A PROJEO OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 7, NO.1, WINTER 1992 • ISSN 07~8· 2655

,

TB Comes Back, Poses Special Threat to Jiitls, Prisons
nly three years ago Dr. Louis
Sullivan, the Secretary of Health
and Human Services, was
optimistic enough to set 2010 as the
target date for total elimination of

O

official in New York City characterized
the disease there as "out of control."!
Thought to have been nearly eliminated, TB now has medical professionals
confounded and anxious, if not panicked. This generation of health
professionals has had little experience
with treating the known forms of the

setting, such as a slum, homeless shelter,
nursing home, or prison; the outbreak
and spread of the disease poses a hazard.
Dr. Steven Safyer, director of Montefiore
Medical Center at Rikers Island in New
York CitY,2 refers to jails and prisons as
"the tenements of today," where ideal
conditions for the spread of the disease
meet head-on with the population most
vulnerable to it. Tenement life in the
earlier part of the century, where
tuberculosis was rampant, held many .
things in common with life in prison
today: overcrowding, poor ventilation,
inhabitation by an at-risk and unhealthy
population, and inferior health care.
During the 1940s and '50s the number
of cases dropped off dramatically due to
improvements in housing and sanitation,
and the introduction of anti-tuberculosis
drugs. Ample government funds had also
been provided to combat the disease.
The tuberculosis epidemic of the early
1900s touched mostly poor white
~ immigrants who were crowded into
~ urban neighborhoods. The tuberculosis
-5
of this decade thrives under the same
0:::
kinds of conditions, but its casualty has a
u different face. That face is most likely
~ that of a Black or Latino living on the
~ street, in prison or a shelter, likely to be
] HIV-infected, out of money, with a
spot" Lower Eas=t-S-id~e==(N-Y-C-'} history of drug abuse and no access to

In the early part of the century, crowded "five cents a
lodgings were breeding grounds for tuberculosis. Today's prisons and jails-like
the tenements-are packed with people, many of whom are in poor health.

tuberculosis in the United States. But
during the course of those three years,
health officials have come to realize
that their goal is unreachable. While
medical experts say they believe the
disease will eventually be brought
under control, tuberculosis has now reemerged as a major public health
menace.
New cases are being reported at a
breakneck pace, and one public health

disease, and few have the expertise to
deal with the new drug-resistant strains
which have emerged.
Prisons take place of tenements as
ideal environments for 1B

At the turn of the century tuberculosis
accounted for 25% of the nation's
fatalities. It has historically struck
hardest at poor people who live in
substandard housing. In any crowded

proper health care. This same population, of course, is overrepresented in
prisons and jails, and moves in and out of
them frequently. The high mobility adds
to the number of people with potential
exposure to the disease.

are experiencing a rapid rise in drug
resistance--the public health infrastructure is not present in New York City."
Control programs are important
because, while the technology for
diagnosis, treatment, care and control of
tuberculosis is available, it requires

The decline of TB control programs

HIV infection is most often cited in the
media as the cause for the recent reemergence of the disease, and while this
is true in large part, meaningful social,
economic and historical factors contributed to the increasing rate several years
before the full force of HIV infection
was felt.
Amajor study by Brudney and Dobkin
documenting the rise of tuberculosis in
New York City and, by analogy, other
urban areas, presents the "stark reality"
that the increase is due largely to the
total failure of the public health system
and the federal government to continue
funding TB control programs. The study
summarizes the historical events leading
to the decline of these programs.3
In the face of years of warnings,
predictions, and urgent recommendations--all unheeded--about the renewed
threat of the disease, TB prevention and
treatment programs were systematically
cut. These government cuts, say the
authors, have led directly to the resurgence of the disease.
The editors of the review which
published the Brudney-Dobkin findings
refer to a common occurrence in public
health practice which they describe as
the "V-shaped curve of concern." First,
evaluations of a public health program
show improvement, which then leads to
diminishment of need. Subsequently,
resources to run programs dry up. And
finally, the incidence of the "controlled"
disease begins to rise in proportion to
diminished resources. One can picture
the letter "V," ilie editors suggest, and
then compare it with graphs of actual TB
case rate data. The graph also outlines a
"V" shape.
The combination of the decline in
government-funded TB prevention
programs during the Reagan years, the
spread of HIV infection, the increase in
homelessness, and a rise in drug abuse
has added up to disaster.
Dr. Safyer says that his experience
with the more than 500 patients he
discharges each year on active TB
treatment--more now with drug resistant
TB--is that they go on to what Dobkin
and Brudney found in Harlem Hospital: a
90% loss to followup and continuity of
care. "It is no wonder," he says, "that we
2 WINTER 1992

support from public health programs
that goes beyond drugs in the form of
supervised therapy; careful contact
followup; use of community health
workers for surveillance and treatment;
hospitalization when necessary; medications provided without cost to the
patient; compliance enhancements and
enablers to assure drug taking and
followup. When such support is removed, case rates rise and the disease
spreads.

to attempt to cure the disease. If a
person proves to be infected with MDRTB, the course of treatment is much
longer, more costly, and more complicated. MDR-TB is difficult to manage;
consultation with experts in treating
microbacterial diseases is warranted.
After studying sputum samples from
all tuberculosis cases diagnosed during
the first quarter of 1990 and the first
quarter of 1991, the Centers for Disease
Control reported a rise in drug-resistant
tuberculosis naW~nwide. The number of
patients whose 'li)3 was resistant to INH
increased by 5(}% and the number
resistant to rifampin increased 73%. The
numbers of cases resistant to two drugs
or more increased by 77%.4
"If you are a healthy, immunocompetent person who contracts MDR-TB,
you have a 50% chance of dying from it,"
says Dr. Alan Bloch, medical epidemiologist for the Division of Tuberculosis
Elimination of the Centers for Disease
Control. "You have a 25% chance that
your body's immune system will bring it
into remission, and you have a 25%
chance of becoming a chronic excreter
requiring lifetime isolation and quaran-

Multiple-drug resistance in
tuberculosis (MDR-TB)

Coinciding with the tuberculosis
epidemic in New York City and other
urban areas are reports of an increase in
the number of patients infected with
drug-resistant strains of the disease.
There are two ways to contract MDRTB: an individual can either be infected
with MDR-TB to begin with, or a person
infected with "regular" TB may fail to
complete a course of treatment with
antituberculins such as isoniazid (INH) or
rifampin. The stopping and starting of
medication gives rise to the opportunity
for infection. Then, the drugs kill only
the must vulnerable of the bacteria,
leaving the remaining, stronger germs to
be passed on.
Successful treatment requires a patient
to follow a demanding course of therapy,
perhaps taking as many as four different
drugs, several pills per dose, every day
for two months and then several times a
week for six more months. Such a
complicated course can be difficult to
follow for those whose low immunity
makes them most vulnerable to the
disease. Many are trying to survive on
the streets and figure out where the next
meal is coming from; adhering to such a
strict regimen often proves too burdensome.
If "first-line" drugs prove ineffective,
the patient must go to "second-line" drugs

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 foundationfunded 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 materiol is encouraged with
the stipulation that the Nationol 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 is available on 16mm
microfilm, 35mm microfilm and 105mm
microfiche from Vniversity Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.
THE NATIONAL PRISON PROJECT JOURNAL

Drug-Resistant Tubercu losis
Provisional figures for the first three months of 1991; confirmed cases
of tuberculosis were tested for resistance to two major T8 drugs,
isoniazid and rifampin.

of view on isolation. If a prisoner is in a
very active stage of the disease, spitting
up sputum, and so on, it would be
irresponsible to put him or her in general
population. What worries me is that
corrections administrators will use
surrogate markers, such as HIV infection,
c:o TB, or AIDS to isolate people. Isolation is
fine if narrowly targeted."

.~

"§

~ Crowding in prison
~

When planners and architects design

.~ correctional t).cilities, they construct

~ systems to mf:e1 what is called the
ci "design capacity," or the number of

~ people intended to inhabit the building.

When that capacity is exceeded, as is
often the case today (se~ NPP Status
>; Report, p. 13) a ventilation system which
~ was not medically designed may be
l unable to filter the air to prevent the
1l accumulation of microorganisms and
g: other contaminants.
@ Ventilation in institutions is generally
-t designed to remove odors and provide
1: heating and cooling, not to prevent
8 infection.
The physical conditions that give rise
almost 900%, from 15 per 100,000 in 1976to the spread of TB are part and parcel {)f
78 to greater than 130 per 100,000 in
most court pens, correctional facilities,
and police holding areas: overcrowding,
1988-91." Coughlin stressed that "their
[the prisoners'] health problems reflect
poor ventilation, and constant movement.
those faced by the community at large."
Studies have even shown that spending
In the wake of the fatalities, New York
time in prison or jail can be an independent risk factor in itself for the contraccorrections officials in the state have
tion of tuberculosis.s
begun testing all staff and inmates to
provide a baseline of data.
Unlike the HIV virus, which cannot be
All inmates and staff with positive
spread through casual contact, the TB
reactions to skin tests should be considbacteria is airborne and can be transmitered for preventive doses of drugs,
ted by coughing, sneezing, or talking.
according to health experts. HIVWhen people talk, cough, or sneeze, large
negative individuals who test positive on
numbers of droplets are ejected, many of
a tuberculosis skin test should undergo
which contain infected organisms. The
six to 12 months of INH therapy, while
droplets can remain suspended in a room
HlV-positive people should undergo a full or cell for many hours after an infected
individual has departed.
12 months' worth.
The New York City experience is
Some health experts say that crowding
similar to the state's. Dr. Safyer reports
by itself, if accompanied in all cases by
that in 1985 Rikers Island had two deaths adequate ventilation, may not contribute
from tuberculosis and in 1990 there were
to spread of the disease. But according to
12 (four of which were MDR-TB).
one environmental expert,
"Crowding...favors the spread of such
infections because it increases the
Isolation needs and civil liberties
likelihood of the organisms finding a
concerns
Usually a seven-to-14-day isolation
new host and reduces the distances they
must travel between hosts."6
period is sufficient for a person with a
Epidemiological studies of TB in the
healthy immune system to become noninfectious, once treatment therapy has
Cook County, Illinois, Jail demonstrated
begun. Since people with HlV infection
that crowded contact among large
do not respond as quickly to drugs, they
numbers of men caused a rapid spread of
will require a longer course of therapy.
disease throughout the institution.7
Larry Gostin, executive director of the
"The mass incarceration of populations
American Society of Law and Medicine,
at risk," says Safyer, "has contributed to
says, "I would take a public health point
this epidemic. Putting more than one
~

-g

tine. In all three scenarios you will need
to be isolated from society."
If the MDR-TB occurs in a patient with
HlV infection it usually proves deadly;
indeed, being infected with HIV can
narrow the progression from disease to
death to as little as 30 days.
Most tuberculosis, health officials
emphasize, is still "garden-variety,"
however, and responds to drugs. Individuals who become infected may never
develop a clinical illness because the
immune system brings the infection
under controL The infection could
persist for years while the individual
remains at risk of developing the disease
at any time, especially if the immune
system becomes impaired.
New York: a microcosm?
Last November, a strain of drugresistant tuberculosis killed 13 prisoners
and a correctional officer in New York.
All 14 fatalities in New York had one
thing in common: a weakened immune
system. The prisoners were immunosuppressed because they were HlVinfected; the correctional officer's
immune system had been weakened
because he was receiving chemotherapy
treatments for cancer.
After the 14 deaths became known,
Thomas A. Coughlin 3d, commissioner of
correctional services in New York,
announced that "the rate of TB among
inmates has increased dramatically, rising
THE NATIONAL PRISON PROJEG JOURNAL

WINTER 1992 3

million Americans behind bars-- mainly
minorities--must be evaluated from a
public health as well as a social perspective."
Who is at risk for contracting
tuberculosis?

"HIV," said CDC's Bloch in a speech to
correctional health care workers, "is now
the strongest risk factor yet identified
for developing tuberculosis.
"HIV has changed tuberculosis from a
chronic disease to an acute disease as
well as one with an extremely short
incubation period."
Another New York City study showed
that individuals who are HIV-infected
are at very high risk of developing active
TB, apparently because the suppressed
immune system allows the reactivation
of latent infection.8 Thus, while HIV
infection does not actually increase the
chance of getting infected with TB, it
increases the chance of its development
into active disease. The estimated risk of
developing tuberculosis in the HIVpositive patient groups is 8% per year
versus a lifetime risk among the immunocompetent of 10%.9
The incidence of HIV infection in state
and federal prison systems is now rated
at 180 per 100,000, compared to 17 per
100,000 in the outside world. In other
words, a person in prison is about 10
times more likely to have AIDS. In terms
of TB, the result is that "corrections
facilities are sitting on a powder keg,"
says Bloch. A recent study showed one
in 20 people in a correctional facility is
HIV-positive, while the range of prevalence in some institutions is as high as
one in nine, some one in seven for HIV
infection.
"If TB gets in those systems, you have
the potential for a very large number of
cases to develop in a very short period of
time. If it is MOR-TB it is extremely
explosive," says Dr. Bloch.
Spread beyond the walls

Tuberculosis will also touch communities into which prisoners are released.
More than nine and a half million people
are discharged annually from local jails,
and more than 400,000 from state and
federal prisons--all potentially infectious
with TB. Because the median age upon
release is 28 years, the lifetime risk of TB
in a person infected during imprisonment
may be considerable.1O
Pretrial detainees stay in jail a relatively short time. Within seven days of
arraignment in New York City, for
example, 47% of detainees have been
4 WINTER 1992

released back into their communities.
Many return to homes with children
who may then become exposed.
Dr. Safyer also points out that
Montefiore Rikers Island staff have a
higher positive skin test rate than the
inmate/patients. "Many of our staff

have been working here for many years
and some of that rate is from job
exposure."
Outbreaks of DIV/MDR-TB

"This is the TB of the future and it is
happening right now," says Dr. Bloch.
"We have never seen...hospitalbased...tuberculosis outbreaks like this
before and we have never seen drugresistant TB outbreaks like this before."
He stressed that both hospitals and
corrections facilities have many HIV-and
TB-infected patients.
"Weare close to losing all of our firstline drugs for treating tuberculosis in
this country," he continued. "HIV is the
driving force behind these multiple-drug
resistant tuberculosis outbreaks. Also,
there is an extremely high mortality in
patients with end-stage HIV disease in a
very short period of time."
The actual number of deaths from
MDR-TB is impossible to ascertain since
doctors and laboratories do not routinely
test for the susceptibility of the bacteria
to drugs.
Why standard tests fail in HIV/TB cases

Tuberculosis is also more difficult to
detect in an individual co-infected with
the HIV virus. When a person is infected
with TB, he or she becomes extremely
anergic (without immune energy). The
immune system is then incapable of
mobiliZing a response to make a skin test
for TB turn positive. Thus, yet another
difficulty is presented: the disease can
escape detection among HIV-positive
people, the group in which most of the
new cases have occurred.
Montefiore Rikers Island has found
that 25% of active IV drug users are
anergic upon entry.
What does the future hold?

Dr. Bloch presented a grim scenario for

the year 2000: "I would like to be proven
wrong, but my personal opinion is that
this is what is going to happen: we will
see the widespread occurrence of
multiple-drug resistant and pan-resistant
tuberculosis....It will be extremely lethal
to HIV-infected persons.
"Right now multiple drug resistance
appears confined to a few states. But,"
says Dr. Bloch, "so was AIDS, initially,
and so was a certain strain of gonorreah,
but both entities were eventually
disseminated thrpughout the United
States. The simtl'ar initial distribution is
an ominous sigh'that this is going to
spread....
"We have reports of patients who are
resistant to seven drugs and reports of
patients resistant to all five first-line
drugs. All this," he reported, "within a
few months after the initial outbreaks
were investigated.
"One of the tragedies of this panresistant TB is when it infects an HIVinfected person it will wipe out the
benefits of AZT or whatever new antiviral drugs we have."
CDC recommendations
Dr. Bloch recommended the following
procedures be followed:
I) Place TB patients on directly observed therapy to make sure they get
medication;
2) Increase the number of drugs in
regimens; at least two drugs to which
organisms are susceptible. Some
hospitals are now starting people on
five drugs;
3) Use negative pressure isolation rooms;
4) Strictly enforce infection control;
5) Establish special TB hospitals and
sanitoria. "Nobody is talking about
that now," he says, "but it will be the
subject of debate in the future";
6) Rapidly test for drug-susceptibility;
7) Rapidly report results;
8) Be alert to drug resistance in hospitals and prisons;
9) Report HIV in TB patients. "It would
be helpful," said Bloch, "if HIV
reporting occurred for TB patients,
but that will require state laws being
changed";
10) X-ray everyone who tests positive for
HIV, whether or not they have a
positive skin test for TB and have no
symptoms.
Stop the buck

Bloch further suggests that a staff
member in the correctional facility be
assigned to each TB case.
(cont'd on page 21)
THE NATIONAL PRISON PROJECT JOURNAL

\.i

'I

NPP Denounces
ACA's Failure to
Back Use of
Force Standards
n October 1983, Keith Hudson, an
inmate at the Louisiana State
Penitentiary, was being transported to
a disciplinary cell within the prison by
two correctional officers. An earlier
argument had ensued between Hudson
and the officers. After moving him out of
sight of other prisoners, the officers began
to beat Hudson while he was in handcuffs
and shackles. One officer held him while
the other punched him in the mouth,
eyes, chest and stomach. Alieutenant
standing nearby did nothing more than
caution the officers "not to have too
much fun." The beating cracked Hudson's
dental plate, loosened his teeth and split
his upper lip.
The correctional officers' actions were
in complete violation of the use of force
standards established by the American
Correctional Association (ACA). Yet, when
Mr. Hudson's case reached the Supreme
Court of the United States in 1991, the
ACA declined two invitations to file an
amicus brief on his behalf. Their decision
drew sharp criticism from Alvin J.
Bronstein, the executive director of the
National Prison Project.
Bronstein was appointed counsel in
Hudson v. McMillianl in April of 1991
after the Supreme Court granted Hudson's
pro se petition for certiorari. Under
challenge was the Fifth Circuit's decision
that because Hudson had not suffered a
"significant ~njury," he had no viable
claim under the Eighth Amendment ban
on cruel and unusual punishment.
Bronstein argued Hudson's case in the
Supreme Court on November 13, maintaining that "significant injury" should not be
a requirement of an Eighth Amendment
claim. His argument was supported by an
impressive group of amici (friends of the
court). The office of the U.S. Solicitor
General not only filed an amicus brief
but also argued a portion of the case.
Americans for Effective Law Enforcement
(AELE), Human Rights Watch, and two
prisoners' rights groups also filed as amici
The ACA, whose mission is to develop
professionalism in corrections, would
have been an influential ally.

I

THE NATIONAL PRISON PROJECT JOURNAL

Their standard regarding use of force by
guards on inmates reads: "Written policy,
procedure, and practice restrict the use of
physical force to instances of justifiable
self-defense, protection of others, protection of property, and prevention of
escapes, and then only as a last resort arid
in accordance with appropriate statutor~
authority. In no event is physical forcejustifiable as punishment."2
.
Bronstein first contacted the ACA ".
regarding Hudson in April. In a lett.~r to
then-director Anthony Travisono, he
urged the group to file an amicus brief
"to help prevent the Supreme Court from
creating an environment in which what
happened to Hudson and what happened
more recently with the L.A.P.D. [Los
Angeles Police Department] can become
everyday occurrences.
"I believe it would be disastrous for
professional law enforcement and
corrections personnel if the Supreme
Court were to ratify the Fifth Circuit"
decision, he wrote. "[C]orrectionalofficers
could hang a prisoner by his thumbs for
two weeks. Every hour, an officer could
smash the prisoner in the kidneys.
However, because the prisoner suffered no
'significant injury,' no claim could be
made that the officers' conduct violated
the Constitution."
AELE also contacted the ACA; inviting
them to sign on to their amicus brief.
Director Wayne Schmidt wrote to
Travisono, "In more than 120 cases, our
brief has been on the same side as the law
enforcement agency....This would be our
third case" in which they filed "on the
other side."
At their May meeting, the ACA Executive Committee rejected both invitations
to join as amicus. President Helen
Corrothers wrote to Bronstein, noting the

"abhorrence each member felt concerning
the use of unnecessary force." She said
that the Committee felt it was not "in the
best interest of the ACA" to sign onto
AELE's brief.
"The role of the Association is to foster
good correctional practice through the
development, promulgation and implementation of policies, standards and
methods for measuring compliance or
accreditation," Corrothers wrote. "The
Association has...strongly advocated
through train\tJ.g and technical assistance
compliance "V;lth correctional policies and
standards cqncerning the appropriate and
humane care of offenders."
She concluded by saying, "This request
to file a brief in the United States
Supreme Court against a member agency
is not covered by previously established
policy and procedure."
Bronstein replied: "First, your protestations about training, standards and good
correctional practice become meaningless
when you refuse to defend your own
standards. Second, you were not asked 'to
file a brief against a member agency'....
You were asked to appear as an expert
friend of the court, to explain and to
defend your own professional standards,
in a case against three correctional
officers who clearly violated those
standards. No agency is involved in the
case. And what difference should agency
involvement make? Suppose the Louisiana Department of Corrections decided to
murder every other incoming prisoner to
alleviate overcrowding. Under your
rationale, the ACA would fill the air with
silence."
Bronstein then wrote to all members
of the ACA Standards Committee. "I
thought I should share with you the
fact that, once again, the ACA leadership has demonstrated that ACA
standards are not professional corrections standards. Rather, they are a
collection of words and phrases relied
on selectively by various ACA officials
when it serves their interest (e.g., as a
defense to a conditions laWSUit; as a
means of getting funds from the
legislature).
"The ACA Executive Committee action-non-action may be a better description-makes a sham of the whole standards and
accreditation process." II

Betsy Bernat is the editorial assistant of
the NPPJOURNAL.
'No. 90-6531, cert granted April 15, 1991.
'American Correctional Association, Standard 3-4198
(Ref 2-4206), Standards for Adult Correctional
Institutions, 3d ed., Oanuary 1990).

WINTER 1992 5

1
/",

"

"

'

,"

~",*~~rt

A PROJECT OF THE AMERICAN CIVIL L1BERTIES'~NION FOUNDATION, INC.
VOL. 7, NO.1, WINTER 1992 • ISSN 0748-26.%

Highlights of Most
Important Cases
State Officials and Agencies
It isn't a prison case, but the Supreme
Court's decision in Hafer v. Melo, 60 U.S. Law
Week 4001 (November 5, 1991), will make a
big difference in prisoner damage litigation.
In Hafer, the Court clarified some of its recent
jurisprudence of "capacity" and of the
Eleventh Amendment. In doing so, the Court
preserved the ability of prisoners to recover
damages for constitutional violations
committed pursuant to official policy.

The Legacy of Will
The Court's task in Hafer was to clean up
the mess left by some of its own loose talk in
Will v. Michigan Dept. of State Police, 491 U.S.
58 (1989). Will held that 42 U.S.C. §1983, the
Reconstruction Era civil rights statute under
which most prisoner actions are brought, does
not permit suits against states, even in state
courts, because they are not "persons" within
the statute's meaning. And it extended that
holding to state officials "acting in their
official capacities," reasoning that an official
capacity suit is not a suit against the official
but rather is a suit against the official's office.
491 U.S. at 70-71{emphasis supplied).
The use of the word "acting" yielded a
bumper crop of mischief. Formerly, the word
"capacity" had been interpreted to refer only
to the plaintiff's intent to seek relief against
government officials as individuals or against
the governmental entities they serve. Damage
claims under §1983 against state officials were
by necessity pled as individual or personal
capacity claims. See Kentucky v. Graham, 473
U.S. 159, 165-66 (1985). Will, however,
suggested that capacity is not determined by
how the plaintiff pleads, but rather by the
nature of the conduct the defendant is alleged
to have committed, and how that conduct is
related to the official's authority and to the
policies of the government entity that
employs the official.
6

WINTER 1992

That, in any case, was how several lower
courts saw the matter. The Sixth Circuit
declared that under Will, "[t]he capacity in
which the individual defendants were acting
is what matters, not the capacity in which
they were sued...." Rice v. Ohio Dept. of
Transportation, 887 F.2d 716, 719 (6th Cir.
1989) (emphasis supplied).
The effect of Will went beyond the
definition of "person." It also vastly expanded the scope of Eleventh Amendment
immunity. The Eleventh Amendment
actually says only that suits against states by
citizens of other states or countries cannot be
heard in the federal courts. However, it has
long been construed to bar official capacity
damage suits against state officials, and courts
that believed Will broadened the definition
of "official capacity" gave the Eleventh
Amendment a correspondingly broad sweep.
Cowan v. University of Louisville School Of
Medicine, 900 F.2d 936, 942-43 (6th Cir. 1990).
The result in prison cases was to place
alleged constitutional violations by staff
outside the reach of §1983 unless they were
unauthorized by or contrary to prison policy.
See, e.g., Eckford-El v. Toombs, 760 F.Supp. 1267,
1269-70 (W.D.Mich.1991) (damage claim for
unjustified seizure of correspondence
dismissed because the defendants were
"working as employees of" the prison);
Galipeau v. Berard, 734 F.Supp. 48, 51 (D.R.I.
1990) (officers' acts would not be actionable
if they were done pursuant to a prison
regulation); Portee v. Tollison, 753 F.Supp. 184
n.4 (D.S.C. 1990) ("prison policy...rather than
any maverick actions" of prison personnel
could not be the basis of a §1983 suit).

The Decision in Hafer
In Hafer, the newly elected Auditor
General of Pennsylvania fired several
subordinates who, she claimed, had obtained
their jobs through improper means. Some of
the employees sued under §1983, alleging that
the real reason for their discharge was their
Democratic political affiliation and their
support for Hafer's opponent.
Relying on Will v. Michigan Dept. of State
Police, Hafer argued that she had fired the
employees in her official capacity and was
therefore not amenable to suit under §1983.

She also argued ttlut she was immune from
suit under the E~~~enth Amendment. The
Third Circuit rejected her arguments, creating
a square conflict between circuits concerning
the interpretation of Will. See Melo v. Hafer,
912 F.2d 628, 634-37 (3rd Cir. 1990).
The Supreme Court resolved this conflict by
unanimously rejecting both of Hafer's
arguments, offering a crucial clarification of
Wilt "the phrase 'acting in their official
capacities' is best understood as a reference to
the capacity in which the state officer is sued,
not the capacity in which the officer inflicts
the alleged injury. To the extent that Will
allows the construction Hafer suggests, we
now eliminate that ambiguity." 60 U.S. Law
Week at 4003.
The Court went on to point out that any
other view would contradict the intent of
§1983, since the statute was intended to
prOVide redress for officials' abuse of their
authority. "We cannot accept the novel
proposition that this same official authority
insulates Hafer from suit." [d. Nor was the
Court willing to distinguish between actions
within and without the scope of the official's
authority, or between those allegedly
essential to the performance of governmental
functions and those that were not so
essential. It cited its prior holding that §1983
was intended to prOVide liability against
officials "whether they act in accordance
with their authority or misuse it." [d. at 4003,
citing Scheuer v. Rhodes, 416 U.S. 232, 243
(1974) (internal quote marks omitted). It also
observed that Hafer's position "cannot be
reconciled" with the large body of existing
law concerning official immunity in civil
rights cases.
Determining that the claims against Hafer
were personal capacity claims removed the
chief basis for her Eleventh Amendment
defense. The Court gave short shrift to what
was left of her argument, observing only that
it was long established that personal capacity
damage claims were not barred by the
Amendment. 60 U.S. Law Week at 4004.

History and the Other Shoe
The Eleventh Amendment and related
capacity issues have been a persistent source
of controversy and conceptual difficulty.
THE NATIONAL PRISON PROJEG JOURNAL

Even the courts admit that Eleventh
Amendment jurisprudence makes little sense.
See, e.g., Eng v. Coughlin, 858 F.2d 889, 897
(2nd Cir. 1988) ("noLa model of logical
symmetry, but marked rather by a baffling
complexity"); Spicer v. Hilton, 618 F.2d 232, 235
(3rd Cir. 1980) ("Any step through the looking
glass of the Eleventh Amendment leads to a
wonderland of judicially created and
perpetuated fiction and paradox.")
This should not be surprising, since last
century's leading Eleventh Amendment case
declares that the meaning of the Amendment
is not limited by its narrow language. By its
terms, the Amendment forbids the federal
courts to entertain suits against states by
citizens of other states or foreign countries.
However, in Hans v. Louisiana, 134 u.s. 1
(1890), the Supreme Court held that the
Amendment somehow embodies traditional
doctrines of sovereign immunity and thereby
forbids suits against states by their own
citizens.
Later, the Court realized that Hans
effectively nullified the Reconstruction civil
rights statutes and made unenforceable the
Fourteenth Amendment, which by that time
chiefly benefited businesses in their attempt
to avoid state regulation. In Ex parte Young,
209 U.S. 123, 159-60 (1908), therefore, the Court
held that a state official who violates the
Constitution is "stripped of his official or
representative character and is subject in his
person to the consequences of his individual
conduct," even if the official is enforcing a
state statute. This holding, which is the basis
of all modern §1983 jurisprudence, is
commonly known as the "Ex parte Young
fiction."
The next major controversy in this area is
likely to involve injunctive actions against
state officials. Again, it will arise from the
intersection of Eleventh Amendment doctrine
and the definition of capacity.
The above-quoted language from Ex parte
Young, which was an injunctive case,
indicates that injunctive claims should be
brought against officials in their individual or
personal capacities. Such was the practice for
many years. See, e.g., ACLU ofMississippi v.
Finch, 638 F.2d 1336, 1340-42 (5th Cir. 1981)
(holding that claims were in personal
capacity for Eleventh Amendment purposes
but in official capacity for purposes of
substitution of parties). This practice was
unsettled by more loose talk from the
Supreme Court. In Kentucky v. Graham, 473
U.S. 159, 167 n.14 (1985), in the course of
adjudicating an attorneys' fees controversy
arising from a damage case, the Court
observed in passing that "offiCial-capacity
actions for prospective relief are not treated
as actions against the State" (emphasis
supplied), citing but not seriously discussing
THE NATIONAL PRISON PROJEG JOURNAL

Ex parte Young, and ignoring the practice and
interpretation of cases like ACLU v. Finch.
This passing reference was reiterated with
equal superficiality in Will, 491 U.S. at 71 n. 10.
Since Graham, the lower courts have
generally referred to injunctive claims as
official capacity claims. See, e.g., Gilbreath 'v.
Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th
Cir.1991).
Meanwhile, in another part of the forest,
the Supreme Court had stated that offic~al
capacity suits "generally represent only;:
another way of pleading an action against an
entity of which an officer is an agent."
Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690 n55 (1978). It said
so in the course of holding in the context of
local government liability that such suits can
be brought only where "the action that is
alleged to be unconstitutional implements or
executes a policy statement, ordinance,
regulation or decision officially adopted and
promulgated by that body's officers." Id. at
690; see also Canton v. Harris, 489 U.S. 378
(1989) (summarizing development of "official
policy" requirement).
Taken together, these cases can be read to
support the following syllogism:
1. Injunctive claims are necessarily
official capacity claims.
2. Official capacity claims require proof
that the challenged conduct results
from official pblicy.
3. Therefore, without such proof of
official policy, no injunction can be
granted.
That is exactly the conclusion of Griffin v.
Fairman, 770 F.Supp. 1271 (N.D.Ill. 1991), in
which a prisoner sought the return of good
time and classification grade that he lost in
an allegedly unconstitutional disciplinary
proceeding. Since there was no evidence of
an official policy of denying prisoners their
due process rights, the court held that the
plaintiff could not maintain an injunctive
claim. Accord, Nix v. Norman, 879 F.2d 429,
432-33 (8th Cir. 1989) (assuming that an
allegation of "state policy" is essential to an
official capacity injunctive claim against state
officials); Parsons v. Bourff, 739 F.Supp. 1266,
1267 (S.D.Ind. 1989).
This view poses serious problems for prison
and other civil rights jurisprudence, since
official agencies rarely promulgate official
policies to violate the Constitution. To take a
single example, it would undermine the
decision in Inmates of Attica v. Rockefeller,
453 F.2d 12 (2nd Cir. 1971), directing injunctive
relief after the rebellion and retaking at
Attica in order to protect prisoners against
gauntlet beatings and other retaliatory abuse
that clearly was contrary to official policy.
As long as these acts were officially discouraged, however ineffectually, judicial relief

might be unavailable.
Common sense and some authority support
the view that the "official policy" reqUirement has no application to injunctive cases
and that an injunction can be granted against
any person who violates the Constitution
under color of state or federal law. Chaloux
v. Killeen, 886 F.2d 247 (9th Cir. 1986); Nobby
Lobby, Inc. v. City ofDallas, 767 F.Supp. 801
(N.D.Tex. 1991); Schwarz v. Ohio State
University Board of Trustees, 31 Ohio St. 3d
267,510 N.E.2d 808, 812-13 (Ohio 1987) (state
court §1983 acl;ion applying federal law). But
the Supreme C,ourt's piecemeal approach to
issues of capacity by no means forecloses the
question. We can probably expect more
holdings like that of Griffin v. Fairman, and
ultimately the necessity of clarification by
the Supreme Court.

REMEDIES/FINANCIAL RESOURCES
Problems of long-standing or recurrent
noncompliance with injunctive orders are
endemic in prison and jail litigation. Courts
have engaged in many strategems to obtain
compliance in seemingly intractable situations, including further injunctions, appointment of monitors and masters, contempt
findings, and monetary penalties. In Shaw,v.
Allen, 771 F.Supp. 760 (S.D.W.Va. 1990), the
court has gone one step further and appointed a receiver, entirely supplanting the
authority of local officials.
Shaw involves the county jail in McDowell
County, West Virginia. In 1983, the court
entered an injunctive order to ensure
constitutional conditions of confinement. In
the face of persistent noncompliance, the
plaintiffs moved for contempt in 1985, 1987,
and 1988. The court in response ordered
inspection of the jail and recommendations
by outside experts; a contempt finding and a
temporary population cap; and appointment
of a monitor. Nothing worked, and the
monitor reported in 1989, "I hold no hope
that voluntary efforts at compliance will
effect compliance with the 1983 court order."
The plaintiffs moved again for contempt in
1990, and the court had had enough. It
appointed as receiver W. Joseph McCoy, a
professor at Marshall University and a former
state Commissioner of Corrections, under a
broad grant of authority:
...[Tjhe powers Of the receiver to implement
this Order shall be that authority, which
in usual circumstances is vested by law in
the County Commission and the Sheriff of
McDowell County as such related to the
operation of the McDowell CountyJail
and its environs.
The appointment was made for a period of
one year, renewable upon a showing of
continued or prospective noncompliance.
Shaw is not the first instance of federal
WINTER 1992 7

court receivership in a jail or prison case. The
entire Alabama prison system was placed in
receivership at one point by a federal court.
Newman v. State of Alabama, 466 F.Supp. 628,
635 (M.D.Ala. 1979). But in Newman, the state
governor was appointed as receiver. Shaw
appears to be the first reported case in which
local authority over jail or prison operations
has been so completely bypassed. There was
apparently a prior receivership [involving the
same receiver] in an unreported case arising
from Cabell County, West Virgina in 1981.
Shaw, 771 F.Supp. at 764, citing Brown v.
Bailey, Civil Action No. 78-3046-H (S.D.W.Va.,
June 5, 1981). Other receiverships have been
created by federal courts in school desegregation and in environmental cases, and by state
courts. Shaw at 762 (citing cases).

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Work Assignments/ClassificationRace
La Bounty v. Adler, 933 F.2d 121 (2nd Cir.
1991). A black inmate's allegation of racially
disparate treatment in program assignments
and of a history of racially disparate
treatment stated an equal protection claim.

Pre-Trial Detainees/Procedural Due
Process-Transfers
Covino v. Vermont Dept. of Corrections, 933
F.2d 128 (2nd Cir. 1991). Apre-trial detainee
complained that he was transferred to
administrative segregation. The district court
should have analyzed Vermont statutes and
regulations to determine whether a statecreated liberty interest existed. Regardless of
the propriety of the initial transfer, the
plaintiff's nine-month confinement "smacks
of punishment," and the district court should
analyze it undep,.Bell v. WolfiSh.

Class Actions-Effect of Judgments and
Pending Litigation/Judicial
Disengagement
Picon v. Morris, 933 F.2d 960 (8th Cir. 1991).
A class action consent decree provided that
certain "emergency segregation cells" would
be used only in limited circumstances for
short periods of time. After three years of
compliance reports, the defendants claimed
that the cells were no longer used, and the
court held it was "no longer required to retain
jurisdiction" and dismissed "the above cause"
with prejudice.
The plaintiff was held in one of the cells in
violation of the consent decree. He amended
his complaint to allege violation of the decree
8 WINTER 1992

only after the decree had been dismissed. The
plaintiff then filed a Rule 60 motion to
vacate the dismissal of the decree, fearing
that res judicata would preclude his §1983
action and the dismissal of the decree would
bar his contempt claim.
Assuming that the district court's dismissal
vacated the consent decree, the district court
abused its discretion in denying the motion to:r
vacate the dismissal so the plaintiff could
proceed with a contempt action.

Women/Monitoring and Reporting/
Contempt/Financial Resources/
Attorneys' Fees and Costs
Glover v.johnson, 934 F.2d 703 (6th Cir.
1991). The district court long ago found
that program opportunities for women were
so inadequate as to deny equal protection.
The district court later appointed a "special
administrator" after finding that prison
officials had not complied with prior
orders.
The defendants were properly held in
contempt under the clear and convincing
evidence standard. Although they did not
obtain all the cooperation that they wished
from outside colleges and educators, they
failed to explore or attempt alternative
solutions and failed to take all actions that
were under their control.
The court rejects the argument that
enforcement requires the participation of
other state agencies and the legislature and
should therefore be abandoned. The court
orders are directed at prison officials and
require parity of programming.
Requiring the defendants to appoint an
administrator to develop a remedial plan
was not an abuse of discretion. The court
had determined that expert advice was
required, and the record "shows a consistent
and persistent pattern of obfuscation, hypertechnical objections, delay, and litigation by
exhaustion...to avoid compliance with the
letter and spirit of the district court's orders."

ResJudicata and Collateral Estoppel!
Prisoners as Staff
McDuffie v. Estelle, 935 F.2d 682 (5th Cir.
1991). The Ruiz v. Estelle decision collaterally
estopped Texas prison officials with respect
to the constitutionality of the building tender
system, but not with respect to disciplinary
practices, in a subsequent damage action. At
685-86: "[T]hose officials not named as
defendants in Ruiz were nevertheless bound
by the injunction as agents and employees of
TDC and Estelle."

Qualified Immunity/SearchesPerson-Visitors and Staff
Daugherty v. Campbell, 935 F.2d 780 (6th
Cir. 1991). A visual body cavity search of a

prison visitor without "at least reasonable
suspicion" violated clearly established law.
The court relies on dicta from a previous
Sixth Circuit case and on the consensus of the
three other circuits that had ruled on the
issue before the incident in question.

Punitive Segregation/Summary
Judgment
Williams v. Adams, 935 F.2d 960 (8th Cir.
1991). Allegations that the plaintiff was
placed in "the hole" for 13 days in a cell with
a broken toilet th~ leaked filthy waste onto
the floor stateda~Fonstitutional claim.

Federal Prisons and Officials/Exhaustion of Remedies
Terrell v. Brewer, 935 F.2d 1015 (9th Cir.
1991). Afederal prisoner seeking both
damages and injunctive relief cannot bring a
Bivens action without first exhausting any
available administrative remedies. The
proper disposition where remedies have not
been exhausted is dismissal without prejudice.

Attorneys' Fees and Costs
Cabrales v. County of Los Angeles, 935 F.2d
1050 (9th Cir. 1991). The plaintiff won a
verdict of $150,000 in a jail suicide case and
prevailed on appeal; the Supreme Court
granted certiorari and vacated and remanded;
the appellate court reinstated its affirmance
and the Supreme Court denied certiorari. The
plaintiff prevailed as to her unsuccessful
opposition to the first certiorari petition. "If
a plaintiff ultimately wins on a particular
claim, she is entitled to all attorneys' fees
reasonably expended in pursuing that claimeven though she may have suffered some
adverse rulings." (1053) "[Llosing is part of
winning." (1053)

Pro Se Litigation/SummaryJudgment
Hall v. Bellmon, 935 F.2d 1106 (10th Cir.
1991). At 1109:
When the pro se plaintiff is a prisoner, a
court-authorized investigation and report
by prison Officials (referred to as a
Martinez report) is not only proper, but
may be necessary to develop a record
sufficient to ascertain whether there are
any factual or legal bases for the
prisoner's claims.... Telephone evidentiary
hearings before a judge or magistrate may
serve the same purpose as a Martinez
report....Although a court may consider the
Martinez report in dismissing a claim
pursuant to §1915(d),...it cannot resolve
material disputed factual issues by
accepting the report's factual findings
when they are in conflict with pleadings
or affidavits....A bona fide factual dispute
exists even when the plaintiff'sfactual
allegations that are in conflict with the
THE NATIONAL PRISON PROJECT JOURNAL

Martinez report are less specific or welldocumented than those contained in the
report. Because pro se litigants may be
unfamiliar with the requirements to
sustain a cause of action, they should be
provided an opportunity to controvert the
facts set out in the Martinez report.
At 1ll0:
A pro se litigant's pleadings are to beconstrued liberally and held to a less
stringent standard than formal pleadings
drafted by lawyers. We believe that this
rule means that if the court can reasonably read the pleadings to state a valid
claim on which the plaintiff could
prevai4 it should do so despite the
plaintiff'sfailure to cite proper legal
authority, his confusion of various legal
theories, his poor syntax and sentence
construction, or his unfamiliarity with
pleading requirements.

Pre-Trial Detainees/Medical CareStandards of Liability-Serious
Medical Needs
Davis v.jones, 936 F.2d 971 (7th Cir. 1991).
At 972:
Police must respond to conditions they can
observe. Just as the Constitution does not
demand thatpolice obtain medical care
for prisoners whose injuries appear to be
slight but turn out to be serious, so the
officers must obtain medical care when
the wound reasonably appears to be
serious even if the risk turns out to be
small. Police can act only on appearances,'
anything else is gambling with another
person's life, a wager the Constitution does
notpermit arresting officers to undertake.
Whether the injury is actually serious is a
question best left to a physician.

Procedural Due Process-Disciplinary Proceedings
Ramer v. Kerby, 936 F.2d 1102 (lOth Cir.
1991). A policy barring prisoners from
calling staff.,Jnembers as witnesses denied
due process, which requires an individualized determination of the importance of
each witness's testimony and the interests of
the institution. An assertion that testimony is
"merely cumulative" generally does not justify
denying a witness request "when that inmate
faces a credibility problem trying to disprove
the charges of a prison guard."
The plaintiff was not denied due process
when his witness request was denied based on
his refusal to submit written questions, a
procedure which is essential for the disciplinary committee in determining whether to call
the witness.

Food/Religion-Practices-Diet
LaFevers v. Saffle, 936 F.2d 1117 (10th Cir.
THE NATIONAL PRISON PROJECT JOURNAL

1991). The Seventh Day Adventist plaintiff's
religious belief in vegetarianism was entitled
to constitutional protection if sincerely held,
even though the religion does not require a
vegetarian diet. The plaintiff's First Amendment claim should not have been dismissed,
nor should his equal protection claim based'
on the provision of pork-free meals to
Muslims.
Defendants justified their refusal to p,rovide
a vegetarian diet on medical grounds ansi on
the alleged risk of liability. The plaintitf
submitted a position paper from the American
Dietetic Association and a letter from a
university professor stating that vegetarian
diets can be nutritionally adequate. The
district court should not have dismissed the
complaint as frivolous under the Turner
standard.

Use of Force/Qualified Immunity
Davis v. Locke, 936 F.2d 1208 (lIth Cir. 1991).
The plaintiff escaped, was recaptured, and
alleged that officers dragged him by his feet
out of a "dog cage" on the back of a pickup
truck while his hands were shackled, causing
him to land on his head. He presented expert
psychiatric evidence of severe psychological
injury and no evidence of physical injury.
The jury awarded no compensatory damages
and $1,750 in punitive damages from each
officer.
The record supports a finding that the
officers violated the Fourteenth Amendment,
if not the Eighth. (This holding is contrary to
the Supreme Court's statement in Whitley v.
Albers that the Due Process Clause confers on
convicts no greater protection against use of
force than does the Eighth Amendment.)
Since the plaintiff had been recaptured, caged
and shackled, he posed no ongOing threats to
the officers. This evidence, combined with
the defendants' threats and racial epithets,
supported a finding of punishment through
excessive force.
The officers were not entitled to qualified
immunity because the law in 1984 prohibited
"the unjustified use of excessive force by a
prison guard against an inmate."

Procedural Due Process-Disciplinary
Proceedings, Classification, Transfers,
Administrative Segregation
Smith v. Massachusetts Dept. of Correction,
936 F.2d 1390 (lst Cir. 1991). Procedural
regulations governing reclassification and
transfer to higher custody did not create a
liberty interest because they did not contain
substantive predicates limiting officials'
discretion. Aclassification contract phrased
in discretionary terms without limits on the
statutory discretion to transfer also failed to
create a liberty interest. In any case, the
plaintiff's disciplinary record breached the

contract and extinguished any liberty interest
he might have had.
Placement in "awaiting action" status based
on a disciplinary report for rape did not deny
due process because the plaintiff received the
process due under Hewitt and the rape charge
met the substantive predicate of posing a
threat to institutional safety.
Prison officials were not entitled to
summary judgment as to their refusal to call
the alleged rape victim to testify where the
reason for their refusal was not in the record.
Prison offici\ls were not entitled to
summary jud!WIent as to their unexplained
refusal to pn:lduce a prison log that would
allegedly have shown that the alleged rape
victim was inaccessible to the plaintiff on the
day of the rape.

Procedural Due Process-Disciplinary
Proceedings/Searches-Urinalysis
Kingsley v. Bureau ofPrisons, 937 F.2d 26
(2d Cir. 1991). The petitioner was ordered to
provide a urine sample for drug testing but
was unable to do so within three hours
despite various extreme measures such as
applying ice to his testicles. He was disciplined for refusing to provide the sample.
The petitioner asked that other inmates •
subjected to the test be called as witnesses.
Although the prison had a list of them, and
the petitioner did not know any of their
names because he had just arrived, the
hearing officer found that the petitioner had
waived their presence by failing to identify
them by name. This constituted an arbitrary
application of the relevant federal regulation,
which tracks the constitutional rules for
witnesses. The witnesses' testimony would
have been probative of the petitioner's
willingness to supply the sample. The
conviction should be expunged and the loss
of 15 days' good time restored unless the
petitioner is given a new and proper hearing.

Attorneys' Fees and Costs/Municipalities
Dotson v. Chester, 937 F.2d 920 (4th Cir.
1991). The plaintiffs settled a jail conditions
case and fees were allocated between the
county commissioners and the sheriff. The
sheriff didn't pay. Since under state law the
sheriff possessed final policymaking authority
for the county, and not the state, the county
could be held liable for the remaining fees.
The plaintiffs were also entitled to attorneys'
fees for time spent in collecting their fees.

Suicide Prevention
Bell v. Stigers, 937 F.2d 1340 (8th Cir. 1991).
Here is yet another case of a young drunk
driving arrestee who had never been in jail
before and who hanged himself by his belt
after saying, "Well I think I'll shoot myself."
WINTER 1992 9

The jailer who heard this remark and who
violated jail rules by not removing the
arrestee's belt was not deliberately indifferent
because he was not aware of a "strong
likelihood" that the decedent would attempt
suicide. At 1344: "A single off-hand comment
about shooting oneself when no gun is
available cannot reasonably constitute a
serious suicide threat." Jail offiCials are not
liable for knowledge of a prisoner "suicide
profile." The defendant's conduct was
negligent at worst.

Religion-Practices-Beards, Hair,
Dress
Mosier v. Maynard, 937 F.2d 1521 (10th Cir.
1991). The Native American plaintiff was
denied a religious exemption from a haircut
rule under a policy requiring "external
evidence" of his adherence to a "recognized"
religion. He had been granted an exemption
at another prison before his transfer.
The fact that the plaintiff was not a
member of the Cherokee nation or the Native
American worship group at the prison did not
make his belief insincere. Practice or
nonpractice of a particular religious tenet
may be relevant to sincerity but is not
conclusive. "Intrafaith differences are
common and cannot be resolved by secular
courts." (1523) At 1526: in general, "courts
carefully avoid inquiring into the merits of
particular religious beliefs in an effort to
gauge sincerity."
This case is distinguished from previous
cases upholding hair length limits because the
prison is not a temporary detention facility
and because the issue is not the grooming
code but the prison-created exemption policy
and its application. The defendants are not
entitled to summary judgment.

Class Actions-Effect ofJudgments and
Pending Litigation/Searches/Access to
Courts/Contempt
Welch v. Spangler, 939 F.2d 570 (8th Cir.
1991). Aconsent decree provides that legal
papers will not be searched outside the
inmate's presence without consent. The
district court's finding that the decree was
violated is upheld. Regardless of whether a
consent decree may be enforced under §1983,
the plaintiff could pursue a contempt claim.
At 572: "If the court lacked the power to hold
parties in contempt, consent decrees would be
robbed of much of their legal significance,
and the purpose for which the decree was
entered would be undermined."
The court properly imposed a $500 fine.
The court properly imposed $10 in "nominal"
damages. No injury need be proven to
support nominal damages. The award
"personalizes the remedy" and helps ensure
future compliance.
10 WINTER 1992

Use of Force/Qualified Immunity
Felix v. McCarthy, 939 F.2d 699 (9th Cir. 1991).

Correctional officers were not entitled to
qualified immunity in a use of force case in
which it was alleged that one officer "used his
position of authority intentionally and
gratUitously to degrade [the plaintiffs] dignity"
and "threw him across a hallway and against a
wal~ causing bruising, soreness, and emotional .,(,
damage," and two officers then "pushed him yet
another time" (701), all without provocation. l~
was clearly established by 1985 that use of thiS!
sort of force without justification was unconstitutional. Cases excusing the infliction of such
''minor'' injuries involved real or perceived
security threats. At 702: "[I]t is not the degree of
injury which makes out a violation of the eighth
amendment. Rather, it is the use of official force
or authority that is 'intentional, unjustified,
brutal and offensive to human dignity.'''

5

Unsentenced Prisoners and Convicts
Held in Jails/Crowding
Williams v. McKeithen, 939 F.2d 1100 (5th

Cir. 1991). In 1977, a population limit was
imposed on the state prison at Angola.
Subsequently, all pending and future actions
involving crowding in any state prison or
parishjail were ordered consolidated.
Population caps were entered in 1982
governing all parish jails in the state.
The district court ordered that all prisoners
held in any jail by agreement with the
District of Columbia be removed and no
additional prisoners from the Immigration
and Naturalization Service be admitted
without court approval. This was done sua
sponte in response to news about one sheriff's
contract with the District of Columbia, with
no notice to any other sheriff or to the
District; most of the sheriffs filed motions to
vacate, which were denied, and the injunction
was reissued with the District added as a
party and with fines of $10,000 a day per
unauthorized prisoner imposed.
The district court's actions were improper
under the All Writs Act, since they reqUired
"substantial, uncompensated change in
appellants' existing operations" and did not
have a close nexus to an underlying order.
There was no evidence that any state prisoner
had been denied admission to a jail or that
any consent decree had been violated. There
was no actual case or controversy before the
court. Even if the injunction was otherwise
proper, the notice requirements of the Federal
Rules were violated.

DISTRICT COURTS
Correspondence-Legal and Official/
Access to Courts
Chinchello v. Fenton, 763 F.Supp. 793

(M.D.Pa. 1991). An allegation that the
defendant intercepted and read a prisoner's
letter to an attorney stated a First Amendment claim, even though the letter was
ultimately delivered. It also stated a violation
of the right to court access, but only the
prisoner, and not the attorney or his
employer, the LeWisburg Prison Project, had
standing to assert this right. The failure to
provide minimum procedural safeguards
stated a claim for denial of due process.
At 795: "[A] private individual who acts in
concert with fedeJ\l1 officials may be held
liable for violating'a party's constitutional
rights." The defendant was a former warden
of LeWisburg; he used the letter in a meeting
with a private organization to dissuade them
from funding the Lewisburg Prison Project.

Procedural Due Process-Disciplinary
Proceedings/SummaryJudgment/
Qualified Immunity
Richardson v. Coughlin, 763 F.Supp. 1228
(S.D.N.Y. 1991). Officers seized a petition and
other written materials from the plaintiff's
cell and charged him with violating rules
against "sit-ins, lock-ins or other actions
which may be detrimental to the order of the
facility" and against "conduct which disturbs
the order of the facility." The hearing officer
found him guilty, writing that "the acquisition of signatures without the expressed
authorization of departmental officials is
prohibited." There was in fact no rule
requiring prior approval before collecting
signatures on a petition.
The plaintiff is granted summary judgment
on the ground that punishment for violating
a nonexistent rule denies due process. The
hearing officer was not entitled to qualified
immunity as to the lack of notice claim, but
was entitled to qualified immunity to the
extent that his action was based on the
language of the petition.
The defendants were entitled to qualified
immunity on the plaintiff's First Amendment
claim because the plaintiff cited no case that
as of 1987 barred prison offiCials from
regulating the circulation of a petition with
language like this one.
Defendants were not entitled to summary
judgment on plaintiff's damage claim for a
transfer that arguably resulted from the
unconstitutional disciplinary hearing.

<

Protection from Inmate Assault/
Qualified Immunity
McNeal v. Macht, 763 F.Supp. 1458 (E.D. Wis.
1991). Two officers who were present when
the plaintiff was assaulted and allegedly
failed to intervene could be found deliberately indifferent. They were not entitled to
qualified immunity because the right to be
free of deliberate indifference by staff when
THE NATIONAL PRISON PROJECT JOURNAL

attacked by another inmate has been
established for some time.

Modification ofJudgments
National Law Center on Homelessness and
Poverty v. United States Veterans Administration, 765 F.Supp. I (D.D.C. 1991). At 6:
A court has the authority to issue further
orders to enforce its prior injunction..../n
making such a decision, a court may take
into account the compliance with the
court's previous orders and the needfor a
further order to prevent "inadequate
compliance" in the future....As with the
initial injunction, however, an order
grantingfurther injunctive relief must
also be "narrowly tailored to remedy the
specific harm shown...."
Rehabilitation
Mace v. Amestoy, 765 F.Supp. 847 (D.Vt.
1991). The plaintiff was convicted of lewd
and lascivious conduct with his stepdaughter,
not including sexual intercourse. He was
granted probation on condition that he
complete a treatment program requiring that
he take responsibility for all his sexual
conduct. The program personnel then
demanded that he admit sexual intercourse
with the stepdaughter, and his probation was
revoked after he refused to do so.
At 850: "Even where a person is imprisoned
or on probation, if the state compels him to
make incriminating statements that could be
used in a prosecution against him for a crime
other than for which he has been convicted,
his Fifth Amendment rights have been
violated." This is the case even when
prosecution is "unlikely." The state has the
burden of eliminating the threat of incrimination.

Use of Force
Thomas v. Frederick, 766 F.Supp. 540
(W.D.La. 1991). The sheriff is found liable in a
use of force case based on the absence of
"even the mQ§t rudimentary procedure for
investigating or documenting incidents of
police brutality" and his "turn[ing] a blind
eye" to such allegations. (551) The sheriff's
liability is premised in part on his "duty
under state law to supervise his deputies in
all aspects of their performance, including
the manner in which they observed, or
failed to observe, constitutional standards
in carrying out their duties." (555) The
sheriff is found liable in both official and
individual capacities.

Standing/Racial Discrimination/
Transfers/Personal Involvement
and Supervisory Liability
Martin v. Lane, 766 F.Supp. 641 (N.D.Ill.
1991). The prisoner plaintiff lacked
THE NATIONAL PRISON PROJECT JOURNAL

standing to complain of alleged racial
discrimination in the hiring and promotion
of blacks in the Department of Corrections
and in the failure to deposit funds, including
inmate funds, in minority-owned banks.
A claim that the plaintiff was transferred
in retaliation for his lawsuit, supported byt
a disputed chronology from which retalia·"
tion could be inferred, raised a genUine
issue of material fact.
An allegation that the warden ordered the
lockdown and the departmental directoi;
approved it sufficiently alleged their personal
involvement in the resulting deprivations.

evidence that a substantial danger to society
would be created by such a release." (938)
The court offers the defendants a hearing
on their request to modify the prohibition on
housing inmates in certain units. If conditions are now "clearly within constitutional
norms," there is no reason to keep them
closed, and short-term housing in them may
not undermine the purposes of the order.
The court grants an increase in operating
capacity at a prison that was not the focus of
the litigation and where the court has no
reason to fear t\1at unconstitutional conditions will resu~i

Financial Resources
Kroll v. St. Charles County, Mo., 766 F.Supp.
744 (E.D.Mo. 1991). Aconsent decree resolved
claims of discrimination against the handicapped in public buildings. Abond issue to
pay for renovations was voted down. The
court "orders and adjudges" that it will
"consider" imposing a property tax increase if
the county fails to come up with the funding,
and that a statutory rollback of local taxes
"may" be enjoined.

Searches-Person-Prisoners/Use of
Force/Qualified Immunity/Cruel and
Unusual Punishment/Privacy
Valdez v. Farmon, 766 F.Supp. 1529 (E.D.Cal.
1991). The pregnant plaintiff refused a
strip search incident to a transfer; eventually, an officer shot her in the abdomen
with a taser gun. She lost the child and
was thought to have suffered an "incomplete abortion." The plaintiff alleged that
she had been ordered to strip with males
present.
Defendants are entitled to summary
judgment on the Fourth Amendment claim.
Under Graham v. Connor, the Fourth
Amendment does not protect convicted
prisoners, and in this case there was no
actual search, but force used in connection
with the threat of a search. At 1534: "All
of plaintiff's allegations...are directed at the
means by which the search was undertaken, not the propriety of the search
itself." The court also thinks that presenting the claim to the jury under the Graham
"objective reasonableness" test and the
Whitley "obdurate or wanton" standard
would not make sense. However, the
plaintiff may present evidence that her
refusal to submit to the search was a
"justifiable assertion of her Fourth Amendment rights." At 1535:
Force used to compelprisoners to comply
with orders violative of those rights may
well be found excessive. In other words, a
prisoner can invoke a clearly existing
constitutional right, and say "no" to prison
officials who are unjustifiably about to
infringe on that right, withoutfear that
force can be used with impunity in any
event to compel her to give up that clearly
established right.
It was clearly established in 1988 that
routine unclothed searches by members of
the opposite sex...or unnecessary viewing of
a prisoner's unclothed body by correctional officers of the opposite sex, violated
a prisoner's right to privacy or right to be
free from unreasonable search and
seizures....However, casual observances of

Pre-Trial Detainees/Use of Force
Frohmader v. Wayne, 766 F.Supp. 909
(D.Colo. 1991). Force used during the jail
booking process is governed by a substantive
due process standard, here presented as a
modified version of the Johnson v. Glick
standard. The district court grants summary
judgment to the defendant despite the
plaintiff's allegations that he was "hit,"
"kicked," "beaten" and "tortured all night
long," on the ground that these are
"conclusory."
Crowding/Modification ofJudgments
Arney v. Finney, 766 F.Supp. 934 (D.Kan.
1991). Res judicata does not prevent the
modification of an injunction. The court
analogizes prison cases to school desegregation
cases, citing Dowell The court cites the need
for flexibility even though the parties
incorporated the "grievous wrong" standard in
the consent judgment.
The court denies without a hearing the
request to double cell in certain units based
on construction delays. Even though the
defendants worked in good faith to comply,
"such good faith cannot excuse noncompliance with a long-established requirement
which the court believes is at the heart of
this litigation." (938) The need for the space
is not clear and population control measures,
also required by the order, are designed to
deal with a possible population increase. Also,
the system has medium security beds
occupied by minimum security inmates who
could be transferred. Even if some inmates
had to be released temporarily, "we have no

WINTER 1992 11

unclothed prisoners by correctional
officers of the opposite sex, or body cavity
searches in emergency conditions, do not
necessarily violate a prisoner's constitutional rights.
Procedural Due Process-Disciplinary
Proceedings
Howard v. Wilkerson, 768 F.Supp. 1002
(S.D.N.Y. 1991). At 1008: "No disciplinary
hearing officer could have reasonably
believed that merely accepting the written
report of an officer not present at an alleged
attack met the requirements of due process.
Indeed if this were enough there would be no
purpose in holding a hearing at all." The case
turned on whether the plaintiff was properly
identified as the assailant; the victim had
identified him from a photograph. The court
analogizes the victim's allegation to an
accusation by a confidential informant and
holds that it is clearly established that "a
hearing officer's failure to assess the
credibility of hearsay information relating to
inmate misbehavior constituted a violation of
due process." (1008) The court notes that the
accuser in this case had a long psychiatric

12

WINTER 1992

Pratt v. Rowland, 769 F.Supp. 1128 (N.D.Cal.
history and had made inconsistent statements
1991). The plaintiff complained of disciplinary
about identifying his attackers. It concludes
actions and other forms of harassment allegedly
that under these circumstances there is not
in retaliation for his former affiliation with the
"some evidence" to support the conviction.
Black Panther Party and his attempts to expose
Summary judgment is granted to the plaintiff.
his conviction as a frame-up.
The hearing officer in a prison disciplinary
'; The plaintiff is permitted to file a
proceeding claimed that he had more
-, supplemental complaint adding new parties
evidence than the written material before
and recounting further incidents of retaliahim, Le., oral reports, but Woiffrequires a
written statement of evidence relied on.
tory action after the date of the initial
complaint.
Summary judgment is granted to the plaintiff
on the inadequacy of the written record. .' 0.
Allegations of verbal abuse, false charges,
placement in segregation, etc., may not be
Modification of Judgments/Financial
actionable in themselves, but are so when
done in retaliation for the exercise of
Resources
protected rights. At 1135: "...[I]f the Court were
Lorain NAACP v. Lorain Board of Educato find that plaintiff had been improperly
tion, 768 F.Supp. 1224 (N.D.Ohio 1991). The
claSSified and incarcerated in a maximum
"less stringent" standard of consent decree
security facility out of retaliation for his
modification is applied in plaintiffs' favor,
exercise of his First Amendment rights, it
since "a better appreciation of the facts in
would be within the Court's equitable powers
light of experience" indicates that the
to correct this situation." •
proposed desegregation plan was much more
expensive than contemplated. The state is
John Boston is the director oj the
therefore ordered to pay more.
Access to Courts-Punishment and
Retaliation

Prisoners' Rights Project Legal Aid Society
oj New York. He regularly contributes this
column to the NPPJOURNAL.

THE NATIONAL PRISON PROJECT JOURNAL

Status Report: State Prisons and
the Courts-January 1, 1992
orty states plus the District of
Columbia, Puerto Rico and the
Virgin Islands are under court
order or consent decree to limit
population and/or improve conditions
in either the entire state system or its
major facilities. Thirty-two jurisdictions are under court order for
overcrowding or conditions in at least
one of their major prison facilities,
while 11 jurisdictions are under court
order covering their entire system.
Only five states have never been
involved in major litigation challenging overcrowding or conditions in
their prisons. The following list gives
the current status of each state.
(.Asterisks indicate states/jurisdictions
where the ACLU has been involved in
the litigation.)

F

1. Alabama:' The entire state prison
system was under court order dealing
with total conditions and overcrowding. Pugh v. Locke, 406 F.Supp. 318 (M.D.
Ala. 1976), a/I'd in substance sub nom.
Newman v. Alabama, 559 F.2d 283 (5th
Cir. 1977), cert. denied, sub nom.
Alabama v. Pugh, 438 U.S. 781 (1978). A
receiver was appointed. 466 F.Supp. 628
(M.D. Ala. 1979). On January 13, 1983,
the district court entered an order
establishing a four-person committee
to monitor compliance with previous
orders. In December 1984, the district
court relinquished active supervision
after the parties agreed that substantial compliance had been achieved. The
court dismissed the case in December
1988.
...
2. Alaska:' The entire state prison
system is under a consent decree and a
court order entered in 1990 dealing
with overcrowding and total conditions of confinement. Cleary v. Smith,
No. 3AN-81-5274 (Superior Court for the
State of Alaska, 3rd Jud.Dist.; complaint
filed March 3, 1986). The parties agreed
to population caps at each facility and
a mechanism to reduce the population
when a cap is exceeded. This mechanism will remain in effect until the
state legislature approves an emergency overcrowding reduction statute.
3. Arizona:' The state penitentiary is
operating under a series of court orders
THE NATIONAL PRISON PROJEG JOURNAL

and consent decrees dealing with
overcrowding, classification, and other
conditions. Orders, August 1977-1979;
Harris v. Cardwell, C.A. No. 75-185 ,'c
PHXCAM (D. Ariz.).
.',Aspecial administrative segregation
unit at the Arizona State Prison in
Florence was operating under a
December 12, 1985 consent decree. A
monitor was appointed. Black v.
Ricketts, C.A. No. 84-111 PHXCAM. The
unit was later found to be in full
compliance with the consent decree
and Black was dismissed in February
1988.
Astate-wide class action, filed on
behalf of Arizona state prisoners on
January 12, 1990, challenges legal
access, health care, and discrimination
against handicapped prisoners. Casey v.
Lewis, CIV-90-0054 PHXCAM. Partial
summary judgment for plaintiffs was
entered in August 1991 enjoining
discrimination against HIV-positive
prisoners in job assignments. Trial
began on November 20, 1991 on all
other issues.
4. Arkansas:' The entire state prison
system was under court order dealing
with total conditions. Finney v.
Arkansas Board 0/ Corrections, 505
F.2d 194 (8th Cir. 1974). A special
master was appointed. Finney v. Mabry,
458 F.Supp. 720 (E.D. Ark. 1978).
Compliance was assessed in 1982. 534
F.Supp. 1026 (E.D. Ark. 1982); 546 F.Supp.
626 (E.D. Ark. 1982). After a finding of
full compliance, the federal court
relinquished jurisdiction in August
1982.546 F.Supp. 628 (E.D. Ark. 1982).
5. California:' The administrative
segregation units at San Quentin,
Folsom, Soledad and Deuel are under
court order because of overcrowding
and conditions. A preliminary injunction was entered. Toussaint v. Rushen,
553 F.Supp. 1365 (N.D. Cal. 1983), a/I'd
in part sub nom. Toussaint v. Yockey,
722 F.2d 1490 (9th Cir. 1984). The
district court thereafter entered a
permanent order enjoining doublecelling and other conditions at the San
Quentin and Folsom units. Toussaint v.
McCarthy, 597 F.Supp. 1388 (N.D. Cal.
1984). A later opinion reversed on the
issue of placement and retention in

administrative segregation. 801 F.2d
1080 (9th Cir. 1986), cert. denied, 481
U.S. 1069 (1987). A monitor is overseeing compliance. Toussaint v. Rowland,
711 F.Supp. 536 (N.D. Cal. 1989).
The California Men's Colony at San
Luis Obispo is under a court order
establishing population limits. Dohner
v. McCarthy, 635 F.Supp. 408 (C.D. Cal.
1985). However, compliance monitoring
has ceased.
The California Institution for Men at
Chino is oper~ing under a settlement
agreement proyiding for improved
sanitation, classification, legal access
and other conditions. Compliance is
being monitored. Boyden v. Rowland,
CV-86-1989-HLH.
The California Medical Facility at
Vacaville is under a 1990 consent
decree concerning the delivery of
health care services. Compliance is
being monitored. Gates v. Deukmejian,
#S-87-1636-LKK-JFM.
Two lawsuits are pending concerning
the delivery of medical and mental
health service to prisoners at the
California Women's Institution at
Frontera. Doe v. Rowland, A Civ. 89598-GLT (C.D. CaL), and Whisman v.
McCarthy, #OCV-33860 (Sup. Ct., San
Bernadino Co.).
6. Colorado:' The state maximum
security penitentiary at Canon City is
under court order on total conditions
and overcrowding. Ramos v. Lamm,
485 F.Supp. 122 (D. Colo. 1979), a//'d in
part and remanded, 639 F.2d 559 (10th
Cir. 1980), cert. denied, 450 U.S. 1041
(1981), on remand, 520 F.Supp. 1059 (D.
Colo. 1981). During the compliance
stage, the parties reached a series of
agreements later approved by the court
concerning general conditions as well
as specific areas such as legal access
and double-bunking.
A lawsuit filed on February 27, 1990
challenges conditions and delivery of
health care services at three other
major state facilities (Buena Vista,
Fremont and the women's prison).
Nolasco v. Romer, 90-C-340 (D. Colo.).
During 1991, the parties discussed
settlement in both Ramos and Nolasco.
7. Connecticnt:' The Hartford
Correctional Center is under court
order dealing with overcrowding and
some conditions. Lareau v. Manson, 507
F.Supp. 1177 (D. Conn. 1980), a/l'd,651
F.2d 96 (2nd Cir. 1981).
Other facilities under consent decree
are: Bridgeport Correctional Center,
Mawhinney v. Manson, #B78-251 (D.
Conn. 1982); New Haven Correctional
WINTER 1992 13

Center, Andrews v. Manson, #N81-20 (D.
Conn. 1982); the Morgan Street Correctional Center, and the Union Avenue
Correctional Center.
Litigation challenging overcrowding
is pending at the state prison at
Somers, Bartkus v. Manson, Civ. No. H80-506, and at the Montville Correctional Center, Foss v. Lopes. Niantic
Women's Prison is under a court order
on a full range of women's prison
issues. West v. Manson, #H-83-366 (D.
Conn., entered October 3, 1984).
Compliance is being monitored in these
cases.
8. Delaware:" All major Delaware
prisons are under a consent decree
filed in state court on issues of
overcrowding, physical plant, medical
care, and access to the courts.
Dickerson v. Castle, C.A. No. 10256 (Del.
Ct. Chan., entered November 22, 1988).
Compliance is being monitored.
9. Florida: The entire state prison
system is under court order dealing
with overcrowding. Costello v. Wainwright, 397 F.Supp. 20 (M.D. Fla. 1975),
afl'd, 525 F.2d 1239 (5th Cir. 1977) and
553 F.2d 506 (5th Cir. 1977). In 1980, the
court entered a consent decree providing measures for population control.
489 F.Supp. 1100 (M.D. Fla. 1980). A
special master was appointed. Additional consent decrees were entered
covering environmental health and
safety. Also, a consent decree was
entered on December 17, 1987 concerning health care services to be delivered
by a private provider. The special
master is also monitoring this order.
During 1991, the parties negotiated to
end court supervision of the health
care order by turning over monitoring
and enforcement to the Correctional
Medical Authority, a newly established
independent state agency.
10. Georgia: T...he state penitentiary at
Reidsville is under court order on total
conditions and overcrowding. A special
master was appointed in 1979, and
dismissed in 1983. Guthrie v. Evans, C.A.
No. 3068 (S.D. Ga.). The case was closed
in 1983, but the injunction remains in
effect. The order requires single-celling,
improvements in the medical and
mental health care delivery system,
and improvements in environmental
health, among other things. A number
of other state facilities have come
under challenge.
11. Hawaii:" The men's prison
(O.C.C.C.) in Honolulu and the women's
prison on Oahu are under court order
as a result of a 1985 consent decree
14

WINTER 1992

The Stateville facility is under a
entered in a totality of conditions suit.
Spear v. Ariyoshi, Civ. No. 84-1104 (D.
December 1990 consent decree, entered
Hawaii). Monitors were appointed and
by the district court, which provides
for improved protection from assault.
continue to assess compliance with the
Calvin R. v. Peters, #82C1955 (N.D. IlL).
court decree. The parties have been
engaged in further negotiations with a
The district court ordered that protective custody prisoners at the Stateville
view toward modifying the decree to
more accurately reflect current
facility be provided with improved
conditions.
12. Idaho:" The men's
Idaho Correctional State
Institution is under a court
order concerning conditions.
Balla v. Idaho State Bd. of
Correction, 595 F.Supp. 1558
(D. Idaho 1984). In 1987,
incident to Balla, the
district court held that the
prison was unconstitutionally overcrowded and
ordered population reductions. 656 F.Supp. 1108 (D.
Idaho 1987). The court of
appeals upheld the district
court decision rejecting
defendants' attempt to
obtain more time to reduce
the population, among other
things. 869 F.2d 461 (9th
Cir.1989).
The women's prison is
operating under an interim
agreement signed in July
1991 concerning conditions,
including overcrowding and
medical care, which will
remain in effect until the
DOC opens a new facility in
the summer of 1992. Witke
v. Crowl, Civ. No. 82-3078 (D.
Idaho). Once this new
facility is operational, the
previous agreements
reached in this case in 1991
concerning programming,
As a result of crowding pressures, more prisons are
delivery of medical care,
double-ceiling prisoners. However, in some institutions,
courts have prohibited this practice as part of a court
and legal access will
order or consent decree.
become operative.
13. Illinois:" The state
programming, conditions and legal
penitentiary at Menard is under court
order on total conditions and overassistance. Williams v. Lane, 646
crowding. Aspecial master, appointed
F.Supp. 1379 (N.D. IlL 1986). The court
of appeals affirmed this decision. 851
in 1980, was discharged after four
years. There has been substantial
F.2d 867 (7th Cir. 1988), cert. denied,
compliance with the decree; however,
109 S.Ct. 879 (1989).
the injunction remains in force.
14. Indiana:" The state prison at
Lightfoot v. Walker, 486 F.Supp. 504
Pendleton was found unconstitutional
(S.D. IlL 1980).
on total conditions and overcrowding.
Dwight Correctional Center is under a
French v. Owens, 538 F.Supp. 910 (S.D.
May 1990 consent decree which
Ind. 1982), afl'd in pertinent part, 777
requires programs for women prisoners
F.2d 1250 (7th Cir. 1985), cert. denied,
and the construction of a 200-bed
479 U.S. 817 (1986).
minimum security facility for women.
The state penitentiary at Michigan
Moorhead v. Lane, #86-C-2020 (C.D. IlL).
City is under a court order on overTHE NATIONAL PRISON PROJECT JOURNAL

crowding and other conditions.
Hendrix v. Faulkner, 525 F.Supp. 435
(W.D. Ind. 1981), a/I'd sub nom.
Wellman v. Faulkner, 715 F.2d 269 (7th
Cir. 1983), cert. denied, 468 U.S. 1217
(l984).
The state prison at Westville is under
a consent decree on overcrowding,

of conditions; however, this decree is
not being actively monitored for
compliance. Watson v. Ray, C.A. No. 78106-01, 90 F.R.D. 143 (S.D. Iowa 1981).
Fort Madison is also under a series of
consent decrees involving the delivery
of medical care services, McBride v. "
Ray, #73-242-2 (S.D. Iowa) and segrega-"
tion and protective custod;y
practices, Gavin v. Ray, ;
#78-62-2 (S.D. Iowa) and,
Parrott v. Ray, and thes¢
cases are being actively
monitored.
16. Kansas: A consent
decree on total conditions
was entered in 1980 at the
state penitentiary at
Lansing. Arney v. Bennett,
No. 77-3132 (D. Kan.). The
case was reopened and
expanded in 1988, and a
more comprehensive order
was entered in April 1989.
That order requires the
state's oldest facilities to
meet and maintain standards of the American
Correctional Association
(ACA) and the National
Commission on Correctional
Health Care (NCCHC); the
capacities of all othp.r
_ existing or new facilities
must meet ACA standards. A
8 panel of experts is monitorling mental health treatl ment. In 1991 the defen:; dants moved for modifica:t:. tion of the consent decree
~ to permit double-ceIling
-;g and to increase operating
ai capacity because of con~ struction delays. The court
denied modification in two
prisons which were the focus of this
case and granted it in other institutions, but only where ACA standards
and other limitations are met. Arney v.
Finney, 766 F.Supp. 934 (D. Kan. 1991).
17. Kentucky:' The Kentucky State
Penitentiary at Eddyville is under court
order by virtue of a consent decree on
overcrowding and some conditions,
including guard brutality. Kendrick v.
Bland, 541 F.Supp. 21 (W.D. Ky. 1981).
The court of appeals later vacated some
requirements of the order related to the
brutality issue. 740 F.2d 432 (6th Cir.
1984). The district court found KSP in
substantial compliance with the
consent decree, with the exception of
the new construction requirements. As
a result, the case was placed on the

e

conditions and delivery of mental
health services. Anderson v. Orr, C.A.
No. S83-0481 (N.D. Ind., case filed in
1983). A comprehensive settlement was
reached March 31, 1989. Compliance is
being monitored.
In June 1990, a case was filed
challenging conditions and delivery of
health care services to prisoners
confined at Indiana's reception and
classification facility. Lecclier v. Bayh,
IP90-1460-c (S.D. Ind.). After conducting discovery, the parties reached a
comprehensive settlement. A consent
order was entered on July 5, 1991
Compliance is being monitored.
15. Iowa: The Iowa State Penitentiary at Fort Madison is under court
order on overcrowding and a variety
THE NATIONAL PRISON PROJECT JOURNAL

inactive docket of the court, a decision
affirmed by the court of appeals. 931
F.2d 421 (6th Cir. 1991). However, the
court held that the district court could
reinstate the case if plaintiffs could
prove "a major violation" of the decree.
The women's prison, KCIW at Pee Wee
Valley, is under court order on a
variety of conditions, including
crowding, physical plant, sanitation,
access to the courts, programming,
classification and work. Canterino v.
Wilson, 546 F~upp. 174 (W.D. Ky. 1982),
and 564 F.Sup'p. 711 (W.D. Ky. 1983). The
district courts order concerning work
and study release was vacated by the
court of appeals. 869 F.2d 1948 (6th Cir.
1989).
18. Louisiana: The Louisiana State
Prison (Angola) is under court order
dealing with overcrowding and a
variety of conditions. Williams v.
Edwards, 547 F.2d 1206 (5th Cir. 1977).
In 1981, the court of appeals consolidated all prison and jail overcrowding
cases in Louisiana before one district
court judge. This decision included
Williams. Hamilton v. Morial, 644 F.2d
351 (5th Cir. 1981). On December 7, 1983,
the district judge who was appointed
under Hamilton approved a consent
decree dealing with crowding and
population problems at Angola. In
1989, the judge declared a state of
emergency, appointed a court expert
and requested that the U.S. Department
of Justice investigate. The Justice
Department is conducting an investigation.
19. Maine:' The State Prison at
Thomaston was challenged on overcrowding and a variety of conditions
in 1978. The trial court granted relief
on the issue of restraint cells and
otherwise dismissed the complaint.
Lovell v. Brennan, 566 F.Supp. 672 (D.
Me. 1983), a/I'd, 728 F.2d 560 (lst Cir.
1984).
In October 1990, a lawsuit was filed
against the state prison at Thomaston
concerning conditions, treatment and
placement in the protective custody
and administrative segregation units.
Brown v. McKernan, #90-246-p. In
March 1991, the parties reached an
agreement to end double-ceIling in
those units and to enhance programming opportunities.
20. Maryland:' The Maryland House
of Corrections at Jessup and the
Baltimore Penitentiary were declared
unconstitutionally overcrowded in,
respectively, Johnson v. Levine, 450
F.Supp. 648 (D. Md. 1978), and Nelson v.
WINTER 1992 15

September 1991. The women's prison in
quently, a special administrator was
Warm Springs has severe problems
appointed, and a compliance plan was
with respect to environmental health
ordered to be submitted on November
and sanitation, the delivery of health
Nos. H-77-113 and B-77-116, (D. Md.
22,1991.
care and a dearth of programming. The
January 5, 1981), rev. and remanded
Four men's prisons (Marquette,
state plans to build a new facility.
sub nom. Nelson v. Collins, 659 F.2d 420 Michigan Reformatory, Riverside and a
27. Nebraska: No cases have been
portion of Jackson) are under consent':!'
(4th Cir. 1981) (en bane). A settlement
agreement and consent decree were
decree on overcrowding and other
,,;, filed dealing with overcrowding;
however, there is an equal protection
subsequently entered in both cases.
conditions. u.s. v. Michigan, 680 F.SupP1
In a case against the Maryland
928 (W.D. Mich. 1987). Court orders in
and conditions case involving the
Nebraska Center for Women at York.
Correctional Institution at Hagerstown,
another case, Knop v.johnson, cover>
Klinger v. Nebraska Dept. of Correcthe district court approved a settleissues not included in the consent ':
ment agreement in 1979 which
, decree in u.s. v. Michigan. Knop v.
tionaIService§;,C.V:'88-L-399 (D. Neb.).
required that double-celling be elimijohnson, 685 F.Supp. 636 (W.D. Mich.
IiJ. a case challenging conditions at the
Medium Seclltity Unit of the Nebraska
nated and certain conditions improved.
1988). Knop is currently on appeal.
State Penitentiary, the court held that
Washington v. Keller, 479 F.Supp. 569
The Central Complex and most of the
(D. Md. 1979). Later the Washington
North Complex at the Jackson state
there was no violation of the Eighth
and johnson cases were consolidated
Amendment. However, the court did
prison are operating under a consent
note that those conditions "are potenand further agreements were entered
decree. Hadix v. Milliken, #80-73581
tially close to creating intolerable
in October 1987 and February 1988.
(E.D. Mich.; order entered May 13, 1981).
conditions...unless remedial measures
Compliance is being monitored.
Among other issues, the decree requires
Contempt motions filed in these cases
improved health care delivery, sanitaare implemented." Kitt v. Ferguson, 750
have been resolved by negotiation.
tion, out-of-cell activity and staff
F.Supp. 1014, 1019 (D. Neb. 1990).
21. Massachusetts: The maximum
supervision. Another order in Hadix
28. Nevada:' The Nevada State Prison
security unit at the state prison in
requires defendants to subdivide the
at Carson City has been under a
Walpole was challenged on total
enormous Jackson Prison into more
comprehensive court order since 1980
conditions. Blake v. Hall, C.A. 78-3051-T
workable units. Compliance is being
concerning population, conditions, and
(D. Mass.). The district court decided in
monitored. Finally, a court order which
delivery of health care services. A new
prison officials' favor. On appeal, this
consent decree consolidating the
requires improved legal assistance is
previous orders was entered by the
decision was affirmed in part and
pending on appeal. Hadix v.johnson,
reversed in part and remanded, 668
694 F.Supp. 259 (KD. Mich. 1988).
district court on May 19, 1988. Phillips
F.2d 52 (1st Cir. 1981).
23. Minnesota: The state has kept
v. Bryan, CVR-77-221-ECR (later
A case filed in state court challenged
overcrowding in- abeyance through use·
chang~j!_o Bnglflnd v.,Miltet:.:with thE";f,'
"same docket number)~ TWo.nt()nftl'J1'S'~ .,.
unlawful conditions, use of force and
of sentetIciHg,"cg;ui'd~w·hiClJ,;,t,a.lre;':
classification practices in DOC segregathe number of available prison beds
appointed under the terms of the
tion units statewide. After months of
into account. Also, individual facilities
agreement have been reporting on
trial before one justice, the state
and the Department of Corrections
compliance. In 1991, the state made a
Supreme Court ruled in the prisoners'
have been responSive to complaints
motion to dismiss the case; that motion
is pending. In the meantime, the- "-'.- favor; compliance is being monitored.
raised by advocates for prisoners.
Hoffer v. Fair, #85-71 (Sup. Jud. Ct. for
24. Mississippi: The entire state
parties are negotiating on the mental
Suffolk Co.). A case filed against MCI at
prison system is under court order
health issues.
Concord successfully challenged
dealing with overcrowding and total
29. New Hampshire:" The state
numerous unlawful conditions,
conditions. Gates v. Collier, 501 F.2d
penitentiary is under court order
including the use of dayrooms for
1291 (5th Cir. 1974). Compliance is not
dealing with total conditions and
housing prisoners. The practices have
being monitored.
overcrowding. Laaman v. Helgemoe,
ceased and the state has settled for
25. Missouri:' The State Penitentiary
437 F.Supp. 269 (D.N.H. 1977). The
money damages. jacobs v. Fair, #86at Jefferson City is under court order
parties negotiated a consent decree in
81758 (Superior Ct., Suffolk Co.).
on overcrowding, medical care and
May 1990 that resolved a pending
22. Michigan:' The women's prison is
other conditions. Burks v. Walsh, 461
motion for contempt. Compliance is
under a court order concerning the
F.Supp. 454 (W.D. Mo. 1978), afl'd sub
being monitored.
total conditions of confinement
nom. Burks v. Teasdale, 603 F.2d 59
30. New Jersey: For years the state
including programming. Glover v.
(8th Cir. 1979). On remand, the state
has been able to stave off overcrowdjohnson, 478 F.Supp. 1075 (KD. Mich.
was held liable for failing to provide
ingintheprisonsbymandating that
1979); further orders entered, 510
'''adequate medical Cate.Burks v.
county jails take the overflow from
F.Supp. 1019 (KD. Mich. 1981). Later, the._ Teasdale, 492,F.supp. 650 (W.D. Mo.
the state system. However, most of the·
Department of Corrections was found
1980). In 1982, a separate order was
state's 21 county jails are under court
in contempt. 659 F.Supp. 621 (KD. Mich.
entered on the medical care issues.
order. State prisoners continue to back
1987), vac. and remanded, 855 F.2d 277
26. Montana: No conditions lawsuits
up into municipal lock-ups.
(6th Cir. 1988). On remand, the state
have been filed. Montana's prison
31. New Mexico:' The entire system is
was required to appoint a special
population has been small. However,
under court order on overcrowding
administrator to design and implement
the prison population has been
and total conditions. Duran v.
a remedy for violations of the order.
increasing and problems have been .
Apodaca, C.A. No. 77-721-C (D.N.M.)
721 F.Supp. 808 (E.D. Mich. 1989), afl'd,
occurring in the system. A major riot
(consent decree entered August 1,
934 F.2d 703 (6th Cir. 1991). Subseoccurred at the Deer Lodge prison in
1980). A special master was appointed

Collins, 455 F.Supp. 727 (D. Md. 1978),
afl'd sub nom. johnson v. Levine, 588
F.2d 1378 (4th Cir. 1978), on remand,

<

16 WINTER 1992

THE NATIONAL PRISON PROJECT JOURNAL

in June 1983. Defendants moved to
vacate the consent decree, but the
district court denied the motion.
Duran v. Carruthers, 678 F.Supp. 839
(D.N.M. 1988). The court of appeals
affirmed the decision. 885 F.2d 1485
(10th Cir. 1989), cert. denied, 110 S.Ct.
865 (1990). Because the state is in
substantial compliance with the
decree, in August 1991 the parties
agreed to an eventual vacating of the
decree. In exchange, the state agreed to
a permanent, non-modifiable set of
population controls including a
prohibition against double-ceIling. The
district court approved this settlement
in an order entered September 20, 1991.
32. New York: While no state-wide
comprehensive lawsuits have been
brought, numerous prison facilities are
under court order, and injunctive relief
has been obtained in the follOWing
cases:
In 1979, a case was filed challenging
the delivery of medical care at the
Green Haven Correctional Facility.
Milburn V. Coughlin, 79 Civ. 5077
(S.D.N.Y.). In 1982, the parties entered
into a comprehensive settlement. Later,
in order to settle a contempt motion,
the parties negotiated a modified
agreement. Compliance is being
monitored.
A case was filed challenging delivery
of medical care at the Bedford Hills
women's prison. The court of appeals
upheld a favorable opinion and order.
Todaro V. Ward, 565 F.2d 48 (2nd Cir.
1977). In 1988, a renegotiated consent
decree was entered which included
improvements in the delivery of
health care in general and the enforcement of services to HIV-positive
prisoners.
A state-wide class action suit was
filed in 1990 challenging the inadequate treatment of HIV-positive
prisoners and deficiencies in the HIV
education program. Inmates with AIDS
V. Cuomo, #90CV252 (N.D.N.Y')' This
action was certified as a class action
and discovery is proceeding, subject to
elaborate safeguards to protect confidentiality.
A state-wide class action suit was
filed in 1980 on behalf of prisoners
confined to segregation units. Anderson V. Coughlin, 80 Civ. 3037 (S.D.N.Y.).
A consent decree was entered in 1984
on the medical and legal access issues.
In 1985, the court of appeals upheld an
unfavorable decision on the exercise
and recreation issues. Anderson v.
Coughlin, 757 F.2nd 33 (2d Cir. 1985).
THE NATIONAL PRISON PROJECT JOURNAL

The protective custody unit at Green
Haven Correctional Facility is operating under a 1983 consent judgment
concerning conditions and practices.
Honeycutt V. Coughlin, 80 Civ. 2530
(S.D.N.Y.). Compliance is being monitored.
A district court judge recently held
defendants liable for racial segregation
in housing and job assignments at.c •
Elmira Correctional Facility. Santia,go
v. Miles, #86-694L (W.D.N.Y.) (dec~on
and order entered October 1, 1991).'
Prisoners at Clinton Correctional
Facility brought a class action suit in
1983 concerning the delivery of mental
health services. Tomasulo v. LeFevre, 84
CV 1035 (N.D.N.Y.).
The Attica Special Housing Unit is
under challenge on conditions of
confinement. In 1990, the court
granted a preliminary injunction
providing substantial relief on the
delivery of medical care services. Eng
V. Coughlin, CV-80-3859 (W.D.N.Y.). See
also, 865 F.2d 521 (2nd Cir. 1989).
The Bedford Hills Correctional
Facility is under challenge concerning
the delivery of mental health services
for women confined in segregation
facilities. Defendants' motion for
summary judgment or qualified
immunity was denied. Langley V.
Coughlin, 709 F.Supp. 482 (S.D.N.Y.
1989), appeal dismissed, 888 F.2d 252
(2nd Cir. 1989). In a later opinion, the
court accepted the recommendations of
the magistrate to deny defendants'
further motion for summary judgment
and for class certification. 715 F.Supp.
522 (S.D.N.Y. 1989).
33. North Carolina:' In September
1985, a consent judgment was entered
covering overcrowding, staffing,
programming, and medical services in
thirteen units of the state's road and
farm camp system in the South
Piedmont area. Hubert V. Ward, C-C-80414-M (W.D.N.C.). Compliance was
achieved, and the case was placed on
the court's inactive docket.
The Craggy Unit outside of Asheville
was under an August 1987 consent
decree covering conditions and
overcrowding. Epps V. Martin, A-C-86162 (W.D.N.C.). A new prison was
completed and Craggy was closed.
The Caledonia Farm facility is
operating under a 1988 consent decree
concerning overcrowding and general
conditions. The consent decree imposed
a population cap and emphasized
protection from assault and reducing
violence. Stacker V. Stephenson.

There are also pending cases on
overcrowding and conditions at Odom
Farm, Barnet V. Allsbrook, #89-705 CRT
BO (E.D.N.C.), and Harnett Correctional
Center, Bass V. Stephenson, #87-499-CRT
BO (E.D.N.C.). These cases, filed in 1989,
are still in the discovery phase.
The remaining 49 units of the state
system are operating under a December
1988 settlement covering overcrowding
and conditions. Small V. Martin, 85987-CRT BR (E.D.N.C.). Compliance is
being monitdfed.
A case challenging the adequacy of
mental hearth care at the state's
women's prison was settled out of
court. Mutz V. Johnson.
34. North Dakota: No cases have been
filed dealing with overcrowding or
conditions.
35. Ohio:' In a case involving the
Southern Ohio Correctional Facility,
the district court banned doubleceIling. The Supreme Court later
reversed this decision. Chapman V.
Rhodes, 434 F.Supp. 1007 (S.D. Ohio
1977), a/I'd, 624 F.2d 1099 (6th Cir.
1980), rev'd, Rhodes V. Chapman, 452
U.S. 337 (1981).
A preliminary injunction was entered
at the Columbus State Prison on the
housing of prisoners by race and on
the use of certain physical restraints.
Stewart V. Rhodes, 473 F.Supp. 1185 (S.D.
Ohio 1979). A consent decree was later
entered in 1979 which incorporated
the provisions of the preliminary
injunction. See 656 F.2d 1216 (6th Cir.
1981). The state prison was closed in
1985.
The State Reformatory at Mansfield
was operating under a consent decree
on various conditions. Boyd V. Denton,
C.A. 78-1054A (N.D. Ohio, order entered
June 1983). The prison was closed at
the end of 1990. A case was filed in
1978 concerning the delivery of
medical care to all Ohio prisoners.
Register V. Denton, C-78-1680 (N.D.
Ohio). Medical care at Mansfield
operated under a 1981 consent decree
until a new medical facility was
constructed in the late 1980s. The
plaintiffs are currently conducting
discovery and attempting to apply the
terms of the consent decree to the
newly built unit.
There is continuing litigation with
respect to conditions and population at
the Marion Correctional Facility at
Marion, Ohio. Taylor V. Perini, #c69-275
(N.D. Ohio). Also see published orders
and reports of the special master in
this case at 413 F.Supp. 189 (N.D. Ohio
WINTER 1992
17 ...

~.J

1976); 421 F.Supp. 740 (N.D. Ohio 1976);
431 F.Supp. 566 (N.D. Ohio 1977); 446
F.Supp. 1184 (N.D. Ohio 1977); 455
F.Supp. 1241 (N.D. Ohio 1978) and 477
F.Supp. 1289 (N.D. Ohio 1980).
A case filed by an individual prisoner
challenging conditions and crowding at
the Hocking Correctional Facility was
dismissed by the district court. On
appeal, this decision was affirmed.
Wilson v. Seiter, 893 F.2d 861 (6th Cir.
1990). In June 1991, the Supreme Court
reversed and remanded. 111 S.Ct. 2321
(1991). The case is now in the district
court on the state's motion for summary judgment.
36. Oklahoma:' The state penitentiary at McAlester is under court order
on total conditions, and the entire
state prison system is under court
order on overcrowding. Battle v.
Anderson, 564 F.2d 388 (10th Cir. 1979).
The district court's decision in 1982 to
retain jurisdiction to assure continued
compliance was upheld. 708 F.2d 1523
(10th Cir. 1983). Later, in 1984, the
district court relinquished jurisdiction;
that decision was affirmed. 788 F.2d
1429 (10th Cir. 1986). Although the
court has ended active supervision, all
compliance orders are still in effect,
and the penitentiary remains under
permanent injunction. In fact, the state
recently asked the court to vacate or
amend the original order to allow the
state to renovate closed housing
because of overcrowding. The court
determined that the order is still in
effect, and refused to amend the order
because circumstances have not
changed.
37. Oregon: The state penitentiary
was under a court order on overcrowding. Capps v. Atiyeh, 495 F.Supp. 802 (D.
Or. 1980), stayed, 449 U.S. 1312 (1981)
(Rehnquist, J.), vacated and remanded,
652 F.2d 823 (9th Cir. 1981). On remand,
the district court determined that only
medical care and fire safety violated
the Eighth Amendment. 559 F.Supp. 894
(D. Or. 1982).
38. Pennsylvania:' A case was filed
at the women's state prison at Muncy
challenging equal protection violations
and hazardous physical conditions
(inclUding fire safety violations).
Beehler v.jeffes, 664 F.Supp. 931 (M.D.
Pa. 1986). Most of the claims have been
settled or voluntarily dismissed; an
asbestos claim is pending and plaintiffs
are monitoring the removal schedule.
The State Correctional Institution at
Pittsburgh (SCIP) is under court order
to reduce double-ceIling in the old 19th
18

L

WINTER 1992

century cellblocks and to improve
staffing and the delivery of medical
and mental health services. Tillery v.
Owens, 719 F.Supp. 1256 (W.D. Pa. 1989),
affd, 907 F.2d 418 (3rd Cir. 1990). The
parties negotiated a remedial agree- .
ment in 1990 which the court then ':!'
entered as an order. In early 1991, the\
district court entered further orders;(m
legal access and staff supervision.
On November 20, 1990, a case was
filed challenging conditions and ?,
overcrowding at 13 state facilities,
excluding those already under court
order. Austin v. Lehman, C.A.#90-7497
(KD. Pa.). A motion to dismiss was
denied, and discovery is now under
way.
39. Rhode Island:' The entire state
system is under court order on overcrowding and total conditions.
Palmigiano v. Garrahy, 443 F.Supp. 956
(D.R.I. 1977). A special master was
appointed in September 1977. New
population caps were imposed by court
order in June 1986. Various contempt
orders have been entered. See, e.g., 700
F.Supp. 1180 (D.R.I. 1988). On August 21,
1989, the First Circuit affirmed in all
respects the trial court's opinions and
contempt orders of October 21, 1988
and April 6, 1989, imposing sanctions.
The trial court ordered that the fines
be utilized to establish a bail fund to
release low-bail detainees. 710 F.Supp.
875 (D.R.I. 1989), afl'd, 887 F.2d 258 (1st
Cir. 1989). In May 1990 the court made
an additional finding of noncompliance with population cap orders and
required the release of certain prisoners. 737 F.Supp. 1257 (D.R.I. 1990).
40. South Carolina:' The entire
prison system is under a consent decree
on overcrowding and conditions. Plyler
v. Evatt, C.A. No. 82-876-0 (D.S.C.)
Qanuary 8, 1985). A release order
entered by the district court in the
summer of 1986 was held moot by the
court of appeals. 804 F.2d 1251 (4th Cir.
1986). In 1988 the district court denied
the state's motion to modify the
consent decree and ordered the state to
reduce the prison population in
conformance with the decree. This
order was vacated and remanded by
the court of appeals. 846 F.2d 208 (4th
Cir. 1988). In 1990 the district court
again denied the state's motion to
modify the decree and again the court
of appeals vacated and remanded the
case. 924 F.2d 1321 (4th Cir. 1991). There
have been extensive subsequent
negotiations in this case. In 1990, the
parties agreed to permit an increase in

population, but the state made important concessions in programming and
future construction.
41. South Dakota:' The state penitentiary at Sioux Falls is under court
order on a variety of conditions. Cody
v. Hillard, 599 F.Supp. 1025 (D.S.D.
1984). The appeals court reversed an
overcrowding order, finding that
double-ceIling was not unconstitutional. 830 F.2d 912 (8th Cir. 1987) (en
bane), cert. denied, 485 U.S. 906 (1988).
42. Tennes~e:' The entire system is
under courqjrder for overcrowding
and conditiOns. Grubbs v. Bradley, 552
F.Supp. 1052 (M.D. Tenn. 1982). The
court ordered a reduction in population, and appointed a special master in
December 1982. In an October 25, 1985
order, the court enjoined the intake of
new prisoners because the state had
failed to comply with the population
reduction terms of prior orders.
On August 16, 1990, the court ordered
that the Tennessee State Prison in
Nashville be closed by March 30, 1992.
In the interim, the population will be
reduced. On February 15, 1991, the
special master recommended to the
court that double-ceIling be permitted
at the Turney Center. He also recommended population caps at four new
state regional facilities. However, his
report reqUired that there be no
decrease in staffing levels. These
recommendations are currently
pending before the judge.
On October 4, 1989 the Sixth Circuit
consolidated Grubbs with numerous
10cM jail overcrowding cases in which
state prisoners were backed up in the
jails. Carver v. Knox Co. Sheriff, 887
F.2d 1287 (6th Cir. 1989). A master was
appointed to monitor the jails and
work with the Grubbs master. Population caps have been recommended and
approved by the court.
43. Texas: In 1980, the entire state
prison system was declared unconstitutional on overcrowding and conditions.
A special master was appointed. Ruiz v.
Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980),
aff'd in part, vacated in part, 679 F.2d
1115 (5th Cir. 1982). The parties negotiated an agreement and, in 1985, a
consent decree was entered on the
issue of overcrowding. On December 3,
1986, the district court held state
officials in contempt. Ruiz v. McCotter,
661 F.Supp. 112 (S.D. Tex. 1986). The
contempt order was vacated on April
27, 1987; no fines were imposed. The
state sought to modify the terms of the
consent decree concerning crowding;
THE NATIONAL PRISON PROJECT JOURNAL

this motion was denied and the denial
affirmed on appeal. Ruiz v. Lynaugh,
811 F.2d 856 (5th Cir. 1987). During the
summer of 1989, private corporations
operating state prisons on a contract
basis were added as party defendants.
Because the backlog of state prisoners
confined in county facilities affects
the Ruiz consent order, the Fifth
Circuit has ordered the Ruiz court and
the district court having jurisdiction
over the jail cases to jointly hear any
requests for relief requiring the
transfer of county prisoners into state
custody. In Re Clements, 881 F.2d 145
(5th Cir. 1989), and Alberti V. Sheriff of
Harris County, Texas, 937 F.2d 984 (5th
Cir. 1991). The special master's office
closed in 1990.
44. Utah: The state penitentiary is
operating under a consent decree on
overcrowding and some conditions.
Balderas V. Matheson (formerly
Nielson v. Matheson), C-76-253 (D.
Utah). The 1979 consent decree was
ignored because it lacked an effective
mechanism for enforcement. A lawsuit
challenging double-ceIling at the
penitentiary was filed in 1986. Baker
V. DeLand, #c86-0361G. In June 1989,
the court entered a temporary restraining order regarding double-ceIling. In
November 1991, the magistrate judge
filed a report with the court recommending that double-ceIling be barred
in some units while permitting it in
others after remodeling.
In December 1989, a further complaint was filed challenging the
delivery of medical and mental health
services at the state penitentiary.
Henry V. DeLand, C.A. 89-C-1124 (D.
Utah). Settlement discussions on some
issues are underway.
Finally, a complaint was filed in 1989
on violence at the prison perpetrated
by both sta.!f and prisoners. This case
is in discovery. Harding V. DeLand,
#890-905342CV.
45. Vermont: The state prison was
closed in the late 1970s. Maximum
security prisoners are sent to other
states. The state operates two in-state
"central" facilities for close and
medium custody prisoners.
46. Virginia:' The state prison at
Powhatan is under a consent decree
dealing with overcrowding and
conditions. Cagle V. Hutto, 79-0515-R
(E.D. Va.).
The maximum security prison at
Mecklenburg is under court order
dealing with various practices and
conditions. Brown v. Hutto, 81-0853-R
THE NATIONAL PRISON PROJECT JOURNAL

(E.D. Va.) (April 1985).
The state penitentiary at Richmond
was challenged in 1982 on the totality
of conditions. Shrader v. White, C.A. No.
82-0247-R (E.D. Va.). The trial court
dismissed the complaint in June 1983.
The court of appeals affirmed in par~
and remanded in part. 761 F.2d 975 (4th
Cir. 1985). The remand was settled in'
1987, covering certain prisoner saf.~iy
issues.
".y,
Finally, on September 21, 1990, 3.<"
lawsuit was filed challenging deteriorating conditions at the 190-year-old
state penitentiary at Richmond, which

(Circuit Court, Marshall
County)(memorandum and order of
June 21, 1983). Plaintiffs challenged as
insufficient a remedial plan prepared
by defendants. The state Supreme
Court agreed with plaintiffs and
ordered the defendants to develop a
new plan. 342 S.E.2d 422 (W.Va. S.Ct.
1986). Since that 1986 decision, the
state Supreme Court has maintained
jurisdiction over this case. In 1988, the
court ordered the defendants' improved plan \0 be implemented, and
further ordeted the state to close the
prison. 376,:S.E.2d 140 (1988). Thereaf-

Court orders have been entered in 40 states, the District of Columbia, Puerto Rico
and the Virgin Islands in an effort to eliminate overcrowded conditions in prisons,

the state had announced on three
occasions would be closed. Congdon V.
Murray, 3:90-CV-00536 (E.D. Va.). On
November 21, 1990, the district court
ordered basic fire safety and sanitation
measures. The state permanently closed
the prison on December 14, 1990.
47. Washington:' The state penitentiary at Walla Walla was declared
unconstitutional on overcrowding and
conditions, and a special master was
appointed. Hoptowit V. Ray, C-79-359
(E.D. Wash.) aune 23, 1980), afl'd in
part, rev'd in part, vacated in part
and remanded, 682 F.2d 1237 (9th Cir.
1982). The court of appeals affirmed
the subsequent decision of the trial
court and remanded the case again for
entry of an order. Hoptowit V.
Spellman, 753 F.2d 779 (9th Cir. 1985).
An order was filed on April 10, 1986.
Defendants' motion to dissolve the
injunction was denied on May 22, 1987.
There is no compliance monitoring.
48. West Virginia: The state penitentiary at Moundsville is under court
order on overcrowding and conditions.
Crain V. Bordenkircher, #81-C-320R

ter, opinions on the status of implementation have been filed on an
annual basis. See 382 S.E.2d 68 (1989);
392 S.E.2d 227 (1990); and 408 S.E.2d 355
(1991).
The Huttonsville Correction Center is
also under court order with respect to
crowding and conditions. The detailed
order required population reduction
and the building of a vocational
training center. Nobles V. Gregory, #83C-244 (Circuit Court, Randolph
Co.)(memorandum and order dated
February 22, 1985). Enforcement
proceedings are ongoing.
In 1981, the state Supreme Court held
that women prisoners had a state
statutory and constitutional right to
rehabilitation and education. Cooper V.
Gwinn, 292 S.E.2d 781 (W.Va. S.Ct. 1981).
Detailed orders were entered thereafter. The women were transferred in
1990 to a facility located in Grafton,
West Virginia. Compliance is being
monitored.
49. Wisconsin:' The state prison at
Waupun is under a court order on
overcrowding. Delgado V. Cady, 576
WINTER 1992 19

F.Supp.1446 (E.D.Wis. 1983).
.
~h¢fwo.men'sprison at Taycheedah IS
()peratingunder a 1988 consent decree
which imposes a population cap and
deals with programming, delivery of
medical services and environmental
health issues. Bembenek v. Bablitch,
#86-c-262 (E.D. Wis.). Compliance is
being monitored.
50. Wyoming:' The old state penitentiary was being operated under the
terms of a stipulation and consent
decree. Bustos v. Herschler, C.A. No. C76143-B (D. Wyo.). The federal court
relinquished jurisdiction in early 1983
and that prison is now closed. A new
prison was opened thereafter which, in
1991, was operating above capacity.
51. District of Columbia:' The
District jails are under court order on
overcrowding and conditions. Inmates
of D.Cjail v.jackson, 416 F.Supp. 119
(D.D.C. 1976); Campbell v. McGruder,
416 F.Supp. 100 (D.D.C. 1976), afl'd and
remanded sub nom. Campbell v.
McGruder, 580 F.2d 521 (D.C. Cir. 1978)
(concerning the old D.C. Jail). On
remand, the court ordered a time limit
on double-ceIling and an increase in
staff at the new D.C. Jail (CDF). 554
F.Supp. 562 (D.D.C. 1982). In 1985, after
trial, the district court ordered that
intake be enjoined. Inmates of D.Cjail
v.]ackson, #75-1668 (D.D.C.)(entered
July 15, 1985). A consent decree, which
supplanted the initial order and
reqUired a reduction in population, was
entered August 22, 1985.
Several facilities at the Lorton
Complex, the District's facility for
sentenced prisoners, are under court
order for overcrowding, conditions,
and the delivery of health services.
Population caps are in place at both
the Central Facility and the Maximum
Security Facility. Twelvejohn Does v.
District of Columbia, #80-2136 (D.D.C.)
(Centra!); john Doe v. District of
Columbia, #79-1726 (D.D.C.) (Maximum). The District has been held in
contempt for violations of the cap at
Central. Twelve john Does v. District Of
Columbia, 855 F.2d 874 (D.C. Cir. 1988).
On December 22, 1986, Lorton's
medium security Occoquan facilities
came under court order and a population cap was imposed. Inmates Of
Occoquan v. Barry, 650 F.Supp. 619
(D.D.C. 1986), vacated and remanded,
844 F.2d 828 (D.C. Cir. 1988), motion
for rehearing en banc denied, 850 F.2d.
796 (D.C. Cir. 1988) (dissenting opinions
and separate statements). A second
trial on remand was held in January
20 WINTER 1992

1989. The facility was held unconstitutional, and the defendants were
ordered to devise a plan to alleviate
constitutional violations. 717 F.Supp.
854 (D.D.C. 1989). Plans have been
approved by the court and compliance
is being monitored.
In March 1990, a lawsuit was filed
challenging crowding and conditions".
at Lorton's Modular Facility, a new '
prison that was designed as the .
District's reception and classification
facility. Inmates of Modular Faciitty v.
District of Columbia, #90-0727 (D.D.C.).
In the middle of trial, a settlement
was reached and a consent decree
entered which includes a population
cap and reqUires improvements in
medical care. (Order of December 14,
1990.)
52. Puerto Rico: The entire Commonwealth prison system is under a 1979
court order dealing with overcrowding
and conditions. Morales Feliciano v.
Romero Barcelo, 497 F.Supp. 14 (D.P.R.
1979). In 1986, the Commonwealth was
again found liable on crowding,
conditions and delivery of health care
services in its entire prison and jail
system. Two court monitors were
appointed. 672 F.Supp. 591 (D.P.R. 1986).
In 1987, the Commonwealth was held
in contempt for violation of the
population limits set out in a 1986
stipulation. Morales Feliciano v.
Hernandez Colon, 697 F.Supp. 26
(D.P.R. 1987).
A population cap was established at
Ponce District Jail where sentenced
felons are housed. 697 F.Supp. 37
(D.P.R. 1988). The district court ordered
contempt fines for violations of the
cap; the fines were upheld on appeal.
Morales Feliciano v. Parole Board, 887
F.2d 1 (1st Cir. 1989).
53. Virgin Islands: The territorial
prison is under court order dealing
with conditions and overcrowding.
Barnes v. Gov't. Of the Virgin Islands,
415 F.Supp. 1218 (D.V.I. 1976).

Summary
Entire Prison System Under Court Order
or Consent Decree:
11 jurisdictions: •Alaska, 'Delaware,
Florida, Mississippi, 'New Mexico,
'Rhode Island, 'South Carolina, 'Tennessee, Texas, Puerto Rico, Virgin
Islands

Major Institution{s} in the State/
Jurisdiction Currently Under Court Order
or Consent Decree:
32 jurisdictions: •Arizona, 'California,
'Colorado, 'Connecticut, 'Hawaii,
'Idaho, 'Illinois, 'Indiana, Iowa, Kansas,
'Kentucky, Louisiana, 'Maine, 'Maryland, Massachusetts, 'Michigan, 'Missouri, 'Nevada, 'New Hampshire, New
York, 'North Carolina, 'Ohio, 'Oklahoma, Oregon, 'Pennsylvania, 'South
Dakota, Utah, 'Virginia, 'Washington,
West Virginia.. 'Wisconsin, 'District of
Columbia
:
't,,'

Formerly Under Court Order or Consent
Decree or Currently Released from Active
Supervision of the Court:
6 jurisdictions: •Alabama, •Arkansas,
Georgia, 'Oklahoma, Oregon, 'Wyoming
Pending Litigation:
11 jurisdictions: •Arizona, 'California,
'Colorado, 'Connecticut, Georgia,
Nebraska, New York, 'North Carolina,
'Ohio, 'Pennsylvania, 'Utah
Special Masters/Monitors/Mediators
Appointed {present and pas~:
25 jurisdictions: •Alabama, •Alaska,
•Arizona, •Arkansas, 'California,
'District of Columbia, Florida, Georgia,
'Hawaii, 'Idaho, 'Illinois, Kansas,
Louisiana, 'Michigan, 'Nevada, 'New
Mexico, New York, 'Ohio, 'Pennsylvania, 'Rhode Island, 'Tennessee, Texas,
Washington, District of Columbia,
Puerto Rico
Prison Systems or Major Facilities Under
Court Order and Cited for Contempt
{present and pas~:
8 jurisdictions: •Alabama, 'Michigan,
Mississippi, 'Rhode Island, Texas,
Virginia, 'District of Columbia, Puerto
Rico
Not Involved {to date} in Overcrowding
orCondinonsLinganon:
5 jurisdictions: Minnesota, Montana,
New Jersey, North Dakota, Vermont
Note: There is some overlap between the second and
fourth categories because, in some states, one or
more facilities are under court order while other
facilities in that state are presently being
challenged (e.g., Illinois). Also, Oklahoma is listed in
both the second and third categories because the
McAlester facility is still under the court order
entered in Battle v. Anderson but is no longer under
active court supervision. •

Edward l Koren is a senior staff
attorney with the NPP.

THE NATIONAL PRISON PROJEO JOURNAL

AIDS Coordinator
Looks Back on
Four Years' Work
hen I first joined the National
Prison Project as the AIDS
information coordinator in
1988, I met with one of the foremost
advocates of prisoners with HIV/ AIDS
in this country-Mike Riegle' of Gay
Community News. While sitting out
in Dupont Circle, Mike told me that he
could count the number of advocates
for prisoners with AIDS on one hand.
I realized that the most important
contribution that I could make would
be to strengthen the small but
growing network of support for
prisoners who were HIV-positive or
who were trying to understand and
fight the AIDS epidemic behind the
walls.
Nearly four years later, as I leave
the National Prison Project to move to
California, I think that the combined
efforts of people around the country
have affected the lives of prisoners
with HIV and AIDS. While this

W

coalition has included a variety of"
people-AIDS educators and activists,
lawyers, prisoner advocates, health
care workers, some concerned pri~on
staff-it has been the tireless infetvention of prisoners themselves that
has made the most difference.
It's not that the quality of life for
prisoners with HIV or AIDS has
changed. I doubt whether conditions
have improved in four years. It is
true that almost all of the state prison
systems and the Federal Bureau of
Prisons are dispensing AZT and other
drugs necessary to treat and manage
the AIDS virus. Fewer state systems
than ever are segregating HIV-positive
prisoners or those with full-blown
AIDS. HIV-positive prisoners have
been effectively mainstreamed into
the general prison population. Only a
few stubborn states like Alabama,
Mississippi, Missouri and California
maintain the unnecessary segregation
policies.
However, despite more seemingly
enlightened prison policies, prisoners
with HIV/ AIDS are still treated
differently. They are often rated
more harshly for disciplinary infractions and held longer in administrative segregation. Many states still do
not allow HIV-infected prisoners

access to the same jobs and vocational
training as other prisoners. While
some early parole/medical release
programs have been put into place for
prisoners wi,h terminal illnesses, most
state legislatures and prison administrations ha:sfe not discovered the
humanity Of allowing prisoners with
AIDS to live the last months of their
lives with their family and friends.
Corrections administrators have yet
to ensure an HIV-positive prisoner's
right to privacy. Staff have much to
learn about how HIV/ AIDS is transmitted and why they should use
universal precautions when dealing
with all prisoners, not only the few
known to be HIV-positive.
The most important change over the
past four years has been advocacy on
behalf of prisoners with HIV and
AIDS on both sides of the walls.
AIDS service organizations and
health educators all over the country
have set up programs inside jails and
prisons. Of course, there has been
some resistance on the part of prison
administrators to "outsiders," but
many projects have overcome even
that obstacle. These organizations
have provided badly needed educational brochures, videos, and classes
for prisoner peer educators.

100 patients on any given day) will
provide chest x-rays for all 150,000
admissions along with the tuberculosis
skin test.
"By doing thiS," says Safyer, "we will
diagnose many more patients, place them
in safe environments and follow them
under supervised care. This is the only
proper response for New York City and, I
suspect, for many other corrections
systems." _

Tuberculosis in New York City: Human Immunodeficiency Virus, Homelessness, and the Decline of
Tuberculosis Control Programs," American Review
of Respiratory Disease, 144:741-743 (1991).
4 Alan Bloch, M.D., in a speech entitled, "Preventing
TB Outbreaks in Your Correctional Facility," given
at the 1991 National Conference on Correctional
Health Care.
S William W. Stead, M.D., "Undetected Tuberculosis
in Prison: Source of Infection for Community at
Large," JAMA, Vol.240, No.23, (Dec. 1, 1978).
6 Bailus Walker Jr., Ph.D., MPH, "Prison Population
Pressures: The Epidemiological Basis for Present
Density Standards," Journal Of Environmental
Health, Vol. 54, No.2, pp.18-21, (Sept./Oct. 1991).
7 L.N. King and G. Geis, "Tuberculosis Transmission
in a Large Urban Jail," JAMA, 261:393-397, (1977).
8 Peter A. Selwyn, et al., "A Prospective Study of the
Risk of Tuberculosis Among Intravenous Drug Users
with Human Immunodeficiency Virus Infection,"
The New EnglandJournal of Medicine, Vol.320, No.9,
pp. 545-550, (March 2, 1989).
9 Barnes, et al., The New EnglandJournal of
Medicine, Vol.324, No.23, Oune 1991).
10 Bureau of Justice Statistics.

(cont'd from page 4)

"The buck must stop with one particular person...a person with a name and a
face must be responsible for each
tuberculosis..patient."
The CDC also stresses that the burden of
proving that intramural transmission of TB
is notoccurring rests on the correctional
institution. Until improvements in this area
are made, a jail or prison sentence may
include not only loss of freedom but also an
increased risk of tuberculosis.
Judge Morris Lasker has ordered New
York City to open a 140-bed isolation unit
on Rikers Island. The first 42 beds will
be operational by May 1st. Dr. Safyer is
delighted about the unit, which he calls
"state-of-the-arLfar exceeding anything I
have seen in the New York hospital
system."
The New York City correctional system
(which already diagnoses and treats over
THE NATIONAL PRISON PROJECT JOURNAL

Jan Elvin is editor of the NPPJOURNAL.
Quoting Dr. George di Fernando Jr., director of
New York State Health Dept. TB Control Program,
"New York Moving to Limit TB Spread," New York
Times, p.42, (December 8, 1991).
2 Montefiore provides medical care for the
approximately 20,000 inmates in the New York
City jails.
3 Karen Brudney and Jay Dobkin, "Resurgent
1

WINTER 1992 21

.

AIDS activist organizations, like ACT
UP, have responded creatively to
critical problems and abuse faced by
prisoners with HIV and AIDS. From
the Justice for Gregory Smith campaign (an HIV prisoner, Smith was
convicted of attempted murder and
sentenced to 25 years in prison for
biting a prison guard) to the first
national demonstration in Madison,
Wisconsin, on the anniversary of the
suspected murder of Donald Woods, a
prisoner with AIDS, activists have
strongly advocated on behalf of
prisoners with HIV/ AIDS.
The National Commission on AIDS
report on "HIV Disease in Correctional
Facilities" was a major contribution to
our efforts to place AIDS and prison
issues on the national agenda. This
document, based on prison site visits
and testimony by prisoners, lawyers,
corrections officials, health educators
and practitioners, contains a set of
model recommendations which, if
followed, would radically transform
the care and treatment of people with
HIV/ AIDS behind the walls.
Not surprisingly, prisoners themselves are the most active members of
this coalition. I consistently drew my
greatest inspiration from the prisoners
who attempted to stem the epidemic
behind the walls. Joining with them
were prisoners who were not HIV
positive but felt the urgency of
responding positively to the epidemic.
These prisoners are truly on the
front lines fighting not only the
epidemic but the fear of AIDS. These
peer educators have faced punitive
transfers, harassment, shakedowns,
and disciplinary segregation for their
efforts to set up education programs.
From the ACE (AIDS Counseling and
Education) program in New York
(which I was.pever able to visit
because of the defensiveness of the
Department of Correctional Services)
to less recognized but equally dedicated groups of men and women
prisoners around the country, I salute
your efforts to provide peer counseling and education.
Four years later-the problems are
still as overwhelming as they were
then. My greatest concern is complacency among correction officials.
True, the numbers of HIV-positive
prisoners in some areas of the country
have not proven to be as high as
originally anticipated. The epidemic
has not spread as quickly as predicted.
However, two recent news items will
22 WINTER 1992

Judy Greenspan, NPP AIDS information coordinator for the past four years,
demonstrates here on behalf of Gregory Smith, an HIV inmate convicted of
attempted murder for biting a prison guard.

have a dramatic impact on the
situation of AIDS and prison not only
in New York but around the country.
First is the discovery of a drugresistant strain of tuberculosis which
has caused several deaths in a New
York state prison. The second item is
the recent announcement by the
World Health Organization that AIDS
cases worldwide will rise tenfold by
the year 2000. Since the rate of HIV
infection in prisons and jails is much
higher than that of the general
population, we will witness an
increase in the number of prisoners
with HIV and AIDS.
I am much more optimistic than I

was four years ago about advocacy
and education efforts on behalf of
prisoners with HIV/ AIDS. But we
will have our work cut out for us as
we move into the second decade of
the AIDS epidemic. I intend to
continue my involvement from my
new home on the West Coast. •
'We learned before going to press
that Mike Riegle has died. We mourn
the loss of a friend and a valuable
advocate for prisoners with HIV/
AIDS.
Judy Greenspan recently resigned from
her position as AIDS information
coordinator for the NPP.
THE NATIONAL PRISON PROJECT JOURNAL

blications
1990 AIDS in Prison

The National Prison
Project Status Report lists
by state those presently un~er
court order, or those which
have pending litigation ,either
involving the entire state
prison system or major ~ v
institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.) Updated January 1992. $5
prepaid from NPP.

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.

QTY. COST

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 Spanish. Sample
copies free. Bulk orders: 100
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.

Bibliography of Material
on Women in Prison
lists information on this subject
available from the National
Prison Project and other
sources concerning health care,
drug treatment, incarcerated
mothers, juveniles, legislation,
parole, the death penalty, sex
discrimination. race and more.
35 pages. $5 prepaid from NPP.

The National Prison
Project JOURNAL, $30/yr.
$2/yr. to prisoners.

Offender Rights Litigation: Historical and
Future Developments. A
book chapter by Alvin J.
Bronstein 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
from NPP.

Bibliography lists resources
on AIDS in prison that are
available from the National
Prison Project and other
sources, including corrections
p.Qlicies on AIDS, educational
m}terials, medical and legal
;itticles, and recent AIDS
studies. $5 prepaid 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 isnot a"jailhouse
lawyers" manual.) $20 prepaid
from NPP.

(order
from
ACLU)

QTY.COST

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;
$5 for prisoners. ACLU Dept. L,
P.O. Box 794, Medford, NY
11763.

Fill out and send with check payable to:

Name

The National Prison Project
1875 Connecticut Ave, NW, #410
Washington, D.C. 20009

Address

_

City, State, Zip

_

THE NATIONAL PRISON PROJEG JOURNAL

_

WINTER 1992 23

fees and invited them to file a renewed,
motion for contempt in the event"defendants fail to maintain compliance:
he following are major developments in the Prison Project's
litigation program since September
15,1991. Further details of any of the
listed cases may be obtained by writing
the Project.

T

Casey v. Lewis, filed on behalf of all
Arizona state prisoners, challenges legal
access, health care, and practices relating
to assignment to segregation. Defendants
sought a stay from the Ninth Circuit on a
district court decision that enjoined them
from prohibiting contact visits between
prisoners and their attorneys, and from
denying food service jobs to qualified
HIV-infected prisoners. The Ninth
Circuit denied the stay. Trial began on
November 20 on medical care, access to
courts, confidential information and
handicap access, and continued through
January 1992.
Dickerson v. Castle challenges
conditions and overcrowding in
Delaware's adult prisons. In November,
the Court of Chancery held that
defendants had substantially cured their
noncompliance with the consent decree
and accordingly denied plaintiffs' motion
for contempt. However, the court ruled
that plaintiffs were entitled to attorneys'

National Pris~m Project
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830
THE NATIONAL

Hamilton v. Morial challenges
conditions at the Orleans Parish Prison,
the municipal jail for the City of New
Orleans. In September 1991, the court
entered an order requiring the defendants to conform to the mental health
standards adopted by the National
Commission on Correctional Health Care
(NCCHC). The defendants were also
ordered to remove all state hospital
patients from the jail within 90 days.
Hudson v. McMillian-On November
13, 1991, the Supreme Court of the United
States heard argument in this Louisiana
case involving prisoner Keith Hudson
who was beaten by guards while in
shackles. The National Prison Project
argued that the Fifth Circuit was wrong
to require a showing of significant injury
in order to prove an Eighth Amendment
violation. The U.S. Solicitor General,
joining as amicus on behalf of Hudson,
also argued a portion of the case.
Inman v. Board of Supervisors for
Northampton Co., Virginia-On October
11, 1991, the Prison Project and the ACLU
of Virginia filed this case against the
Northampton, Virginia County Jail,
challenging overcrowding, poor plumbing
and sanitation, insect and rodent

infestation, fire safety violations and
inadequate medical care. The court
heard argument on the motion for a
temporary restraining order on October
28. On Novem~(. r 15, the court issued an
order suspending the case for 60 days to
allow the Stat~Board of Corrections to
resolve the problems. Plaintiffs filed a
motion for reconsideration, asking the
judge to lift the stay.
Rufo v. Inmates of Suffolk Co.JailThe Supreme Court heard oral argument
in this case on October 9, 1991. Officials
of the Suffolk County Jail in Massachusetts sought to modify a 1979 consent
decree which prohibits double-ceIling.
Officials argued that modification was
necessitated by unanticipated population
increases and that the modification
would not result in unconstitutional
conditions. The NPP participated as
amicus curiae on behalf of the inmates.
On January 15, 1992, the Court sent the
case back to the district court, ruling that
courts are to apply a "flexible" standard
in determining whether to modify
consent decrees. The Court also held that
the fact that a consent decree may gQ
beyond the requirements of the Constitution would not, by itself, justify modification.

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THE NATIONAL PRISON PROJECT JOURNAL