A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL 8, NO.1, WINTER 1993 • ISSN9748-2655

\

Odyssey: APrison Magazines DifficultJourlney
shape their content by viewing everything
in the context of security. In short, they
exercise censorship.
To make matters worse, the Supreme
merica has a long tradition of prison
Court and the lower federal courts have
journalism. For more than a century,
consistently weakened prisoners' First
prisoners have established journals
to communicate their interests within the
Amendment rights during the past 10
years. In Turner v. Safley! for example,
prisons and to carry their voices into the
the Court established that "...censored
community. Despite the hundreds of jourmaterial must
bear a reasonable relationship
to security."
Although the
court did affirm
that prisoners
have First
Amendment
rights, the practical effect of the
ruling was to
grant correction'" al officials broad
~ latitude to cen;.=:
"E sor or ban read-g ing material or
a writings by pris~ oners based on
~ prison officials'
~ definition of
-D security. Free
..g speech would be
Luke Janusz, editor and publisher of Odyssey.
subject only to
passive review
nals that have been created, these goals
by the courts.
have often been frustrated because the real
In Thornburgh v. Abbott,2 the "reasonconcerns prisoners wish to communicate
able relationship" standard was reaffirmed
are all too often censored by prison
for censorship of publications sent to prisadministrations. Itwould be more accuoners. The Court ruled that a regulation
rate, therefore, to speak of prison journalprohibiting publications that are "...deterism as an unfulfilled aspiration.
mined [to be] detrimental to the security,
Prison journalists confront formidable
good order, or discipline of the institution
obstacles in their work. Ownership is the
or...might facilitate criminal activity" is not
fundamental area of contention. Prisoners
unconstitutional. The obvious and trounaturally view their creative expressions
bling question raised by this ruling isas belonging to them; conversely, prison
who will determine what is detrimental?
administrators view the journals as
The lawsuit that has generated the greatbelonging to the prison, and attempt to
est interest and perhaps will have the most

A

lasting impact on the interpretation of
prisoners' First Amendment rights was
brought in July of 1988 by Dannie Martin
and the San Francisco Chronicle. Martin,
a prisoner at the U.S. penitentiary in
Lompoc, California at the time, had written
more than 40 articles under his byline
during a two-year period for the San
Francisco Chronicle, openly and without
objection by Federal Bureau of Prisons officials. When he wrote an article describing
rising tensions in Lompoc and criticizing
the policies of the new warden, he was •
placed in solitary confinement and hastily
transferred to a federal prison in Phoenix.
Martin was charged with violating prison
regulations because he had "acted as a
reporter and published under a byline" and
because he had "conducted a business."
In an opinion delivered by federal district court judge Charles A. Legge in June
1990, Martin's writings were praised for
their "educational and entertaining" qualities. Legge went on to note that prisoner
writing is a "healthy use of
time,...appears to be worthwhile for educational
reasons, [and] ...could
provide a good role
model for other
prisoners."

The judge then reasoned that"...as long
as prison security is a valid interest, the
order of priority of the penological interests is for the Bureau of Prisons and not
for this court to decide."
Referring to the critical issue of balancing the public's right to know with prison
security, Legge said, "These are questions
which are not within the power of this
court to decide. They are for the Bureau of
Prisons to decide."
In effect, the judge forfeited the authority
and power of the judiciary to interpret and
enforce the First Amendment rights of prisoners and granted it to prison officials.
The decision is under appeal to the Ninth
Circuit Court of Appeals.
Legge's strained and contradictory legal
"reasoning" is symptomatic of the attitude
of a federal judiciary that is consistently
reactionary with respect to prisoners'
rights. Seventy percent of all federal judges
currently sitting were appointed either by
Reagan or Bush, and many of them were
distingUished by their sterling record of
contempt for prisoners' rights.
State prison officials, however, are also
subject to the jurisdiction of the state
courts and must contend with judges who
may have a greater respect and appreciation for prisoners' First Amendment rights.
In addition, state judges are in a position
to apply their state constitutions and are
not completely bound by the Turner standard. Prison administrators at the state
level, therefore, are reluctant to justify
their actions in court because much of
what they wish to censor has less to do
. with security than ideology.
Prison administrators invariably assert
their "right" to control the financial management of the journal. Under the pretext
of fiscal management, they ultimately
determine everything from the size of the
publication to the production schedule.
Without financial autonomy, prison publications must rely on the institution's production facilitieS', and access to the production facilities is regulated according to
the dictates of "security." As a result, most
prison journals become either extensions of
the warden's public relations department or
token efforts without funding or support.
They may feature articles about sports,
entertainment, social events, and perhaps
some innocuous political commentary for
appearance's sake. Continued favor with the
prison administration is purchased by producing a journal that retreats from the real
concerns and problems facing prisoners.
This was the condition of The Question
Mark journal at Norfolk State Prison [in
Massachusetts] when I became editor in
1989. The prison population, through its
2 WINTER 1993

representative body, had elected me to create a meaningful voice for prisoners. The
prison authorities, however, were content
with the prevailing pretense. My nomination as editor was rejected by prison offi-

cials because in their estimation, I lacked
a "significant amount of responSibility," all
administrative phrase that meant that I was
not a cooperative inmate. After a protracted battle that included legal action, the
superintendent intervened and approved
me for the position.
The newspaper staff convened a closed
door meeting. The Question Mark did not
survive that meeting. Our task was to transform a 12-page collection of random notes
into a 120-page quarterly magazine. Our
goal was to reclaim the press from the prison administration; any association with the
former journal, either in name or in substance, would compromise our efforts and
undermine our credibility as journalists.
The identity of the magazine took shape
during the next few weeks. We chose the
name Odyssey for the magazine because it
reflected the essence of the prison experience-the journey home.
Defining goals and developing a strategy
for Odyssey was more of a process of evolution than a predetermined plan. We
began with a few fundamental ideas and
strong convictions based on many years of
incarceration. We wanted Odyssey to
establish a forum where prisoners could
express their views about criminal justice
issues in open exchange with members of
the broader community. By publishing
innovative research and creative articles by
prisoners, correctional offiCials, legislators, victims of crime, and others who may
influence criminal justice policy, we
believed that Odyssey would promote a
dialogue that would lead to greater understanding about the problems of crime and
punishment in our society.
Becoming a meeting place for ideas and
debate seemed to be an obvious starting
point. We soon discovered that it was anything but obvious. Searching in vain for a
magazine that could serve as a model, we
learned instead that virtually all criminal
justice publications are characterized by
exclusion and special interest agendas.
Competing ideologies have replaced a
healthy debating of ideas.
We were offering to build a forum to
encourage diverse opinions and to challenge established ideologies. From this

basic premise the magazine began to take
on a will and purpose of its own. We strove
for solutions that would benefit victims of
crime, taxpayers, prisoners, and correctional officials simultaneously. We perceived that Odyssey's significance transcended prison or criminal justice issues
in that we were attempting to develop a
model for collective problem-solving that
would apply to all social problems.
Prison security forces moved swiftly in
response to our plans. Within three
months of my apI\ointment as editor, I was
placed in "the h()le" (solitary confinement) for allegedly organiZing a hunger
strike. The disciplinary report referred to
me as a "silent leader." During my ten
weeks in isolation, the organizational plan
for Odyssey!s future was conceived. The
intervention of the security forces confirmed that the only way a prison magazine
can survive is for prisoners to establish an
independent financial and production base
outside prison walls. I drafted a proposal
that incorporated these ideas and mailed it
to a group of journalists, educators, and
prisoners' rights activists.
After a core group was formed, we filed
(cont'd on page 21)

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, DC 20009
(202) 234-4830 FAX (202) 234-4890
The Nafianal Prison Project is a tax-exempt foundationfunded proiect of the AClU Foundation which seeks to
strengthen ond 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 reprinfing of JOURNAL material is encouraged with
the stipulation that the Nafional Prison Proiect JOURNAL
be credited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publicafion quarterly by
the National Prison Project. Materials and suggestions
are welcome.

The NPP JOURNAL is available on 16mm
microfilm, 35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.
THE NATIONAL PRISON PROJECT JOURNAL

·Status Report: State Prisons and
the Courts - January 1, 1993
'~

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 four 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 in which the ACLU has
been involved in the litigation.)
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), aJj'd in
substance sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977), rev'd in part
and remanded sub nom. Alabama v. Pugh,
438 U.S. 781 (1978). Areceiver was appointed. 466 F.Supp. 628 (M.D. Ala. 1979). In
January 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. Cleat]. v. Smith, No. 3AN-81-5274
(Superior Court, 3rdJud. 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. The parties contemplated that the
mechanism would remain in effect until the
state legislature approved an emergencyovercrowding reduction statute. By October
1992, the legislature failed to pass such legislation, the DOC failed to reduce the population at the six largest prisons, and the State
filed for relief from the order.
3. Arizona:* The state penitentiary is
operating under a series of court orders and
consent decrees dealing with overcrowding,
classification, and other conditions. Orders,
August 1977-1979, Harris v. Cardwell, CIV-

F

THE NATIONAL PRISON PROJECT JOURNAL

75-185 PHXCAM (D. Ariz.). Aspecial aqmln"
istrative-segregation unit at the Arizona',~tate
Prison in Florence was operating undet;,a
December 12, 1985 consent decree. Amonitor 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.
Astatewide class action, filed on behalf of
Arizona prisoners on January 12, 1990, challenges legal access, health care, and discrimination against handicapped prisoners. Casey
v. Lewis, CIV-90-0054 PHXCAM (D. Ariz.).
Partial summary judgment for plaintiffs was
entered in August 1991 enjoining discrimination against HIV-positive prisoners in job
assignments. The State has appealed. Trial on
the remaining issues occurred in 1991-1992;
plaintiffs are awaiting a decision on the
health-care and handicapped-access issues.
On November 13, 1992, the district court
entered a decision favorable to prisoners on
the legal-access issues.
4. Arkansas:* The entire state prison
system was under court order dealing with
total conditions. Finney v. Arkansas Board
ojCorrection, 505 F.2d 194 (8th Cir. 1974).
Aspecial 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 (DVI) are under court order due
to overcrowding and conditions. Apreliminary injunction was entered. Toussaint v.
Rushen, 553 F.Supp. 1365 (N.D. Cal. 1983),
aJj'd in part sub nom. Toussaint v. Yockey,
722 F.2d 1490 (9th Cir. 1984). The district
court thereafter entered a permanent order
enjoining double-ceiling and other conditions at the San Quentin and Folsom units.
Toussaint v. McCarthy, 597 F.Supp. 1388
(N.D. Cal. 1984). The court of appeals
reversed on the issues of placement and
retention in administrative segregation. 801
F.2d 1080 (9th Cir. 1986), cert. denied, 481
U.S. 1069 (1987). Amonitor was appointed
to oversee compliance. Toussaint v.
Rowland, 711 F.Supp. 536 (N.D. Cal. 1989).

The monitorship was dissolved in 1991, but
the plaintiffs continue to evaluate compliance. On June 29, 1992, acting on the defendants' motion under Fed.R.Civ.P. 68, the district court entered an order on conditions
and double-ceiling with respect to Soledad
and DVI.
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 CaliforrNa Institution for Men at Chino
is operating m,fder a settlement agreement
providing fQ.J;jmproved sanitation, classification, legal access, and other conditions.
Compliance monitoring has ceased. 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 and psychiatric
services, including housing and programming
for HIV-infected inmates. Compliance is
being monitored. Gates v. Deukmejian, #S87-1636-LKK-JFM (E.D. Cal.). See also 977
F.2d 1300 (9th Cir. 1992) (attorney fees). In
1992, plaintiffs filed a contempt motion concerning the staffing requirements of the
order. Amagistrate judge filed a report on this
issue·, and the district judge ordered limited
further relief. (Order entered Apr. 3,
1992).
Two lawsuits concern the delivery of medical and mental health services to prisoners
at the California Women's Institution at
Frontera. Whisman v. McCarthy, #OCV33860 (Superior Court, San Bernadino
County) and Doe v. California Department
ojCorrections, A-Civ.-89-598-GLT (C.D.
Cal.). In Whisman, a settlement was reached
in May 1992, in which the parties agreed to a
state DHS inspection and to correct problems
with inadequate treatment and care identified
by this inspection. Doe deals with the treatment of HIV- positive prisoners at CW!.
Discovery continues. Substantial changes
have occurred in the DOC policy that have
changed the posture of the case.
In 1990, a lawsuit was filed challenging
conditions, violence, and the delivery of
health-care services to prisoners at the
State's new "supermax" facility at Pelican
Bay. Madrid v. Gomez, C-90-3094 (N.D.
Cal.). Aclass has been certified and discovery is ongoing.
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), aJj'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
WINTER 1993

3

Overcrowding plagues nearly all
Creek State Prison.

u.s. prisons. Here,

agreements later approved by the court concerning general conditions, as well as specific areas such as legal access, double-bunking, and treatment of HIV-infected prisoners.
On this last issue, see Diaz v. Romer, 961
F.2d 1508 (10th Cir. 1992).
Alawsuit 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.). In 1992, the parties reached a comprehensive settlement on all of the issues.
The district court approved this agreement in
June 1992. 801 F.Supp. 405 (D. Colo. 1992).
7. Connectlcut:* The Hartford
Correctional Center is under court order
dealing with overcrowding and some conditions. Lareau v. Manson, 507 F.Supp. 1177
(D. Conn. 1980), afj'd in part, modified,
and remanded, 65lF.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 Center, Andrews v.
Manson, #N81-20 (D. Conn. 1982); the
Morgan Street Correctional Center; and the
Union Avenue Correctional Center.
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.) (order entered Oct. 3, 1984).
4 WINTER 1993

160 inmates are housed in the gym of California's jam-packed Mule

Compliance is being monitored in this case.
Litigation challenging violence and overcrowding is pending at the state prison at
Somers, Bartkus v. Manson, Civ. No. H-80506, and at the Montville Correctional Center,
Foss v. Lopes. In Bartkus, the parties have
been engaged in settlement negotiations.
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.
Chan.)(order entered Nov. 22, 1988). On
December 7, 1992, a supplementary agreement on overcrowding and tuberculosis control was approved by the court.
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), affd, 525 F.2d 1239 (5th
Cir. 1976), and 553 F.2d 506 (5th Cir.
1977). In 1980, the court entered a consent
decree providing measures foc population
control. 489 F.Supp. 1100 (M.D. Fla. 1980).
Aspecial master was appointed. Additional
. consent decrees were entered covering environmental health and safety. In 1992, the
parties agreed that the standards and terms of
the population order would be embodied in a
state statute and that the Correctional Medical
Authority (CMA) , an independent state-funded agency, would monitor and enforce com-

pliance. Class notice of this modification has
been ordered.
Aconsent decree was entered on December .
17, 1987 in Costello concerning health-care
services. In 1991, the parties negotiated to
end court supervision of the health-care
order by turning over monitoring and
enforcement to the CMA.
10. Georgia: The state penitentiary at
Reidsville is under court order on total conditions and overcrowding. Aspecial 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-ceiling, improvements in the medical and
mental health care-delivery systems, and
improvements in environmental health, among
other things. Anumber 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 entered in a totality- of-conditions suit. Spear v. Ariyoshi (now Spear v.
Waihee) , Civ. No. 84-1104 (D. Haw.) .
Monitors were appointed and continue to
assess compliance with the court decree. The
parties have been engaged in further negotiations with a view toward modifying the decree
to reflect current conditions more accurately.
12. Idaho:* The men's Idaho Correctional
THE NATIONAL PRISON PROJEG JOURNAL

~II

I
I

.State Institution is under a court order concerning conditions. Balla v. Idaho State
Board ofCorrections, 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; the agreement will remain
in effect until the DOC opens a new facility.
Witke v. Crowl, Civ. No. 82-3078 (D. Idaho).
Compliance is being monitored. Once the
new facility is operational, the previous
agreements reached in this case concerning
programming, delivery of medical care, and
legal access will continue to apply.
13. Illinois:* The state penitentiary at
Menard is under court order on total conditions and overcrowding. Aspecial master,
appointed in 1980, was discharged after four
years. There has been substantial compliance
with the decree; however, the injunction
remains in force. Lightfoot V. Walker, 486
F.Supp. 504 (S.D. Ill. 1980).
Dwight Correctional Center is under a May
1990 consent decree that requires programs
for women prisoners and the construction of a
200-bed minimum-security facility for women.
Moorhead V. Lane, #86-c-2020 (C.D. Ill.).
The Stateville facility is under a December
1990 consent decree, entered by the district
court, which provides for improved protection from assault. Calvin R. V. Peters,
#82C1955 (N.D. Ill.). Acourt monitor has
been appointed and a classification evaluation by NCCD has been completed. Compliance monitoring continues. The district
court ordered that protective-custody prisoners at the Stateville facility be provided with
improved pJ:.ogramming, conditions, and legal
assistance. Williams V. Lane, 646 F.Supp.
1379 (N.D. Ill. 1986). The court of appeals
affirmed this decision. 851 F.2d 867 (7th Cir.
1988), cert. denied, 488 U.S. 1047 (1989).
14. Indiana:* The state prison at
Pendleton was found unconstitutional on total
conditions and overcrowding. French v.
Owens, 538 F.Supp. 910 (S.D. Ind. 1982),
affd in pertinent part, 777 F.2d 1250 (7th
Cir. 1985), cert. denied, 479 U.S. 817
(1986). The state penitentiary at Michigan
City is under a court order on overcrowding
and other conditions. Hendrix V. Faulkner,
525 F.Supp. 435 (N.D. Ind. 1981), affd in
part, vacated and remanded in part sub
nom. Wellman v. Faulkner, 715 F.2d 269
(7th Cir. 1983), cert. denied, 468 U.S. 1217
THE NATIONAL PRISON PROJEG JOURNAL

(1984). The state prison at Westville is under
a consent decree on overcrowding, conditions, and delivery of mental health services.
Anderson v. Orr, C.A. No. S83-0481 (N.D.
Ind.)(case filed in 1983). Acomprehensive
settlement was reached on March 31, 1989.
Compliance is being monitored.
·'t
In June 1990, a case was filed challenging
conditions and delivery of health-care ser';-'
vices to prisoners confined at Indiana's; ..
reception-and-classification facility. Le'qr:lier
V. Bayh, IP90-1460-C (S.D. Ind.). After"conducting discovery, the parties reached a comprehensive settlement. Aconsent order was
entered on July 5,1991. Compliance is being
monitored.
On May 4, 1992, prisoners at the Maximum
Security Complex at Westville (the State's socalled "supermax") brought an action in
state court challenging placement and conditions. Taifa V. Bayh, #49-DO-7-9205-CP-489
(Superior Court, Marion County). The State
had the case removed to federal court. Taifa
V. Bayh, #S-92-429M (N.D. Ind.). The federal
court remanded the state-law claims to the
state court. Discovery is in progress. Asettlement conference on both lawsuits has been
scheduled.
15. Iowa: The Iowa State Penitentiary at
Fort Madison is under court order on overcrowding and a variety of conditions; however, this decree is not being actively monitored
for compliance. Watson V. Ray, 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 segregation, Gavin v. Ray,
#78-62-2 (S.D. Iowa), and protective-custody
practices, Parrott V. Ray. These cases are
being actively monitored.
16. Kansas: Aconsent 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 other
existing or new facilities must meet ACA standards. Apanel of experts is monitoring mental health treatment. In 1991, the defendants
moved for modification of the consent decree
to permit double-ceiling and to increase
operating capacity due to construction delays.
The court denied modification in two prisons
that 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),
affd in part and dismissed in part, 967

F.2d 418 (10th Cir. 1992) .
17. Kentucky:* The Kentucky State
Penitentiary (KSP) at Eddyville and the
Kentucky State Reformatory (KSR) at
LaGrange were 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 the defendants in
substantial co\npliance with the consent
decree, with-the exception of new-construction requiretrients. As a result, the case was
placed on the inactive docket of the court, a
decision affirmed by the court of appeals.
However, that court held that the district
court could reinstate the case if plaintiffs
could prove "a major violation" of the
decree. Kendrick V. Peters, 931 F.2d 421
(6th Cir. 1991). On February 24, 1992, the
district court, with respect to KSP, relinqUished jurisdiction and dismissed the case.
With respect to KSR, the court retained jurisdiction until all construction is completed
and as long as major violations of the decree
do not occur.
The women's prison, KCIW at Pee Wee Valley, was 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.Supp. 174 (W.D.
Ky. 1982); Canterino v. United States, 564
F.Supp. 711 (W.D. Ky. 1983). The district
court's order concerning work and study
release was vacated by the court of appeals.
Canterino V. Wilson, 869 F.2d 948 (6th Cir.
1989). The district court relinquished jurisdiction on July 13,1992.
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 state-prison-overcrowding
and local-jail-overcrowding cases in
Louisiana before one district court judge.
This decision included Williams. See
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 ofJustice investigate. In 1991, the judge appointed a lawyer
for the class of state prisoners; the lawyer has
been actively involved in monitoring compliance with outstanding orders in the case. The
case is now entitled Williams V. McKeithen.
See 939 F.2d 1100, 1102 (5th Cir. 1991).
WINTER 1993

5

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),
affd, 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
(D. Me). In March 1991, the parties reached
an agreement to end double-ceiling in those
units and to enhance programming opportunities. Compliance is being monitored.
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. Collins. 455 F.Supp. 727 (D. Md.
1978), affd in part sub nom. johnson v.
Levine, 588 F.2d 1378 (4th Cir. 1978), on
remand, Nos. H-77-113 and B-77-116 (D.
Md. Jan. 5, 1981), rev'd and remanded sub
nom. Nelson v. Collins, 659 F.2d 420 (4th
Cir. 1981) (en banc). Asettlement agreement
and consent decree were subsequently
entered in both cases.
In a case against the Maryland Correctional
Institution at Hagerstown, the district court
approved a settlement agreement in 1979 that
required that double-ceiling be eliminated
and certain conditions improved. Washington
v. Keller, 479 F.Supp. 569 (D. Md. 1979).
The Washington and johnson cases were
later consolidated and further agreements
were entered in October 1987 and February
1988. Compliance is being monitored. Subsequent contempt motions filed in these cases
have been resolved by negotiation.
21. Massachusetts: The maximum-security unit at the state prison in Walpole was
challenged on total conditions. Blake v. Hall,
C.A. 78-3051-T (D. Mass.). The district court
decided in the ~rison officials' favor. On
appeal, this decision was affirmed in part and
reversed in part and remanded, 668 F.2d 52
(lst Cir. 1981), cert. denied, 456 u.s. 983
(1982).
At MCI at Walpole, numerous conditions,
sanitation, and space issues-including housing prisoners in dayroom areas-are being
challenged. Nolan v. Fair, #84-1360
(Superior Court, Norfolk County).
Acase filed in state court challenged
unlawful conditions, use of force, and classification practices in DOC segregation units
statewide. After months of trial before one
justice, the state Supreme Judicial Court ruled
in the prisoners' favor. New regulations have
been promulgated; compliance is being monitored. Hoffer v. Fair, #85-71 (Supreme
6

WINTER 1993

Judicial Court, Suffolk County).
Acase filed against MCI at Concord successfully challenged numerous unlawful conditions, including the use of dayrooms for
housing prisoners. The practices have ceased
and the State has settled for money damages.
jacobs v. Fair, #86-81758 (Superior Court,"
Suffolk C o u n t y ) . , .,
22. Michigan:* The women's prison is ,:,.
under a court order concerning the total conditions of confinement, including program,
mingo Glover v. johnson, 478 F.Supp. lOi$,
(E.D. Mich. 1979); further orders entered,
510 F.Supp. 1019 (E.D. Mich. 1981),affd
without opinion sub nom. Cornish v.
johnson, 774 F.2d 1161 (6th Cir. 1985),
cert. denied, 478 U.S. 1020 (1986). Later,
the Department of Corrections was found in
contempt. 659 F.Supp. 621 (B.D. Mich.
1987), vacated and remanded, 855 F.2d 277
(6th Cir. 1988). On remand, the State was
required to appoint a special administrator to
design and implement a remedy for violations
of the order. 721 F.Supp. 808 (E.D. Mich.
1989), affd in part and rev'd in part, 934
F.2d 703 (6th Cir. 1991). Subsequently, a special administrator was appointed, and a compliance plan was ordered to be submitted.
Four men's prisons (Marquette, Michigan
Reformatory, Riverside, and a portion of
Jackson) are under a consent decree on overcrowding and other conditions. This case was
brought by the U.S. Department ofJustice
under the Civil Rights of Institutionalized
Persons Act (CRIPA). United States V.
Michigan, 680 F.Supp. 928 (W.D. Mich.
1987). In 1992, the DOJ filed a motion to
vacate portions of the decree under a new
policy announced by Attorney General William
Barr. On December 1, 1992, the court dismissed some relatively minor portions of the
decree. Court orders in another case, Knop v.
johnson, cover issues not included in the
consent decree in United States v. Michigan.
The Knop court entered orders favorable to
prisoners on various issues, including the
provision of legal assistance. Knop v.'
johnson, 667 F.Supp. 467 (W.D. Mich. 1987)
(merits); 685 F.Supp. 636 (W.D. Mich.
1988) (remedy).
The Central Complex and most of the North
Complex at the Jackson State Prison are operating under a consent decree. Hadix v.
johnson, #80-73581 (E.D. Mich.) (order
entered May 13, 1981). Among other issues,
the decree requires improved health-care
delivery, sanitation, out-of-cell activity, and
staff supervision. Another order in Hadix
requires defendants to subdivide the enormous Jackson Prison into more workable
units. Compliance is being monitored. Acourt
order requiring improved legal assistance to
prisoners was affirmed on appeal. Hadix v.
johnson, 694 F.Supp, 259 (E.D. Mich. 1988),

affd, 871 F.2d 1087 (6th Cir. 1989).
The State appealed from various specific
orders entered in both the Knop and Hadix
cases. In 1992, the court of appeals, in a consolidated decision, affirmed on the issues of
liability in not providing adequate legal assistance, the provision of winter clothing, and
other matters; it reversed on racial harassment and the denial of access to toilets. Knop
v.johnson, 977 F.2d 996 (6th Cir. 1992).
23. Minnesota: The State has kept overcrowding in abeyance through the use of sentencing guidelin~ that take into account the
number of aVaila.ble prison beds. Also, individual facilities a.nd the Department of
Corrections have been responsive to complaints raised by advocates for prisoners.
24. Mississippi: The entire state prison
system is under court order dealing with
overcrowding and total conditions. Gates V.
Collier, 501 F.2d 1291 (5th Cir. 1974).
Compliance is not being monitored.
25. Missouri:* The State Penitentiary at
Jefferson City is under court order on overcrowding, medical care, and other conditions. Burks v. Walsh, 461 F.Supp. 454 (W.D.
Mo. 1978), affd sub nom. Burks v.
Teasdale, 603 F.2d 59 (8th Cir. 1979). On
remand, the State was held liable for failing tq
provide adequate medical care. Burks v.
Teasdale, 492 F.Supp. 650 (W.D. Mo. 1980).
In 1982, a separate order was entered on the
medical care issues.
Afurther complaint has been filed concerning conditions at the state penitentiary. This
complaint includes sanitation, fire safety, and
violence issues. Wilson v. Moore, #87-4516CV-C-5 (W.D. Mo.). In 1992, a class was certified; the plaintiffs have begun discovery
efforts.
26. Montana: On November 2, 199Z, a
lawsuit was commenced in state court challenging the inadequate delivery of medical
services and the physical abuse of prisoners
confined to the state prison at Deer Lodge.
State and federal constitutional claims have
been pleaded. Baker v. State ofMontana
(1stJud. Dist. Ct., Helena). An answer by the
defendants is due in January 1993.
The women's prison in Warm Springs has
severe problems with respect to environmental health and sanitation, the delivery of
health care, and a dearth of programming.
The State plans to build a new facility.
27. Nebraska: Aclass action has been
filed challenging overcrowding and conditions of confinement at four general-population units of the Nebraska State Penitentiary.
An evidentiary hearing was held in August and
September 1991. The magistrate judge rendered a favorable report and recommendation. In late 1992, the district judge entered
an order based on the magistrate judge's
report.jensen v. Gunter, CV 87-L-607, CV
THE NATIONAL PRISON PROJECT JOURNAL

87-L-497, CV 87-L-377 and CV 87-L-476 (D.
Neb.). The State has appealed.
There is an equal protection and conditions case involving the Nebraska Center for
Women at York. Klinger v. Nebraska Dep't 0/
Correctional Servs., C.V. 88-L-399 (D. Neb.).
In a case challenging conditions at the
Medium Security Unit of the Nebraska State
Penitentiary, the court held that there was no
violation of the Eighth Amendment. However,
the court did note that those conditions "are
potentially close to creating intolerable conditions...unless remedial measures are implemented." Kitt v. Ferguson, 750 F.~upp. 1014,
1019 (D. Neb. 1990), affd witho~t opinion,
950 F.2d 725 (8th Cir. 1991). .
28. Nevacl;l:* The Nevada State Prison at
Carson City has been under a comprehensive
court order since 1980 concerning population, conditions, and delivery of h~alth-care
services. Anew consent decree consolidating
the previous orders was entered by the district court on May 19, 1988. Phillips v.
Bryan, CVR-77-221-ECR (name later changed
to England v. Miller, with the same docket
number). Two monitors appointed under the
terms of the agreement have been reporting
on compliance. In 1991, the State made a
motion to dismiss the case; that motion is
pending.
In 1979, a lawsuit was filed challenging the
delivery of mental health services to all Nevada
prisoners. Taylor v. Wolff, CVN 79-162JMB
(D. Nev.). An agreement and consent decree
THE NATIONAL PRISON PROJECT JOURNAL

were entered in 1986. Compliance is being
monitored.
Women prisoners confined to Nevada
Women's Correctional Center have filed a lawsuit alleging gender discrimination with
respect to programming and conditions at the
facility. Defendants' motion for summary judgment was denied. McCoy v. Nevada Department o/Prisons, 776 F.Supp. 521 (D. Nev.
1991). Trial is scheduled for January 1993.
29. New Hampshire:* The state penitentiary is under court order dealing with total
conditions. Laaman v. Helgemoe, 437
F.Supp. 269 (D.N.H. 1977). The parties negotiated a consent decree in May 1990 that
resolved a pending motion for contempt.
Compliance is being monitored.
30. New Jersey: For years the State has
been able to stave off overcrowding in its
prisons by mandating that county jails take
the overflow from the state system. However,
most of the State's twenty-one county jails are
under court order. State prisoners continue
to back up into municipal lock-ups.
31. New Mexico:* The entire system is
under. court order on overcrowding and total
conditions. Duran v. Apodaca, C.A. No. 77721-C (D.N.M.)(consent decree entered Aug.
1, 1980). Aspecial master was appointed 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

(lOth Cir. 1989), cert. denied, 493 U.S.
1056 (l990). Because the State is in substantial compliance with much of the decree, in
August 1991 the parties agreed to an eventual
vacating of the decree. In exchange, the State
agreed to a permanent, nonmodifiable set of
population controls, including a prohibition
against double-ceIling. The district court
approved this settlement in an order entered
on September 20, 1991. The special master
has filed reports evaluating compliance.
32. New York: While no statewide comprehensive lawsuits have been brought,
numerous prison facilities are under court
order, and injunctive relief has been obtained
in many of 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.
Acase 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, including
improvements in the delivery of health care in
general and the enforcement of services to
HIV-positive prisoners. Compliance is being
monitored.
WINTER 1993

7

1

Astatewide 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.). Aconsent decree was
entered in 1984 on the medical and legalaccess issues. In 1985, the court of appeals
upheld an unfavorable decision on the exercise and recreation issues. Anderson v.
Coughlin, 757 F.2d 33 (2nd Cir. 1985).
Compliance is being monitored.
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.
Afederal district court held defendants
liable for racial segregation in housing and
job assignments at Elmira Correctional
Facility. Santiago v. Miles, 774 F.Supp. 775
(W.D.N.Y. 1991). During 1992, the parties
and the judge developed an order to correct
the problem.
Prisoners at Clinton Correctional Facility
brought a class-action suit in 1983 concerning the delivery of mental health services.
Tomasullo v. LeFevre, 84 CY 1035
(N.D.N.Y.). Asettlement was reached in early
1992, including improved access to recreation, improved supervision, and the installation of surveillance cameras.
Anderson v. Coughlin was filed as a class
action on behalf of all mentally ill inmates in
Green Haven Correctional Facility and Auburn
Correctional Facility. In 1991, the magistrate
judge consolidated Anderson and Tomasullo
(above). Asummary judgment motion was
later filed by plaintiffs. Since 1992, the parties
have been involved in settlement negotiations.
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, CY-80-3859 (W.D.N.Y.). See also
865F.2d 521 (2nd Cir. 1989). In 1992, a settlement was re~ched on the medical issues.
The parties are working on an agreement with
respect to mental health and access-to-lawlibrary claims. Mental health discussions have
been consolidated with the Anderson and
Tomasullo cases.
In early 1992, prisoners housed in overcrowded dormitory facilities in ten New York
prisons filed a lawsuit challenging these conditions on the ground that they increase the
risk of exposure to tuberculosis. Tuberculosis
screening and access to adequate treatment
are also at issue. Cunningham v. Coughlin,
#92-CY-0579 (N.D.N.Y.). Aclass has been
certified and discovery is proceeding.
The Bedford Hills Correctional Facility is
under challenge concerning the delivery of
mental health services for women confined in
8

WINTER 1993

segregation facilities. Defendants' motion for
summary judgment on the ground of qualified
immunity was denied. Langley v. Coughlin,
709 F.Supp. 482 (S.D.N.Y.), appeal dismissed, 888 F.2d 252 (2nd Cir. 1989). In a
later opinion, the court accepted the recommendations of the magistrate to deny defen- ~!'
dants' further motion for summary judgment·:"
and for class certification. 715 F.Supp. 522
(S.D.N.Y. 1989).
Astate court action was commenced in'"
1991 challenging aspects of the medical dire
system, the excessive use of restraints and
cell shields, and other conditions at the
Special Housing Unit prison at Southport (the
State's so-called "supermax"). Rivera v.
Coughlin (Supreme Court, Chemung County).
Plaintiffs obtained a partial consent order and
were successful on other issues. Counsel continue to monitor compliance with the orders.
Astatewide class-action suit was filed in
1990 challenging the inadequate treatment of
HIV-positive prisoners and deficiencies in the
HIY education program. Inmates with AIDS
v. Cuomo, #90CY252 (N.D.N.Y.). This action
was certified as a class action and discovery
is proceeding, subject to elaborate safeguards
to protect confidentiality.
33. North Carolina:* In September 1985,
a consent judgment was entered covering
overcrowding, staffing, programming, and
medical services in 13 units of the State's
road-and-farm-camp system in the South
Piedmont area. Hubert v. Ward, C-C-80-414M (W.D.N.C.). Compliance was achieved, and
the case was placed on the court's inactive
docket.
The Craggy Unit outside Asheville was
under an August 1987 consent decree coveringconditions and overcrowding. Epps v.
Martin, A-C-86-162 (W.D.N.C.). Anew 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, 85-987-CRT BR (E.D.N.C.).
Compliance is being monitored.
Acase challenging the adequacy of mental
health care at the State's women's prison was
settled out of court. Mutz v. Johnson.
The Fourth Circuit reversed summary judg-

ment entered on behalf of defendant prison
authorities in a conditions case concerning
the Hoke Correctional Institution. The individual prisoner who brought this case seeking
monetary damages was permitted to pursue
his claim. Williams v. Griffin, 952 F.2d 820
(4th Cir. 1991).
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 double-celling. The
Supreme Court l~ter reversed this decision.
Chapman v. Rh</des, 434 F.Supp. 1007 (S.D.
Ohio 1977), aitd, 624 F.2d 1099 (6th Cir.
1980), rev'd, Rhodes v. Chapman, 452 U.S.
337 (1981).
Apreliminary injunction was entered at the
Columbus State Prison, concerning both the
housing of prisoners by race and the use of
certain physical restraints. Stewart v.
Rhodes, 473 F.Supp. 1185 (S.D. Ohio 1979),
appeal dismissed, 661 F.2d 934 (6th Cir.
1981). Aconsent decree was later entered in
1979, incorporating the provisions of the preliminary injunction. See 656 F.2d 1216 (6th
Cir. 1981), cert. denied, 455 U.S. 991
(1982). The state prison was closed in 1985.
The Ohio State Reformatory at Mansfield '
was operating under a consent decree on various conditions. Boyd v. Denton, C-78-1679
(N.D. Ohio)(order entered June 1983). The
prison was closed at the end of 1990. Medical
care at Mansfield operated under a 1982 consent decree. Register v. Denton, C-78-1680
(N.D. Ohio). The plaintiffs presently are arguing that the decree is applicable to the successor facility (called the Mansfield
Correctional Institution).
The Marion Correctional Facility was operating under various court orders concerning
conditions and population. Taylor v. Perini,
#C69-275 (N.D. Ohio). See published orders
and reports of the special master in this case
at 413 F.Supp. 189 (N.D. Ohio 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 1979). The remedial orders were vacated in 1991 following a report and recommendation of the special master.
Acase 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 vacated and remanded. 111 S. Ct. 2321
(1991). The district court on remand entered
summary judgment against the plaintiff. The
plaintiff filed a notice of appeal; however,
because the prisoner was subsequently
released, the case was dismissed as moot.
THE NATIONAL PRISON PROJECT JOURNAL

Wilson v. Seiter, #92-3332 (6th Cir. Aug. 20,
1992) (order).
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. 1977).
The district court's decision in 1982 to retain
jurisdiction to assure continued compliance
was upheld. 708 F.2d 1523 (10th CiL 1983),
cert. dismissed, 465 U.S. 1014 (1984).
Later, in 1984, the district court relinquished
jurisdiction; that decision was affirmed. 788
F.2d 1421 (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 housing closed due to
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. OL 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:* Acase 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-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), cert. denied sub nom. Mikesell
v. Morgan, 112 S. Ct. 343 (1991). In 1990,
the parties negotiated a remedial agreement,
which the court then entered as an ordeL In
early 1991, the district court entered further
orders on legal access and staff supervision;
these orders are now on appeal.
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 (E.D. Pa.). Amotion to dismiss was
denied, and discovery is under way. On
September 28, 1992, the district court
entered a preliminary injunction ordering the
THE NATIONAL PRISON PROJECT JOURNAL

defendants to implement an effective tuberculosis-control program throughout the state
prison system. Trial on all of the remaining
issues is expected to begin in June 1993.
39. Rhode Island:* The entire state system is under court order on overcrowding
and total conditions. Palmigiano v. Garra}]y,
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. Palmigian:6 v.
'DiPrete, 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.) , affd,
887 F;2d 258 (lst 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). Currently the
parties are in active settlement discussions
with the assistance of the special master.
40. South Carolina:* The entire prison
system is under a 1985 consent decree on
overcrowding and conditions. Plyler v. Evatt,
C.A. No. 82-876-0 (D.S.C.) Gan. 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.),
cert. denied, 488 U.S. 897 (1988). In 1990,
the district court again denied the State's
motion to modify the decree; 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. On June 1, 1992, the
plaintiffs filed a state-court action to enforce
the terms of the 1985 agreement to utilize
extant state statutes to reduce population.
Plyler v. Evatt, #92CP 402275 (Ct. Comm.
Pleas, 5th Jud. Circuit). Also in 1992, incident to the federal action, the defendants
moved to modify the classification and education terms of the 1985 consent decree.
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 unconstitu-

tional. 830 F.2d 912 (8th CiL 1987) (en
banc) , cert. denied, 485 U.S. 906 (1988). In
1992, the district court conducted an evidentiary hearing on the plaintiffs' motion for
enforcement of the order on environmental
conditions. The motion for enforcement was
granted on November 29, 1992.
42. Tennessee:* The entire system is
under court order 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,I December 1982. In an October
25, 1985 ordqr, the court enjoined the intake
of new prisori'ers because the State had failed
to comply with the population-reduction
terms of prior orders.
The Tennessee State Prison in Nashville was
closed in 1992 as a result of a court order in
the Grubbs case. 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
CenteL 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
court.
On October 4, 1989 the Sixth Circuit consolidated Grubbs with numerous local-jailovercrowding cases in which state prisoners
were backed up in the jails. Carver v. Knox
County, 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. Aspecial master was appointed. Ruiz v. Estelle, 503
F.Supp. 1265 (S.D. Tex. 1980), affd in part
and rev'd in part, 679 F.2d 1115 (5th CiL
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; this motion was denied and the
denial was 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.
In 1992, the Ruiz parties filed a negotiated
proposed final judgment in the case. The proposed order contains system-wide and facility-population limits and the provision of adequate medical care, including accreditation
WINTER 1993

9

by the NCCHC. Significant orders concerning
staffing, a ban on the use of "building tenders," administrative segregation, and' the use
of force remain in effect. The agreement
requires compliance with other provisions of
the order, including renovation of facilities,
by June 1, 1993, so as to permit the termination of the special master and the withdrawal
of plaintiffs' class counsel. The final judgment was approved by the court on December 11, 1992.
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 jointly to 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. SheriffofHarris County, 937 F.2d
984 (5th Cir. 1991), cert. denied sub nom.
Richards v. Lindsay, 112 S.Ct. 1994 (1992).
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. Alawsuit 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-celling be barred in some units, while
permitting it in others after remodeling. On
March 20, 1992, the district court accepted
the report and entered an injunction. Baker
v. Holden, 787 F.Supp. 1008 (D. Utah 1992).
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). On September 8, 1992, the parties
signed a consent decree to improve mental
health services.
Finally, a colliplaint was filed in 1989 concerning violence at the prison perpetrated by
both staff 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 closeand 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, including its death-row unit, is
under a 1985 court order dealing with various practices and conditions. Brown v.
10

WINTER 1993

Hutto, 81-0853-R (E.D. Va.).
The 190-year-old 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 part and remanded in
part. 761 F.2d 975 (4th Cir. 1985). The
remand was settled in 1987, covering certaiq,
prisoner-safety issues.
On September 21, 1990, another lawsuit
was filed challenging deteriorating conditions
at the Richmond penitentiary, which on th;ee
occasions the State had announced 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. June 23, 1980), a.ffd
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. Compliance is being
monitored.
Alawsuit filed in 1978 challenged conditions and delivery of medical care services at
the State Reformatory at Monroe. Collins v.
Thompson, #C-78-79R, #C-78-134 (W.D.
Wash.). The parties agreed to a settlement in
1981 that includes a population cap. Since
then, defendants have sought to have the
decree vacated on four separate pccasions.
The last motion to vacate, which was filed in
August 1992, is pending. Compliance monitoring continues.
48. West Virginia: The state penitentiary
at Moundsville is under court order on overcrowding and conditions. Crain v. Bordenkircher, #81-C-320R (Circuit Court, Marshall
County)(memorandum and order dated June
21, 1983). Plaintiffs challenged as insufficient a remedial plan prepared by defendants. The state Supreme Court of Appeals
agreed with plaintiffs and ordered the defendants to develop a new plan. 342 S.E.2d 422
(W. Va. 1986). Since that 1986 decision, the
Supreme Court of Appeals has maintained
jurisdiction over this case. In 1988, the court
ordered the defendants' improved plan to be
implemented, and further ordered the State
to close the prison. 376 S.E.2d 140 (W. Va.
1988). Thereafter, opinions on the status of
implementation have been filed on an annual
basis. See 382 S.E.2d 68 (W. Va. 1989); 392

S.E.2d 227 (W. Va. 1990); and 408 S.E.2d
355 (W. Va. 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,
#83-C-244 (Circuit Court, Randolph County)
(memorandum and order dated Feb. 22,
1985). Enforcement proceedings are ongoing.
In 1981, the Supreme Court of Appeals
held that women prisoners had a state statutory and constit1\lional right to rehabilitation
and education. ({ooper v. Gwinn, 298 S.E.2d
781 (W. Va. 19&1). Detailed orders were
entered therelilier. 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 F.Supp.
1446 (E.D. Wis. 1983).
The women's prison at Taycheedah is operating under a 1988 consent decree that
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. C76-143-B (D. Wyo.).
The federal court relinquished jurisdiction in
early 1983; that prison is now closed. Anew
prison was opened thereafter; in 1991, it was
operating above capacity.
51. District of Columbia:* The District
jails are under court order on overcrowding
and conditions. Inmates ofD. C. jail v.
jackson, 416 F.Supp. 119 (D.D.C. 1976);
Campbell v. McGruder, 416 F.Supp. 100
(D.D.C. 1975), a.ffd in part and remanded,
580 F.2d 521 (D.C. Cir. 1978)(concerning
the old D.C. Jail). On remand, the court
ordered a time limit on double-celling 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 ofD. c. jail v.
jackson, #75-1668 (D.D.C.) (order entered
July 15, 1985). Aconsent decree, which supplanted the initial order and required a
reduction in population, was entered on
August 22, 1985. Compliance is being monitored. In 1992, plaintiffs focused on the
issues of medical and mental health services.
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
THE NATIONAL PRISON PROJECT JOURNAL

Facility. Twelve John Does v. District of
Columbia, #80-2136 (D.D.C.)(Central);
John Doe v. District ofColumbia, #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). In
1992, the district court entered a further
consent decree on various medical and mental health care issues in the Central case.
(Order entered June 10, 1992).
On December 22, 1986, Lorton's medium-security Occoquan facilities came under
court order, and a population cap was
imposed. Inmates ofOccoquan v. Barry,
650 F.Supp. 619 (D.D.C. 1986), vacated
and remanded, 844 F.2d 828 (D.C. Cir.
1988), rehearing en bane denied, 850
F.2d 796 (D.C. Cir. 1988) (containing dissenting opinions and separate statements).
On remand, a second trial was held in
January 1989. The facility was again 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 1992, the district court interpreted the
mental health order to require that seriously mentally ill prisoners be transferred to
the D.C. Jail and be provided an adequate
treatment program.
In March 1990, a lawsuit was filed challenging crowding and conditions at Lorton's

THE NATIONAL PRISON PROJECT JOURNAL

Modular Facility, a new prison that was
designed as the District's reception-and-classification facility. Inmates ofModular
Facility v. District ofColumbia, #90-0727
(D.D.C.). In the middle of trial, a settlement
was reached and a consent decree entered;"
the decree includes a population cap and "
requires improvements in medical care.''>
(Order entered Dec. 14, 1990.) CompliaIt~e
is being monitored.
On May 20, 1992, a complaint was {fled
challenging the delivery of medical caPe at
three other District prisons at Lorton: the
Medium Security Facility, the Minimum
Security Facility, and the Youth Center.
Inmates ofThree Lorton Facilities v,
District of Columbia, #92-1208
(D.D.C.).
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 healthcare 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).
In 1990, defendants filed a motion to mod-

ify the space requirements of the 1986 stipulation; plaintiffs renewed their motion for
contempt. In 1991, the court denied defendants' motion, granted plaintiffs' motion, and
entered a prospective fine of $10 per prisoner per day above the population cap. Morales
Feliciano v. Hernandez Colon, 754 F.Supp.
942 (D.P.R. 1991). The court appointed a
special master for the purpose of contracting
on behalf of the defendants to prepare plans
and to make evaluations on various environ- ,
mental health issues. 771 F.Supp. 11 (D.P.R.
:'>
1991). Later I~ 1991, the court ordered the
defendants to',transfer the accumulated fine
money, amo~~ting to $1 million per week, to
the U.S. Treasury. 775 F.Supp. 487 (D.P.R.
1991).
Apopulation cap was established at Ponce
District Jail, where sentenced felons are
housed. Morales Feliciano v. Hernandez
Colon, 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), cert. denied, 494
U.S. 1046 (1990).
53, Virgin Islands: The territorial prison
is under court order dealing with conditions
and overcrowding. Barnes v. Gov't ofthe
Virgin Islands, 415 F.Supp. 1218 (D.V.1.
1976) .•

Edward 1. Koren is a senior staffattorney with the NPP.

WINTER 1993

11

A PROJECT OF THE AMERICAN CIVIL L1BERTIES~UNION FOUNDATION, INC.
VOL. 8, NO.1, WINTER 1993 • ISSN 0748-2655
,~,

)~

Highlights of Most
Important Cases
USE OF FORCE
In Hudson v. McMillian, 112 S.Ct. 995
(1992), the Supreme Court defined the Eighth
Amendment's limitations on misuse of force
against convicted prisoners, holding that in
all cases the legality of staff conduct depends
on "whether force was applied in a good-faith
effort to maintain or restore discipline or
maliciously and sadistically to cause harm."
[d. at 998-99. If malicious and sadistic intent
is shown, the prisoner need not prove that he
or she sustained a "significant injury"; only
"de minimis" uses of force escape Eighth
Amendment scrutiny. [d. at 1000.

Hudson in the Lower Conrts
An instructive early application of Hudson
appears in a recent decision from a New York
federal court. InJones v. HUff, 789 F.Supp.
526 (N.D.N.Y. 1992), the plaintiff had alleged
that a series of acts by officers at two state
prisons constituted cruel and unusual punishment. After a bench trial, the court agreed in
part and disagreed in part, nicely illustrating
the focus of theJludson holding on the motivation and justification for use of force rather
than on its severity or consequences.
The plaintiff inJones was involved in an
inmate altercation in the medium-security Mt.
McGregor Correctional Facility. After learning
that he would be transferred, he refused to
cooperate and struck one officer on the
shoulder; another officer placed him in a
headlock and punched him in the face. He
was forced, still in a headlock, into a holding
room; when he was released, he hit or
pushed another officer. Several officers then
forced him face down onto a bed, where they
continued to kick andpunch him. He refused,
or was too slow, to remove his clothes for a
strip search, and several officers ripped his
clothes off. He was then handcuffed, and two
officers punched, slapped, and kicked him
12

WINTER 1993

while he was standing naked facing the walL
Amedical examination showed superficial
bruises, swelling around both eyes, and lacerations on the wrist and leg.
The plaintiff was then transferred to Clinton
Correctional Facility, a maximum security
prison. At Clinton, the sergeant who interviewed him about the Mt. McGregor incident
kicked him in the buttocks as he escorted
him to the prison dispensary. Further medical
examination at Clinton revealed some additional injuries from the Mt. McGregor incident, and the court found that he had suffered
a blowout fracture of his left eye socket.
The court applied Hudson v. McMillian to
this sequence of events, at least as to the
actions of the officers who had been named
as defendants. First, it found that the initial
physical encounter, during which the plaintiff
was punched in the face and placed in a
headlock, did not violate the Eighth
Amendment. The court reasoned that the
punch was administered "in an effort to
restore discipline" after the plaintiff disobeyed orders and struck an officer, and the
headlock was justified by the fact that the
plaintiff continued to struggle. Similarly, the
court found that placing the plaintiff in a
"chicken wing hold" and holding him face
down on the bed were justified by the need to
restore order. However, the punches and
kicks administered in the holding room,
inflicted while the plaintiff was pinned face
down on a bed by two officers, could not
plausibly have been thought necessary.
Although these blows were inflicted by
unknown officers, one defendant was held
liable for failure to intercede to stop them.
Both Mt. McGregor officers were held liable
for ripping the plaintiff's clothes off, since at
that point he had been subdued and was surrounded by numerous officers; the court concluded that this "was done maliciously with
the intent to humiliate" the plaintiff. Slapping
and punching the plaintiff as he stood handcuffed and naked was also found to violate
the Eighth Amendment.
The court also found that the Clinton
sergeant's kicks to the plaintiff's buttocksadministered despite the plaintiff's obvious
injuries and the fact that he was carrying 25-

pound bags in eithkr hand-violated the
Eighth Amendment even though they concededly did not cause much physical pain.
Jones illustrates several important aspects
of the Hudson v. McMillian analysis.
First, courts will be extremely reluctant to
second-guess the actions of correctional staff
who are actively engaged in bringing a resisting prisoner under controL In this case,
whether the plaintiff could have been initially
restrained without a punch in the face is a
finer distinction than the court was prepared
to make. Accord, Caldwell v. Moore, 968
F.2d 595 (6th Cir. 1992) (rejecting an Eighth
Amendment claim based on the use of a taser
against an inmate causing a disturbance while·
locked in 'his cell).
Second, courts will parse a complicated
series of events into its components, within
the limits of the evidentiary record, and will
evaluate each part of the sequence separately.
The fact that an inmate's conduct initially justified substantial force will not justify the continued use of force after the need has passed,
even in a case like this where the plaintiff
resisted staff and inflicted some injury on
them. Accord, Bogan v. Stroud, 958 F.2d
180, 184-85 (7th Cir. 1992)(upholding jury
verdict for plaintiff who cut an officer with a
knife and was then beaten and stabbed after
he had been disarmed and subdued).
Third, Eighth Amendment violations may be
found in completely non-injurious uses of
force if they are gratuitous or clearly intended
to humiliate. Thus, the court based its conclusion that ripping the plaintiff's clothes off
violated the Eighth Amendment partly on the
fact that it was done "with the intent to humiliate him." Asimilar perception no doubt
influenced the court's finding that two
"unwarranted and cavalier" kicks to the buttocks were unconstitutional. See also Winder
v. Leak, 790 F.Supp. 1403,1407 (N.D.Ill.
1992) (denying summary judgment against a
prisoner who walked with a leg brace and
was pushed by an officer to speed him up,
causing him to fall without injury). This
approach is consistent with the Supreme
Court's observation in Hudson that the Eighth
Amendment "excludes from constitutional
recognition de minimis uses of physical
THE NATIONAL PRISON PROJEG JOURNAL

force, provided that the use of force is not of
a sort 'repugnant to the conscience of
mankind.'" 112 S.Ct. at 1000 (citations and
internal quotation marks omitted).
Detainees: The Missing Piece
Hudson's clarification of the Eighth
Amendment use-of-force standard followed
by three years the Supreme Court's decision
in Graham v. Connor, 490 u.s. 386 (1989),
which set the Fourth Amendment standard for
police brutality claims. In Graham, the Court
held that the Fourth Amendment prohibits
uses of force that are not '''objectively reasonable,' in light of the facts and circumstances confronting [the officers], without
regard to their underlying intent or motivation." 490 u.s. at 397. The officers' good
faith or malicious or sadistic intent is simply
not an issue.
In Graham, the Court also stated, "It is
clear...that the Due Process Clause protects a
pretrial detainee from the use of excessive
force that amounts to punishment." 490 u.s.
at 395-96, n.10. "Punishment," as applied to
conditions of pretrial confinement, was
defined by the Supreme Court in Bell v.
Wolfish: in the absence of explicit punitive
intent, conditions constitute punishment if
they are not "reasonably related to a legitimate governmental objective." This inquiry
"generally will turn on 'whether an alternative purpose on which [the restriction] may
rationally be connected is assignable for it,
and whether it appears excessive in relation
to the alternative purpose assigned [to it] .",
441 U.S. 520, 538-39 (1979), quoting
Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168-69 (1963)(a case that struck down
forfeiture-of-citizenship provisions of the
immigration laws).
The Supreme Court has never actually
decided a detainee use-of-force case, so the
application of the "punishment" standard to
such cases has been left to the lower courts.
They have almost unanimously relied on a
pre- Wolfish statement of the due process
use-of-force'Standard from the famous case
of johnson v. Glick:
Not every push or shove...violates
a prisoner's constitutional
rights.... [A] court must look to
such factors as the needfor the
application offorce, the relationship between the need and the
amount offorce that was used,
the extent ofinjury inflicted, and
whetherforce was applied in a
goodfaith effort to maintain or
restore discipline or maliciously
and sadistically for the very purpose ofcausing harm.
481 F.2d 1028, 1033 (2nd Cir.) , cert.
denied, 414 U.S. 1033 (1973).
THE NATIONAL PRISON PROJECT JOURNAL

Althoughjohnson v. Glick has also been
cited in the Supreme Court's Eighth
Amendment cases, its due process standard
differs significantly from the Eighth
Amendment rule in that the officer's state of
mind is only one of four seemingly equal factors contributing to the court's conclusion.)/
Under the Eighth Amendment, by contrast, );
malicious and sadistic intent is determinative,
with the other three factors significant only'~s
they may help answer the intent questioli, .
Whitley v. Albers, 475 U.S. 312, 320-22";(1986); accord, Hudson v. McMillian,;'fI2
S.Ct. at 998. Under the Fourth Amendment, as
noted, the officer's subjective intent is completely irrelevant.
No federal court has questioned the continuing viability of the johnson v. Glick test in
detainee cases or shown any interest in reexamining it in light of subsequent Supreme
Court authority. See, e.g., White v. Roper,
901 F.2d 1501, 1507 (9th Cir. 1990); United
States v. Cobb, 905 F.2d 784, 787 (4th Cir.
1990); Powell v. Gardner, 891 F,2d 1039,
1043-44 (2nd Cir. 1989); Brooks v. Pembroke City jail, 722 F.Supp. 1294, 12991300 (E.D.N.C. 1989).
This reticence may be just as well, since
such an examination leads quickly to problems. The Bell v. Wolfish definition of "punishment" as the lack of a reasonable relationship between ends and means is arguably
inconsistent with the holding of Wilson v.
Seiter, 111 S.Ct. 2321, 2325 (1991), that in
the Eighth Amendment context "some mental
element must be attributed to the inflicting
officer" to support a finding of punishment.
Wilson went on to quote a definition of "punishment" as "a deliberate act intended to
chastise or deter." Id. (citation omitted). On
the other hand, Wolfish's language of reasonableness is similar to that used in Fourth
Amendment analysis, which yielded the
objective, intent-free standard for use of
force cases adopted in Graham v. Connor.
Moreover, the Wolfish standard is the same
as the reasonable relationship test set out for
assessing prison rules infringing First
Amendment and substantive due process
rights of convicts-a test that turns entirely
on objective factors. See Turner v. Safley,
482 U.S. 78, 89-91 (1987).
Thus, trying to harmonize all the relevant
Supreme Court authority leads to one of two
conclusions: either that "punishment" has
different meanings under the Eighth
Amendment and the Due Process Clause, or
that "reasonable" has different meanings
under the Due Process Clause and the Fourth
Amendment. This is an ironic outcome for
an analytical method that purports to rely on
the "explicit textual source[s] of constitutional protection," Graham v. Connor, 490
U.S. at 395, and on the plain meaning of

words. See Wilson v. Seiter, 111 S.Ct. at 2326
("An intent requirement is either implicit in
the word 'punishment' or is not.. ..")
Where Is the Line?
There is a further question about the due
process use-of-force standard: at what point
does it take effect? When does the "arrest,"
governed by the FourthAmendment, end, and
"detention," governed by the Due Process
Clause, begin?
Graham v. Connor ducked this question.
490 U.S. at 39~-97 n.10. The lower courts
have come to d~fferent conclusions. Some
have held or assumed that the Fourth
Amendmenrstandard governs until the
arrestee is brought before a judicial officer
for a probable cause determination.
Frohmader v. Wayne, 958 F.2d 1024 (10th
Cir. 1992); Simpson v. Hines, 903 F.2d 400,
403 (5th Cir. 1990); Powell v. Gardner, 891
F.2d 1039, 1044 (2nd Cir. 1989) (dictum);
and Henson v. Thezan, 717 F.Supp. 1330
(N.D.Ill. 1989).
Other courts have applied a due process
standard to uses of force in police lockups
and pre-arraignment holding areas. United
States v. Cobb, 905 F.2d 784, 788 (4th Cir.
1990) (assault in "booking room" treated as
a due process case); Titran v. Ackman, 893
F.2d 145, 147 (7th Cir. 1990)(arrestee's
presence in jail and completion of booking
invoked the due process standard); Wilkins
v. May, 872 F.2d 190, 195 (7th Cir.
1989) (excessive force in questioning an
arrestee is governed by due process), cert.
denied, 110 S.Ct. 733 (1990); Stewart v.
Roe, 776 F.Supp. 1304, 1307 (N.D.IlI.
1991) (force used against an arrestee in a
holding cell is governed by a due process
standard); and Brooks v. Pembroke City jail,
722 F.Supp. 1294, 1299 (E.D.N.C.
1989) (assuming that use of force against an
arrestee who had been placed in a police
detention cell was governed by a due process
standard rather than the Fourth Amendment).
Eventually this conflict will have to be
resolved by the Supreme Court. As a functional matter, it would appear that an arrestee
who has been brought to a facility controlled
by law enforcement officials and designed to
keep suspects in custody is in a more similar
situation to a convict or a jail inmate than to
an arrestee who is in police custody but outside any secure detention setting. However,
the Supreme Court has insisted that the legal
standards in this area be determined by the
text of the relevant constitutional provision,
Graham v. Connor, 490 U.S. at 394, so it is
doubtful that it will take this functional
approach.
The Fifth Circuit: Do They Get It?
As noted, the Supreme Court's recent useWINTER 1993

13

of-force adjudication has been closely tied to
the actual language of the relevant
Amendment. In Graham v. Connor, the Court
explicitly rejected any notion of a "single
generic standard" for §1983 use-of-force
cases. 490 u.s. at 393. This lesson appears to
have been lost on the Fifth Circuit, from
which Hudson v. McMillian came to the
Supreme Court.
The Fifth Circuit had declared in an earlier
case that a plaintiff with a "Constitutional
excessive force claim" .must prove three elements:
(1) a significant injury, which
(2) resulted directly and onlyfrom the use
offorce that was clearly excessive to the
need; and the excessiveness ofwhich was
(3) objectively unreasonable.
Johnson v. Morel, 876 F.2d 477,480 (5th
Cir. 1989)(en banc)(footnote omitted). In
Eighth Amendment cases, the court added a
fourth requirement, that the action constituted an unnecessary and wanton infliction of
pain. Huguet v. Barnett, 900 F.2d 838, 841
(5th Cir. 1990). This line of cases was overruled by Hudson v. McMillian as to the
requirement of "significant injury" in an
Eighth Amendment case.
The Fifth Circuit's most recent pronouncement on use-of-force standards is Knight v.
Caldwell, 970 F.2d 1430 (5th Cir. 1992), in
which the plaintiff alleged that he was assaulted
and threatened with death while in police custody, but sustained no injuries. The court held:
The Supreme Court's decision
[in Hudson v. McMillian] makes
clear that we can no longer
require persons to prove "significant injury"..:under section 1983The Court's holding, however,
does not affect the rule that
requires proofofinjury, albeit
significant or insignificant. In
fact, the Supreme Court specifically denied constitutionalprotection for "de minimis uses ofphysicalforce, provided that the use of
force is nof'ofa sort repugnant to
the conscience ofmankind. "
Id. at 1432 (citation omitted).
This decision fails to acknowledge the
ground rules set by the Supreme Court in two
important respects.
First, it ignores the command of Graham v.
Connor that in use-of-force cases, courts
must identify the particular constitutional
protections relied upon and base their standards of adjudication on the text of those
provisions. In Knight, the court never states
whether it is applying the Fourth Amendment
or the Due Process Clause to this police custody case, and it purports to apply a rule of
law stated in an Eighth Amendment case. It
poses the question whether there is an injury
'4 WINTER 1993

requirement "under section 1983," despite
Graham v. Connor's explicit rejection of a
"generic" §1983 use-of-force standard.
Second, it misconstrues the holding of
Hudson with respect to injury by confusing a
"de minimis use of physical force" with one
that causes no injury. Ause of force such as
electric shock that inflicts transitory pain but
no actual injury whatsoever can still be
"repugnant to the conscience of mankind," asis a use of force that is purposely designed tt> humiliate, such as the ripping off of the prW
oner's clothing inJones v. HUff.
;,

GAY RIGHTSIRELIGION
Homophobia, both penological and judicial, has reared its head in an unusually
explicit fashion in a Kentucky case in which a
gay inmate was excluded from prison religious activities. In Phelps v. Dunn, 770
F.Supp. 346 (E.D.Ky. 1991), the plaintiff, an
openly gay Christian, had actively participated
in chapel services for almost two years,
singing solos, reading aloud from the Bible,
and "shading] his testimony offaith." Anew
chaplain, who began to conduct some of the
services, believed that such participation by
homosexuals was contrary to his interpretation of the Bible, and barred him from active
participation. The plaintiff filed a grievance,
which was denied by the deputy warden, who
wrote that the plaintiff's desire to "lead" in
services "is not acceptable because of his
admitted homosexual activity. The other men
attending the services support the position
taken by the volunteer chaplain." On appeal,
however, the warden ruled in the plaintiff's
favor, stating that "All inmates should be
afforded the opportunity to participate in
leadership roles regardless of sexual preference." The plaintiff alleged that the warden's
favorable decision was never carried out and
that he was barred entirely from services.
The district court granted summary judgment for prison officials, holding that the
exclusion of the plaintiff was justified because
it bore a reasonable relationship to legitimate
penological interests, given the security risk
allegedly created by other inmates' hostility to
the plaintiff's participation. It reached this
conclusion despite the absence of any actual
disruption and despite the warden's overruling of the exclusion. In fact, the court went
on to declare the warden's decision "arbitrary and capricious in view of the very rights
relied on by the plaintiff in asserting his
claims." The plaintiff's participation, in the
court's view, threatened to "deprive others of
their equally protected right to worship without being exposed to offensive conduct."
(The "offensive conduct" apparently consisted of being homosexual while singing hymns
and reading the Bible; there is no indication
that the plaintiff made his sexual orientation

an issue during the services.) The court went
on to add, "History is replete with instances
of prolonged conflict and bloodshed over the
desire of people to worship with a group of
kindred mind.... [T]he warden lacked the
courage to confront squarely the situation
before him...." (emphasis supplied).
On appeal, the Sixth Circuit reversed the
grant of summary judgment, holding that the
warden's grievance decision and the views
stated by the first chaplain created a disputed
issue of fact as to the existence of a security
risk. Phelps v. DU1ljn, 965 F.2d 93 (6th Cir.
1992). The appeal$ court defined the issues
as narrowly as poifsible, holding that only the
question of attendance, and not "leadership,"
was in'dispute, despite the district court's
emphasis on the latter point. The court was
also careful to note that the case did not deal
either with a policy of exclusion of homosexuals from religious services or "the rights of
other prisoners or pastors to have a service
without those they may consider sinners." It
is difficult to come away from the district
court's opinion without the impression that
the judge's personal distaste for homosexuality played a large part in the outcome. The
Sixth Circuit's opinion studiously avoids that
question, an effort that is made easier by its
narrow construction of the record and the
issues on appeal.

Other Cases
Worth Noting
SUPREME COURT OF THE
UNITED STATES
1991-92 Term

Appeal
Smith v. Barry, 502 U.S. _ ',112 S.Ct.
_ , 116 L.Ed.2d 678 (1992). The plaintiff
filed a pro se notice of appeal that was invalid
because it preceded the disposition of a
motion for JNOV (judgment notwithstanding
the verdict). The court nonetheless sent the
plaintiff an "informal brief' form, which he
returned within the time prescribed for filing
a notice of appeal.
The "informal brief' was the equivalent of a
notice of appeal. An appellate brief can serve
as a notice of appeal as long as it contains the
information required by the rules in a notice
of appeal.
Psychotropic Medication/Pretrial
Detainees
Riggins v. Nevada, 504 U.S. _ , 112 S.Ct.
_ , 118 L.Ed.2d 479 (1992). The petitioner's criminal conviction is reversed because
the state courts failed to make findings suffiTHE NATIONAL PRISON PROJECT JOURNAL

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cient to support forced administration of
antipsychotic drugs during his trial. Pretrial
detainees enjoy at least as much protection
from forced medication as do convicted persons under Washington v. Harper. There
must be "a finding of overriding justification
and a determination of medical appropriateness." (489)

U.S. COURTS OF APPEALS
Attorneys' Fees and Costs/
Medical Care
Collins v. Romer, 962 F.2d 1508 (lOth Cir.
1992). AColorado "co-payment" statute
required prisoners to pay $3.00 for each
medical visit; after suit was filed, the statute
was amended to apply only to visits to a
physician without a referral from a nurse or
physician's assistant. (This amendment
excluded most medical visits from the
requirement.) The amended statute was
found constitutional on its face and as
applied to the named plaintiffs.
The plaintiffs are entitled to attorneys' fees
under the "catalyst" test. There was ample
evidence that the suit bore a causal relationship to the statutory amendment. The change
was "required by law" in that the district
court found that the earlier version was
unconstitutional because it would have
required days and in some cases weeks at
inmate pay rates to earn the money, and
would have fallen particularly harshly on the
chronically ill. This opinion does not actually
affirm that judgment, since the "required by
law test" only requires the district judge to
determine that the suit was not "frivolous or
groundless."
Pretrial Detainees/Crowding
Williams v. McKeithen, 963 F.2d 70 (5th
Cir. 1992). After the 1977 decision in
Williams v. Edwards finding unconstitutional
conditions in Louisiana prisons, the usual
state-ready backup problem developed, and
the appeals court ordered all crowding-related jaillitigatlon consolidated in one district.
All city and parish jails entered into consent
decrees limiting population.
The district court did not abuse its discretion in directing that a court-appointed
expert, in order to update the consent
decrees, inspect each jail to determine an
appropriate population limit, staffing levels,
repairs or renovations required to meet fire,
health, and constitutional standards, and any
other information that would help the court
set population limits. The order is "designed
for the narrow purpose of monitoring compliance with the Decree." (71)
Color of Law/Publications
Skeltonv. Pri-Cor, Inc., 963 F.2d 100 (6th
THE NATIONAL PRISON PROJECT JOURNAL

Cir. 1991). Aprivate corporation operating a
detention center "is no doubt performing a
public function traditionally reserved to the
state" (l02) and therefore acted under color
oflaw.
Apolicy forbidding hardcover books was
not unconstitutional as applied to the plain~'
tiff's Bible. At 103: "The determinative factor
in the case is that the Center would allow
Skelton to have a softcover Bible." The.
refusal, based on a concern that books'could
become weapons of assault or hiding pl~ces
for contraband, was reasonable under the
Turner standard, which is applied to this
unsentenced prisoner with no discussion of
its appropriateness.

Religion
Blair-Bey v. Nix, 963 F.2d 162 (8th Cir.
1992). Members of the Moorish Science
Temple (MST) , characterized as an "Islamic
sect," are not entitled to a religious advisor
separate from the Islamic advisor the prison
provided. The court notes that MST members
have many other religious rights.
The prison employed Catholic, Protestant,
Jewish, Islamic and Native American representatives but "does not employ separate representatives to advise individual sects within
the designated religions." (l63) The court
does not explain why Catholicism and
Protestantism are "religions" while MST is a
"sect."

Searches-Person-Prisoners/
Use of Force
Cornwell v. Dahlberg, 963 F.2d 912 (6th
Cir.1992). After a disturbance, inmates
including the plaintiff were made to lie handcuffed in a cold, muddy area with the temperature in the low 40's. The plaintiff's shoes
were taken and not returned. Strip searches
were conducted outdoors in view of the
whole group of inmates and any officers passing through the area, including some female
staffers.
At 916:
... fA} convictedprisoner maintains some reasonable expectations ofprivacy while in prison,
particularly where those claims
are related to forced exposure to
strangers ofthe opposite sex, even
though those privacy rights may
be less than those enjoyed by nonprisoners.
The district court's Fourth Amendment jury
charge, which addressed whether defendants
had acted in an "objectively reasonable manner," was appropriate only in a use-of-force
case and not in a Fourth Amendment privacy
case, which is governed by the Turner reasonableness standard.

Indemnification
Hankins v. Finnel, 964 F.2d 853 (8th Cir.
1992). The plaintiff won $3,000 in punitive
damages against a prison employee who had
sexually molested him. The state paid the
award pursuant to its indemnity statute, then
proceeded in state court under the Missouri
Incarceration Reimbursement Act to try to
recover 90% of the award. The plaintiff
obtained an order from the federal district
court barring the state from attaching his
money.
The state In'l;arceration Reimbursement Act
is pre-empted"hy §1983 because allowing the
state to reco,up §1983 awards would be inimical to the deterrent and compensatory purposes of the statute.
Access to Courts
Shango v. Jurich, 965 F.2d 289 (7th Cir.
1992). Prison officials bear the burden of
proving the adequacy of their court access
systems. However, the plaintiff must "allege
some quantum of detriment caused by the
ch~llenged conduct of state officials resulting
in the interruption and/or delay ofplaintifJ's pending or contemplated litigation. "
(292, citation omitted, emphasis supplied).
The absence of any showing that any inmate
was prejudiced, combined with the evidence
that inmates were "prolific litigators," plus
the many indicia of compliance with Bounds,
supported the district court's finding that
there was no constitutional violation.
Medical CareDenial of Ordered Care
Aswegan v. BrUhl, 965 F.2d 676 (8th Cir.
1992) (per curiam). Ajury awarded $500 in
actual damages and $1,500 in punitive damages to the 70-year-old plaintiff, who suffered
from heart disease and arthritis, against the
prison security director and a deputy warden
based on a number of incidents including
failure to deliver prescribed medications in a
timely manner and to follow physicians' recommendations.
The finding of supervisory deliberate indifference is supported by evidence that one
defendant deliberately refused the plaintiff
access to medical personnel on one occasion;
that both of them failed to take steps to eliminate repeated violations of orders that medication be timely provided and that he not be
cuffed with his hands behind his back; and
that he not be placed in shower stalls during
shakedowns because of his breathing
problems.
Medical Care
Taylor v. Bowers, 966 F.2d 417 (8th Cir.
1992). The plaintiff had severe stomach pain
and vomited blood. His recommended transfer to a hospital was delayed while he was
WINTER 1993

15

questioned as to whether he had swallowed
drug-laden balloons. Two days later
exploratory surgery was performed and he
was found to have a ruptured appendix. He
continued to have pains but was not transferred to a hospital until two weeks after the
original recommendation, where he had a
second operation to drain an abscess.
Apparently no drugs were found.
The plaintiff's allegation that medical treatment was withheld from him to coerce him
into confessing that he had swallowed drugs
states a violation of clearly established Eighth
Amendment law. He produced sufficient evidence in support to withstand summary judgment as to one of three defendants.

Suicide Prevention
Tittle v. Jefferson County Commission,
966 F.2d 606 (lIth Cir. 1992). The decedents were arrested; the jail's suicide screening procedure revealed no cause for concern;
they both hanged themselves.
Evidence of a known history of jail suicides
by hanging from a horizontal bar raised an
issue of material fact as to the municipality's
deliberate indifference. At 612:
In this context, the question of
whether or not these particular
inmates had exhibited suicidal
tendencies is irrelevant because
the basis ofthe claim is that the
jail itselfconstituted a hazardous
condition and that the defendants
were deliberately indifferent to
that danger. It is true that prison
officials are not required to build
a suicide-proofjail. By the same
token, however, they cannot equip
each cell with a noose.
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Searches-Person-Prisoners/
Pretrial Detainees
Covino v. Patrissi, 967 F.2d 73 (2nd Cir.
1992). The plaintiff, a pretrial detainee, was
transferred to a state prison, where he was
punished for refusing to submit to a random
visual body-cavIty search done pursuant to
prison procedure.
At n.4: The court need not consider
whether pretrial detainees have more extensive Fourth Amendment protections than convicts because what is at issue is a "prison regulation" subject to the Turner reasonable
relationship standard, and the "legitimate
penological interests" at issue are the same
for detainees and for convicts.
Applying the Turner standard, the court
concludes that the regulation is probably reasonable, since the searches promote institutional security from contraband. There are no
alternatives to the searches, and the manner
in which they are conducted (behind the
closed door of the inmate's room with only
16

WINTER 1993

the search officers present) is a reasonable
accommodation to the inmates' privacy
rights.
The court distinguishes its prior decision in
Hurley v. Ward on the ground that the
searches in that case were found to have been
accompanied by physical and verbal abuse
not present here.

State Officials and Agencies/
Work Assignments

,

Hale v. State ofArizona, 967 F.2d 1356':;
(9th Cir. 1992). Inmates employed by'"
Arizona Correctional Industries (ARCOR),
which makes products for sale or use outside
the prison, are entitled to receive the minimum wage under the Fair Labor Standards
Act (FLSA), rather than the 50 cents an hour
that they are paid, since state statutes provide
that ARCOR is "deemed a private enterprise
and subject to all the laws and lawfully adopted rules" applying to these.
The court concludes that the FLSA was
intended to regulate prison labor. The
Supreme Court has held that the terms
"employer" and "employee" are to be defined
expansively and not limited by traditional
views. Congress set out an "extensive" list of
workers exempted and did not include prisoners on that list, despite several modifications of the list. One of the statute's purposes
was to eliminate unfair competition through
cheap labor.

Pretrial Detainees/Contempt!Appeal!
Pendent and Supplemental Claims;
State Law in Federal Courts/
CrowdinglRemedies/Financial
Resources/Monitoring and Reporting!
State-Federal ComitylRelease of
Prisoners
Stone v. City and County ofSan
Francisco, 968 F.2d 850 (9th Cir. 1992). The
city jail is governed by a consent decree containing a pupulation cap. Asubsequent order,
agreed to by the City, provided for sanctions
for noncompliance and the release of some
inmates, and a further order gave the sheriff
additional release powers in contravention of
state and local laws. Eventually the defendants
were found in contempt and sanctions of
$300 per day per inmate over the cap were
imposed. The fines were directed to be
placed in a fund to be controlled by the City
and used for population-reduction programs.
Appellate courts defer to district courts'
findings of contempt. At 856: "Moreover, deference to the district court's exercise of discretion is heightened where the court has
been overseeing a large, public institution for
a long period of time." The contempt standard is whether defendants "have performed
'all reasonable steps within their power to
insure compliance' with the court's orders."

(856, citation omitted) "Intent is irrelevant to
a finding of civil contempt and, therefore,
good faith is not a defense." Id.
The deliberate indifference standard of
Wilson v. Seiter is not applicable to the
enforcement of a consent decree.
The long history of noncompliance with the
population cap and with other parts of the
consent decree support a finding of contempt. There was evidence that the recent
upsurge in jail population was not really
unforeseen, having been predicted by the
National Council ~n Crime and Delinquency
and the Special ¥~ster.
At 858:>'
The Cii)/argues that itfaces a
financial crisis that prevents it
from funding these programs, but
federal courts have repeatedly
held that financial constraints do
not allow states to deprive persons oftheir constitutional rights,
The language in Rufo v. Inmates of
Suffolk CountyJail concerning the importance of financial constraints applies only in
the context of a modification motion based on
unexpected or unanticipated circumstances.
At 861:
Afederal court has broad remedial powers.... The court's choice
ofremedies is reviewedfor an
abuse ofdiscretion....
In employing their broad equitable powers, federal courts should
"exercise the least possible power
adequate to the endproposed. " ...
Courts have conceded, however,
that when the least intrusive measures fail to rectify the problems,
more intrusive measures ar,ejustifiable....
While there are federalism concerns in institutional reform litigation involving correctional
facilities, they do not automatically trump the powers ofthe federal courts to enforce the
Constitution or a consent decree.
The amicus misstates the law
when he argues thatfederal courts
lack authority to employ the earlyrelease and state-law-override
mechanisms. The scope ofthe district court's power to fashion
equitable remedies is highly contextual andfact dependent. One
simply cannot state that there is
no case in which the remedial
scheme taken in this case is
appropriate. The proper question
is whether it is appropriate under
the facts presented. [citations and
footnote omitted]
Here, the defendants had several opportuTHE NATIONAL PRISON PROJECT JOURNAL

nities to comply with the consent decree, and
the district court did not prescribe a remedy.
In this context, its grant to the sheriff of
early-release and citation-release authority
within the existing limits of state law was a
proper exercise of authority. Since the sheriff
retained discretion, "the early-release provision was an attempt to respect the institutional competence of prison administrators and
minimize intrusion upon their authority."
(863) However, the extension of the sheriff's
authority to include overriding state law limits (Le., by releasing sentenced inmates
before service of their minimum sentences)
was an abuse of discretion; the court should
have waited to see if the threat of sanctions
induced compliance and should have made
findings that other measures were inadequate. At 864-65: "If the threat of contempt
sanctions proves ineffective and if the district
court finds that other alternatives are inadequate, the court could consider authorizing
the sheriff to override certain provisions of
state law to assure compliance."

DISTRICT COURTS
Procedural Due ProcessDisciplinary Proceedings
Winston v. coughlin, 789 F.Supp. 118
(W.D.N.Y. 1992). The filing of fabricated
misbehavior reports does not deny due
process, but an allegation that fabricated
reports were filed to conceal the officers'
Eighth Amendment violations is sufficient to
withstand a motion to dismiss.
Searches-Living Quarters!
Searches-Person-Prisoners
Blanks v. Smith, 790 F.Supp. 192
(E.D.Wis. 1992). The plaintiff's allegation
that he was subjected to strip and cell searches every day for two weeks stated "at least an
arguable" Eighth Amendment claim.

county jail personnel are dismissed because
he is unable to show a causal connection
between an alleged policy of retaliation and
his injury, since the isolation was imposed
after an independent hearing and findings
that he was guilty.

Religion-Practices
Munir v. Scott, 792 F.Supp. 1472
(E.D.Mich. 1992). The total ban on Muslim
prayer oils, now rescinded, was unconstitutional under Turner. The new policy, ~~ich
permitted nonflammable, nonfluorescent oils
in plastic containers from an authorized vendor, is admissible in evidence notwithstanding the usual rule barring evidence of subsequent repairs, since it was not offered as
direct evidence of negligence or culpability
but as evidence of the feasibility of alternative
measures.
The prohibition on incense is upheld
because incense can be used to mask the
smell of marijuana, "spud juice," or smoke
from arson attempts, and other prisoners
may take offense at the smell with resulting
disruption.
Class Actions-Settlement of
ActionslModification ofJudgments
Wyatt by and through Rawlins v. Horsley,
793 F.Supp. 1053 (M.D.Ala. 1991). In this
latest incarnation of Wyatt v. Stickney,
counsel for the plaintiffs and defendants submitted proposed consent decrees modifying
several of the court's previous orders. The
court received written objections from
numerous mental health advocacy organizations, treatment professionals, and former
patients, and heard "sharply negative" testimony. No evidence was presented in support
of the agreements and no members of the
court-created adVisory committee appeared

to explain their supposed support for them.
The court declines to "rubber stamp"
counsel's opinions. At 1055:
.. .Although the opinions ofclass
counsel are a substantialfactor
in the court's evaluation ofa proposed consent decree under this
standard, the degree ofdeference
accorded counsel's judgment
depends on, among other things,
the amount ofsupport or opposition within the class to the settlement.... Where the class "speaks
in severtll voices"-in other
word$,I»here there is disagreement among class members as to
the desirability ofa particular
settlement-"it may be impossible for the class attorney to do
more than act in what he believes
to be the best interests ofthe class
as a whole. " ...However, the proportion ofa class that objects to a
proposed settlement may at some
point become so large or the
number ofmembers endorsing
the settlement so small, that in a
very real sense it may be said that
the attorney has settled the lawsuit unilaterally, without the
backing, and presumably not in
the best interests of, "the class. "
...However difficult it may be to
translate such a standard into a
bright-line rule, the court has little difficulty concluding that this
"point" is passed where, as in this
case, a number ofconcernedparties have attacked the proposed
changes, but not a single class
member has come forward in
favor ofthe consent decrees and,

Use of Force
Winder v.jeak, 790 F.Supp. 1403 (N.D.Ill.
1992). The plaintiff, who walked with a leg
brace, stopped to regain his strength and was
pushed by an officer to speed him up, causing him to fall. Areasonable jury could find
that the officer's conduct was malicious, precluding a grant of summary judgment to the
defendant. At 1407: "The exertion of force
against a handicapped individual, knocking
that person to the floor and causing pain, is
not de minimis for Eighth Amendment purposes." The court ignores the fact that the
plaintiff was a detainee and not a convict.
The plaintiff alleged that he was told that if
he filed a grievance he would be given a disciplinary charge. He did, and he was, and
spent 12 days in isolation as a result. The
plaintiff's official-capacity claims against
THE NATIONAL PRISON PROJECT JOURNAL

WINTER 1993

17

as far as the court can tell, plaintiffs' counsel has agreed to the
settlement "without the participation or consent" ofany "class
members, " named or absent....
[citations omitted]
The court declines to construe the lack of
opposition from current members of the
class as tacit support, since the class is one
of mentally ill persons, and adds that "to the
extent plaintiffs' counsel cannot receive input
from class members, he must seek it from
such secondary sources as public interest
organizations, former mental patients, and
family members and caregivers who have
day-to-day contact with class members in the
state's institutions." (056)
The court spells out its substantive
concerns, which include relaxed standards
for the application of electroconvulsive
therapy and the apparent authorization of
indefinite continuation of emergency
restraint and seclusion without physical
examination. The court directs a schedule

18

WINTER 1993

for submitting additional evidence as to
those matters that the parties really want to
pursue.
Privacy
Riddick v. Sutton, 794 F.Supp. 169
(E.D.N.C. 1992). The assignment of female
officers to all assignments in a male prison
except for strip searches is upheld under the.
Turner standard, even though the plaintiff
has "a constitutional right to privacy in no(',
being viewed nude or partially nude by female
correctional guards." (71) Defendants'
practice is rationally related to security and
to equal employment; prisoners have alternative ways to maintain privacy (e.g., taking a
towel into the shower or a newspaper into the
toilet area); restricting assignments by gender
could cause staff shortages. There is no evidence of unprofessional behavior by female
staff when they viewed male inmates nude or
partially nude. At 173: "The court emphasizes
that its holding in this case is not meant to
confer judicial approval on flagrant violations

of the privacy rights of inmates."
Confiscation and Destruction of Legal
Materials/Access to Courts
Duffv. Coughlin, 794 F.Supp. 521
(S.D.N.Y. 1992). Some of the plaintiff's legal
materials were sent home as unauthorized
property because officers thought they were
not his own legal work; the package was
returned to the prison and then lost.
In the absence of any evidence of prejudicial
effects on pending legal actions or other concrete harm, the plaintiff has no claim for denial
of access to courts. Mere negligence or sloppy
management does not support a claim of denial
of court access; "negligence resulting from a
reckless disregard or deliberate neglect" might
support liability in a proper case.•

john Boston is the director ofthe
Prisoners' Rights Project, LegalAid
Society ofNew York. He regularly
contributes this column to the NPP
JOURNAL.

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D.C. Public Defender Works to
Defend Prisoner Rights
n 1987 the Council for the District of
Columbia amended the Public
Defender Service Act l to permit Public
Defender Service (PDS) attorneys to represent District of Columbia prisoners in
limited types of civil problems relating to
the conditions of their confinement. The
Council adopted this amendment on the
heels of the 1986 Occoquan Facility riots,
in which one of the District's largest prisons was burned and severely damaged,2
and the continuous overcrowding problems the District's prisons and jail had
been experiencing for almost two
decades. 3 The office opened with two
attorneys and a secretary at a trailer on the
grounds of the District's Lorton (Virginia)
prison complex.
In principle, the Prisoners' Rights
Program (PRP) was intended to serve the
District's entire 8,400+ sentenced and
detained population then held in District
correctional institutions. 4 PRP concentrated its efforts on certain types of cases.
Unlike the National Prison Project, the
Prisoners' Rights Program was conceived
as an office that would undertake individual representation as well as class action
litigation, since many District correctional
facilities had already been the subject of
major conditions and overcrowding cases.
Like the District of Columbia prison
population, applications for assistance to
PRP have increased year by year, ranging
from 715 in the first full year of operation
to more than 2,150 in 1992.
From the outset it was evident that two
attorneys without paralegal support could
not capabl~. handle more than 700
requests annually for individual representation, even by pursuing such time-honored strategies as the class action. 1\vo
additional attorneys and a staff investigator
joined the program in 1990. With the
added staff, PRP continued to expand its
legal services program to address the
needs of its clients, although the number
of applications for legal assistance also
continued to increase.
The program of legal services that has
evolved consists of a dynamic synthesis of
individual representation and class advocacy; formal representation at prison
administrative hearings, before other
municipal agencies enforcing District law,
and in state and federal courts; and infor-

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THE NATIONAL PRISON PROJECT JOURNAL

mal negotiation and problem-solving. The
substantive areas of emphasis include .~
medical and dental care, administrative'~-;
segregation, and disciplinary due process.
In addition, individual cases and projects
have challenged the D.C. Departme~t, of
Corrections' (DOC) failure to provi9.~
youthful female offenders equal treatment
under local law, and physical and bureaucratic barriers experienced by disabled
residents. Athumbnail sketch of PRP's
major initiatives provides the best summary of the program's diverse caseload.
Medical and Dental Care

From the start of the program, PRP has
received a great many complaints regarding the denial and adequacy of health care
within the D.C. DOC. As a consequence,
PRP has actively pursued regular litigation
in this area. Indeed, PRP's first case challenged the medical treatment provided a
Lorton resident. The D.C. Superior Court
issued an order directing the Department
to provide the therapy recommended by
plaintiff's expert.
Similarly, in Yarbaugh v. Roach, et al.,
736 F. Supp. 318 (D.D.C. 1990), PRP represented a D.C. Jail resident with multiple
sclerosis, a demyelinating neurological
disorder requiring ongoing drug treatment, routine-maintenance physical therapy, and regular monitoring by a neurologist. The court concluded that there was
no dispute that multiple sclerosis constituted a "serious medical need" and that
the Department and its personnel had
been "deliberately indifferent" by failing to
provide regular examinations, treatment,
and acceptable living conditions for the
resident, whose moderate-to-severe
impairment had made him wheelchairbound. Other cases have challenged the
inordinate delays in providing artificial
limbs to residents and systemic failures in
dental care that make residents without
teeth wait as long as three years for
dentures.
Administrative Segregation

As in many prison systems, residents
within D.C. DOC facilities routinely experic
ence periods of lengthy, unwarranted
detention on management segregation
without proper due process review.
Beginning in 1990, PRP has brought a
continuing series of individual cases challenging improper administrative segregation detentions at the Maximum Security

Facility, Lorton. Representative of these
cases, and the successful outcomes PRP
has achieved, is the court's unpublished
April 10, 1992 memorandum order in
Byrd v. Stempson and Ridley, Case No.
SP-2909-91 (D.C. Sup. Ct.) (Hon. Curtis
von Kann).
Petitioner Byrd contended that he had
been wrongly held in administrative segregation at the Maximum Security Facility
without due process reviews, after his
transfer from the Occoquan Facility,
Lorton---.:...a m,edium custody prison-in
July 1991. T.1J.e basis for the transfer was
findings otPtisconduct in the form of
"lack of cooperation," "out of place," and
"willful disobedience to a general order"
at two Occoquan adjustment board hearings in June, 1991. After a hearing, the
court found that the.l)epartment could not
justify its conclusion that Byrd constituted
a "threat" to himself or others, and that
the Department had failed to provide
proper 30-day due process reviews, as
required by the local Lorton Regulations
Approval Act (LRAA) of 1982. The court
ordered the Department to release Mr.
Byrd back to medium custody.
Disciplinary Dne Process

Like all contemporary U.S. prison systems, the D.C. DOC runs a disciplinary system. These rules provide for both adjustment board (disciplinary) and housing
board hearings. s PRP began offering individual representation at a limited number
of prison disciplinary hearings under the
LRAA. PRP is now on schedule to handle
between 250-275 hearings in its third year
of adjustment board representation.
In addition to representation at the disciplinary hearings and administrative
appeals, PRP has litigated to ensure due
process guarantees are provided in disciplinary cases. In one case brought in U.S.
District Court, the magistrate concluded
that plaintiff's right to procedural due
process had been violated by the
Department's failure to make specific fac-tual findings and include those in its written finding of guilt. The magistrate recommended that because "significant adverse
collateral consequences" attached to the
insufficiently supported finding of guilt,
the board's decision should be vacated
and all references to the charges
expunged. 6
PRP has brought disciplinary due
process cases in D.C. Superior Court also,
achieving comparable results. 7 Most
recently, in fall of 1992, PRP initiated a
law student clinic on LRAA disciplinary
hearings in association with the Howard
University School of Law. While the clinic
WINTER 1993

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is only being conducted on an experimental basis for the current year, we hope that
it will become an established program.
Other Initiatives and Cases

While PRP has a long-standing commitment to individual representation, many of
its projects and cases address problems
affecting groups or classes of prisoners in
the D.C. Department of Corrections. One of
PRP's earliest cases was a class action
brought in D.C. Superior Court challenging
the Department's failure to implement the
District of Columbia's 1985 Youth
Rehabilitation Act (YRA) with respect to
women offenders. The YRA requires special educational, vocational, drug, and
therapeutic counseling efforts directed at
the youthful offenders convicted and sentenced under the Act. PRP charged that the
Department had failed to create and maintain such programs for the class of women
sentenced under the Act. On the eve of
trial, the District signed a 30-page consent
decree agreeing to more programs and
better classification procedures.
In another class action, PRP filed a complaint with the D.C. Office of Human Rights
urging that the DOC was in violation of the
District's Human Rights law, D.C. Code
Section 1-2501, et seq., and Section 504 of
the Rehabilitation Act, by discriminating
against the physically and mentally handicapped, failing to reduce and remove
architectural and social barriers to full use

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WINTER 1993

of Department facilities and programs, and
failure to create and update a Section 504
Implementation Plan. This matter was also
settled in 1992 and is monitored by the
D.C. Department of Human Rights.
Similarly, PRP represented Muslim
inmates in a consolidated series of cases in
U.S. District Court. In this case, the DOC
agreed to incorporate the changes PRP
sought on behalf of the class in a new
Departmental Order addressing regulations and procedures for assuring freedolll
of religion and religious observance. A
monitoring panel of DOC representatives,
Muslim reSidents, Department chaplains,
and PRP attorneys addresses implementation of the new Departmental Order.
In two other cases,s PRP attorneys participated in challenges to portions of the
District of Columbia's Good Time Credit
Act (GTCA) (1986) as they applied to individuals. While these cases were unsuccessful in the courts, both cases led to legislative revisions or wider applications of the
beneficent intent of the GTCA. Similarly,
PRP attorneys have chosen several pro se
cases dismissed for failure to state a claim,
or on summary judgment, in local United
States District Court to challenge on
appeal, in an effort to ensure that proper
standards and procedures for reviewing
cases are upheld in pro se actions.
The Public Defender Service is proud of
the contribution to prisoners' rights it has
been able to make in the District of

Columbia through the Prisoners' Rights
Program. PRP will continue its efforts on
behalf of D.C. prisoners whenever constitutional and statutory rights are at risk. •

Robert Hauhart is supervising attorney
ofPDS' Prisoners' Rights Program.
Title 1 D.C. Code Section 2701, et. seq.
See, generally, Inmates ofOccoquan v. Barry, 650
F. Supp. 619 (D.D.C. 1986), on appeal 844 F.2d 828
(D.C. Cir. 1988), rehearing en banc 850 F.2d 796
(D.C. Cir. 1988).
3 See "Singing the D.dVrison Blues," Legal Times,
Washington D.C., Aug~st 8,1988 at 1, and Campbell
v. McGruder, 416 F:Supp. 100 (D.D.C. 1975),
for some of the hiStory of the overcrowding
problem.
4 In addition to the D.C. prisoners held in D.C. correctional facilities, as many as 2,800 additional D.C.
prisoners were held in U.S. Bureau of Prisons institutions (approximately 2,000) or state prisons or
county jails outside D.C.
51n both instances, D.C. Department of Corrections
employees appointed by each facility administrator
act as either the hearing officer or members of the
three-person boards.
6 See Horns v. D. C. Department ofCorrections, et
al., Civ. No. 91-1217 (D.D.C.) (Report and Recommendation of Magistrate Patrick Attridge, October
23, 1991) (Order ofJudge Thomas F. Hogan,
November 25,1991).
7 See Cockrell v. Braxton, et al., Case No. SP-251-92
(D.C. Sup.) Oudge Margaret Haywood's Order of May
19, 1992) (inmate was denied the right to call witnesses in violation of procedural guarantees of local
governing law).
sMossv. Clark, 886 F.2d 686 (4th Cir. 1989), and
Fields v. Keohane, 954 F.2d 945 (3rd Cir. 1992).
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THE NATIONAL PRISON PROJECT JOURNAL

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for incorporation and developed preliminary plans for raising funds in anticipation
of the inevitable transition of Odyssey to
the community.
Meanwhile, the superintendent at Norfolk prison conducted a private investigation and became convinced of my innocence. Without his support at this critical
juncture, Odyssey would have been aborted.
We worked even harder because we now
understood that being competent and serious journalists was in itself an act of resistance and empowerment as important as
the issues treated in our journal. "The
process"-the commitment to excellence-bonded us together far more than
the larger prison issues that brought us
together in the first place.
By its second issue, Odyssey had become, by default, the only voice advocating
rehabilitation within the state. Aliberal
approach to corrections and solving the
problem of crime had become increasingly unpopular with the electorate, and its
advocates remained aloof from the public
debate because of the political and professional risks.
The superintendent was fired and
escorted off the grounds. His removal
from office marked the change from a
somewhat liberal to very conservative state
government.
1\vo weeks after the second edition was
released, Odyssey was placed "under
investigation" by the security forces at
Norfolk. I was returned to "the hole."
According to the disciplinary report filed
by the prison authorities, the reason that I
was locked in isolation was because I had
refused to provide a "sufficient quantity of
urine" for them to test for drug use. They
claimed that this was a routine and random procedural request. I was found not
guilty, a disposition that is rare at such
hearings. Rather than be released into the
general pOl1ulation of the prison as is the
policy when acquitted, I was transferred to
the state's maximum security facility. Due
to a series of "clerical errors," I spent
three months in solitary confinement with
a loss of all my privileges and remained at
maximum security for three more months.
The stereotypical image of prisoners as
inherently inferior, irrational, angry, and
violent was challenged by the existence of
Odyssey. In fact, the rhetoric and ideology
of the Weld administration was by comparison far more angry, irrational, and violent
than anything we would even consider
advocating. Governor William Weld of
Massachusetts pronounced that he was "to
the right of Attila the Hun" when it came to
prison policy, and that prison should be

"like a tour through the circles of hell."
Relying on the mail and very limited telephone calls and visits, I worked feverishly
with the community sponsors of Odyssey
to coordinate the transition to the community. In addition to the onerous financial
and administrative demands of the magiC
zine, my stint in the hole had the effect of;
intimidating potential prison writers throughout the Massachusetts system. Emergency
letters were sent to three of the nation's
most celebrated prisoner writers; Datiine
Martin, Tim Smith, andJean Harris contributed articles to Odyssey in solidarity.

Many liberal prison activists claimed that
writing for Odyssey might jeopardize their
access to prison, upon which their work
depended. Still, compared to prisoners, it
was considerably easier to attract community writers for the magazine.
Our primary liaison between the prison
and the community was a woman who had
dedicated her life's work to achieving
prison reform. Her involvement with
Odyssey made her a threat to prison officials. After 20 years, she was suddenly
investigated by the Department of
Correction and barred from the prisons
for several months.
Odyssey's third edition was published in
defiance of all predictions of failure. It was
an important statement that prisoners are
capable of creating and organizing meaningful projects independent of support
from the prison administration.
In light of recent court decisions curtailing prisoners' First Amendment rights,
it should be painfully clear that reflexive
claims of "security" by prison administrators will invariably and inevitably
supercede prisoners' rights to free
speech. Prisoners must establish their
own publishing companies, creating independent legal entities beyond the reach of
prison authorities. This will greatly complicate legal matters both for prison
administrators and for the courts by introducing third-party interests. Judges will
tend to be more cautious in deciding First
Amendment issues if the rights of independent publishing companies are
involved. The strategy, of course, is to
entangle and interweave free speech rights
of prisoners with those of established

media interests. This will compel the
courts to decide on principle, rather than
on political expediency.
If prisoners can establish their own publishing companies, they can establish similar projects in other areas. For example,
prisoners could establish paralegal organizations to work exclusively on prisoners'
rights issues, or develop collective funds to
hire lobbyists to advance their political
agenda with the legislature and the media.
Prisoner organizations must transfer their
base of oper~tions to the community.
Prisoners,¢annot rely on the good will
or good faith of prison officials to respect
their right to free speech or their right to
political expression. Nor should they be
lulled into accepting the paternalistic tradition of liberalism which, though wellintended, has historically fostered a debilitating dependence. Only models of selfempowerment will result in meaningful
resistance to "legitimate," but misused,
authority.
The magazine was declared contraband
at two state prisons in Massachusetts, but
when the Massachusetts Chapter of the
American Civil Liberties Union (ACLU) initiated formal inquiries and threatened the
DOC with legal action, authorities there
reversed the ban. Despite the formal
acknowledgement by prison officials that
Odyssey is not contraband, there have
been numerous reports of the magazine
mysteriously "disappearing" in the mail.
The ACLU is actively monitoring the situation and advising our staff about strategic
considerations. Unfortunately, the ACLU
has conceded that virtually nothing can be
done to protect Odyssey writers from
harassment and retaliatory actions.
Authorities will simply conjure up fictitious
charges (as they did with me) and make it
impossible to prove a conspiracy to
restrict prisoners' First Amendment rights.
The First Amendment is not a right that is
granted, but a risk. Odyssey's future will
depend on that risk. •

LukeJanusz is the publisher and editor
ofOdyssey magazine. He was recently
releasedfrom prison after serving more
than 13 years. Odyssey needs your support to continue to publish. Anyone who
would like to help, please write to:
Odyssey, Box 14, Dedham, MA 02026. A
year's subscription to Odyssey is $19.95.
The institutionalprice is $25. Copies are
furnishedfree to prisoners; however, a
$3 postage and handling charge is
reqUired with each edition.
1107 U.S. 2254 (1987).
2109 S.C!. 1874 (1989).

ill

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THE NATIONAL PRISON PROJECT JOURNAL

WINTER 1993

21

...

,.. . . . te
Coalitions:
Developing Expertise
and Advocacy

Changes Brought
by Activists for
Prisoners with
AIDS
ACT UP: A Voice On the Outside

On World AIDS Day, December 1, many
ACT UP chapters focused attention on prisoners and HlV/AIDS. This focus was selected by ACT UP/San Francisco Prison Issues
Working Group, one of a small but growing network of advocates for prisoners
with HlV/AIDS.
Although there are ACT UP chapters in
most states those working on prison issues
are limited primarily to large metropolitan
areas. The San Francisco chapter has
recently been involved in supporting the
hunger and medication strikes of prisoners at the California Medical Facility in
Vacaville. Judy Greenspan, former NPP
AIDS information coordinator, finds a particular irony about the conditions at
Vacaville. "What's scary is there was a
landmark settlement in Gates v. Deukmejian 1 where all these problems were
supposed to be corrected, but the overall
mission to lock up folks and not treat prisoners never act1J.ally changed," says
.Greenspan.
In New York City, the Prison Issues
Cominittee has protested the treatment of
prisoners with HlV/AIDS. The Wisconsin
chapters have dema,nded investigations
into the deaths of state prisoners Donald
Woods, Ricardo Thomas and Dennis Hall
(a person with AIDS who died a few days
after being jailed for a traffic violation).
On World AIDS Day, the Milwaukee chapter demonstrated at Racine County Jail in
memory of Hall. As a collective force, ACT
UP chapters have provided an outside
voice in exposing inhumane living conditions and deaths of prisoners with
HlV/AIDS that would have otherwise gone
unnoticed.
22

WINTER 1993

Other prisoners' rights
and HlV/AIDS service
organizations have
formed coalitions that
focus on HlV/AIDS and
prisoners. The most
effective have been the
Correctional Services
Program in Missouri, the
Indiana HlV Advocacy
Prison Issues Working
Group,andtheAlliance
for Inmates With AIDS in
.Q
o
...c::
New York City.
Dc...
The Criminal Justice
c...
Z
AIDS Network (CJAN)
(now the Correctional
Jackie Walker, AIDS information coordinator at the
Services Program) began Prison Project.
in 1986 when a volunteer
priest active in jail work encountered an
For prisoners in New York State, the
HlV-positive woman prisoner. As a result of
Alliance for Inmates With AIDS (AllIA)
this meeting the priest organized a task
combines the strength of over 20 organiforce of Catholic charities, and eventually
zations. AllIA was founded as part of the
received funding for a program which proCorrectional Association's AIDS In Prison
vides post-test counseling and referrals for
Project roundtable of people working in
prisoners with HlV/AIDS. It also acts as a
the field of HlV/AIDS and prison.
resource network, often connecting prisMembers of the AllIA provide a wide range
oners with HlV/AIDS to social services
of services for prisoners and parolees,
before their release.
. including education, support groups, disIn Indiana, the original catalyst was the
charge planning, housing, referrals, and
Indiana HlV Advocacy Program and later
advocacy.
the Indiana Community AIDS Action
Housing for parolees and the Medical
Network. The Indiana Community AIDS
Parole Law have been two complicated
Action Network is a statewide advocacy
areas the AllIA has tackled with success.
program focused on eliminating the barriAllIA members are always looking to ideners of discrimination for people with
tify transitional housing, creating space in
HlV/AIDS. The Corrections Working Group
existing programs, or talking with city
has received funding to review correctionagencies to expand housing for people on
al issues and HlV/AIDS in Indiana, and
parole. The AllIA has also played a crucial
includes members from the HlV/AIDS
role in monitoring the Medical Parole Law
community, ex-prisoners, social service
by sponsoring community forums on the
groups, and corrections.
process and pressuring the New York
"We have opened up the channels of
Department of Corrections and Governor
communication," says Paul Chase, director
Mario Cuomo to speed up review of medical parole applications. _
of the project, "with policymakers who
realize the need to rely on us for information on HlV/AIDS and prisoners." As a
Jackie Walker is the Project's AIDS inforresult, the incoining Department of
mation coordinator.
Corrections administrator called a meeting
1 No. CIV 5-87-1636 LKK-JFM (E.D. Cal., filed Jan. 6,
with the group to discuss comprehensive
1988).
education for prisoners and staff.
THE NATIONAL PRISON PROJECT JOURNAL

blications
_--..L_ _

_---1-_

The National Prison
--,-_ Project JOURNAL, $30/yr.
$21yr. to prisoners.
The Prisoners' Assistance
---,-__ Directory, the result of a
national survey, identifies and
describes various organizations and
agencies that provide assistance to
prisoners. Lists national, state, and
local organizations and sources of
assistance including legal, library,
AIDS, family support, and exoffender aid. 9th Edition, published
September 1990. Paperback, $30
prepaid from NPP.

I

The National Prison Project
- - ' - - Status Report lists by state
those presently under court order,
or those which have pending
litigation either involving the
entire state prison system or
major institutions within the state.
Lists cases which deal with
OO'ercrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.)
Updated]anuary 1993. $5 prepaid
QTY. COST from NPP.

_--..L__

QTY. COST

Bibliography of Material ~n
Women in Prison
;~;
lists information on this subje~t
available from the National Prison
Project and other sources ,'.
concerning health care, drttg
treatment, incarcerated mothers,
juveniles, legislation, parole, the
death penalty, sex discrimination,
race and more. 35 pages. $5
prepaid from NPP.
A Primer for Jail Litigators
is a detailed manual with practical
suggestions for jail litigation. It
includes chapters on legal analysis,
the use of expert witnesses, class
actions, attorneys' fees, enforcement, discovery, defenses' proof,
remedies, and many practical suggestions. Relevant case citations
and correctional standards. 1st
Edition, February 1984. 180 pages,
paperback. (Note: This is not a
"jailhouse lawyers" manual.) $20
prepaid from NPP.
TB: The Facts for Inmates
and Officers answers
commonly-asked questions about
tuberculosis (TB) in a simple
question-and-answer format.
D"iscusses what tuberculosis is,
how it is contracted, its symptoms, treatment and how HIV
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25.500 copies/$100.
1,000 copies/$150 prepaid.

1990 AIDS in Prison
_-,-_ Bibliography lists resources
on AIDS in prison that are
available from the National Prison
Project and other sources,
including corrections policies on
AJ;pS, educational materials,
rn,~dical and legal articles, and
J~cent AIDS studies. $5 prepaid
"from NPP.

_-L_

(order
from
ACLU)

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-toread 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.
ACLUHandbook,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.

I

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 PROJECT JOURNAL

_

WINTER 1993

23

he following are major developments in the Prison Project's litigation program since October 1,
1992. 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. On
November 19, 1992, the court held unconstitutional the state's policies restricting
prisoners' access to the courts. These
policies include denying legal assistance to
prisoners under lockdown; naming as
legal assistants prisoners who have no
legal training; lack of assistance to illiterate or non-English-speaking prisoners;
restricting access to legal supplies; and
arbitrary denials of prisoners' right to
confidential phone calls with attorneys. A
special master has been named to develop
statewide injunctive relief.

adult prisons. On December 7, the Court
of Chancery accepted a settlement by the
parties on overcrowding and tuberculosis.
control issues.
Hadix v. Johnson-The National Prison
Project appears in the mental health portion of this case wWch concerns conditions at the State Prison of Southern
MicWgan in Jackson. On December 1,
1992, the plaintiffs filed a number of
motions to enforce or modify the medical
and mental health provisions of the consent decree, and defendants filed motions
to dismiss these portions of the decree.
The court deferred consideration of the
defendants' motions pending resolution of
plaintiffs' enforcement motions. An evidentiary hearing is scheduled for January
27-29, 1993.

Cody v. Hillard challenges conditions
at the South Dakota State Penitentiary. On
November 25, 1992, the district court
granted plaintiffs' motion for enforcement
of its order concerning environmental
conditions and reestablished a panel of
experts to monitor physical plant issues.

Hamilton v. Moria! challenges conditions at the Orleans Parish Prison, the
municipal jail for the City of New Orleans,
which includes a juvenile facility operated
by the sheriff. In response to a contempt
motion concerning disciplinary practices
at the juvenile facility, the court-appointed
expert issued a report recommending the
development of disciplinary practices and
procedures related to use of force and
lockdown procedures.

Dickerson v. Castle challenges overcrowding and conditions in Delaware's

Helling v. McKinney-On October
14, 1992, the NPP filed an amicus curiae

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

24

WINTER 1993

brief in tWs Supreme Court case, wWch
involves the issue of whether the
Constitution is violated when a prisoner is
exposed to levels of environmental tobacco
smoke (ETS) that'iPose a serious risk to Ws
or her health. Or:.a1 argument was heard in
the Supreme Court on January 13, 1993.
~~I,_~.

u.s. v. Michigan/Knop v. JohnsonThese cases challenge conditions in the
MicWgan state prisons; the National Prison
Project appears as amicus in u.s. v.
Michigan. On December 1, 1992, in U.S.
v. Michigan, the court ruled on a motion
filed by the Department ofJustice (DOJ)
seeking to vacate most of the consent
decree, a motion filed under a new DOJ
policy wWch held that the Department
would refuse to enforce consent decrees
that went beyond constitutional requirements. In its ruling, the court dismissed
some relatively minor portions of the
decree. In Knop, on October 16, 1992, the
Sixth Circuit Court of Appeals affirmed a
favorable district court order on legal mail
and winter clothing, but reversed orders on
racial slurs and access to toilets. The court
also affirmed the finding of a constitutional
violation regarding access to the courts, but
remanded to the district court for modification of the remedy. The court also affirmed
Rule 11 sanctions against defendants.
Plaintiffs filed a petition for writ of certiorari in the Supreme Court on January 14,
1993 on the issue of racial slurs.

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Washington D.C.
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THE NATIONAL PRISON PROJECT JOURNAL