bureau of Prisons we can make
some progress, but the problems are very
serious.
NPPJ: Back in the 70s when you
started practicing prisoners' rights law,
the entire field was a virtual frontier.
What frontiers remain?
Alexander: We're desperately trying to
hold on to what's left of decent constitutionallaw. Isee us as under attack all the
way across the face of the law. If there
are areas of expansion, they are in areas
such as statutory rights. We've got to
explore federal statutory rights such as
Section 504, the Rehabilitation Act that
prohibits discrimination against persons
who have a handicap. We have to exploit
federal statutory rights in a much more
systematic way than we've done in the
past. In those states with decent state
court systems, we have to go into state
court. One of the things that sustains me
is the idea that there are cycles in legal
theories, and that the Willie Horton era in
American politics and theJustice Scalia,
ChiefJustice Rehnquist era in constitutionallaw will not last forever. At some
point, just asJudge FrankJohnson in
Alabama developed the area of prison law,
there will be a new chance to come up
with a humane framework for law in the
area of corrections. My hope is that when
that day comes about, it won't be limited
to looking at conditions of confinement
litigation in isolation. Conditions of
THE NATIONAL PRISON PROJEG JOURNAL

confinement law has only limited impact
on corrections systems because we've
never had a developed body of law that
looked at the whole range of criminal
justice policy. We can't really solve the
problems of prisons out of the context of
the whole criminal justice system.
NPPJ: When you go home to Iowa, and
people ask, "Why in the world do you do
work for prisoners?," how do you
respond?
Alexander: The answer Iuse is that
over 90% of the people who are now in
prison will eventually be back on the
streets. Whether or not the experiences
people have in prison lead them to be
productive members of society or to be
more inclined to break the law is significantly affected by what happens to them
in prison. In particular, the two factors
that are most strongly correlated with
whether or not prisoners avoid returning
to prison are the maintenance of family
ties and the development of vocational
skills. For that reason, everybody ought to
be concerned about what happens to
people in prison, out of self-interest.
NPPJ: What keeps you going practicing

this kind of law?
Alexander: There are several levels of
answers to that question. Ireally like the
people in the office. I find doing prison
law intellectually exciting. I've had
wonderful opportunities here. I've
worked on numerous Supreme Court
briefs and worked with other lawyers
who are just extraordinarily good at <1
trying to preserve the rights of prison~!s: '
Whenever I actually go to prisons suchjls
Springfield or the New Orleans jail ari~J
talk with individual prisoners, Irealize
how terrible their lives are for reasons
that could be corrected, Iknow why I'm
doing this. In a country that has this
enormous wealth, it's just unconscionable
that we allow people in our system to be
denied the basic necessities of life.
NPPJ: What glimmers of hope do
you see?
Alexander: One way of looking at it
is that the trends we have now cannot
continue because, if they continue, by
the year 2050, half the population will
be in prison and the other half will be
guarding them. Therefore, by definition, things have to get better. We just

Attica
Anniversary

[Attica] broughthome to the
Americanpublic, at leastfor a while, as
nothing else had, the horror ofprison
life and the desperation ofthe
prisoners. For a while we thought that
that dreadful tragedy... mightdo some
realgood. We were wrong.

eptember 9, 1991 marked the 20th
anniversary of the Attica rebellion
when prisoners seized control of
Attica Correctional Facility in upstate
New York and demanded reforms.
The disastrous end to that uprising
came on September 13 when the
National Guard, state police and
corrections officers stormed the facility,
and, in a 15-minute flood of gunfire,
killed 43 prisoners and hostages,
wounding 80 others.
The roots of the National Prison
Project are closely woven with those
events. When the world glimpsed
firsthand the atrocities of prison, a
movement for reform rose from the
cries of outrage.
Now, 20 years later, reforms gained
are quietly being squeezed out by the
demands of overcrowding and a public
infuriated by crime and spurred on by
the careless, inflammatory crime-speak
of politicians--a public which cannot
understand why it should care about
prisoners.
Still, for many, the voices of Attica
echo on. We remember Attica here.

S

THE NATIONAL PRISON PROJEG JOURNAL

-Herman Schwartz, Professor of Law,
American University College of Law.

The horror of the re-taking was
compounded by the brutality ofthe
aftermath. By the hundreds,prisoners

have to stick it out. Second, I've got two
wonderful daughters, and I expect them
to be fighting for justice in the 21st
century.•
I 111 s. Ct. 2321 (1991). See also, in this issue,
"Proving Deliberate Indifference in the Wake of
Wilson v. Seiter," p. 3.
2 Brown v. Murray, C.N. 81-0853-R (B.D. Va.).
3 Cody v. Hillard, 599 F.Supp.l025 (D.S.D.1984),
rev'{/, in par~ 830 F.2d 912 (8th Cir.1987) (en
bane).
4687 F.Supp. 839 (D.N.M.1988); 885 F.2d 1485 and
885 F.2d 1492 (10tl;l Cir.1989). For more
information, see "Iilew Mexico Seeks to Elude
Obligations of C<w'sent Decree," by Mark Lopez,
NPPJOURNAL, l'lo.16, Summer 1988.
5 Nos. 90-954, 90-1004; 915 F.2d 1557 (1st Cir.1990)
(unpublished opinion). For more information, see
"Modification of Consent Decrees Goes to High
Court," by David Fathi, NPPJOURNAL, Vol. 6, No.3,
Summer 1991.
6 For background, see "ASCA Proposes Watering
Down of Single-Ceiling Standards," by William C.
Harrell, NPPJOURNAL, Vol. 6, No.3, Summer 1991.
7101 S.Ct. 2391 (1981).

Betsy Bernat is the editorial assistant of
the NPPJOURNAL.

were stripped naked and made to crawl
through afield of mud and broken
glass, and then forced to run through a
gauntlet ofcorrections officersas they
were beaten viciouslyand showered
with the most vile of racial epithets...
It is only at ourgreatperil that we
allow ourselves toforgetwhatAttica
means.
- Haywood Burns, Dean, CUNY Law
School at Queens, was the coordinator
of the Attica Brothers Defense
Committee.

a..

«
Authorities stormed and recaptured Attica on September 13, 1971. Here, inmates
herded into A Yard lie on the ground as they are stripped and searched.

FAll 1991

17

te
Women Develop
Effective AIDS
Education
Programs
ince the publicationof the report by the
National Commission on AIDS in March
199~ interest in andsupport for peer
AIDS education programs in prisonsand jails
has increaseddramatically. Corrections
administratorsand prisoners alikeare
recognizing that prisoners can bestcommunicateand educateother prisonersabout
AIDS, substanceabuse and other problems
people face behind the walls. Someof the
mosteffectiveeducation programs have
beendeveloped in women's prisons.

S

Peer Programs in Women's Prisons

• ACE (AIDS Counseling and Education) at
the women's prisonat Bedford Hills in New
YorkState,is the best-known peer education
and counseling project. This summer,the
womenof ACEorganizedtheirfirst annual
AIDS conference,"Sisters Helping Sisters;
Experiences ofSolidarity in Prison" Over100
AIDS educatorsand outsidefriends of the
ACE program attendedaday of workshops,
panel discussions and performancesabout
AIDS education.
• In thesummer of1990, Ivisited an mv/
AIDS education program for womenat
Rikers Island, pmof the New YorkCity jail
system, startedby the Center for Community
Action to Prevent AIDS at HunterCollege.
This program, builton the"empowerment
modeL" promotesdiscussion ofpregnancy,
birthcontroL prenatalcare,sexually
transmitteddiseases and AIDS.
• In 1988,Socia1}ustice for Women
initiatedthe Women and AIDS Projectat the
women's prison in Framingham, Massachusetts. This program provides education,
counseling and workshops for all interested women. As the NPP AIDS Information Coordinator, I had the opportunity to
visit with and meet some of the women
involved in the Project. Many of the
women prisoners are playing an informal
18

FALL 1991

Women's AIDS Project, is an excellent
but leading role in educational sessions.
manual for educators in women's prisons.
The project holds bi-annual "AIDS Speak:;- While developed for small group discusOuts" for prisoners and staff.
sions in women's homes and on the street,
• The Delaware Council on Crime and
the workshops can very easily be adapted
Justice, which runs peer education
for sessions behind the walls. The
programs in the men's prisons, has
curriculum includes
recently initiated a similar program for
., "safe sex" quizzes,
helpful handout~;a risk assessment
women prisoners in that state. The
summary and creative role-plays. This
Council trained several women prisoners
manual is available by writing to the
as peer educators. These women are now
Chicago Women's AIDS Project, 5249 N.
conducting weekly and monthly AIDS
Kenmore, Chicago, Illinois 60640.
education sessions at the Women's
• TheEmpowermentProgram-A
Correctional Institution. One woman has
CurriculumforHealth Education Groups
written a comic-style coloring book about
for Women AtRikersIslandwas prepared
AIDS that will soon be distributed
by Beth E. RicWe of the Hunter College
throughout the prison.
Center for Community Action to Prevent
• Over the past year, two programs
AIDS. The goal of the program is to
have been started by prisoners at two
empower women prisoners to "playa
federal women'sprisons. The"AIDS
more active role in reducing their risk of
Educationand InformationGroup" has
HIV infection." The sessions revolve
alreadycompleteda12-weeksessionat the
around the many issues that incarcerated
ShawneeUnit of the FederalCorrectional
women face-sexuality, relationships,
Institutionin Marianna, Florida. Designed by
drug use and economic situation. This
the women prisonersthemselves, the
curriculum with hand-outs is available
educational sessionsfocus on suchtopics as
from the Center for Community Action to
"mv transmission,""Mythsand Fears about
Prevent AIDS, Hunter College, 425 E. 25th
AIDS," and "Livingwith AIDS." TheAIDS
Street, New York, NY 10010.
educationcoursestarted up again in
• AIDS,SubstanceAbuseandHealth,
September.
VolumesIandH is a comprehensive
• Another Wghlysuccessful peer
training manualand curriculum "to train
education projectis underwayattheFederal
peereducatorswithin the prisoncommuCorrectionalInstitutionat Pleasanton,
nity." Written and compiled bySara DubikCalifornia. The project, wWch began as a
Unruh, an outsideAIDS educator with the
small studygroupon AIDS and health, has
participationofstudentsat BillericaHouseof
beengiven the green light to provide
Corrections in Massachusetts, this manual is
education sessions in the women's housing
very thorough inits approach to AIDS
units. The PleasantonAIDS Counselingand
education workshops. Dubik-Unruh
Education (PLACE) projecthas designed an
provides comprehensivelesson plans with
effective posterfor their AIDS education
handouts and even clocksthe time itshould
efforts.
take to presenteachsubject. Her"Suggestions
Videos,educationalmaterialsand
for Working inCorrectional Facilities"is
assistanceprovided by the National Prison
must reading for outsidecommunity-based
Project,Womenin the Director's Chair in
organizations going into prisons and jails
CWcago,and local AIDS serviceorganizations
for the first time. Some of the prisoner
and activists have helped make these two
educators have prepared a course curricupeer education projectsareality.
lum, translated into Spanish, which has
been incorporated into the manual. This
Materials Available
two-volume AIDS educational tool is
Outside organizations and innovative
available to outside educators and
AIDS educators have produced curricula
community organizations for $20. It is
and training manuals that can provide
free to prisoner peer educators. Write to
invaluable assistance to both prisoner peer
Sara Dubik-Unruh, Lowell House, 555
educators and community-based organizaMerrimack Street, Lowell, MA 01852. •
tions beginning projects in local jails and
prisons.
Judy Greenspan is theAIDSinformation
• "GirlsNight Out"A SaferSex Workcoordinatorfor theNPP.
shopfor Women, produced by the Chicago
THE NATIONAL PRISON PROJEG JOURNAL

bHcations
1990 AIDS in Prison

The National Prison
Project Status Report li${s
by state those presently ugder
court order, or those which
have pending litigation f;4her
involving the entire state
prison system or major
institutions within the state.
Lists only cases which deal
with overcrowding and/or the
total conditions of confinement. (No jails except District
of Columbia.) Periodically
updated. $3 prepaid from NPP.
Bibliography of Women
in Prison Issues. Abibliography of all the information on
this subject contained in our
files. Includes information on
abortion, behavior modification programs, lists of other
bibliographies, Bureau of
Prison policies affecting
women in prison, juvenile girls,
women in jail, the problem of
incarcerated mothers, health
care, and general articles and
books. $5 prepaid from NPP.

The National Prison
Project JOURNAL, $25/yr.
$2/yr. to prisoners.
The Prisoners Assistance
Directory, the result of a
national survey, identifies and
describes various organizations
and agencies that provide
assistance to prisoners. Lists
national, state, and local
organizations and sources of
assistance including legal,
library, AIDS, family support,
and ex-offender aid. 9th
Edition, published September
1990. Paperback, $30 prepaid
from NPP.
Offender Rights litigation: Historical and
Future Developments. A
book chapter by Alvin J.
.l!ronstein published in the
Prisoners' Rights
Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys
the state of the law on various
prison issues (many case
citations). 24 pages, $3 prepaid
QTY. COST from NPP.

QTY. COST

A Primer for Jail Litigators is a detailed manual with
practical suggestions for jail
litigation. It includes chapters
on legal analysis, the use of
expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case
citations and correctional
standards. 1st Edition, February
1984.180 pages, paperback.
(Note: This is not a "jailhouse
lawyers" manual.) $15 prepaid
from NPP.

Bibliography lists resources
on AIDS in prison that are
available from the National
Prison Project and other
soyrces, including corrections
p~icies on AIDS, educational
jrl'aterials, medical and legal
articles, and recent AIDS
studies. $5 prepaid from NPP.
AIDS in Prisons: The
Facts for Inmates and
Officers is a simply written
educational tool for prisoners,
corrections staff, and AIDS
service prOViders. The booklet
answers in an easy-to-read
format commonly asked
questions concerning the
meaning of AIDS, the medical
treatment available, legal
rights and responsibilities. Also
available in ~pani$. Sample
copies free. Bulk orders: 100
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.
ACLU Handbook, The
Rights of Prisoners. Guide
to the legal rights of prisoners,
parolees, pre-trial detainees,
etc., in question-and-answer
form. Contains citations. $7.95
(free to prisoners) from ACLU,
132 West 43rd St., New York, NY
QTY. COST 10036.

(order
from
ACLU)

Fill out and send with check payable to:

Name

The National Prison Project

Address

_

1875 Connecticut Ave, NW, #410
Washington, D.C. 20009

City, State, Zip

_

THE NATIONAL PRISON PROJEO JOURNAL

_

FAll 1991 19

T

he following are major developments

in the Prison Project's litigation

program sinceJuly 1, 1991. Further
details of any of the listed cases may be
obtained by writing the Project.

Casey v. Lewis, filed on behalf of all
Arizona state prisoners, challenges legal
access, health care and practices relating
to assignment to segregation. On August
30, 1991, the district judge enjoined
defendants from continuing a blanket
policy of prohibiting contact visits
between prisoners and their attorneys.
Defendants must now submit written
reasons for denial and establish procedures for the prisoner or attorney to
challenge the denial. The court also
ruled that prison officials may not deny
food service jobs to HIY-infected
prisoners who would otherwise qualify
for these positions.
Duran v. King is a statewide New
Mexico prison conditions case. After
more than a year of intensive negotiations, the parties agreed in June to
modify the 1980 consent decree. Because
the state is near substantial compliance
with the decree, it has been agreed that
the decree will be vacated after a
finding by the Special Master of
substantiaLcompliance and a period of
further reporting. In exchange, the
state has agreed to a permanent, non-

National Priso...n Project
American Civil liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830

20 FAll 1991

modifiable set of population controls
including a prohibition against doubleceIling. The new agreement was approved by the court on August 30, 1991. ,:.
Harris v. Thigpen challenges the AIDS
testing and segregation policies of the
Alabama Department of Corrections. On
September 18, 1991, the Eleventh Circuit
partly reversed a district court opinion
which had rejected plaintiffs' claims and
dismissed the case. The appeals court ruled
that my-infected prisoners are considered
handicapped under the federal Rehabilitation Act and therefore, under section 504 of
the Act, cannot be excluded from programs
and activities. The court also reversed and
remanded the trial court's order dismissing
plaintiffs' claims that they were denied
access to the courts. The appeals court
denied claims that medical care for HIYinfected prisoners was inadequate and that
mandatory segregation violated their right
to privacy.
Hudson v. McMillian--On April 29,
1991, the United States Supreme Court
appointed the National Prison Project to
serve as counsel in this brutality case
filed pro se by Louisiana prisoner Keith
Hudson. The Fifth Circuit rejected
petitioner Hudson's claim because he did
not suffer significant injury. Petitioners
argue that an Eighth Amendment
violation should not require a shOWing of
significant injury. Parties filed briefs
over the summer, and argument is
scheduled for November 13, 1991. A
number of important organizations and

the Solicitor General of the United
States have filed amicus briefs in
support of the petitioner.
U.S. v. Michigan/Knop v.Johnson is a
statewide Michigap prison conditions case.
On July 2, the SiXJ!l Circuit Court of Appeals
issued an order ),imiting the Prison Project's
involvement as amicus in u.s. v. Michigan.
The court also upheld one of two findings
of contempt against defendants and upheld
the requirement that defendants implement a classification plan and prepare
population projections, while it reversed
various other relatively minor orders.
Wilson v. Seiter--InJune 1991, the
Supreme Court overturned a Sixth Circuit
decision requiring that a r,risoner show
that officials acted with 'persistent
malicious cruelty" in order to prove that
conditions of confinement violate the
Eighth Amendment. Rather, prisoners
need r,rove only that prison officials
were 'deliberately indifferent" in
allOWing unconstitutional conditions to
exist. The Supreme Court remanded the
case to the Sixth Circuit which in turn
remanded to the district court. We filed
our brief with the district court in
September. See p. 3for further details.
Witke v. Vernon challenges conditions
and inequitable programming in the
Idaho women's prison. InJuly, the court
approved a settlement which places a cap
on the prison population, expands
medical staffing and services, and
provides for safety-related renovations.

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THE NATIONAL PRISON PROJEG JOURNAL