Prisoners’ Rights Handbook
2013 Edition

A Guide to Correctional Law Decisions of the Supreme Court of 
the United States & the United States Court of  
Appeals for the Third Circuit 

Edited by 
Angus R. Love, Esq., Pennsylvania Institutional Law Project  
and  
Eva DeLair 
 
Additional thanks to Jennifer Tobin, Esq., Katherine Constantine, and Adrienne Ghorashi. 
 
 
We wish you, the prisoner, the best in the use of this handbook.  Despite some negative public perceptions 
of  inmate  litigation,  we  remain  committed  the  old  adage  that  the  pen  is  mightier  than  the  sword  and 
commend your efforts to utilize our judicial system to bring about a just result to your concerns and those 
of the millions of prisoners throughout the United States and the world. 

 
 
Pennsylvania Institutional Law Project 
The Cast Iron Building 
718 Arch Street 
Suite 304 South 
Philadelphia, PA 19106 
www.pailp.org 

 

Table of Contents
Introduction
I. Access to the Courts
A.
B.
C.
D.
E.
F.
G.

Elements of an Access Violation
Law Libraries
Legal assistance Programs
Prisoner to Prisoner Legal Assistance
Attorney Client Communications
Notary Services
Legal Supplies, Property, and Photocopies

1
2
3
5
7
9
11
13
13

II. First Amendment Issues

15

III. Fourth amendment Issues

37

A. Mail and Publications
B. Religious-Based Issues
1. Bona fide Religion
2. Sincerity of Beliefs
3. Balancing Religious Beliefs Against Penological Interests
4. RLUIPA-Based Claims
C. Association and Media Rights
1. Intimate Association
2. Expressive Association
3. Access to Press
D. Retaliatory Conduct
1. Protected Conduct
2. Adverse Action
3. Causal connection
A.
B.
C.
D.
E.
F.
G.

Cell Searches
Body Searches
Pat-down Searches
Strip Searches
Digital Body Cavity Searches
Blood and Urine Testing
Searches of Prison visitors

IV. Procedural Due process
A.
B.
C.
D.
E.
F.
G.
H.
I.

Administrative Segregation
Classification Decisions
Clemency Decisions
Disciplinary Sanctions
Involuntary Medication
Prison Transfers
Pre-release Programs
Parole Release
Property

15
20
21
22
23
26
29
29
31
32
33
34
34
35
37
38
39
39
41
43
44

47
48
50
51
52
57
58
60
61
62

V. Eighth Amendment issues
A. Health Care
1. Are Prisoner’s Medical Needs “Serious?”
2. Were State Officials Deliberately Indifferent?
a) Knowledge Requirements
b) Failure to Act
B. Prison conditions
C. Prison violence
D. Sexual Abuse of Female Prisoners
E. Excessive Force

64
65
66
67
67
68
71
75
77
80

VI. Equal Protection

83

VII. Ex Post Facto Laws
VIII. Americans with Disabilities Act

86
88

A. Is the Prisoner Disabled within the Meaning of the ADA?
1. Physical or Mental Impairment
2. Major Life Activity
3. Substantial Limits
4. Record of, or Regarded as, Disabled
B. Is the Prisoner Qualified for Correction’s Services, Programs and Activities
C. Reasonable Accommodation

IX. Prisoner Litigation Reform Act
A.
B.
C.
D.
E.
F.
 

Exhaustion of State Remedies
Filing Fee
Screening provisions
Physical Injury Requirement
Three Strikes Provision
PLRA Restrictions on Remedial Actions

90
90
90
91
92
92
92

94
94
97
99
99
101
102

1974 the Supreme Court made clear
that prisoners do not forfeit all constitutional
protection by reasons of their conviction and
confinement. “But though his rights may be
diminished by the needs exigencies of the
institutional environment, a prisoner is not
wholly stripped of constitutional protections
when he is imprisoned for crime. There is no
iron curtain drawn between the Constitution
and the prisons of this country.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974).

this is necessary given the complexity and
difficulty of prison management. In any
event, deference to state officials is not the
only problem facing prisoners today.
Prodded by the Supreme Court, Congress
enacted a series of procedural changes—
The Prison Litigation Reform Act of 1995
(“PLRA”)—with the express purpose of
reducing inmate lawsuits and terminating
federal intervention in prison operations.
Henceforth, either one complies with PLRA
mandates—such as exhaustion of state
grievance procedures—or the case will be
dismissed, no matter the merit. See McCoy
v. Gilbert, 270 F.3d 503, 507 (7th Cir. 2001)
(prisoner’s suit alleging beating dismissed on
PLRA non-exhaustion ground despite fact
that guards were cited by Department of
Justice for misconduct, including physical
abuse of prisoners and filing false FBI
statements).

Nearly four decades later, the courts
are still refining which constitutional rights
“may be diminished” or even totally
withdrawn due to the “needs and exigencies
of the institutional environment.”
While reality tells us that prisoners
cannot exercise the same freedoms as
ordinary citizens, see Price v. Johnston, 334
U.S. 266, 285 (1948) (“Lawful incarceration
brings about the necessary withdrawal of
limitation of many privileges and rights, a
retraction justified by the considerations
underlying our penal system.”), we also know
that not all constitutional protections are
sacrificed at the prison gate. See Pell v.
Procunier, 417 U.S. 817, 822 (1974) (a
prisoner retains those rights “that are not
inconsistent with his status as a prisoner or
with the legitimate penological objectives of
the corrections system”).

Concluding our introductory remarks,
prisoners retain those rights which do not
conflict with legitimate penological interests.
When making this determination, the courts
must give “wide-ranging deference” to valid
state concerns, particularly prison security.
Identifying exactly which rights survive
incarceration and which rights may be
diminished or withdrawn, we turn to next.

When balancing conflicts between
constitutional rights and institutional needs,
the Supreme Court has directed judges to
grant prison officials “wide-ranging deference
in the adoption and execution of policies and
practices that in their judgment are needed to
preserve internal order and discipline, and to
maintain institutional security.” Bell v.
Wolfish, 441 U.S. 520, 547 (1979). In short,
when constitutional exercise conflicts with a
valid state interest, chief among them prison
security, it is the constitutional right which
must yield.
The analytical framework adopted by
the Supreme Court unquestionably favors
state officials over inmates and state
interests over constitutional exercise. Maybe
1

I. ACCESS TO THE COURTS

libraries, and denial of legal assistance to
illiterate and non-English speaking inmates.
Id. at 346-7. A 25-page injunctive order was
issued, requiring the ADOC to improve its
access programs throughout its prisons. Id.
at 347.

In Bounds v. Smith, the Supreme
Court held “prisoners have a constitutional
right of access to the courts.” 430 U.S. 817,
821 (1977). Moreover, to safeguard this right,
the Court has “required States to shoulder
affirmative obligations to assure all prisoners
meaningful access to the courts.” Id. at 824.
The Supreme Court further held that prison
officials must “assist inmates in the
preparation and filing of meaningful legal
papers by providing prisoners with adequate
law libraries or adequate assistance from
persons trained in the law.” Id. The Bounds
majority went to great lengths to point out,
however, that while law libraries are one
constitutionally acceptable method to assure
meaningful access to the courts, other
methods (such as using paralegals and bar
association programs) were also permissible.
Id. at 830. “Any plan, however, must be
evaluated as a whole to ascertain its
compliance with constitutional standards.” Id.
at 832.

The Supreme Court reversed both
the finding of a systemic-wide Bounds
violation and the injunction imposed upon the
ADOC to correct its deficiencies. Id. at 361-2.
The Court reasoned that the prisoners’
“systemic challenge was dependent on their
ability to show widespread actual injury, and
that the court’s failure to identify anything
more of a systemic Bounds violation
invalided.” Id. at 349. It is Casey’s
requirement that prisoners alleging access
violations provide proof of “actual injury” that
is decisive and pivotal. Id. at 350.
According to Casey, prisoners do not
have a constitutional right to a law library or
to legal assistance. Id. at 350. Rather,
prisoners only have a constitutional right to
access to the courts. Id. Prison law libraries
and legal assistance programs are merely
the means by which the States ensure
prisoners have an adequate opportunity to
present their constitutional grievances into
the courts. Id. at 351. Accordingly, “an
inmate cannot establish relevant actual injury
simply by establishing that his prison’s law
library or legal assistance program is sub-par
in some theoretical sense.” Id. at 351.
Rather, “the inmate therefore must go one
step further and demonstrate that the alleged
shortcomings in the library or legal
assistance program hindered his efforts to
pursue a legal claim. Id.

Bounds established the principle that
inmates enjoy a constitutional right of access
to the courts, and that prison officials must
provide resources to guarantee that right.
Bounds was vague, however, about the
specificity of proof necessary to establish
and access violation. To this end, almost
twenty years later, the Supreme Court
refined Bounds by requiring prisoners to
prove an “actual injury” in order to sustain an
access to courts violation in Lewis v. Casey,
518 U.S. 343 (1996). This ruling would
invalidate dozens of lower court precedents
and
dramatically
change
access
jurisprudence.

The Casey majority described its
“actual injury” standard as a “constitutional
prerequisite”. Id. at 351. In light of such
remarks, it is abundantly clear that no matter
the nature of a prisoner’s law-related
grievance – inadequate law books,
insufficient library time, untrained inmate law
clerks, lack of photocopying services, or
delayed delivery of legal material to isolation
prisoners – “actual injury” must be satisfied
or the claim will be dismissed. We now

In Casey, Arizona inmates brought
suit, alleging that prisons throughout the
Arizona Department of Corrections (“ADOC”)
deprived them of their constitutional right of
access to the courts. Id. at 346. Following a
three month bench trial, the lower court
agreed that ADOC violated Bounds due to a
variety of deficiencies, including: untrained
library staff, delayed legal materials to
lockdown prisoners, failure to upgrade law
2

review some of these grievances in light of
the Casey actual injury test.

with which she claims defendants have
interfered. Id. at 825.
Similarly, in Walker v. Zenk, a
prisoner claimed denial of access to the
courts when prison officials confiscated legal
material concerning a property dispute. 323
Fed. Appx. 144, 145 (3d Cir. 2009)
(unpublished). The case was dismissed. The
Third Circuit concluded that Walker’s
complaint failed to state an access violation
since his underlying property grievance
concerned neither his conviction nor prison
conditions. Id. at 147. See also: Hoffenberg
v. Provost, 154 Fed. Appx. 307, 310 (3d Cir.
2005) (unpublished) (prisoner’s collections
litigation cannot form basis for access
violation as it does not challenge conviction
or condition of confinement.)

A. Elements of an Access Violation
Exactly what proof must a prisoner
submit to establish an access to courts
violation? Under Bounds and Casey a
prisoner must prove that he or she: (a) had a
“nonfrivolous” claim regarding his or her
criminal conviction or sentence, or conditions
of confinement; (b) which could not be filed
in the appropriate court due to deficiencies in
the prison’s legal assistance program. See
Casey, at 353. Failure to establish either of
these elements will result in case dismissal.
The Bounds Court noted that “we are
concerned in large part with original actions
seeking new trials, release from confinement,
or vindication of fundamental civil rights.” 430
U.S. 817, 827 (1977). The Casey Court
emphatically rejected any attempt to extend
the constitutional right of access to legal
matter beyond post-conviction and civil rights
actions. 518 U.S. 343, 355 (stating that
“Bounds does not guarantee inmates the
wherewithal to transform themselves into
litigating engines capable of filing everything
from shareholder derivative actions to slipand-fall claims. The tools it requires to be
provided are those that the inmates need in
order to attack their sentences, directly or
collaterally, and in order to challenge the
conditions of their confinement”). Prisoners
with other types of legal grievances—divorce
actions, child custody cases, malpractice
claims–accordingly, have no entitlement to
any Bounds assistance.

Of course, not every grievance
regarding your criminal case of conditions of
confinement will suffice. Casey restricted the
constitutional right of access to the courts to
only those post-conviction and civil rights
claims that are “nonfrivolous.” The court
reasoned that depriving someone of a
nonfrivolous claim inflicts actual injury
“because it deprives him of something of
value—arguable claims are settled, bought,
and sold.” 518 U.S. at 353 n.3. In contrast,
depriving someone of a frivolous claim
“deprives him of nothing at all, except
perhaps the punishment of Federal Rule of
Civil Procedure 11 sanctions.” 518 U.S. at
353 n.3.
What is a “nonfrivolous” legal claim
within the meaning of Casey? A nonfrivolous
legal claim is simply a claim that has
arguable merit. 518 U.S. at 353 n.3. A
nonfrivolous legal claim would survive a
motion to dismiss for failure to state a claim
upon which relief may be granted. See
Fed.R.Civ.P. 12(b) (6). A frivolous claim, on
the other hand, would not. A frivolous claim
lacks a recognizable legal theory or lacks
sufficient facts under a cognizable legal
theory. See Neitzke v. Williams, 490 U.S.
319, 325 (1989) (a frivolous claim is one
which “lacks an arguable basis either in law
or in fact.” It includes “not only the inarguable

For example, in Ball v. Hartman, a
prisoner brought suit, claiming denial of
access to the courts, when prison officials
refused to permit her participation in a
telephonic hearing in a paternity case. 396
Fed. Appx. 823, 824 (3d Cir. 2010)
(unpublished). The case was dismissed.
“Ball’s child support action is not related to
her criminal sentence or conditions of
confinement.” Id. at 825. Thus, “Ball’s right of
access to the courts does not extend to the
Northampton County child support action
3

legal conclusion, but also the fanciful factual
allegation”).

confinement) that he wished to file before a
court is only half of the Casey test. The
second and most difficult part involved proof
of “actual injury,” that is, the prisoner was
“hindered” or “impeded” or “frustrated” in
bringing his nonfrivolous claim due to
“deficiencies in the prison’s legal assistance
facilities.” 518 U.S. at 351. The Casey Court
provided two explicit examples of actual
injury:

A claim lacks an arguable basis in
fact if it contains factual allegations that are
fantastic, totally implausible or even
delusional. See Degrazia v. Federal Bureau
of Investigations, (case was frivolous where
plaintiff alleged he was victim of governmentrun genetic experiments “which caused his
body to combine with reptile DNA”). 316 Fed.
Appx. 172, 173 (3d Cir. 2009). A claim lacks
an arguable basis in law if it is based on an
indisputably meritless legal theory, such as
the violation of a legal interest which clearly
does not exist. See Aruanno v. Walsh, 443
Fed. Appx. 681 (3d cir. 2011) (where claim
against judge would have been dismissed
due to absolute judicial immunity, prisoner
did not have non-frivolous claim); Gordon v.
Morton, 131 Fed. Appx. 797, 799 (3d Cir.
2005) (where prisoner’s underlying claims
were not cognizable under PCRA, access
issue not adequate).

He might show, for example, that a
complaint he prepared was dismissed for
failure to satisfy some technical
requirement
which,
because
of
deficiencies in the prison’s legal
assistance facilities, he could not have
known. Or that he had suffered arguably
actionable harm that he wished to bring
before the courts, but was so stymied by
inadequacies of the law library that he
was unable even to file a complaint.
Casey, 518 U.S. at 351.
In Monroe v. Beard, a group of
prisoners brought suit, claiming denial of
access to the courts, after prison officials
confiscated boxes of legal material during a
prison-wide search for contraband literature.
536 F.3d 198, 204 (3d Cir. 2008). The case
was dismissed. The Third Circuit held that
prisoners “must show” that they: (1) suffered
“actual injury,” that is, they lost an
opportunity to pursue a nonfrivolous claim;
and (2) they had no other remedy for the lost
claim other than the present denial of access
suit. Id. at 205. In this case, the Third Circuit
held that the [prisoners] failed to specify facts
demonstrating that the confiscation resulted
in the loss of any nonfrivolous claims. Id. at
206.

Accordingly, the courts will permit an
access case to proceed only if the initial
complaint is carefully drafted to reflect the
existence of a meritable grievance pertaining
to a criminal conviction or prison conditions.
See Monroe v. Beard, 536 F.3d 198, 205 (3d
Cir. 2009) (“complaint must describe the
underlying arguable claim well enough to
show that it is more than a mere hope”).
Failure of plaintiffs to comply will result in
dismissal. See Garcia v. Dechan, 384 Fed.
Appx. 94, 95 (3d Cir. 2010) (where complaint
failed to plead facts indicating underlying
issue had merit, access claim properly
dismissed); William v. Sebek, 299 Fed. Appx.
104, 106 (3d Cir. 2008) (access claim
dismissed “because Williams failed to submit
any evidence to identify what court action
was affected by confiscating his legal
documents”); Romansky v. Stickman, 147
Fed. Appx. 310, 312 (3d Cir. 2005) (access
claim dismissed for failure to identify the
underlying cause of action).

State attorneys, always vigilant for
lawsuit deficiencies, will contend that the
Casey and Monroe actual injury standard
has not been satisfied. They may argue that
the prisoner’s underlying legal claim was not
factually-specific to ascertain its merits or
was frivolous and not worthy of Bounds
protection. Most likely, however, they will
contend that the prisoner has not adequately
linked the failure to bring the legal claim into

Proving that a prisoner had a
nonfrivolous legal claim (concerning his
conviction and sentence or his conditions of
4

court with the deficiencies in the prison’s
legal assistance program. For these reasons,
prisoners must carefully draft their
complaints, describing in factual detail: (1)
that the underlying grievance pertaining to
his or her conviction or conditions or
confinement has arguable merit in that the
prison’s legal program blocked presentation
of this meritorious claim into court and he
had no other remedy available.

meritorious legal grievance (concerning
conviction or incarceration) due to
deficiencies in the law library. 518 U.S. 351.
Absent proof of these elements, there is not
violation of access to the courts.
For example, in Abraham v.
Danberg, a prisoner alleged denial of access
to the courts when prison officials failed to
provide him with six out-of-state court
decisions for use in a post-conviction brief.
322 Fed. Appx. 169, 170 (3d Cir. 2009). The
Third Circuit denied relief. The out-of-state
cases had no precedential effect and were
not considered “essential to his claim.” Id. at
171. More importantly, the court examined
the PCRA docket entries, finding that
Abraham was able to file his brief without the
requested cases. Id. at 171. Since the claim
was filed, no actual injury was shown.

As will be seen below, this test is
extremely difficult to satisfy.
B. Law libraries
Many state and local prison systems
have established law libraries to satisfy their
Bounds obligations. Ideally, the contents of
such libraries should be tailored to assist
inmates in the three areas of law that Bounds
and Casey protect: federal habeas corpus,
post-conviction petitions, and civil rights
complaints regarding prison conditions.

In O’Connell v. Williams, a prisoner
alleged denial of access to the court due to
an RHU library that contained sixty books.
241 Fed. Appx. 55, 57 (3d Cir. 2007).
Although contending that he lost a federal
civil case due to the shortcomings of the
RHU library the Third Circuit noted that the
federal case was rejected prior to
O’Connell’s placement in segregation. Id. at
57. Thus, the RHU library—even if
deficient—was not the cause of an injury.

Do prisoners have grounds to file an
access-to-courts lawsuit if a prison law library
is missing books or is otherwise deficient in
some respect or inmate access to the library
is limited by prison policy or blocked by
prison guards? The answer is no. It is vital
for prisoners to understand that under
Casey, prisoners do not have a constitutional
right to a law library. 518 U.S. at 350. Rather,
prisoners only have a constitutional right of
access to the courts. Id. Accordingly, “an
inmate cannot establish relevant actual injury
simply by establishing that his prison’s law
library or legal assistance program is sub-par
in some theoretical sense.” Id. at 351.
Rather, “the inmate therefore must go one
step further and demonstrate that the alleged
shortcomings in the library or legal
assistance program hindered his efforts to
pursue a legal claim.” Id.

In Foreman v. Lowe, a county
prisoner alleged that a policy of allowing
segregated inmates to use the prison law
library only at midnight interfered with his
ability to object to a federal magistrate’s
report. 261 Fed. Appx. 401, 404 (3d Cir.
2008). The record revealed that Foreman
was able to obtain a time extension to file his
objections and, in fact, met his filing
deadline. Id. at 404. Since his legal papers
were filed, no actual injury was established.
Id. at 404.

Many prisoners presume that a law
library lacking in books is—by itself—a
Bounds violation. Many prisoners swear that
when officials block or restrict access to a
library they have grounds to sue. Such
presumptions are false. Under Casey, a
prisoner can bring an access violation case
only if he or she: (1) had an underlying

In Picquin-George v. Warden, a
prisoner alleged that a segregation unit law
library was inadequate to ensure his access
to the courts. 200 Fed. Appx. 159, 160 (3d
Cir. 2006). A prisoner “does not have
standing to bring a denial of access suit if he
merely alleges that a prison law library is
5

grievance due to a specific library deficiency
or obstructions.

inaccessible or has a deficient collection of
legal research materials.” Id. at 162. Since
the plaintiff failed to describe how the
library’s shortcomings impeded his ability to
bring a claim, the case was dismissed. Id. at
162.

One final matter needs to be
addressed. Law libraries are designed to
provide meaningful access to the courts for
prisoners who can read and comprehend the
English language. For the illiterate, mentallydisturbed, and non-English speaking
prisoners, however, law books are basically
worthless. Unfortunately, a federal judge, no
matter how sympathetic, cannot find prison
authorities in violation of Bounds simply
because an illiterate prisoner cannot use the
law library. See Casey, 518 U.S. at 360 (“the
Constitution does not require that prisoners
(literate or illiterate) be able to conduct
generalized research, but only that they be
able to present their grievances to the
courts”). A federal judge can only find prison
officials in violation of the Bounds holding
when a prisoner has lost a meritorious
habeas corpus or civil rights case due to
inadequacies in the prison’s legal access
program. Casey, 518 U.S. at 351.

In Tinsley v. Giorla, a prisoner
claimed that less than 15-to-20 hours of
library time per week was insufficient to
ensure his access to the courts. 369 Fed.
Appx 378, 381 (3d Cir 2010). Citing Casey’s
actual injury requirement, the Third Circuit
noted that Tinsley failed to show “any missed
deadlines” or “any prejudice” due to prison
officials’ actions. Id. at 381.
In Brookins v. County of Allegheny, a
prisoner claims 4-to-6 hours of library time
per week denied him access to the courts.
350 Fed. Appx. 639, 643 (3d Cir. 2009).
Citing Casey’s actual injury requirement, the
Third Circuit held there was no proof that his
legal grievances would have been remedied
by additional law library access. Id. at 643.
In Jones v. Donalakes, a prisoner
also alleged an access violation due to
limited library time and arbitrary denial of
access to the law library. 161 Fed. Appx.
216, 217 (3d Cir. 2006). In this case,
however, the Third Circuit concluded that
Jones’ allegations of actual injury were
“minimally sufficient” Id. at 217. Jones
shrewdly submitted documents verifying that
his criminal appeal was dismissed as
untimely filed, which he attributed to
restrictions on his law library access. Id. at
217. Unfortunately, upon remand and further
investigation, the case was dismissed for
failure to prove actual injury. “The record
unequivocally shows that the deadlines for
filing the petitions had already passed by the
time the alleged interference took place.”
See Jones v. Domalakes, 312 Fed. Appx.
438, 440 (3d Cir. 2008).

In United States v. Martinez, an
Hispanic prisoner alleged denial of access to
the courts because “the institutions where he
had been housed do not provide legal
research documents in his native language
or legal assistance per se to non-English
speaking inmates.” 120 F.Supp.2d 509, 516
(W.D. Pa. 2000). Citing Casey, the district
judge dismissed the claim holding that
Martinez “failed to point to any evidence of a
direct injury to his right of access to the
courts.” Id.
Prisons which provide only a law
library ignore the access needs of illiterate
and non-English speaking prisoners. Such
prisoners cannot bring meritorious claims into
court through law books which they cannot
read. Jailhouse lawyers—often few in
number, barred from isolation units and
lacking formal research and writing skills—
are realistically unable to fulfill this
assistance void. The only salvation for the
illiterate and non-English speaking inmate is
to forward “request slips” or grievances to
prison management explaining their legal

All of these decisions confirm that—
under Casey—mere proof that law books are
missing or library entry is restricted are
insufficient to establish an access to courts
violation. A prisoner must provide evidence
that he or she lost a meritorious legal
6

be specified in detail in the Bounds suit to
allow the Court to ascertain its merits.

needs and seeking some form of assistance.
If help is provided, their legal concerns may
be addressed. If not, such paperwork may
serve valuable evidence in a subsequentlyfiled access violation case by a willing legal
aid organization or private attorney. Under
Casey, however, a reading or languageimpaired inmate must first prove he or she
lost a meritorious legal claim due to the lack
of legal assistance.

What about county inmates who
represent themselves in their criminal cases?
Do they have any Bounds rights? Although
we certainly do not recommend such a
course of action, it is true that a defendant
can waive his Sixth Amendment right to
counsel and elect to represent himself at
trial. See Faretta v. California, 95 S.Ct. 2525
(1975). Pretrial detainees considering such
drastic action should understand, however,
that a Faretta waiver of counsel does not
mean simultaneous entitlement to law library
resources. Bounds requires the provision of
adequate law libraries or trained assistance,
not both. 430 U.S. at 828 (right of access
requires prison authorities to provide
“prisoners with adequate law libraries or
adequate assistance from person trained in
the law”).

C. Legal Assistance Programs.
Bounds noted that while law libraries
are an acceptable means to ensure prisoner
access to the courts, they are not the only
one. Bounds, at 828 “One such experiment,
[according to Casey] might replace libraries
with minimal access to legal advice and a
system of court-provided forms.” 518 U.S. at
352. Prison systems that provide adequate
legal assistance are under no constitutional
obligation to provide law libraries. See
Bounds, 430 U.S. at 829-830.

Although the Supreme Court has yet
to decide whether the Sixth Amendment’s
right to self-representation implied a right to
law library access, see Kane v. Garcia, 546
U.S. 9 (2005), a number of lower courts have
dismissed prisoner claims that they were
entitled to law library access after waiving
representation at their criminal trials. See
United States v. Sykes, 614 F.3d 303, 311
(7th Cir. 2010) (a defendant has the right to
appointed counsel, and when he waives that
right, other alternative rights-such as access
to a law library—do not spring up); Bourdon
v. Loughren, 386 F.3d 88, 94 (2nd Cir. 2011)
(same). In Lindsey v. Shaffer, 411 Fed.
Appx. 466, 468 (3d Cir. 2011), the Third
Circuit held that “a state can fully discharge
its obligation to provide a prisoner with
access to the courts by appointing counsel.”

A meritorious or “nonfrivolous” legal
claim must originate from one of three areas
of inmate litigation: federal habeas corpus;
state post-conviction petitions; and civil rights
complaints challenging prison conditions.
Casey, 518 U.S. at 354.
Inmates serving short county
sentences in local facilities may have a legal
need to file a PCRA or federal habeas
corpus petition (which would trigger Bounds
protection). However, for the vast majority of
county prisoners either awaiting trial or
sentencing, their criminal cases have not
matured or progressed to the point where a
post-conviction or federal habeas corpus
petition is even permissible. Thus, the only
“nonfrivolous legal claim” sufficient to trigger
Bounds access protection would pertain to
their conditions of confinement. For example,
if a county prisoner was denied access to
medical treatment for serious illness and
wished to bring the matter before the courts,
he or she would have a nonfrivolous civil
rights claim because such a claim has been
recognized as an Eighth Amendment claim.
Of course, the facts surrounding the
underlying prison condition grievance must

Proving that the prisoner had a
meritorious civil rights complaint challenging
the conditions of confinement is only half of
Casey’s actual injury test. The remaining half
requires the prisoner to allege in his or her
complaint, and to prove later in court, that
such nonfrivolous claim was lost or could not
be presented due to deficiencies in the
trained assistance program. Casey, 518 U.S.
7

authorizes expenditure of funds for appointed
counsel in some State post-conviction
proceedings when “this statute does not
cover appointment of counsel in federal
habeas corpus or State or federal civil rights
actions, all of which are encompassed by the
right of access.”).

at 351. Only those prisoners who sustain
actual injury to existing or contemplated
nonfrivolous claims have standing to bring a
Bounds lawsuit.
Although a pre-Casey decision,
Ward v. Kort, 762 F.2d 856 (10th Cir. 1985) is
a perfect illustration of a deficient trained
assistance program. In Ward, the Colorado
State Hospital contracted a private law firm
to provide legal services for its patients. Id. at
857. The contracting attorney testified,
however, that he did not draft pleadings or
perform research in the areas of federal
habeas corpus and civil rights actions. Id. at
859. The Tenth Circuit held that such a legal
assistance program was constitutionally
deficient because it deprived patients of the
opportunity to present such important
grievances to the appropriate courts. Id. at
860.

As for local legal services agencies:
these
are
independent
nonprofit
organizations (with scarce staff and
resources) and under no contractual
obligation to provide legal assistance to
every county prisoner claiming a civil rights
violation. See Leeds v. Watson, 630 F.2d
674, 676 (9th Cir. 1980) (“Idaho Legal Aid
Services does not have the staff to provide
legal representation to inmates” at county
facility). County prisoners alleging Bounds
violations would be wise to contact the local
public defender and legal services office
(before filing suit) to obtain verification that
such public law firms do not provide
adequate assistance to prisoners claiming
civil rights violations. See Turiano v.
Schnarrs, 904 F. Supp. 400, 402 (M.D. Pa.
1995) (pro se prisoner introduced public
defender’s letter into evidence stating that his
“office handles only State-level criminal
defense work and not any civil litigation”).
During the discovery phase of any Bounds
litigation, prisoners can also submit
interrogatories and requests for production of
documents (see Fed.R.Civ.P. 33 and 34)
probing the existence of any legal services
contract and the claimed assistance provided
by such organizations. See Turiano, 904 F.
Supp. At 402.

On the other hand, in Garcia v.
Hatch, a prisoner alleged denial of access to
the courts when New Mexico closed its
prison law libraries and replaced them with a
“Legal Access Program.” 343 Fed. Appx.
316, 318 (10th Cir. 2009). The Tenth Circuit
dismissed the case, holding that Garcia
failed to establish actual injury. There existed
no proof that the Legal Access Program—
which provided forms and limited staff
assistance—“hindered his ability to file a
timely habeas petition.” Id. at 318.
County prison authorities in
Pennsylvania, facing lawsuits alleging denial
of access to the courts, frequently claim that
their Bounds obligations are satisfied
because trained legal assistance is provided
by the local public defender’s office and/or
the local legal services agency. At best this is
nothing more than wishful thinking.
Pennsylvania
public
defenders
are
statutorily-regulated and primarily involved in
criminal defense assistance to indigent
defendants. See Public Defender Act, 16
P.S. §9960.6. Civil rights lawsuits
challenging jail conditions are not approved
legal services for public defender offices.
See also Bounds v. Smith, 430 U.S. at 828
n.17 (it is irrelevant that North Carolina

Legal assistance programs which
exclude the preparation of civil rights actions
challenging conditions of confinement are
constitutionally suspect (if actual injury to a
meritorious claim can be demonstrated). See
Casteel v. Pieschek, 3 F.3d 1050, 1054 n.4
(7th Cir. 1993) (“The provision of criminal
defense counsel, unable or unwilling to assist
inmates with a habeas corpus petition or a
civil rights complaint, is inadequate under
Bounds.”). The use of only untrained inmates
as paralegals is likewise questionable. See
Valentine v. Beyer, 850 F.2d 951, 956 (3d
8

Cir. 1988). The critical question is whether
the prisoner lacks “the capability of bringing
contemplated challenges to sentences or
conditions of confinement before the courts”
because “the State has failed to furnish
adequate law libraries or adequate
assistance from persons trained in the law.”
Casey, 518 U.S. at 356.

course of providing legal assistance. The
States “may impose reasonable restrictions
and restraints upon the acknowledged
propensity of prisoners to abuse both the
giving and the seeking of assistance in the
preparation of applications for relief.” Id. at
490. Among the restrictions deemed
reasonable by Johnson are time and location
rules governing the giving and receiving of
legal assistance and the “imposition of
punishment for the giving or receipt of
consideration in connection with such
activities.” Id. See also: Little v. Norris, 787
F.2d 1241, 1244 (8th Cir. 1986) (prohibiting
segregated prisoner access to writ-writer
upheld where he could consult other
segregated prisoners); Bellamy v. Bradley,
729 F.2d 416, 421 (6th Cir. 1984) (prohibiting
in-cell legal assistance upheld where
prisoners can meet in library). The Johnson
Court also made clear that the States have
the option to totally ban mutual legal
assistance between prisoners if they can
provide a reasonable alternative such as
attorney assistance. 393 U.S. at 490-491.

In conclusion, trained legal
assistance programs are a constitutionallyaccepted alternative to law libraries.
Prisoners claiming denial of access to the
courts due to inadequate trained assistance
programs must demonstrate actual injury
through proof that a meritorious habeas
corpus or civil rights claim could not be
presented to court because of deficiencies in
the assistance program.
D. Prisoner to
Assistance

Prisoner

Legal

Johnson v. Avery, 393 U.S. 483
(1969), established the right of prisoners to
receive assistance from fellow inmates in the
preparation of legal documents. At issue was
a Tennessee prison rule prohibiting prisoners
from assisting each other in the preparation
of habeas corpus petitions. Id. at 484. The
Johnson majority struck down the rule, noting
that prisoners, many of whom are illiterate,
are frequently unable to obtain legal
assistance from any source other than fellow
inmates. Id. at 488. “There can be no doubt
that Tennessee could not constitutionally
adopt and enforce a rule forbidding illiterate
or poorly educated prisoners to file habeas
corpus petitions. Here Tennessee has
adopted a rule which, in the absence of any
other source of assistance for such
prisoners, effectively does just that.” Id. at
487. Thus, “until the State provides some
reasonable alternative to assist inmates in
the preparation of petitions for postconviction relief, it may not validly enforce a
regulation such as that here in issue, barring
inmates from furnishing such assistance to
other prisoners.” Id. at 490.

Following in the wake of Johnson
was the Third Circuit’s decision in Bryan v.
Werner, 516 F.2d 233 (3d Cir. 1975). In
Bryan, prisoners brought suit challenging a
regulation prohibiting prisoners assigned to
the SCI-Dallas Law Clinic from assisting
other inmates in the preparation of lawsuits
against the institution. Id. at 236. Citing
Johnson, the Third Circuit held that the
regulation was valid only if there exists a
reasonable alternative for obtaining
assistance in such lawsuits. Id. at 237.
Prisons and county jails which
provide law libraries as the sole means to
ensure prisoner access to the courts can
regulate but not prohibit mutual inmate legal
assistance. This does not mean, however,
that when prisoner-to-prisoner legal
assistance is curtailed or interrupted there
exists grounds to file litigation claiming denial
of access to the courts. Johnson must be
read in light of subsequent Supreme Court
activity in this area, most notably Lewis v.
Casey, 518 U.S. 350 (1996). Casey made
clear that prisoners have no constitutional

The Johnson Court did not give
“inmate paralegals” or “writ writers” or
“jailhouse lawyers” unchecked freedom in the
9

Likewise, in Perry v. Texas
Department of Criminal Justice, a prisoner
alleged denial of access to the courts when a
librarian rejected a face-to-face meeting with
another inmate assisting in ongoing litigation.
275 Fed. Appx. 277, 278 (5th Cir. 2008).
Dismissing the case, the court concluded
that Perry failed to demonstrate how such
action “hindered his ability to file a
nonfrivolous legal claim.” Id. at 278.

right to law libraries or legal assistance. Id.
Rather, prisoners only have a constitutional
right of access to the courts. Id. Mere proof
that prison authorities have banned inmateto-inmate legal assistance is insufficient to
establish denial of access to the courts. Id. at
349. Under Casey, the prisoner must prove
“actual injury,” that is, he or she lost a
meritorious legal claim due to a specific
deficiency in the state’s legal assistance
program. Id.

These cases make clear that the
denial of legal assistance—by itself—is not
sufficient to establish an access violation.
Casey requires more. It requires specific
proof that a nonfrivolous claim was lost or
could not be presented to court due to
restrictions on legal assistance.

Prisoners with educational and
language barriers need assistance to gain
access to the judicial system. However,
under Casey, they cannot bring a Bounds
violation suit for disruption of inmate-toinmate assistance absent proof of actual
injury. See also, Shaw v. Murphy, 532
U.S.223, 231 (2001) (“Under our right-ofaccess precedents, inmates have a right to
receive legal advice from other inmates only
when it is a necessary ‘means for ensuring a
reasonably adequate opportunity to present
claimed
violations
of
fundamental
constitutional rights to the courts’.”) (citations
omitted).

As for the inmate paralegal providing
assistance, the likelihood of success in a
Bounds access violation case is even more
remote. An inmate denied the opportunity to
provide advice, review transcripts, and
prepare legal documents for another inmate
has not lost a legal claim or suffered actual
injury, as required by Casey. His only loss is
the opportunity to give assistance. Although
an earlier Third Circuit ruling concluded that
an inmate law clerk had standing to bring an
access violation case when he was
prohibited from assisting other prisoners
while on duty, that decision is questionable in
light of Casey. See Rhodes v. Robinson, 612
F.2d 766, 769 (3d Cir. 1979) (allowing third
party standing for jailhouse lawyer because
“many prisoners are unable to prepare legal
materials and file suits without assistance.
The record contains some examples of
Rhodes having provided the assistance
required by a few such prisoners”).

For example, in McCurtis v. Wood, a
prisoner claimed denial of access to the
courts when prison officials rejected a
request for legal assistance from another
prisoner. 76 Fed. Appx. 632, 633 (6th Cir.
2003). The case was dismissed. Citing
Casey, the court concluded that McCurtis not
only failed to specify the exact nature of the
claim he wished to bring to court but also
failed to explain “why he was unable to
proceed on these alleged claims without the
assistance of another prisoner.” Id. at 634.
In Harvey v. Addison, a prisoner
argued that his Oklahoma prison failed to
provide legal assistance and “discourages
jailhouse lawyering.” 390 Fed. Appx. 840,
841 (10th Cir. 2010). The case was
dismissed. Citing Casey, the court noted that
Harvey “has not shown how the allegedly
deficient library facilities and law clerks”
hindered his ability to file a timely habeas
petition. Id. at 842.

Further complicating the matter is
the Supreme Court’s decision in Shaw v.
Murphy, where an inmate law clerk
attempted to provide legal advice in a letter
to a segregated prisoner. 532 U.S. 223, 225
(2001). The letter was intercepted and
Murphy was charged with violating prison
rules. Id. at 226. At issue in the case was
“whether prisoners possess a First
Amendment right to provide legal assistance
10

legal mail or listen to telephone and visiting
room conversations, prisoners will not
engage in full and frank conversations that
are indispensable to the attorney-client
relationship.

that enhances the protections” otherwise
available under Turner v. Safley, 482 U.S.
78, 88 (1987) (when prison regulation
infringes upon prisoners’ constitutional rights,
the regulation is valid if reasonably related to
prison security or other legitimate
government interests.) Murphy, 532 U.S. at
225

In Wolff v. McDonnell, 418 U.S. 539
(1974), the Supreme Court upheld a
Nebraska prison policy under which prison
officials would open legal mail, but only in the
prisoner’s presence and without reading it.
Noting that “freedom from censorship is not
equivalent from inspection or perusal,” Id. at
576, the Court concluded that prison officials
“have done all, and perhaps even more, than
the Constitution requires.” Id. at 577. The
Wolff court also approved prison policy
requiring lawyers to mark their incoming
correspondence “privileged” or “attorneyclient” mail to alert prison staff to the need for
special handling. Id. at 576. See also:
Fontroy v. Beard, 559 F.3d, 173, 174 (3d Cir.
2009) (upholding DOC policy of requiring
attorneys to affix “control numbers” on the
outside of envelopes in order to receive
privileges treatment).

The Murphy court declined “to cloak
the provision of legal assistance with any
First Amendment protection above and
beyond the protection normally accorded
prisoners’ speech.” Id. at 231. Thus, while it
appears that some protection is warranted,
the extent of that protection will depend upon
the reasonableness of security concerns of
prison authorities. Where the provision of
legal assistance is a valid threat to
institutional safety or other legitimate
correctional goals, such assistance may be
prohibited under Turner.
Finally, prisoners should exercise
caution when seeking assistance from
“jailhouse lawyers.” First, what information
you provide another inmate is not protected
by any attorney-client privilege. See United
States v. Henry, 2007 U.S. Dist. Lexis 8412,
4-5 **06-33-01 (E.D. Pa. 2007) (holding that
where a jailhouse lawyer is not licensed to
practice law and does not purport to be,
there is no attorney client privilege). Such
communications could end up in the hands of
a district attorney. Secondly, not all advice
provided by inmate law clerks, no matter how
well intended, is necessarily competent.
There have been documented cases in
which frivolous rumors were spread
throughout prison systems by jailhouse
lawyers. See United States v. Felipe, 2007
U.S. Dist. LEXIS 43520 ** 07-cv-061 (E.D.
Pa. 2007) (citing numerous cases in which
claims were made that the federal courts had
no jurisdiction over federal crimes due to
unchecked inmate rumors).

In Procunier v. Martinez, 416 U.S.
396 (1974), the Supreme Court invalidated a
California regulation barring visitation by law
students and paraprofessionals employed by
attorneys. Id. at 420. Noting that prisoners
must have a reasonable opportunity to seek
and receive the assistance of attorneys, the
Martinez Court held that, “Regulations and
practices that unjustifiably obstruct the
availability of professional representation or
other aspects of the right of access to the
courts are invalid.” Id. at 419.
Both Martinez and Wolff were
decided long before the Casey court made
proof of “actual injury” a prerequisite in all
access violation cases. Consequently, it is
not sufficient to show that prison officials
opened legal mail outside an inmate’s
presence or eavesdropped on privileged
communications. Rather, prisoners must
prove that interference or exposure of
confidential communications resulted in
“actual injury” to nonfrivolous litigation. As will

E. Attorney-Client Communications
Confidential
communications
between a prisoner and his lawyer are
absolutely
essential
to
effective
representation. When prison guards read
11

be seen below, that is a difficult burden to
satisfy.

and the loss of his right to appeal from that
disposition.” Id. at 1244.

In Oliver v. Fauver, 118 F.3d 175 (3d
Cir. 1997), a prisoner alleged that prison
officials refused to send his outgoing legal
mail to the courts and had opened one letter
outside his presence. Id. at 176. The Third
Circuit dismissed the denial of court access
claim, noting that “Oliver suffered no injury as
a result of the alleged interference with his
legal mail. His papers addressed to the New
Jersey Superior Court did arrive, as
evidenced by the fact that his appeal was
considered and adjudicated by that court.” Id.
at 178.

All of these decisions strongly
suggest that it is extremely difficult to prove
that prison authorities’ interference with legal
mail and other forms of privileges
communications has resulted in “actual
injury” to the presentation of some
meritorious claim. There is, however, a
potential solution to this problem if prisoners
base their constitutional claims upon the First
Amendment’s free speech clause or the
Sixth Amendment’s right to counsel (as
opposed to denial of access to the courts).
In Jones v. Brown, the Third Circuit
held that a New Jersey policy of opening
legal mail outside the presence of addressee
inmates violated their right to freedom of
speech. 461 F.3d 353, 359 (3d Cir. 2006). In
this case, New Jersey contended that
authorities needed to open legal mail outside
the presence of inmates in order to avoid
anthrax attacks. Id. at 363-364.The court
stated that such activity “interferes with
protected communications, strips those
protected
communications
of
their
confidentiality, and accordingly, impinges
upon the inmate’s right to freedom of
speech.” Id. at 359. Analyzing the case under
Turner v. Safley (482 U.S. 78, the Third
Circuit concluded that New Jersey’s
reasoning was not rationally related to its
goal of protecting staff and inmates because
the unconstitutional policy was started three
years after the terrorist attacks, long after the
threat of anthrax. Id. at 362.

In Oriakhi v. Carroll, a prisoner
alleged “that while in segregation he did not
receive legal mail related to a habeas case.”
368 Fed. Appx. 271, 272 (3d Cir. 2010). The
case was also dismissed since “Oriakhi has
not alleged any actual injury related to the
appellees’ alleged failure to deliver his legal
mail.” Id.
In Blanchard v. Federal Bureau of
Prisons, a prisoner claimed his access rights
were violated when prison officials delayed
both incoming and outgoing legal mail. 428
Fed. Appx. 128, 129 (3d Cir. 2011). The case
was dismissed for failure to prove that the
mail delay resulted in the loss of a
nonfrivolous claim. Id. at 130.
In Abu-Jamal v. Price, 154 F.3d 128
(3d Cir. 1998), a death-row prisoner brought
suit, claiming (among other matters) denial of
access to the courts when prison officials
denied visitation by a paralegal. Id. at 130.
The Third Circuit rejected the claim, noting
that Jamal “has not demonstrated that the
paralegal visitation restriction delayed or
hindered his State court appeal.” Id. at 136.

In Al-Amin v. Smith, a prisoner
brought suit claiming denial of access to the
courts and free speech after prison officials
repeatedly opened legal mail outside his
presence. 511 F.3d 1317, 1320-1321 (11th
Cir 2008). The access to courts claim was
dismissed for failure to demonstrate actual
injury. Id. at 1332. “Al-Amin’s testimony
contains only a conclusory allegation that the
mail opening compromised his cases and
does not identify how any legal matters
specifically were damaged.” Id. at 1333. In
contrast, the Eleventh Circuit agreed that

In Simkins v. Bruce, a prisoner
alleged denial of access to the courts when
legal mail was not forwarded to him during a
temporary transfer to another facility. 406
F.3d 1239, 1240 (10th Cir. 2005). Unlike most
cases, the Tenth Circuit found actual injury.
Simkins proved that the failure to receive his
legal mail was “inextricably tied to the
adverse disposition of this underlying case
12

opening Al-Amin’s attorney mail outside his
presence violated free speech. Id. at 1336.

is extremely remote that any delay or outright
refusal by prison officials to supply notarial
services will result in actual injury.

Of course, not every instance of
interference with legal mail constituted a free
speech violation. In Fortune v. Hamberger,
the Third Circuit affirmed a district judge’s
decision that “a single instance of
interference with an inmate’s mail is not
sufficient to constitute a First Amendment
violation. 379 Fed. Appx. 116, 120 (3d Cir.
2010).

In Hudson v. Robinson, 678 F.2d
462 (3d Cir. 1982), the Third Circuit rejected
a prisoner’s claim that he was denied access
to the courts when he was required to wait
ten days for notary services. Id. at 466. Mere
delay, according to Hudson, “does not satisfy
the actual injury requirement.” Id. Moreover,
in support of its finding of no injury or
prejudice to Hudson’s pending litigation, the
Third Circuit cited 28 U.S.C. §1746 which
allows an unsworn statement to be used in
place of an affidavit if it is based under
penalty of perjury. Id. at 466 n.5.

Likewise, in Slaughter v. Rogers, the
Third Circuit rejected an inmate’s free
speech case due to a single instance of
opening legal mail outside his presence. 408
Fed. Appx. 510, 513 (3d Cir. 2010). The
court ruled that the prisoner “must show a
pattern or practice regarding legal mail that is
not related to legitimate penological
interests.” Id.

G. Legal Supplies, Property, and
Photocopies
Bounds also held that “indigent
inmates must be provided at State expense
with paper and pen to draft legal documents”
and “with stamps to mail them.” 430 U.S. at
824-825. This does not mean, however, that
prisoners without funds are entitled to
unlimited legal supplies and postage for the
courts have agreed that the States may
impose reasonable restrictions. See Smith v.
Erickson, 961 F.2d 1387, 1388 (8th Cir. 1992)
(providing indigent prisoner with one free
mailing per week for legal correspondence
satisfies Bounds). Additionally, prisoners
denied free legal supplies and postage have
no cognizable claim absent proof of “actual
injury” to legitimate nonfrivolous litigation.
See Casey, 518 U.S. at 349.

In terms of attorney-client visits,
death-row prisoners in Williams v. Price, 25
F. Supp. 2d 605 (W.D. Pa. 1997), brought
suit claiming that prison guards could
overhear
confidential
attorney-client
conversations because visiting room booths
were not soundproof. Id. at 615. The plaintiffs
did not ground their claim on the basis of
access to the courts, but rather upon the
right to privacy in their communications with
counsel. Id. at 616. “Now that the
constitutional right of access to court is no
longer available to prisoners to preserve the
confidentiality of their communication with
their counsel unless they can meet the
difficult test of injury set forth in [Casey], or
unless the Sixth Amendment is available,
they will reasonably look to the right of
privacy to assure their right to confidential
communications with counsel.” Id. at 619.
See also: Benjamin v. Frazer, 264 F.3d 175,
187 (2nd Cir. 2009) (holding that undue
delays in producing prisoners for attorney
client visitations violated Sixth Amendment).

For example, in Butler v. Meyers, a
prisoner claimed denial of access to the
courts based upon a prison policy of
restricting the purchase of bond paper to 25
sheets per week. 241 Fed. Appx. 818, 819
(3d Cir. 2007). The case was dismissed.
Citing Casey, the Third Circuit held that
Butler failed to demonstrate how the paper
restriction resulted in actual injury to an
underlying grievance. Id. at 820.

F. Notary Services
The Supreme Court in Bounds held
that indigent inmates must be provided “with
notarial services to authenticate” legal
documents. 430 U.S. at 824-825. However, it

In Salkeld v. Tennis, a prisoner
alleged denial of access to the courts when
prison officials refused to advance him
sufficient funds to mail a filing in state court,
13

and as a result, his appeal was deemed
untimely and waived. 248 Fed. Appx. 341,
342 (3d Cir. 2007). The case was dismissed.
Bounds applied only to inmate legal
grievances involving sentences or conditions
of confinement. Since Salkeld’s underlying
case was outside of Bounds protection, the
Third Circuit concluded that a cognizable
access violation case did not exist. Further,
the court noted that there is no First
Amendment right to have subsidized mail. Id;
citing Reynolds v. Wagner, 128 F.3d 166,
183 (3d Cir. 1997) (holding that there is no
First Amendment right to subsidized legal
photocopying or postage, but with an actual
injury, a claim could be actionable under
Casey).

months after he filed the law suit but before
his appeal which ultimately dismissed his
case. Id. Since his attorney was successful in
filing an amended PCRA petition, the Third
Circuit concluded that Moua had suffered no
injury or harm as a result of not having his
transcript. Id. at 728.
Finally, we turn to the conflict
between inmates and authorities over the
amount of legal material stored in a cell. In
Gay v. Shannon, a prisoner alleged denial of
access to the courts when prison officials
placed limits on the amount of legal material
a prisoner could keep. 211 Fed. Appx. 113,
115 (3d Cir. 2006). The Third Circuit
dismissed the case, finding that Gay failed to
allege “that he was actually injured by having
limited access to his legal materials.” Id. at
115.

Photocopying services were not
discussed in Bounds. However, once again,
prisoners claiming denial of access to the
courts due to the lack of photocopying
services must establish actual injury to
legitimate, nonfrivolous claims. In Kelly v.
York County Prison, a prisoner claimed
denial of access to the courts when county
officials denied him free photocopies of legal
material. 325 Fed. Appx. 144, 145 (3d Cir.
2000). The case was dismissed; “[p]risoners
do not have a [First Amendment] right to free
photocopies for use in lawsuits.” Id. at 145.
Additionally, citing Casey, the Third Circuit
noted that Kelly did not claim “that he has
been unable to meet any court-imposed
deadlines as a result of the library’s alleged
lack of amenities.” Id. at 146.

In Schlager v. Beard, a prisoner
alleged denial of access to courts after prison
officials confiscated legal material considered
contraband. 398 Fed. Appx. 699, 700 (3d cir.
2010). The case was dismissed. The Third
Circuit held that Schlager’s underlying claim
–that he was entitled to prison release
because he was a “Secured Party
Sovereign” – was frivolous and not worthy of
access protection. Id. at 701. Further, the
court explained that Schlager did not have an
actual injury as required by Casey because
he presented his argument without his legal
materials to the court in a hearing. Id. at 702.
In Pressley v. Johnson, a prisoner
alleged denial of access to the courts based
upon prison officials’ destruction of legal
materials involving a civil case. 268 Fed.
Appx 181, 183 (3d Circ. 2008). The Third
Circuit dismissed the case, noting that
Pressley was represented by counsel in the
civil matter and received a jury trial, thus,
“there is no nexus between the deprivation
and any loss suffered in the case.” Id.

In Cooper v. Sniexek, a prisoner
alleged denial of access to the courts when
prison officials overcharged him for
photocopies. 418 Fed. Appx. 56, 58 (3d Cir.
2011). The claim was dismissed, noting that
Cooper “failed to specify any particular
pleading that he was unable to file as a result
of any action taken by the defendants.” Id.
Likewise, in Moua v. Taylor, a
prisoner alleged denial of access to the
courts when county officials failed to fulfill his
request to purchase his criminal transcripts.
348 Fed. Appx. 726, 727 (3d Cir. 2009).
Moua received the court transcripts five

In Snee v. Barone, a prisoner
alleged that prison officials’ confiscation of
legal materials prevented him from
proceeding with a habeas corpus appeal.
359 Fed. Appx. 281, 283 (3d Cir. 2009)
(unpublished). The court explained that
14

“contrary to Snee’s position, we have held
that prisoners do not have an unrestricted
constitutional right of access to legal
materials.” Id. at 284. Moreover, actual injury
was not shown, since “Snee has been able
to adequately articulate his habeas corpus
claims in the absence of the confiscated
documents.” Id. at 285.

II. FIRST AMENDMENT ISSUES
The First Amendment to the United
States Constitution guarantees the right of
individuals to freedom of speech, religion,
and assembly. Although considered essential
to a democratic society, the exercise of these
rights behind prison walls depends upon their
compatibility with the security, order, and
rehabilitative needs of the corrections
system. See Pell v. Procunier, 417 U.S. 819,
822 (1974) (“Challenges to prison regulations
that are asserted to inhibit First Amendment
interests must be analyzed in terms of the
legitimate policies and goals of the
corrections system”). Where a prisoner’s
exercise of First Amendment freedoms
conflict with, or are detrimental to legitimate
state interests, it is the constitutional right
which must yield. See Id. at 827 (noting that
“security considerations are sufficiently
paramount” to justify restrictions on face-toface press interviews with prisoners); Jones
v. North Carolina Prisoners’’ Labor Union,
Inc., 433 U.S. 119, 132 (1977) (upholding
rejection of prisoners’ labor union on basis
that it was “detrimental to order and security
in the prisons”).

In Lyons v. Secretary of Department
of Corrections, a prisoner alleged denial of
access to the courts when prison officials
confiscated legal material, thereby impeding
his ability to pursue his PCRA appeal. 445
Fed. Appx. 461 (3d Cir. 2011). The claim
was dismissed. The Third Circuit noted that
the legal materials were confiscated after
Lyons filed his PCRA case, and thus, did not
prejudice his ability to bring the matter before
the courts. Id. at 464.
In summary, the constitutional right
of access to the courts applies only to
nonfrivolous,
meritable
post-conviction
petitions, habeas corpus actions, and civil
rights cases challenging prison conditions. If
a prisoner’s legal grievance does not
concern his conviction, sentence, or
conditions of confinement, it will likely be
construed as unworthy of Bounds protection.

In Turner v. Safley, the Supreme
Court announced its definitive ruling
regarding prisoners’ First Amendment rights:
“When a prisoner regulation impinges on
inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate
penological interests. 482 U.S. 78, 90 (1987).
Applying a “reasonable test,” it is necessary,
according to Turner, to give prison
administrators the deference required to
make the difficult decisions concerning
institutional operations. Id.

Having a legitimate grievance,
however, is only half of the Casey test. A
prisoner must also prove that he or she has
lost the underlying claims, or cannot present
this underlying grievance to the appropriate
court, due to deficiencies in the state’s legal
assistances program. Absent proof of “actual
injury,” there is no violation of access to the
courts.

A. Mail And Publications
Procunier v. Martinez was the first
case in which the Supreme Court reviewed
prison mail regulations. 416 U.S. 396 (1974).
In Martinez, prisoners challenged censorship
regulations which authorized staff to reject
letters that “unduly complain,” express
“inflammatory political, racial, religious, or
other views” or contain “lewd, obscene or
defamatory” material. Id at 399-400.
15

The Martinez court first agreed that
communication by letter implicates the First
Amendment’s right to free speech. Id. at 408
(noting that the addressee and the sender
derive a “protection against unjustified
governmental interference with the intended
communications” from the First Amendment).
In that case, all non-legal mail was being
read and censored if the prisoner
complained, “magnified grievances,” or
expressed “inflammatory political, racial,
religious or other views or beliefs.” Id. at 399.
The prison screened incoming and outgoing
mail for the written content of the letters. Id.
at 400. The Court did not base its holding on
prisoners’ First Amendment rights because,
“in the case of direct personal
correspondence between inmates and those
who have a particularized interest in
communicating with them, mail censorship
implicated more than the rights of prisoners.”
Id. at 408. The Court held that prisons may
not censor mail unless such actions “further
an important or substantial governmental
interest unrelated to the suppression of
expression.” Id. at 413. Thus, prison officials
may not censor prisoner mail simply to
eliminate unflattering or unwelcome opinions
or factually inaccurate statements. Id.
Rather, they must show that censorship
furthers one or more substantial
governmental interests of security, order and
rehabilitation. Id. Secondly, “the limitations of
First Amendment freedoms must be no
greater than necessary or essential to the
protection of the particular governmental
interest involved.” Id. at 413. Thus, a
restriction on inmate correspondence that
furthers prison security will nevertheless be
invalid if its sweep is unnecessarily broad. Id.
at 413-414.

interests, id., or were “far broader than any
legitimate interest or penal administration
demands.” Id. at 416. Although a free speech
victory, the Martinez decision seemed
vulnerable because it was based not upon
the free speech rights of prisoners, but rather
additionally upon the First Amendment
concerns of free citizens who sought to
communicate with prisoners. Id. at 408. The
Supreme Court, in creating a narrow holding,
looked at the First Amendment rights of the
writers and readers of the mail, and found
that these combined rights, not just the rights
of prisoners, compelled the Court to apply
strict scrutiny. Id. In situations where a policy
infringes only on the First Amendment rights
of prisoners, the court will use a reasonable
basis test, not strict scrutiny. See Turner v.
Safley, 482 U.S. 78, 88 (1987). In 1979 the
Supreme Court handed down Bell v. Wolfish,
in which pretrial detainees challenged on
First Amendment grounds a “publishers-only”
regulation which disallowed receipt of all
hardback books unless they were sent
directly from a bookstore, publisher, or book
club. 441 U.S. 520, 548-549 (1979). The
Wolfish court upheld the regulation based
upon prison officials’ security concerns that
“hardback books are especially serviceable
for smuggling contraband into an institution.”
Id. at 551. The Court did not base its
decision upon the Martinez standard, but
rather concluded that the regulation was a
“rational response by prison officials to an
obvious security problem.” Id. at 550.
Additionally, the Wolfish majority observed
that the regulation operated in a neutral
fashion, without regard to the content of
expression, and there existed alternative
means of obtaining reading material. Id. at
551.

Applying this two part “strict scrutiny”
standard, the Martinez court found the
California regulations invalid. Id. at 415. The
Court reasoned that the vague language of
the regulations encouraged prison staff to
apply self-determined standards reflecting
their individual prejudices and opinions. Id.
Additionally, the regulations were either not
in furtherance of legitimate governmental

Due to the increased confusion in
the lower courts over which standard of
review to apply—the Martinez “strict scrutiny”
rule or the Pell and Wolfish “reasonable
relation to governmental interests” test—the
Supreme Court granted review in Turner v.
Safley to clarify the law. 482 U.S. 78 (1987).
At issue were two Missouri prison
regulations. The first permitted inmates to
16

correspond with other inmates at different
facilities if they were immediate family
members or concerned legal matters. Id. at
81.
All
other
inmate-to-inmate
correspondence was banned absent
approval by prison officials. Id. The second
regulation allowed prisoners to marry but
only upon both the demonstration of
compelling reasons for marriage and
approval by the superintendent of the prison.
Id.

rights, courts should be particularly
conscious of the degree of judicial deference
owed to prison officials.” Id.
Third, the courts must determine
whether the accommodation of the asserted
right will have an adverse impact upon
guards, other inmates, and prison resources.
Id. When accommodation of an asserted
right will have a significant “ripple effect” on
other inmates and prison staff, courts should
be particularly deferential to corrections
officials’ judgment. Id.

Adopting the more formidable
“reasonableness” standard, the Turner court
held: “When a prison regulation impinges on
inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate
penological interests.” Id. at 89. The Court
explained that a reasonableness “standard is
necessary if prison administrators, and not
the courts, are to make the difficult
judgments
concerning
institutional
operations”. Id. (citation omitted) “Subjecting
the day-to-day judgments of prison officials
to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate
security problems and to adopt innovative
solutions to the intractable problems of
prison administration.” Id.

Finally, the fourth factor inquires
whether there is an obvious alternative to the
regulation which “fully accommodates the
prisoner’s rights at de minimis cost to valid
penological interests.” Id. at 91. The
Supreme Court explains this is not a “least
restrictive means” test because “prison
officials do not have to set up and then shoot
down every conceivable alternative method
of
accommodating
the
claimant’s
constitutional complaint.” Id. at 90. But if a
prisoner can point to an alternative that
would fully accommodate the First
Amendment right at de minimis cost to the
governmental interest, it is evidence that the
regulation is unreasonable. Id. at 91.

The Turner court went on to
enunciate four factors to determine whether
a prison regulation was reasonable:

Applying this four-factor test, the
Court concluded that the inmate-to-inmate
correspondence
regulation
passed
constitutional scrutiny. Id. First, the Court
noted that a neutral penological interest,
prison security, was at stake and there was a
rational connection between this interest and
banning inmate-to-inmate correspondence
which facilitates escape plans, assaults and
gang activity. Id. Secondly, the ban on
inmate-to-inmate correspondence did not
deprive prisoners of all avenues of
communication but simply prohibited
correspondence with a small class of
incarcerated people. Id. at 92. Thirdly, the
Court observed that permitting inmate-toinmate correspondence would have an
adverse impact on the safety of both
prisoners and guards. Id. Finally, the
alternative of monitoring every piece of

“First, there must be a ‘valid rational
connection’ between the prison regulations
and a neutral governmental interest put
forward to justify it.” Id. A regulation will not
be sustained where the connection between
the regulation and the asserted goal is so
remote as to render the policy arbitrary or
irrational. Id. If the connection between the
regulation and the asserted goal is arbitrary
or irrational, then the regulation fails,
irrespective of whether the other factors tilt in
its favor. See Shaw v. Murphy, 532 U.S. at
229-230.
Second, the courts must inquire
whether there are alternative means of
exercising the right in question. Turner, 482
U.S. at 90. “Where other avenues remain
available for the exercise of the asserted
17

415, 416. Secondly, the Abbott court found
that although some publications may be
banned under the regulations, many other
alternatives existed to the inmate because
the regulations permit “a broad range of
publications to be sent, received, and read.”
Id. at 418. Analyzing the third factor—impact
on third parties—the court concluded that
allowing publications detrimental to prison
security would adversely impact the safety of
both guards and other inmates. Id. Finally,
the prisoners failed to establish that an
“obvious, easy alternative” existed which
would permit introduction of the publications
at de minimis cost to prison security. Id. The
Court also upheld the “all or nothing” rule
which permitted prison officials to reject an
entire publication because of one offensive
article, rather than merely tearing out the
rejected portion. Id. at 419. The court
accepted prison officials’ views that such an
alternative would “create more discontent”
and was administratively inconvenient. Id.

inmate mail would require more than de
minimis cost. Id. at 93.
The marriage regulation, however,
was held unconstitutional because it was not
reasonably related to a legitimate penological
interest. Id. at 91. The Supreme Court
concluded that prison officials’ fear of “love
triangles” causing violent confrontations and
of female prisoners being abused or
becoming “overly dependant,” represented
an “exaggerated response” to security and
rehabilitative concerns. Id. at 97.
In 1989, the Supreme Court
extended Turner and further limited Martinez
in yet another First Amendment case. 490
U.S. 401, 413 (1989). In Thornburgh v.
Abbott, a group of prisoners and publishers
brought suit challenging a Federal Bureau of
Prisons regulation which authorized the
warden to reject incoming publications found
“detrimental to the security, good order, or
discipline of the institution or if it might
facilitate criminal activity.” Id. at 404.

In Beard v. Banks, the Supreme
Court granted certiorari to review a
Pennsylvania DOC policy which banned all
newspapers, magazines and personal
photographs to inmates confined in long-term
segregation units. 548 U.S. 521, 524-525
(2006). Applying the Turner factors to Banks,
the court concluded that depriving the “most
incorrigible, recalcitrant inmates’” access to
such material was reasonably related to the
Commonwealth’s asserted goal of creating
incentives for positive behavior. Id. at 531532. “The articulated connection between
newspapers and magazines, the deprivation
of virtually the last privilege left to an inmate
and a significant incentive to improve
behavior are logical ones.” Id at 531.

The Abbott decision is important
giving its distinction between incoming
correspondence and publications and
outgoing correspondence. Incoming mail,
according to Abbott, poses a serious security
hazard due to circulation among prisoners
“with the concomitant potential for
coordinated disruptive conduct.” Id. at 412.
The Court therefore held “that regulations
affecting the sending of a publication to a
prisoner must be analyzed under the Turner
reasonable standard.” Id. In contrast,
outgoing mail is less likely to pose a serious
threat to prison order and security. Id. at 413.
Thus, prison regulations affecting outgoing
mail are to be analyzed under the Martinez
strict scrutiny standard. Id. at 411-412.

The Turner, Abbott, and Banks
court’s adoption of a reasonableness
standard and emphasis on deferring to the
judgment of prison officials regarding
institutional needs and interests makes it
extremely difficult for prisoners to establish
First Amendment violations. Under Martinez,
prison officials must show how a regulation
restricting First Amendment freedoms will
“further” a legitimate penological interest.

Applying
the
four-factor
reasonableness test, the Abbott court found
the censorship regulation constitutional. Id. at
419. First, the Court found that a regulation
banning incoming publications that are
“detrimental to the security, good order, or
discipline of the institution” was “beyond
question” rationally related to the legitimate
penological interest of prison security. Id. at
18

communication to inmates by former
prisoners presents a serious set of dangers
to prison safety and prison administration,
and the regulation logically addresses those
dangers by permitting correspondence only
with approval. Id. at 374.

The difference is that while prison officials
need evidence in Martinez, they need only
opinions and speculation in Turner.
Additionally, under Turner, as long as the
regulation is reasonably related to a
legitimate interest, it is valid. Under Martinez,
a regulation that furthers a legitimate prison
interest would still be unconstitutional if a
less restrictive alternative existed that would
protect the state’s interest while permitting
exercise of the First Amendment rights. The
bottom line is simple: prison regulations that
would be struck down under Martinez are
now routinely upheld under Turner.

In Monroe v. Beard, prisoners filed
suit contending that the confiscation of the
Uniform Commercial Code (UCC) manuals
and publications violated their First
Amendment rights. 536 F. 3d 198, 205 (3d
Cir. 2008). In this case, prison officials
argued that the confiscation was necessary
to protect judges, prosecutors, prison
officials, and other government employees
from inmates filing fraudulent liens against
them. Id. at 208. Applying Turner, the Third
Circuit sustained the policy, noting that “the
defendants’ decision to engage in
preemptive action was reasonably and within
their discretion.” Id.

For example, in Waterman v.
Farmer, two prisoners confined at a New
Jersey facility for sex offenders brought suit,
claiming that a state statute restricting their
access to sexually-oriented material violated
the First Amendment. 183 F.3d 208, 209 (3d
Cir. 1989). Applying the four pronged Turner
test, the Third Circuit upheld the statute and
rejected the free speech challenge. Id. at
220. The court held that the statute was
rationally related to the state’s interest in
rehabilitating sex offenders since prison
experts testified that sexually-oriented
material can thwart the effectiveness of sex
offender treatment. Id. at 217. The Third
Circuit made this remarkable conclusion
notwithstanding a lack of consensus among
psychologists on how sexually-oriented
publications affect the treatment of sex
offenders. Id. at 216. The court explained
that under Turner, as long as the asserted
link between the statute and the penological
interest is rational—not necessarily a perfect
fit—it must defer to the judgment of state
authorities. Id. at 216-217.

In each of these decisions, the Third
Circuit Court of Appeals—pursuant to
Turner—agreed that inmates’ free speech
rights were secondary and subordinate to
important state interests such as prison
security, inmate rehabilitation, and fraud
prevention. As long as prison censorship
regulations and resulting action are
reasonably related to these interests, Turner
requires the courts to sustain them. See also,
Sheets v. Moore, 97 F.3d 164 (6th Cir. 1996)
(prison may ban junk mail due to prison
security); Stow v. Grimaldi, 993 F.2d 1002
(1st Cir. 1993) (prison may inspect outgoing
mail to university for escape plans and
contraband); Knight v. Lombardi, 952 F.2d
177 (8th Cir. 1991) (prison may reject
incoming mail from former guard due to
security threat); Rodriguez v. James, 823
F.2d 8 (2d Cir. 1987) (prison may inspect
outgoing business mail to prevent fraud).

At issue in Nasir v. Morgan, was a
Pennsylvania DOC policy prohibiting
correspondence between current and former
inmates. 350 F.3d 366, 368 (3d Cir. 2003).
Disciplined for receiving, and attempting to
send letters to a former inmate, Nasir
claimed a violation of his free speech rights.
Id. at 369. Applying Turner to the incoming
mail and Martinez to the outgoing
correspondence, Id., at 371, the Third Circuit
upheld the policy. Id. at 374-376. “Incoming

On the other hand, where censorship
or restrictions on inmate mail are not
reasonably based upon valid governmental
interests, or where the connection between
the censorship and the governmental interest
is so remote as to render the policy arbitrary

19

actions.” Id. See also: Crofton v. Roe, 170
F.3d 957 (9th Cir. 1999) (prohibiting inmate
receipt of publications unless paid for in
advance by inmate held unconstitutional);
Thongvanh v. Thalacker, 17 F.3d 256 (8th
Cir. 1994) (regulation requiring “English only”
correspondence unconstitutional where few
letters were actually read by prison staff).

or irrational, the courts will declare the matter
unconstitutional.
In Abu-Jamal v. Price, the Third Circuit held
that prison officials violated a prisoner’s free
speech rights when they opened, read, and
sent to government lawyers at the
Governor’s office copies of confidential
attorney-client mail. 154 F.3d 128, 132 (3d
Cir. 1998). Prison officials did so pursuant to
an investigation as to whether Jamal, a
former journalist who continued to write while
on death row, was violating a prisoner
regulation barring inmates from carrying on a
business or profession while incarcerated. Id.
at 131. The prison claimed that they were
reading his attorney mail to determine
whether Abu-Jamal’s attorney was helping
him get compensation for publications;
however, the regulation did not address the
question whether payment was permitted.
Id. Therefore, the prison’s reasoning was
illogical. Id. Citing Turner, the Third Circuit
held there was no valid, rational connection
between the prison regulation and a
legitimate penological interest. Id. at 135136. Moreover, the court found that prison
officials were motivated, as least in part, by
the content of his articles and mounting
public pressure to do something about them.
Id. at 134.

Finally, the decision to withhold or
censor inmate mail and publications must be
accompanied by procedural Due Process to
both the prisoner and his or her
correspondent. See Martinez, 416 U.S. at
417. Even if a magazine, newspaper or
personal letter is considered a threat to
prison security, prison officials must provide
Due Process safeguards to both parties,
including notice of the rejection and an
opportunity to present objections. Id. In
addition, complaints about mail censorship
should be “referred to a prison official other
than the person who originally disapproved
the correspondence.” Id. See also:
Jacklovich v. Simmons, 392 F.3d 420, 433
(10th Cir. 2004) stating that “both inmates
and publishers have a right to procedural
Due Process when publications are
rejected”); Bonner v. Outlaw, 552 F.3d 673
(8th Cir. 2009) (Due Process applies to
rejected
mail
regardless
whether
communication occurs in the form of letter,
package, newspaper, or magazine).

In Brooks v. Andolina, a SCIPittsburgh prisoner wrote a letter to the
NAACP complaining that a female prison
guard had searched one of his visitors in a
very seductive manner. 826 F.2d 1266, 1267
(3d Cir. 1987). The prison guard filed a
misconduct report against Brooks charging
him with insolence and disrespect towards a
staff member based on the letter. Id. Brooks
was found guilty and sentenced to thirty days
segregation. Id. the Third Circuit affirmed the
lower court’s finding of a First Amendment
violation, noting that “Brooks was not
disciplined for communicating with other
inmates, but for the contents of his letter to a
person outside the prison system.” Id. at
1268. Since Brooks’ outgoing letter
presented no threat to prison security, “the
security concerns raised by the defendants
are merely a belated attempt to justify their

In conclusion, the Supreme Court’s
attempt to balance prisoners’ First
Amendment rights against institutional needs
has shifted from the more protected strict
scrutiny standards of Martinez (which
mandated that First Amendment restrictions
further penological interests and be no
greater than necessary) to the extremely
deferential reasonableness of Turner
(requiring only a rational connection to a
legitimate penological interest).
B. Religious-Based Issues
In addition to protecting freedom of
speech, the First Amendment also requires
that “Congress shall make no law respecting
an establishment of religion, or prohibiting
the free exercise thereof.” U.S. Const.
20

Amendment I. While the right to hold
religious beliefs is absolute, see Sherbert v.
Verner, 374 U.S. 398, 402 (1963), “the
freedom to act, even when the action is in
accord with one’s religious convictions, is not
totally free from legislative restrictions.”
Braunfeld v. Brown, 366 U.S. 599, 603
(1961).

philosophical and personal rather than
religious do not merit constitutional
protection. Thomas, 450 U.S at 714; See
also, Wisconsin v. Yoder, 406 U.S. 205, 215
(1972) (“A way of life, however virtuous and
admirable, may not be interposed as a
barrier to reasonable State regulation … if it
is based on purely secular considerations; to
have the protection of the Religion Clauses,
the claims must be rooted in religious
belief.”).

Before addressing the judicial
standards governing prisoners’ free exercise
of religion claims, plaintiffs challenging state
restrictions on religious practice must satisfy
two threshold issues: the existence of a bona
fide religion and sincerely-held religious
beliefs. See Thomas v. Review Board of
Indiana Employment Security Division, 450
U.S. 707, 713 (1981) (“Only beliefs rooted in
religion are protected by the Free Exercise
Clause”); United States v. Seeger, 380 U.S.
163, 185 (1965) (While the truth of a belief is
not open to question, “there remains the
significant question whether the belief is ‘truly
held’”). “If either of these two requirements is
not satisfied, the court need not reach the
question, often quite difficult in the
penological setting, whether a legitimate and
reasonably
exercised
state
interest
outweighs the proffered First Amendment
claims.” Africa v. Commonwealth of
Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.
1981).

In Africa, the Third Circuit identified
three factors for determining the existence of
a religion: (1) a religion addresses
fundamental matters; (2) a religion is
comprehensive in nature, consisting of a
belief system as opposed to an isolated
teaching; and (3) a religion can be
recognized
by
certain
structural
characteristics, such as formal ceremonies,
clergy, etc. 662 F.2d at 1032. Applying these
factors in Africa, the Third Circuit concluded
that the “MOVE” organization was not a
religion entitled to the protection of the First
Amendment. Id. at 1035.
In Frazee v. Illinois Dept. of
Employment Security, the state of Illinois
denied unemployment benefits to the plaintiff
because he refused a temporary retail job
which would have required him to work on
the “Lord’s Day.” 489 U.S. 829, 830 (1989).
Illinois argued that Frazee’s rejection of
Sunday employment was not based on a
specific tenet of Christianity, and hence, was
not protected by the First Amendment. Id. at
1516. The Supreme Court reversed, holding
that Illinois had violated Frazee’s free
exercise rights by conditioning the receipt of
unemployment benefits on his abandonment
of sincerely-held religious beliefs. Id. at 1518,
The Court notes that while it “is also true that
there are assorted Christian denominations
that do not profess to be compelled by their
religion to refuse Sunday work,” that fact
alone “does not diminish Frazee’s protection
flowing from the Free Exercise Clause.” Id. at
834. The Court emphasized that, “we reject
the notion that to claim the protection of the
Free Exercise Clause, one must be

1. Bona Fide Religion
The threshold issue in every free
exercise claim is whether there is a religion
at stake within the meaning of the First
Amendment. See Dehart v. Horn, 227 F.3d
47, 51 (3d Cir. 2000) (only those beliefs that
are “religious in nature are entitled to
constitutional protection”); Wilson v.
Schillinger, 761 F.2d 921, 925 (3d Cir. 1985)
(before particular beliefs are accorded First
Amendment protection, a court must
determine that the avowed beliefs are
“religious in nature, in the claimant’s scheme
of things”). While religious beliefs “need not
be acceptable, logical, consistent, or
comprehensible to others to merit First
Amendment protection,” the Supreme Court
has made clear that beliefs which are
21

Rasheed, 323 F.3d 236, 252 (3d Cir. 2003)
(“The central foundational tenets of the
Nation of Islam meet the definition of religion
as set forth in Hialeah and Africa.”); Love v.
Reed, 216 F.3d 682, 687-688 (8th Cir. 2000)
(belief system of prisoner who was selfproclaimed adherent of Hebrew religion and
derived his beliefs from Old Testament was a
religion within the meaning of First
Amendment) .

responding to the commands of a particular
religious organization.” Id.
Other Supreme Court and Third
Circuit decisions have likewise held that
religious beliefs need not be “orthodox” or
“mainstream” to deserve First Amendment
recognition. See Employment Division v.
Smith, 494 U.S. 872, 887 (1990) (it is not
within the judicial ken to question the
centrality of particular beliefs or practices to a
faith, or the validity of particular litigants’
interpretations of those creeds); Thomas v.
Review Boards, 450 U.S. 707, 716 (the
guarantee of free exercise is not limited to
beliefs which are shared by all of the
members of a religious sect); Dehart v. Horn,
227 F.3d at 55 (finding that the lower court’s
inquiry into whether prisoner’s religiousbased request for a strict vegetarian diet was
shared by Buddhist doctrine “is simply
unacceptable”).

Belief systems not religious in nature
will be denied free exercise protection. See
Africa, 662 F.2d at 1036 (MOVE organization
not a religion); Johnson v. Pennsylvania
Bureau of Corrections, 661 F.Supp. 425,
436-437 (W.D. Pa. 1987) (applying Africa
criteria, Spiritual Order of Universal beings
was not a religion.)
2. Sincerity Of Beliefs
It is not sufficient to establish that a
particular set of beliefs constituted a religion
within the meaning of the First Amendment.
There is also the threshold requirement of
sincerity—whether the religious beliefs
professed are sincerely held. See Cutter v.
Wilkinson, 544 U.S. 709, 725 n. 13 (“prison
officials may appropriately question whether
a prisoner’s religiosity, asserted as the basis
for a requested accommodation, is
authentic.”). Absent proof of a sincere
religious belief, prison officials are under no
obligation to consider faith based exceptions
to prison rules. See Chase v. City of
Philadelphia, 2011 U.S. Dist. Lexis 75463
(E.D. Pa. 2011) (denial of kosher food was
not violation where inmate failed to establish
sincere belief in Judaism).

Prisoners seeking religious status for
unconventional faiths must be prepared to
prove that their systems of belief and worship
satisfy the Africa definition of religion. See
Dehart, 227 F.3d at 52 n. 3 (in determining
whether a non-traditional belief or practice is
religious, the courts will look to familiar
religions as models to ascertain, by
comparison, whether the new set of ideas or
beliefs is confronting the same concerns, or
serving the same purposes, as unquestioned
and accepted religions).
Since religions tend to have certain
elements in common (such as rituals to
perform; prayers to recite; holy days to
observe; sacred literature to read; and
personal codes of behavior to follow), courts
will examine these tenets, traditions, and
practices of the disputed faith in light of the
Africa criteria to determine whether there is
indeed a “religion” at stake. Non-traditional
belief and worship systems will be granted
First Amendment protection as long as they
are rooted in legitimate religious beliefs. See
Church of the Lukumi Babacu Aye v. City of
Hialeah, 508 U.S. 520, 538 (2003)
(protecting Santeria and animal sacrifices,
outside of the prison context); Sutton v.

In Dehart v. Horn, the Third Circuit
held that prison officials are entitled to make
a judgment about the sincerity and the
legitimacy of a prisoner’s religious beliefs
and act in accordance with that judgment.
227 F.3d at 52 n. 3. If a prisoner’s religious
beliefs are “not a constituent part of a larger
pattern of religious observance on the part of
the inmate,” prison officials may regard it as
a pretext that is not sincere. Id.
In Sourbeer v. Robinson, a prisoner
contended that his First Amendment rights
22

whether Jackson’s beliefs are entitled to free
exercise protection turns on whether they are
sincerely-held, not on the ecclesiastical
question whether he is in fact a Jew under
Judaic law. Id. at 321.

were violated when he was denied
congregational services while confined in
administrative segregation. 791 F.2d 1094,
1102 (3d Cir. 1986). Noting that Sourbeer
never designated a spiritual advisor while in
the RHU and attended religious services only
five times after his RHU release, the Third
Circuit dismissed the case, finding that his
religious beliefs were insincere. Id.

Likewise, in Morrison v. Garraghty,
the Fourth Circuit held that prison officials’
refusal to consider a prisoner’s request for
Native American religious items only upon
proof of Native American descent violated
equal protection. 239 F.3d 648, 659 (4th Cir.
2001). The court explained, “we agree with
the district court’s conclusion that prison
officials cannot measure the sincerity of
Morrison’s religious beliefs in native
American spirituality solely by his racial
make-up of the lack of his tribal
membership.” Id.

Similarly, in Johnson v. Pennsylvania
Bureau of Corrections, a Muslim prisoner
claimed his free exercise rights were violated
when female prison guards were assigned
areas in the prison where they could view
him unclothed, violating the tenets of Islam.
661 F. Supp. 425, 427 (W. D. Pa. 1987). The
district judge concluded that the plaintiff did
not have sincere Muslim beliefs because he
abandoned his religion during his first years
in prison and additionally because his
complaint was largely based upon “his
human dignity” as opposed to being
religiously-based. Id. at 437.

In conclusion, prisoners claiming free
exercise violations as the result of state
regulations and practices must satisfy two
threshold issues: (a) beliefs rooted in
religion; and (b) sincerity in those religious
beliefs. If either of these two requirements is
not satisfied, the case is terminated and it is
unnecessary for the court to determine
whether any existing state penological
interest outweighs or justifies the restriction
on religious freedom.

On the other hand, the Fourth Circuit
has noted simply because a prisoner fails to
adhere to a particular religious practice does
not permit prison officials or the courts to
automatically assume a lack of sincerity. See
Lovelace v. Lee, 472 F.3d 174, 188 (4th Cir.
2006) (“An inmate, however, could decide
not to be religious about fasting and still be
religious about other practices, such as
congregational services or group prayer.”);
Reed v. Faulkner, 842 F.2d 960, 963 (7th
Cir. 1988) (prisoner’s failure to adhere to
every tenet of Rastafarian faith could not be
considered
conclusive
evidence
of
insincerity).

3. Balancing Religious Exercise
Against Penological Interests
In O’Lone v. Estate of Shabazz, the
Supreme Court established the precise
standard of review for prisoners’ claims that
state officials have violated their First
Amendment rights to free exercise of
religion. 482 U.S. 342 (1987). At issue in the
case was a New Jersey prison policy which
prohibited prisoners assigned to outside work
details from returning to the prison on Friday
afternoons to attend the weekly Islamic
congregational services. Id. at 345. Prison
officials adopted the policy because of the
security and administrative burdens which
resulted when one or more prisoners desired
to re-enter the facility and attend services. Id.
Prisoners brought suit claiming a violation of
their rights to free exercise or religion. Id.

Whether or not an individual
sincerely holds religious beliefs is not
dependant upon racial or biological criteria.
For example, in Jackson v. Mann, state
officials, including the prison rabbi, denied a
prisoner access to kosher meals because he
could not provide evidence that he was either
born Jewish or had converted to Judaism.
196 F.3d 316, 320 (2nd Cir. 1999). The
Second Circuit remanded the case back to
the lower court, nothing that the question
23

The Third Circuit Court of Appeals
has applied the Turner reasonableness
standard in numerous actions involving state
restrictions on religious exercise. In each
case the result hinged on whether a
legitimate penological interest existed to
justify the curtailment of religious activity.

The Shabazz court held that
regulations restricting prisoners’ free exercise
rights are constitutional if they are
reasonably related to legitimate penological
objectives. Id. at 353. The Court thus
adopted the four factor reasonableness test
formulated in Turner to all free exercise of
religion claims. Id.

For example, in Cooper v. Ford,
prisoners brought suit after they were
punished for participating in group prayer in
the prison yard. 855 F.2d 125, 127 (3d Cir.
1988). Applying Turner, the Third Circuit
upheld the policy prohibiting unauthorized
group activity, noting that such a structure
“posed a potential threat to prison authority.”
Id. at 129.

Applying the Turner test, the
Shabazz majority upheld the policy as
reasonably related to the penological
objectives of institutional security, order and
rehabilitation of inmates. Id. at 349-350. First,
the policy was deemed rationally connected
to legitimate state interests in security and
prisoner rehabilitation by easing congestion
at the main gate and instilling responsible
work habits. Id. Secondly, the Court noted
that although denied religious services, the
prisoners did enjoy alternative meals, and
special arrangements during the holy month
or Ramadan. Id. at 352. As for the third
factor—the impact of accommodating the
right on other prisoners, guards and
institutional resources—the Court agreed
with
state
officials
that
adverse
consequences would result because extra
supervision would be required and friction
would emerge inside work details as other
prisoners perceive favoritism. Id. at 353.
Finally, the Shabazz court held that there
were no obvious, easy alternatives. Id. In
conclusion, the refusal to allow Muslim
prisoner back into the prison for
congregational services was “reasonably
related to legitimate penological objectives”
and did not offend the First Amendment. Id.

In Pressley v. Beard, an inmate
alleged denial of religious exercise when
state officials confiscated a hard-bound
Koran and prayer rug during his confinement
in a segregation unit. 266 Fed. Appx. 216,
218 (3d Cir. 2008). Applying Turner, the
court upheld the policy, noting that the items
could be used to conceal contraband and
that Pressley had alternative means to
exercise his religious beliefs. Id. at 219.
In Smith v. Kyler, an inmate alleged
denial of his free exercise rights when prison
officials refused to provide weekly
Rastafarian religious services. 295 Fed.
Appx. 479, 480 (3d Cir. 2008). “Because of
limited resources, the DOC will not pay for
religious leaders for smaller groups.” Id. at
480. Citing Turner, the Court upheld the
policy given the Commonwealth’s interests in
prison security and conserving limited
financial resources. Id. at 481. See also:
Anderson v. Angelone, 123 F.3d 1197, 1199
(9th Cir. 1997) (“Requiring an outside
minister to lead religious activity among
inmates undoubtedly contributes to prison
security.”); Hadi v. Horn, 830 F.2d 779, 784
(7th Cir. 1987) (cancellation of Islamic
services upheld as reasonable security
measure when outside minister was
unavailable).

The Turner and Shabazz decisions
make it crystal clear that prison regulations
restricting prisoners religious exercise are not
to be analyzed under any heightened or strict
scrutiny standard. Nor are the courts
permitted to substitute their judgment—in
matters of prison security—for those charged
with the task of running prisons. Shabazz,
482 U.S. at 349. As long as prison policy is
reasonably related to some legitimate state
interest, they are constitutional.

In Sutton v. Rasheed, inmates were
denied access to Nation of Islam literature
due to a tiered policy in which high security
24

In Wilson v. Schillinger, 761 F.2d
921 (3d Cir. 1985) and Cole v. Flick, 758
F.2d 124, 131 (3d Cir. 1985) the Third Circuit
rejected free exercise challenges to a
Pennsylvania grooming regulation which
banned male hair length below the collar.
Finding that the regulation was based on
valid security concerns, including an effective
inmate identification system, contraband, and
the control of predatory homosexuals, the
court sustained the regulation. Id. at 126131. Post Turner grooming decisions in other
federal appellate courts have also been
negative. See Fegans v. Norris, 537 F.3d
897 (8th Cir. 2008); Longoria v. Dretke, 507
F.3d 898 (5th Cir. 2007); Harris v. Chapman,
97 F.3d 499 (11th Cir. 1996).

prisoners could gain access to more religious
texts by meeting institutional requirements.
323 F.3d 236, 241 (3d Cir. 2003). When the
plaintiffs met the requirements that would
have allowed them access to two religious
texts in addition to a Qur’an or Bible,
however, they were denied Nation of Islam
materials anyway. This denial was because
the SCI Chaplain deemed the books to be
political in nature. Id. at 242. The Third
Circuit determined that the Nation of Islam
materials qualify as a religious materials and
therefore the prison’s refusal to permit the
books “deprived the plaintiffs of texts without
which they could not practice their religion.”
Id. at 257.
Conflicts over religious dietary codes
were addressed in two cases—both
unsuccessful. In the first, a New Jersey
prisoner claimed state officials violated his
First Amendment rights when they refused to
provide meals consistent with his Islamic
beliefs. Williams v. Morton, 343 F.3d 212 (3d
Cir. 2003). Applying the four-factor Turner
analysis, the court concluded that rejection of
the specialized diet was rationally related to
the state’s interest in a simplified food
service, security and budgetary concerns. Id.
at 217-218. In the second case, the Third
Circuit rejected a Buddhist prisoner’s claim
that state authorities unconstitutionally
disallowed his specialized dietary requests.
See Dehart v. Horn, 390 F.3d 262 (3d Cir.
2004). Applying Turner, the court concluded
that the Commonwealth’s interest in an
efficient food service system justified denial
of the religious based diet. Id. at 268-270.

In terms of headgear, most prisons
allow Jewish prisoners to wear yarmulkes
and Islamic prisoners to wear Kufis.
However, a few courts have upheld prison
policies regulating the time and places that
religious headgear may be worn. See Young
v. Lane, 922 F.2d 370, 377 (7th Cir. 1991)
(applying Turner, policy limiting wearing of
yarmulkes to only inside cells and during
religious services upheld).
Faith-based name changes have
also generated free exercise disputes.
Prisoners who successfully petition the local
courts to obtain a name change for religious
reasons are often confronted by state
officials who insist that the inmate identify
himself under his commitment name. For
example, in Hakim v. Hicks, a prisoner
converted to Islam and obtained a name
change from the state of Florida. 223 F.3d
1244, 1246 (11th Cir. 2000). Prison officials,
however, refused to recognize the religious
name, claiming that name changes would
interfere with record-keeping practices and
undermine security by creating confusion in
prisoner identification. Id. at 1249. The
Eleventh Circuit concluded that the state’s
refusal to adopt a “dual-name policy” (in
which the prisoner’s commitment name is
followed by his legally-recognized religious
name) was unreasonable under Turner. Id.
Whether the Third Circuit will follow the
Hakim rationale is presently unknown. Keep

Personal grooming and clothing
regulations are another source of conflict
between inmate religious exercise and state
penological interests. Religious decrees
requiring the covering of the head conflicts
with prison officials’ security concerns
pertaining to contraband smuggling and
detection. Similarly, religious codes
prohibiting the cutting of facial hair or the hair
on one’s head conflict with state interests in
prisoner identification.

25

include Pennsylvania), RLUIPA was enacted
into law because prisons throughout the
United States were imposing “frivolous” and
“arbitrary” barriers that impeded prisoners’
religious exercise. See Cutter v. Wilkinson,
544 U.S. 709, 716 (2005). RLUIPA requires
application of a compelling governmental
interest test which affords prisoners greater
protection of religious exercise than what the
First Amendment and Turner mandates. See
Warren v. Pennsylvania, 316 Fed. Appx.
109, 114 (3d Cir. 2008) (“For prisoners,
RLUIPA heightens the protection from
burdens on religious exercise”).

in mind, however, the First Amendment’s
exercise clause only protects name changes
stemming from sincerely-held religious
beliefs. Name changes obtained for ethnic or
other reasons do not fall within the scope of
the First Amendment’s exercise clause. See
Ali v. Stickman, 206 Fed. Appx. 184 (3d Cir.
2006) (name change to reflect African
heritage, not for religious reasons, was not
protected by First Amendment).
4. RLUIPA-Based Claims
It is quite obvious that prisoners
contemplating First Amendment challenges
to state restrictions of religious activity face
an overwhelming, if not insurmountable, task
under the Turner reasonableness standard.
As long as restrictions on religious exercise
are reasonably related to a valid penological
interest, the courts are required to sustain
them.

RLUIPA-based claims, however,
have some drawbacks and warrant careful
research prior to filing. In Cutter v. Wilkinson,
the Supreme Court agreed that RLUIPA did
not violate the First Amendment’s
Establishment Clause. 544 U.S. at 724.
However, the Supreme Court has yet to
decide whether RLUIPA violates other
constitutional provisions. Id. at 719 n. 7
(noting that the Supreme Court did not
consider whether RLUIPA violated the
Spending and Commerce Clauses or the
Tenth Amendment).

In addition to claiming that state
restrictions on religious practices violate the
First Amendment, prisoners should consider
adding a separate claim that such restrictions
also violate the Religious Land Use and
Institutionalized Persons Act of 2000
(commonly known as “RLUIPA”). See 42
U.S.C.A. § 2000cc. The legislation states:

Secondly, prisoners cannot recover
monetary damages even if they prove
RLUIPA violated. Under the terms of the
statute, a person may assert RLUIPA claims
“against government.” 42 U.S.C. § 2000cc2(a). It does not authorize suits against state
officials in their individual capacities. See
Nelson v. Miller, 570 F.3d 868 (7th Cir.
2009); Rendelman v. Rouse, 569 F.3d 182
(4th Cir. 2009); Sharp v. Johnson, 669 F.3d
144, 153-154 (3d Cir. 2009) (RLUIPA does
not permit action against state officials in
their individual capacities).

No government shall impose or
implement a land use regulation in a
manner that imposes a substantial
burden on the religious exercise of a
person, including a religious
assembly or institution, [even if the
burden results from a rule of general
applicability] unless the government
demonstrates that imposition of the
burden on that person, assembly, or
institution-(A) is in furtherance of a
compelling governmental interest;
and

Since prisoners may bring RLUIPA
claims only against the government or state
employees in their official capacities,
questions of sovereign immunity come into
play. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989) (“a suit
against a state official in his or her official
capacity is not a suit against the official but
rather is a suit against the official’s office”). In

(B) is the least restrictive means
of furthering that compelling
governmental interest.
42 U.S.C.A. § 2000cc
Applicable to all states that receive
federal financial assistance (this would
26

“Pan-Afrikanism” religious beliefs which
required him to read four African-related
books each day. Id. at 282.

Sossman v. Texas, the Supreme Court
agreed that Eleventh Amendment sovereign
immunity bars prisoners from seeking
monetary damages against the states for
violations of RLUIPA. 131 S.Ct. 1651, 1655
(2011). Thus, even if a prisoner proves a
RLUIPA violation in federal court, he or she
is limited to declaratory and injunctive relief.
See also, Washington v. Grace, 2011 U.S.
Appx. 611, 616 Lexis 19715 (3d Cir. 2011)
(“to the extent that he requested money
damages for RLUIPA violations, such relief is
barred by the recent holding in Sossamon v.
Texas”).

In Heleva v. Kramer, 330 Fed. Appx.
406 (2009) a prisoner alleged state officials
violated his rights under RLUIPA when they
delayed deliver of two spiritually-based
books. Id. at 407. The books were eventually
delivered after proof was obtained that they
originated from a publisher. Id. at 409. The
Third Circuit concluded that the eight-month
delay did not result in a “substantial burden”
of religions. Id. at 409. “At no point did
Heleva have to abandon one of the precepts
of his Christian religion, nor did the
government put pressure on him to
substantially modify his behavior or violate
his beliefs. Id. at 409.

RLUIPA states that “no government”
shall impose a “substantial burden” on a
person’s “religious exercise unless it
demonstrates that the burden “is in
furtherance of a compelling governmental
interest” and is “the least restrictive means of
furthering that compelling governmental
interest.” 42 U.S.C.A. §2000cc-1. Of course,
a prisoner must first meet the threshold
requirements that: (a) his system of belief
constitutes a religion; and (b) he or she
sincerely holds those religious beliefs. See
Cutter v. Wilkinson, 544 U.S. at 725 n. 13
(RLUIPA does not preclude inquiry into the
sincerity of a prisoner’s professed religious
beliefs).

In Kretchmar v. Beard, the Third
Circuit ruled that absence of hot meals did
not constitute a substantial burden on a
Jewish prisoner’s religious exercise when he
was accorded a nutritionally-adequate and
religiously-compliant cold kosher diet. 241
Fed. Appx. 863, 865 (3d Cir. 2007). The
court agreed that such action did not
pressure him to modify his behavior or
violate his beliefs. Id.; see also, Smith v.
Ozmint, 578 F.3d 246 (4th Cir. 2009) (forced
haircuts constituted substantial burden);
Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)
(denial of non-meat diet on Fridays and
during Lent constituted substantial burden);
Smith v. Allen, 502 F.3d 1255 (11th Cir.
2007) (denial of small quartz was not
substantial burden).

Under RLUIPA, a prisoner must first
prove that the government imposed a
“substantial burden” on the “religious
exercise” of a person. In Washington v.
Klem, the Third Circuit ruled that a
“substantial burden” under RLUIPA exists
where: (a) the follower is forced to choose
between following the precepts of his religion
and forfeiting benefits otherwise generally
available to other inmates versus
abandoning one of the precepts of his
religion in order to receive a benefit; or (b)
the government puts substantial pressure on
an adherent to substantially modify his
behavior and to violate his beliefs. 497 F.3d
272, 280 (3d Cir. 2007). Applying this
definition to the case at hand, the Third
Circuit concluded that a Pennsylvania DOC
rule restricting prisoners to possession of ten
books “substantially burdened” the plaintiff’s

RLUIPA defines “religious exercise”
as “any exercise of religion, whether or not
compelled by, or central to, a system of
religious belief.” 42 U.S.C.A. § 2000cc-5(7)
(A). Combining the two phrases, RLUIPA
appears to prohibit the substantial burdening
of any religious practice, regardless of
whether it is central to, or mandated by, a
particular religion. See Kikumura v. Hurley,
242 F.3d 950, 961 (10th Cir. 2001) (although
pastoral visits are not mandated by Buddhist
or Christian religions, they are religious

27

exercise and accordingly, are protected
activities under RLUIPA).

Under this requirement, prison officials
cannot simply ban a religious practice if there
exist reasonable alternatives that, if
implemented, will protect the penological
interest while allowing the religious practice.
For example, one justification for state prison
grooming regulations is that uncut long hair
is unsanitary and dangerous when prisoners
work in food preparation or around
machinery. Under the least restrictive means
test, however, a simple hair net would protect
the state’s safety interests while permitting
the exercise of the prisoner’s religious
beliefs.

A
prison
regulation
which
substantially burdens a prisoner’s religious
practice will be upheld by the courts if it is in
furtherance of a “compelling governmental
interest” and is the “least restrictive means”
of furthering that governmental interest. 42
U.S.C.A. § 2000cc-1(a) (1)-(2). The safety,
security and order of the institution and the
discipline and rehabilitation of prisoners
remain compelling governmental interests
under RLUIPA. See Cutter v. Wilkinson, 544
U.S. at 722 (“We do not read RLUIPA to
elevate accommodation of religious
observances over an institution’s need to
maintain order and safety”); Turner, 482 U.S.
at 92 (maintaining safety and internal
security are the core functions of prison
administration).

In Washington v. Klem, a prisoner
filed a RLUIPA-based suit claiming that a
Pennsylvania DOC rule limiting him to
possession of ten books infringed on his
religious exercise (in this case, the plaintiff’s
beliefs required him to read four Afro-centric
books per day). 497 F.3d 272, 275 (3d Cir.
2007). Having determined that the rule
“substantially burdened” his religious beliefs,
the court confronted the question of whether
the DOC’s actions were the “least restrictive
means” to safeguard the Commonwealth’s
concerns that excessive inmate property
presented contraband-hiding and fire-safety
hazards.” Id. at 282, 284. Reviewing the
available record, the Third Circuit concluded
that the ten-book policy was not the “least
restrictive means” but was, in fact, arbitrary.
Id. at 285-286. The court noted that while
enforcing the ten-book limitation (for the
intended purpose of preventing contraband
hiding and fire hazards), the DOC’s own
regulations permitted possession of more
than ten books for educational purposes. Id.
at 285.

In Smith v. Kyler, where the prison
refused to allow religious group meetings
that were not led by an outside chaplain or
volunteer, the Third Circuit did not directly
address whether the substantial cost to the
prison would constitute a compelling interest.
295 Fed. Appx. 479, 483 (3d Cir. Pa. 2008)
(unpublished). Rather, the court dismissed
the plaintiff’s case because his claim was not
based on a government policy as required by
RLUIPA. The court reasoned that the
absence of weekly religious meetings was
caused not by the prison regulation, but
rather by “inadequate demand for such
services and from a dearth of qualified
outside volunteers available to go to SCIHuntington not from some rule or regulation
that directly prohibits such gatherings.” Id.
Although the Third Circuit did not directly rule
on this issue, its opinion in Kyler suggests
that it might take cost into account in
determining whether a policy is narrowly
tailored to a compelling prison interest.

The
compelling
governmental
interest test of RLUIPA is certainly a more
prisoner friendly free exercise standard than
Turner and Shabazz. See Vasquez v.
Ragonese, 393 Fed. Appx. 925, 929 (3d Cir.
2010) (“even if a prison’s actions are allowed
by the Constitution under the Turner
analysis, they may not be allowed under the
more restrictive (RLUIPA) statute”). It
requires state officials prove that a restriction
on religious exercise actually furthers prison

If a prison regulation burdening
religious exercise is in furtherance of a
compelling penological interest such as
security and safety of the institution, it will be
sustained by the court if it is the least
restrictive means to protect that interest.
28

evaluate free exercise disputes remain
unsettled. Clearly, prisoners should assert
that the appropriate free exercise standard is
the compelling interest test enunciated in
RLUIPA. Under this standard, a regulation
curtailing religious free exercise can be
sustained only if it is in furtherance of a
compelling governmental interest (such as
prison security and the discipline and
rehabilitation of prisoners) and is the least
restrictive means to protect that interest.

security or other legitimate interests, and
additionally, is no broader than necessary to
safeguard such interests.
RLUIPA, however, should not be
interpreted as the answer to all religious
grievances. It does not mean, for example,
that prisoners confined in isolation units for
security reasons will be released to attend
the weekly congregational services or
prisoners will be entitled to don robes and
conduct rituals in their cells. See Boretsky v.
Corzine, No. 08-2265 (GEB), 2011 U.S. Dist.
Lexis 70654 at *41 (D. N.J. June 30, 2011)
(inmate denied weekly group religious
services while confined in special sentencing
unit was not violation of Turner or RLUIPA
due to compelling governmental interest in
staffing and security).

Turner should not be ignored since
the constitutionality of RLUIPA remains open
to question. Before filing suit, prisoners
should carefully analyze any prison
regulation or practice restricting free exercise
under each of the Turner factors and
available case precedent to determine the
likelihood
of
success
under
the
reasonableness standard. This requires
familiarity with current prison operations.
Only by fully appreciating the state’s likely
positions regarding each of the Turner
factors can you conduct effective pretrial
discovery to uncover evidence demonstrating
that the regulation is not reasonably related
to the state’s purported penological
justifications.

When asserting RLUIPA claims,
remember that the courts will always give
substantial deference to state officials in
matters involving the safety and security of
the institution. See Cutter v. Wilkinson, 544
U.S. at 726 (“Should inmate requests for
religious accommodation become excessive,
impose unjustified burdens on other
institutional persons, or jeopardize the
effective functioning of an institution, the
facility would be free to resist the
imposition.”) The lower courts will uphold the
vast majority of prison regulations curtailing
religious exercise even when applying the
compelling interest standard of RLUIPA.

C. Association And Media Rights
The First Amendment also protects
the individual’s right to freedom of
association. The Supreme Court has
recognized two types of association
protected by the First Amendment: (1)
“intimate association,” that is, the right to
maintain personal family relations; and (2)
“expressive association,” that is, the right to
join groups and associate with others to
advance ideas or engage in expressive
conduct. See Roberts v. United States
Jaycees, 104 S.Ct. 3244, 3249 (1984). Given
the fact that prisoners maintain family
relationships and join advocacy groups while
incarcerated, both types of association are
implicated in the correctional system. Once
again, however, the exercise of a
constitutional right is not absolute, but must
be weighed against legitimate state interests.

For example, in Fowler v. Crawford,
the Eighth Circuit rejected a Native American
inmate’s claim that the denial of a sweat
lodge violated RLUIPA. 534 F.3d 931, 934
(8th Cir. 2008). The court determined that
maximum security inmate access to burning
fires, scalding rocks, and sharp objects like
shovels and deer antlers presented obvious
security hazards. Id. at 939. The court also
agreed that the “least restrictive means”
requirement was satisfied given the plaintiff’s
refusal to accept institutional alternatives. Id.
at 939-940.
In conclusion, while religious
practices are now routine in prisons and jails,
the standards applied by the courts to

1. Intimate Association
29

to prisoner visitation. Id. at 131, 136 (“We do
not hold, and we do not imply, that any right
to intimate association is altogether
terminated by incarceration or is always
irrelevant to claims made by prisoners.”).
Whether the Supreme Court will finally
resolve this question in the future remains to
be seen.

In Turner v. Safley, prisoners
brought suit challenging a Missouri regulation
which prohibited them from marrying unless
they had permission of the prison
superintendent, which could be given only
when there were compelling reasons to do
so. 482 U.S. at 82. The Turner court struck
down the marriage regulation, holding that it
was not reasonably related to the state’s
rehabilitation and security concerns, and
thus, was unconstitutional. Id. at 91. Whether
other state regulatory impediments to
marriages between prisoners and nonprisoners violated the First Amendment
should be carefully researched prior to filing
any litigation.

Assuming that prisoners do enjoy
some form of a constitutional right of intimate
association in the context of family visitation,
there can be no doubt that the state has the
right to enforce regulations which are
reasonably necessary to ensure the safety,
security, and order of the institution during
the visiting process. For example, in Overton,
the Supreme Court applied the four-part
Turner analysis in upholding various
Michigan policies restricting inmate visitation.
Id. at 133-135. Among the policies upheld
were regulations barring minors who were no
family members and requiring all minor family
members to be accompanied by an adult. Id.
at 133. The Overton court also upheld
regulations barring visitation by former
inmates and those prisoners found guilty of
two substance abuse charges during
incarceration. Id. at 133-134. In short,
Overton gives prison authorities wide latitude
over prison visitation, including the time and
manner of visits, and who is actually
permitted entry to the facility for visitation
purposes.

The right of intimate association in
prison emerges primarily in the context of
family visitation and prisoner marriages.
Turner held that the states cannot impose
unreasonable barriers on prisoner marriages.
As for family visitation, some lower courts
have held that prisoners do not enjoy a
constitutional right to visitation. See Buehl v.
Lehman, 802 F.Supp. 1266, 1270 (E. D. Pa.
1992) (“It is doubtful that convicted prisoners
or those who wish to visit them, including
family and spouses, have a constitutional
right to visitation”); Flanagan v. Shively, 783
F. Supp. 922, 934 (M. D. Pa. 1992) (noting
that visitation is a privilege subject to the
discretion of prison officials, the court held,
“Inmates have no constitutional right to
visitation.”), affirmed, 980 F.2d 722 (3d Cir.
1993).

Likewise, in Block v. Rutherford, the
Supreme Court upheld a California jail
regulation banning all contact visits. 468 U.S.
576, 587 (1984). Noting that contact visits
may allow the introduction of contraband into
the facility and expose innocent persons to
potentially dangerous persons, the Supreme
Court upheld the regulation stating that “the
Constitution does not require that detainees
be allowed contact visits when responsible,
experienced administrators have determined,
in their sound discretion, that such visits will
jeopardize the security of the facility. Id. at
589.

In Overton v. Bazzetta, the Supreme
Court had the opportunity, but declined to
decide whether inmates enjoy a
constructional right to prison visitation. 539
U.S. 126, 131 (2003). At issue in Overton,
were various restrictions on prisoner
visitation imposed by the Michigan
Department of Corrections regarding minors,
former inmates, and curtailment of visits for
inmates found guilty of substance abuse. Id.
at 130. The Court concluded that the
regulations in question survived the four-part
“reasonableness” test of Turner, and
therefore, there was no need to decide
whether inmates enjoy a constitutional right

When prison policy impinges upon
inmate visitation, the courts will determine,
30

under Turner, whether it is reasonably
related to legitimate penological interests.
For example, in Maze v. Tafolla, the court
upheld a policy barring detainees charged
with murder from receiving contact visits with
their minor children. 369 Fed. Appx. 532, 534
(5th Cir. 2010). And in Henry v. Department
of Corrections, the court upheld a permanent
ban on contact visitation for an inmate
suspected of destroying drugs during a cell
search. 131 Fed. Appx. 847, 850-851 (3d Cir.
2005). In each of these cases, the courts
determined that valid security and safety
concerns justified the curtailment of inmate
visitation.

of America v. Dale, 530 U.S. 640,
648 (2000). In Roberts, the Supreme Court
held that the Jaycees were a protected
expressive association because “the national
and local levels of the organization have
taken public positions on a number of diverse
issues, and members of the Jaycees
regularly engage in other activities.” 104 S.
Ct. at 3254.
In Pennsylvania’s state correctional
system, prisoners are permitted to join a
diverse group of organizations including the
Jaycees, Lifer’s organizations and Vietnam
Veterans chapters, among many others. All
of these groups have taken positions on
public issues affecting their members and
engage in a variety of civic and charitable
activities. Accordingly, they likely qualify as
constitutionally
protected
expressive
associations. See Roberts, 104 S. Ct. at
3252.

On the other hand, where prison
policy restricting family visitation is not
reasonably related to legitimate security
concerns, the courts have found First
Amendment violations. In Doe v. Sparks, the
district court found unconstitutional a Blair
County regulation which prohibited visitation
between homosexual prisoners and their
boyfriends or girlfriends. 733 F. Supp. 227,
234 (W. D. Pa. 1990). Applying Turner, the
court held that the connection between the
asserted security goal (of preventing
harassment or abuse of homosexual
prisoners) and the visitation policy “is so
remote as to be arbitrary.” Id. The court
noted that the perception of prisoners that a
particular inmate is homosexual due to a
change observation during a mere two-hour
weekly visit is “practically negligible” in
comparison to the other 166 hours per week
in which prisoners can observe the inmate’s
appearance and behavior. Id. at 233.

That a particular organization
qualifies under the First Amendment as a
constitutionally
protected
expressive
association does not mean that it is immune
from state regulations. Roberts, 104 S.Ct. at
3252 (right to associate for expressive
purposes is not absolute and infringements
on that right may be justified by compelling
state interests). In the prison context,
curtailment or prisoners’ rights to expressive
association can be justified by important
state penological interests, central of which
are institutional safety and order. In Jones v.
North Carolina Prisoners’ Labor Union, Inc.,
the Supreme Court rejected prisoners’ First
Amendment associational challenge to
prison regulations prohibiting meetings of a
prisoners’ labor union and barring prisoners
from soliciting others to join the union. 433
U.S. 119, 131 (1977). The Court based its
decision upon prison officials’ testimony that
the concept of a prisoners’ labor union was
“fraught with potential dangers,” including
increased tension between prisoners and
staff, and between union and non-union
prisoners. Id. at 126.

2. Expressive Association
The Supreme Court has recognized
a First Amendment “right to association with
others in pursuit of a wide variety of political,
social, economic, educational, religious and
cultural ends.” Roberts v. United States
Jaycees, 104 S. Ct. 3244 (1984). Whether or
not a particular group or organization is
entitled to constitutional protection as an
expressive association depends on whether
it is engaged “in some form of expression,
whether it be public or private.” Boy Scouts

Similarly, in Hudson v. Thornburg,
the district court upheld prison officials’
31

inmate correspondence simply to eliminate
unflattering or unwelcome opinions or
factually inaccurate statements.”); Mujahid v.
Sumner, 807 F.Supp. 1505, 1510-1511 (D.
Haw. 1992) (applying Turner, prison
regulations
permitting
prisoner
correspondence with member of news media
only if prisoner had friendship prior to
commitment unconstitutional).

decision to disband a prisoners’ lifers’
organization on grounds that its leaders were
exacerbating tensions within the facility. 770
F. Supp. 1030, 1036 (W. D. Pa. 1991); see
also, Hendrix v. Evans, 715 F. Supp. 897 (N.
D. Ind. 1989) (prison had a legitimate interest
in security in refusing to fund lobbying efforts
and prohibiting distribution of leaflets by a
prisoner organization). In conclusion,
although prisoner organizations like Jaycees
and lifers’ organizations retain some First
Amendment associational rights under
Turner and Jones those rights may be
restricted by prison regulations reasonably
related to legitimate penological objectives
such as prison security and safety. Finally, it
is well-settled that prisoners do not have any
First Amendment expressive associational
rights to circulate petitions protesting prison
conditions. See Wolfel v. Morris, 972 F.2d
712, 716 (6th Cir. 1992) (“The right to
circulate a petition in prison is not a protected
liberty interest.”); Edwards v. White, 501
F.Supp. 8, 12 (M. D. Pa. 1979) (“a regulation
prohibiting circulation of petitions among
inmates is a reasonable response to a
reasonable fear”), affirmed, 633 F.2d 209
(3d. Cir. 1980).

In terms of face-to-face interviews
with journalists, however, the Supreme Court
has interpreted the First Amendment much
more narrowly. In Pell v. Procunier, the Court
upheld a California regulation prohibiting
face-to-face interviews of particular prisoners
by the media. 417 U.S. 817, 827-828 (1974).
Prison officials implemented the restriction in
the wake of a 1971 escape attempt in which
three state members and two prisoners were
killed. Id. at 832. Prison officials contended
that press interviews with prisoners who
espoused a philosophy of noncooperation
with prison rules encouraged others to follow
suit, thereby undermining prison security. Id.
at 831-832. The Pell court sustained the
regulation based upon the articulated
security concerns, and in light that it
operated in a neutral fashion and alternative
means of communicating with the media (e.
g. mail) were open to prisoners. Id. at 824.
See also: Houchins v. KQED, Inc., 438 U.S.
1, 5 n.2 (1978) (upholding denial of media
requests for special inspection of prison and
interviews with inmates, noting that inmates
“retain certain fundamental rights of privacy”
and “are not like animals in a zoo to be
filmed and photographed at will by the public
or by media reporters”); Saxbe v.
Washington Post Co., 94 S. Ct. 2811 (1974)
(prison regulation prohibiting face-to-face
interviews by newsmen of individual
prisoners did not violate First Amendment).

3. Access to Press
As for access to the press, it is
important for prisoners to maintain ties with
journalists for the purpose of educating the
public about prison conditions and criminal
justice issues. The degree of constitutional
protection extended to prisoner access to the
press, however, varies according to the
means of communication.
There is no question that prisoners
retain significant First Amendment rights to
communicate with the media by mail. While
there may be a dispute between the lower
courts as to whether mail to and from
journalists is privileged (entitled to be opened
only in the presence of the prisoner), there is
no question that prison officials cannot
censor or withhold such mail absent a
legitimate governmental interest. See
Procunier v. Martinez, 416 U.S. 396, 413
(1974) (“Prison officials may not censor

In light of Pell and it progeny,
prisoners have no constitutional remedies
when denied press interviews as long as
alternative means of communication remain
open (such as mail and telephone) and the
restriction operates in a neutral fashion. See
Johnson v. Stephan, 6 F.3d. 691, 692 (10th
Cir. 1993) (same).
32

problem than state officials concede. See
Trobaugh v. Hall, 176 F.3d 1087 (8th Cir.
1999) (prison officials liable for confining
prisoner in isolation cell for filing grievances);
Goff v. Burton, 91 F.3d 1188 (8th Cir. 1996)
(prison officials liable for retaliatory prison
transfer of prisoner who brought civil rights
action claiming overcrowding conditions);
Gomez v. Vernon, 255 F.3d 1118 (9th Cir.
2001) (finding that Idaho Department of
Corrections had policy or custom of
retaliating against inmate law clerks for
providing legal assistance to prisoners,
including prison transfers and misconduct
reports). Even prison staff has repeatedly
found themselves passed over for promotion
and subject to other retaliatory sanctions for
speaking out publicly regarding inmate
abuse. See Allen v. Iranon, 283 F.3d 1070
(9th Cir. 2002) (prison physician denied job
advancement and barred access to prison for
reporting guard assault on prisoner).

If restrictions on face-to-face
interviews do not operate in a neutral
fashion, prisoners’ First Amendment rights
are violated. For example, in Main Road v.
Aytch, the Third Circuit held that the
Superintendant of the Philadelphia Prison
System unconstitutionally denied press
interviews with prisoners for the purpose of
averting public criticism of the public
defender and probation officers. 522 F. 2d
1080, 1087-1088 (3d Cir. 1975). The court
distinguished Pell on the basis that the ban
of media contacts was not applied in a
neutral fashion without regard to the content
of the expression. Id. at 1088. “Even if the
prisoners held pending trial have no
constitutional right to meet with reporters, the
First Amendment precludes (prison officials)
from regulating, through the grant or denial of
permission for prisoners to talk with
reporters, the content of speech which
reaches the news media, unless the
restriction bears a substantial relationship to
a significant governmental interest.” Id. at
1086-1087.

The controlling Third Circuit decision
in this area is Rauser v. Horn. 241 F.3d 330
(3d Cir. 2001). In Rauser, a prisoner objected
on religious grounds to attending a drug and
alcohol treatment program which required
“participants to accept God as a treatment for
their addictions.” Id. at 332. As a result of his
religious objections, Rauser alleged that he
was transferred to another prison, deprived
of a higher paying prison job, and denied a
favorable parole recommendation. Id. The
lower court agreed with Rauser that the
religious program violated his constitutional
rights under the Establishment Clause of the
First Amendment. Id. However, the district
judge dismissed the retaliatory claim, holding
that Rauser had no federal constitutional
right to parole, prison wages, or a specific
place of confinement. Id.

D. Retaliatory Conduct
Although state officials vehemently
deny it, prisoners who speak out against
prison conditions through media contacts,
civil rights lawsuits, or internal grievances are
often subject to retaliatory conduct. This can
range from cell searches and denial of prison
services to matters of a more serious nature,
including misconduct reports, prison
transfers,
and
parole
rejection
recommendations. In Abu-Jamal v. Price, the
Third Circuit found that SCI-Greene officials’
opening, reading and copying of confidential
attorney-client mail of a former journalist
mounting public pressure to do something
about his writings was a constitutional
violation. 154 F.3d 128, 134 (3d Cir. 1998).
In Castle v. Clymer, the district court held
that SCI-Dallas officials were liable for the
retaliatory prison transfer of a prisoner who
made statements about prison conditions to
the media. 15 F. Supp. 2d 640, 666 (E. D.
Pa. 1998). Other federal courts have found
similar constitutional violations, suggesting
that retaliatory conduct is a far greater

The Third Circuit reversed, holding
that “the relevant question is not whether
Rauser had a protected liberty interest in the
privileges he was denied, but whether he
was denied those privileges in retaliation for
exercising constitutional rights.” Id. at 333.
See also, Allah v. Sieverling, 229 F.3d 220,
224-225 (3d Cir. 2000) (governing actions
which standing alone do not violate the
33

Constitution,
may
nonetheless
be
constitutional torts if motivated in substantial
part by a desire to punish an individual for
exercise of a constitutional right). Having
established that, a prisoner litigating a
retaliation claim need not prove that he had
an independent liberty interest in the
privileges he was denied. Id. Rauser sets
forth the essential elements of a retaliatory
claim:

adverse action against Rauser “absent the
protected conduct for reasons reasonably
related to a legitimate penological interest,”
he could prevail on his retaliatory claim. Id.
1. Protected Conduct
The first prong of a retaliatory claim
is to establish that the “conduct which led to
the alleged retaliation was constitutionally
protected.” Id. at 333. Absent proof that a
prisoner was engaged in constitutionally
protected activity, there is no constitutional
violation.

1. As a threshold matter, a prisoner
must first prove that the conduct which led to
the alleged retaliation was constitutionally
protected;

In Rauser, the Third Circuit held that
the refusal to participate in a religious
program was protected activity under the
Establishment Clause of the First
Amendment. Id. In Allah, the Third Circuit
held that filing civil rights lawsuits against
prison officials was protected activity under
the constitutional right of access to the
courts. 229 F.3d at 224. And in Bendy v.
Ocean County Jail, the Third Circuit
suggested that filing prison grievances was
“arguably” conduct protected by the First
Amendment. 341 Fed. Appx. 799, 802 (3d
Cir. 2009).

2. Secondly, a prisoner must show
that he suffered some “adverse action” at the
hands of prison officials;
3. Thirdly, the prisoners must
establish a causal connection between the
first two elements by proving that his
constitutionally protected conduct was “a
substantial or motivating factor” in the
adverse action taken against him;
4, Finally, if the prisoner proves that
his constitutionally protected conduct was a
substantial or motivating factor in the
adverse action taken against him, the burden
then shifts to prison officials to prove that
they would have taken the same adverse
action even in the absence of the protected
activity.

Whether of not a prisoner’s speech
or conduct is constitutionally protected is a
question of law. In considering this matter,
one should bear in mind that not all prisoner
speech or conduct is constitutionally
protected. See Wilson v. Unknown Bedgeon,
248 Fed. Appx. 348 (3d Cir. 2007) (argument
over cellblock television program is not
protected speech); Corliss v. Varner, 247
Fed. Appx. 353 (3d Cir. 2007) (inmate
abusive language in request slip form not
constitutionally protected). Prison officials are
allowed to enforce regulations restricting
prisoners’ First Amendment rights as long as
they are reasonably related to legitimate
penological interests. See Turner, 107 S.Ct.
at 2261. Consequently, prisoners should not
file retaliatory claims absent case law
verifying that the speech or conduct in
question is constitutionally protected.

Rauser, 241 F.3d at 333.
Applying these standards, the Third
Circuit held that Rauser had adequately
stated a retaliatory claim and remanded the
matter back to the lower court. First, it was
undisputed that Rauser’s refusal to
participate in the religious program was
protected by the First Amendment. Id.
Second, Rauser presented evidence that he
suffered adverse action when he was denied
parole, transferred to a distant prison, and
given a lower-paying job. Id. Finally, Rauser
presented evidence that his objection to the
religious program was a motivating factor in
the adverse action taken against him. Id.
Thus, unless prison officials prove on
remand that they would have taken the same

2. Adverse Actions

34

A prisoner alleging retaliation must
prove that he or she suffered some “adverse
action” at the hands of prison officials.
Rauser, 241 F.3d at 333. Whether or not
particular state action is sufficiently “adverse”
depends on whether it is one that would
“deter a person of ordinary firmness from
exercising his First Amendment rights.”
Suppan v. Dadonna, 203 F.3d 228, 235 (3d
Cir. 2000).

elements, this is extremely difficult to prove
because there usually is no “smoking gun”
evidence of retaliation; rather, the fact finder
(whether judge or jury) must make difficult
credibility judgments regarding the reasons
behind prison officials’ actions.
For example, in Lindsay v. Chesney,
a prisoner alleged he was confined in
administrative custody and transferred to
another prison for filing a religious
accommodation request. 179 Fed. Appx.
867, 868 (3d Cir. 2006). The court agreed
that filing the request was protected by the
First Amendment and the prison transfer was
adverse action. Id. at 869. The more difficult
question, however, was determining whether
the prison transfer stemmed from filing the
request—as Lindsay contended—or resulted
from a violation of prison rules—as prison
officials argued. Id. In this case, the Third
Circuit concluded that Lindsay failed to prove
a causal connection between filing his
request and the subsequent transfers. Id. “To
the contrary, the defendants presented
evidence that Lindsay was punished for
engaging in unauthorized group activity.” Id.

In Rauser, the Third Circuit held that
the denial of parole, transfer to a distant
prison and denial of a higher-paying prison
job was sufficiently adverse to deter a
prisoner from exercising his constitutional
rights. 241 F.3d at 333. In Allah, the Third
Circuit
held
that
confinement
in
administrative segregation—with resulting
loss of privileges—was sufficiently adverse
action to deter a prisoner from exercising his
constitutional rights. See also Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003)
(several months in disciplinary confinement
sufficiently adverse); Montgomery v. Ray,
145 Fed. Appx. 738, 741 (3d cir. 2005) (loss
of telephone privileges for 365 days
sufficiently adverse). On the other hand, in
Burgos v. Canino, the Third Circuit agreed
that urinalysis testing along with various
threats was insufficient to establish adverse
action. 358 Fed. Appx. 302, 306-307 (3d Cir.
2009) (“threats alone do not constitute
retaliation”). And in Brightwell v. Lehman, the
Third Circuit concluded that the filing of a
misconduct report against a prisoner—which
was subsequently dismissed—does not rise
to the level of adverse action. 637 F.3d 187,
194 (3d Cir. 2011).

Likewise, in Fortune v. Hamberger,
an inmate alleged he was issued misconduct
reports and transferred to another prison in
retaliation for filing grievances. 379 Fed.
Appx. 116, 120 (3d Cir. 2010). The Third
Circuit dismissed the claim, finding that the
misconduct reports stemmed from violations
of prison rules and the transfer was due to
poor adjustment at the prison. Id. at 122. The
court concluded that Fortune failed to
establish a “causal nexus” between the
grievances and the adverse action.

3. Causal Connection

Since there typically is no direct
evidence or admission of a retaliatory
purpose, prisoners must establish a causal
connection between their constitutionally
protected speech and adverse state action
through circumstantial evidence. In Farrell v.
Planters Lifesavers Co., the Third Circuit
identified several factors relevant to a
retaliatory inquiry. 206 F.3d 271 (3d Cir.
2000). First, evidence of “temporal proximity”
between the exercise of the protected

The third element of a retaliatory
claim requires the prisoner to link the first
element (constitutionally protected conduct)
to the second (adverse state action) by
proving his constitutionally protected conduct
was a “substantial or motivating” factor in the
state’s decision to take adverse action.
Rauser, 241 F.3d at 333. Unlike the first and
second elements, this is a question of fact,
not of law, And unlike the first and second
35

charges in response to grievances he filed
about housing. 335 Fed. Appx. 158, 160 (3d
Cir. 2009). The Third Circuit examined the
grievances, the misconduct reports, and
Tousaint’s written statements and agreed
that prison officials “would have issued the
misconduct reports anyway, for legitimate
penological reasons. Id. at 161.

speech and the adverse action suggests
retaliatory motivation. Id. at 280. Second,
evidence of “intervening antagonism”
between exercise of the protected speech
and the adverse action suggest retaliatory
motivation. Id. Third, evidence of
“inconsistent reasons” for the adverse action
would likewise point toward a finding of
retaliatory motivation. Id. at 281. Finally, the
Farrell court made clear that while these
three factors are relevant in determining
whether a causal link exists, “we have been
willing to explore the record in search of
evidence, and our case law has set forth no
limits on what we have been willing to
consider.” Id.

In Prevet v. Barone, an inmate
alleged the DOC officials refused to provide
a positive parole recommendation in
retaliation for filing grievances. 428 Fed.
Appx. 218, 219 (3d Cir. 2011). The claim was
dismissed. Even assuming that the failure to
provide a favorable parole recommendation
was due to filing grievances, the Third Circuit
agreed that in light of Prevet’s prison record,
prison officials “would have withheld a parole
recommendation absent any retaliatory
motive.” Id. at 220.

In every case of retaliation, the
plaintiff must establish: (a) that his or her
speech or conduct was constitutionally
protected; (b) that the state took sufficiently
adverse action; and (c) that his or her
constitutionally protected speech or conduct
was a “substantial or motivating” factor in the
state’s adverse action. Rauser, at 333.
Prisoners proving these three elements have
established a presumption of state
retaliation. As this point, the burden then
shifts to prison officials to rebut the
presumption of retaliation by producing
evidence that, absent the prisoner’s
constitutionally protected speech, they had
legitimate
non-retaliatory
penological
reasons for taking the adverse action. Id.

In Freeman v. Department of
Corrections, an inmate alleged that a prison
guard searched his cell, confiscated UCC
material and confined him in the RHU in
retaliation for filing a grievance. 447 Fed.
Appx. 385, 386 (3d Cir. 2011). The claim was
dismissed. Id. at 389. The Third Circuit noted
that Freeman admitted violating prison rules
by possessing the UCC material. Id. at 388.
Consequently even assuming Freeman had
a prima facia case of retaliation, it is clear
“that Freeman would have been disciplined
for his offense notwithstanding his
grievances.” Id.

In Carter v. McGrady, a prisoner
alleged that he was subjected to cell
searches and disciplinary action in retaliation
for jailhouse lawyering. 292 F.3d 152, 153
(3d Cir. 2002). Prison officials argued that
Carter’s cell was searched and misconduct
charges filed-not for helping other inmates-but because of contraband found in his cell.
Id. at 158. “Even if prison officials were
motivated by animus to jailhouse lawyers,
Carter’s offenses, such as receiving stolen
property, were so clear and overt that we
cannot say the disciplinary action taken
against Carter was retaliatory.” Id. at 159.

In Sims v. Vaughn, a prisoner
alleged that he was transferred to another
prison as retaliation for a prior lawsuit, 189
Fed. Appx. 139, 141 (3d Cir. 2006). Prison
officials contended, and the Third Circuit
agreed, that Sims would have been
transferred despite the lawsuit, due to
misconduct reports filed against him for
violating prison rules. Id. at 141.
Keep in mind that misconduct
reports, disciplinary action, and prison
transfers will not be deemed retaliatory if
they were in fact imposed for actual
violations of prison rules. See Young v.
Beard, 227 Fed. Appx. 138, 140 (3d Cir.

In Toussaint v. Good, a prisoner
alleged he was subjected to false disciplinary
36

2007) (rejecting retaliation “because the
record shows that each disciplinary charge
had an evidentiary basis, and Young has not
cited to any evidence undermining the
Commonwealth’s claim that the challenged
conduct was motivated by legitimate
concerns”).

III. FOURTH AMENDMENT ISSUES
The purpose of the Fourth
Amendment’s
proscription
against
unreasonable searches and seizures “is to
safeguard the privacy and security of
individuals against arbitrary invasions by
government officials.” Camara v. Municipal
Court, 87 S.Ct. 1727, 1730 (1967).

Without question, many judges give
official versions of events greater credence
than inmate versions. Although disciplinary
charges may indeed be feigned or trumped
up, the critical question in court is not what a
prisoner believes but what he or she can
prove. Prisoners speaking out against prison
conditions-via grievances, media contacts, or
litigation- should maintain strict obedience to
prison rules and avoidance of self-defeating
misconduct behavior. To do otherwise
provides state officials and their counsel with
evidence that will defeat or undermine any
claim of unconstitutional retaliation.

Whether or not a particular search
violates the Fourth Amendment requires a
two-step analysis. First, a person must have
standing to contest the search by
demonstrating that he or she has a legitimate
expectation of privacy in the place, person or
object searched. See Rakas v. Illinois, 439
U.S. 128, 143 (1978). To satisfy this
threshold requirement, a person must show
that his subjective expectation of privacy is
one that society is prepared to accept as
objectively reasonable. See Minnesota v.
Olson, 495 U.S. 91, 96-97 (1990).
If the court finds that a person has a
reasonable expectation of privacy, only then
does it proceed to the second part of the
analysis, namely, determining whether the
search was reasonable by balancing “the
nature and quality of the intrusion on the
individual’s Fourth Amendment interests
against the importance of the governmental
interests alleged to justify the intrusion.”
United States v. Place, 103 S.Ct. 2637, 703
(1983).
In general, the extent of prisoners’
protection under the Fourth Amendment is
exceedingly limited. Most courts have
narrowly construed prisoners’ privacy rights
either by rejecting recognition of a
reasonable expectation of privacy or by
concluding that governmental interests in
prison safety and security justify the privacy
intrusion.
A. Cell Searches
In Hudson v. Palmer, the Supreme
Court concluded that prisoners have no
legitimate expectation of privacy in their cells
and therefore are not entitled to Fourth
Amendment protection. 468 U.S. 517, 525526 (1984). The Court reasoned that our
37

“society is not prepared to recognize as
legitimate any substantive expectation that a
prisoner might have in his prison cell”
because such recognition “is fundamentally
incompatible with the close and continual
surveillance of inmates and the cells required
to ensure institutional security and internal
order.” Id. at 526.

electric razor not Due Process violation
under Hudson where meaningful postdeprivation remedy was available in form of
prison grievance process).
B. Body Searches
The key precedent in this area is Bell
v. Wolfish, where inmates brought suit
challenging strip searches conducts after
contact visits. 441 U.S. 520, 523 (1979). As
to whether prisoners retain a reasonable
expectation of privacy in their bodies against
such searches, the Wolfish majority simply
states that it was “assuming” that inmates do
“retain some Fourth Amendment rights upon
commitment to a corrections facility.” Id. at
558. See also, Russell v. City of
Philadelphia, 428 Fed. Appx. 174, 178 (3d
Cir. 2011) (“The District Court also correctly
noted that inmates maintain a reasonable
expectation of privacy in their bodies, and an
unreasonable search of the body may
therefore be unconstitutional.”).

In light of Hudson, prisoners have
absolutely no Fourth Amendment protection
from unreasonable searches of their prison
cells. Prison officials require neither a search
warrant nor probable cause to enter and
search a prisoner’s cell. See Bell v. Wolfish,
441 U.S. 520, 557 (1979) (“even the most
zealous advocate of prisoners’ rights would
not suggest that a warrant is required to
conduct such a search”). Nor do prisoners
possess a constitutional right to be present to
observe cell searches. See Block v.
Rutherford, 468 U.S. 576, 590 (1984) (county
jail’s practice of conducting random
“shakedown” searches of cells while
detainees were away at meals, recreation
and other activities upheld); Bell 441 U.S. at
557
(upholding
regulation
requiring
unannounced searches of prisoner living
areas when inmates were cleared of unit
because it “simply facilitates the safe and
effective performance of the search”).

Proceeding with its analysis, the
Wolfish Court notes that the Fourth
Amendment “prohibits only unreasonable
searches and under the circumstances, we
do not believe that these searches are
unreasonable.” 441 U.S. at 558. Whether or
not a particular search is reasonable
“requires a balancing of the need for the
particular search against the invasion of
personal rights that the search entails.” Id.
Among the factors the courts must consider
are (1) the scope of the particular intrusion;
(2) the manner in which it is conducted; (3)
the justification for initiating it; and (4) the
place in which it is conducted. Id. at 558.

In light of Hudson, the lower courts
have routinely dismissed prison claims that
cell searches violate the Fourth Amendment.
See Schlager v. Beard, 398 Fed. Appx. 699,
702 (3d Cir. 2010); McNeil-El v. Diguglielmo,
271 Fed. Appx. 283, 286 (3d Cir. 2000);
Gilmore v. Jeffes, 675 F.Supp. 219, 221
(M.D. Pa. 1987). The only viable remedy to
redress the intentional or negligent
destruction of inmate property is to utilize
state remedies such as internal grievance
systems. See Hudson, 468U.S. at 533 (state
tort remedies may redress property
destruction); Parratt v. Taylor, 451 U.S. 527,
538 (1981) (same); Tindell v. Beard, 351
Fed. Appx. 591. 594 (3d Cir. 2009)
(confiscation of legal property not violation of
Due Process if adequate post-deprivation
remedies exist); Barr v. Knauer, 321 Fed.
Appx. 101, 103 (3d Cir. 2009) (seizure of

Applying these factors to the case
before it, the Wolfish majority concluded that
the body cavity searches, in which inmates
were required to expose their body cavities
for visual inspection as part of a strip search,
did not violate the reasonableness standard
of the Fourth Amendment in light of the
significant and legitimate security interests of
the institution. Id. at 558-561.
In light of Wolfish, most courts have
given their stamp of approval on prison body
searches. They may be conducted absent
38

consent, probable cause and a search
warrant. However, this does not mean prison
officials can do as they please in this area.
Even an otherwise justifiable search of
limited intrusiveness may be unconstitutional
if conducted in a particularly offensive
manner or for reasons totally devoid of
penological interests. Id.

differently from men subject to comparable
touching by women.” Id. at 1526. The Jordan
majority also concluded that this infliction of
pain on female prisoners was unnecessary
because the security of the facility was not
dependent upon the cross-gender searches.
Id. at 1526-1527.
The Supreme Court has noted that a
pat-down “search of the outer clothes for
weapons constitutes a severe, though brief,
intrusion upon cherished personal security,
and it must surely be an annoying,
frightening, and perhaps humiliating
experience.” Terry v. Ohio, 392 U.S. 1, 24
(1968). However, when weighed against
institutional interests in controlling the
possession and movement of contraband,
and in consideration that prisoners enjoy only
a diminished expectation of privacy, if at all,
the courts have overwhelmingly upheld patdown searches. Absent abuse, pat-down
searches may be conducted freely by prison
guards without warrants, probable cause, or
even individualized suspicion. The exceptionpat-down searches of female prisoners by
male guards- is based upon a single Ninth
Circuit decision which has neither been
reviewed nor endorsed by the Supreme
Court.

C. Pat-Down Searches
Clothed body searches—in which a
prison guard runs his hands thoroughly over
a prisoner’s clothed body—have largely been
upheld by the courts. Given the limited
intrusiveness on bodily privacy that a “patdown” or “frisk” search entails, most courts
have sustained such searched under the
Fourth Amendment in light of the state’s
interest in deterring the possession and
movement of contraband. For example, in
Grummett v. Rushen, a San Quentin prisoner
brought suit on Fourth Amendment grounds
challenging pat-down searches by female
guards. 779 F.2d 491, 495 (9th Cir. 1985).
Citing Wolfish, the Ninth Circuit held that
“pat-down searches conducted by the female
guards are not so offensive as to be
unreasonable under the Fourth Amendment.”
Id. at 496. The Grummett court noted that the
searches were justified by security needs
and
were
performed
briefly
and
professionally while the prisoners were fully
clothed. Id. at 495. See also, Timm v.
Gunter, 917 F.2d 1093 (8th Cir. 1990); Smith
v. Fairman, 678 F.2d 52 (7th Cir. 1982).

D. Strip Searches
Pat-down or frisk-type searches,
though annoying and degrading, do not
require the prisoner to remove his or her
clothing. Strip searches, on the other hand,
require inspection of the prisoner’s naked
body, including the genital and anal areas.
These searches are far more intrusive of
prisoner privacy than pat-down searches,
and when wielded by abusive guards, can
cause severe anguish. There are two types
of strip searches: (1) the more common
variety requires visual inspection only of
body cavities; (2) the digital body cavity
search, on the other hand, is quite rare but
involves internal probing of body cavities. We
review the visual brand first.

The only significant successful
challenge to pat-down searches was decided
on Eighth Amendment grounds. In Jordan v.
Gardner, the Ninth Circuit held that random
pat-down searches of female prisoners by
male guards, including intrusive touching of
breasts and genital area, was an
unnecessary and wanton infliction of pain in
violation of the Eighth Amendment. 986 F.2d
1521, 1526-15267 (9th Cir. 1983). The
Jordan majority distinguished its prior
decision in Grummett (upholding pat-down
searches of male prisoners by female
guards) on the basis that “women experience
unwanted intimate touching by men

Once again, the key precedent is
Bell v. Wolfish, in which the Supreme Court
upheld strip searches after every contact visit
39

with a person outside the institution. 441 U.S.
520, 558 (1979). “The Fourth Amendment
prohibits only unreasonable searches and
under the circumstances, we do not believe
that these searches are unreasonable. Id.
(citation omitted). According to the Wolfish
majority, the test of reasonableness “is not
capable of precise definition” and “requires a
balancing of the need for the particular
search against the invasion of personal rights
that the search entails. Id. at 559 Courts
must consider the scope of the particular
intrusion, the manner in which it is
conducted, the justification for initiating it,
and the place in which it is conducted.” Id.

after being required to manipulate his
genitals, the Third Circuit upheld the search
under Wolfish. Id. at 170.
In
Peckham
v.
Wisconsin
Department of Corrections, the Seventh
Circuit upheld a prison policy requiring strip
searches upon arrival at the facility, upon
completion of a contact visit, upon return to
the facility after an outside medical
appointment or court proceeding, and upon
placement in the segregation unit. 141 F.3d
694, 695 (7th Cir. 1998). Because the
searches were conducted for legitimate
security reasons and not for harassment, the
Seventh Circuit concluded that the searches
were reasonable. Id. at 697.

As a result of Wolfish, there is no
simple bright line test separating
“reasonable” from “unreasonable” if based
upon legitimate security concerns but
conducted in an abusive manner. Likewise, a
strip search would be “unreasonable” if
conducted in a professional and courteous
manner in a private area but based upon
malicious reasons. Although all four Wolfish
factors are relevant to the reasonableness
inquiry, clearly whether or not the strip
search was conducted pursuant to valid
security interest is paramount. Indeed, the
lower federal courts have allowed so many
strip searches to fall within the Wolfish zone
of reasonableness that there is little or no
Fourth Amendment protection remaining.

In Franklin v. Lockart, the Eighth
Circuit upheld an Arkansas policy requiring
prisoners confined in a disciplinary unit to be
“strip searched twice daily” regardless of
“whether they have left their cells or had
unsupervised contact with anyone.” 883 F.2d
654, 654-655 (8th Cir. 1989). Although
acknowledging that the intrusiveness was
significant, the court nonetheless upheld the
searches, noting the history of contraband in
the unit, including weapons. Id. at 656.
In Williams v. Price, the district court
upheld a Pennsylvania policy requiring strip
searches of all death-row inmates before and
after non-contact attorney visits. 25
F.Supp.2d 605, 615 (W.D. Pa. 1997). The
court noted that although the searches were
offensive, they were conducted in the privacy
of the prisoner’s cell and were rationally
connected to the prison’s security interest in
controlling contraband. Id.

In Millhouse v. Arbasak, a prisoner
alleged he was strip searched every time he
entered or exited the segregation unit 373
Fed. Appx. 135, 137 (3d Cir. 2010). He also
contended that one search was abusive
when a guard focused on his chest and
genital areas. Id. The Third Circuit upheld
prison officials, noting that the searches,
“even if embarrassing and humiliating, do not
violate the Constitution.” Id.

Of course, an otherwise legitimate
strip search may still violate the Fourth
Amendment if conducted in a particularly
offensive manner. Thus, in Goff v. Nix, the
Eighth Circuit upheld as reasonable strip
searches conducted before and after contact
visits, before hospital appearances, and
before and after movement outside
segregation units. 803 F.2d 358, 366 (8th
Cir. 1986). The court, however, did enjoin
prison guards from engaging in verbal
harassment during the searches. “It is

In Brown v. Blaine, a prisoner
alleged he was strip searched in an
“unsanitary, demeaning, humiliating,” manner
on three separate occasions upon entry into
the RHU. 185 Fed. Appx. 166, 169-170 (3d
Cir. 2006). Despite allegations that he was
required to “sweep” his mouth with his fingers
40

demeaning and bears no relationship to the
prison’s legitimate security needs, and we
affirm the district court in this regard.” Id. at
365. n.9. See also, Watson v. Secretary
Department of Corrections, 436 Fed. Appx.
131 (3d Cir. 2001) (remanding case back to
lower court for further proceedings where
inmate alleged strip search was conducted in
sexually abusive manner).

reasonable manner and without abuse.
Wolfish, 441 U.S. at 584. The lower courts
have sustained strip searches before and
after contact visits; before and after infirmary
appointments; before and after library visits;
before and after court appearances; and
before and after movement of segregation
prisoners from their cells. It would seem,
absent evidence of specific physical abuse,
there is not a single strip search that the
courts will not sustain. Thus, until the
Supreme Court heightens the standard for
conducting these searches, the lower courts
will continue to summarily affirm them.

Whether or not strip searches of
prisoners by opposite-sex guards are
unreasonable (even if conducted for
legitimate security reasons) under the Fourth
Amendment is not settled. Certainly, an
inadvertent or occasional sighting of a naked
male prisoner by a female guard would not
violate the Fourth Amendment. See
Michenfelder v. Sumner, 860 F.2d 328, 338
(9th Cir. 1988). Nor would there occur a
Fourth Amendment violation during an
emergency such as a prison riot or
disturbance. See Letcher v. Turner, 968 F.2d
508, 510 (5th Cir. 1992) (presence of female
guards during strip search of male prisoner
following food-throwing incident involving 18
prisoners upheld); Grummtee v. Rushen, 779
F.2d 491, 496 (9th Cir. 1985) (holding that in
emergency situations, observations of strip
searches of male inmates by female guards
justified by prison security).

That prospect was drastically
diminished in Florence v. Board of Chosen
Freeholders, where the Supreme Court
upheld the strip search of an inmate confined
in a county jail after his arrest for unpaid
fees. 132 S.Ct. 1510, 1514 (2012). Citing
Wolfish, the Court concluded that
“reasonable suspicion” of contraband
possession was not required to strip search
detainees arrested and confined for minor
offenses. Id. at 1520-1521. “Correctional
officials have a legitimate interest, indeed a
responsibility, to ensure that jails are not
made less secure by reason of what new
detainees may carry in on their bodies. Id. at
1513. Because the plaintiff in Florence was
confined for a week in the county facility and
intermingled with other inmates, the Court
agreed that the state’s interest in prison
security outweighed any privacy concerns.
However, the Court reserved for future
determination whether a strip search or
invasive touching of an arrestee detained for
a short time pending bail release (and
completely isolated from contact with other
inmates) violated the Fourth Amendment. Id.
at 1523.

Routine
non-emergency
strip
searches by opposite-sex guards, however,
are likely unreasonable under the Fourth
Amendment, although case law is admittedly
scant. For example, in Byrd v. Maricopa
County Sheriff’s Department, the Ninth
Circuit declared that a strip search of a male
pretrial detainee by a female cadet was
unreasonable under the Fourth Amendment.
629 F.3d 1135, 1147 (9th Cir. 2011). In this
case, the cross-gender search was
conducted under non-emergency conditions-with male officers standing idly by--and
included touching of the genital area. Id. at
1137.

E. Digital Body Cavity Searches
Finally, we turn to the highly intrusive
digital body cavity search—which involves
some degree of touching or probing of body
cavities by prison officials. Once again,
whether or not such intrusions upon bodily
privacy violate the Fourth Amendment
requires examination of “the scope of the

As demonstrated above, most lower
courts have upheld strip searches of inmates
as long as they are justified by legitimate
security interests and are conducted in a
41

particular intrusion, the manner in which it is
conducted, and the justification for initiating it
and the place in which it is conducted.”
Wolfish, 441 U.S. at 559.

officials had reasonable cause to conduct the
searched because “the manner in which
Vaughan alleges the searches were
conducted violated clearly established
standards.” Id. at 740. Prisoners were forced
to lie on an unsanitary table in an open
hallway visible to other inmates and prison
staff who made jokes and insulting
comments. Id. at 741. Medical assistants
untrained in involuntary body cavity searches
conducted the probes, often without washing
their hands between searches. Id. Medical
records were not inspected to ensure that
individual prisoners did not have medical
conditions that made the searches
dangerous. Id. The Ninth Circuit held that
“body cavity searches of inmates must be
conducted in a reasonable manner, and that
issues of privacy, hygiene and the training of
those conducting the searches are relevant
to determining whether the manner of search
Under
the
was
reasonable.”
Id.
circumstances of the case, the Ninth Circuit
ruled that “no reasonable officer could
believe that such searches were conducted
in a reasonable manner.” Id.

In Bruscino v. Carlson, the Seventh
Circuit upheld a policy requiring all prisoners
entering Marion’s infamous Control Unit be
given a probing rectal exam to uncover
contraband. 854 F.2d 162, 164 (7th Cir.
1988). Given “the history of violence at the
prison and the incorrigible, undeterrable
character of the inmates,” the court held that
the rectal searches were reasonable security
measures to ensure the security and safety
needs of the prison. Id. at 166. Of course,
Bruscino was decided based upon an
extraordinary factual background, including
the numerous murders of inmates and two
correctional officers. Id. at 165; see also:
Cann v. Hayman, 346 Fed. Appx. 822, 824825 (3d Cir. 2009) (where inmate failed metal
detector check and refused to “squat and
cough” during strip search, placement in
“Body Orifice Security Scanner” chair did not
violate the Fourth Amendment).
While digital body cavity searches
must be conducted for legitimate security
concerns, whether prison officials must have
“reasonable suspicion” that the prisoner
searches is secreting contraband is
unsettled. Most lower courts have concluded
that reasonable suspicion is not required.
See Hemphill v. Kincheloe, 987 F.2d 589,
592 (9th Cir. 1993). The recent decision in
Florence (upholding the strip search of an
arrestee in a county jail) reveals a majority of
justices reserving that issue for another case.

In Bonitz v. Fair, Massachusetts
officials, alarmed over allegations of drugs,
prostitution, and gambling at a medium
security prison for women, summoned two
hundred state police officers to search the
facility. 804 F.2d 164, 169 (1st Cir. 1986).
While male police officers searched the
cellblocks, female officers conducted body
cavity searches of the prisoners, including
putting their fingers in the plaintiffs’ noses,
mouths, anuses, and vaginas. Id. Each
female officer was provided only one set of
gloves “and thus could not have changed
their gloves during the search procedure.” Id.
The body cavity probes were visible to male
police officers “who peered through open
doors or openings in closed doors.” Id. The
prisoner-plaintiffs did not challenge the
state’s security justifications for the search,
but rather challenged the manner in which
the searches were conducted. Id. at 173
n.10. Noting that Wolfish prohibits conducting
body cavity searches in an abusive fashion,
the First Circuit held that the intrusions

Even if digital body cavity searches
conducted for legitimate security reasons but
absent
individualized
suspicion
are
constitutional, they may nevertheless
become unconstitutional if conducted in an
unreasonable manner. At issue in Vaughan
v. Rocketts, was a series of digital rectal
cavity searches ordered to uncover
gunpowder in a maximum security unit at an
Arizona prison 859 F.2d 736, 738 (9th Cir.
1988). The Ninth Circuit concluded that it
was unnecessary to resolve whether prison
42

Since state-ordered collection and
testing of blood and urine intrudes into an
area where prisoners have legitimate
expectations of privacy, the question turns to
whether such searches are reasonable.
Keep in mind the Fourth Amendment does
not proscribe all searches; rather is
proscribes only those that are unreasonable.
See Skinner. 489 U.S. at 618.

clearly violated the Fourth Amendment. Id.
The court states “that a body cavity search of
female inmates in a non-hygienic manner
and in the presence of male officers was a
clearly established violation of the inmates’
Fourth Amendment right to be free from an
unreasonable search.” Id.
F. Blood And Urine Testing
Most correctional systems operate
DNA and drug testing programs that collect
and analyze inmate blood and urine
samples. Whether these programs are
effective in deterring illicit drug use and
solving crime is debatable. What is undebatable is that these programs operate
absent any individualized suspicion of
wrongdoing and invade concepts of
individual privacy.

Although the Supreme Court has not
reviewed an inmate drug testing program, it
has upheld suspicion-less urine testing in
high-school athletics in Vernonia School
District 47J v. Acton, 515 U.S. 646 (1995);
upheld urine testing of railroad workers in
Skinner v. Railways Labor Executives’
Association, 489 U.S. 602; and upheld urine
testing of customs officials in National
Treasury Employees Union v. Von Raab, 489
U.S. 656 (1989). In each of these decisions,
the Supreme Court concluded that important
governmental interest justified the privacy
intrusion. But see Chandler v. Miller, 520
U.S. 305, 318 (1997) (Georgia drug testing
program for public office candidates violates
Fourth Amendment where no vital
governmental interests are at stake.)

As with other Fourth Amendment
issues, we first examine whether prisoners
have any legitimate expectations of privacy
and, if yes, whether these searches are
reasonable by balancing the nature of the
intrusion against the governmental interests
put forward to justify them.
In numerous cases involving
plaintiffs outside the prison context, the
Supreme Court has made clear that
government-ordered collection and testing of
blood and urine samples does intrude upon
expectations of privacy that society has long
recognized as reasonable. See Ferguson v.
City of Charleston, 532 U.S. 67, 78 (2001)
(urine tests conducted by state hospital on
maternity patients subject to Fourth
Amendment scrutiny); Skinner v. Railway
Labor Executives’ Association, 489 U.S. 602,
617 (1989) (urine testing of railroad
personnel involved in train accidents intrudes
upon reasonable expectations of privacy);
Schmerber v. California, 384 U.S. 757, 767
(1966) (blood sample “plainly involves the
broadly conceived reach of a search and
seizure under the Forth Amendment”).
Accordingly, the Supreme Court has
consistently held that such intrusions
constitute a “search” subject to the demands
of the Fourth Amendment. See Skinner, 489
U.S. at 616.

In light of compelling state interests
in curbing illicit drug use in prison (See Block
v. Rutherford, 468 U.S. 576, 588 (1984)
(“unauthorized use of narcotics is a problem
that plagues virtually every penal and
detention center in the country”)) and
recognition that inmates possess only a
diminished expectation of privacy due to
safety needs of the penal system, it is highly
probable that the Supreme Court would
sustain inmate drug testing. See Hudson v.
Palmer, 468 U.S. 517 (1984) (no expectation
of privacy in cells); Lucero v. Gunter, 17 F.3d
1347, 1350 (10th Cir. 1994) (“random urine
collection and testing of prisoners is a
reasonable means of combating the
unauthorized use of narcotics and does not
violate the Fourth Amendment”); Forbes v.
Trigg, 976 F.2d 308, 315 (7th Cir. 1992)
(upholding prison policy of urine testing of all
prisoners every ninety days). See also
Majewski v. Fischi, 372 Fed. Appx. 300, 303304 (3d Cir. 2010) (breathalyzer test of
43

prison guard upheld where guard enjoyed
only diminished expectation of privacy due to
his position as corrections officer, test was
minimally intrusive, and test results focused
solely upon alcohol level in bloodstream).

cells given the security needs of the prison,
see Hudson v. Palmer, 468 U.S. 517, 536
(1984), and retain only a diminished
expectation of privacy in their bodies. See
Bell v. Wolfísh, 441 U.S. 520, 557 (1979).

The collection and testing of
prisoners’
blood—whether
for
law
enforcement DNA databases or for
institutional public health needs—is also
judged by balancing the intrusion on the
prisoner’s privacy against legitimate
governmental interests.

Family members who visit their loved
ones in prison, on the other hand, do not
shed constitutional protections at the
penitentiary door. Courts have held that
prison visitors enjoy a reasonable
expectation of privacy in their bodies to
warrant Fourth Amendment protection from
unreasonable searches. See Boren v.
Deland, 958 F.2d 987, 988 (10th Cir. 1992)
(wife of prisoner "had a legitimate
expectation of privacy when she entered the
prison to visit her husband"); Cochrane v.
Quattrocchi, 949 F.2d 11, 13 (1st Cir. 1991)
(prison visitors possess diminished, but still
present, expectations of privacy). At the
same time, the states have a compelling
governmental interest in preventing
contraband introduction into the facility to
maintain prison security. See Bell v. Wolfish,
441 U.S. at 546 (maintaining institutional
security and preserving internal order "are
essential goals" of corrections); Block v.
Rutherford, 468 U.S. at 586 ("Visitors can
easily conceal guns, knives, drugs or other
contraband in countless ways and pass them
to an inmate unnoticed by even the most
vigilant observers.").

In United States v. Sczubelek, the
Third Circuit upheld a federal DNA collection
program which required federal prisoners
and parolees, convicted for specific crimes,
to provide a DNA blood sample. 402 F.3d
175, 185-186 (3d Cir. 2005). The court held
that the government’s interest in the
investigation of crimes and identification of
criminals
outweighed
any
minimal
expectation of privacy for prisoners,
particularly in light of the minimal intrusion
that a blood sample requires. Id. at 184-185.
Other courts have adopted identical
reasoning.
In Dunn v. White, the Tenth Circuit
upheld a mandatory blood testing program
enacted to identify prisoners infected with the
AIDS virus. 880 F.2d 1188, 1196 (10th Cir.
1989). The Dunn court concluded that state
interests in treating those infected with the
deadly disease and preventing further
transmission outweighed any privacy
interests of prisoners. Id. Other courts have
joined Sczubelek and Dunn in upholding
blood collection and testing programs. See
Jones v. Murray, 962 F.2d 302 (4th Cir.
1992); Roe v. Marcotte, 193 F.3d 72 (2d Cir.
1999).

To reconcile these competing
interests, courts have held that pat-down or
metal detector sweeps of prison visitors are
constitutional, even in the absence of
individualized suspicion of contraband
possession. See Spear v. Sowders, 71 F.3d
626, 630 (6th Cir. 1995) ("Visitors can be
subjected to some searches such as a patdown or a metal detector sweep, merely as a
condition of visitation, absent any
suspicion."). In such cases, the security
needs of the prison outweigh or justify the
limited intrusion on personal privacy that a
pat-down search entails. See also: Allegheny
County Prison Employees Independent
Union v. County of Allegheny 124 Fed. Appx.
140 (3d Cir. 2005) (random pat-down
searches of prison employees upheld).

G. Searches Of Prison Visitors
While prisoners do not forfeit all
constitutional protections while imprisoned
for crime, the fact of confinement as well as
the legitimate goals and policies of the penal
institution limits their retained constitutional
rights. See Pell v. Procunier, 417 U.S. 817,
822 (1974). Thus, prisoners have no Fourth
Amendment expectation of privacy in their
44

contributing to suspicion or lack thereof.” See
Varrone v. Bilottí, 123 F.3d at 79.

As the intrusiveness of the search on
bodily privacy increases, however, so does
the level of constitutional scrutiny. In cases of
strip searches of prison visitors, the courts
have agreed that prison officials need not
secure a search warrant or have probable
cause. See Spear, 71 F.3d at 630 ("Those
courts that have examined the issue have
concluded that even for strip and body cavity
searches, authorities need not secure a
warrant or have probable cause. However,
the residual privacy interests of visitors in
being free from such an invasive search
require that prison authorities have at least a
reasonable suspicion that the visitor is
bearing contraband before conducting such a
search."); Varrone v. Bilotti, 123 F.3d 75, 78
(2d Cir. 1997) ("the law was clearly
established that correctional officers needed
reasonable suspicion to strip search prison
visitors without violating their constitutional
rights").

In Daugherty v. Campbell, 33 F.3d
554 (6th Cir. 1994), prison officials stripped
searched a prisoner's wife based upon two
anonymous letters indicating that she was
smuggling drugs into the prison. Id. at 555.
Prison officials also searched her vehicle. Id.
Applying the reasonable suspicion standard,
the Sixth Circuit held that prison officials'
"reliance on a wholly uncorroborated tip is,
under the facts of this case, insufficient to
constitute reasonable suspicion." Id. at 557.
"Clearly, strip searches of prison visitors
based upon bare allegations of illegal
activities, whether by anonymous informants
or a corrections officer who later denies
making such allegations, contravene the
“well-established protections of the Fourth
Amendment." Id.
In Varrone v. Bilotti, 123 F.3d 75
(2nd Cir. 1997), prison officials stripped
searched a prisoner's wife and son based
upon information received from a narcotics
officer indicating that they would be bringing
heroin into the facility. Id. at 77. None of the
searches uncovered any drugs. Id. The
Second Circuit held that the reasonable
suspicion standard was satisfied in Varrone
because the information underlying the
search "identified the smugglers by name,
stated where and when they would commit
the offense and specified the particular drug
they would attempt to smuggle.“ Id. at 80.
Moreover, prison officials were informed that
the information supplied came from a
"reliable source." Id.

In order to justify a strip search of a
prison visitor under the "reasonable
suspicion" standard, prison officials must
point to specific facts and rational inferences
from those facts which would lead to a
reasonable conclusion that the visitor is
engaged in contraband smuggling. Hunter v.
Auger, 672 F.2d 668, 674 (8th Cir. 1982).
Mere hunches or unspecified suspicions are
not sufficient. Id. Nor are uncorroborated
anonymous tips lacking any indicia of
reliability. Id. "Reasonable suspicion does not
mean evidence beyond a reasonable doubt,
or by clear and convincing evidence, or even
by a preponderance of the evidence.
Reasonable suspicion is not even equal to a
finding of probable cause. Rather,
reasonable suspicion requires only specific
objective facts upon which a prudent official,
in light of his experience, would conclude
that illicit activity might be in progress." Spear
v. Sowders, 71 F.3d at 631. In determining
whether reasonable suspicion exists to justify
a strip search of a prison visitor, the factors
that may be considered include: (1) the
nature of the tip or information; (2) the
reliability of the informant; (3) the degree of
corroboration; and (4) other factors

In Spear v. Sowders, prison officials
conducted a strip search on a prisoner's
female visitor based on an informant’s
statement that the prisoner "was receiving
drugs every time a young unrelated female
visitor visited." 71 F.3d 626, 629 (6th Cir.
l995). The informant in question had given
reliable information in the past which
included the termination of a prison guard for
engaging in a romance with a prisoner. Id.
Given the history of reliability and the
information provided, the Sixth Circuit upheld
45

the search, concluding that prison officials
had reasonable suspicion. Id. at 631.

indefinitely or waiving her constitutional rights
to be free from unreasonable search).
Finally, only those persons whose privacy is
invaded by a search have standing to object.
Thus, a prisoner does not have standing to
challenge the strip search of his girlfriend.
See Wool v. Hogan, 505 F.Supp. 928, 931
(D. Vt. 1981).

In Hunter v. Auger, three prison
visitors brought suit alleging unreasonable
strip searches when they visited their family
members. 672 F.2d 668,670-671(8th Cir.
1982). Each strip search was based on an
anonymous tip that the visitor would attempt
to smuggle drugs into the facility. Id. The
searches revealed no drugs or other
contraband. Id. Applying the reasonable
suspicion standard, the Eighth Circuit held
that the searches violated the Fourth
Amendment, noting that they were based
upon "uncorroborated anonymous tips"
without any information to evaluate the
tipster's reliability. Id. at 674; see also Romo
v. Champion, 46 F.3d 1013, 1020 (10th Cir.
1995) (prison officials had reasonable
suspicion for strip search where drug
interdiction canine alerted authorities to
presence of narcotics).

In conclusion, prison officials can
conduct pat-down searches on prison visitors
absent any 'individualized suspicion of
wrongdoing.’ The intrusion on personal
privacy that a pat-down search entails,
although intimidating, is considered
outweighed by the security needs of the
state. Consequently, unless the pat-down
search is conducted in an abusive fashion or
motivated by malicious reasons, the courts
will sustain the practice as reasonably
related to the state’s compelling security
interests.
Strip searches of prison visitors, on
the other hand, violate the Fourth
Amendment unless prison officials have
"reasonable suspicion" that the visitor in
question
is
concealing
contraband.
“Reasonable suspicion" is not satisfied by
anonymous tips absent corroborating facts.
"Reasonable suspicion" is not satisfied by
vague information from inmate informants
without any history of reliability. Given the
substantial intrusion on individual privacy that
a strip search entails, the courts will closely
examine prison officials' justifications for
such searches to determine whether it
constitutes "reasonable suspicion.”

Prison officials often raise the issue
of consent in the matter of visitor strip
searches. Typically, the issue arises when
prison officials confront and inform the visitor
that he or she must either submit to a strip
search in order to visit the prisoner or leave
the facility. If the visitor consents to the strip
search, often by signing a document, prison
officials will inevitably argue that the visitor
waived his or her Fourth Amendment
protection against unreasonable searches.
It is well settled that a search which
would otherwise be unlawful under the
Fourth Amendment may become legal
through the consent of the person searched.
However, consent to search must be
voluntarily given and not contaminated by
duress or coercion. Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). In
the context of visitor strip searches, several
courts have held that consent is the product
of coercion when prison officials condition
the privilege of visitation upon submission to
a strip search. See Cochrane v. Quattrocchi,
949 F.2d 11, 14-15 (1st Cir. 1991) (there was
no valid consent to search where visitor was
given choice between being denied visitation

Finally, in a precedent-setting ruling,
the Third Circuit upheld warrantless and
suspicionless
vehicle
searches
of
Pennsylvania prison visitors. See Neumeyer
v. Beard, 421 F.3d 210 (3d Cir. 2005). In
Neumeyer, the court sustained a DOC policy
allowing prison guards to conduct random
searches of visitor vehicles absent a warrant,
probable cause, or even individualized
suspicion. Id. at 216. Despite the
standardless nature of these searches and
the focus upon criminal possession of illegal
narcotics, the Third Circuit upheld the
46

intrusions under the so-called "special
needs" doctrine of the Fourth Amendment,
thus reducing further the privacy rights of
ordinary citizens.

IV. PROCEDURAL DUE PROCESS
The Due Process Clause of the
Fourteenth Amendment guarantees that no
state shall "deprive any person of life, liberty,
or property without Due Process of law." U.S.
Const. Amend XIV. The purpose of the Due
Process Clause is to protect the individual
from arbitrary state action by requiring some
kind of hearing prior to the deprivation of “life,
liberty, or property.” See Wolff v. McDonnell,
418 U.S. 539, 2976 (1974) ("The touchstone
of Due Process is protection of the individual
against arbitrary action of government.").
While the purpose of Due Process is
to protect the individual from arbitrary
deprivations of liberty and property, the
Supreme Court has made clear that "only a
limited range of interests fall within this
provision." Hewitt v. Helms, 459 U.S. 460,
466 (1983). As to which state deprivations
qualify for Due Process protection, the
Supreme Court has implemented a two-part
inquiry.
The first or threshold inquiry requires
the lower courts to determine whether the
deprivation in question falls within the
contemplation of the "liberty or property"
language of the Fourteenth Amendment. See
Morrissey v. Brewer, 408 U.S. 471, 481
(1972). If government action implicates a
"liberty or property" interest within the
meaning of the Due Process Clause, the
courts then proceed to the second inquiry to
determine the amount of process due to
protect the individual against unwarranted
deprivations. See Id. ("Once it is determined
that Due Process applies, the question
remains what process is due."). See also
Shoats v. Horn, 213 F.3d 140, 143 (3d Cir.
2000).
A liberty or property interest
deserving of the procedural protections of the
Due Process Clause may arise from two
sources: (l) the federal Constitution itself; or
(2) state statutes, regulations and practices.
See Hewitt v. Helms, 459 U.S. at 471.
Some deprivations are so severe or
so different from normal conditions of
confinement that they are considered outside
47

the terms of an inmate's imposed sentence.
Transfer to a state mental hospital, the
revocation of parole, and involuntary
treatment with antipsychotic medication are
examples of severe state deprivations which
trigger Due Process. In such cases, the
Supreme Court has held that the federal
Constitution itself confers a liberty interest
entitled to Due Process protection. See Vitek
v. Jones, 445 U.S. 480 (1980) (involuntary
transfer of prisoner to state mental hospital is
outside the range of a normal prison
sentence and implicates a liberty interest
protected by the Constitution itself).

investigation into his alleged participation in a
prison riot. 459 U.S. at 476 (1983). The
Supreme Court rejected Helms' assertion
that the Due Process clause itself creates a
liberty interest in remaining in the general
prison population. Id. at 477. The Court
explained
that
since
administrative
segregation is something every prisoner can
expect to face at some point during his
imprisonment, the transfer of a prisoner to
more restrictive quarters for non-punitive
reasons is "well within the terms of
confinement ordinarily contemplated by a
prison sentence." Id. at 468.

If conditions of confinement are
within the range of punishment authorized by
a criminal sentence, the prisoner must look
to state law to justify application of
procedural Due Process safeguards. The key
precedent here is Sandín v. Conner, where
the Court agreed that state law may create
interests protected by Due Process but
restricted those interests to state action that
imposes "atypical and significant hardship on
the inmate in relation to the ordinary
incidents of prison life." 515 U.S. 472, 483
(1995). As will be demonstrated below,
Sandin's "atypical and significant hardship"
test is extremely difficult to satisfy and has
freed state officials from Due Process
accountability in most areas of prison
administration.

Do prisoners have a protected liberty
interest, derived from state law, in freedom
from administrative segregation? If a prisoner
can prove that his or her confinement in
administrative segregation imposes an
"atypical and significant hardship" in relation
to the "ordinary incidents of prison life," the
answer is yes. Otherwise, federal Due
Process is not required.
The key Third Circuit precedent is
Griffin v. Vaughn, where a prisoner was
confined in administrative Custody for 15
months pending an investigation into an
alleged rape of a female guard at SCIGraterford. 112 F.3d 703, 705 (3d Cir. 1997).
The Third Circuit concluded that the
conditions experienced by Griffin in
administrative custody did not satisfy the
"atypical and significant hardship” standard,
and thus, did not deprive him of any statecreated liberty interest. Id. at 706. The Third
Circuit reasoned that "it is not extraordinary
for inmates in a myriad of circumstances to
find themselves exposed to the conditions to
which Griffin was subjected." Id. at 708.

A. Administrative Segregation
In most correctional systems there
are two basic types of solitary confinement:
disciplinary segregation and administrative
segregation. Disciplinary segregation is
punitive in nature, imposed upon prisoners
for violating prison rules. Administrative
segregation, on the other hand, is nonpunitive in nature, imposed upon prisoners
for security and safety concerns.

The Third Circuit‘s decision in Griffin
that fifteen months’ solitary confinement does
not rise to the level of an "atypical and
significant hardship" grants prison officials a
license to segregate prisoners without any
federal Due Process oversight. Sandin
requires the lower courts to make the
“atypicality” determination by comparing the
prisoner's conditions of confinement against
the "ordinary incidents of prison life." 515

Do prisoners have a protected liberty
interest, derived from the Constitution itself,
in freedom from administrative segregation?
The answer is no. In Hewitt v. Helms, a
prisoner was removed from his general
population cell at SCI-Huntingdon and placed
in
administrative
custody
pending
48

U.S. at 484. In Griffin, the Third Circuit
rejected general population as the baseline
for the “ordinary incidents of prison life."
Griffin, at 486. Accordingly, unless a
prisoner's
solitary
confinement
is
substantially longer in duration (than Griffin's
15 months) or substantially harsher in
conditions than other inmates in
administrative custody, such confinement is
neither "atypical" nor a "significant hardship"
under Sandin. See Nifas v. Beard, 374 Fed.
Appx. 241, 244 (3d Cir. 2010) (178 days’
administrative custody not atypical and
significant hardship); Jenkins v. Murray, 352
Fed. Appx. 608, 610 (3d Cir. 2009) (90 days’
administrative custody not atypical and
significant hardship); Allah v. Seiverling, 229
F.3d 220, 224 (3d Cir. 2000) ("Sandin
instructs that placement in administrative
confinement will generally not create a liberty
interest").

the scope of Sandin's "atypical and
significant hardship" universe.
In Shoats v. Horn, the Third Circuit
held that confinement in virtual isolation for
eight years—with no visits, no contact with
other inmates, lockdown, no programs, and
no prospect of release—did constitute an
"atypical and significant hardship" under
Sandin. 213 F.3d 140, 144 (3d Cir. 2000).
Given the extraordinary harsh conditions
facing Shoats, the Third Circuit agreed that
his solitary confinement was exceedingly
more severe both in duration and degree of
restriction than other prisoners in
administrative confinements Id. at 144. Due
process was required.
In Gans v. Rozum, the Third Circuit
held that a prisoner confined in
administrative custody for eleven years
constituted an "atypical and significant
hardship" under Sandin. 267 Fed. Appx. 178,
180 (3d Cir. 2008). Citing its previous
decision in Shoats, the court agreed that Due
Process was required "because of the length
of time he has spent in administrative
custody." Id. at 180.

Prisoners reading Helms will notice
that the Supreme Court ruled that the plaintiff
had a protected liberty interest based upon
prison regulations that certain procedures
"shall" and "must" be employed and that
administrative segregation would not occur
absent specific substantive predicates. 459
U.S. at 470-471. Unfortunately, the 1995
Sandin decision overturned this aspect of
Helms and replaced the so-called entitlement
doctrine with the "atypical and significant
hardship" test. See Sandin, 515 U.S. at 484.
See also Wilkinson v. Austin, 545 U.S. 209,
223 (2005) (stating that state-created liberty
interests are no longer based upon the
language of regulations but rather upon the
nature of prison conditions); Hodges v.
Wilson, 341 Fed. Appx. 846, 849 n. 4 (3d Cir.
2009) (stating that the mandatory language
test articulated in Helms was "abandoned" in
Sandin).

In Serrano v. Francis, the Ninth
Circuit held that a mere two-month stay in
administrative segregation gave rise to a
state-created liberty interest. 345 F.3d 1071,
1079 (9th Cir. 2003). In this unusual case, a
disabled
prisoner's
wheelchair
was
confiscated, depriving him (unlike other
segregated inmates) of showers, yard
activity, and ready access to his bunk and
toilet. Id. at 1074. The Ninth Circuit agreed
that confinement of a disabled prisoner in a
segregation unit that was not handicapaccessible was a "novel situation" and
satisfied Sandin‘s "atypical and significant
hardship." Id. at 1079.
If a prisoner establishes that his
administrative custody is so different -- either
in duration or conditions from other similarly
segregated inmates, Sandin's "atypical and
significant hardship” test is met. The courts
then examine the procedures provided by
state authorities to determine whether a
prisoner's liberty interest in freedom from

The sole focuses for a state-created
liberty interest in the post-Sandin era are the
conditions of confinement. Do such
conditions rise to the level of an "atypical and
significant hardship"? That is the decisive
question. As the cases below indicate, only
the most severe prison conditions fall within
49

segregation satisfies the Due Process
Clause.

in duration or involves extraordinary
conditions (not inflicted upon other similarly
segregated inmates), Sandin's atypical and
significant hardship test will not be satisfied.

In Hewitt v. Helms, the Supreme
Court ruled that prisoners removed from the
general population and confined in
administrative custody are only entitled to an
"informal, non-adversary evidentiary review."
459 U.S. at 472 (1983). "An inmate must
merely receive some notice of the charges
against him and an opportunity to present his
views to the prison official charged with
deciding whether to transfer him to
administrative segregation." Id. at 476. "So
long as this occurs, and the decision maker
reviews the charges and then-available
evidence against the prisoner, the Due
Process Clause is satisfied." Id. In terms of
long-term isolation in administrative
segregation, the Helms Court made
clear that "administrative segregation may
not be used as a pretext for indefinite
confinement of an inmate. Prison officials
must engage in some sort of periodic review
of the confinement of such inmates." Id, at
477n.9.

B. Classification Decisions
Prison
classification
decisions
regarding
security
levels,
housing
assignments, and job placements are
considered outside the protection of the Due
Process Clause. In Moody v. Daggett, the
Supreme Court held that a prisoner assigned
a higher security classification due to a
parole detainer was not entitled to Due
Process. 429 U.S. 78, 87n.9 (1976). Even if
the detainer impacted his qualification for
rehabilitative programs, the Court agreed
that a prisoner "has no legitimate statutory or
constitutional entitlement sufficient to invoke
Due Process." Id.
In Padilla v. Beard, a prisoner
alleged a Due Process violation when he
was given an escape-risk "H-Code"
classification, rendering him ineligible for
inmate programs. 206 Fed. Appx. 123, 124
(3d Cir. 2006). The Third Circuit agreed that
application of the "H-code" policy did not
implicate a liberty interest stemming from the
Due Process Clause itself or state law. Id. at
125-126. "Restriction from employment and
prison programs are among the conditions of
confinement that Padilla should reasonably
anticipate during his incarceration; thus,
application of the H-Code policy does not
implicate a liberty interest protected by the
Due Process Clause." Id. at 125.

In Shoats, the Third Circuit held that
his confinement in isolation for over eight
years constituted an "atypical and significant
hardship." 213 F.3d at 144. Turning to the
question of whether state procedures were
adequate, the Court held that the notices
provided Shoats and his opportunity to be
heard at thirty-day periodic reviews "comport
with the minimum constitutional standards for
Due Process." Id. at 147. Likewise, in Gans,
the Third Circuit held that Due Process was
satisfied where prison officials held periodic
reviews every ninety days to review Gans'
status. 267 Fed. Appx. at 180. See also
Delker v. McCullough, 103 Fed. Appx. 694,
695 (3d Cir. 2004).

In Marti v. Nash, (3d Cir. 2007) a
prisoner alleged denial of Due Process when
prison officials assigned him a security
classification of the "greatest severity." 227
Fed. Appx. 148, 150 (3d Cir. 2007). The
Third Circuit dismissed the case, noting that
a prisoner "has no Due Process right to any
particular security classification." Id. See also
Bacon v. Minner, 229 Fed. Appx. 96, 98-99
(3d Cir. 2007) (Delaware's classification and
housing policies are not the type of hardships
warranting Due Process protection and are
not atypical of the ordinary incidents of
prison life); Hodges v. Wilson, 341 Fed.

In conclusion, there is no "liberty"
interest, derived from the Federal
Constitution itself, in freedom from
administrative segregation. Nor does there
exist a state-created liberty interest absent
proof that administrative custody constitutes
an "atypical and significant hardship." Unless
an inmate's isolation exceeds several years
50

Appx. 846, 849 (3d Cir. 2009) (removal of
single-cell "z-o code" classification does not
constitute atypical and significant hardship).

Clemency is an important part of our
criminal justice system. It permits the
governor to grant mercy and correct injustice
for lawfully convicted individuals who
otherwise have no remedy to reduce or
eliminate their sentence. Unfortunately,
these decisions are not subject to Due
Process protection.

Inmate employment decisions are
likewise considered beyond Due Process
protection. The leading Third Circuit decision
is James v. Quinlan, 866 F.2d 627 (3d Cir.
1989). Although rendered before Sandin, the
Court held that prisoners have no liberty or
property interests in prison job assignments.
Id. at 629-630. "Traditionally, prisoners have
had no entitlement to a specific job, or even
to any job." Id. at 630. See also Dawson v.
Frias, 397 Fed. Appx. 739, 741 (3d Cir.
2010) (stating prisoners "have neither a
liberty or property interest in prison
employment"); Mims v. Unicor, 386 Fed.
Appx. 32, 35 (3d Cir. 2010) ("prisoners do
not have constitutionally protected interests
in retaining employment").

In Connecticut Board of Pardons v.
Dumschat, a life-sentenced prisoner brought
suit claiming that the failure of the
Connecticut Board of Pardons to provide a
written explanation for denying his
commutation application violated Due
Process. 452 U.S. 458, 461 (1981). In a preSandin ruling, the Supreme Court held that
an inmate has no independent constitutional
right to commutation of sentence. Id. at 466.
As to whether Dumschat retained a statecreated liberty interest in clemency, the Court
concluded that a prisoner's expectation of
clemency "is simply a unilateral hope." Id. at
465. "No matter how frequently a particular
form of clemency has been granted, the
statistical probabilities standing alone
generate no constitutional protections." Id.

Only one specific classification
matter has been declared sufficient to
warrant Due Process protection. In
Renchenski v. Williams, state authorities
labeled a prisoner a sex offender in the
absence of a sex offense conviction. 622
F.3d 315, 320 (3d Cir. 2010). Facing the
prospects of inmate abuse and mandatory
programming, Renchenski filed suit, claiming
denial of Due Process. Id. at 320. The Third
Circuit agreed that a liberty interest is at
stake when state officials label a prisoner a
sex offender. Id. at 326. The court reasoned
that a sex offense label is so severe and
stigmatizing that it triggers a liberty interest
emanating from the Due Process Clause
itself." Id. at 328. As for the required
procedural safeguards, the court agreed that
a "new adversary criminal trial" was not
required before labeling a prisoner a sex
offender. Id. at 331. However, officials must
provide an inmate with a written notice, a
hearing before an impartial decision maker,
the opportunity to present witnesses and
confront opposing evidence, and a statement
of the decision, including reasons for the
classification. Id.

In Ohio Adult Parole Authority v.
Woodard, a death-row inmate brought suit,
claiming that state clemency hearings
without counsel violated Due Process. 523
U.S. 272 (1998). In a plurality opinion, the
Supreme Court held Woodard's petition for
clemency did not rise to the level of an
interest protected by the Due Process
Clause itself. Id. at 283. Nor did Woodard
have a state-created liberty interest since the
denial of clemency did not impose an
atypical and significant hardship. "A denial of
clemency merely means that the inmate
must serve the sentence originally imposed."
Id. See also District Attorney's Office v.
Osborne, 557 U.S. 52, 67 (2009) ("noncapital
defendants do not have a liberty interest in
traditional state executive clemency").
Like Connecticut and Ohio,
Pennsylvania also maintains a clemency and
pardons system. See Pa. Const. Art. IV,
section 9. Pennsylvania prisoners have no
Due Process-protected liberty interest

C. Clemency Decisions

51

Wolff v. McDonnell is the Supreme
Court's seminal decision addressing
prisoners' Due Process rights. At issue in the
case was the disciplinary process of the
Nebraska correctional system in which the
revocation of good-time credits and solitary
confinement were imposed for "flagrant or
serious misconduct." 418 U.S. 539, 546
(1974). The Supreme Court recognized that
the Constitution does not require Nebraska
to provide prisoners with good-time credits.
Id. at 557. However, since Nebraska had
created a statutory right to good-time credits,
the prisoner's interest "has real substance
and is sufficiently embraced within
Fourteenth Amendment 'liberty' to entitle him
to those minimum procedures appropriate
under the circumstances and required by the
Due Process Clause to insure that the statecreated right is not arbitrarily abrogated." Id.
The Wolff Court also agreed that solitary
confinement was "a major change in the
conditions of confinement" which warranted
procedural safeguards "as a hedge against
arbitrary determination of the factual
predicate for imposition of the sanction." Id.
at 571 n.19. Unfortunately, this aspect of
Wolff is no longer valid in light of Sandin.

originating from the Constitution itself or from
state law. See Hennessey v. Pennsylvania
Board of Pardons, 655 A.2d 218, 220 (Pa.
Cmwlth. 1995) ("A prisoner has no liberty
interest in the possibility of commutation of
his sentence.").
In light of Dumschat and Woodard,
state clemency proceedings conducted
without counsel or written explanation do not
violate Due Process. Inmates are also not
entitled to other standard Due Process
safeguards such as presence at adversarial
proceedings,
cross-examination
of
witnesses, a timely hearing or appeal of
adverse rulings.
This does not mean that state
officials have carte blanche regarding
clemency hearings. In a separate concurring
opinion in Woodard, Justice O'Connor noted
that inmates are not completely stripped of
Due Process protection. "Judicial intervention
might, for example, be warranted in the face
of a scheme whereby a state official flipped a
coin to determine whether to grant clemency,
or in a case where the State arbitrarily
denied a prisoner any access to its clemency
process.” 523 U.S. at 289 (O'Connor,
concurring).

Do prisoners have a protected liberty
interest, derived from the Constitution itself,
in freedom from arbitrarily imposed
disciplinary punishment for misconduct? The
answer is no. The Supreme Court has made
clear that as long as conditions of
confinement are "within the sentence
imposed" and "not otherwise violative of the
Constitution," the Due Process Clause itself
does not subject an inmate's treatment to
judicial oversight. See Montanye v. Haymes,
427 U.S. 236, 242 (1976) (applying this
"within the sentence imposed" test in the
prison disciplinary context, the Supreme
Court has ruled that the Due Process Clause
itself does not give rise to any protected
interests in good-time credits).

Justice Stevens also disagreed with
the proposition that clemency proceedings
could never violate Due Process„ "I think, for
example, that no one would contend that a
Governor could ignore the commands of the
Equal Protection Clause and use race,
religion, or political affiliation as a standard
for granting or denying clemency." Id. at 292
(Stevens, J., concurring).
Unfortunately,
neither
Justice
O'Connor nor Stevens remain on the
Supreme Court. And their hypothetical
assumptions about Due Process violations
have yet to be tested in a real case. Thus,
the general rule is that clemency decisions
are non-reviewable by the courts. However,
in extreme cases where state clemency
officials use bizarre and whimsical criteria or
procedures (such as flipping a coin), a Due
Process claim may be asserted.

Do prisoners have a protected liberty
interest, derived from state law, in freedom
from arbitrarily imposed disciplinary
sanctions for misconduct? The answer to this
question is yes, but only if the prisoner can

D. Disciplinary Sanctions
52

does disciplinary isolation become an
"atypical and significant hardship" entitled to
Due Process oversight?

prove that the disciplinary sanction in
question "imposes atypical and significant
hardship on the inmate in relation to the
ordinary incidents of prison life." Sandin, 515
U.S. at 484.

The answer is rarely, if ever. In
Williams v. Bitner, the Third Circuit held that
90 days’ disciplinary segregation was not an
atypical and significant deprivation under
Sandin. 307 Fed. Appx. 609, 611 (3d Cir.
2009). In Torres v. Fauver, the Third Circuit
held that disciplinary detention for 15 days
and administrative segregation for 120 days
was also insufficient to implicate the Due
Process Clause. 292 F.3d 141, 151 (3d Cir.
2002). And in Pressley v. Johnson, the Third
Circuit agreed that confinement in
disciplinary custody for 360 days did not
constitute an atypical and significant
hardship. 268 Fed. Appx. 181, 184 (3d Cir.
2008). See also Burns v. Pa. Department of
Corrections, 642 F.3d 163, 171 (3d Cir.
2011) ("inmates are generally not entitled to
procedural Due Process in prison disciplinary
hearings because the sanctions resulting
from those hearings do not usually affect a
protected liberty interest").

What exactly did the Sandin Court
mean by "atypical and significant hardship"
and "ordinary incidents of prison life"? Which
punishments qualify as an atypical and
significant hardship? Until the Supreme
Court reviews another case, all we know for
certain is that confinement in disciplinary
segregation for thirty days does not rise to
the level of an atypical and significant
hardship. See Sandin, 515 U.S. at 486.
In the years following Sandin, the
lower courts began the task of applying the
decision to the prison disciplinary process. In
regards to minor disciplinary penalties such
as cell restriction and loss of privileges the
courts have agreed that federal Due Process
is not required. See Wolff, 418 U.S. at 571
n.19 (stating that Due Process is not required
for lesser penalties such as loss of
privileges); Perry v. Lackawanna County,
345 Fed. Appx. 723, 726 (3d Cir. 2009) (30
days’ segregation in addition to loss of prison
job and visiting privileges not atypical and
significant hardship); Malchi v. Thaler, 211
F.3d 953, 958 (5th Cir. 2000) (30 day loss of
commissary privileges and cell restriction not
subject to Due Process).

Whether disciplinary isolation can
ever rise to the level of an atypical and
significant hardship under Sandin depends
upon two factors: (1) the duration of the
solitary confinement; and (2) the degree of
restrictions involved in the confinement as
compared to others similarly isolated. See
Sandin, 515 U.S. at 486 (noting that
Conner's thirty days segregation "did not
exceed similar, but totally discretionary,
confinement in either duration or degree of
restriction").

At the other end of the disciplinary
spectrum are severe penalties such as the
forfeiture of good-time credits which directly
impact a prisoner's liberty by affecting the
duration of his or her incarceration. Most
courts have concluded that the deprivation of
good-time credits as a punitive sanction for
misconduct does rise to the level of an
atypical and significant hardship. See
Jackson v. Sneizek, 342 Fed. Appx. 833, (3d
Cir. 2009) (procedural protections apply
when a prisoner’s good-time credit is at
stake); Colon v. Williamson, 319 Fed. Appx.
191, 193 (3d Cir. 2009) (same).

Confinement
in
disciplinary
segregation for years—not mere days,
weeks, or even months—may qualify as an
atypical and significant deprivation. See
Shoats, 213 F.3d 140, 144. In addition, if a
prisoner's restrictions are significantly more
onerous than others confined in disciplinary
segregation, a state-created liberty interest
may exist. Id. Absent proof that a prisoner’s
confinement in disciplinary custody is
abnormally lengthy or encompasses
oppressive conditions not imposed upon

The most difficult aspect in applying
Sandin to the disciplinary process concerns
solitary confinement. At what point, if ever,
53

regardless whether the sanction imposed
constitutes an atypical and significant
hardship.

other similarly segregated prisoners,
Sandin’s atypical and significant hardship
test will not be met.
A recent ruling by the Third Circuit
may bring some disciplinary action within the
parameters of Due Process over-sight. In
Burns v. Pa. Department of Corrections, an
inmate was found guilty of assaulting another
prisoner and sentenced to 180 days
disciplinary confinement, along with loss of
prison job and financial assessment of the
victim's medical expenses. 544 F.3d 279,
280 (3d Cir. 2011). The Court agreed that the
180 days isolation and loss of prison job
were sanctions unworthy of Due Process
protection. Id. In regards to the monetary
sanctions, however, the Third Circuit agreed
that the assessment of Burns' prison account
for medical expenses implicated a "property"
interest sufficient to warrant Due Process
scrutiny. Id at 291. In this case, the Court
concluded that Due Process was violated
when the hearing examiner refused to review
a videotape that may have exonerated
Burns. Id.

Assuming a prisoner can establish
that a particular disciplinary sanction satisfies
Sandin's atypical and significant hardship
standard, he or she is entitled to those
procedures mandated by the Supreme Court
in Wolff v. McDonnell. 418 U.S. 539 (1974).
In Wolff, the Supreme Court made clear that
“disciplinary proceedings are not part of a
criminal prosecution and the full panoply of
the rights due a defendant in such
proceedings does not apply." Id. at 556.
Nonetheless, the Court held that the
following procedural safeguards must be
provided at prison disciplinary hearings to
satisfy Due Process:
(a) advance written
notice of the charges; (b) impartial
disciplinary decision-making; (c) right to call
witnesses and present documentary
evidence when not unduly hazardous to
institutional security; (d) assistance from a
fellow prisoner or staff member where an
illiterate inmate is involved or where the
issues are complex; and (e) written
statement by the fact finders as to the
evidence relied upon and the reasons for the
disciplinary action taken. Id. at 571-581.

One final observation before moving
on: Sandin's atypical and significant hardship
test does not apply to pretrial detainees. See
Sandin, 515 U.S. at 484 (distinguishing
pretrial detainees from convicted prisoners
since disciplinary infractions for convicted
prisoners fall within the expected parameters
of their sentences). Although the Supreme
Court has not yet reviewed a Due Process
liberty interest claim of a pretrial detainee
accused of prison misconduct, a growing
number of lower courts have decided that
Sandin does not apply. See Surprenant v.
Rivas, 424 F.3d 5, 17 (1st Cir. 2005);
Benjamin v. Fraser, 264 F.3d 175, 189 (2d
Cir. 2001); Fuentes v. Wagner, 206 F.3d
335, 342 n.9 (3d Cir. 2000). This does not
mean, however, that pretrial detainees are
immune from the disciplinary process
because county officials still retain a
legitimate interest in prison safety and
security. It simply means that pretrial
detainees accused of misconduct must be
provided a Wolff-type Due Process hearing

Prisoners
facing
disciplinary
proceedings are entitled to written notice of
the charges at least 24 hours prior to the
hearing. Wolff, 418 U.S. at 564. The purpose
of providing the accused with a misconduct
notice "is to give the charged party a chance
to marshal the facts in his defense and to
clarify what the charges are, in fact." Id.
To comply with Due Process,
misconduct reports must be written rather
than oral. Id. at 564; Dzana v. Foti, 829 F.2d
558, 562 (5th Cir. 1987) (oral notice violates
Due Process). Written misconduct reports
must also be provided to the charged party
no less than 24 hours prior to the hearing to
permit preparation of a defense. Wolff, 418
U.S. at 564; Benitez v. Wolff, 985 F.2d 662,
665 (2d Cir. 1993) (providing misconduct
report more than 24 hours before the
hearing, but reclaiming the misconduct report
54

require that a hearing be held within three
days where any delay in holding his hearing
did not prejudice him.") .

after 5 hours and requiring the prisoner to
remember the details without access to the
report violates Due Process). Finally,
misconduct reports must be sufficiently
detailed to apprise prisoners of the facts
underlying the charges. See McGill v.
Martinez, 348 Fed. Appx. 718, 720 (3d Cir.
2009) (misconduct report adequate where it
specified date and time contraband was
found but not specific location). Minor
technical errors during misconduct notice
preparation do not violate Due Process. See
Barner v. Williamson, 233 Fed. Appx. 197
(3d Cir. 2007) (failure to provide inmate
misconduct report within 24 hours of
infraction as required by prison rules not Due
Process violation since Wolff contains no
such mandate); Holt v. Caspari, 961 F.2d
1370, 1373 (8th Cir. 1992) (failure of
misconduct report to specify whether charge
was serious or minor not Due Process
violation since factual basis for charges
provided); Millhouse v. Bledsoe, 458 Fed.
Appx. 200, 203 (3d Cir. 2012) (failure to
provide inmate misconduct notice within 24
hours of incident was not constitutional
violation).

The Supreme Court held that
prisoners facing disciplinary proceedings do
not enjoy a constitutional right to counsel.
Wolff, 418 U.S. at 559 (1974). However,
where an illiterate prisoner is involved or
there exist complex legal or factual issues,
prisoners are entitled to assistance from
another inmate or staff member. Id. at 579;
See also Horne v. Coughlin, 795 F.Supp. 72,
76 (N.D.N.Y. 1991) (failure to provide
mentally disabled prisoner with assistance
violated Due Process); Macia v. Williamson,
219 Fed. Appx. 229, 233 (3d Cir. 2007)
(failure to provide representation not Due
Process violation "because Macia was not
illiterate and the issues in his case were not
complex"). Where lay assistance is
constitutionally required, prison officials must
permit the accused prisoner and his
representative a reasonable opportunity to
prepare a defense. See Grandison v. Cuyler,
774 F.2d 598, 604 (3d Cir. 1985) (requiring
prison officials to justify mere five minute
meeting prior to hearing between accused
and assistant).

Turning to the disciplinary hearing
itself, it is clear that the hearing should occur
within a reasonable time after expiration of
the 24-hour Wolff requirement. What is a
"reasonable time," however, varies according
to the circumstances facing prison officials.
See Layton v. Beyer, 953 F.2d 839, 850 (3d
Cir. 1992). Disciplinary hearings may be
postponed due to emergency conditions like
a riot. See Gray v. Creamer, 465 F.2d 179,
185 n.6 (3d Cir. 1972). In such cases, once
the emergency condition has passed,
disciplinary hearings must be promptly
provided. See Hughes v. Rowe, 449 U.S. 5,
11 (1980) ("segregation of a prisoner without
a prior hearing may violate Due Process if
the postponement of procedural protections
is not justified by apprehended emergency
conditions"). However, there is no
constitutionally mandated time for the
hearing to commence other than the 24-hour
notice provision. See Ortiz v. Holt, 390 Fed.
Appx. 150, 152 (3d Cir. 2010) ("Wolff did not

The Wolff Court also held that "the
inmate facing disciplinary proceedings
should be allowed to call witnesses and
present documentary evidence when
permitting him to do so will not be unduly
hazardous to institutional safety or
correctional goals." 418 U.S. at 556. Thus,
the right to call witnesses and present
evidence is not absolute; according to Wolff,
prison officials must have the necessary
discretion "to keep the hearing within
reasonable limits" and may refuse to call any
witness for irrelevance and lack of necessity
in addition to legitimate security concerns. Id.
The Wolff Court also concluded that
inmates are not entitled to confront and cross
examine adverse witnesses due to
"considerable potential for havoc inside the
prison walls." Id. at 567. When prison officials
refuse to call a witness, Due Process
requires they explain the reasons why the
55

disciplinary body. 492 F.2d 296, 306 (3d Cir.
1974). This would normally include only
those such as the charging and the
investigating staff officers who were directly
involved in the incident." Id. In Meyers, the
court held that the presence of an Associate
Warden on the disciplinary committee
violated the inmates' rights to an impartial
hearing due to his substantial involvement in
controlling a work stoppage. Id. at 305-306.

witness was not permitted to testify.
However, they can do so either as part of the
disciplinary record or subsequently in court if
the hearing is challenged on Due Process
grounds. See Ponte v. Real, 471 U.S. 491,
497 (1985).
Applying these precepts, the lower
courts have deferred to prison officials'
discretion to exclude witnesses so long as
those decisions are based upon legitimate
security concerns or keeping the hearing
within reasonable limits. See Tapp v. Proto,
404 Fed. Appx. 563, 568 (3d Cir. 2010)
(where inmate admitted charges, failure to
call witnesses not Due Process violation
since they were unnecessary); Moles v. Holt,
221 Fed. Appx. 92, 95 (3d Cir. 2007) (where
testimony of 14 inmates would have been
cumulative to the 3 inmate witnesses
allowed, no Due Process violation); Garrett v.
Smith, 180 Fed. Appx. 379, 381 (3d Cir.
2006) (no Due Process right to retain and
present expert witness).

In Lasko v. Holt, the Third Circuit
held that mere allegations that a hearing
officer was "immoral, not impartial, and not
unbiased" were insufficient to establish a
Due Process violation. 334 Fed. Appx. 474,
476 (3d Cir. 2009). In Adams v. Gunnell, the
court held that a prior unrelated grievance
did not disqualify a staff member from sitting
on the disciplinary panel. 729 F.2d 362, 370
(5th Cir. 1984). And in Redding v. Holt, the
Third Circuit agreed that simply because a
hearing officer was not trained in the law
does not bar him from rendering a decision.
252 Fed. Appx. 488, 489 (3d Cir. 2007).

On the other hand, if the refusal to
call a witness is not logically related to prison
security or other legitimate correctional
goals, prison officials have violated Due
Process. See Brooks v. Andolina, 826 F.2d
1266, 1269 (3d Cir. 1987) (where witnesses
would not have impaired security, refusal
violated due process); Whitlock v. Johnson,
153 F.3d 380 (7th Cir. 1998) (prison policy of
denying virtually all requests for witnesses
violates Due Process). These same
principles also apply to the introduction of
documentary evidence. See Burns, 642 F.3d
at 171 (refusal of hearing examiner to review
prison videotape Due Process violation).

Pursuant to Meyers, only those state
officials with substantial involvement in the
circumstances underlying the misconduct
charge are barred from sitting on the
disciplinary tribunal. For example, in Merritt v.
De Los Santos, an inmate was denied Due
Process when a state official witnessed the
underlying incident, drafted a report, and
then sat on the disciplinary committee. 721
F.2d 598, 600-601 (7th Cir. 1983). And in
Diercks v. Durham, the Court found a Due
Process violation when a prison supervisor
sat on the disciplinary body despite ordering
a subordinate to charge the inmate. 959 F.2d
710, 713 (8th Cir. 1992).

An essential element of Due Process
is an impartial decision maker. In Wolff, the
Supreme Court found that the composition of
the Nebraska Adjustment Committee was
"sufficiently impartial to satisfy the Due
Process Clause. 418 U.S. at 571.

Prisoners
facing
disciplinary
hearings are also entitled to a written
statement by the fact finders as to the
evidence relied upon and the reasons for the
disciplinary action taken. Wolff, 418 U.S. at
564. The purpose of a written record is "to
ensure that administrators, faced with
possible scrutiny by state officials and the
public, and perhaps even the courts, where

In Meyers v. Alldredge, the Third
Circuit held that any official who had
“substantial
involvement"
in
the
circumstances underlying the misconduct
report are not allowed to sit on the
56

misconduct report along with the inmate's
incriminating statement at the hearing
constituted "some evidence." 340 Fed. Appx.
774 (3d Cir. 2009). And in Thompson v.
Owens, the Third Circuit held that a positive
urinalysis result constitutes "some evidence”
to support a charge of illegal drug use. 889
F.2d 500, 502 (3d Cir. 1989).

fundamental constitutional rights may have
been abridged, will act fairly." Id. at 565.
In order to satisfy the written
statement mandate, prison disciplinary
officials must do more than give simple
statements that they accept the officer's
misconduct version. Rather, they must
engage in specific fact-finding, detailing the
evidence supporting their verdict. For
example, in Dyson v. Kocik, a prisoner was
found guilty of contraband possession and
issued a written statement indicating, "Inmate
is guilty of misconduct as written." 689 F.2d
466, 468 (3d Cir. 1982). The Third Circuit
held that "the rationale which supports the
findings in this case is so vague that the
verdict constitutes a violation of the minimum
requirements of Due Process." Id. at 468.
See also Redding v. Fairman, 717 F.2d
1105, 1115 (7th Cir. 1983) (written
statements indicating inmates were guilty
"based on all available evidence"
inadequate).

On the other hand, Due Process is
violated when disciplinary action is taken
absent any evidence to support a guilty
verdict. See Burnsworth v. Gunderson, 179
F.3d 771, 773 (9th Cir. 1999) (Due Process
violated where no evidence presented to
substantiate escape charge); Zavaro v.
Coughlin, 970 F.2d 1148, 1153 (2d Cir.
1992) (Due Process violated where no
evidence presented that inmate participated
in riot).
In conclusion, convicting a prisoner
of misconduct without any evidence violates
Due Process even if the accused prisoner
has received a complete Wolff hearing.
When federal courts review the sufficiency of
the evidence in a prison disciplinary
proceeding, the question is not whether there
was substantial evidence or evidence
beyond a reasonable doubt or a
preponderance of the evidence. The sole
issue is whether there is "some" or "any"
evidence in the record to support the finding
of guilt. lf there is "some" evidence, no matter
how weak, the federal courts will conclude
under Hill that Due Process was satisfied.

Finally, we examine the quantity of
evidence necessary to convict inmates of
prison misconduct. In Superintendent v. Hill,
the Supreme Court concluded that the
requirements of Due Process are satisfied if
"some evidence” exists to support the
disciplinary decision. 472 U.S. 445, 455
(1985). "Ascertaining whether this standard
is satisfied does not require examination of
the entire record, independent assessment of
the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is
whether there is any evidence in the record
that could support the conclusion reached by
the disciplinary board." Id. at 455-456.

E. Involuntary Medication
As noted previously, the Sandin
Court concluded that absent proof that prison
conditions constitute an "atypical and
significant hardship," they are not subject to
the requirements of the Due Process Clause.
515 U.S. at 484. Classification decisions,
confinement in administrative segregation,
and prison transfers (with a few exceptions)
are all considered outside the purview of Due
Process. Such matters are considered within
the normal range of custody which a valid
conviction and sentence has authorized the
state to impose. See Meachum v. Fano, 27
U.S. 215, 224 (1976).

In light of Hill, prison disciplinary
action complies with Due Process when the
findings of the disciplinary board are
supported by "some" or "any" evidence.
Thus, in Howard v. Werlinger, the Third
Circuit held that an officer's report describing
inmate behavior in the visiting room was
"some evidence" to support the misconduct
conviction. 403 Fed. Appx. 776, 777 (3d Cir.
2010). In Pachtinger v. Grondolsky, the Third
Circuit held that allegations contained in the
57

Some conditions of confinement,
however, are not authorized by a valid
conviction and sentence. Some conditions of
confinement are so severe and bizarre that
they are considered outside the terms of the
imposed sentence. In such cases, the
Supreme Court has ruled that the
Constitution itself confers a liberty interest
protected by the Due Process Clause. One
such matter concerns the pharmaceutical
control of prisoners.

placed on buses without notice or opportunity
to be heard. This was consistent with
Supreme Court precedent that state officials
may transfer any convicted prisoner, at any
time, to any prison, for any reason, so long
as it does not otherwise violate the
Constitution.
In Meachurn v. Fano, prisoners
brought suit alleging that their transfers from
a medium to a maximum security prison
without adequate hearings violated Due
Process. 427 U.S. 215, 222 (1976). The
Supreme Court held that the Due Process
Clause itself does not "protect a duly
convicted prisoner against transfer from one
institution to another within the state prison
system." Id. at 224. "Confinement in any of
the State's institutions is within the normal
limits or range of custody which the
conviction has authorized the state to
impose." Id. at 225. "That life in one prison is
much more disagreeable than in another
does not in itself signify that a Fourteenth
Amendment liberty interest is implicated
when a prisoner is transferred to the
institution with the more severe rules." Id.
The
Court
also
concluded
that
Massachusetts law did not confer any statecreated liberty interest deserving of Due
Process protection since transfers were not
conditioned upon the occurrence of specific
events. Id.

In Washington v. Harper, a prisoner
filed suit, claiming that the involuntary
administration of antipsychotic medication
(without a prior hearing) violated his Due
Process rights. 494 U.S. 210, 216 (1990).
The Supreme Court agreed that prisoners
possess liberty interests in avoiding such
treatment under the Due Process Clause
itself. Id. at 220. "The forcible injection of
medication into a non-consenting person's
body represents a substantial interference
with that person's liberty." Id. at 229.
As to the process required, the
Harper Court held that the State may treat an
inmate who has a serious mental illness with
involuntary medication "if the inmate is
dangerous to himself or others and the
treatment is in the inmate's medical interest."
Id. at 227. As to who makes these critical
decisions, the Court agreed that a medical
professional not directly involved in the
inmate's treatment could make the requisite
findings that the inmate suffers from a mental
disorder and is dangerous to himself or
others. Id. at 231.

In Montanye v. Haymes, a New York
prisoner was transferred to another facility
based upon his circulation of a petition
protesting the denial of legal assistance 427
U.S. 236, 237 (1976). The Supreme Court
rejected the proposition that prisoners
transferred because of rule violations are
entitled to hearings. Id. at 242. "As long as
the conditions or degree of confinement to
which the prisoner is subjected is within the
sentence imposed upon him and is not
otherwise violative of the Constitution, the
Due Process Clause does not in itself subject
an inmate's treatment [including transfer] by
prison authorities to judicial oversight." Id.
The Court also agreed that no state-created
liberty interest existed in light of New York
law. Id.

Additionally, the inmate must be
provided with prior notice, the right to be
present at an adversarial hearing, and the
right to present and cross-examine
witnesses. Id. at 229. Appointment of
counsel was not constitutionally required; a
lay advisor who understands psychiatric
issues was deemed sufficient. Id. at 235.
F. Prison Transfers
Several years ago Pennsylvania
authorities shipped hundreds of prisoners to
Michigan and Virginia to alleviate
overcrowding. Inmates were processed and
58

In Olim v. Wakinekona, a prisoner
challenged on Due Process grounds his
transfer from a state prison in Hawaii to one
in California. 461 U.S. 238, 240 (1983).
Despite the 3,000 mile distance, the
Supreme Court again concluded that neither
the Constitution itself, nor Hawaiian state
law, created a liberty interest entitled to
federal Due Process protection. Id. at 248. "A
conviction, whether in Hawaii, Alaska, or one
of the contiguous 48 states, empowers the
state to confine the inmate in any penal
institution in any state unless there is a state
law to the contrary or the reasons for
confining the inmate in a particular institution
are
themselves
constitutionally
impermissible." Id. at 248 n.9.

197 (3d Cir. 2006) (prisoner transferred and
housed in RHU did not suffer atypical and
significant hardship).

In light of Meacham, Montanye, and
Olim, prisoners have no liberty interest,
derived from the Due Process Clause itself,
against prison transfers. The fact that
conditions in the receiving facility are more
burdensome is irrelevant. The fact that
transfers were disciplinary responses to
inmate misconduct is irrelevant. Given a valid
conviction, confinement in any prison in
another state is considered within the normal
range of custody which the conviction has
authorized the state to impose.

There do exist a few exceptions to
the Meachum-Montanye-Olim line of cases.
In Vitek v. Jones, the Supreme Court held
that a prisoner's transfer to a mental hospital
triggered a liberty interest that entitled him or
her to procedural protections (notice,
hearing, witnesses, written decision, counsel)
under the Due Process Clause directly. 445
U.S. 480, 491 (1980). The Vitek Court
distinguished by holding that "involuntary
commitment to a mental hospital is not within
the range of conditions of confinement to
which a prison sentence subjects an
individual." Id. at 493. Unlike a normal prisonto-prison transfer, a prison-to-mental hospital
commitment is "qualitatively different"
because the prisoner will suffer "stigmatizing
consequences" and may be forced to
participate
in
behavior
modification
programs. Id. at 494. But see Fortune v.
Bitner, 285 Fed. Appx. 947, 950 (3d Cir.
2008) (two-week transfer to mental
assessment unit did not trigger Due Process
under Vitek where he was never subjected to
involuntary medication or other treatment
and never even spoke with doctor).

Further obstructing legal challenges
is the Supreme Court's subsequent ruling in
Sandin v. Conner, 515 U.S. 472 (1995).
According to Sandín, only those prison
conditions amounting to an "aytpical and
significant hardship" warrant state-created
liberty interest status. Id. at 483. Since most
prison transfers are routine, not atypical, and
not severe enough to qualify as a "significant
hardship," it would appear that Due Process
challenges are basically futile. See Ball v.
Beard, 396 Fed. Appx. 826, 827 (3d Cir.
2010) (“Ball has no entitlement to
incarceration to any particular prison");
Green v. Williamson, 241 Fed. Appx. 820,
822 (3d Cir. 2007) (transfer claim dismissed
where prisoner failed to prove atypical and
significant hardship); Jerry v. Williamson, 211
Fed. Appx. 110, 112 (3d Cir. 2006) (inmate
had no protected liberty interest in transfer);
Thomas v. Rosemeyer, 199 Fed.Appx. 195,

The second exception concerns
pretrial detainees confined in county jails. In
Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981) ,
a class action suit was brought against
Philadelphia County challenging the transfer
of over two hundred county inmates to
distant Pennsylvania state prisons. Id. at
948-949. Citing Meachurn and Montanye, the
Cobb Court agreed that sentenced county
inmates had no liberty interest, rooted in the
Due Process Clause itself or state law, which
would entitle them to procedural safeguards
prior to a prison transfer. Id. at 953. Pretrial
detainees, on the other hand, "have federally
protected liberty interests that are different in
kind from those of sentenced inmates." Id. at
951. Noting that transfers to distant state
prisons interfered with their Sixth
Amendment rights to counsel and speedy
trial, the Cobb Court held that "pretrial
detainees have a liberty interest firmly
59

grounded in federal Constitutional law. Id. at
957. Thus, pretrial detainees were entitled to
Due Process (notice and hearing) in
conjunction with those transfers. Id. at 961.

Baumann v. Arizona Department of
Corrections, 754 F.2d 841, 845 (9th Cir.
1985) (Arizona prison regulations for work
release and furlough programs did not give
rise to liberty interests).

The final exception is Wilkinson v.
Austin, in which the Supreme Court held that
prisoner transfers into Ohio’s "supermax"
facility satisfied Sandin’s atypical and
significant hardship standard. 545 U.S. 209,
224 (2005). In Austin, prisoners considered
disruptive and dangerous to staff and the
general population were transferred to the
supermax facility. Id. at 213. Prisoners so
confined were denied all inmate-to-inmate
contact; were subject to 24-hour cell lighting;
were limited to one hour of isolated exercise;
were disqualified from parole eligibility; and
were subject to indefinite stays in supermax
status, limited only by the prisoner’s
sentence. Id. at 224. The Austin Court
remarked that while "any of these conditions
standing alone might not be sufficient to
create a liberty interest; taken together they
impose an atypical and significant hardship
within the correctional context. Id. The Austin
Court was particularly disturbed with the
indefinite nature of such isolation, and the
parole disqualification in reaching its
conclusion. Id. Accordingly, prisoners
transferred to the supermax facility were
entitled to notice, hearing, written decision,
and appeal rights. Id. at 227.

Bear in mind that the Supreme Court
has long recognized a distinction between
the revocation of liberty one enjoys and the
denial of liberty one desires. For example, in
Greenholtz v. Inmates of Nebraska Penal
and Correctional Complex, the Supreme
Court held that the mere possibility of parole
did not by itself generate a liberty interest
entitled to Due Process protection. 442 U.S.
1, 9 (1979). Greenholtz rejected the
prisoner's argument that the parole release
decision is sufficiently analogous to parole
revocation to entitle prisoners to a hearing.
Id. According to the Court there "is a crucial
distinction between being deprived of a
liberty one has, as in parole, and being
denied a conditional liberty one desires." Id.
In similar fashion, there is a significant
difference between pre-release revocation, in
which an inmate is deprived of his liberty at
the halfway house and returned to prison,
and pre-release denial, in which a prisoner’s
application is rejected. Only the former may
implicate Due Process. A state’s decision to
deny a prisoner’s admittance into a prerelease program is not a withdrawal of
something he has, but merely a rejection of
something he or she hopes to have.

G. Pre-Release Programs

In Young v. Harper, the Supreme
Court agreed to decide whether an
Oklahoma prisoner in pre-release status was
entitled to Due Process prior to his removal
from the program. 117 S.Ct. 1148, 1150
(1997). Under the terms of the program,
Harper "was released from prison before the
expiration of his sentence. He kept his own
residence; he sought, obtained and
maintained a job; and he lived a life generally
free of the incidents of imprisonment." Id. at
1152. In light of the extraordinary liberty
granted Harper, the Supreme Court
concluded that the Oklahoma program was
"no different from parole" as described in
Morrissey," thereby triggering a liberty
interest under the Due Process Clause itself.

Many states, including Pennsylvania,
have enacted pre-release programs to
reduce prison overcrowding and begin the
process of reintegrating offenders back into
society. To what extent do these programs
implicate the procedural protections of the
Due Process Clause?
With respect to the application
process where prison officials assessed a
prisoner's eligibility to enter a pre-release
program, it is well settled that rejection of a
prisoner's application does not implicate Due
Process concerns. See DeTomaso v.
McGinnis, 970 F.2d 211, 213 (7th Cir. 1992)
(Illinois eligibility regulations for work release
do not create liberty or property interests);
60

Id. at 1151. Harper was therefore entitled to
a notice, hearing, witnesses, and written
statement as required in Morrissey. Id.

have concluded that Pennsylvania state
prisoners do not have any protected liberty
interest—stemming from the Due Process
Clause itself or state law entitling them to a
hearing prior to, or subsequent, the
revocation of pre-release status. See Feliz v.
Kintock Group, 297 Fed. Appx. 131, 136 (3d
Cir. 2008) (pre-release inmate had no right to
notice and hearing before his return to SCIGraterford); Lott v. Arroyo, 785 F. Supp. 508,
509 (E.D. Pa. 1991) (transfer from group
home back to state prison does not violate
Due Process); Wilder v. Department of
Corrections, 673 A.2d 30, 33 (Pa. Cmwlth.
1996) (same).

The problem with Harper is that most
pre-release programs do not provide the
extraordinary freedom and liberty as
accorded Oklahoma inmates. For example,
in Asquith v. Department of Corrections, a
prisoner suspected of alcohol consumption
was removed from a New Jersey halfway
house and returned to prison. 186 F.3d 407,
409 (3d Cir. 1999). Unlike the pre-release
program in Harper, Asquith lived in a "strictly
monitored halfway house" and was subject to
curfew, standing count, and intensive
monitoring of his movements in the
community. Id. at 411. The Third Circuit
distinguished Harper by concluding that while
Asquith's liberty was greater in the halfway
house than prison, it was still "institutional
confinement." Id. at 411. Citing Meachum
and Montanye, the Third Circuit held that
Asquith did not have a liberty interest under
the Due Process Clause itself because "while
a prisoner remains in institutional
confinement, the Due Process Clause does
not protect his interest in remaining in a
particular facility." Id. at 411

H. Parole Release
Whether the Due Process Clause
applies to parole release has been
addressed by the Supreme Court in several
cases. In each one, prisoners alleged that
state officials violated their Fourteenth
Amendment rights by conducting parole
hearings which failed to satisfy Due Process
requirements.
In each decision, the Supreme Court
first made clear that prisoners do not enjoy a
protected interest, emanating from the
Constitution itself, in obtaining parole
release. See Greenholtz v. Inmates of
Nebraska Penal & Correctional Complex,
442 U.S. 1, 7 (1979) ("There is no
constitutional or inherent right of a convicted
person to be conditionally released before
the expiration of a valid sentence."); Board of
Pardons v. Allen, 482 U.S. 369, 373 (1987)
("the presence of a parole system by itself
does not give rise to a constitutionally
protected liberty interest in parole release");
Swarthout v. Cooke, 131 S.Ct. 859, 862
(2011) ("There is no right under the Federal
Constitution to be conditionally released …
and the states are under no duty to offer
parole").

The Third Circuit also rejected the
argument that Asquith's return to prison from
pre-release status triggered a state-created
liberty interest protected by Due Process. Id.
at 412. Citing Sandin, the Third Circuit noted
that state deprivations do not create
protected liberty interests absent proof of an
"atypical and significant hardship." Id. at 412.
"Since an inmate is normally incarcerated in
prison, Asquith's return to prison did not
impose atypical and significant hardship on
him in relation to the ordinary incidents of
prison life and, therefore, did not deprive him
of a protected liberty interest." Id.
Because Pennsylvania state prerelease programs normally require inmates to
reside in state-owned or state-contracted
facilities and impose curfews and other
restrictions upon movement, they are likely
distinguishable from the parole-like program
in operation in Harper. Indeed, several courts

Since there is no entitlement to
parole under the Constitution directly,
prisoners must look to state law to base any
Fourteenth Amendment claim to Due
Process. In Greenholtz, the Supreme Court
held that a Nebraska statute, mandating that
61

the Board of Parole "shall" release the
offender - "unless" one of four specified
reasons for deferral of release was found created an expectation of parole release that
was entitled to Due Process protection. 442
U.S. at 9. In Allen, the Court held that a
Montana law specifying that its Board of
Pardons "shall" release on parole a prisoner
who is "able and willing to fulfill the
obligations of a law-abiding citizen" also
created a protected liberty interest. 482 U.S.
at 378. And in Swarthout, the Supreme Court
assumed (but did not review) that the
California state law requiring a parole
release date absent public safety concerns
also created a liberty interest entitled to Due
Process protection. 131 S.Ct. at 861.

In terms of the Commonwealth, it
was
previously
established
that
Pennsylvania's former parole release statute,
see 61 Pa. Stat. § 331.21, did not create an
expectation or entitlement to parole sufficient
to trigger Due Process. See Rauso v.
Vaughn, 79 F.Supp.2d 550, 552 (E.D. Pa.
2000) (“parole is not a protected liberty
interest in Pennsylvania”); Tubbs v.
Pennsylvania Board of Probation and Parole,
620 A.2d 584, 586 (Pa. Cmwlth. 1993).
(recognizing the Parole Board’s “broad
discretion to determine if and when a
prisoner under its jurisdiction should be
released on parole.”).
In 2010, Pennsylvania repealed §
331.21 and replaced it with new parole laws.
See 61 Pa.C.S. § 6137. Unfortunately, the
new parole statute is no more Due Processfriendly than the former law. According to the
statute, the Parole Board "may" parole any
inmate (except those sentenced to death or
life) whenever: (a) the best interests of the
inmate justify parole; and (b) the
Commonwealth's interests will not be injured
by the inmate's parole. Id. Such statutory
language is not even close to the mandatory
specifications considered in Greenholtz. See
Newman v. Beard, 617 F.3d 775, 783 (3d
Cir. 2010) (Pennsylvania state inmates have
the right to apply for parole and have parole
fairly considered, but there is no protected
liberty interest). The lack of mandatory
language ("shall release") along with
substantive predicates is not the only
problem facing Due Process challenges to
parole decisions. In Sandin v. Conner, the
Supreme Court criticized the "mandatory
language" methodology used in Greenholtz
and Allen and replaced it with an "atypical
and significant hardship" test. 515 U.S. at
484 (1995). Since parole rejection simply
means that the affected inmates must serve
their entire sentences (rather than impose a
new
significant
hardship),
Sandin's
measurement of a state created liberty
interest will not likely be satisfied.

Having found a protected liberty
interest, stemming from state law, the
Greenholtz Court then considered what
procedures were necessary to ensure that
the prisoner's interest was not arbitrarily
abrogated. Noting that Due Process remains
a flexible concept and calls only for such
procedural protections as the particular
situation demands, the Greenholtz Court
ruled that an inmate is entitled only to: (a) an
opportunity to be heard; and (b) the reasons
for parole rejection. 442 U.S. at 6. If these
minimal procedures are furnished, Due
Process is satisfied. See also Swarthout, 131
S.Ct. at 862 (refusing to expand procedural
protections to include requirement of "some
evidence").
While state-created liberty interests
were found to exist in Greenholtz and Allen,
Pennsylvania prisoners should keep in mind
the Supreme Court's warning that those
statutes contained "unique structure and
language" that may not be found in other
state parole statutes. 442 U.S. at 11. Indeed,
parole release statutes in most states do not
contain the magical "shall release" language
that was considered pivotal in Greenholtz
and Allen. See Sultenfuss v. Snow, 35 F.3d
1494, 1502 (11th Cir. 1994) (Georgia); Creel
v. Kane, 928 F.2d 707, 712 (5th Cir. 1987)
(Texas).

I.

62

Property

In addition to protecting the
individual against unwarranted deprivations
of liberty, the Fourteenth Amendment also
prohibits the states from depriving any
person of property without Due Process of
law. Unfortunately, Supreme Court precedent
has determined that Due Process may be
satisfied by the existence of adequate postdeprivation state remedies (such as
grievance systems and tort actions) to
challenge property deprivations.

1997). The Third Circuit agreed that inmates
"have a property interest in funds held in
prison accounts" and are "entitled to Due
Process with respect to any deprivation of
this money." Id. at 179. However, the Court
dismissed the claim, finding that inmates had
prior notice of the medical policy and that the
prison's grievance system constituted an
adequate post deprivation forum to challenge
unjustified medical assessments. Id. at 179181. The court further agreed that medical
assessments could be deducted from inmate
accounts without their express authorization.
Id. at 180.

In Parratt v. Taylor, an inmate
brought suit, alleging that the loss of his mail
ordered hobby materials by prison officials
violated his property rights under the Due
Process Clause. 451 U.S. 527, 529 (1981).
The Supreme Court agreed that the hobby kit
constituted property, and that the loss, even
though negligently-caused, amounted to a
deprivation. Id. at 535. However, the Court
also ruled that post deprivation remedies
made available by the states can satisfy the
requirements of Due Process. Id. at 543. In
this case, Nebraska provided statutory
remedies for persons who suffered property
losses at the hands of state officials. Id. The
Court concluded that such statutory
remedies, if adequate, could satisfy Due
Process. Id.

In Tillman v. Lebanon County
Correctional Facility, a prisoner alleged he
was deprived of Due Process when county
officials assessed a $10 per day housing fee,
resulting in a debt of $4,000. 221 F.3d 410,
413 (3d Cir. 2000). Although the Third Circuit
agreed that Tillman had a property interest in
his prison account, it concluded that he was
provided Due Process since he had notice of
the cost recovery program and a grievance
program existed that constituted "an
adequate post-deprivation remedy." Id. at
422.
In Pressley v. Johnson, a prisoner
alleged that state officials denied him Due
Process by destroying his property absent a
hearing. 268 Fed. Appx. 181, 183 (3d Cir.
2008). Citing Hudson v. Palmer, the Third
Circuit noted that "even an intentional
deprivation of property in the prison setting is
not a Due Process violation if the prison
provides en adequate post-deprivation
remedy." Id. The case was dismissed since
"Pennsylvania's inmate grievance procedure
is an adequate post-deprivation remedy." Id.
See also Monroe v. Beard, 536 F.3d 198,
210 (3d Cir. 2008) (confiscation of legal
material not Due Process violation since
prison grievance-process "furnished the
plaintiffs with a meaningful post-deprivation
remedy"); Tapp v. Proto, 404 Fed. Appx.
563, 567 (3d Cir. 2010) (confiscation of
photograph not Due Process violation where
adequate post-deprivation remedies existed
in either prison grievance process or state
tort action); Crosby v. Piazza, 465 Fed.

At issue in Hudson v. Palmer, was
whether the intentional destruction of inmate
property during a cell search violated Due
Process. 468 U.S. 517, 520 (1984). The
Supreme Court ruled "that an unauthorized
intentional deprivation of property by a state
employee does not constitute a violation of
the procedural requirements of the Due
Process Clause of the Fourteenth
Amendment if a meaningful post-deprivation
remedy for the loss is available." Id. at 533.
Since Virginia provided Palmer with postdeprivation remedies in which he could seek
compensation for the destruction of his
property, he was not denied Due Process.
Id. at 535.
In Reynolds v. Wagner, county
inmates argued that a $3 charge for medical
visits, absent a hearing, violated their Due
Process rights. 128 F.3d 166, 170 (3d Cir.
63

Appx. 168, 172 (3d Cir. 2012) (where inmate
had post-deprivation remedies via grievance
system and state tort action, inmate not
deprived of Due Process when property was
confiscated).

V. EIGHTH AMENDMENT ISSUES
The Eighth Amendment to the United
States Constitution protects convicted
prisoners 1 against the infliction of "cruel and
unusual punishment." It is the primary source
of constitutional protection for prisoners
subject to inhumane conditions of
confinement. See Helling v. McKinney, 509
U.S. 25, 31 (1993) ("It is undisputed that the
treatment a prisoner receives in prison and
the conditions under which he is confined are
subject to scrutiny under the Eighth
Amendment.").
The Supreme Court has established
a two-prong inquiry for determining whether
prison conditions violate the Eighth
Amendment. See Farmer v. Brennan, 511
U.S. 825, 834 (1994). The first prong
consists of a judicial examination into the
objective component of the Eighth
Amendment. The inquiry will focus on
whether conditions of confinement are
objectively serious enough to justify Eighth
Amendment scrutiny. Id. at 834 (the
deprivation alleged must be "sufficiently
serious"). When considering this matter, bear
in mind that simply because prison
conditions are harsh is insufficient because
the Constitution "does not mandate
comfortable prisons." Rhodes v. Chapman,
452 U.S. 337, 339 (1981). Prisoners claiming
Eighth Amendment violations must prove
that they are either deprived of "the minimal
civilized measure of life's necessities" such
1

The Eighth Amendment prohibits cruel and
unusual punishment of people who have already
been convicted. Because pretrial detainees may
not be punished, conditions for pretrial detainees
are reviewed under the Fourteenth Amendment
Due Process Clause. Regulations such as
searches, handcuffs, and other security processes
are not considered punishments because they are
related to the jail’s need for safety. Bell v.
Wolfish, 441 U.S. 520, 564 (1979). Pretrial
detainees have at least as much protection from
cruel and unusual punishment as those convicted
of crimes. Id. at 545. Although the rights of
pretrial detainees are based on a different
Amendment, the Third Circuit uses the same
analysis as an Eighth Amendment claim. See
Stevenson v. Carroll, 495 F.3d 62, 67-68 (3d Cir.
2007).

64

as essential food, clothing, medical care, and
sanitation, see Rhodes, 452 U.S. at 347 or
are "incarcerated under conditions posing a
substantial risk of serious harm." Farmer,
511 U.S. at 834.

wanton infliction of pain" proscribed by the
Eighth Amendment. Id. at 291. The Court
reasoned that since incarceration denied
prisoners the ability to care for themselves,
the government has an obligation to provide
medical care for them. Id. at 103. The Estelle
Court went to great lengths to point out,
however, that not every claim by a prisoner
that he was denied medical treatment states
an Eighth Amendment violation. Id. at 104.
An accidental or inadvertent failure to provide
medical care does not rise to an Eighth
Amendment level. Id. at 105. Nor do claims
of negligence or medical malpractice
constitute constitutional violations. Id. at 106.
"In order to state a cognizable claim, a
prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate
indifference to serious medical needs." Id.

Assuming that confinement
conditions are sufficiently serious enough to
trigger Eighth Amendment scrutiny, the
inquiry then turns to the subjective
component which requires prisoners to show
a "sufficiently culpable state of mind" on the
part of responsible prison officials. See
Wilson v. Seiter, 501 U.S. 294, 297 (1991).
The degree of culpability, however, varies
depending on the type of conduct
challenged. See Id. at 302 ("wantonness
does not have a fixed meaning but must be
determined with due regard for differences in
the kind of conduct against which an Eighth
Amendment objection is lodged.") (citations
omitted). For example, in cases of prison
riots and disturbances, where state
authorities must act in haste and under
pressure, prisoners must prove that prison
officials acted "maliciously and sadistically for
the very purpose of causing harm." Whitley v.
Albers, 475 U.S. 312, 320 (1986). In regards
to overall prison conditions, however,
prisoners need only prove that the actions of
prison officials constitute deliberate
indifference. See Wilson, 501 U.S. at 303
(“Whether one characterizes the treatment
received by the prisoner as inhumane
conditions of confinement, failure to attend to
his medical needs, or a combination of both,
it is appropriate to apply the ‘deliberate
indifference’ standard.”).

Applying these principles to the case
before it, the Estelle Court held that Gamble
did not state an Eighth Amendment
deliberate indifference claim because
medical personnel saw him on seventeen
occasions during a three-month period and
treated him with bed rest, muscle relaxants,
and pain relievers. Id. at 107. The Court
further noted that Gamble's complaint that an
x-ray should have been conducted of his
back "is a classic example of a matter for
medical judgment" and, at most, constitutes
medical malpractice which is insufficient to
state an Eighth Amendment claim. Id.
As in every Eighth Amendment case,
the standard enunciated by the Estelle Court
is two-pronged. It requires the prisoner's
medical needs be serious (the objective
component) and it requires deliberate
indifference on the part of prison officials (the
subjective component). See Giles v.
Kearney, 571 F.3d 318, 330 (3d Cir. 2009);
Gravley v. Tretinik. 414 Fed. Appx. 391, 393394 (3d Cir. 2011); Propst v. Beard, 412 Fed.
Appx. 536, 538 (3d Cir. 2011).

A. Health Care
In Estelle v. Gamble, the Supreme
Court considered a prisoner's claim that the
inadequacy of medical care constituted an
Eighth Amendment violation. 429 U.S. 97
(1976). Gamble, a Texas prisoner, brought
suit alleging that he received inadequate
medical care following a back injury
sustained while working. Id. at 107. The
Supreme Court held that "deliberate
indifference to serious medical needs of
prisoners" constitutes the "unnecessary and

The Estelle deliberate indifference
standard applies to pretrial detainees as well
as convicted, sentenced prisoners. Pretrial
detainees, however, must ground their
constitutional rights to medical care based
65

for a doctor's attention. See Monmouth
County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

upon the Due Process Clause of the
Fourteenth Amendment. Unlike prisoners,
pretrial detainees have not been convicted of
crime and are not protected by the Eighth
Amendment. See Bell v. Wolfish, 441U.S.
520, 535 n.16 (1979) ("The State does not
acquire the power to punish with which the
Eighth Amendment is concerned until after it
has secured a formal adjudication of guilt in
accordance with Due Process of law. Where
the state seeks to impose punishment
without adjudication, the pertinent
constitutional guarantee is the Due Process
Clause of the Fourteenth Amendment.").
Applying this rationale, the Third Circuit has
agreed that the Estelle standard applies to
pretrial detainees, holding that deliberate
indifference to serious medical needs
violates the Due Process Clause of the
Fourteenth Amendment. Boring v.
Kozakiewicz,833 F.2d 468, 471-472 (3d Cir.
1987); Brown v. Borough of Chambersburg,
903 F.2d 274, 278 (3d Cir. 1990).

Applying this definition, the Third
Circuit has concluded that life-threatening
emergencies and injuries or illnesses are
indeed serious medical needs within the
meaning of Estelle. See Stewart v. Kelchner,
358 Fed. Appx. 291, 295 (3d Cir. 2009)
(MRSA skin infections are serious); Merritt v.
Fogel, 349 Fed. Appx. 742, 745 (3d Cir.
2009) (Hepatitis C virus is serious); Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(insulin-dependent diabetes is serious); Kost
v. Kozakiewicz, 1 F.3d 176, 189 (3d Cir.
1993) (heatstroke is serious).
On the other hand, the Third Circuit
has found minor ailments not to be "serious"
medical needs and unworthy of Eighth
Amendment protection. See Tsakonas v.
Cicchi, 308 Fed. Appx. 628, 632 (3d Cir.
2009) (weight loss, eczema of the feet,
seborrhea of the scalp, athlete's foot,
constipation, and swollen knuckles not
serious injuries); Kost, 1 F.3d at 189 (lice
infestation not serious).

Before proceeding with our Estelle
analysis, it should be pointed out that the
deliberate indifference standard applies to
serious mental or emotional illnesses as well
as physical needs. See Inmates of Allegheny
County Jail v. Pierce 612 F.2d 754, 763 (3d
Cir. 1979) ("Although most challenges to
prison medical treatment have focused on
the alleged deficiencies of medical treatment
for physical ills, we perceive no reason why
psychological or psychiatric care should not
be held to the same standard.").

The problem with Estelle's "serious
medical needs" test concerns ailments lying
between the two extremes. For example,
while a brain tumor obviously constitutes a
serious medical need and a paper cut does
not, at what point, if ever, do ailments such
as tooth cavities, fever, neurosis, poor vision,
and obesity constitute serious medical
needs? See Harrison v. Barkley, 219 F.3d
132, 137 (2d Cir. 2000) (while tooth cavity is
not normally a serious medical needs, if left
untreated indefinitely, it is likely to produce
pain and require extraction, thereby rising to
the level of a serious medical condition).

1. Are Prisoners’ Medical Needs
"Serious"?
According to Estelle, only "acts or
omissions sufficiently harmful to evidence
deliberate indifference to serious medical
needs" rise to the level of an Eighth
Amendment violation. Estelle, 429 U.S. at
106. Exactly what constitutes a “serious
medical need" is determined on a case-bycase basis. In general, a serious medical
need is defined as one that has been
diagnosed by a physician as requiring
treatment or one that is so obvious that a lay
person would easily recognize the necessity

In Boring v. Kozakiewicz, the Third
Circuit resolved this matter by holding that in
questionable cases, expert testimony is
necessary to show that a prisoner's illness
was "serious" within the meaning of Estelle.
833 F.2d 468, 473 (3d Cir. 1987). In Boring,
three prisoners brought suit against the
Allegheny County Jail alleging inadequate
medical treatment for a variety of minor
66

ailments including nerve injury, temporary
tooth filings, and migraine headaches. Id. at
469-470. The Third Circuit affirmed the lower
court's finding that there existed no evidence
in the record indicating such ailments were
"serious" medical needs. Id. at 473. The
court held that without expert medical
opinion, "the jury would not be in a position to
decide whether any of the conditions
described by plaintiffs could be classified as
serious." Id. at 473. The Third Circuit further
warned prisoners that an inability to pay for
expert testimony would not be a valid
excuse. Id. at 474. See also Mitchell v.
Gershen, 466 Fed. Appx. 84 (3d Cir. 2011)
(expert testimony required to establish that
foot infection was serious).

indifference is a state of mind more
blameworthy than mere negligence but less
culpable than purposeful misconduct. See
Farmer v. Brennan, 511 U.S. 825, 834
(1994). Deliberate indifference means that a
prison official will be held liable under the
Eighth Amendment "only if he knows that
inmates face a substantial risk of serious
harm and disregard that risk by failing to take
reasonable measures to abate it.“ Id. at 847.
Inmates "need not show that a prison official
acted or failed to act believing that harm
actually would befall an inmate; it is enough
that the official acted or failed to act despite
his knowledge of a substantial risk of serious
harm." Id. at 842.
Under the Supreme Court's
deliberate indifference standard, a prison
official cannot be held liable for the denial of
medical care unless the prisoner proves: (1)
that the official had knowledge of the
inmate’s serious medical need; and (2)
despite such knowledge, he failed to take
reasonable action to abate it. See Farmer,
511 U.S. at 848.

In light of Boring, it is clear that the
burden is upon prisoners to prove that a
particular illness constitutes a "serious
medical need." Where the severity is
acknowledged by prison doctors or would be
apparent to a lay person, expert testimony
may not be required. See Boring, 833 F.2d at
473. During the discovery phase of a civil
action, prisoners should seek medical
records and submit interrogatories to prison
authorities to satisfy their Estelle burden. See
Brightwell v. Lehman, 637 F.3d 187, 194 n.8
(3d Cir. 2011) (serious medical need can be
met by other forms of extrinsic proof such as
records and photographs). In cases of minor
ailments, where the severity is contested by
the defendants, prisoners must present
expert testimony as required by Boring.

(a) Knowledge Requirements
The Supreme Court's deliberate
indifference test requires proof of two key
elements: knowledge and failure to act
despite such knowledge. Unless a prisoner
proves that a prison official possessed
knowledge of his serious medical need, that
official must be exonerated of the Eighth
Amendment liability. See Farmer, 511 U.S. at
837 ("an official's failure to alleviate a
significant risk that he should have perceived
but did not, while no cause for
commendation, cannot under our cases be
condemned as the infliction of punishment").

2. Were State Officials Deliberately
Indifferent'?
Establishing that a prisoner's illness
or injury is "serious" is only the first half of the
Estelle test. The Eighth Amendment also
contains a subjective component, which
requires proof of deliberate indifference.
Estelle, 429 U.S. at 106. See also Erickson
v. Pardus, 551 U.S. 89, 90 (2007) (allegation
that prisoner's life was in danger due to
termination of hepatitis C medication stated
deliberate indifference claim).

The Supreme Court's knowledge
requirement limits the Eighth Amendment's
reach to only those state officials who are
aware that a prisoner faces a serious
medical risk. See Farmer, 511 U.S. at 837
("the official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and
he must also draw the inference"). Absent
proof that the official in question knew of the

What is "deliberate indifference?"
According to the Supreme Court, deliberate
67

will obviously be much easier."). See also
Reed v. McBridge, 178 F.3d 849, 854 (7th
Cir. 1999) (finding that prison officials had
knowledge of prisoner's medical condition in
light of prisoner's written grievances).

prisoner's serious medical condition, liability
will not be sustained. For example, in
Singletary v. Pennsylvania Department of
Corrections, the mother of a Rockview
prisoner (who committed suicide) brought
suit, claiming that the prison warden was
deliberately indifferent to her son's mental
health needs. 266 F.3d 186, 189 (3d Cir.
2001). Citing Farmer, the Third Circuit
affirmed dismissal of the suit, holding that the
mother failed to provide evidence showing
that the warden knew or was aware of her
son's serious medical needs. Id. at 192 n.2.

(b) Failure to Act
Satisfying the knowledge
requirement is not the only element of
deliberate indifference. Prisoners must also
prove that, despite such knowledge, prison
officials failed to take reasonable action to
abate this serious medical risk. See Farmer,
511 U.S. at 847 (prison official is liable under
Eighth Amendment "only if he knows that
inmates face a substantial risk of serious
harm and disregards that risk by failing to
take reasonable measures to abate it").
Prison officials will not be held liable under
the Eighth Amendment if they take
reasonable action in the face of a serious risk
to inmate health. Id. at 845 ("prison officials
who act reasonably cannot be found liable
under the cruel and unusual punishments
clause").

In Williams v. Pennsylvania, the
Third Circuit dismissed a medical indifference
claim where the plaintiff failed to prove that
the defendant prison official knew that he
had a serious hernia condition. 289 Fed.
Appx. 483, 485 (3d Cir. 2008).
Since state officials are under no
constitutional duty to act absent knowledge
of a substantial risk to inmate health,
prisoners should establish a "paper trail" to
each potential defendant. Utilizing the
"request slip" or grievance system, a prisoner
should explain his or her current illness or
injury (detailing its seriousness) and the
corresponding need for medical treatment.
Bear in mind that state attorneys and federal
judges will likely review such evidence, so
they should be drafted clearly, succinctly,
and politely. This process of acquiring written
documentation is invaluable for two reasons:
First, a Supervisory official may order
corrective medical treatment, thereby
eliminating unnecessary pain and risk to
inmate health. Secondly, if the matter does
end up in court, such documentation will
make it extremely difficult for prison officials
to plead ignorance by contending they had
no prior knowledge of a prisoner's serious
medical Condition. See Farmer, 511 U.S. at
847 ("Even apart from the demands of
equity, an inmate would be well advised to
take advantage of internal prison procedures
for resolving inmate grievances. When those
procedures produce results, they will typically
do so faster than judicial processes can. And
even when they do not bring constitutionally
required changes, the inmate's task in court

What is "reasonable action" in light
of a prisoner's serious medical need? Under
Estelle, state officials "act reasonably" when
they provide whatever treatment the medical
professional decides is appropriate. In
contrast, state officials act unreasonably or
with "deliberate indifference" when they
deny, delay, obstruct or otherwise interfere
with needed or prescribed medical treatment.
See Estelle, 429 U.S. at 109 (deliberate
indifference can be manifested "by prison
doctors in their response to the prisoner's
needs or by prison guards in intentionally
denying or delaying access to medical
treatment or intentionally interfering with the
treatment once prescribed"); Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(finding “deliberate indifference in a variety of
circumstances, including where the prison
official (1) knows of a prisoner's need for
medical treatment but intentionally refuses to
provide it; (2) delays necessary medical
treatment based on a non-medical reason; or
(3) prevents a prisoner from receiving

68

particular course of treatment as long as it
stems from a "sound professional judgment."
Inmates of Allegheny County'Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979). Thus,
unless the treatment is so absurd to
constitute unsound medical judgment (such
as Tylenol for severe head trauma), the
courts will not conclude that the course of
action taken constitutes medical
mistreatment.

needed or recommended medical
treatment.”).
The Third Circuit has distinguished
medical deliberate indifference claims into
two groups: those against non-medical staff
(such as guards, wardens, and
administrative personnel) and those against
medical staff themselves (such as doctors
and nurses).
If an inmate is receiving treatment
from medical staff, non-medical personnel
can be sued for deliberate indifference only
upon proof that the employee in question had
knowledge that the inmate was being
mistreated or not being treated at all. See
Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004) (“absent a reason to believe (or actual
knowledge) that prison doctors or their
assistants are mistreating (or not treating) a
prisoner, a non-medical prison official… will
not be chargeable with the Eighth
Amendment”); Durmer v. O'Carroll, 991 F.2d
64, 68 (3d Cir. 1992).

Of course, non-medical staff (such
as guards) can be found guilty of deliberate
indifference if they block inmate access to a
medical professional. For example, in Fielder
v. Boshard, 590 F.2d 105 (5th Cir. 1979), a
prisoner suffering from delirium tremens was
denied medical treatment by county officials
based upon their belief he was faking. Id. at
108. The prisoner's condition tragically
worsened, eventually culminating in his
death. Id. The Fifth Circuit affirmed the
damages award to his family, agreeing that
deliberate indifference existed. Id. at 110.
See also Aswegan v. Bruhl, 965 F.2d 676,
677-678 (8th Cir. 1992) (deliberate
indifference found when prison officials
denied 70-year-old inmate access to medical
personnel for coronary heart disease and
denied timely access to prescribed
medication); Hill v. Marshall, 962 F.2d 1209,
1211 (6th Cir. 1992) (deliberate indifference
found when prison official interrupted
prisoner's prescribed tuberculosis
medication); Lawson v. Dallas County, 286
F.3d 257, 262-264 (5th Cir. 2002) (affirming
deliberate indifference verdict where prison
staff failed to follow treatment prescribed by
outside physician to alleviate ulcers of
paraplegic inmate). These cases confirm that
when prison officials deny a prisoner access
to a medical professional or intentionally
block that professional's prescribed medical
treatment, deliberate indifference exists.

For example, in Brown v. Deparlos,
an inmate filed a deliberate indifference case
due to a herniated disc. 492 Fed. Appx. 211
(3d Cir. 2012), Brown received treatment
from medical staff ranging from a cervical
collar and medication to an MRI scan and
surgery. Citing Spruill, the Third Circuit
upheld dismissal of claims against the nonmedical personnel since he was under the
care of medical staff and there existed no
evidence that Brown was being mistreated or
not treated at all. See also Heffran v.
Mellinger, 324 Fed. Appx. 176, 180 (3d Cir.
2009); Jones v. Falor, 135 Fed. Appx. 554,
556 (3d Cir. 2005); Ali v. Terhune, 113 Fed.
Appx. 431, 437 (3d Cir. 2004).
In light of Spruill and Durmer,
inmates who are receiving medical treatment
cannot sue non-medical defendants absent
evidence that such defendants knew the
inmate was being "mistreated" or not treated
at all. Spruill, 372 F.3d at 236. What
constitutes mistreatment? Keep in mind that
"considerable latitude" is given to medical
authorities in the diagnosis and treatment of
inmates and courts will not "second guess" a

Non-medical prison staff who
intentionally delay a prisoner's access to a
medical professional or impede that
professional's medical treatment also exhibit
deliberate indifference. See Estelle, 429 U.S.
at 104; Ali v. McAnany, 262 Fed. Appx. 443,
445 (3d Cir. 2000) (prisoner stated Eighth
69

illness. See Farmer v. Brennan, 511 U.S. at
844 (state official who responds reasonably
to serious risk is free of Eighth Amendment
liability "even if the harm ultimately was not
averted").

Amendment claim where staff refused to
process request slip for medical treatment
based on inmate's failure to sign sick call
slip). However, deliberate indifference will
not be sustained absent proof that such
delay exposed the inmate to unnecessary
pain or harm. See Estelle, 429 U.S. at 106
(inmate must allege acts or omissions
"sufficiently harmful" to evidence deliberate
indifference). See also Berry v. Bunnell, 39
F.3d 1056, 1057 (9th Cir. 1994) (two-hour
delay in treatment for bladder infection not
deliberate indifference absent proof of harm);
Harris v. Coweta County, 21 F.3d 388, 393394 (11th Cir. 1994) ("The tolerable length of
delay in providing medical attention depends
on the nature of the medical need and the
reason for the delay”).

For example, in Oliver v. Beard, 358
Fed. Appx. 297 (3d Cir. 2009), an inmate
alleged that a prison doctor violated his
Eighth Amendment rights by failing to
properly treat a wrist injury. Id. at 299. The
Third Circuit dismissed the claim, noting that
Oliver received treatment for his injury,
including an x-ray, an arm sling, and
medication. Id. at 301. "Although Oliver
alleged that this treatment was inadequate,
disagreement over the proper course of
treatment does not amount to a constitutional
violation." Id. at 301.

The courts have also made clear that
when non-medical prison guards and other
administrative staff intentionally deny or
delay a prisoner's access to a medical
professional or interfere with the
professional's prescribed treatment,
deliberate indifference exists. To do
otherwise would pose grave threats to
inmate health.

In James v. Pennsylvania
Department of Corrections, an inmate
alleged an Eighth Amendment violation after
a prison dentist extracted an abscessed
tooth as opposed to James' preference for
less drastic action. 230 Fed. Appx. 195, 196
(3d Cir. 2007). The claim was dismissed.
"Although James may have preferred a
different course of treatment, his preference
alone cannot establish deliberate indifference
as such second-guessing is not the province
of the courts." Id. at 197. See also Iseley v.
Dragovich, 90 Fed. Appx. 577, 581 (3d Cir.
2004) (where inmate was given prescribed
diet, vitamins and pain medication for
Hepatitis C, no deliberate indifference
despite preference for Interferon medication);
Fortune v. Hamberger, 379 Fed. Appx. 116,
122 (3d Cir. 2010) (where migraine
medication was changed from Cafergot to
Midrin, no Eighth Amendment liability despite
claim that Cafergot was more effective). In
short, an inmate who has received
reasonable treatment for a serious medical
need has no Eighth Amendment case
against a prison physician even if an
alternative course of action would have been
more effective.

What happens, however, when
claims of inadequate medical care are
alleged against the medical professional
himself? As noted previously, the Third
Circuit gives tremendous deference to the
opinions of medical doctors and nurses in
deciding the proper course of treatment. See
Lasko v. Watts, 373 Fed. Appx. 196, 203 (3d
Cir. 2010) ("The standard for evaluating a
prisoner's deliberate indifference claim is
highly deferential to the medical practitioner's
professional judgment."). Under Estelle, a
prisoner is constitutionally entitled to
whatever treatment the medical professional
deems reasonably appropriate under the
circumstance.
What does this mean? Quite simply,
if a prisoner receives treatment for a serious
medical condition, the Courts will not find
Eighth Amendment liability even if the
diagnosis and treatment ultimately prove
incorrect and result in further pain and

And in Falciglia v. Erie County
Prison, a prisoner alleged that prison
authorities were deliberately indifferent when
70

they refused to provide him with an AMAapproved diabetic diet. 279 Fed. Appx. 138,
141 (3d Cir. 2008). The claim was dismissed
for failure to prove that their prescribed diet
was inappropriate for a diabetic. Id. at 141.

failure to follow the oral surgeon's course of
treatment "only constituted a medical
disagreement" which is "insufficient to
establish a constitutional claim." Id. at 173.
See also Hodge v. U.S. Dept. of Justice, 372
Fed. Appx. 264, 268 (3d Cir. 2010) (failure to
follow specialist's dietary recommendation for
Hepatitis C not deliberate indifference where
alternative medical diet provided); DavilaBajana v. Sherman, 278 Fed. Appx. 91, 9293 (3d Cir. 2008) (failure to provide surgery
as suggested by surgeon not deliberate
indifference where alternative treatment
provided); White v. Napoleon, 897 F.2d 103,
110 (3d Cir. 1990) (“No claim is stated when
a doctor disagrees with the professional
judgment of another doctor. There may, for
example, be several acceptable ways to treat
an illness.").

Under Estelle, claims of negligence
or medical malpractice by prison doctors also
do not rise to the level of an Eighth
Amendment violation. 429 U.S. at 106. Thus,
in Brown v. Chambersburg, a prisoner’s
claim of deliberate indifference was
dismissed despite a prison doctor's
conclusion that inmate chest pains stemmed
from a mere bruise instead of two actual
broken ribs. 903 F.2d 274, 278 (3d Cir.
1990). "The most that can be said of
plaintiff's claim is that it asserts the doctor's
exercise of deficient professional judgment."
Id.

In conclusion, once a prisoner's
illness or injury is determined to be serious,
Estelle requires that he or she receive
treatment deemed necessary by the medical
professional. The State cannot overrule that
decision based solely upon non-medical
financial or budgetary considerations. See
Monmouth County Correctional Inmates v.
Lanzaro, 834 F.2d at 337 (“economic factors
may … be considered in choosing the
methods used to provide meaningful access
to constitutionally-mandated services. But
the cost of protecting a constitutional right
cannot justify its total denial.”) (citations
omitted, alterations added); Harris v.
Thigpen, 941 F.2d 1495, 1509 (11th Cir.
1991) (lack of funds will not excuse the
failure of corrections system to maintain a
minimum level of medical services). As long
as the inmate receives treatment deemed
medically necessary by the prison doctor, he
or she has no basis to file an Eighth
Amendment claim.

The Estelle Court has made clear
that mere disagreements between prisoners
and their physicians do not rise to the level of
deliberate indifference. 429 U.S. at 106. The
Estelle Court has made clear that mere
allegations of medical malpractice and
negligence do not rise to the level of
deliberate indifference. Id. The Estelle Court
has made clear that an accidental or
inadvertent failure to provide medical care
does not rise to the level of deliberate
indifference. Id. What does violate the Eighth
Amendment is when prisoners receive no
treatment whatsoever for a serious medical
need, or the treatment provided was so
absurd to warrant a conclusion of deliberate
indifference. See Mandel v. Doe, 888 F.2d
783, 787-789 (11th Cir.1989) (providing only
Motrin for fractured hip amounted to no
treatment at all).
The courts have also made clear that
differences of opinions between medical
professionals do not constitute Eighth
Amendment violations. Thus, in Davis v.
Collins, 230 Fed. Appx. 172 (3d Cir. 2007),
an inmate's Eighth Amendment claim was
dismissed despite a prison dentist's rejecting
of an oral surgeon's recommendation and
instead proceeding with a tooth extraction.
Id. at 173. The Third Circuit concluded that

B. Prison Conditions
It is well-settled that "the treatment a
prisoner receives in prison and the conditions
under which he is confined are subject to
scrutiny under the Eighth Amendment."
Helling v. McKinney, 509 U.S. at 31. (1993).
In this section, we address the point when
71

prison conditions violate the Cruel and
Unusual Punishment Clause. As will be seen
below, the courts will uphold an Eighth
Amendment challenge to prison conditions
only when inmates prove: (l) that prison
conditions are serious in the sense they
deprive them of basic human needs and life
necessities; and (2) prison officials were
deliberately indifferent to those serious
prison conditions.

confinement in an overcrowded facility with
inadequate heating and cooling, improper
ventilation, unsanitary restroom and dining
facilities, excessive noise, and insufficient
locker and storage space. Id.
Writing for the majority, Justice
Scalia held that in addition to Rhodes'
requirement that prison deprivations must be
objectively serious, prisoners alleging cruel
and unusual punishment must also prove a
subjective component, which shows that
prison officials "possessed a culpable state
of mind." Id. at 297. In the context of adverse
conditions of confinement, Justice Scalia
held that deliberate indifference “would
constitute sufficient wantonness to satisfy the
Eighth Amendment.“ Id. at 298.

The two key precedents are Rhodes
v. Chapman, 452 U.S. 337 (1981), and
Wilson v. Seiter, 501 U.S. 294 (1991). At
issue in Rhodes was whether housing two
inmates in a cell designed for one constitutes
cruel and unusual punishment. 452 U.S. at
339. While acknowledging that confinement
in prison is a form of punishment subject to
Eighth Amendment scrutiny, the Rhodes
Court rejected prisoners' claims that housing
two inmates in a single cell constitutes cruel
and unusual punishment. Id. at 352. The
Court reasoned that "the Constitution does
not mandate comfortable prisons," Id. at 349,
and to "the extent that such conditions are
restrictive and even harsh, they are part of
the penalty that criminal offenders pay for
their offenses against society." Id. at 347.
The Court did note that prison conditions
"alone or in combination may deprive
inmates of the minimal civilized measure of
life's necessities" and thus violate the Eighth
Amendment. Id. at 347. In the case of the
Ohio prison before it, however, double-celling
had not deprived prisoners of essential food,
medical care, or sanitation. Id. at 348. Nor
had it increased violence or created otherintolerable conditions. Id. Hence, the Court
concluded that overall prison conditions were
not serious enough to form the basis for an
Eighth Amendment violation. Id.

Applying these standards to the case
before it, the Supreme Court remanded
Wilson back to the lower court for further
proceedings. Id. at 306. In regards to the
seriousness of prison conditions, the Court
held that Wilson must prove that conditions
deprived him of "life's necessities" or of "a
single identifiable human need" such as food,
warmth or exercise. Id. at 304. Secondly,
Wilson must establish that prison officials
were deliberately indifferent to such serious
conditions. Id. at 305. In other words, it is no
longer sufficient for a prisoner to prove that
he is confined under intolerable conditions.
He must also prove that prison officials had
knowledge of those conditions and yet failed
to take any reasonable action to correct
them. Id.
What are basic life necessities which
the Supreme Court deems worthy of Eighth
Amendment protection? There is no precise
list. However, in Rhodes, the Court cited
food, medical care, sanitation and protection
from violence as basic life necessities. 452
U.S. at 348. In Wilson, the Court identified
food, warmth and exercise as basic human
needs. 501 U.S. at 304. In Hope v. Pelzer,
the Court held that depriving a prisoner of
water and bathroom breaks -- while
handcuffed to an outside hitching post -- was
sufficiently serious to warrant Eighth
Amendment scrutiny. 536 U.S. 730, 744

In 1991 the Supreme Court agreed
to decide "whether a prisoner claiming that
conditions of confinement constitute cruel
and unusual punishment must show a
culpable state of mind on the part of prison
officials, and, if so, what state of mind is
required." Wilson v. Seiter, 501 U.S. at 296.
In Wilson, a prisoner alleged that his Eighth
Amendment rights were violated due to his
72

(2002). And in Helling v. McKinney, the Court
agreed that exposure to unreasonable levels
of tobacco smoke (which posed a serious
health risk) was subject to Eighth
Amendment review. 506 U.S. at 33. In short,
basic life necessities include those needs
considered essential to physical health and
well-being. When prison conditions threaten
such needs, Eighth Amendment scrutiny is
warranted.

necessity, a temporary denial of outdoor
exercise with no medical effects is not
serious); Booth v. King, 228 Fed. Appx. 167,
171 (3d Cir. 2007) (brief confinement in cell
with broken windows does not amount to
"extreme deprivation" required for Eighth
Amendment); Richardson v. Spurlock, 260
F.3d 495, 498 (5th Cir. 2001) (intermittent
exposure to second-hand tobacco smoke
during bus rides not objectively serious).

In contrast, the Supreme Court has
stated that the denial of job and educational
opportunities are not life necessities since
their deprivation does not inflict pain or
jeopardize inmate health. Rhodes, 452 U.S.
at 348. The Supreme Court has also
concluded that a two-year ban on visitation
was not an Eighth Amendment violation
because it did not "create inhumane prison
conditions, deprive inmates of basic
necessities, or fail to protect their health or
safety." Overton v. Bazzetta, 539 U.S. 126,
137 (2003). In light of such reasoning, the
Third Circuit has concluded that the loss of
minor privileges is not worthy of
constitutional protection. See Johnson v.
Burris, 339 Fed. Appx. 129, 131 (3d Cir.
2009) (loss of privileges insufficient to rise to
level of serious deprivation); McDowell v.
Litz, 419 Fed. Appx. 149 (3d Cir. 2011)
(suspension of telephone privileges and loss
of prison job are not basic necessities).

The Third Circuit has in several
cases applied these principles to inmate
claims of overcrowded prisons. In Hassine v.
Jeffes, the Third Circuit rejected a claim that
conditions at SCI-Graterford violated the
Eighth Amendment. 846 F.2d 169, 175 (3d
Cir. 1988). Although acknowledging that
conditions were sub-standard, the Court held
that they had not reached the point of
depriving inmates of basic necessities. Id. at
175. In Peterkin v. Jeffes, 855 F.2d 1021 (3d
Cir. 1988), the Third Circuit rejected a claim
that death-row conditions at SCI-Graterford
and SCI-Huntingdon violated the Eighth
Amendment. Id. at 1022. Conditions were not
dangerous, intolerable or shockingly
substandard, and hence, not serious enough
to deprive inmates of basic human needs. Id.
at 1027. On the other hand, in Tillery v.
Owens, 907 F.2d 418 (3d Cir. 1990) the
Third Circuit upheld an Eighth Amendment
challenge to SCI-Pittsburgh prison
conditions. Id. at 428. In that case, the
plaintiffs proved that overcrowded, violent,
unsanitary and dilapidated conditions
deprived inmates of their basic needs to
sanitation, safety and medical care. Id. at
428.

Whether or not a particular prison
condition warrants Eighth Amendment
scrutiny turns not only on the nature and
severity of the condition, but also on its
duration. See Hutto v. Finney, 437 U.S. 678,
686 (1978) (a filthy overcrowded cell and diet
of “grue” may be tolerable for a few days but
intolerably cruel for weeks or months). Shortterm or temporary deprivations with no ill
effects do not rise to the 'severity of Eighth
Amendment standards. See Fortune v.
Hamberger, 379 Fed. Appx. 116, 122 (3d Cir.
2010) (denial of showers, exercise and
hygienic materials during fifteen-day RHU
confinement "insufficiently serious to
implicate the Eighth Amendment"); Norwood
v. Vance, 572 F.3d 626, 633 (9th Cir. 2009)
(although exercise is a basic human

In conclusion, prison conditions must
deprive inmates of some basic human
necessity in order to be considered serious
enough to trigger Eighth Amendment review.
Absent such proof, a claim of cruel and
unusual punishment will not be sustained.
See Gannaway v. Berks County Prison, 439
Fed. Appx. 86 (3d Cir. 2011) (disciplinary
"nutraloaf" diet did not deprive inmates of
basic life necessities); Stewart v. Beard, 417
Fed. Appx. 117 (3d Cir. 2011) (constant low
intensity lights in RHU cells not sufficiently
73

issued inmates face masks, jumpsuits, and
insulated gloves. Id. at 179. Inmates were
also trained in the use of chemical products.
Id. Citing Farmer, the Third Circuit dismissed
the case, concluding that prison officials had
acted reasonably in the face of a known risk
to inmate health. Id. at 179.

serious absent proof of physical or mental
harm); Hubbard v. Taylor, 538 F.3d 229 (3d
Cir. 2008) (requiring inmates to sleep on floor
mattresses due to overcrowding not serious
where prisoners enjoyed access to day
rooms). Compare Graves v. Arpaio, 623
F.3d 1043, 1049 (9th Cir. 2010) (dangerously
high air temperatures on cellblock were
sufficiently serious health hazard to inmates
taking psychotropic medication).

In Palmer v. Johnson, an Eighth
Amendment claim was filed alleging that
prison officials ordered an inmate labor detail
to remain overnight in a field as punishment.
193 F.3d 346, 349 (5th Cir. 1999). The Fifth
Circuit sided with the plaintiffs. First, the
refusal of authorities to provide inmates
protection from the wind and cold constituted
denial of basic life necessities. Id. at 353.
Secondly, the Court held that the prison
warden exhibited deliberate indifference to
the inmates' health and safety needs
because he ordered the disciplinary action.
Id. at 353.

Of course, it is insufficient to prove
that prison conditions are objectively serious.
Prisoners claiming Eighth Amendment
violations must also prove that prison
authorities have a "sufficiently culpable state
of mind" which, in prison conditions litigation
has been defined as deliberate indifference.
See Wilson, 501 U.S. at 303. Accordingly, "a
prison official may be held liable under the
Eighth Amendment for denying humane
conditions of confinement only if he knows
that inmates face a substantial risk of serious
harm and disregards that risk by failing to
take reasonable measures to abate it.
Farmer, 511 U.S. at 847; See also, BeersCapitol v. Whetzel, 256 F.3d 120, 138 (3d
Cir. 2001) (deliberate indifference standard
"requires more than evidence that the
defendants should have recognized the
excessive risk and responded to it; it requires
evidence that the defendant must have
recognized the excessive risk and ignored
it").

In Simmons v. Cook, two paraplegic
prisoners successfully sued prison officials
for denying them food while confined in a
segregation unit. 154 F.3d 805, 808 (8th Cir.
1998). The Eighth Circuit agreed that the
plaintiffs satisfied both the objective and
subjective components of the Eighth
Amendment. Id. Denial of food is a life
necessity, yet the defendants, upon being
informed that the inmates' wheel chairs could
not reach the cell door, intentionally ignored
the problem. Id.

In Ward v. Lamanna, inmates
alleged their Eighth Amendment rights were
violated due to an excessive risk of lung
cancer stemming from contaminated air in a
prison factory. 334 Fed. Appx. 487, 489 (3d
Cir. 2009). The case was dismissed due to
failure to prove deliberate indifference. Citing
Wilson, the Court concluded that the plaintiffs
failed to prove that prison staff was aware of
unreasonable health risks due to poor air
quality. Id. at 491.

Finally, it should be noted that prison
officials, and their attorneys, often argue that
"accreditation by the American Correctional
Association is proof that the conditions in
question don't violate the Eighth
Amendment." Gates v. Cook, 376 F.3d 323,
337 (5th Cir. 2004). This is a false
proposition that has been thoroughly rejected
by the Supreme Court. See Bell v. Wolfish,
441 U.S. 520, 543n. 27 (1979) ("And while
the recommendations of these various
groups may be instructive in certain cases,
they simply do not establish the
Constitutional minima; rather, they establish
goals recommended by the organization in
question."); Gates, 376 F.3d at 337

In Heffran v. Mellinger, inmates
alleged that exposure to dangerous fumes in
the prison's shoe shop constituted cruel and
unusual punishment. 324 Fed. Appx. 176,
178 (3d Cir. 2009). In this case, prison staff
74

Jones acknowledged that he had never
informed the defendants that he feared that
he would be attacked by Hill, and he has
presented no evidence that the defendants
were independently aware that Hill posed a
threat to him or was generally prone to
violence." Id. at 133.
In Thrower v. Alvies, an inmate filed
suit alleging that prison officials violated his
rights after he was sexually assaulted by two
inmates. 425 Fed. Appx. 102, 103 (3d Cir.
2011).The case was dismissed. Evidence
revealed that Thrower submitted a request
form prior to the assault, seeking a cell
transfer because of other inmates'
"nonsense" and "disrespect." Id. The Third
Circuit concluded that the request form was
insufficient to alert authorities of any specific
danger. Id. at 105.

("Compliance with ACA Standards may be
relevant consideration" but "is not per se
evidence of constitutionality"). In fact, the
lower courts have found Eighth Amendment
violations despite ACA accreditation awards.
See Gates, 376 F.3d at 337 (finding cruel
and unusual punishment due to filthy cells,
excessive heat, and inadequate lighting
despite compliance with ACA standards). Of
course, this is a double-edged sword
affecting prisoners as well as their jailers: just
as adherence to ACA standards does not
necessarily mean compliance with Eighth
Amendment requirements, noncompliance
with ACA standards does not necessarily
mean cruel and unusual punishment.
C. Prison Violence
The key Eighth Amendment
precedent regarding inmate violence is
Farmer v. Brennan, 511 U.S. 825 (1994).
The Court held that prison officials have a
duty to protect prisoners from violence at the
hands of other inmates. Id. at 833. However,
not every inmate assault translates into
constitutional liability for prison officials. Id. at
834. "Our cases have held that a prison
official violates the Eighth Amendment only
when two characteristics are met." Id. First, a
prisoner must prove "that he is incarcerated
under conditions posing a substantial risk of
serious harm." Id. Secondly, a prisoner must
also prove that prison officials were
"deliberately indifferent" to this substantial
risk of serious harm. Id. at 831. A prison
official will be held liable under the Eighth
Amendment for failure to protect "only if he
knows that inmates face a substantial risk of
serious harm and disregards that risk by
failing to take reasonable measures to abate
it." Id. at 847.

In Robinson v. Johnson, a
Pennsylvania RHU inmate brought suit after
he was attacked (while handcuffed) by
another RHU inmate (whose handcuffs had
been removed). 449 Fed. Appx. 205, 206 (3d
Cir. 2011). Applying Farmer, the Third Circuit
rejected the Eighth Amendment claim. First,
Robinson conceded that prison officials had
no prior knowledge of the impending attack.
Id. at 208. Secondly, he failed to show
evidence indicating that a substantial risk of
harm existed due to the RHU policy of
exposing cuffed inmates to uncuffed inmates
during entry into the fenced exercise area. Id.
at 208.
In Jones v. Beard, 145 Fed. Appx.
743 (3d Cir. 2005), an inmate (Jones)
alleged that prison officials failed to protect
him from an assault by his cellmate
(Marshall). Id. at 744. In this case, Jones had
told several guards that he and Marshall
"were not getting along" and asked for a cell
transfer. Id. at 745. Citing Farmer, the Third
Circuit held that "the record is devoid of
evidence establishing that Jones articulated
specific threats of serious harm" and thus,
guards had no actual knowledge of a serious
risk. Id.

The Third Circuit has reviewed
numerous failure-to-protect cases. For
example, in Jones v. Burlington County
Board of Chosen Freeholders, an inmate
(Jones) filed suit claiming his rights were
violated when he was attacked, without
warning or provocation, by another inmate
(Hill). 428 Fed. Appx. 131 (3d Cir. 2011). The
case was dismissed. "In his deposition,

Under Farmer, a prison official will
be held liable under the Eighth Amendment
75

Cir. 2009). Despite knowledge of this threat,
Mahlmeister took no action, and shortly
thereafter, Scott was attacked with a razor.
Id. The Third Circuit affirmed the jury verdict
in favor of Scott. "The jury returned with a
verdict finding that Mahlmeister violated
Scott's civil rights because she knew that
there was a substantial risk that the other
inmate (Paige) would attack Scott but
deliberately disregarded it." Id.

for failure to protect only if he knows that an
inmate faces a risk of serious harm (objective
component) and disregards that risk
(subjective component) by failing to take
reasonable measures to abate it. 511 U.S. at
847. For example, when prison officials
actually witness an assault by one prisoner
upon another and fail to take reasonable
action, deliberate indifference exists. See
Stubbs v. Dudley, 849 F.2d 83, 86-87 (2d
Cir. 1988) (prison guard liable for failure to
offer protection to inmate being chased by
armed prisoners); Walker v. Norris, 917 F.2d
1449, 1453 (6th Cir. 1990) (where prison
guards failed to restrain and disarm inmate,
and permitted attack to continue, deliberate
indifference to serious risk of harm existed).

These cases confirm that when a
serious risk of harm exists regarding a
particular prisoner, prison officials will be held
accountable under the Eighth Amendment
when they have knowledge of that risk and
fail to respond with reasonable safety
measures. See also Robinson v. Prunty, 249
F.3d 862 (9th Cir. 2001)(where prison
officials had prior knowledge of racial fights
in segregation yard, placing inmates of
different races in yard at same time suggests
deliberate indifference); Newman v. Holmes,
122 F.3d 650 (8th Cir. 1997) (deliberate
indifference to serious risk of harm existed
when prison guard opened cell of inmate on
lockdown status, permitting attack upon other
prisoners); Marsh v. Butler County, Alabama,
268 F.3d 1014 (11th Cir. 2001) (where prison
warden knew of defective locks, availability
of homemade weapons, and inadequate
classification system, deliberate indifference
to a serious risk of harm existed).

Another scenario which would
support liability under Farmer is when prison
officials have knowledge of a substantial risk
of harm involving a particular inmate yet fail
to take reasonable action to avert the
subsequent violence. For example, in
Hamilton v. Leavy, an inmate claimed prison
officials knew of and disregarded an
excessive risk to his safety by placing him in
the general population. 117 F.3d 742 (3d Cir.
1997). In this case, the plaintiff (Hamilton)
was transferred out of Delaware and into the
federal prison system for his own protection
after several attacks by other inmates for
cooperating with investigators about drug
trafficking. Id. at 745. Upon return to
Delaware, Hamilton was placed in the
general population and assaulted yet again.
Id. The Third Circuit held, first, that in light of
Hamilton's prior history of being assaulted
and his cooperation with state authorities,
placing him in the general population posed
a significant risk of harm. Id. at 747.
Secondly, the Court stated that the failure to
confine Hamilton in protective custody,
despite the recommendation of staff and
personal knowledge of the risks facing
Hamilton, suggested deliberate indifference.
Id. at 747-748.

On the other hand, where prison
officials lack knowledge of a substantial risk
of harm, a plaintiff's Eighth Amendment claim
will fail under Farmer. See Klebienowski v.
Sheehan, 540 F.3d 633, 639 (7th Cir. 2008)
(prisoner's statement that he "was afraid for
his life" not specific enough to alert prison
officials of substantial risk of harm); Butera v.
Cottey, 285 F.3d 601 (7th Cir. 2002)
(inmate's vague statements to guards that he
"was having problems on the block" deemed
insufficient to give notice of a specific risk).
Allegations that an inmate assault resulted
from official negligence are also insufficient
to state an Eighth Amendment case. See
Bailey v. U.S. Marshals Service, 426 Fed.
Appx. 44 (3d Cir. 2011) (allegation that
authorities were negligent in housing him in

In Scott v. Mahlmeister, a prisoner
(Scott) informed a staff member
(Mahlmeister) that another inmate had
threatened him. 319 Fed. Appx. 160, 161 (3d
76

a particular state official had direct
knowledge of a specific and substantial risk
of harm. See Farmer, 511 U.S. at 832
(urging inmates to utilize the grievance
system to verify their claims). As for the
failure to act reasonably in the face of a
known risk, the requisite proof will depend on
the circumstances of the assault. Prison
officials who take no action whatsoever,
despite knowledge of a serious risk of harm,
are most vulnerable to liability under Farmer.

county jail insufficient). Finally, prison
officials who actually know of a substantial
risk to inmate safety may escape liability if
they respond reasonably to the risk, even if
harm was not averted. See Farmer, 511 U.S.
at 844; Arnold v. Jones, 891 F.2d 1370,
1373 (8th Cir. 1989) (failure to stop fight not
deliberate indifference where responding
guards were outnumbered and intervention
may have escalated disturbance).
In summary, an Eighth Amendment
failure-to-protect case will not be sustained
absent proof: (1) that a substantial risk of
serious harm existed; and (2) prison officials
were deliberately indifferent to this
substantial risk in the sense they possessed
knowledge of the risk yet failed to take
reasonable safety measures to abate it.
Farmer, 511 U.S. at 847n.9. Since all prisons
are potentially dangerous, the mere fact of
being incarcerated is not sufficient by itself to
constitute a substantial risk. Rather, there
must exist facts indicating the risk of assault
was serious. For example, a prisoner
required to double-cell with an inmate with a
long history of predatory behavior may face a
substantial risk of assault. Likewise, certain
prisoners (inmate informants, child sex
offenders, young and weaker inmates, and
rival gang members) placed in dangerous
housing may face a substantial risk of
assault. Finally, any prisoner incarcerated in
a facility in which violence and chaos is
pervasive and widespread may also face a
substantial risk of serious harm. Before filing
suit, however, extensive research must be
conducted to locate other cases with similar
factual backgrounds to determine what
evidence should be presented to satisfy
Farmer’s requirement of serious risk of harm.

D. Sexual Abuse Of Female
Prisoners
In Farmer v. Brennan, 511U.S. at
832 the Supreme Court agreed that while the
Constitution does not mandate comfortable
prisons, it does not permit inhumane ones
either. Id. at 1976. Being violently assaulted
in prison is simply not part of the penalty that
criminal offenders pay for their offenses. Id.
at 1977. In this section, we review Eighth
Amendment claims involving allegations of
sexual assaults of female prisoners by male
prison guards.
According to Farmer, a prison official
will be held liable under the Eighth
Amendment "only if he knows that inmates
face a substantial risk of serious harm and
disregards that risk by failing to take
reasonable measures to abate it." Id. at
1984. Absent proof of these elements a
serious risk of harm and deliberate
indifference to that risk, Eighth Amendment
liability will not be sustained. Id. at 1982
("prison officials who lacked knowledge of a
risk can't be said to have inflicted
punishment").
In most Eighth Amendment sexual
assault cases, female prisoners file suit
against two sets of individual defendants: (a)
the male guard who committed the sexual
assault; and (b) the supervisors with
oversight responsibilities of the male guard.
See Beers-Capitol v. Whetzel, 256 F.3d 120
(3d Cir. 2001). With regard to each
defendant, the prisoner must allege and
prove: (1) that there existed a serious risk of
sexual assault; and (2) that the defendant
was deliberately indifferent to that risk in the

Of course, establishing a substantial
risk of harm is only the first half of Farmer.
Prisoners must also establish deliberate
indifference, that is, proof that prison officials
had knowledge of a substantial risk of harm
yet failed to take any reasonable action to
avert an assault. Satisfying the knowledge
requirement can be accomplished by
introducing documentary evidence (e.g.,
request forms and grievances) verifying that
77

sense he possessed knowledge of the risk
yet failed to take reasonable safety
measures to abate it. Farmer, 511 U.S. at
831.

First off, many judges agree that the
presence of a sexually assaultive male
prison guard poses a significant risk of harm
to female inmates. See Beers-Capitol, 256
F.3d at 130 (noting that both parties agreed
that Whetzel's sexual assaults upon female
juveniles constituted an objectively serious
risk of harm). Secondly, a sexually-assaultive
prison guard cannot escape liability by
claiming a lack of knowledge of his own
misconduct or that he acted reasonably
under the circumstances. See Carrigan, 70
F.Supp.2d at 452 (sexual contact between a
prison inmate and a prison guard constitutes
deliberate indifference toward the inmate's
well-being, health and safety). Accordingly,
Eighth Amendment claims against the
sexually-assaultive guard himself should
prove easy under Farmer. See BeersCapitol, 256 F.3d at 125 (noting a $200,000
judgment against a sexually-assaultive male
staff member at a juvenile facility).

Before analyzing cases of sexual
misconduct, we strongly recommend that
female prisoners who have been sexually
assaulted (or threatened with assault) by
male prison guards report the crime
immediately without hesitation. No matter
how degrading and intrusive post-assault
medical examinations and official inquiries
are, the alternative is infinitely worse. Sexual
predators rarely stop. By reporting the
assault immediately, physical evidence can
be gathered and preserved, and credibility
will be sustained. Bear in mind that male
prison guards confronted with accusations of
sexual misconduct will vehemently deny the
charge given the enormous stakes at issue
(criminal charges and incarceration;
termination of job and pension loss; divorce
and public humiliation). See Institutional
Sexual Assault Statute, 18 PA.C.S.A. §
3124.2 (any Pennsylvania prison employee,
engaged in sexual relations with an inmate,
commits a first-degree misdemeanor). The
fact that the accuser is a convicted felon only
increases the likelihood that the accused
staff member will deny the assault and rely
upon a strategy of testing the female
prisoner's credibility. Accordingly, it is critical
that the misconduct be immediately reported
in order that physical evidence is preserved
and the sexual predator is scientifically linked
to his assault.

Establishing Eighth Amendment
liability against a prison supervisor, on the
other hand, is very difficult under Farmer.
Farmer, 511 U.S. at 844 (prison officials may
show "that they did not know of the
underlying facts indicating a sufficiently
substantial danger and that they were
therefore unaware of a danger, or that they
knew the underlying facts but believed that
the risk to which the facts gave rise was
insubstantial or nonexistent"). Consequently,
a female litigant must determine whether any
evidence exists that the supervisor had
knowledge that a male prison guard was
committing sexual misconduct. Unless a
female prisoner is confined in a prison where
the risk is pervasive and longstanding, it is
challenging to satisfy Farmer's deliberate
indifference standards. See Farmer, 511
U.S. at 540-541; Newby v. District of
Columbia, 59 F.Supp.2d 35 (D.D.C. 1999)
(Eighth Amendment violation where females
were forced by guards to participate in strip
shows); But see Morris v. Eversley, 282
F.Supp.2d at 208 (supervisory officials not
liable for sexual assault absent proof that
officials had knowledge of guard's behavior).

Assuming a female prisoner can
prove that she was in fact sexually assaulted
by a male prison guard, satisfying Farmer's
Eighth Amendment deliberate indifference
standards against the sexually assaultive
prison guard should be relatively easy. See
Carrigan v. Davis, 70 F. Supp.2d 448 (D. Del.
1999) (female inmate kept condom for
testing rather than throw it away as ordered
by guard); Morris v. Eversley, 205 F.Supp.2d
234 (S.D.N.Y. 2002) (female prisoner
retained bed sheet which later confirmed the
presence of semen).
78

The Farmer Court held that state
authorities violate the Eighth Amendment
only if "the official knows of and disregards
an excessive risk to inmate health or safety."
511 U.S. at 487. While satisfying this
standard against supervisory officials is
difficult in sexual assault cases (since sexual
predator guards attempt to conceal such
criminal acts), it is not impossible.

The key Third Circuit decision in this
area is Beers-Capitol v. Whetzel, 256 F.3d
120 (3d Cir. 2001) where two former female
juveniles brought suit claiming a violation of
their Eighth Amendment rights after being
sexually assaulted by a male staff member
(Whetzel). Id. at 125. Having obtained a
$200,000 judgment against Whetzel plaintiffs
sought additional damages against Whetzel's
supervisors and coworkers for failing to take
reasonable safety measures. Citing Farmer,
the Third Circuit held that the defendants
could be found liable only if the officials knew
of and disregarded an excessive risk to
inmate health and safety. Id. at 131. In this
case, the Third Circuit agreed that all
defendants except one did not have
knowledge of Whetzel's sexual assaults
against female juveniles. Id. at 140.
Accordingly, all defendants were absolved of
Eighth Amendment liability with the exception
of one counselor who "had heard general
rumors from the residents that Whetzel was
having sex with some of the female
residents." Id. at 141. The Third Circuit
remanded the case back to the lower court to
determine whether such rumors were
sufficient to provide the counselor with
enough information so as to trigger
reasonable action under Farmer to protect
the plaintiffs from sexual assault. Id. at 144.

For example, at issue in Ortiz v.
Jordan, was whether a defendant may
appeal a denial of qualified immunity after a
full trial on the merits. 131 S.Ct. 884, 888
(2011). In this case, a female prisoner
(Ortiz) was sexually assaulted by a prison
guard on two consecutive evenings. After the
first assault, Ortiz reported the incident to her
case manager (Jordan). Id. Jordan merely
advised Ortiz to "hang out" with friends so
that the guard would not be alone with her.
Id. at 890. That very evening, however, Ortiz
was sexually assaulted again. Id. The
Supreme Court ruled in favor of Ortiz in
terms of the qualified immunity issue and
sustained the damages award against
Jordan and another official. Key to the jury's
verdict was evidence establishing that
Jordan knew of the first assault yet failed to
take reasonable safety measures to prevent
the second attack. Id. at 890.
In Ware v. Jackson County, Mo., a
female prisoner (Ware) brought suit against
prison authorities after a prison guard
(Toomer) raped her at the county jail. 150
F.3d 873, 876 (8th Cir. 1998). The Eighth
Circuit affirmed the $50,000 damages award
against the County and the Director of the
jail. Id. In this case, the evidence revealed
that sexual assaults against female prisoners
were not limited to a single rogue guard or
"bad apple." Rather, there existed "a
continuing, widespread, and persistent
pattern of unconstitutional conduct." Id. at
881. Citing Farmer, the Eighth Circuit agreed
the County’s deliberate indifference "is
evidenced by its failure to discipline CO
Toomer and other officers who engaged in
sexual misconduct when there was ample
evidence that female inmates were placed at
substantial risk of serious harm." Id. at 883;

Likewise, in Hovater v. Robinson, a
female prisoner brought suit alleging that her
Eighth Amendment rights were violated when
she was sexually assaulted by a prison
guard. 1 F.3d 1063, 1064 (10th Cir. 1993).
The Tenth Circuit held that Hovater failed to
establish a claim against the sheriff since
there existed no evidence that the sheriff had
knowledge that the prison guard was a threat
to female inmates. Id. at 1068. See also
Daniels v. Delaware, 120 F.Supp. 2d
(supervisors not liable where no evidence
presented that they knew of or acquiesced in
guard's misconduct); Berry v. Oswalt, 143
F.3d 1127, 1131 (8th Cir. 1998) (supervisors
not liable where evidence failed to show they
knew prison guard was a threat to female
inmates).
79

that prisoner is shot by officials attempting to
quell a prison disturbance.

see also Riley v. Olk-Long, 282 F.3d 592 (8th
Cir. 2002) (where prison warden and security
director had prior knowledge of guard's
sexual misconduct yet allowed him
unsupervised contact with inmates,
deliberate indifference established).

The Whitley Court held that the
Eighth Amendment is not violated when
prison officials use force to suppress a prison
disturbance as long as the force is used in a
"good faith effort to maintain or restore
discipline" and is not used "maliciously and
sadistically for the very purpose of causing
harm." Id. at 320. In determining whether
prison officials acted in "good faith" or
"maliciously and sadistically" depends upon
the evaluation of such factors as: (1) the
need for the application of force; (2) the
relationship between the need and the
amount of force actually used; (3) the extent
of injury inflicted; (4) the extent of the threat
to the safety of staff and inmates, as
reasonably perceived by responsible officials
on the basis of the facts known to them; and
(5) the efforts made to lessen the severity of
the use of force. Id. at 321.

These cases confirm that a
supervisor can be held liable for Eighth
Amendment violations under Farmer if he
knows of and disregards an excessive risk to
inmate safety. 511 U.S. at 487. If a
supervisor has knowledge of a subordinate's
sexually assaultive behavior, yet fails to take
reasonable safety measures to protect
inmates, liability will be sustained under
Farmer.
E. Excessive Force
The use of force to quell prison
disturbances and unruly prisoners is a
common occurrence in Pennsylvania's
correctional systems. Overcrowded prison
conditions and repressive rules combine with
angry and sometimes violent prisoners to
produce a tinderbox ready to explode. While
prison officials are accorded wide latitude in
responding to disturbances and defiant
prisoners, their use of force becomes
unconstitutional when it is not applied "in a
good faith effort to maintain or restore
discipline," but rather is applied "maliciously
and sadistically for the very purpose of
causing harm." Whitley v. Albers, 475 U.S. at
320.

Applying these factors to the case at
hand, the Supreme Court concluded that
prison officials had not violated Albers' Eighth
Amendment rights because the shooting
"was part and parcel of a good-faith effort to
restore prison security." Id. at 1087.
Whereas Whitley focused upon the
subjective component of the Eighth
Amendment and held that a "malicious and
sadistic" test was the appropriate level of
proof in an excessive force case, the
Supreme Court's review in Hudson v.
McMillian, would focus on the objective
component. 503 U.S. 1 (1992). At issue in
Hudson was the beating of Louisiana
prisoner Keith Hudson by two prison guards.
Id. at 4. According to the record, the guards
punched and kicked Hudson while he was
handcuffed and shackled. Id. Their
supervisor watched the beating but merely
told the officers "not to have too much fun."
Id. As a result, Hudson suffered minor
bruises and swelling of his face in addition to
loosened teeth and a cracked dental plate.
The Supreme Court granted review to
determine whether the use of excessive
force against a prisoner constitutes cruel and

At what point the use of force
crosses the line to constitute cruel and
unusual punishment has been addressed by
the Supreme Court in two cases. At issue in
the first case, was an Oregon prison riot in
which a prison guard was taken hostage.
Whitley, 475 U.S. at 314. Whitley, the
prison's security manager, led an armed
assault team into the cellblock to rescue the
hostage. Id. at 1082. Shooting erupted and
Albers, a prisoner not involved in the riot,
was wounded in the leg. Id. The Supreme
Court granted review to decide what
standard governs a prisoner's right to be free
from cruel and unusual punishment when
80

unusual punishment when the prisoner does
not suffer serious injury.

whether the force was applied maliciously
and sadistically to cause harm. Id. at 1179.
The case was remanded back to permit
Wilkins to prove that the assault violated the
Eighth Amendment.

The Hudson Court agreed that the
use of excessive force against a prisoner
may constitute cruel and unusual punishment
"whether or not significant injury is evident."
Id. at 9. According to the Court, the
seriousness of an injury is but one factor to
consider when determining whether the force
was used in a good faith effort to maintain or
restore discipline or was a malicious and
sadistic infliction of harm. Id. at 6. Other
determining factors include whether the force
was necessary, the relationship between the
necessity and the amount of force applied,
the threat to the prison official's safety and
any efforts made to temper the severity of a
forceful response. Id. Thus, while the extent
of a prisoner's injuries is one factor that the
courts may consider, significant injury to the
prisoner is not a threshold or dispositive
requirement for an excessive force claim. Id.
at 9.

In light of Whitley, Hudson, and
Wilkins, it is clear that whether the force used
constitutes cruel and unusual punishment
hinges on one pivotal question: Was the
force applied in a good faith effort to maintain
or restore discipline, or was it applied
maliciously and sadistically to cause harm?
In making this determination, the lower
courts must examine all of the Whitley
factors and not simply the extent of the
prisoner's injuries.
For example, in Brooks v. Kyler, 204
F.3d 102 (3rd Cir, 2000), a Camp Hill
prisoner brought suit, claiming that prison
guards repeatedly punched and kicked him
while he was handcuffed to a waist restraint
belt. Id. at 104. The district court granted
summary judgment to the defendants,
accepting their argument that the medical
evidence in the record only revealed a few
scratches to Brooks' neck and wrists and
therefore constituted only a de minimis use
of force. Id. at 105. The Third Circuit
reversed and remanded the case back to the
lower court. Id. at 109. First, the Third Circuit
held that Brooks' allegations of three guards
repeatedly punching and kicking him,
rendering him unconscious, "rises far above
the de minimis level" and thus created a
dispute of material fact which could not be
resolved on summary judgment. Id. at 107.
Secondly, the Third Circuit held that the
extent of injury is but one factor to be
considered in the Hudson analysis and "that
the absence of objective proof of non-de
minimis injury does not alone warrant
dismissal." Id. at 108.

The Hudson Court went on to note,
however, that not "every malevolent touch by
a prison guard gives rise to a federal cause
of action. Id. The Eighth Amendment's
prohibition of cruel and unusual punishment
excludes from recognition a "de minimis" use
of force (such as a push and shove). Id. at
10. In this case, however, the Court
determined that Hudson’s injuries, including
bruises, swelling, loosened teeth, and a
cracked dental plate "are not de minimis for
Eighth Amendment purposes.
In Wilkins v. Gaddy, the Supreme
Court reaffirmed Hudson in a case brought
by a North Carolina inmate alleging that he
was slammed to the floor and punched,
kicked, kneed and choked by a prison guard.
130 S.Ct. 1175, 1177 (2010). The lower
courts dismissed the claim, concluding that
Wilkins' injuries were “de minimis" and had
not required medical attention. Id. at 1177.
The Supreme Court reversed, concluding
that the circuit had strayed from the clear
holding in Hudson. Id. at 1178. The core
judicial inquiry is not whether a certain
quantum of injury was sustained, but rather

So what evidence should a prisoner
submit to establish an Eighth Amendment
violation under Whitley and Hudson? First,
he should submit proof (such as medical
records) verifying all injuries sustained during
the incident. Keep in mind that if a prisoner's
injuries were not de minimis, the use of force
81

sprayed a second time and had no access to
water or medical attention to clean his face of
the chemical agent. Id. at 701-702.

creating such injuries was not de minimis
either. Failure to establish something more
than de minimis injury is not fatal to
excessive force claim under Whitley;
however, it is a step towards case dismissal.
See Washam v. Klopotoski, 403 Fed. Appx.
636, 640 (3d Cir. 2010) ("Although de
minimis injuries alone are not enough to
justify a grant of summary judgment on an
excessive force claim, in this instance they
are indicative of the fact that the force utilized
was also de minimis.").

Each of the Whitley factors requires
analysis and evidentiary support. Keep in
mind that Whitley does not prohibit the use of
force; it prohibits only the malicious and
sadistic use of force. Inmates that barricade
their cells or refuse to comply with lawful
orders (particularly while videotaped) can
expect little sympathy from federal judges.
As long as prison officials halt the use of
force upon obtaining control of the inmate,
the courts will conclude that it was a "good
faith effort to restore prison security." Id. at
326. It is only when prison guards continue to
punch, kick and injure a prisoner after he has
been subdued is there a malicious and
sadistic use of force. See Giles v. Kearney,
571 F.3d 318, 327 (3d Cir. 2009) ("No
reasonable officer could agree that striking
and kicking a subdued, non-resisting inmate
in the side, with force enough to cause a
broken rib and collapsed lung, was
reasonable or necessary under established
law.").

A prisoner's injury is only one of the
Whitley factors. Other factors include the
reason for the force and the existence of any
threats to other inmates and staff. 475 U.S.
at 321. For example, shooting an unarmed
prisoner was not considered excessive in
Whitley given the need to rescue a hostage
and the dangers posed by a prison riot. 475
U.S. at 323. On the other hand, pulling a
non-resisting handcuffed prisoner off a truck
by his ankles, resulting in head trauma, was
considered excessive given the absence of
danger to staff. See Davis v. Locke, 936 F.2d
1208 (11th Cir. 1991). The Whitley decision
requires judges to evaluate evidence
concerning the reason for the force and also
whether the force used was proportional to
the threat facing prison authorities. 475 U.S.
at 321. In other words, as the threat to
human life and institutional safety escalates,
so does the amount and severity of the force
to control that threat.

In Adderly v. Ferrier, 419 Fed. Appx.
135 (3d Cir. 2011) the Third Circuit rejected
the excessive force claims of an inmate
subjected to pepper spray during several cell
extractions. In this case, the inmate refused
to submit to handcuffing and barricaded his
cell door. Although the plaintiff alleged he
was repeatedly punched by the extraction
team, the Court was more persuaded by the
videotape showing "the defendants used only
the amount of force necessary to diffuse a
threat caused by Adderly's refusal to comply
with simple orders." Id.

The courts must also examine
evidence concerning official efforts to lessen
the severity of the use of force. Id. Did prison
officials halt the use of force at the point
control was reestablished and the prisoner
was subdued? Was the prisoner provided
medical treatment? For example, in Jones v.
Shields, the use of pepper spray was not
considered "malicious or sadistic where it
was not used in excessive quantities and the
prisoner was provided immediate medical
assistance. 207 F.3d 491, 497 (8th Cir.
2000). On the other hand, in Foulk v.
Charrier, 262 F.3d 687 (8th Cir. 2001), the
use of pepper spray was considered
excessive where the inmate was needlessly

In Tindell v. Beard, 351 Fed. Appx.
591 (3d Cir. 2009) the Third Circuit
concluded that prison officials had not used
malicious and sadistic force when they
confiscated property from an inmate's cell. Id.
at 596. Reviewing videotape of the incident,
the court held that force was necessary given
the inmate's refusal to comply with the
officer's orders and was not excessive given
the absence of any physical injuries. Id.
82

VI. EQUAL PROTECTION

In Banks v. Mozingo, 423 Fed. Appx.
123 (3d Cir. 2011) the Third Circuit rejected
excessive force claims made by an inmate
who was sprayed with mace and tasered
during several cell extractions. Applying
Whitley, the Court concluded that force was
not malicious or sadistic given the absence
of injury and was necessary after the inmate
refused to be handcuffed. Id.

The Equal Protection Clause of the
Fourteenth Amendment mandates that no
state "shall deny to any person within its
jurisdiction the equal protection of the laws."
To prevail on an equal protection claim, a
plaintiff must prove: (1) that the state treated
him differently from others who were similarly
situated; and (2) that the difference in
treatment was not rationally related to any
legitimate governmental interest. See
Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (equal protection requires plaintiff to
allege "that 'she has been intentionally
treated differently from others similarly
situated and that there is no rational basis
for' the difference in treatment.").

And in Austin v. Tennis, the Third
Circuit rejected yet another excessive force
claim. 381 Fed. Appx. 128 (3d Cir. 2010). In
this case, prison officials sought to remove a
prisoner from his cell to check his health due
to a self-imposed hunger strike. Although
alleging that he was rendered unconscious
due to guards forcing his head down while
handcuffed and shackled, the court was
more persuaded by the videotape. Id. at 134.
Citing Whitley, the court concluded that the
mandate "used only the amount of force
necessary to transport Austin to a treatment
building for evaluation." Id. at 134. Austin did
not allege any injury during the extraction or
that he was refused medical attention.

The threshold question in every
equal protection challenge to state policy is
whether the plaintiff was treated differently
from others who were "similarly situated."
Unless the group or class of persons which
received favorable treatment is similarly
situated to the plaintiff, there are no grounds
to file an Equal Protection Claim.

All of these cases confirm that the
courts will not sustain a prisoner's Eighth
Amendment claim unless he introduces
evidence satisfying the Whitley maliciousand-sadistic test. The use of force becomes
unconstitutional when the intent of prison
guards is not to maintain or restore discipline
but rather to maliciously and sadistically
cause harm to the inmate. To make this
requisite proof, prisoners should closely
examine all the circumstances surrounding
the use of force in light of the Whitley factors
to determine what evidence exists to support
a malicious-and-sadistic standard. If the
incident was videotaped and reveals an
inmate defying lawful orders, prison officials
have the right to use force to restore
discipline. Absent proof that the force
continued after the inmate was brought
under control, claims of excessive force are
extremely difficult to prove.

For example, in Green v. Williamson,
an inmate alleged an equal protection
violation after prison officials rejected his
requests for a transfer to a medium security
facility due to his sentence. 241 Fed. Appx.
820, 821 (3d Cir. 2007). The Third Circuit
dismissed the case, holding that Green
"failed to show that inmates who receive a
transfer to a medium security facility were
otherwise similarly situated to him with
respect to the seriousness of his offense." Id.
at 822.
In Castillo v. FBOP, FCI Fort Dix, an
inmate alleged an equal protection violation
after prison officials imposed an eight year
loss of telephone and visiting privileges for
illegal possession of a cell phone. 221 Fed.
Appx. 172, 174 (3d Cir. 2007). The Third
Circuit rejected the case, finding that Castillo
failed to prove that inmates who have
received lighter penalties were "similarly
situated" to him. Id. at 175.
In Timm v. Gunter, male prisoners
brought suit alleging that their equal
83

plaintiffs claiming they were treated
differently from other similarly situated
persons must prove that there exists no
rational basis for the disparity. As seen
below, this standard is extremely difficult to
satisfy.

protection rights were violated because
female prisoners were provided more privacy
protection at all-female facilities than male
prisoners were afforded at all-male
institutions. 917 F.2d 1093, 1103 (8th Cir.
1990). The Eighth Circuit rejected the claim,
finding that male prisoners and female
prisoners were not similarly situated since
the security concerns at male prisons
(greater violence, escapes and contraband)
were different from the security concerns at
female facilities. In summary, equal
protection of the law requires that all persons
similarly situated be treated alike; where
persons of different classes are treated
differently, there is no equal protection
violation.

For example, in Glaunder v. Miller, a
prisoner alleged that his equal protection
rights were violated because Nevada law
required only sex offenders obtain pre-parole
certification that they were "not a menace to
the health, safety, or morals of others." 184
F.3d 1053, 1054 (9th Cir. 1999). The Ninth
Circuit rejected the challenge, finding that
since sex offenders have a higher recidivism
rate than other criminals, the requirement
that only sex offenders obtain pre-parole
certification was rationally related to the
state's legitimate interest in crime prevention.

When state officials or state law
treats similarly situated persons differently,
the difference in treatment will be upheld "so
long as it bears a rational relation to some
legitimate end." Romer v. Evans, 517 U.S.
620, 631 (1996). See also City of Cleburne
Texas v. Cleburne Living Center, 473 U.S.
432, 440 (1985) ("The general rule is that
legislation is presumed to be valid and will be
sustained if the classification drawn by the
statute is rationally related to a legitimate
state interest."). "Rational relationship"
review is "the most relaxed and tolerant form
of judicial scrutiny under the equal protection
clause." Dallas v. Stanglin, 490 U.S. 19, 26
(1989). State policy is presumed
constitutional and will be upheld against
equal protection challenge if there exists any
rational basis for the different treatment. See
F.C.C. v. Beach Communications Inc., 508
U.S. 307, 315 (1993). Even apparently
irrational policies will generally be upheld
because "a legislative choice is not subject to
courtroom factfinding and may be based
on rational speculation unsupported by
evidence or empirical data." Id. Therefore, a
claim based on legislation which is not
supported empirically will be insufficient to
sustain an equal protection challenge. Id.
Simply proving that state policy is unfair,
unwise and lacks logic is also insufficient to
sustain an equal protection challenge. Romer
v. Evans, 514 U.S. at 632. Equal protection

In Williams v. Sebek, a prisoner
alleged an equal protection violation arising
from prison policy allowing RHU capital
inmates access to a typewriter while denying
the same privileges to non-capital RHU
inmates. 299 Fed. Appx. 104, 106 (3d Cir.
2008). The Third Circuit dismissed the claim,
concluding that the policy was rationally
related to the prison's security interests. Id.
In Pressley v. Pennsylvania
Department of Corrections, an RHU prisoner
filed an equal protection claim contending
that he was entitled to the same access to
education and parole programs as other
inmates. 365 Fed. Appx. 329, 332 (3d Cir.
2010).The Third Circuit rejected the claim
holding first that Pressley was not similarly
situated to general population inmates, and
secondly, rational reasons existed for such
disparities. Id. Since "rational relationship"
review is extremely deferential to state
authority, it is not surprising that prisoners'
equal protection challenges are rarely
successful. This test presumes state action is
constitutional and the courts may invalidate
state laws only where the plaintiffs prove that
no rational relationship to any legitimate
governmental interest exists to justify the
difference in treatment.

84

When state law, policy or action
targets a "suspect class," however, a
different standard of equal protection review
called "strict scrutiny" comes into play. What
is a "suspect class"? According to the
Supreme Court, a "suspect class" refers to a
group that has suffered a history of
discrimination and exhibits obvious
distinguishing characteristics that define
them as a discreet group. Thus far, the
Supreme Court has identified three "suspect
classifications" warranting strict scrutiny
review: race, alienage, and national origin.
See City of Cleyburne, 473 U.S. at 440
(rational basis review gives way to strict
scrutiny "when a statute classifies by race,
alienage, or national origin").

race for a 60-day period at reception centers
543 U.S. 499 (2005). Johnson did not decide
whether the California policy violated equal
protection. Id. at 509. It held that "strict
scrutiny" was the applicable standard of
review and remanded for subsequent
proceedings. Id. In both of these cases,
however, a racial criterion was explicitly used
to formulate state policy. And in both cases,
the Supreme Court noted that race-based
policies could be sustained only if they were
narrowly drawn to serve a compelling
governmental interest such as prison
security.
If state law is facially neutral, that is,
it does not employ suspect classifications on
its face, then the strict scrutiny test comes
into play only if the plaintiff can prove that the
law is intentionally enforced or applied using
suspect classifications. See Hunt v.
Cromartie, 526 U.S. 541, 546 (1999) ("A
facially neutral law, on the other hand,
warrants strict scrutiny only if it can be
proved that the law was motivated by a racial
purpose or object, or if it is unexplainable on
grounds other than race.").

The courts have repeatedly held that
prisoners are not a “suspect class”
warranting a heightened standard of equal
protection review. See Abdul-Akbar v.
McKelvie, 239 F.3d 307, 317 (3d Cir. 2001)
("Neither prisoners nor indigent are suspect
classes."). The Supreme Court has also
determined that other individual
characteristics such as age, mental
retardation, poverty and homosexuality are
likewise non-suspect classes requiring only
rational basis review. See City of Cleyburne,
473 U.S. at 446.

Whether or not state action is
motivated by intentional or purposeful
discrimination "is an inherently complex
endeavor, one requiring the trial court to
perform a sensitive inquiry into such
circumstantial and direct evidence of intent
as may be available. Id. at 541.

If state law or policy explicitly treats
similarly situated persons differently based
on suspect classifications such as race, the
law or policy will be upheld only if it is
narrowly tailored to service a compelling
state interest. Id. at 440. For example, if state
law or state officials explicitly singled out a
racial group for exclusion in state programs,
the state would be required to prove that a
compelling governmental interest exists to
justify the racial classification.

For example, in Williams v. Federal
Bureau of Prisons and Parole Commission,
an inmate alleged he was denied a pay
promotion due to racial reasons. 85 Fed.
Appx. 299, 305 (3d Cir. 2003). Although
inmates have no right to a prison job, the
Third Circuit agreed that prison officials may
not discriminate against an inmate due to
race. Id. at 305. The Third Circuit remanded
the case back to the lower court to determine
whether the action taken was motivated by
race (as the plaintiff contended) or motivated
by a lack of seniority or some other legitimate
nondiscriminatory reason (as the defendant
argued). Id. at 305.

In Lee v. Washington, the Supreme
Court upheld a lower court's decision that
certain Alabama statutes requiring prison
racial segregation violated the Fourteenth
Amendment. 390 U.S. 333 (1968). Likewise,
in Johnson v. California, the Supreme Court
held that "strict scrutiny" review applied to a
policy of double-celling inmates of the same
85

have prompted numerous ex post facto
lawsuits in state and federal courts.

VII. EX POST FACTO LAWS
The United States Constitution
prohibits the states from passing "ex post
facto" laws. U.S. Const. Art. I § 10. Any law
that retroactively alters the definition of
criminal conduct or increases the punishment
for criminal acts after their commission would
be considered en ex post facto law. See
Collins v. Youngblood, 497 U.S. 37, 42
(1990).

Some prisoners believe that
application of new laws to past convictions
automatically violates ex post facto. That is
false. The Supreme Court has rejected the
notion that "the Ex Post Facto Clause forbids
any legislative change that has conceivable
risk of affecting a prisoner's punishment."
California Department of Corrections v.
Morales, 514 U.S. 499, 508 (1995). "Our
cases have never accepted this expansive
view of the Ex Post Facto Clause, and we
will not endorse it here.” Id. A retroactive
application of criminal law violates ex post
facto only upon proof of specific elements.

The constitutional protection against
ex post facto laws is based upon two simple
principles: First, citizens are entitled to "fair
warning" of legislative acts in order to
conform their behavior in accordance with
the law. Weaver v. Graham, 450 U.S. 24, 28
(1981). Secondly, the coercive power of
government must be restrained from
enacting "arbitrary and potentially vindictive"
legislative acts. Id. at 29.

First, the law must be retroactive,
meaning it must apply to events occurring
before its enactment. Secondly, it must
create a significant risk of increasing or
prolonging a prisoner's punishment. See
Garner v. Jones, 529 U.S. 244, 257 (2000).
Laws which are non-punitive in nature, even
if retroactively applied, do not violate ex post
facto. See Smith v. Doe, 538 U.S. 84, 90
(2003) (sex offender registration act was not
ex post facto violation since it was nonpunitive regulatory attempt to protect public);
Johnson v. Pennsylvania Board of Probation
and Parole, 163 Fed. Appx. 159 (3d Cir.
2006) (state law requiring collection of blood
samples was not ex post facto violation since
it was non-punitive).

The Supreme Court has recognized
four categories of ex post facto criminal laws.
A law violates the Ex Post Facto Clause
when it:
1. punishes as a crime an act
previously committed, which was
innocent when done;
2.

makes more burdensome the
punishment for a crime, after its
commission;

3. deprives one charged with crime of
any defense available according to
law at the time when the act was
committed; or

While determining whether a law is
retroactive is relatively easy, the question
whether it creates a significant risk of
increasing punishment is quite difficult.
Absent proof of these two critical elements,
however, an ex post facto challenge will be
rejected.

4. changes the rules of evidence by
which less or different testimony is
sufficient to convict than was then
required.”
Collins, 497 U.S. at 42, 45-46.

As noted earlier, the Supreme Court
has reviewed a number of ex post facto
cases. In Weaver v. Graham, the Court
determined that a new Florida law reducing
good-time credits violated ex post facto
because it effectively postponed the date
inmates would become eligible for early
release. 450 U.S. 24, 25. In California
Department of Corrections v. Morales, the

Since our focus is upon the
constitutional rights of prisoners, not criminal
defendants facing trial, we limit our analysis
to the second category of Ex Post Facto laws
which increase the punishment for crimes
after their commission. Retroactive changes
in laws governing good-time credits, parole,
and executive clemency (among other areas)
86

In Richardson v. Pennsylvania Board
of Probation and Parole, the Third Circuit
rejected the claim that the very same 1996
amendments to Pennsylvania's parole laws
(stressing public safety as the primary
consideration) constitute a per se violation of
ex post facto. 423 F.3d 282, 291 (3d Cir.
2005). The Third Circuit concluded that,
unlike Mickens-Thomas, Richardson failed to
provide evidence that the new public safety
criteria increased his risk of increased
punishment. Id. at 293. The panel found
significant that Richardson was denied
parole both before and after the effective
date of the 1996 amendments, thus
suggesting that the new criteria did not
prejudice him or increase his risk of
additional punishment. Id. at 293-294. See
also Farmer v. McVey, 448 Fed. Appx. 178,
180 (3d Cir. 2011) (rejecting ex post facto
claim because "Farmer has failed to make
the requisite showing that he was
disadvantaged by the amendment to the
parole code").

Supreme Court held that a new California
law, changing the frequency of parole
hearings from once a year to every three
years, was not an ex post facto violation
because it did not increase a prisoner's
punishment. 514 U.S. 499, 509. In Lynce v.
Mathis, the Supreme Court held that another
Florida law eliminating "provisional credits"
violated ex post facto because it prolonged
punishment by preventing the early release
of prisoners who had accumulated the
credits. 519 U.S. 433, 449 (1997). And in
Garner v. Jones, the Supreme Court
remanded the case back to the lower court to
determine whether a new Georgia law,
changing parole hearings for life-sentenced
prisoners from once every three years to
once every eight years created a significant
risk of increasing punishment. 529 U.S. at
257.
In light of these decisions, it is clear
that the Supreme Court has rejected the idea
that the Ex Post Facto Clause forbids all
retroactive legislative changes that impact a
prisoner’s punishment. The Ex Post Facto
Clause was never intended to result in
judicial "micromanagement of an endless
array of legislative adjustments to parole and
sentencing procedures." Morales, 514 U.S.
at 1603. Only those legislative acts that are
both retroactive (applicable to past crimes)
and which create a significant risk of
prolonging a prisoner's incarceration
constitute ex post facto violations. See
Garner, 529 U.S. at 255.

In Spuck v. Ridge, the Third Circuit
rejected a prisoner's claim that retroactive
application of new DOC furlough policies
violated ex post facto. 347 Fed. Appx. 727,
729 (3d Cir. 2009). Although obtaining a
furlough was made more difficult or
impossible under the new policy, such
changes did not lengthen Spuck's sentence.
"The mere fact that furlough opportunities are
now not available to him does not make his
punishment more onerous." Id.

In Mickens-Thomas v. Vaughn, a
former life-sentenced prisoner (granted
clemency) challenged parole laws enacted
30 years after his arrest. 321 F.3d 374, 376
(3d Cir. 2003). The new laws (enacted in
1996) required greater focus upon public
safety during the parole evaluation process.
Id. at 377. The Third Circuit determined that
retroactive application of the new criteria
decreased Thomas' possibility of ever
obtaining release, and hence, violated ex
post facto. Id. at 393. The Court found
significant Thomas’s evidence that he was
the only commuted life-sentenced prisoner
not granted parole.

And in Pennsylvania Prison Society
v. Cortez, 622 F.3d 215 (3d Cir. 2010) the
Third Circuit concluded that a 1997
amendment to Pennsylvania's Constitution,
requiring life-sentenced prisoners obtain a
unanimous recommendation from the Board
of Pardons as opposed to a simple majority
vote did not violate ex post facto. Id. at 246.
The court concluded that a life sentence
before the change was still a life sentence
after the change, and thus did not increase
the possibility of increased punishment. Id. at
234. "There is no ex post facto violation
where a retroactively applied law does not
87

make one's punishment more burdensome,
but merely creates a disadvantage." Id.

VIII. AMERICANS WITH DISABILITIES
ACT

In conclusion, newly enacted
criminal justice legislation will not be
declared a violation of ex post facto simply
because it is retroactively applied. Ex post
facto jurisprudence demands that the plaintiff
also prove by compelling evidence that the
new law increases the risk of greater
punishment.

The Americans with Disabilities Act
("ADA") is the federal government's attempt
to address discrimination against persons
with disabilities. Enacted in 1990, the law is
predicated on the belief that "society has
tended to isolate and segregate individuals
with disabilities, and, despite some
improvements, such forms of discrimination
against individuals with disabilities continue
to be a serious and pervasive social
problem." 42 U.S.C. § 12101(a)(2).
Title II of the ADA states: "Subject to
the provisions of this subchapter, no qualified
individual with a disability shall, by reason of
such disability, be excluded from
participation in or be denied the benefits of
the services, programs, or activities of a
public entity, or be subjected to
discrimination by any such entity." 42 U.S.C.
§ 12132.
In Pennsylvania Department of
Corrections v. Yeskey, the Supreme Court
held that Title ll applied to state prisons,
noting that "the statute's language
unmistakably includes state prisons and
prisoners within its coverage." 524 U.S. 206,
209 (1998). State and local prisons that deny
qualified inmates -- by reason of disability -the benefits of programs and activities
provided to other inmates, violate the ADA.
Before addressing the elements of
Title II litigation, it is important to consider
several procedural matters, including what
relief may be obtained and who is a proper
ADA defendant. In United States v. Georgia,
the Supreme Court agreed that inmates
could seek nominal and compensatory
damages for Title II violations but only "for
conduct that actually violates the Fourteenth
Amendment." 546 U.S. 151, 159 (2006). In
the case before it, a Georgia prisoner
(Goodman) claimed he was confined in a cell
in which he could not turn his wheelchair
around, rendering his toilet inaccessible. Id.
at 155. Because such mistreatment also
constituted a potential Eighth Amendment
violation, the Court agreed that Goodman
88

could pursue money damages against
Georgia authorities for Title II Violations. Id.
at 157.

lawsuits brought against state officials in their
personal or "individual" capacities have been
rejected. See Koslow v. Pennsylvania, 302
F.3d 161, 178 (3d Cir. 2002) ("there appears
to be no individual liability for damages under
Title I of the ADA"); George v. Pennsylvania
Department of Corrections, No. 3:CV-091202, 2010 U.S. Dist. Lexis 23116 (M.D.Pa.
2010) ("George's claim against the
defendants in their individual capacities are
subject to dismissal as not cognizable under
the ADA").

Whether or not inmates can pursue
money damages for Title II ADA violations
(which are not constitutionally required) has
not been decided by the Supreme Court. For
example, the courts have made clear that
there is no constitutional right to rehabilitative
programs. Could a wheelchair-bound
prisoner pursue an ADA damages claim for
denying him access to a high school GED
program because he could not ascend stairs
to the classroom? That question is
unresolved.

Accordingly, prisoners preparing
Title II cases should name as defendants the
state itself or the state or local prison
allegedly violating ADA requirements.
Inmates can name state officials as
defendants but only if their complaints are
crystal clear that such persons are being
sued in their "official" capacities only. See
Kentucky v. Graham, 473 U.S. 159, 165
(1985) (suing an individual in his official
capacity is treated the same as suing the
entity itself); Koslow v. Pennsylvania, 302
F.3d 161, 178 (3d Cir. 2002) ("prospective
relief against state officials acting in their
official capacities may proceed under the
statute").

As for punitive damages, the
Supreme Court has rejected such relief for
ADA prisoners. In Barnes v. Gorman, the
Court vacated a $1.2 million dollar punitive
damages award to a paraplegic arrestee
seriously injured during transportation in a
police van. 536 U.S. 181, 190 (2002). The
Court concluded that punitive damages may
not be awarded in private suits brought under
the ADA. Id.
The courts have made clear that
prisoners can bring litigation seeking
injunctive relief against a public entity for
Title II ADA violations. See Board of Trustees
of the University of Alabama v. Garfett, 531
U.S. 356, 374 n.9 (2001). Thus, where a
prisoner can demonstrate that he or she will
continue to suffer ADA violations, they may
Seek injunctive relief ordering compliance
with Title II. See Owlett v. Doud, 378 Fed.
Appx. 188, 191 (3d Cir. 2010) ("we have
recognized that ADA claims for prospective
injunctive relief are authorized” if there exists
an "ongoing violation").

In Gallagher v. Allegheny County, a
hearing-impaired arrestee brought a Title Il
suit alleging that he was denied access to an
interpreter and electronic devices to
communicate with his family and attorney.
NO. 09-103, 2011 U.S. Dist. LEXIS 7047
(W.D. Pa. Jan. 25, 2011). Gallagher's claim
against a county official in his “individual
capacity" was dismissed because there is no
individual liability under Title Il. Id.
Gallagher's claim against the same official in
his "official capacity" was allowed to proceed
since “official capacity" claims against
governmental employees are treated as suits
against the local entity. Id.

As to who exactly is a proper
defendant in a Title ll ADA suit, it appears
that the state itself and the state or local
department or agency in question is the only
proper defendant. According to the statute
itself, individuals cannot be excluded by
reason of disability from participation in "the
services, programs, or activities of a public
entity, or be subjected to discrimination by
any such entity." 42 U.S.C. § 12132. ADA

Turning now to the merits of a Title Il
ADA claim against a public entity, a prisoner
must prove: (1) that he or she is disabled
within the meaning of the ADA; (2) that he or
she is qualified for the prison service,
program or activity in that he or she meets all
89

essential eligibility requirements; and (3)
despite being qualified, he or she has been
excluded from the service, program or
activity because of a disability. See 42
U.S.C. § 12132; Lopez v. Beard, 333 Fed.
Appx. 685, 688 (3d Cir. 2009); Iseley v.
Beard, 200 Fed. Appx. 137, 140 (3d Cir.
2006).

impairments which "substantially limit" one or
more "major life activities" (which are ADA
disabilities).See 42 U.S.C. § 12102(1).
In determining whether a plaintiff's
impairment substantially limits a major life
activity and, thus, constitutes an ADAqualified disability, the Supreme Court
devised a three-part test. First, the court
must determine whether the plaintiff has a
physical or mental impairment. Second, the
court must identify the life activity upon which
the plaintiff relies and determine whether it
constitutes a major life activity under the
ADA. Third, tying the two statutory phrases
together, the courts ask whether the
impairment substantially limits the major life
activity. See Bragdon v. Abbott, 524 U.S. 624
(1998).

If a prisoner is found to have been
excluded from public services, programs or
activities by reason of his or her disability,
the public entity must make "reasonable
accommodations" or "modifications" to allow
participation by the disabled prisoner.
Accommodation is not reasonable if it either
imposes undue financial and administrative
burdens on a public entity or requires a
fundamental alteration in the nature of the
program.

1. Physical or Mental Impairment

A. Is the Prisoner Disabled Within
the Meaning Of the ADA?

The first step in every ADA case is
determining whether a plaintiff has a
"physical or mental impairment." A physical
or mental impairment refers to any
physiological or psychological disorder
affecting one or more of the various body
systems. See Bragdon, 524 U.S. at 632.
Conditions meeting this definition would
include cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, and
emotional illness, among others. Id. at 632.
In Bragdon, the Supreme Court held that HIV
infection satisfies the statutory and regulatory
definition of a physical impairment in light of
the immediacy with which the Virus begins to
damage the infected person's white blood
cells. Id. at 637.

The threshold issue in any ADA
action brought against a public entity is
whether the plaintiff is a person with a
disability. A person is "disabled" within the
meaning of the ADA if he or she has: (1) a
physical or mental impairment that
substantially limits one or more of the major
life activities of such individual; (2) a record
of such an impairment; or (3) is regarded as
having such impairment. See 42 U.S.C. §
12102(2); Wellman v. Dupont Elastomers,
414 Fed. Appx. 386 (3d Cir. 2011); Keyes v.
Catholic Charities of the Archdiocese of
Philadelphia, 415 Fed. Appx. 405 (3d Cir.
2011).
Accordingly, any person who suffers
from, or is regarded as having, a "physical or
mental impairment" which "substantially
limits" his or her "major life activities" will be
considered disabled within the meaning of
the ADA. These three concepts are decisive
in ADA litigation because while all "physical
or mental impairments" affect individual lives,
not all physically or mentally impaired
persons are disabled within the meaning of
the ADA. Courts will distinguish between
impairments that merely affect a person's life
(which are not ADA disabilities) and those

2. Major Life Activity
The second step under Bragdon is to
identify the life activity upon which the
plaintiff relies and "determine whether it
constitutes a major life activity under the
ADA." Id. at 631. Unless the physical or
mental impairment affects a "major life
activity," there are no grounds for an ADA
suit. See Hartman v. O'Connor, 415 Fed.
Appx. 350 (3d Cir. 2011) (where inmate
failed to explain nature of his disability, ADA
claim dismissed); Ali v. Howard, 353 Fed.
90

Department of Veteran Affairs, 409 Fed.
Appx. 566, 568 (3d Cir. 2011).

Appx. 667, 671 (3d Cir. 2009) (where inmate
admitted he could walk without a cane, ADA
claim dismissed). Among those "major life
activities" which may be affected by a
physical or mental impairment are hearing,
seeing, eating, sleeping, walking, lifting,
reading, concentrating, working, etc. See 42
U.S.C. § 12102(2)(A).

Prior to the enactment of the
ADAAA, the Supreme Court had also ruled
that judges must consider corrective
measures in determining whether a physical
or mental impairment "substantially limits" a
major life activity. See Sutton v. United
Airlines, 527 U.S. 471, 482-483 (1999). For
example, as was the situation in Sutton, if a
diabetic is able to function normally by
monitoring his blood sugar level, controlling
his diet, and receiving insulin, then he was
not considered substantially limited in a
major life activity. Id. at 483-484. See also
Murphy v. U.P.S., 527 U.S. 516, 520 (1999)
(where plaintiff's hypertension was
controllable through medication, there was
no ADA disability).

3. Substantially Limits
The final step ties the first two ADA
criteria together, asking whether the physical
or mental impairment "substantially limits" the
major life activity asserted by the plaintiff.
Bragdon, 524 U.S. at 639. "Substantially
limits" means generally that the impairment
creates an inability to perform a major life
activity that the average person can perform.
In Bragdon, the Supreme Court held that HIV
infection (physical impairment) substantially
limited the plaintiff’s asserted major life
activity (reproduction). Id. at 639-640. Failure
to prove that impairment substantially limits a
major life activity will result in claim dismissal.
See Boggi v. Medical Review and
Accrediting Council, 415 Fed. Appx. 411 (3d
Cir. 2011) (ADA claim dismissed for failure to
show Attention Deficit Disorder substantially
limited plaintiff’s ability to work, read, write, or
engage in other activity).

Congress' enactment of the ADAAA
overruled Sutton and Murphy with its
provision that, with the exception of
eyeglasses and contact lenses, the
"determination of whether an impairment
substantially limits a major life activity shall
be made without regard to the ameliorative
effects of mitigating measures." 42 U.S.C. §
12102(4) (E).
In light of these ADAAA
amendments, what proof must a plaintiff
make in federal court? He or she must still
prove that they have a "physical or mental
impairment" that "substantially limits" one or
more "major life activities." 42 U.S.C. §
12102(1). However, such an impairment
does not have to be permanent or long-term
(as previously required under Toyota Motor).
In addition, an impairment qualifies as an
ADA disability even if the effects may be
corrected by mitigating devices such as
medication (contrary to Sutton).

Before proceeding further with our
analysis, we must consider significant
statutory changes to the ADA. In 2008
Congress enacted into law the ADA
Amendments Act of 2008 ("ADAAA") the
purpose of which was to broaden the
definition of an ADA disability by overturning
several Supreme Court decisions.
In 2002 the Supreme Court ruled
that a physical or mental impairment had to
be "permanent or long-term" to qualify as an
ADA disability. See Toyota Motor v. Williams,
534 U.S. 184 (2002). In the ADAAA in 2008,
Congress rejected this narrow definition with
its provision that an impairment that is merely
"episodic" or in "remission" qualifies as a
disability "if it would substantially limit a major
life activity when active." 42 U.S.C. §
12102(4) (D). See also Britting v. Secretary,

Naturally, one should research postADAAA rulings to determine the exact
evidentiary proof necessary for specific
impairments. However, there can be no
doubt that Congress' mandate that physical
or mental impairments "shall be construed in
favor of broad coverage of individuals under
91

with a disability" by proving that he or she
"meets the essential eligibility requirements
for the receipt of services or the participation
in programs or activities provided by a public
entity." 42 U.S.C. § 12131(2).

this Act" is a positive statutory development.
42 U.S.C. § 12102(4) (A).
4. Record of, or Regarded as,
Disabled
Any individual that has a "physical or
mental impairment" that "substantially limits"
one or more "major life activities" is disabled
within the meaning of the ADAAA. See 42
U.S.C. § 12102(1)(A). An individual will also
be considered disabled if there is "a record of
such an impairment," 42 U.S.C. §
12102(1)(B), or if the person is "being
regarded as having such an impairment." 42
U.S.C. § 12102(1)(C). Thus, even if an
individual does not have a physical or mental
impairment which substantially limits a major
life activity, he or she may still bring a viable
ADA suit if the state or local government
agency engages in discriminatory behavior
based on a mistaken belief that the individual
has an ADA-qualified impairment.

For most prison services, programs
or activities, there are little or no eligibility
requirements. For example, yard and gym
activities, telephone calls, visitation
privileges, counseling services, religious
programs, library access, and rehabilitative
programs are for the most part open to all
general population prisoners.
Other prison programs, however, do
retain eligibility requirements that must be
satisfied by all prisoners, disabled and nondisabled. For example, a state prisoner will
not be considered for transfer to a halfway
house until he or she has completed one-half
of his or her minimum sentence (among
other criteria). Likewise, some state prison
jobs require a high school diploma or GED
equivalent to qualify for consideration. Thus,
until a disabled prisoner becomes "qualified"
by meeting the eligibility requirements for
participation in such programs, there is no
ADA violation.

Among the 2008 amendments,
Congress altered the definition of "disability"
such that being "regarded as" having an
impairment no longer requires a showing that
government officials actually perceived the
individual to be substantially limited in a
major life activity. Under the ADAAA,
government officials violate the law "whether
or not the impairment limits or is perceived to
limit a major life activity." 42 U.S.C. §
12102(3)(A). This provision, however, does
not apply to impairments that are transitory
and minor. "A transitory impairment is an
impairment with an actual or expected
duration of 6 months or less." 42 U.S.C. §
12102(3) (B).
B.

In conclusion, having a disability
does not, by itself, give rise to an ADA
violation. A disabled person must also prove
that he or she was otherwise qualified for
some particular service, program, or activity
yet was denied participation as a result of the
disability.
C. Reasonable Accommodation
If a prisoner has a disability within
the meaning of the ADA and satisfies all the
eligibility requirements for a particular prison
service, program or activity, ADA prohibits
state officials from discriminating against him
or her by reason of that disability. This
means that prison officials are obligated to
make "reasonable" accommodations and
modifications to ensure that disabled persons
are granted equal access to all prison
services, programs, and activities. See 42
U.S.C. § 12131(2). Such modifications may
include the removal of architectural barriers
for the use of wheelchairs and the provision

Is A Prisoner Qualified For
Corrections Services, Programs,
and Activities?

Simply proving that a prisoner has a
disability within the meaning of the ADA is
only the first step in establishing a Title II
violation. The prisoner must also
demonstrate that he or she was qualified for
a particular service, program or activity but
was excluded from participation by reason of
his or her disability. See 42 U.S.C. § 12132.
A prisoner becomes a "qualified individual
92

of auxiliary aids and services such as
interpreters, Braille materials, and
telephones compatible with hearing aids.
See 42 U.S.C. § 12131(1). However,
reasonable accommodations will not be
required when providing them causes an
undue hardship for the institution, that is,
significant difficulty or expense or a direct
threat to the health and safety of others.

ADA-qualified disability and that he was
denied participation in prison programs due
to his disability. Id. at 560. The Seventh
Circuit rejected prison officials' argument that
they could not make reasonable
accommodations due to scarce resources.
Although security concerns, safety concerns
and administrative exigencies should all be
considered in determining whether
reasonable accommodations can be made to
permit a disabled prisoner to participate in
institutional programs and services, the Court
held that the defendants failed to present any
evidence supporting their argument. Id. at
561.

Having set forth the basic framework
of an ADA claim, it may be helpful to
highlight a few prison-related ADA cases to
see how the courts are applying these
standards. In Duffy v. Riveland, a deaf
prisoner brought suit claiming an ADA
violation when he was excluded from fully
participating in his disciplinary hearing due to
the prison’s failure to provide a qualified
interpreter. 98 F.3d 447, 450 (9th Cir. 1996).
The Ninth Circuit agreed that Duffy's
deafness was a disability within the meaning
of the ADA and that he was "qualified" to
participate in his own disciplinary hearing. Id.
at 455. The Court also agreed that
disciplinary proceedings were "services,
programs or activities" within the scope of the
ADA. Id. The Ninth Circuit remanded the
case back to the lower court to determine
whether the prison discriminated against
Duffy by failing to provide a qualified
interpreter. Id. at 456. While the court agreed
that Duffy was not entitled to an interpreter
certified by the National Registry of
Interpreters for the Deaf, he was entitled
access to someone who ‘could understand
his sign language and communicate
effectively with him.’ Id.

In Armstrong v. Davis, disabled
prisoners confined in the California state
correctional system brought suit, contending
that state officials discriminated against them
during parole release and parole revocation
hearings. 275 F.3d 899, 854 (9th Cir. 2001).
Specifically, prisoners and parolees with
vision, hearing and learning disabilities
alleged that they were provided no
accommodations to help them understand
the parole release and parole revocation
processes despite obvious disabilities;
consequently, many disabled prisoners and
parolees simply waived their rights to a
hearing or were unable to attend or
meaningfully participate in the hearings. Id.
at 857. The Ninth Circuit agreed that the
Parole Board violated the ADA since they
failed "to address the needs of prisoners or
parolees who have problems understanding
complex information or communicating
through the spoken or written word." Id. at
862.

In Love v. Westville Correctional
Center, a quadriplegic prisoner confined to a
wheelchair filed an ADA suit, claiming that he
was denied access to prison programs based
on his disability. 103 F.3d 558, 558-559 (7th
Cir. 1996). According to the record, Love was
housed in the prison infirmary unit and was
precluded from using the prison's
recreational facilities, and all rehabilitation
programs available to the general prison
population, including church, work,
substance abuse, and the library. Id. at 559.
The Seventh Circuit agreed that Love had an

In Pritchett v. Ellers, the Third Circuit
dismissed an ADA claim, finding that the
plaintiff failed to establish an ADA qualified
disability. 324 Fed. Appx. 157, 159 (3d Cir.
2009). The Court agreed that the inmate’s
larynx condition (physical impairment)
affected his speaking (major life activity).
However, no proof was provided that this
impairment "substantially limited" his
speaking ability. The court noted that while
Pritchett has a raspy voice, no evidence was
presented that he "was unable to articulate
93

IX. PRISON LITIGATION REFORM ACT

words and to communicate with other
individuals." Id. at 160.

Almost two decades have passed
since Congress enacted the Prison Litigation
Reform Act ("PLRA"). See 42 U.S.C. §
1997(e). Yet many prisoners remain unaware
of its existence or worse, simply choose to
ignore its provisions. For inmates with valid
constitutional claims, such indifference has
devastating consequences. As you will see
below, numerous inmate cases have been
dismissed for failure to observe PLRA
mandates. Enacted with the specific goal of
reducing inmate litigation in federal court,
See Woodford v. Ngo, 548 U.S. 81, 93-94
(2006) (stating that the PLRA was passed "in
the wake of a sharp rise in prisoner litigation"
and "contains a variety of provisions
designed to bring this litigation under
control"), the PLRA is the first line of defense
for state attorneys seeking quick dismissal of
inmate litigation. A prisoner must comply with
the exhaustion, filing, and relief requirements
of the PLRA, or face dismissal. It is that
simple.

To prevail in a Title Il ADA claim,
prisoners must establish three elements.
First, they must be disabled within the
meaning of the ADA. This requires proof that
the prisoner has a "physical or mental
impairment" which "substantially limits a
major life activity." Secondly, prisoners must
allege and prove that they were "qualified” for
participation in the institution's services,
programs, or activities in question by
satisfying all eligibility requirements. Finally,
prisoners must prove that despite being
qualified, they were excluded from
participation in such services, programs or
activities because of their disabilities.
If a qualified prisoner has been
excluded from participation in a prison's
services, programs or activities due to his or
her disability, the state must make
"reasonable accommodations” or
"modifications" to allow participation by the
disabled prisoner unless the requested
accommodation would impose an undue
financial or administrative burden or pose a
legitimate threat to prison security or safety.

In addition to reducing inmate-filed
litigation, the PLRA also restricted the power
of federal judges to order prospective relief.
Consequently, even if a prisoner proves a
constitutional violation, he or she may not
receive the relief desired. Accordingly, no
prisoner should file a lawsuit challenging
prison conditions absent a thorough
compliance-check with PLRA requirements.
A. Exhaustion Of State Remedies
No action shall be brought with
respect to prison conditions under
Section 1983 of this title, or any
other federal law, by a prisoner
confined in any jail, prison, or other
correctional facility until such
administrative remedies as are
available are exhausted.
42 U.S.C. § 1997(e)(a).
What does this statute mean? Quite
simply if your prison maintains a grievance
system, you must submit your claim under
94

damages, exhaustion is a prerequisite to
suit.").

this process, and exhaust all avenues of
appeal, before filing a case in federal court. If
you fail to do so, you will join a growing list of
Pennsylvania prisoners whose Section 1983
cases were procedurally dismissed. See
Reyes v. Sobina, 333 Fed. Appx. 661 (3d
Cir. 2009); Veasey v. Fisher, 307 Fed. Appx.
614 (3d Cir. 2009); Rozzelle v. Rossi, 307
Fed. Appx. 640 (3d Cir. 2008); Johnson v.
Townsend, 314 Fed. Appx. 436 (3d Cir.
2008).

Another question: Can prisoners file
a lawsuit while the grievance process is
pending? The answer is no. Inmates must
exhaust all available administrative remedies
before filing suit. Cooper v. Sniezek, 418
Fed. Appx. 56 (3d Cir. 2011) ("Exhaustion
must be completed before a prisoner files
suit."); Neal v. Goord, 267 F.3d 116, 122 (2d
Cir. 2001) ("Subsequent exhaustion after suit
is filed therefore is insufficient"). Inmates
cannot file suit prematurely. They must first
exhaust all administrative remedies to the
very end. See Booth, 532 U.S. at 740-741
(where inmate filed grievance but failed to
complete final appeal, exhaustion not
satisfied); Quinn v. Dietman, 2011 U.S. App.
LEXIS 3018 (3d Cir. 2011) (inmate failed to
exhaust state remedies when he failed to
make final appeal); Torrence v. Thompson,
335 Fed. Appx. 151, 153 (3d Cir. 2009) (case
dismissed where final appeal in grievance
process not completed).

The purpose of the PLRA exhaustion
requirement is twofold: first, by requiring
inmates to comply with prison grievance
procedures, it permits state officials the
opportunity to resolve the controversy
internally before it becomes a federal case.
Porter v. Nussle, 534 U.S. 516, 525 (2002)
("In some instances, corrective action taken
in response to an inmate's grievance might
improve prison administration and satisfy the
inmate, thereby obviating the need for
litigation."). Secondly, by requiring
exhaustion of administrative remedies, it
promotes judicial efficiency by producing a
factual record that can assist the lower court
in resolving the prisoner's claim. Id. at 525.
("And for cases ultimately brought to court,
adjudication could be facilitated by an
administrative record that clarifies the
contours of the controversy.").

The PLRA exhaustion requirement
compels a prisoner to use his available
prison grievance process. Concepcion v.
Morton, 306 F.3d 1347 (3d Cir. 2002) (PLRA
exhaustion requirement applies to grievance
process described in inmate handbook;
formal regulation or statute not required).
You must utilize the formal grievance
process. Other means of complaint or
communication with prison staff—such as
“request slips”—will not satisfy PLRA
exhaustion requirements. George v.
Chronister, 319 Fed. Appx. 134, 137 (3d Cir.
2009) (submission of medical request form
failed to qualify as property exhausted
grievance); McCoy v. Gilbert, 270 F.3d 503,
507 (7th Cir. 2001) (inmate failed to exhaust
formal grievance); Curry v. Scott, 249 F.3d
493, 504 (6th Cir. 2001)(prison investigation
will not substitute for exhaustion through
prison grievance system).

Although some minor questions
regarding the PLRA exhaustion requirement
remain, the Supreme Court has issued
rulings in several cases clarifying scope,
meaning and application. For example, must
prisoners seeking monetary damages for
constitutional violations submit their claims to
a prison grievance process even when
monetary relief cannot be obtained through
that process? The answer is yes. In Booth v.
Churmer, 532 U.S. 731 (2001) the Supreme
Court held that inmates cannot "skip the
administrative process simply by limiting
prayers for relief to money damages not
offered through administrative grievance
mechanisms." Id. at 741; Porter v. Nussle,
534 U.S. at 524 (2002) ("Even when the
prisoner seeks relief not available in
grievance proceedings, notably money

When exactly must a prisoner file a
grievance? In order to satisfy the PLRA
exhaustion requirement, prisoners must
comply with all grievance procedures. For
95

example, if prison grievance policy requires
prisoner to file grievances within a specified
period of time after the complained of
incident, he must do so in a timely fashion. In
Woodford v. Ngo, the Supreme Court upheld
dismissal of a lawsuit where the prisoner
submitted a grievance six months after
prison officials imposed restrictions upon his
religious activities. 548 U.S. at 85 (2006). In
this case, California prison policy required
inmates to file grievances “within 15 working
days” of the incident in question. Id. at 86.
The Supreme Court concluded that the
PLRA exhaustion requirement was not a
“toothless scheme” and that “proper
exhaustion” means compliance with
grievance procedural rules, including
timeliness of the grievance. Id. at 95.

requirement of the PLRA, we look to the
prison’s procedural rules.”).
As a result of Jones the lower courts
have concluded that inmates must comply
with prison grievance procedures or face
case or claim dismissal for lack of
exhaustion. For example, if prison rules
require you to specify by name each and
every staff member involved in the dispute.
You must do so or that claim will be deemed
unexhausted. See Watts v. Herbik, 364 Fed.
Appx. 723, 724 (3d Cir. 2010) (Eighth
Amendment claim dismissed against one
defendant because grievance never
identified him as required by prison rules). If
prison rules require you to present your
grievance in a specific manner, you must do
so or face dismissal. See Rivera v.
Pennsylvania Department of Corrections,
388 Fed. Appx. 107, 108-109 (3d Cir. 2010)
(where prisoner failed to comply with prison
rule limiting grievance to two pages, case
dismissed for non-exhaustion); Frazier v. SCI
Medical Dispensary Doctor, 391 Fed. Appx.
128, 130 (3d Cir. 2010) (where prisoner’s
grievance contained three separate issues—
in violation of grievance policy—claim
dismissed for failure to exhaust).

The Third Circuit has likewise shown
little tolerance for prisoners who fail to file
timely grievances and then claim that there
are not administrative remedies available
because their grievances were time-barred.
Daniles v. Rosenberger, 286 Fed. Appx. 27,
29 (3d Cir. 2010) (where inmate failed to file
grievance within 15 days of event—as
required by prison rules—claim dismissed for
non-exhaustion); Mack v. Curran, 457 Fed.
Appx. 141, 145 (3d Cir. 2012) (inmate’s
placement in RHU insufficient excuse for
failure to file timely grievance).

The PLRA exhaustion requirement
compels a prisoner to precisely follow all
grievance procedures. If your grievance
policy requires you to file grievances within a
specified time period or identify staff or
specify whether money damages or other
relief is requested, you must do so or face
dismissal. Toney v. Bledsoe, 427 Fed. Appx.
74 (3d Cir. 2011) (“Exhaustion of
administrative remedies must be proper and
in accordance with applicable regulations
and policies, and noncompliance cannot be
excused by the courts.”).

How much specificity or information
must a grievance contain in order to satisfy
exhaustion? For example, can a prisoner sue
a state official in a § 1983 lawsuit if he fails to
identify the official in the administrative
grievance? In Jones v. Bock, the Supreme
Court concluded that it is the prisoner
grievance procedures, not the PLRA that
defines the boundaries of proper exhaustion.
549 U.S. 199, 218 (2007) (“The level of detail
necessary in a grievance to comply with the
grievance procedures will vary from system
to system and claim to claim, but it is the
prison’s requirements, and not the PLRA,
that define the boundaries of proper
exhaustion.”); Hughes v. Knieblher, 341 Fed.
Appx. 749, 751 (3d Cir. 2009) (In determining
whether a prisoner had met the exhaustion

If you fail to comply with prison
grievance procedures, your subsequentlyfiled lawsuit will be dismissed on nonexhaustion grounds (and you will forfeit a
$350 filing fee) 2 . Of course, there have been
As of the date of this printing, the fee for filing a civil
Complaint in the federal District Courts in the Eastern,
Middle, and Western Districts of Pennsylvania is $350.

2

96

dismissal of a claim based on this defense.
See Drippe v. Tobelinski, 604 F.3d 778, 782
(3d Cir. 2010). However, if, under the
circumstances of a particular case, the prison
official is not allowed to file a motion at that
time under the Federal Rules of Civil
Procedure, local rules or the scheduling
order from the judge, this could bar him from
raising the defense.

a few rare exceptions based upon unusual
events. See Robinson v. Johnson, 343 Fed.
Appx. 778, (3d Cir. 2009) (failure of
grievance to identify DOC officials
responsible for RHU exercise policy excused
where such information was unavailable);
Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir.
2003) (remanding case to lower court to
determine whether prison officials refused to
supply inmate with grievance form); Gravley
v. Tretinik, 414 Fed. Appx. 391 (3d Cir. 2011)
(where grievance identified wrong nurse
based upon erroneous information provided
by prison guard, exhaustion satisfied). These
cases were based upon unusual events. The
prudent course of action is to precisely follow
all grievance procedures to avoid
subsequent exhaustion disputes in federal
court.

On appeal, if the prison official did
not originally make the affirmative defense of
non-exhaustion, then they cannot make it on
appeal because they did not properly
preserve the issue. See Smith v. Mensinger,
293 F.3d 641, 647 n. 3 (3d Cir. 2002); Jerry
v. Beard, 419 Fed. Appx. 260 (3d Cir. 2011).
Finally, what happens if a prisoner's
federal lawsuit contains both exhausted and
non-exhausted claims? Must a district judge
throw out the entire case pursuant to
1997e(a)? Does there exist an "all or
nothing" total exhaustion rule? In Jones v.
Bock, the Supreme Court rejected the "total
exhaustion rule,” stating that if a complaint
contains both good (exhausted) and bad
(unexhausted) claims, the court proceeds
with the good and leaves the bad. 549 U.S.
199, 224 (2007).

Another matter regarding exhaustion
concerns the burden of proof. Must the
prisoner prove in court that he has exhausted
all his administrative remedies or does that
burden lie with prison officials who request
suit dismissal based upon non-compliance
with § 1997e(a)? In Jones v. Bock, the
Supreme Court held that failure to exhaust is
an “affirmative defense" and that "inmates
are not required to specially plead or
demonstrate exhaustion in their complaints."
549 U.S. at 216. In other words, the burden
is on prison officials to raise the issue of nonexhaustion; inmate-plaintiffs are not required
to plead exhaustion in their complaints. Id. at
217. If prison officials fail to assert nonexhaustion during pretrial proceedings, the
defense of non-exhaustion may be
considered waived. See Smith v. Mensinger,
293 F.3d 641, 647 n. 3 (3d Cir. 2002)
(“[E]xhaustion is an affirmative defense
which can be waived if not properly
preserved by a defendant.”) (quoting Ray v.
Kertes, 285 F.3d 287 (3d Cir. 2002)).
However, after the affirmative defense of
non-exhaustion has been properly preserved
by a defendant, a prison official does not
have a specific time frame for seeking

In conclusion, all constitutional
claims filed in federal court must initially be
submitted to available state grievance
systems. Do not deviate from grievance
procedures or you risk case or claim
dismissal in federal court.
B.

Filing Fee

Any person who files a civil action in
federal court must pay a filing fee of $350.
See 28 U.S.C. § 1914(a). Since many
prisoners do not have the financial resources
to satisfy this fee, they are permitted to seek
leave to proceed "in forma pauperis" ("IFP").
28 U.S.C. § 1915. Contrary to what many
inmates believe, obtaining IFP status does
not excuse the $350 filing fee. Porter v. Dept.
of Treasury, 564 F.3d 176, 180 (3d Cir.
2009) ("Although a prisoner may obtain IFP
status under the PLRA, this does not result in
a waiver of the fees; it merely allows the
inmate to pay the fees in installments when

There is also a $50.00 administrative fee, in addition
to the filing fee, but the $50.00 fee can be waived if a
person is proceeding in forma pauperis.

97

there are sufficient funds in his prison
account.").

and certified account statement as requested
by the court to determine his IFP status).

The PLRA amended the federal IFP
statute to discourage prisoners from filing
suits, or, at least cause them to seriously
weigh the merits before filing. See
Muhammad v. U.S. Marshals Service, 385
Fed. Appx. 70, 73 (3d Cir. 2010) ("Before
initiating a lawsuit or an appeal, the PLRA
counsels that Muhammad must weigh the
costs of litigation against his desire to
frequent the prison commissary."). Any
prisoner with $350 in resources will be
denied IFP status and be required to pay the
entire filing fee up front. See In Re Mac
Truong, 327 Fed. Appx. 326, 327 (3d Cir.
2009) (IFP status denied where he had rental
income of $3,000 per month).

Requiring a prisoner to supply the
court with a six-month account statement is
necessary because "if a prisoner brings a
civil action or files an appeal in forma
pauperis, the prisoner shall be required to
pay the full amount of a filing fee." 28 U.S.C.
§ 1915(b)(1). Consequently, the old prePLRA days of prisoners using their IFP
status to file suits scot-free are over. All
prisoners must now pay the full filing fee -either they pay it immediately or proceeding
IFP, they will be assessed an initial partial
filing fee followed by incremental payments
each month thereafter until the balance is
paid off. See 28 U.S.C. § 1915(b)(1) and (2).
Upon receipt of the affidavit of
poverty and six-month certified copy of his
prison account, the district judge "reviews the
litigant's financial statement, and, if
convinced that he or she is unable to pay the
court costs and filing fees, the court will grant
leave to proceed in forma pauperis." Shelley
v. Patrick, 361 Fed. Appx. 299, 301 (3d Cir.
2010).

Inmates without resources to pay the
$350 filing fee may seek IFP status. They
must file, in addition to the normal affidavit
listing assets and a statement of inability to
pay court costs, a certified copy of his or her
prison trust account for the six month period
immediately preceding the filing of the
complaint. See 28 U.S.C. § 1915(a) (2). See
also Garrett v. Clark, 147 F.3d 745, 7&6 (8th
Cir. 1998) (the PLRA "does not say that a
prison account statement must be supplied
when the complaint is filed. Instead, the
prisoner should be allowed to file the
complaint, and then supply a prison account
statement within a reasonable time.").

As to the amount of the initial
payment, the statute states that the court
shall assess as an initial partial filing fee,
twenty percent of whichever is greater: (a)
the average monthly deposits to the
prisoner's account; or (b) the average
monthly balance in the prisoner's account for
the six month period immediately preceding
the filing of the complaint or appeal. See 28
U.S.C. § 1915(b)(1)(A) and (B). However, if
the prisoner has no assets and no means by
which to pay the initial partial filing fee, he or
she is still permitted to file the complaint or
appeal. See 28 U.S.C. § 1915(b)(4).

Any prisoner who fails to submit a
properly detailed affidavit and a certified copy
of his prison account will be denied IFP
status. See Rohn v. Johnston, 415 Fed.
Appx. 353 (3d Cir. 2011) (case dismissed for
failure to submit required affidavit of poverty);
Bricker v. Turner, 396 Fed. Appx. 804, 805
(3d Cir. 2010) (civil case dismissed where
prisoner failed to comply with Court order to
submit properly completed IFP affidavit and
authorization form to begin deductions);
Piskanin v. Court of Common Pleas of
Lehigh County, 359 Fed. Appx. 276, 278 (3d
Cir. 2009) (civil case dismissed where
prisoner failed to submit affidavit of property

After payment of the initial partial
filing fee, the prisoner shall be required to
make monthly payments of 20 percent of the
preceding month's income credited to the
prisoners account. The agency having
custody of the prisoner shall forward
payments from the prisoner's account to the
clerk of the court each time the amount in the
98

account exceeds $10 until the filing fees are
paid. See 28 U.S.C. § 1915(b) (2).
C.

legislative history for the proposition that
Congress also wanted the Courts to dismiss
claims that may have substantial merit but
were inartfully pled." Id.

Screening Provisions

In addition to requiring prisoners to
pay the full filing fee, the PLRA expanded the
ability of a district court to dismiss an inmate
lawsuit "sua sponte" (meaning "on its own
motion"). Now the courts at the docketing
stage (prior to service of the complaint upon
the defendants), "shall" dismiss a prisoner's
suit sua sponte if it is: (1) frivolous or
malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary
relief against a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e).

For example, in DaSilva v. Sheriff's
Department, a district judge dismissed an
inmate's complaint sua sponte for failure to
name "with specificity" the responsible
officials involved in a beating. 413 Fed. Appx.
498 (3d Cir. 2011). The Third Circuit
reversed because DaSilva was not given an
opportunity to amend his complaint. "It is not
impossible that DaSilva could have named
the proper defendants if he had been granted
a period of time to file an amended
complaint." Id. at 501. See also Davis v.
Gauby, 408 Fed. Appx. 524, 527 (3d Cir.
2010) (while a district judge should not
ordinarily dismiss a complaint sua sponte
without providing the plaintiff an opportunity
to amend his complaint, it may do so if the
amendment would be futile).

Dismissal on these grounds does not
require the court to await the filing of a
motion to dismiss by the defendant. The
courts now have sua sponte authority to
immediately dismiss any action or claim
which, for example, fails to state a claim
upon which relief can be granted. See
Holmes v. Dreyer, 431 Fed. Appx. 69 (3d Cir.
2011) (where inmate allegations concerning
criminal trial were clearly barred under Heck
v. Humphrey, sua sponte dismissal as
frivolous upheld); Adekoya v. Chertoff, 431
Fed. Appx. 85 (3d Cir. 2011) (where inmate's
First Amendment allegations clearly failed to
state a claim for relief, sua sponte dismissal
upheld); Hall v. Minner, 411 Fed. Appx. 443
(3d Cir. 2010) (where inmate suit was clearly
barred by statute of limitations, sua sponte
dismissal upheld).

D.

Physical Injury Requirement

The PLRA has also restricted the
ability of inmates to collect compensatory
damages for constitutional violations. "No
federal civil action may be brought by a
prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional
injury suffered while in custody without a
prior showing of physical injury." 42 U.S.C. §
1997e(e).
The key precedent in the Third
Circuit regarding 42 U.S.C. § 1997e(e) is
Allah v. Al-Hafeez. 226 F.3d 247 (3d Cir.
2000). In Allah, a prisoner brought suit
seeking injunctive relief and an award of
compensatory and punitive damages as the
result of a religious-based First Amendment
violation. Id. at 248-249. Since he was
transferred to another prison, the Third
Circuit agreed that Allah's request for
injunctive relief was moot. Id. at 249. The
question presented on appeal was whether
Allah's claim for money damages was barred
under 1997e(e).

Prior to a sua sponte dismissal, the
Third Circuit has agreed that a prisoner
should be afforded the opportunity to amend
his or her complaint unless the deficiency
cannot be cured. The dispositive precedent
is Shane v. Fauver, where the court ruled
that dismissal of the complaint, without
granting leave to file an amended complaint
which cured the deficiencies, was error. 213
F.3d 113, 117 (3d Cir. 2000). Although
acknowledging that the purpose of the PLRA
was "to curb the substantively meritless
prisoner claims that have swamped the
courts," the Third Circuit noted that it was
"not aware of any specific support in the

The Third Circuit agreed that
1997e(e) barred Allah's Claim for
compensatory damages since the only injury
99

injuries." Id. However, the Third Circuit
agreed that physical injuries could result from
such deprivations and remanded the case
back to the lower court for further
proceedings. Id. at 534. The Third Circuit
further held that a "physical injury" within the
meaning of 1997e(e) requires the prisoner to
establish "a less than significant but more
than de minimis physical injury." Id. at 536.
What type of injury or illness falls within the
scope of this definition will be determined in
subsequent cases.

alleged in his complaint was mental and
emotional injury. Id. at 250. "Under section
1997e(e), however, in order to bring a claim
for mental or emotional injury suffered while
in custody, a prisoner must allege physical
injury, an allegation that Allah indisputably
does not make. Accordingly, Allah's claims
for compensatory damages are barred by
Section 1997e(e) and were appropriately
dismissed." Id. at 250-251.
While an award of compensatory
damages was not available under 1997e(e)
absent proof of physical injury, the Third
Circuit agreed that prisoners may still seek
an award of nominal damages and punitive
damages for violations of constitutional rights
even absent a showing of physical injury.
"Neither claims seeking nominal damages to
vindicate constitutional rights nor claims
seeking punitive damages to deter or punish
egregious violations of constitutional rights
are claims for mental or emotional injury." Id.

For example, in Michtavi v. United
States, 345 Fed. Appx. 727, 730 n.3 (3d Cir.
2009), the Third Circuit held that the need to
take medication for mental anguish was
insufficient to satisfy § 1997e(e) requirement
of physical injury. In Wolfe v. Beard, 2011
U.S. Dist. Lexis 15339 (E.D. Pa. 2011) a
prisoner alleged that he spit blood and
suffered high blood pressure and migraines
due to an assault by a guard. In that case,
the district judge agreed that the plaintiff had
"alleged a sufficient predicate physical injury
to overcome the bar against recovery for
emotional injury." And in Morris v. Levi, 2011
U.S. Dist. Lexis 55785 (E.D. Pa. 2011) the
district judge concluded that a prisoner's
allegations of dizziness, chest pains and
increased heart rate were sufficient physical
injuries to deny the defendant‘s motion to
dismiss the claim for compensatory
damages.

As a result of § 1997e(e), the courts
will dismiss any claim seeking compensatory
damages for mental or emotional injuries
without a prior showing of physical injury.
See Scott v. Cherish, 2011 U.S. Dist. Lexis
88968 (W.D. Pa. 2011) (compensatory
damages claim dismissed where plaintiff
failed to allege physical injury); Morales v.
Beard, 2011 U.S. Dist. Lexis 78308 (M.D.
Pa. 2011) (hair cut and shave is insufficient
to amount to physical harm); Short v.
Williams, 2011 U.S. Dist. Lexis 4010 (M.D.
Pa. 2011) (compensatory damages for
mental distress due to asbestos exposure
dismissed unless amended complaint is filed
specifying physical injury).

It would appear that compensatory
damages are not recoverable for
constitutional violations absent proof of
physical injury. If no physical injury was
sustained, the prisoner can still file suit
seeking an award of nominal damages and
punitive damages as well as injunctive relief.
See Carey v. Piphus, 435 U.S. at 266 (1978)
(a violation of constitutional rights is
actionable for nominal damages without
proof of actual injury); Smith v. Wade, 461
U.S. 30, 56 (1983) (an award of punitive
damages may be assessed "when the
defendant's conduct is shown to be
motivated by evil motive or intent, or when it
involves reckless or callous indifference to
the federally protected rights of others").

As to what constitutes "physical
injury," Congress failed to provide a definition
in the PLRA, thus leaving the matter for the
courts to decide. In Mitchell v. Horn, 318
F.3d 523 (3d Cir. 2003), a prisoner alleged
that he suffered "physical injury" within the
meaning of § 1997e(e) when he was placed
in a disciplinary cell where he could not eat,
drink, or sleep. Id. at 526. The Third Circuit
concluded that the loss of food, water and
sleep were not by themselves "physical
100

E.

This PLRA provision was specifically
aimed at abusive indigent inmates who
continuously filed frivolous or meritless
litigation in federal court. Of course, the
courthouse door still remains open to even
prisoners with three strikes. Such inmates,
however, must either pay the entire filing fee
up front to commence a civil action (see
Abdul-Akbar v. McKelvie, 239 F.3d 307, 317
(3d Cir. 2001) (a three strikes inmate "is
simply unable to enjoy the benefits of
proceeding IFP and must pay the fees at the
time of filing instead of under the installment
plan")) or gain IFP status by proving that he
or she is "under imminent danger of serious
physical injury." See Demos v. Bush, 365
Fed. Appx. 341, n.1 (3d Cir. 2010) (three
strikes inmate must either "pay the filing fee
for a civil action in full" or “demonstrate
imminent danger of serious physical injury"
within meaning of statute).

Three Strikes Provision

As noted previously, prisoners
without financial resources to pay the filing
fee may seek leave to proceed "in forma
pauperis” (IFP). IFP status does not excuse
payment of the filing fee; it merely permits an
indigent inmate to file his suit and commence
his case while making incremental monthly
payments to satisfy the filing fee.
Not all prisoners, however, are
entitled to seek IFP status. According to 28
U.S.C. § 1915(g) a prisoner is not allowed to
bring a civil action or appeal IFP if he or she
has, "on 3 or more prior occasions," brought
an action that was dismissed "on the grounds
that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury."
What does § 1915(g) mean? “In
plain English, this means that prisoners who
have had three actions or appeals dismissed
cannot take advantage of any of the benefits
of IFP status, such as avoiding the
immediate payment of filing fees or having
pro bono counsel appointed by the court
under § 1915(e) (1)." Baker v. Flagg, 439
Fed. Appx. 82 (3d Cir. 2011).

According to § 1915(g) any prisonerinitiated action or appeal dismissed on
grounds that "it is frivolous, malicious, or fails
to state a claim upon which relief may be
granted" counts as a strike. When a prisoner
has accumulated three strikes, § 1915(g) is
triggered. In light of today's computerized
court records, any attempt to conceal prior
dismissals seems ill-advised. In Jones v.
Folino, the Third Circuit dismissed an appeal
where the prisoner failed to divulge in the
lower court that he had three strikes against
him. 419 Fed. Appx. 264, 265 n.1 (3d Cir.
2011). "Jones' lack of candor is
unacceptable. If, while a prisoner, he files a
civil action or appeal in a federal court, he
must inform the court that he has had three
cases dismissed as frivolous and that he is
required to demonstrate imminent danger of
serious physical injury in order to proceed
IFP." Id.

Under this statute, an indigent
prisoner accrues a "strike" when he or she
files a frivolous or meritless action. Once the
prisoner has received "three strikes," he or
she is "out" in terms of bringing a future IFP
case absent proof of "imminent danger of
serious physical injury." 28 U.S.C. § 1915(g).
See In Re Faison, 419 Fed. Appx. 171, 172
(3d Cir. 2011) ("because Faison was
considered a ‘three stríker,’ he could only
proceed with his appeal IFP if he satisfied
the imminent danger exception"); In Re
Young, 382 Fed. Appx. 148, 149 (3d Cir.
2010) (mandamus action was missed where
plaintiff was a three striker and failed to
establish imminent danger); Dandar v.
Krysevig, 371 Fed. Appx. 251 (3d Cir. 2010)
(motion for preliminary injunction dismissed
because plaintiff was a three-striker and
failed to establish imminent danger).

All cases dismissed as frivolous,
malicious or failing to state a claim count as
strikes. The Third Circuit has decided,
however, that prior dismissals cannot be
counted as strikes under 1915(g) where
appeals were still pending in those cases.
See Jordan v. Ciechi, 428 Fed. Appx. 195,
198 n.2 (3d Cir. 2011) ("A dismissal does not
101

plaintiff is statutorily precluded from obtaining
court-appointed counsel. 637 F.3d 187, 192
(3d Cir. 2010). "Allowing a litigant who was
denied IFP status pursuant to § 1915(g) to
obtain counsel under 1915(e)(1) would thus
contradict both the text of § 1915 and the
principal purpose of the PLRA." Id. at 192.

qualify as a strike for 1915(g) purposes until
a litigant has exhausted or waived his or her
appeals.").
Prisoners who have three strikes
under § 1915(g) are not permitted IFP status
to file a new action; instead they must pay
the complete filing fee up front. Abdul-Akbar
v. McKelvie, 239 F.3d at 317. The only
exception is when the prisoner can prove
that he or she is "under imminent danger of
serious physical injury." § 1915(g).

F.

PLRA Restrictions On Remedial
Relief

In addition to reducing inmate
lawsuits filed in federal court, the PLRA also
contained statutory changes designed to
end, or at least significantly curtail, what
some PLRA advocates see as "judicial
micromanagement" of the prison system. As
a result, court orders requiring improvements
in prison conditions while not unobtainable,
now require specific findings.

District judges will assess imminent
danger contentions at the time the complaint
is actually filed with the court. Abdul-Akbar,
239 F.3d at 313. Danger that has passed
due to a prison transfer or some other
change in prison conditions does not qualify
as "imminent" danger. Id. In addition, a
district judge may discredit factual claims of
imminent danger that are "fantastic" or
"delusional" or "wholly incredible." See
Brown v. City of Philadelphia, 331 Fed. Appx.
898, 900 (3d Cir. 2009) (allegations that
prison guards threatened his life,
contaminated his food, denied him medical
treatment, placed feces and urine in his cell,
denied him heat and water, and urged other
inmates to attack him were not credible in
light of plaintiff's abuse of judicial system as
he had three strikes and used imminent
danger previously to gain IFP status).

The PLRA amends 18 U.S.C. § 3626
in three significant respects: (1) it places new
requirements for prospective relief in all civil
actions concerning prison conditions; (2) it
places limitations on the issuance of
“prisoner release orders” or so-called
"population caps" to reduce prison
overcrowding; and (3) it provides for the
automatic stay and termination of previously
granted prospective relief.
The PLRA places limitations on
when district judges can award "remedial" or
"prospective" relief which is defined as "all
relief other than compensatory monetary
damages." 18 U.S.C. § 3626(g)(7).
According to the statute, a court "shall not
grant or approve any prospective relief
unless the court finds that such relief is
narrowly drawn, extends no further than
necessary to correct the violation of a federal
right, and is the least intrusive means
necessary to correct the violation of the
federal right." 18 U.S.C. § 3626(a)(1)(A).

Allegations of imminent danger must
be credible. See Ashley v. Dilworth, 147 F.3d
715, 717 (8th Cir. 1998) (imminent danger
exception satisfied where inmate was
subjected to documented physical attacks);
McAlphin v. Toney, 281 F.3d 709, 711 (8th
Cir. 2002) (imminent danger satisfied based
upon pain and spreading mouth infection);
Prall v. Bocchini, 421 Fed. Appx.143, 145 (3d
Cir. 2011) (remanding imminent danger
question back to lower court to evaluate
credibility of assertion that inmate was
subject to beatings once a week).

Basically, what § 3626(a) does is
require that prison conditions remedies
extend no further than absolutely necessary
to remedy federal constitutional violations.
Consequently, if a federal judge concludes
that prison over-crowding has resulted in
unsanitary conditions and increased prisoner
violence, that judge can only order state

Finally, are prisoners precluded from
seeking appointment of counsel if they have
accumulated three strikes under § 1915(g)?
The answer is yes. In Brightwell v. Lehman,
the Third Circuit agreed that a three strikes
102

authorities to implement those measures
necessary to correct the Eighth Amendment
violations. See Tyler v. Murphy, 135 F.3d
594, 596 (8th Cir. 1998) (vacating injunction
imposing 20-person cap on technical parole
violators held at prisons where district judge
did not make requisite § 3626(a) findings).

written findings that the relief is needed to
rectify a "current and ongoing violation of the
federal right, extends no further than
necessary to correct the violation of the
federal right, and that the prospective relief is
narrowly drawn and the least intrusive means
to correct the violation." See 18 U.S.C. §
3626(b) (3); Imprisoned Citizens Union v.
Ridge, 169 F.3d 178, 190 (3d Cir. 1999)
(Congress chose to allow the courts to
maintain jurisdiction only where defendants
are guilty of "current and ongoing" violations
of a federal right). Even if a court made these
findings at the time the remedial order was
entered, the order is subject to termination,
upon motion, two years after the order's entry
unless the court, once again, makes the
prescribed findings. See 18 U.S.C. §
3626(b)(1).

With respect to prisoner release
orders, the PLRA provisions mandate that no
such order may be entered unless a "less
intrusive" order has failed to remedy the
federal right violation and the defendant was
afforded a "reasonable amount of time to
comply with the previous court orders." 18
U.S.C. § 3626(a)(3)(A). Additionally, only a
three-judge court can issue a prisoner
release order, see 18 U.S.C. § 3626(a)(3)(B),
and this court must find, by clear and
convincing evidence, that crowding is the
"primary cause" of the illegal conditions of
confinement and that no other remedy can
alleviate those conditions. See 18 U.S.C. §
3626(a)(3)(E).

That long-standing consent decrees
regulating prison conditions are in peril was
amply demonstrated in Para-professional
Law Clinic v. Beard, 334 F.3d 301 (3d Cir.
2003). At issue in the case was a § 3626
motion, brought by the Pennsylvania DOC, to
terminate a 14-year-old injunction enjoining
state officials from closing SCI-Graterford's
inmate law clinic. Id. at 303. Although
acknowledging that the law clinic "provides a
valuable service" to both inmates and the
judiciary, and that prison officials would have
to completely overhaul their own system of
access to the courts if the clinic was closed,
the Third Circuit nevertheless agreed with
the Commonwealth and dissolved the
injunction. Id. at 306. Consent decrees and
other remedial relief can only be sustained
upon proof of a "current and ongoing"
constitutional violation. Id. at 304. Ironically, it
was the law clinic's effectiveness in providing
legal assistance to prisoners that convinced
the court that there did not exist a "current
and ongoing" violation of access to the courts
at the prison. Id. at 306. See also Bey v.
Keen, 2012 U.S. Dist. Lexis 150072 (M.D.
Pa. 2012) (where plaintiff failed to show
"current and ongoing" violation of access to
courts, consent decree governing legal
assistance terminated); Vazquez v. Carver,
18 F.Supp.2d 503, 513 (E.D. Pa. 1998)

In Brown v. Plata, 131 S.Ct. 1910
(2011) the Supreme Court upheld a three
judge court's § 3626 order requiring
California to reduce its state prison
population. Id. at 1944. According to the
order, California was required to reduce its
population to 130% percent of design
capacity within two years. Id. Evidence in this
extraordinary case indicated that severe
overcrowding resulted in a suicide rate
exceeding national standards, increased
prison violence, denial of essential medical
care, and outbreaks of infectious diseases.
Id. at 1924. "As many as 54 prisoners may
share a single toilet." Id. at 1924. The
Supreme Court agreed that the three-judgecourt's prisoner release order was "narrowly
drawn," extended "no further than necessary"
and was the "least intrusive means
necessary" to remedy the Eighth Amendment
violations at hand. See 18 U.S.C. §
3636(2)(3).
If prospective relief has already been
granted by a district court, the PLRA contains
provisions permitting termination of all
prospective relief unless the court makes
103

(since record contained no evidence of
current violation, consent decree terminated
despite argument that prison officials may
rescind policies that prevented federal
violations).

is filed to modify or terminate remedial relief
and lasting until the district court enters a
final order ruling on the motion. See 18
U.S.C. § 3626(e)(3). A crowded or congested
court docket, however, does not qualify as
"good cause" for postponement of the stay.
§18 U.S.C. § 3626(e)(3).

Finally, all prospective relief ordered
by a court is stayed thirty days after a motion
 
 
 

104