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A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 10, NO.1, WINTER 1994/95 ~.ISSN 1076-769X "Corrections-Industrial Complex" Expands in u.s. ed Goins, a securities analyst at Branch, Cabell & Co. in Richmond, Va. spent a weekend last spring reading through every detail of the federal Crime Bill and watching the debate on C-Span. He then came up with a list of "theme stocks of· the 90s." Goins' highest recommendation went to the Nashville-based Corrections Corporation of Features: America (CCA)-the nation's • Stab protection - to 81.1 ~~~~~~~~'t~~e:~~~;li. most successful operator of prifomia Correctional Standard. vate prisons-whose stock had • Slash protection f.chjeved with space-age titanium. recently hit an all-time high. • Blunttrauma protectio nyOU'll barely feel the blows. CCA's chief financial officer was • Aama protection with fir~~ retardant Nomett' covenng. quoted as saying that the Crime The S.T.A.R. vest gives you a maximum range of motion for close confrontaUons. Bill was "very favorable to us."! I-_~"I Don't Get Stuck With Anything Less. _.-.=0CCA's success is but one example 1ft",."Int Blank '85",,00 A.. Ami""" NY 11101 of the profits to be made by a rapidly growr@J BODYARMOR (800)64S4443"lnNY.(516)842.3900 ing constituency of architects, private prison operators, vendors, labor unions, developers, financiers, and other entrepreneurs. complex," cautions against the spread of a Most recently, defense contractors, who system of crime control in which ethical have been hyrt by cuts in military spending, questions are suppressed and efficient manhave been searching for opportunities in the agement supplants justice. 2 corrections industry. Will the economic motives of business The combination of these lucrative busiconflict with the objectives of providing ness opportunities, political posturing, the decent conditions of confinement? Will war on drugs, and deep social divisions prison businesses maintain high occupancy within the United States have created a rapid rates even in the absence of demonstrated expansion of the "crime control industry." need? And, as Malcolm Feeley asks, to The buyers and sellers of prison goods and what extent does privatization expand and space are lining up to cash in. transform the state's capacity to punish?3 Critics warn, however, that the econOlnic That the United States is moving full steam interests of industry will always be on the ahead to expand this system is unquestionside of oversupply of prison space rather able. In 1980 the total state and federal than undersupply, establishing an extraordisentenced inmate population was 329,821. narily strong force for expansion. At midyear 1994 that total had risen to Renowned Norwegian criminologist Nils 1,012,851. 4 The 1994 federal Crime Bill Christie, one of the most outspoken critics provides nearly $9 billion for state prison of the emerging "corrections industrial construction. During FY 1993-94 state pris- T ons added at least 105,219 beds, an increase of 13% from the 1992-93 totals of 92,028 beds. Some of the biggest names in finance have become involved: Goldman Sachs & Co., Prudential Insurance Co. of America, Smith Barney Shearson Inc. and Merrill Lynch & Co. Many of the companies work to underwrite prison construction with private, tax-exempt bonds which require no voter approval. A Shoppers' Guide Private companies are now available to provide consulting, personnel management, architecture and building design, vocational assessment, medical services, drug detection, transportation, food service and management to state prison systems. Other businesses have been formed to sell specialized products such as body armor, closed circuit television systems, mechanical and electronic locks, perimeter security and motion detection systems, tamper-proof furniture, fencing, flame-retardant bedding, heavy duty furniture, shatter proof plastic panels, plastic bunks, tamper-proof fasteners, and clog proof waste-disposal systems. One company sells high-security fire sprinklers designed so that inmates cannot hang themselves. Aquick look through the advertisements in any issue of Corrections Today, the ACA's glossy magazine, reveals a certain talent for wordplay: • Coastal Correctional Healthcare, Inc.: Put a Lock on Healthcare Problems. Are correctional healthcareproblems on the loose in yourfacility? Let usput the cuffi on them. " • Santana (plastic toilet compartments): "Igot 10years, but Santana is in here for life!" • AT&T: Strike Three! 3-way call detect system stops your inmatesfrom getting out. And it's proven 93% effective. " • Point Blank BodyArmor: "Some inmates would love to stab, slash, pound, punch and burn you. But they,. won't getpastyour S. TA.R. (Special . TacticalAnti-Riot Vest). The lobbying power of these companies; especially defense contractors with lobbyists in Washington and long-term relationships on Capitol Hill, distorts the dialogue that should be taking place about the effectiveness of incarceration as a policy and drowns more reasonable voices. "We're not going to be able to lock up everyone," said Bobbie 1. Huskey, president of the ACA. "The absence of a noticeable reduction in adult crime rates as incarceration rates have climbed raises serious questions about the efficacy of America's sentencing policies."5 Yes, In My Back Yard For many years prison officials faced the "NIMBY" problem: when communities heard about plans for a new prison, the outcry was "Not In My Back Yard!" Times have changed. "Communities started looking for any kind of economic growth," says Bill Patrick of the Federal Bureau of Prisons. "They started realizing we were a recession- proof, environmentally clean, attractive, safe industry.,,6 Financially strapped communities are now begging for prisons to be built in their back yards. Town leaders in Coleman, Florida, the former "Cabbage Capital of the world," population 854, lobbied aggressively for a new Bureau of Prisons site. The new prison is now partially completed. In Texas, some communities have offered free memberships in local country clubs to top officials of any prison that comes to town. Dick Lewis., spokesman for the state jail divisioQ Of the Department of Corrections, said, "Fifteen years ago, if you wanted to place a prison in a locale, you would have major opposition. Now the turnaround is 180 degrees. They are seeking these prison units. The local media calls it the prison derby."l Braham, Minnesota is trying to purchase about 300 acres to donate the land to the state for an $80 million, 800-bed, close custody prison. (The BOP requires that land for a prison be donated by the state.) James Bruton, the state's deputy commissioner for institutions, said he could understand why small towns like Braham seek the prison for economic salvation. But he worries about the long run. "We can- Editor: Jan Elvin Editorial Asst.: Jenni Gainsborough Regular Contributors: John Boston, Russ Immarigeon Alvin J. Bronstein, Executive Director The National Prison Project of the American Civil Liberties Union Foundation 1875 Connecticut Ave" NW, #410 Washington, DC 20009 (202) 234-4830 FAX (202) 234-4890 The National Prison Proiect is a tax-exempt foundation- funded project of the AClU Foundotion which seeks to strengthen ond protect the rights of odult ond juvenile offenders; to improve overall conditions in correctional facilities by using existing administrative, legislative and judicial channels; and to develop alternatives to incarceration. The reprinting of JOURNAL moteriol is encouroged with the stipulation that the Notional Prison Proiect JOURNAL be credited with the reprint, ond that a copy of the reprint be sent to the editor. The JOURNAL is scheduled for publicotion quorterly by the National Prison Proiect. Materials and suggestions are welcome. "Remember, we're notjust making money. We're buildingprisons. " 2 WINTER 1995 The NPP JOURNAL is available on 16mm microfilm, 35mm microfilm and 105mm microfiche from University Microfilms International, 300 North Zeeb Rd., Ann Arbor, MI 48106-1346. THE NATIONAL PRISON PROJECT JOURNAL not build ourselves out of the crime problem," says Bruton. "Every state that's tried it has failed miserably. You'll never see a reduction in the crime rate by building more prisons. What you're going to find out is that you can't afford to operate what you've built." r I" I! II IIII i Privatization Cornell Cox, a private firm in Houston, entered the California market by bUying the state's largest private prison firm, Eclectic Communications, Inc. Cornell Cox is backed by Wall Street investment houses Dillon, Reed & Co. and Charterhouse. Since 1988, Eclectic has received contracts worth more than $50 million. The former owner, Arthur McDonald, sold the company for more than $10 million, according to the Los Angeles Times. "Crime pays. I hate saying that, but it really does," said McDonald from retirement in South Dakota. 8 The two largest companies in the field are Corrections Corporation of America (CCA) and Wackenhut Corrections Corporation. CCA recently entered the inmate transportation business by purchasing TransCor America. "One of TransCor's biggest expenses is overnight housing of prisoners on transcontinental routes," said Doctor Crants, CCA chairman and chief executive officer. "CCA's network of facilities will give TransCor ready access to quality, secure beds, while CCA will gain incremental occupancy." Tennessee's $60 million contract with CCA is currently under review by the state legislature. CCA has come under fire from government audits in Texas of two of their privately run prisons. The 1990 report disclosed that "inexperienced" prison employees had used excessive force on inmates. Additionally, inmates were not getting the services which were requlred under the state contracts and intended to help inmates return to society.9 Another U!]favorable report was issued by the Prison Officers' Association in the United Kingdom in 1987, alleging cruelty to inmates at the CCA facility at Silverdale and abhorrent conditions. 10 As of now, fewer than 2% of the nation's prisoners are incarcerated in private facilities, but the new Republican crime bill presently before Congress will add $10 billion for prison construction, some ofwhich will go to private prisons. Six states have a corrections operating budget of over one billion dollars. California's tops the list with a budget of over $3.6 billion. Here are some examples of what that has meant for Californians: • In the last ten years the DOC's share of the State's General Fund rose from 3.9%." to 8.2% while higher education's share" declined from 14.4% to 9.3%. • The multi-billion dollar prison and socalled crime control expansion wiQ force cuts in education, job training, youth counseling and other social services, the very programs that address the root causes of crime; • The Los Angeles District Attorney's Office says that three out of four offenders who get life sentences under Proposition 184 ("Three Strikes You're Out") will be non-violent offenders, at a cost of $48 billion over 20 years for Los Angeles' prisoners alone. • Based on information provided by the DOC, increases in California's prison population will result in additional state operating costs of about $200 million in 199596, and will grow by several hundred million each year until the full impact is realized in about 32 years. By the year 2003, the additional costs will reach about $3 billion, and will grow to about $6 billion annually by the year 2026. The DOC predicts that it will incur one-time costs of about $20 billion over the next 32 years to construct new facilities. Connections Corrections has traditionally operated without political advantage, but can now benefit from the lobbying skills of many private providers. "An urge for expansion is built into industrial thinking," says Dr. Christie. But the prison industry is one with particular advantage because it provides "weapons for what is o~n seen as a permanent war against crime,'The crime control industry is like rabbits in Australia or wild mink in Norway-there are so few natural enemies around." With the boom have come lobbyists who have an economic interest in keeping sentences harsh and long, so that prison populations continue to soar.J1 Thus, we see a system developing where the deprivation of liberty is powered in large part by the profit motive. Christie warns, "You get private lobbying for prisons and you get private capital interested in building more prisons, in expanding that system ...The industry has no interest in its own abolition." • Jan Elvin is the editor ofthe NPP Journal. Continued on next page State spending According to a survey of 47 states for Fiscal Year 1994-95, the average DOC budget is around $507 million per system, up from an average of $447 million per system in :IT 93-94. THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 3 .... from page 3 1 Paulette Thomas, "Making Crime Pay," The Wall Streetjournal, May 12, 1994, p. AI. 2 Nils Christie, Crime ControlAs Industry: Towards Gulags, Western Style, London and New York: Routledge, 1993. 3 Malcolm M. Feeley, The Privatization of Prisons in Historical Perspective, Criminal Justice Research Bulletin. Sam Houston State University 1991, vo1.6 No.2 pp.l-lO. 4 Bureau ofJustice Statistics, U.S. Department ofJustice. 5 Criminaljustice Newsletter, Vo1.26, No.1, Jan.3, 1995, p.5. 6 Meddis and Sharp, "Prison Business is a Blockbuster," USA Today, Dec. 13,1994, p. lOA 7 Edward Walsh, "Strapped Small Towns Try to Lock Up Prisons," The Washington Post, December 24, 1994, pA3. 8 Dan Morain, "Privately Operated Prisons a Potential Growth Industry," LosAngeles Times, October 19, 1994, p. A15. 9 Mike Ward, "Private prisons faulted on services, discipline," TheAustinAmericanStatesman, Wednesday, May 16,1990. 10 "The State and Use of Prisons in England and Wales," Written Evidence to the Inquiry of the Home Affairs Select Committee of the House of Commons, February 1987. 11 "Politicians who support prison construction receive money from one of the biggest beneficiaries-the California Correctional Peace Officers Association," from the Los Angeles Times, Oct. 16, 1994. The union gave more than $900,000 to Governor Pete Wilson's 1990 run for governor. "Crime pays. I hate -Arthur McDonald after selling the c "There's no bigg than the correction -State Senator; "Prison constructi -Jim Hawthorne, "Americans' fear of complex, an infrastruc state and local dollars." -The Wall Street; "The [prison indu industrial complex' war, there is luc . of Wall Street un and developers." -Peter Pringle "I already se state like Texas w -RodRyan, rep . "We try to keep -Melissa Crane financing team. "Corrections has consultants, lobbyi industry. Like any spe its empire growing." -Texas Comptro prison system as (( ''What can I say, i -Larry Solomo ersfood topriso PRJ Members Confer on UN Prison Standards ,'This is not, in fact, a very popular theme." With classic Dutch understatement Winnie Sorgdrager, the Netherlands Minister ofJustice, introduced the major conference on prison standards held in The Hague last November by Penal Reform International (PR!), and funded by her government. PRl members from five continents described a world where standards for prisoners, and penal reform in general, are indeed very low on the public agenda. We heard a dispiriting picture of rising crime, outstripped only by rising fear of crime, of public and political pressure towards more 4 WINTER 1995 imprisonment, set against tight budget constraints. Above all, of the proven ineffectiveness of treating prisoners badly as a way of reducing crime. "Today's convict is tomorrow's ex-convict," Professor Monika Platek of Warsaw University summed up. "The better we treat prisoners, the safer is society." Hence the main task of the conference: to prepare a manual that would update the 1955 United Nations Standard Minimum Rules (SMRs) for the Treatment of Prisoners. The rules are in many respects badly out of date-drawn up before equal opportunities, or drugs or AIDS. Nevertheless, international penal reformers (including senior UN officials) are convinced that a new set of rules would get nowhere today. Indeed, UN member states would not agree to new SMRs laying down even the 1955 standards. (As one participant pointed out, about half the member countries of the UN today use torture.) During three days' hard committee work, three points in particular became clear. First, despite vast differences in wealth and culture, basic prison standards should be universal. Participants from the developing world did not want adjustments downwards, they wanted firm principles as a lever in the struggle to raise standards. Second, prisons are a reflection of how much the world is shrinking. Participants from western countries stress the growing proportion of their prison population who are foreign nationals. Immigration detainees-asylum seekers in particular- Continued on page 16 THE NATIONAL PRISON PROJECT JOURNAL ~~'1iII6£-'lIIlII!r~-lIIIlll'-_.lIlIE' 11 Status Report: State Prisons and The Courts January 1, 1995 , I II SUMMARY Thirty-nine states plus the District of Columbia, Puerto Rico, and the Virgin Islands are under court order or consent decree to limit population and/or improve conditions in either the entire state system or its major facilities. Thirty-three jurisdictions are under court order for overcrowding or conditions in at least one of their major prison facilities, while nine jurisdictions are under court order covering their entire system. Only three states have never been involved in major litigation challenging overcrowding or conditions in their prisons. The following list gives the current status of each state. Note: There is some overlap between the second and fourth categories because, in some states, one or more facilities are under court order while other facilities in that state are presently being challenged (e.g., Illinois). Also, Oklahoma is listed in both the second and third categories because the McAlester facility is still under the court order entered in Battle v. Anderson but is no longer under active court supervision. Entire Prison System Under Court /-' Order or Consent Decree .\!' 9 jurisdictions: Alaska, Delaware, Mississippi, New Mexico, Rhode Island, South Carolina, Texas, Puerto Rico, V)tgin Islands. Major Institution(s) in the State/ Jurisdiction Currently Under Court Order or Consent Decree 33 jurisdictions: Arizona, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Virginia, Washington, West Virginia, Wisconsin, District of Columbia. Formerly Under Court Order or Consent Decree or Currently Released from Active Supervision of the Court 7 jurisdictions: Alabama, Arkansas, Georgia, Oklahoma, Oregon, Tennessee, Wyoming. '."-,:< .~:. ,. ,-.~ ..... THE NATIONAL PRISON PROJECT JOURNAL Pending Litigation 11 jurisdictions: California, Colorado, Connecticut, Georgia, Montana, Nebraska, New York, North Carolina, Ohio, Utah, Vermont. '~- Special Masters/Monitors/Mediators Appointed (present and past) 24 jurisdictions: Alabama, Alaska, . Arizona, Arkansas, California, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Louisiana, Mi~higan, Nevada, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Washington, District of Columbia, Puerto Rico. Prison Systems or Major Facilities Under Court Order and Cited for Contempt (present and past) 8 jurisdictions: Alabama, Michigan, Mississippi, Rhode Island, Texas, Virginia, District of Columbia, Puerto Rico. Not Involved (to date) in Overcrowding or Conditions Litigation 3 jurisdictions: Minnesota, New Jersey, North Dakota. Thefull Status Report, with details on ' the litigation in each state, will be sent to Journal subscribers under separate cover. For non-subscribers thefull Status Report is availablefor $5 prepaidfrom the NPp, 1875 ConnecticutAvenue, Suite 410, Washington, DC 20009. ... --- WINTER 1995 5 1 A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 10, NO.1, WINTER 1994/95 • ISSN;J076-769X Highlights of Most Important Cases Habeas Corpus/Exhaustion of Remedies During the 1993-94 term, the Supreme Court finally addressed a long-standing ambiguity in the relationship between 42 U.S.C. §1983 and the federal habeas corpus statutes in cases where prisoners seek relief related to the fact or duration of their imprisonment. In Heck v. Humphrey, 114 S.Ct. 2364 (1994), the Court definitively clarified the matter for prisoners who allege that their criminal convictions or sentences are defective. However, the waters remain murky for prisoners challenging disciplinary, parole, or other administrative decisions affecting the time they must serve. Heck addressed what one commentator has called "the Preiser puzzle." Schwartz, "The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners," 37 DePaulL.Rev. 85 (1988). In Preiser v. Rodriguez, 411 U.S. 475 (1973), the plaintiffs brought suit under §1983 to get back "good time" (time off for good behavior) that had been taken from them in prison disciplinary proceedings. The Court ruled that when a state prisoner challenges "the very fact or duration of his physical imp}jsonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole remedy is a writ of habeas corpus." 411 U.S. at 500. The Court reasoned that challenges to custody represent the "core of habeas corpus," 411 U.S. at 487, and that allowing such challenges under §1983 would let prisoners evade the statutory mandate of exhaustion of state judicial remedies. See 28 U.S.C. §2254(b). The scope of the Preiser holding has been a source of persistent controversy. Preiser explicitly stated that a prisoner seeking damages "is attacking something other than tlle fact or length of his confinement, and he is seeking something other than immediate or more speedy release;" accordingly, damage actions do not require prior 6 WINTER 1995 exhaustion of state remedies. 411 U.S. at 494. The follOwing year, in Wolffv. McDonnell, 418 U.S. 539 (1974), a §1983 suit alleging that prison disciplinary proceedings denied due process, the Court held, "Preiser expressly contemplated that claims properly brought under §1983 could go forward while actual restoration of good time credits is sought in state proceedings," and that the plaintiffs could also obtain a federal court declaratory judgment addressing the adequacy of the procedures used and an injunction prospectively enjoining invalid regulations. 418 U.S. at 554-55. The Court added, "One would anticipate that normal principles of resjudicata would apply in such circumstances." Id. at n. 12. It is this distinction among remedies that sets up the "Preiser puzzle." If Wolffand Preiser mean what they say, then a litigant can get a ruling on the merits of an action that affects his or her release date, along with damages, a prospective injunction, or a declaratory judgment. The litigant can then go back into state court armed with the federal court judgment and demand the restoration oflost good time, rescinded parole date, etc., clainling resjudicata or collateral estoppel or both. Insofar as Preiser was about federalism, this procedure-which would reduce the state courts to a "me too" role-does not seem to serve its concerns. Even if the federal judgment is not preclusive in state court, the potential result is highly unsatisfactory: contradictory judgments in different courts concerning the same subject matter. In cases involving criminal convictions or sentences, federal courts have consistently refused to hear suru claims, regardless of the relief sought, unless the litigant has previously exhausted state judicial remedies. See, e.g.,Johnson v. State of Texas, 878 F.2d 904, 906 (5th Cir. 1989) (damage claim for speedy trial violation and the use of perjured testimony in a criminal proceeding may not be pursued without exhaustion of state remedies); Hadley v. Werner, 753 F.2d 514,516 (6th Cir. 1985) (a federal court should not make a ruling on a §1983 damage claim which might imply that a state conviction was illegal). In cases involving administrative decisions-discipline, parole, release date calculation-there has been a spectrum of approaches, discussed below. Heck arose from a criminal conviction. The plaintiff sought damages, but not release, based on allegations that the defendants (county prosecutors and a state police investigator) had engaged in an "unreasonable" and "arbitrary" investigation, destroyed exculpatory evidence, and used an unlawful voice identification procedure at trial. The court of appeals had held that the claim was barred by Preiser.·It had gone on to hold that the case should be dismissed, rather than stayed, pending the exhaustion of state judicial remedies. The appeals courts were in conflict on this point, which is important because a dismissed claim can become time-barred during the state exhaustion process. See, e.g., Young v. Kenny, 907 F.2d at 878 (9th Cir. 1990); Prather v. Norman, 901 F.2d 915,919 (11th Cir. 1990). The Court did not directly resolve this procedural issue. Rather, it held that Mr. Heck had no claim cognizable under §1983. Because §1983 creates a "species of tort liability," the Court looked to the law of malicious prosecution. The Court deemed this the common-law tort most nearly analogous to the plaintiffs claims because· it "permits damages for confinement imposed pursuant to legal process." The Court noted that an element of that tort is termination of the prior criminal proceeding in favor of the accused. 114 S.Ct. at 2371. Adopting this tort rule, it held that the plaintiff would not have a cognizable claim unless and until he got his conviction reversed, which can only be done through exhaustion of state judicial remedies with subsequent resort to federal habeas corpus if necessary. This holding does away with the "Preiser puzzle" for claims involving convictions and sentences. It also makes the stay versus dismissal question a non-issue: if the claim does not accrue until the conviction is reversed, the statute of limitations cannot run during the exhaustion process. 114 S.Ct. at 2373-74. Heck also resolved any doubt-not that any existed-about prisoners' inability to get around the exhaustion requirement by seeking other forms of relief against their criminal convictions or sentences. The Preiser rule, however, is not limited to criminal judgments; it also applies to administrative actions such as prison disciplinary proceedings, parole decisions, and the calculation of release dates. For prison litigators, the important question is what application the malicious proseTHE NATIONAL PRISON PROJECT JOURNAL .cution analogy may have for such administrative matters-especially disciplinary proceedings. The answer should be "none." The tort of malicious prosecution was traditionally limited to judicial proceedings, which prison disciplinary hearings are not. Some states maintain this "courtsonly" rule. See Greer v. DeRobertis, 568 F.Supp. 1370, 1376 (N.D.I1L 1983) (holding that prison disciplinary proceedings cannot support a malicious prosecution suit under 1llinois law); Kerpelman v. Bricker, 329 A.2d 423,427-28 (Md.Ct. Special Appeals 1974). Other states permit some malicious prosecution claims based on administrative proceedings. Even these states have generally done so in instances, such as professionallicensing and discipline proceedings, that were much more like judicial proceedings than is a prison disciplinary hearing. See, e.g., Toft v. Ketchum, 113 A.2d 671,673-74 (N.]. 1955) (ethics and grievance committee proceeding against attorney); Kauffman v. A.H Robins Co., 448 S.W.2d 400, 403 (Tenn. 1969) (license revocation proceeding before state board of pharmacy with to subpoena witnesses and administer oaths). Research reveals only one decision addressing directly and in any detail whether a malicious prosecution claim can arise from a prison disciplinary hearing. In Treacy v. State, 131 Misc.2d 849,501 N.Y.S.2d 1005 (N.Y.Ct.C!. 1986), ajj'd on othergrounds sub nom. Arteaga v. State, 72 N.Y.2d 212,532 N.Y.S.2d 57,527 N.E.2d 1194 (N.Y. 1988), the court held that New York's rule allowing claims for malicious prosecution in administrative proceedings applied only to proceedings "which provide for a 'hearing and trial of the issues on evidence and testimony under oath, with the right of cross examination' ...." Aprison disciplinary hearing "is not a full-scale adversarial hearing" because it is governed only by the minimal requirements of Wolffv. McDonnell, without a right to confrontation or the assistance of counsel and with only a qualified right to call witnesses. 501 N.Y.S.2d at 1006. Therefore Treacy held no malicious prosecution claim could lie. More fundamentally, a malicious prosecution claim is completely different in concept and structure from a dis.ciplinary due process claim. Malicious prosecution claims are brought against the complainant in the case, not the court or other tribunal that hears it. They are based on the lack of probable cause for making the charges, not on violations of procedural rights. W. Page Keeton et al., Prosser and Keeton on The Law ofTorts §119 (5th ed. 1984). By contrast, a claim that the complainant falsely or baselessly filed disciplinary charges is exactly what federal courts will not hear in connection with prison discipline. See, e.g., Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949,95153 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988). Viable disciplinary due process claims are brought against the disciplinary hearing officer or committee members, and they allege that these officials failed to follow the procedures required THE NATIONAL PRISON PROJECT JOURNAL by due process in deciding the case against the prisoner. Nothing in Heck is to the contrary. Heck's discussion of malicious prosecution focuses explicitly on criminal convictions and sentences, with no suggestion that it is intended to govern disciplinary proceedings or other administrative matters-/;' which were, after all, not before the Court. . Although Heck makes Preiser and Wolffirr¢levant to cases challenging criminal judgments, the Court did revisit these decisions in passing. Unforttmately, its comments, which are almost certainly dicta, do little to clarify Preiser's application to administrative actions. Before Heck, some courts held, or simply assumed, that Wolff permitted them to grant any relief not directly affecting a prisoner's release or parole date. l Others held that no relief could be granted under § 1983 if it would require a ruling on whether good time was properly taken, parole was properly revoked or denied, etc. 2 One variation of the latter approach permits prisoners to obtain rulings under §1983 requiring officials to follow proper procedures in connection with future proceedings concerning their good time, parole, etc., because such rulings do not directly entitle the prisoner to earlier release. 3 Amore restrictive view of this substance/procedure distinction holds that no relief can be granted under § 1983 based on a challenge to an individual prisoner's hearing affecting her release date; only "broad-based attacks on general rules and procedures" can be heard without exhaustion of state remedies, and even a "broad-based attack" may be barred if it would resolve issues that would automatically entitle the prisoner to release.4 Another appeals court similarly held that §1983 may not be used to decide an "underlying issue," even one of a general nature, that would indirectly entitle the prisoner to immediate or earlier release. s Heck does little to narrow this diversity of views. The Court wrote: ...Petitioner contends that [the plaintiffi in Wolff were authorized] to recover damages measured by the actual loss ofgood time. We think not. In light ofthe earlier language characterizing the claim as one of"damages for the deprivation ofcivil rights, " rather than damagesfor the deprivation ofgoodtime credits, we think that thispassage recognized a §1983 claimfor using the wrong procedures, notfor reaching the wrong result (i.e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrongprocedures necessarily vitiated the denial ofgood-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness ofthe plaintiffs continuing confinement... Thus, the questionposed by §1983 damage claims that do call into question the lawfulness ofconviction or confinement remains open.... 114 S.Ct. at 2370. This passage continues to obscure the question whether Preiser's application turns on the remedy sought or the claim presented. The distinction between "damages for the deprivation of civil rights" and "damages for the deprivation of goodtime credits" is largely specious as a practical matter, as is the distinction between "a § 1983 claim for using the wrong procedures" and one "for reaching the wrong result (i.e., denying good-time credits)." Damages are awarded for the actual loss to the plaintiff, monetary or otherwise, and not for the abstfact value of constitutional rights. Memphis Community SchoolDistrict v. Stachura, 477 U.S. 299, 310 (I986).In procedural due process cases, the plaintiffs loss cannot be assessed without determining whether the same penalty, or any penalty, would have been assessed after a procedurally correct hearing. See Carey v. Piphus, 435 U.S. 247, 261-67 (I978).1f "reaching the wrong result" is excluded from the damages calculation, the damage remedy is trivialized; if it is not, it is difficult to know what the above quoted passage from Heck could mean. Heck's statement that "there is [no] indication in the [Wo{ff] opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits" simultaneously raises and begs the same question: whether the Preiser rule is invoked by the legal claim asserted or by the remedy sought. Under Carey and its progeny, the district court is obliged to find as a fact whether using the wrong procedures caused the improper imposition of a penalty. It is precisely this kind of determination that is barred by existing case law in some federal circuits. Heck's subsequent reference to "call[ing] into question the lawfulness of the plaintiffs continuing confinement" also clarifies nothing. There are several levels of specificity at which the lawfulness of a penalty such as good time deprivation can be assessed-a ruling that good time was improperly taken, that it was taken in a defective proceeding, or that it was taken in a system that follows defective rules or procedures. These distinctions correspond to the varying interpretations of Preiser in the lower courts. Not surprisingly, the lower courts have already begun to disagree about Preiser as interpreted by Heck, along the same lines as their pre-Heck conflict. In Whitman v. Ventetuolo, 25 F.3d 1037 (Table), 1994 WL 246063 (1st Cir.,]une 7, 1994) (per curiam), a prisoner alleged that he had been improperly excluded from a blood donor program that would have yielded good time credits. The court held that all his claims for relief, and not just those bearing directly on his release date, were barred because adjudicating them "would invariably require a federal court to address the question of the constitutionality of state procedures utilized to determine eligibility for the blood donor program." This holding is consistent with the views of Preiser expressed in Serio v. Members of WINTER 1995 7 Louisiana State Board ofPardons and Offett v. Solem, cited in notes 4 and 5. The plaintiffs in Best v. Kelley, _ F.3d_, 1994 WI. 558377 (D.C.Cir., Oct. 14, 1994), challenged the tennination of a drug treatment program through which they had expected to earn good time credits. The appeals court upheld the dismissal of their claim for denial of good time, but it held that the Preiser/Heck rationale did not support the dismissal of the other claims, such as the claim for deprivation of the drug treatment itself-even though adjudication of these claims would require a federal court to address the constitutionality of the program's tennination, the question which also underlies the good time claim. This holding is consistent with the view of Preiser expressed in Thomas v. George State Board ofPardons andParoles, cited in note 3. Thus, the Preiser puzzle has now become the Preiser/Heck puzzle. The most pressing question for prisoner advocates will be whether disciplinary proceedings involving loss of good time in addition to other sanctions are subject to the Preiser rule. The circuits are presently in disagreement on this point, compare Sisk v. CSO Branch, 974 F.2d 116, 118 (9th Cir. 1992) and Viens v. Daniels, 871 F.2d 1328, 1333-34 (7th Cir. 1989) with Bressman v. Farrier, 900 F.2d 1305, 1306-07 (8th Cir. 1990), cert. denied, 111 S.Ct. 1090 (1991), and Heck does not resolve their conflict. Suicide PreventionlDeliberate Indifference In Farmer v. Brennan, 114 S.Ct. 1970 (1994), a case about protection from inmate-inmate assault, the Supreme Court significantly clarified its prior rulings concerning the Eighth Amendment deliberate indifference standard. Randall C. Berg of the FloridaJustice Institute in Miami has pointed out that Farmer appears to overrule a major prop of existing law concerning jail and prison suicides. Most federal courts have adopted some version of the rule that "a finding of deliberate indifference requires that officials have notice of the suicidal tendency of the individual whose rights are at issue in order to be-held liable for the suicide of that individual." Tittle v.jifferson County Commission, 10 F.3d 1535, 1539 (11th Cir. 1994) (en banc) (emphasis in original). In Tittle, the panel opinion held that a history of suicides from horizontal bars in jail cells, with no corrective action by jail officials, created a triable factual issue of deliberate indifference regardless of their knowledge of individuals' suicidal tendencies. 966 F.2d 606,612 (11th Cir. 1992) ("It is true that prison officials are not required to build a Suicide-proof jail. By the same token, however, they cannot equip each cell with a noose.") The en banc court rejected this theory of liability. In Farmer, the Court explicitly rejected the notion that prison officials must have notice of the danger to a particular individual to be held liable. 8 WINTER 1995 Dear Prison Project... Dear Prison Project: I am currently out on parole, and the parole boat'd has recently informed me that I have violated the conditions of my parole atld that the board will take "appropliate action." Do I have any pro" tection against the board revoking my parole? Parole Pending Dear Parole Pending: Revocation of parole requires two hearings: (1) a preliminary heating to determine whether there is probable cause or reasonable grounds to believe that the parolee has violated the terms of parole; and (2) a final hearing to decide any contested facts and to determine whether revocation is warranted. Morrissey v. Bl'ewer, 408 U.S. 471, 480-82, 92 S.Ct. 2593 (1971) The preliminary hearing is held before a detached and neutral body at or near the place of the alleged violation. At the preliminary hearing, you are minimally entitled to (1) a written notice of the alleged violations; (2) disclosure of the evidence against you; (3) an opportunity to be heard by the board in person; and, (4) a written decision containing the facts and reasoning for a finding of probable cause. You have the right to confront and question those who have presented information against you unless the hearing officer decides that the witness would be subject to a risk of harm if his identity is revealed. At the final hearing, you are also guaranteed (1) the right to present witnesses The question under the Eighth Amendment is whetherprison officials, acting with deliberate indifference, eJ<posed aprisoner to a sufficiently substantial "risk ofserious damage to hisfuture health, "...and it does not matter whether the risk comesfi'Om a single source or multiple sources, any more than it matters whether aprisonerfaces an excessive risk ofattackfor reasons personal to him or because allprisoners in his situationface such a risk. 114 S.Ct. at 1982 (citation omitted). Since tlle lisk of plison suicide, like exposure to communicable disease, unsafe dlinking water, exposed \viling, deficient firefighting measures, and the lisk of assault, are all aspects of plison officials' general duty to provide "reasonable safety," see Helling v. McKinney, 113 S.Ct. 2475, 2480-81 (1993), there is no apparent reason why suicide lisks should be treated any differently from lisks of assault by others in applying the deliberate indifference standard. Farmer strongly suggests that the restrictive individual-specific rule of the jail suicide cases is history, and that jail officials are under a general duty to protect all plisoners-not just those already identified as suicide-pronefrom unreasonable lisks of suicide. I See, e.g., Sisk v. Gsa Branch, 974 F.2d 116, 118 (9th Cir. 1992); Clark v. State ofGeorgia Pardons and Paroles Board, 915 F.2d 636,6308-39 (llth Cir. 1990) (claim for damages for parole denial based on unconstitutional grounds and for an injunction barring future consideration of those grounds could be heard under § 1983 since the plaintiff did not seek release); Smith v. Maschner, 899 F.2d 940, 951 (lOth Cir. 1990) (claim THE NATIONAL PRISON PROJECT JOURNAL for good time was subject to habeas exhaustion requirement, but damage claim about same disciplinary proceeding could go forward under §1983); Viens v. Daniels, 871 F.2d 1328, 1333-34 (7th Cir. 1989) (if "significant sanctions" other than loss of good time are imposed, the prisoner may resort to §1983 without exhaustion). 2 See, e.g., Sheppard v. State o/la. Board a/Parole, 873 F.2d 761,762 (5th Cir. 1989) (Preiser rule barred prisoner whose parole was revoked from challenging the constitutionality of a parole revocation statute even though he sought only damages and a declaratory judgment). 30ffett v. Solem, 823 F.2d 1256, 1258-60 (8th Cir. 1987) (barring §1983 challenge to good time statute); accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07 (8th Cir. 1990) (holding that O.ffett rule bars all federal court challenges to disciplinary proceedings in which good time was taken, regardless of the relief sought) , cert. denied, 111 S.Ct. 1090 (I 991). 4Serio v. Members a/Louisiana State Board 0/ Pardons, 821 F.2d 1112, 1118-19 (5th Cir. 1987). 50.ffettV. Solem, 823 F.2d 1256, 1258-60 (8th Cir. 1987) (barring §1983 challenge to good time statute); accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07 (8th Cir. 1990) (holding that O.ffett rule bars all federal court challenges to disciplinary proceedings in which good time was taken, regardless of the relief sought), cert. denied, 111 S.Ct. 1090 (1991). Other Cases Worth Noting u.s. COURT OF APPEALS The plaintiff's claim of denial of due process in disciplinary proceedings should not have been dismissed. His claim that he was repeatedly subjected to false and unjustified disciplinary charges amounts to the claim that they were unsupported by "some evidence." . The plaintiff's allegations of false disciplinary"; charges stated a substantive due process claim. At 1402: "Issuing false and unjustified disciplinari" charges can amount to a violation of substantive due process if the charges were in retaliation for the exercise of a constitutional right." At 1402 n. 11: The court explicitly rejects the view that such allegations do not state a constitutional claim if Wolffis complied with and there is some evidence. "The fact that Black alleges retaliation for the exercise of a constitutional right ...is a decisive distinction" from prior authority. Procedural Due Process-Disciplinary Proceedings Walker v. Bates, 23 F.3d 652 (2d Cir. 1994). A prisoner whose disciplinary conviction was administratively reversed after he had served two months of punitive segregation was not barred from pursuing a claim for denial of due process. At 658-59: The rule is that onceprison officials deprive an inmate ofhis constitutionalprocedural rights at a disciplinary hearing and theprisoner commences to serve apunitive sentence imposedat the conclusion ofthe hearing, theprison official responsiblefor the due process deprivation must respond in damages, absent the successful interposition ofa qualified immunity defense. Suicide Prevention Hare v. City ofCorinth, Miss" 22 F.3d 612 (5th Cir. 1994). The defendants were not entitled to summary judgment on qualified immunity grounds in a jail suicide case in which the record was "replete with evidence that the custodial officers knew or should have known of Tina Hare's vulnerability to suicide" (615) yet they placed her in a cell in which she could not be seen or reached by the trustee or dispatcher on duty and then left her hanging for an ipdeterminate time. Classification-RacelProcedurai Due Process-Disciplinary Proceedings B!t«;k v. Lane, 22 F.3d 1395 (7th Cir. 1994). The plaintiff filed a complaint of racial discrimination. He had previously filed an administrative complaint with the Office of Civil Rights Compliance of the Department ofJustice, which sustained his complaint and led to a resolution agreement concerning job discrimination. After six years of proceedings, including a trip to the appeals court, the defendants defaulted in answering the amended complaint, and the court denied their motion to vacate the default four months later. The magistrate judge held a hearing on damages and awarded $50 after dismissing substantial parts of the complaint for failing to state a claim. THE NATIONAL PRISON PROJECT JOURNAL Procedural Due Process-Disciplinary Proceedings Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994). The administrative reversal of the plaintiff's disciplinary conviction did not cure any due process violations at his hearing. Access to Courts Holloway v. Hornsby, 23 F.3d 944 (5th Cir. 1994). At 946: It is very important to our treasured system ofjustice that our courts be open to anyone with a case or controversypresenting a justiciable claim. Ready access to our court system, including access by those who are incarcerated, is recognized as a valuable constitutional right, one to be carefully guarded Complaints about the validity of incarceration or the treatment accorded inmates are entitled to timely and meaningful consideration. sequent complaints of pain, difficulty eating, and bleeding gums. These allegations raised a disputed issue of material fact. The plaintiff conceded that removing the wrong tooth did not violate the Constitution, but the allegation that the dentist refused repeated requests for treatment for two and a half weeks and then refused to see the plaintiff again after learning he had filed a malpractice action. Law Libraries and Law Books Clayton v. Tansy, 26 F.3d 980 (lOth Cir. 1993). The plaiiitiff, convicted in Oklahoma and transferred to Ne\v Mexico pursuant to the Interstate Corrections Compact, sued New Mexico officials for denying him Oklahoma legal materials. At 982: "In the context of denial of access claims, the general rule imposes upon the sending state authorities the responsibility for ensuring their prisoners incarcerated in sister state facilities are afforded access to state courts." The court rejects dicta from another circuit indicating that the receiving jurisdiction shares the responsibility, since in that case the prisoner was transferred to a federal prison. The district court properly denied permission to amend, since the only defendant who could have saved his case is an Oklahoma official not subject to service of process in New Mexico. The plaintiff must pursue his case against the proper defendant in the proper venue. Pre-Trial Detainees/AIDSlPrivacy A.LA. v. West Valley City, 26 F.3d 989 (lOth Cir. 1994). The plaintiff was arrested for passing a bad check; the arresting officer found a piece of paper in his wallet indicating (erroneously) that he was mv positive, and told his sister, his housemates, and at least one other witness about it. The officer had no basis to believe that the plaintiff engaged in sexual activity or N drug use with these people. He also told the jailer, though there was no basis to believe the plaintiff had done anything to put anyone else at risk. As a result, his friends and family shunned him and refused to visit him; he suffered harassment and discriminatory treatment in jail; he was treated for depression as a result of these events. At 990: There is no dispute that confidential medical information is entitled to constitutional privacyprotection.... We believe...that the actual validity ofthe HIVtest results discovered in Plaintiffs wallet is entirely irrelevant to whether he has a reasonable expectation ofprivacy in the results, or whether he suf fered an "injury infact" as a result ofthe unlawful disclosures. [Citations omitted] Pre-Trial Detainees/Use of Force Dental Care Kinney v. Kalfus, 25 F.3d 633 (8th Cir. 1994). The plaintiff alleged that he complained of various dental problems, and the dentist first extracted the wrong tooth and then refused to deal with his sub- Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994). The Due Process Clause, rather than the Fourth Amendment, governs a claim based on a police shooting of a person escaping from custody dUring transportation from one holding cell to WINTER 1995 9 another. At 457: "Once an individual has been arrested and is placed into police custody, and surely after the arresting officer has transferred the individual to a jail cell, the individual becomes a pretrial detainee, protected against excessive force by the Due Process Clause." Otherwise escapees would receive more protection than detainees who peacefully remained in their cells. (The dissent argues that this view is inconsistent with the extended duration of Fourth Amendment protections acknowledged in Albright v. Oliver, 114 S.Ct. 807 (1994).) Under the due process standard-which in the Fifth Circuit is identical to the Eighth Amendment standard-the shooting was not unlawful. Non-English LanguageslPublications Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994). Federal prison officials denied the plaintiff incoming books, magazines, newspapers and letters on the ground that they "could be detrimental to the security, good order and discipline of the institution" because they were "printed in Japanese and, therefore, can not [sic] be monitored or reviewed by institution staff." The relevant regulations mentioned publications written in code but not those written in nonEnglish languages. Prison officials made no attempt to try to find a translator or otherwise screen the material until the plaintiff sued; then they found an employee in another prison who was profiCient in Japanese. The defendants were entitled to qualified immunity. There is only one case in point (Ramos v. Lamm) , it is from another circuit, and the Supreme Court has relaxed the relevant legal standard anyway. In general, voluntary cessation of allegedly illegal conduct does not moot a case. The burden of proving mootness, which is on the defendant, is a heavy one. When the defendants are public officials, ''we place greater stock in their acts of self-correction, as long as they appear genuine." (597, internal quotes and citation omitted). Here, where the defendants' policies "have apparently ebbed and flowed throughout the course of the litigation," the g.overnment failed to meet its burden of proof. The court frames the question ''whether the prison's alleged de facto policy of summarily rejecting foreign language publications without making any effort to translate or screen such material is constitutionally permissible." (597, footnote omitted) The court notes that Thornburgh v. Abbott emphasized the individualized nature of the determination in upholding federal censorship practices, and there were no particularized findings in these cases. Federal Officials and Prisons/Use of Force Munzv. Michael, 28 F.3d 795 (8th Cir. 1994). Astate prisoner released to federal marshals pursuant to a writ of habeas corpus ad testifican10 WINTER 1995 dum was a convict subject to the Eighth Amendment and not a pre-trial detainee. Allegations that the plaintiff was beaten while restrained and then beaten again while in a padded cell raised a triable factual issue despite the fact that he had been convicted in a jury trial of destroying government property based on his destruction of the inside of the patrol car, and injuries limited to rib contusions. The defendants ..' were not entitled to qualified immunity based on, these allegations. Psychotropic Medications/Administrative Segregation Walkerv. Shansky, 28 F.3d 666 (7th Cir. 1994). The defendants were entitled to qualified immunity from the plaintiff's due process claims of involuntary administration of Haldol because these claims were not suffiCiently well defined before Washington v. Harper. They were not entitled to qualified immunity from the Eighth Amendment claim, since the deliberate indifference standard applicable to medical care cases was well established. However, the use of Haldol did not violate the Eighth Amendment in light of the plaintiff's violent and uncooperative behavior and the defendant doctor's behavior. If he had presented evidence from a medical profeSSional disputing the diagnosis, or if he had disputed the facts on which the defendant doctor based his medical opinion, there might have been a factual issue sufficient to withstand summary judgment. Prolonged administrative segregation may violate the Eighth Amendment. "Whether such confinement does in fact violate the Eighth Amendment depends on the duration and nature of the segregation and the existence of feasible alternatives." The plaintiff's claim of ten plus "several" months, combined with allegations that he was denied exercise, that sometimes he had no water for a week, and he was physically abused raised a triable issue of fact. Procedural Due ProcessClassification/Administrative Segregation Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994). The plaintiff remained in administrative segregation for 117 days after a recommendation that he be released to general population, in part because oflack of bed space. Michigan regulations create a liberty interest in being released from segregation when the justification has expired, either because the inmate is "cleared" of the original reason, or because the prisoner's behavior and attitude has changed. Lack of bed space would constitute a defense; if there was sufficient bed space, the court must determine whether the failure to release the plaintiff was the result of ''willful and wanton behavior." (1092) The defendants are not entitled to qualified immunity because Hewitt v. Helms and Sixth Circuit precedent clearly established the "particularized" right "not to be arbitrarily kept in admin- istrative segregation for 117 days after the reason for [the] original confinement there expired." (1094) Appeal Oliverv. Commissioner ofMass. Dept. of Corrections, 30 F.3d 270 (1st Cir. 1994). The plaintiff's notice of appeal was late. He alleged that he left it in his cell door for prison officials to mail, although he was aware that only certified, registered, insured, COD or express mail was officially recorded. At 272: "By failing to take advantage of the prison mMlog system, Oliver undermined the 'bright-lin~ rule' rationale on which the Supreme Court inHouston relied and made it more difficult for this court to 'avoid uncertainty and chicanery.' ..." (Citation omitted) The court does not hold that the plaintiff is not entitled to the benefit of the Houston rule, but concludes that the district court's finding that he failed to submit a timely notice of appeal was not clearly erroneous. Use of Force Mclaurin v. Prater, 30 F.3d 982 (8th Cir. 1994). The plaintiff was hit in the face by an officer who was accusing him of stealing another inmate's cigarettes. The district court correctly found an Eighth Amendment violation; no force was needed since the officer was not acting to protect himself or others or to serve any legitimate penological interest, and the officer acted solely and purposely to harm the plaintiff. The plaintiff "suffered pain, which is a sufficient injury to allow for recovery for an Eighth Amendment violation." (984) Plaintiff's counsel orally moved to include state law claims of assault, battery and outrage on the day of trial, and the district court declined after the trial to entertain them because they were not raised by amended complaint. This reason does not fall within the four bases for declining supplemental jurisdiction in 28 U.S.C. § 1367, and the court had discretion to permit an amendment to conform to the evidence; the case is remanded for a ruling on that request. Women ]eldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994). Title IX of the Education Amendments of 1972, which prohibits gender discrimination in educational programs receiving federal funding, applies to prisons. So do the regulations of the Department of Health and Human Services implementing the statute. The language of the statute suggests that the standard is one of "equality" and not "parity." However, it does not require gender-integrated classes in prisons. At 1229: Strict one{or-one identity ofclasses may not be required by the regulations. But there must be reasonable opportunitiesfor similar studies at the women'sprison and women must have an equal opportunity to participate in educationalprograms.... THE NATIONAL PRISON PROJECT JOURNAL It may not be necessary to offer as many classes in a small women's prison as in the larger men'sprisons. But the number of classes offeredshouldat least be proportionate, notjust to the total number ofinmates, but to the number ofinmates desiring to take educationalprograms. And the inmates must be made aware ofthe opportunityfor participation in variousprograms before their interests can be assessed. In order to give women "equal opportunity, " there may need to be a higher number ofcourses offered so that women have comparable variety in course selection. "Penological necessity" is not a defense to Title IX; it is "just one concern to be considered in how the equality principles of Title IX are to be applied in prison." (1230) Efficiency and cost effectiveness are not valid security concerns; they are cost and management concerns. Paying men but not women for vocational training participation violated Title IX. The absence of a discriminatory motive did not make this a non-discriminatory policy; it amounted to disparate treatment, not a neutral policy with disparate impact. Procedural, Jurisdictional and Litigation Questions Caldwell v. Amend, 30 F.3d 1199 (9th Cir. 1994). The plaintiff's motion for judgment notwithstanding the verdict was subject to the Houston "prison mailbox" rule that it was timely filed if delivered to prison authorities for mailing within the relevant time limit. The prisoner's sworn declaration that he did so, while not necessarily sufficient to prove the date of filing, shifts the burden to the opposing party to produce evidence to the contrary such as a legal mailbox log or a date-stamped envelope. The fact that the plaintiff did not use the more expensive certified mail procedure did not matter, since he utilized the prison's legal mail procedure. DISTRICT COURTS Pre-Trial De.taineeslfelephones George v. Carusone, 849 F.Supp. 159 (D.Conn. 1994). At a police station, nearly all incoming and outgoing calls were taped. An arrestee's claim under the Omnibus Crime Control and Safe Streets Act of 1968 was not barred by express or implied consent because there was no evidence that he knew of the recording. The conversations were "intercepted" for purposes of the statute when they were taped, not when or if they were listened to. The exception for recording by a law enforcement agent "in the ordinary course of his duties" does not apply where the recording is done surreptitiously. Procedural Due Process-Disciplinary Proceedings Nix v. Evatt, 850 F.Supp. 455 (D.S.C. 1994). THE NATIONAL PRISON PROJECT JOURNAL The plaintiff was charged with possession of an excessive amount of money and canteen items and .asked to call witnesses including his cellmate, who allegedly would have testified that some of these items were his. He said he asked his assigned assistant (an inmate) to procure the witnesses, but he failed to do so, and when he asked at the hear";ing, the hearing officer said such requests must be. in writing-a requirement both he and the assis~ tant said they had not been informed about. At 458: ... [T]his courtfinds that it is clear that once aprisoner is placed in administrative segregation, he is then incapable ofinterviewing or obtaining statementsfrom potential witnesses. Thus, this court concludes that at the time ofplaintiffs hearing there was a clearly established constitutional right to suf ficiently competent representation when a prisoner in administrative segregation isfacing a disciplinary hearing. Use of Force/Searches-PersonArrestees/Pre-Trial DetaineeslHygiene Huffman v. Fiola, 850 F.Supp. 833 (N.D.Cal. 1994). The plaintiff's complaint of sexual assault in a booking cell in the guise of a search stated a constitutional claim under the Fourth Amendment. Jail personnel who watched and refused to stop the alleged assault could be held liable under the deliberate indifference standard. At 837: "Under ordinary circumstances denial of a shower for three days would not be actionable. However, due to the nature of the Plaintiff's allegations and Defendants alleged knowledge of the sexual assault, the denial reaches the level of a cognizable claim in this case." Allegations that the plaintiff was hog-tied, her head was bashed against awell, and an officer stomped on her bare feet stated use of force claims. The court previously stated that this case was being decided under the Due Process Clause. At 838: "Even where one has no entitlement to a benefit, one cannot be deprived of it in retaliation for the exercise of constitutional rights. " Allegations that the plaintiff was denied a shower because she reported the assault and had her bare feet stomped on because she said she was going to file suit stated constitutional claims. WomenILegal Assistance Programs Glover v.johnson, 850 F.Supp. 592 (E.D.Mich. 1994). Prison officials unilaterally reduced funding to Prison Legal Services of Michigan, which provides legal assistance to women inmates pursuant to a prior court order, and excluded parental rights matters from PLS' services contrary to that order, after the Sixth Circuit Knop decision holding that the right of court access did not extend to parental rights matters in a case involving male inmates. This court had previously determined that women inmates, because of their backgrounds, were entitled to the assistance of attorneys (though not necessarily representation in court), and not just law libraries, because they do not have male inmates' "history of 'self-help' in the law." The court holds the defendants in contempt and grants a preliminary injunction requiring the continuation of services consistently with prior orders. The court holds that women inmates are constitutionally entitled to continuation of the relevant legal services; the Knop decision did not address the equal protection violation previously found for women inmates. At 596: "Equal protection is not the same as identical treatment, for identical treatment may indeed'result in very unequal protection." (Citation onlitted) The court then proceeds to find that BOlfnds requires assistance of attorneys for women inmates because of the structure of the probate, juvenile and circuit courts and the informal procedures required to get a hearing in them as well as the prisoners' lack of access to the telephone. The court also concludes under the Matthews v. Eldridge test that due process requires legal assistance in parental rights matters. At 600: "The structure of the various courts as well as the regulations of the Department constitute a barrier to the plaintiff class' exercise of a fundamental right." Religion Rust v. Clarke, 851 F.Supp. 377 (D.Neb. 1994). The plaintiffs are devotees of "Asatru," which they say is an "Icelandic word/term for the ancient religion of the Teutonic people of Northern Europe ...also known as 'Odinism' or 'Troth.'" They claimed unequal treatment with respect to other religious groups. The Religious Freedom Restoration Act "was specifically intended to apply to state prisons (and other institutions of state and federal government) and in the prison context was designed to overrule the Supreme Court's decision in O'Lone v. Estate ofShabazz..." (380) Since the defendants' summary judgment motion is addressed primalily to the O'Lone standard rather than the RFRA, the court denies the motion without actually addressing the merits. The RFRA "does not appear to have waived the [Eleventh Amendment] immUnity of the states, either.... While Congress could abrogate the immunity of the states, it must express itself without equivocation, and it has not done so here." (This is completely wrong. The statute says that plaintiffs can sue "Governments" including "a State, or a subdivision of a state." How unequivocal can you get?) The individual defendants are entitled to qualified immunity. At 378 n. 1: "Defendants do question whether certain practices are necessarily a part of the Asatru religion. In the future, Plaintiffs would be well advised to document why Plaintiffs believe a particular practice is part of the Asatru religion, such as by referring to published theology texts or similar objective sources." This is blatantly wrong. See Thomas v. Review Board, 450 U.S. 707, 715WINTER 1995 11 16, 101 S.Ct. 1425 (1981) (religious freedom "is not limited to beliefs which are shared by all of the members of a religious sect"); Thacker v. Dixon, 784 F.Supp. 286, 295 (E.D.N.C. 1991) ("Except in the most extreme cases, a court must confine itself to a determination of whether the practice in question has a basis in religious belief as the individual sees if') (emphasis supplied), affd, 953 F.2d 639 (4th Cir. 1992). Attorneys' Fees Kersh v. Board ofCounty Commissioners of Natrona County, 851 F.Supp. 1541 (D.Wyo. 1994). plaintiffs' counsel's efforts in connection with a successful contempt motion "constituted reasonable post-judgment work that was necessary to secure the improvements anticipated by the 1990 ConsentDecree." (1543) In addition, they were prevailing parties in the contempt motion. Plaintiffs' attorney is awarded fees at the rate in his community (Denver) rather than the site of the litigation (Casper, Wyoming), since there is no indication that any Wyoming attorney has ever filed a "totality of conditions" case or would consider doing so. In addition, expertise in the field of litigation was necessary, and it was reasonable for this attorney to handle the contempt motion given that he had obtained the underlying consent decree. Access to CourtslLegai Assistance Programs Carperv. Deland, 851 F.Supp. 1506 (D. Utah 1994). Utah provides legal assistance to prisoners by contract with local attorneys; there are no law libraries and inmates are not allowed assistance from "writ writers." The contract was changed to eliminate general legal assistance in civil matters and to restrict the services to writs of habeas corpus and challenges to conditions of confinement. The court previously granted a preliminary injunction to the named plaintiffs and to several additional prisoners. Aclass was certified of "all current and future inmates in the Utah prison system who seek to exercise certain legal rights." (151011) The court here grants summary judgment to the plaintiffs and issues an injunction. At 1517-18: ...Ifdefendants are correct that increased legal services will result in a decrease in educationaland otherprograms, that is unfortunate. However, the court is unpersuaded by defendants' argument that budgetary considerationsjustify limiting the scope oftheir duty to the levelprovided under the current contract. While it is true that economicfactors may be considered in determining the method used toprovide meaningfulaccess to the courts, the cost ofprotecting the right of access cannot be used tojustify its denial... [citations omitted] ..Althoughproviding suchprograms is a legitimatepenological objective, defendants may not choose to provide them at the 12 WINTER 1995 expense ofa constitutional right. Furthermore, the decision whether tofund suchprograms is a questionfor the legislature, notfor the court. The right of court access extends to the purSuit or defense of actions to adjust family relationships, including initial papers opposing the termination /,. of parental rights, including a request for the appointment of counsel, and preparing petitions :. for divorce or the initial response to divorce pe~ tion. It does not extend to enforcement or contempt or modification proceedings in divorce cases. Assistance in adopting a prisoner's spouse's children is not required. Workers' compensation claims are included in the right of court access. Although the tribunal is administrative, "such proceedings are judicial in nature and provide the only means by which an eligible inmate may obtain worker's compensation benefits." (1523) Religion/Standing Scarpino v. Grosshiem, 852 F.Supp. 798 (S.D. Iowa 1994). The Iowa Civil Liberties Union has taxpayer standing to challenge the prison system's "The Other Way" program, a twelve-step rehabilitation program alleged to violate the Establishment Clause. The claim of a prisoner who had been released from the institution and then reincarcerated is not moot because given the twelve to sixteen-week duration of the program, it is "capable of repetition yet evading review." The claim of a prisoner on parole is moot. The court distinguishes earlier authority holding that an M-type program was not religious on the ground that this program not only refers to God and a higher power, but also because it involves group prayer, individual pressure to accept religion as the solution to addiction, and the use of religious video tapes. Establishment Clause claims are not governed by the Turner reasonableness standard because they involve the insistence that public money cannot be spent to support religion rather than an assertion of inmates' rights to do something. Under Lemon v. Kurtzman, prison officials could have believed that this program did not violate the Establishment Clause, and they are entitled to qualified immunity from damages. HygienelNegHgence, Deliberate Indifference and Intent Masonoffv. DuBois, 853 F.Supp. 26 (D.Mass. 1994). The plaintiffs complained that they did not have access to toilets in their cells; when they did not have access to a bathroom area, they had to use portable chemical toilets and a pitcher of water. Official policy was that the bathroom area . was supposed to be opened at any time on request, but there was evidence that these orders were not followed by all officers with respect to all inmates. At 29: Having a sanitaryplace to dispose ofone's bodily waste is one such "minimal civilized measure oflife'S necessities. "... The plaintiffs havepresentedevidence that some inmates have been barredfrom the shanty-the oneplace at the entireprison which hasflush toilets available to inmates. These inmates, when they are out oftheir cells, are left with noplace to deposit their bodily waste. The Constitution does notpermitprison offiCials toforce inmates to undergo such indignities. The plaintiffs have thus shown a likelihood of success on the question of whether they have met the objective 'requirement of an Eighth Amendment claim. However, there is not presently enough evidence to support afinding of deliberate indifference, in the absence of a showing that the defendants had actual knowledge of the violations. At 29: The representations made in affidavits and otherwise in connection with thepresent motion are sufficient, however, to put the defendants on notice that Superintendent Bissonette's order toprovidefull access to the shanty is not being diligently carried out. The court will take into consideration, in any future motionfor injunctive reliefregarding access to the shanty, that the defendants have had such notice. Grievances and Complaints About Prison Hines v. Gomez, 853 F.Supp. 329 (N.D.Cal. 1994). At 331: "... [F]iling an inmate appeal [Le., grievance] falls within the plaintiff's first amendment right to petition the government for redress of grievances." Searches-Person-Convicts Castillo v. Gardner, 854 F.Supp. 724 (E.D. Wash. 1994). Conducting digital rectal probes without "cause predicate" is not reasonably related to legitimate penological goals and is unconstitutional under Turner. However, the defendants are entitled to qualified immunity on this claim. Religion-PracticeslInjunctive Relief-Preliminary Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y. 1994). State prison officials are preliminarily enjoined from prohibiting plaintiffs from wearing their Santeria beads under their clothing or placing beads on their non-publicly displayed shrines. Apreliminary injunction is appropriate. At 204: "Ordinarily, violations ofFirstAmendment rights are recognized as constituting an irreparable injury." The balance of hardships favors plaintiffs, since they have no other way of practicing their religious beliefs, but the defendants have other ways ofprotecting security besides burdening the plaintiffs' religious practice. The Religious Freedom Restoration Act applies to prisoners and displaces the O'Lone/furner reasonable relationship standard for prisoners' reliTHE NATIONAL PRISON PROJECT JOURNAL' gious claims in favor of a compelling interesVieast restrictive means standard. Security is a compelling interest. At 207: "However, defendants cannot merely brandish the words 'security' and 'safety' and expect that their actions will automatically be deemed constitutionally permissible conduct." The court defers to defendants' assessment of the prison gang situation and the role of beads as gang identifiers, but notes that this argument fails to address why the beads cannot be worn under clothing. At 208: "I am troubled by defendants' complete rejection of plaintiffs' proposal based on what defendants speculatively describe as an 'enforcement problem.''' These enforcement problems are the same for Santeria beads as for crosses and crucifixes, which are allowed. The defendants also failed to show that gangs have actually used Santeria beads or that gang beads resemble Santeria beads. The fact that Santeria beads might be used in this fashion sometime in the future is "pure speculation," which cannot justify burdening the plaintiffs' constitutional rights. "I am not required, on a motion for preliminary injunction, to indulge DOCS' whims and anxieties about prospective hypothetical situations." (209) The court reaches the same conclusions under the O'LonelI'urner test. There is no rational relationship between prohibiting wearing beads underneath clothing and the purpose of minimiz.ing gang affiliation and violence. The plaintiffs have no alternative to exercise this particular tenet of their religion. The impact of permitting wearing beads under clothing will be "constitutionally insignificant," and this practice is an "obvious, easy alternative." police officers without any justification while handcuffed in a police car stated a claim for excessive force under the Fourth Amendment. Summary judgment could not be granted based on the lack of injury where the plaintiff had not had the opportunity to take discovery. The question is for the jury if the plaintiff can establish "that force was used and some injury was sustained." Pre-Trial DetaineeslFederal Officials and PrisonslProcedural Due ProcessDisciplinary Proceedings Collazo-Leon v. u.s. Bureau ofPrisons, 855 F.Supp. 530 (D.P.R. 1994). The petitioner was convicted at a disciplinary hearing of attempted escape and offering a bribe to an officer; he was sentenced to a total of 90 days and loss of visiting and telephone privileges for six months. Wolfish forbids the punishment of detainees. The Bureau of Prisons disciplinary regulations by their terms are intended to punish. In addition, "the severity of the sanction itself upon a pretrial detainee charged with misconduct, as to whom no attempt is made to deal with his disciplinary problem by means of less drastic actions, compel the conclusion that the purpose in segregating is to punish." (533) The court rejects the view that the petitioner's pUnishment is necessary to provide for an orderly environment, since upon his release he will present the same security hazard as when he was placed in segregation. The court grants the writ of habeas corpus and orders his discharge from segregation and restoration of his visiting and telephone privileges. WomenlPrivacy Use of Force Messina v. Mazzeo, 854 F.Supp. n6 (E.D.N.Y. 1994). An allegation that all of the named police officers participated in excessive force was sufficient to state a claim. Discovery should determine the exact role of each officer, and a motion for summary judgment can be made based on lack of personal involvement. An allegation that the plaintiff was slapped by Galvan v. Carothers, 855 F.Supp. 285 (D.Alaska 1994). The female plaintiff alleged that she was placed in an all-male wing and that she was subjected to sexual harassment. The court previously granted her a preliminary injunction requiring officials to find her alternative housing. The plaintiffs claim meets the objective prong of Eighth Amendment analysis. At 291: Defendants contend that there is no evi- Court~Decides Landmark Class Action Case in Favor of Pelican Bay Prisoners nJanuary 11, ChiefJudge Thelton Henderson of the U.S. District Court, Northern District of California ruled substantially in favor of prisoners at Pelican Bay State Prison in their class action lawsuit against state prison officials (Madrid v. Gomez). The suit claimed that conditions at the facility, the state's first "supermax" prison, violate prisoners' constitutional rights. 1 The judge, in his 345 page decision, wrote O THE NATIONAL PRISON PROJECT JOURNAL that "dry words on paper cannot adequately capture the senseless suffering and sometimes wretched misery" caused by the defendants. "In this landmark decision, Judge Henderson found that the California Department of Corrections is operating in flagrant disregard of the U.S. Constitution," said David Steurer, a partner in Wilson Sonsini Goodrich & Rosati who tried the case together with fellow partner Susan Creighton and attorneys Donald Specter and Steve Fama of the Prison Law Office in San Quentin. dence regarding minimal standards ofpriva0' and decen0'for a woman inmate. The courtfinds this statement to befantastic .... The courtfinds that minimal standards of privaq and decen0' include the right not to be subject to sexual advances, to use the toilet without being observed by members ofthe opposite sex, and to shower without being viewed by members ofthe opposite sex. There is sufficient evidence that the defendants knew or should have known ofthe potential risks inherent in placing afemale inmate in ait\all male maximum security prison wing:'.: (292). (This opini.on antedates Farmer v. Brennan, which held that "should have known" doesn't cut it under the Eighth Amendment.) Federal Officials and Prisons Lloyd v. Corrections Corporation ofAmerica, 855 F.Supp. 221 (W.D.Tenn. 1994). Aprivate prison housing federal prisoners acted under color of federal law and not state law, and the plaintiffs complaint therefore must be construed as a Bivens action and not a § 1983 claim. Communication with Media/Injunctive Relief-Preliminary Pratt v. Rowland, 856 F.Supp. 565 (N.D.Cal._ 1994) . The plaintiff, a former Black Panther leader, was transferred after agreeing to be interviewed by a television station and double celled immediately after the interview was aired. Medical evidence showed that various physical and psychological afflictions he had were aggravated when he was double celled, and prison officials had generally acknowledged these. The court concludes that the plaintiff was subjected to retaliation for being interviewed, based on evidence that suggests an extremely incompetent cover-up, and grants a preliminary injunction requiring him to be single-celled. Continued on page 17 The suit originated in 1991 after the U.S. District Court received more than 300 petitions from Pelican Bay prisoners alleging civil rights violations during the first two years of the facility's existence. Apanel of federal judges referred the matter to the Pro Bono Committee of the San Francisco Bar Association which asked Wilson Sonsini Goodrich & Rosati to investigate the case. A lawsuit originally filed on behalf of one inmate eventually became a class action and trial took place from September 17 through December 15, 1993. Ainong the constitutional violations found byJudge Henderson were a pattern of excessive guard brutality, a failure to provide Continued on nextpage WINTER 1995 13 For the Record • The American Correctional Association (ACA) believes the federal crime h' signed into law by President Clinton last September deserves a "mixed review" ace ing to a statement to ACA members released in October. The ACA opposes mandato minimum sentencing, including "three-strikes-you're-out' because it believes that' not reasonable or cost-effective to keep such persons in prison until they die" andi concerned about the "inevitable ptison crowding" the measure will cause. Overall believe the crime bill "places too much emphasis on incarceration as a solution to crime". They also opposed the ending of Pell grants for prisoners. The ACA supported the Family Unity Demonstration Project which authorizes g for the establishment of community-based residential correctional facilities in whi offenders can live with their young children. ACA President Bobbie Huskeysaid , are encouraged to see in the final bill a greater emphasis placed on children youth families, because ACA believes that we will need to intervene early in the lives of the families if we are ever going to reduce future crime". Unfortunately, it is these veryp visions that the crime bills introduced into the new session of Congress by the Republican majority sets out to dismantle. • Prison journalist and editor of the Angolite, Wilbert Rideau has become aspe correspondent for the critically acclaimed "Fresh Air" series hosted by Terry Gro NationalPublic Radio. Rideau and Angola Warden John Whitley view it as an educa. alprogram toletthe public know what ptison life is really like. The first segmellt£ es .on literacy and self-educationbehind bars. The payment which "Fresh Air" typic makes to its freelance contributors will, at Rideau's suggestion, be made to the Spaceman Foundation, a non-profit foundation. Rideau's. childhood dream wasto spaceman and he has dedicated the Foundation to the proposition "that allchil<it:e should have. dreanls, should. be able to achieve them and become productive mernh of society. The child who has hopes and dreamsJor his future ,vill not end up ina prison cell~" • Journalist Gary E.Goldhammer left his newspaper job.in California and set() across the United States to explore the facts, .emotions and politics surrounding sap punishment. Heinterviewed the people most affected by the death penalty - priS() on Death Row, their families, victim's families,. jailers·and advocates. He has publi~ these interviews and described his experiences in Dead End, a personal and comp discovery of the costs-human, social and financial-of our continued use of thi~ bariepunishment. DeadEnd can be obtained from Biddle. Publishing Company, PQ 1305,#103, Brunswick, ME 04011, for $10.95 plus $2.00 shipping. • Prison Information Service, Inc.. of Sioux Falls have distributed all theircopi the AboriginalHandbooks and the Bibliography ofSelected Prison· Cases andc fulfill anymore requests forthese books at the moment. They hope in time to rais~ ficient funds to reprintand send copies to everyone who is on their waiting list. Fq more information, contact Roger Flittie at PrisonInformation Service, Inc., POHo:x: 616,SiouxFaYs, SD 57101 Bill Seeks to Strip Courts of Power in Prison Cases mong the package of new federal crime bills passed by the House of Representatives is the Stop Turning Out Prisoners Act ("STOP"), Title III of HR 667. STOP is not part of the. "Contract With America," yet it was pushed through the Judiciary Committee and onto the floor of the House without hearing or testimony and A 14 WINTER 1995 virtually without notice to the public. Asimilar bill has been introduced into the Senate as S. 400. The proponents of STOP are trying to rush the bill through Congress without debate because the "facts" upon which it is based are bogus and the "solutions" it offers are fraudulent. The STOP bill violates the guiding princi- from page 13 minimal medical and mental health care, and confinement in conditions that are likely to cause or increase psychosis in many of the inmates in the prison's supermax facility. Pelican Bay's caging and hogtying of prisoners, its routine resort to 'i lethal force, and its pattern of staff assaults on inmates caused Judge Henderson to conclude that the evidence "painted a picture of a prison that all too often uses force, not only in good faith efforts to restore and maintain order, but also for the very purpose of i1¥licting punishment and pain." In concluding that the defendants had failed to proVide minimal medical or mental health services, Judge Henderson observed that "some of defendants' comments, actions, and policies show such disregard for inmates' pain and suffering that they shock the conscience." With regard to conditions in the Security Housing Unit (SHU) section of the prison, Judge Henderson wrote that "many, if not most inmates in the SHU experience some degree of psychological trauma in reaction to their extreme social isolation," and that defendants "cross the constitutional line when they force certain subgroups of the prison population, including the mentally ill, to endure the conditions in the SHU." The court ordered the parties, under the supervision of a court-appointed Special Master, to negotiate a plan to make Pelican Bay meet constitutional standards. "The court's decision is absolutely correct," said Donald Specter of the Prison Law Office. "Without an injunction tl1ere is no doubt that the brutality and lack of proper treatment would continue indefinitely." Judge Henderson could find "no serious or genuine commitment" by the defendants to "remedying the constitutional violations found herein." • IFor more details about the Pelican Bay State Prison, see NPPJournalVol. 7, No.4, Fall 1992, "Isolation, Excessive Force Under Attack at California's Supermax" and "The Marionization ofAmerican Prisons"; and Vol. 8, No.2, Spring 1993, "Pelican Bay-The Effects ofIsolation." pIe of this country that all people, even the least deserving, are protected by the Constitution. The bill sets a dangerous precedent for stripping civil rights from those in public disfavor. If this bill is successful in placing adult and juvenile prisoners beyond the full protection of the laws, the path will be clear to target other groups, such as ethnic minorities, the mentally ill, and gay people, for similar treatment. The bill is a dangerous assault on federal court power to remedy civil rights violations, and thereby runs afoul of the separation of powers doctrine, which the "Framers of our THE NATIONAL PRISON PROJECT JOURNAL Constitution viewed ... as the central guarantee of a just government," Freytag v. Commission, 111 S. Ct. 2631, 2634 (1991), and "a bulwark against tyranny," United Statesv. Brown, 381 U.S. 437, 443 (1965). This bill works a gaping hole in that bulwark. The lack of deliberation given to the bill accounts for the serious practical and constitutional problems with the legislation, which are discussed in more detail below. Section (b)(l), Termination of Prospective ReliefAfter 2- Year Period: This section calls for judgments to terminate two years after issuance or two years after passage of STOp, whichever is later, even when constitutional violations remain. For example, a court could not continue to enforce a judgment even in the face of a continuing threat to staff and prisoners. In institutional reform cases, it typically takes years of effort by state officials and supervision by the court to fix the major problems that are the subject of such litigation. Since the law already requires termination when constitutional requirements are met, Board ofEduc. v. Dowell, 111 S. Ct. 630, 637 (1991), the perverse effect of this section would be to require termination when constitutional violations persist. This provision also violates the separation of powers doctrine. The Framers criticized legislative efforts to vacate judicial proceedings, suspend judicial actions, and annul or modify judgments, see M.].C. Vile, Constitutionalism and the Separation of Powers 153 (1967), and the Constitutional Convention rejected several proposals to allow legislative revision of judgments. 1M. Jensen, The Documentary History of the Ratification of the Constitution 246-47 (1976). In light of this historical background, the Supreme Court has struck down statutes that revise or suspend judgments. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792); Chicago &Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 11~ (1948). Section (b)(2), Immediate Termination ofProspective Relief. This section requires the termination of all settlement agreements ("Consent Decrees") that were approved without a finding of a constitutional or statutory violation. This would render almost all existing Decrees void because, by their nature, they are approved without such findings. Prison officials usually seek to operate their prisons in a safe and professional manner because they do not want to put their staff at risk of the riots that can result from intolerable conditions. Acourt order is often necessary to get the resources that they need to do this. By legislative fiat, this bill would indiscriminately undo decrees that playa vital THE NATIONAL PRISON PROJECT JOURNAL role in protecting the health and safety of prisoners and staff. Moreover, by preventing settlements, this provision forces parties to costly trials in all cases. Forbidding a state from entering into a settlement agreement encroaches on state autonomy and raises serious federalism concerns. Furthermore(' by requiring a lengthy trial in every case,' this section increases the burden on the federal judiciary. Section (a) (1), Limitations on Prospective Relief This section limits the power of the federal courts to grant relief in prison conditions cases. To the extent that this provision prevents a court from issuing emergency interim relief, such as a temporary restraining order, it violates due process. Cf Phillips v. Commissioner, 283 U.S. 589, 596-97 (1931). If, for example, a prison is in imminent danger of a tuberculosis outbreak, a court must retain the discretion to issue an emergency order prior to a hearing. Section (c)(2), Automatic Stay When Motion Pending: This section calls for an automatic stay of decrees and judgments after a defendant files a motion to modify or terminate, regardless of whether a constitutional violation is ongoing. In effect, this provision gives a defendant the temporary power to overrule a federal court. An automatic stay also deprives a court of its traditional power to balance the equities involved in a stay application. Section (e), SpecialMasters: This provision requires courts to use Magistrates in place of special masters. This usurps the power of the judiciary in two ways. First, it abrogates Fed. R. Civ. Proc. 53, which authorizes courts to appoint special masters. The Supreme Court, rather than Congress, is empowered to modify the Federal Rules. 28 U.S.C. § 2072. Second, over and above the authority granted by Rule 53, "there has always existed in the federal courts an inherent authority to appoint masters." Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum. L.R. 452,462 (1958). Section (j), Attorney's Fees: This provision modifies 42 U.S.C. § 1988 by changing the standard for an attorney fee award in prison conditions cases. The passage of sections 1983 and 1988 was motivated by a commitment to the civil rights of all citizens. Singling out one group for lesser protection sets a dangerous precedent for other groups that fall into disfavor. The bill also prevents a state from entering into a settlement that includes a fee award, forcing states to risk a far greater fee award after trial. In the name of states' rights, the bill actually limits the freedom of a state to determine its own best interests. • Forfurther information contactjoan Dolby, jan Elvin orjenni Gainsborough at the National Prison Project ofthe ACLU at (202) 234-4830, Fax (202) 234-4890. Text ofH.R. 667, Title III, "Stop Turning Out Prisoners Act" Sec. 301. APPROPRIATE REMEDIES FOR PRISON CONDITIONS. (a) In General.-Section 3626 of title 18, United States Code, is amended to read as follows: '\ "Sec. 3626. Appropriate remedies with respect to prison conditions "(a) Requirements for Relief."(1) Limitations on prospective relief.-Prospective relief in a civil action with respect to prison conditions shall extend no further than necessary to remove the conditions that are causing the deprivation of the Federal rights of individual plaintiffs in that civil action. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn and the least intrusive means to remedy the violation of the Federal right. In determining the intrusivenessof the relief, the court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. "(2) Prison population reduction relief.-In any civil action with respect to prison conditions, the court shall not grant or approve any relief whose purpose or effect is to reduce or limit the prison population, unless the plaintiff proves that crowding is the primary cause of the deprivation of the Federal right and no other relief will remedy that deprivation. "(b) Termination of Relief."(1) Automatic termination of prospective relief after 2-year period.In any civil action with respect to prison conditions, any prospective relief shall automatically terminate 2years after the later of"(A) the date the court found the violation of a Federal right that was the basis for the relief; or "(B) the date of the enactment of the Stop Turning Out Prisoners Act. "(2) Immediate termination of prospective relief.-In any civil action with respect to prison conditions, a defendant or intervenor shall be entitled to the immediate termination of any prospective relief, if that relief was approved or granted in the absence of a finding by the court that prison Continued on nextpage WINTER 1995 15 jrompage15 conditions violated a Federal right. "(c) Procedure for Motions Affecting ProspectiveRelieE--"(1) Generally.---The court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions. "(2) Automatic stay.---Any prospective relief subject to a pending motion shall be automatically stayed during the period--"(A) beginning on the 30th day after such motion is filed, in the case of a motion made under subsection (b); and "(B) beginning on the 180th day after such motion is filed, in the case of a motion made under any other law; and ending on the date the court enters a final order ruling on that motion. "(d) Standing.---Any Federal, State, or local official or unit of government--"(1) whose jurisdiction or function includes the prosecution or custody of persons in a prison subject to; or "(2) who otherwise is or may be affected by; any relief whose purpose or effect is to reduce or limit the prison population shall have standing to oppose the imposition or continuation in effect of that relief and may intervene in any proceeding relating to that relief. Standing shall be liberally conferred under this subsection so as to effectuate the remedial purposes of this section. "(e) Special Masters.---In any civil action in a Federal court with respect to prison conditions, any special master or monitor shall be a United States magistrate and shall make proposed findings on the record on complicated factual issues submitted to that special master or monitor by the court, but shall have no other function. The parties may not by consent extend the function of a special master beyond that permitted under this subsection. "(f) Attorney's Fees.---No attorney's fee under section 722 of the Revised Statutes of the United States (42 U.S.C. 1988) may be granted to a plaintiff in a civil action with respect to prison conditions except to the extent such fee is--"(1) directly and reasonably incurred in proving an actual violation of the plaintiff's Fedeil;ll rights; and "(2) proportionally related to the extent the plaintiff obtains court ordered relief for that violation." "(g) Definition.---As used in this section--"(1) the term 'prison' means any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law; "(2) the term 'relief' means all relief in any form which may be granted or approved by the court, and includes consent decrees and settlements agreements; and "(3) the term 'prospective relief' means all relief other than compensatory monetary damages." (b) Application of Amendment.---Section 3626 of title 18, U.S. Code, as amended by this section, shall apply with respect to all relief (as defined in such section) whether such relief was originally granted or approved before, on, or after the date of the date of the enactment of this Act. (c) Clerical Amendment.---The table of sections at the beginning of the subchapter Cof chapter 229 of title 18, United States Code, is amended by striking "crowding" and inserting "conditions." • Ayesha Khan is a staffattorney with The National Prison Project. jrompage4 were singled out as a group lacking any appropriate protection. Third, the overwhelming threat to decent prison standards is overcrowding. The revised rules now go back to the UN for consideration. What was particularly fascinating at the meeting was the opportunity (in the gaps between the committee work) to learn how two traditional leaders in the world incarceration competition--- Russia and South Africa---are reacting to the universal penal dilemma. Their divergent paths demonstrate vividly how prisons are both the product and the barometer of a coun16 WINTER 1995 try's civic health. At the last PRI general meeting three years ago, a former dissident, Valery Abramkin, described a situation of appalling hardship. But he felt the underlying trend was towards improvement. At The Hague last November, however, he and other gave details that show this trend in reversal. Public anger and fear of crime in Russia have contributed to delaying both the new penal code and the new code of criminal procedure. Long and undifferentiated sentences remain in force for many everyday offenses, and prisoners have no effective protection or redress against abuses. Human rights guarantees in the new Russian constitution (1993) are not, in reality, implemented. The PRI members from Moscow said they repeatedly received letters from prisoners describing beatings to extract confessions dUring the pretrial investigation period. Contact with the outside world, including with lawyers, is higWy restricted. Overcrowding is again rocketing. Official figures put the prison population at 886,000---proportionately 530 per 100,000 population. (Unofficial estimates are far higher.) No one who has visited the main urban prisons for pretrial detainees leaves THE NATIONAL PRISON PROJECT JOURNAL any doubt that ghastly conditions have got even more ghastly (See the NPPJournal, Vol. 8, No.2, Spring 1993). Abramkin said that dormitories which had been overcrowded in Stalin's days with 80 occupants now held 140. He had seen prisoners with skin ulcers "like an apple." In the distant colonies for convicts, food was in short supply. TB was increasing again. But the Russian prison authoritieswho allow westerners access to their prisons-readily admit they have problems. One official was an active participant at the conference. The status of the participants who came from South Africa is an indicator of the political priority given by this country to penal reform. The Minister of Correctional Services, Mr. Sipo MZimela, was there; also the Commissioner, the chief administrator of correctional services, General].]. Bruyn, who as a young prison guard had worked on Robbin Island. He told me, "President Mandela is a man who always commanded respect." South Africa is facing the worldwide penal crisis in acute form. The public-black as well as white-demands a stop to a plague of crime. But prisoners are deeply disillusioned that a flat six-months' amnesty did not bring them all immediate release. The prison population remains high proportionally third after the Russian Federation and the US with a rate of about 350 per 100,000. Immense changes are nevertheless underway. In February 1995 the constitution comes up for debate and, according to a senior South African academic at the conference, the expectation is that the death penalty will frompage 13 NON-PRISON CASES Personal Iqvolvement and Supervisory Liability Maldonado-Denis v. Castillo-Rodriguez, 23 E3d 576 (Ist Cir. 1994). At 581-82: Although a superior officer cannot be held vicariously liable under 42 u.S.C. §1983 on a respondeat superior theory, ... he may befound liable under §1983 on the basis ofhis own acts or admissions.... One way in which a supervisor's behavior may come within this rule is byformulating apolicy, or engaging in a custom, that leads to the challenged occurrence....Thus, even if a supervisor lacks actual knowledge ofcensurable conduct, he may be liablefor theforeseeable consequences THE NATIONAL PRISON PROJECT JOURNAL be abolished. Reforms had already started before last year's elections: no executions had been carried out since 1989; solitary confinement, corporal pUnishment and reduction of diet had all been banned. Aseparate penal approach for juveniles has now been drafted. But full racial integration of a justice system designed and run by . whites is causing great tensions. From the United States, there were neither politicians nor prison administrators. . As Alvin Bronstein, Executive Director of the National Prison Project, pointed out: "U.S. officials don't come to this sort ofmeeting." Bronstein's description of "hot-racking" to be introduced in Mississippi to accommodate more prisoners, and the state's ban on all possessions that might make prison tolerable, confirmed fellow PRI members' feeling that the U.S. is not the model to follow. As Bronstein summed up: "The U.S. is marching firmly into the 19th century." Penal Reform International celebrated its fifth birthday in The Hague. It now has over 300 members in 75 countries. It is helping local non-governmental organizations set up programs in East Europe and subSaharan Africa and-funding allowinghas plans in Asia and Latin America. It is most of all an astonishing worldwide network of individuals who share a commitment to fairer and more humane penal justice. Without PRI, many individuals would be operating in total isolation. • Jennifer Monahan is a Britishfreelancejournalist and member ofPenal Reform International. ofsuch conduct ifhe would have known ofit butfor his deliberate indifference or willful blindness, and ifhe had thepower and authority to alleviate it.... To succeed on a supervisory liability claim, aplaintiffnot only must show deliberate indifference or its equivalent, but also must affirmatively connect the supervisor's conduct to the subordinate's violative act or omission....This causation requirement can be satisfied even ifthe supervisor did notparticipate directly in the conduct that violateda citizen's rights;jor example, a sufficient causal nexus may befound ifthe supervisor knew oj, overtly or tacitly approved oj, or purposely disregarded the conduct.... Consequently, deliberate indifference to violations ofconstitutional rights canforge the necessary linkage between the acts or omissions of supervisorypersonneland the misconduct oftheir subordinates.... A causal link may also beforged if there exists a known history ofwidespread abuse sufficient to alert a supervisor to ongoing violations. WlJen the supervisor is on notice andfails to take corrective action, say, by better training or closer oversight, liability may attach. ':.~ Pleading .... Tompkins v. Vickers, 26 E3d 603 (5th Cir. 1994). The court declines to adopt the D.C. Circuit's variation of the heightened pleading" that requires a plaintiff whose claim depends on the state of mind of a defendant to plead direct, rather than circumstantial, evidence of that state of mind. Municipalities Chew v. Gates, 27 E3d 1432 (9th Cir. 1994). Aclaim against the mUnicipality based on an allegedly unconstitutional policy does not tum on the lawfulness of the conduct of the mUnicipal employee involved. At 1445: A city cannot escape liabilityfor the consequences ofestablishedand ongoing departmentalpolicy regarding the use offorce simply bypermitting such basicpolicy decisions to be made by lower level officials who are not ordinarily consideredpolicymakers.... [IJfthe city infact permitteddepartmentalpolicy regarding the use of canineforce to be designed and implementedat lower levels ofthe department, ajury could, iind should, neverthelessfind that thepolicy constituted an established municipal "custom or usage" regarding the use ofpolice dogs for which the city is responsible. ... [MJunicipalliability could [alsoJ befound under the "deliberate indifference"formulation ofMonell liability. ... WlJere the city equips its police officers withpotentially dangerous animals, and evidence is adduced that those animals inflict injury in a significantpercentage ofthe cases in which they are used, afailure to adopt a departmentalpolicy governing their use, or to implement rules or regulations regarding the constitutionallimits ofthat use, evidences a "deliberate indifference" to constitutional rights. • John Boston is the director ofthe Prisoners' Rights Project, LegalAid Society ofNew York. WINTER 1995 17 te Segregation in Alabama Alabama Revisited: Separate But Equal? n 1988 the National Prison Project, along with the Southern Center for Human Rights and local private lawyers, brought a class action suit, Harris v. Thigpen, (now Onishea v. Herring) which challenged the Alabama Department of Corrections' policy of mandatory testing and segregation of HIV-positive prisoners. Since then the Eleventh Circuit Court of Appeals affirmed the DistrictCourt's ruling to uphold both policies, but remanded issues of programming and legal access. While awaiting the latest decision we explore the experiences of three women housed in the Medical Isolation Unit (MIU) at]ulia Thtwiler Prison for Women and one resident of Limestone Correctional Facility's MIU. I Small Changes In 1986 M.W. became the first HlV-positive prisoner isolated at Julia Thtwiler Prison for Women. HlV-positive prisoners during this period were housed on death row with a quarantine sticker, required to disinfect telephone receivers after use and given meals served on paper plates. M.W. recalls waking up covered with maggots because correctional staff refused to empty her garbage. After 13"months M.W. was transferred to administrative segregation with a small group of newly diagnosed women. During the next two years M.W. received access to segregated Adult Basic Education (ABE)/General Equivalency Diploma (GED) preparation and college courses. When she returned in 1993 she found limited programming. GED preparation classes were sporadic, while college courses were nonexistent. In commenting on the policy's impact, M.W. says, "We do more time just because we're positive and can't receive the same programs as general population." B.C. entered Mill in 1987 and has observed changes through three periods of incarceration. She recalls the medical staff greeted her wearing masks and gloves and 18 WINTER 1995 being instructed she would have to wear the same whenever she left Mill. Her daily life included few activities beyond watching television, crocheting or knitting. Reflecting on these days E.C. remembers, "I felt like an animal placed in a cage and just left there." Her second incarceration in 1992 brought some changes, though. B.C. took college courses from an inmate tutor and attended some programs separate from general population. Since returning in 1994 B.C. has participated in the Substance Abuse Program taught by an inmate tutor. By comparison, general population pnsoners have access to a residential subThanksgiving Dinner in the HIV Isolation Unit, stance abuse program coordinated by a certified counselor. In commenting Transforming the Anger on the need for drug treatment programs Alester Moore is serving his second B.C. explains, "Drugs is the reason I came prison stint, one he hoped would provide back to the Unit. Instead of talking about rehabilitation. Aformer bridge builder once my problems I turned to drugs. Being in a employed by a large construction firm, Mr. substance abuse program helps me to talk Moore hoped to continue learning building about it." trades at Limestone Correctional Facility. He Carrie White has experienced two very soon learned that being HIV-positive was different periods at Julia Thtwiler Prison enough to be excluded from vocational and for Women. During her first incarceration other programming including the Interstate in the mid-Seventies Ms. White participated Commerce Compact, which he inquired in a variety of programs from completing about in order to be transferred closer to her GED and numerous college courses, his family. Although a segregated drafting to commercial sewing and bookkeeping. class has recently been offered, other vocaIn addition to these accomplishments she tional programs continue to be denied. participated in furlough programs and was Moore has channeled his dissatisfaction employed in a "downtown job" with the into being a lay minister and serving as Department of Corrections. She remembers coordinator of education for Citizens On that the current site of the Medical Isolation Prevention and Education (COPE), a prisUnit once housed prisoners who worked in oner run HlV/AIDS program. Founded by the healthcare unit. Unit prisoner Matthew Coleman, COPE Upon returning to prison in 1993 Ms. members provide a 12 week training proWhite was placed in Mill after testing HlVgram in HlV/AIDS education, conduct positive, a status she now shares with two monthly seminars on HlV/AIDS issues, corsons incarcerated at Limestone Correctional respond with the families of prisoners and Facility's Mill. Today Ms. White's daily rouvisit sick prisoners in the infirmary. Mr. tine primarily consists of crocheting and Moore says, "Being segregated and denied cleaning up the MIU area. Her inquiries equal programming takes the sentencing regarding college courses all return to an judge's decision to another level. We're just exclusion based on her HlV-positive status. asking DOC to open up the door. If they For future Mill prisoners Ms. White has only one desire, "I hope other women won't have don't open the door to programs it will just cause more problems." • to go through what I'm going through. Sitting back here and deteriorating." THE NATIONAL PRISON PROJECT JOURNAL 1990 ublications Bibliography of Material on -----'---- Women in Prison 1990 AIDS in Prison _-,-_ Bibliography lists resources on AIDS in prison that are available from the National Prison P1'9ject and other sources, il)qluding corrections policies on AIDS, educational materials, medical and legal articles, and recent AIDS studies. $5 prepaid from NPP. lists information on this subject available from the National Prison Project and other sources concerning health care, drug treatment, incarcerated mothers, juveniles, legislation, parole, the death penalty, sex discrimination, race and more. 35 pages. $5 prepaid from NPP. _-,-_ APrimer for Jail Litigators $2/yr. to prisoners. The Prisoners' Assistance Directory, the result of a 1B: The Facts for Inmates _---'-__ and Officers answers commonly-asked questions about tuberculosis (TB) in a simple question-and-answer format. Discusses what tuberculosis is, how it is contracted, its symptoms, treatment and how mv infection affects TB. Single copies free. Bulk orders: 100 copies/ $25.500 copies/$100. 1,000 copies/$150 prepaid. The National Prison Project Status Report lists by state QTY. COST those presently under court order, or those which have pending litigation either involving the entire state prison system or thajor institutions within the state. Lists cases which deal with overcrowding and/or the total conditions of confinement. (No jails except District of Columbia.) Updated January 1994. $5 prepaid from NPP. Fill out and send with check payable to: Name The National Prison Project 1875 Connecticut Ave., NW #410 Washington, D.C. 20009 Address THE NATIONAL PRISON PROJECT JOURNAL a simply written educational tool for prisoners, corrections staff, and AIDS service providers. The booklet answers in an easy-toread format commonly asked questions concerning the meaning of AIDS, the medical treatment available, legal right~ and responsibilities. Also available in Spanish. Sample copies free. Bulk orders: 100 copies/$25. 500 copies/$100. 1,000 copies/$150 prepaid. is a detailed manual with practical suggestions for jail litigation. It includes chapters on legal analysis, the use of expert witnesses, class actions, attorneys' fees, enforcement, discovery, defenses' proof, remedies, and many practical suggestions. Relevant case citations and correctional standards. 1st Edition, February 1984. 180 pages, paperback. (Note: This is not a "jailhouse lawyers" manual.) $20 prepaid from NPP. The National Prison Project JOURNAL, $30/yr. national survey, identifies and describes various organizations and agencies that provide assistance to prisoners. Lists national, state, and local organizations and sources of assistance including legal, AIDS, family support, and ex-offender aid. 10th Edition, published January 1993. Paperback, $30 prepaid from NPP. AIDS in Prisons: The Facts _-,-_ for Inmates and Officers is (order from ACLU) QTY. COST ACLUHandbook,The Rights of Prisoners. Guide to the legal rights of prisoners, parolees, pre-trial detainees, etc., in question-and-answer form. Contains citations. $7.95; $5 for prisoners. ACLU Dept. L, P.O. Box 794, Medford, NY 11763. . _ City, State, ZIP WINTER 1995 19 he following are major developments in the National Prison Project's litigation program since September 30, 1994. Further details of any of the listed cases may be obtained by writing the Project. T Carty v. Farrelly-Agreement has been reached in this lawsuit contesting conditions of confinement at the CriminalJustice Complex in St. Thomas, U.S. VIrgin Islands. The complaint filed inJune 1994 alleged severe overcrowding, unconstitutional environmental and fire safety conditions and grossly deficient medical and mental health care. The agreement, which has the same force as a court order, provides for improvements in all these areas, including limits on population, improved and expanded medical services, with testing and treatment for tuberculosis, and separate housing for mentally ill prisoners. Prisoners will have recreation for tlrree hours daily with a maximum cell lockin time of twelve hours daily. The agreement also contains several important provisions for monitoring. The BOC is also prevented from instituting another facility-wide lockdown without the court's permission. Casey v. Lewis-This statewide class action suit, filed on behalf of Arizona state prisoners in January 1990, challenges legal access, health care and asSignments to segregation. In November 1992, the court held unconstitutional the state's policies restricting prisoners' access to the courts. The Ninth Circuit Court of Appeals heard oral argument National Prison Project American Civil Liberties Union Foundation 1875 Connecticut Ave., NW, #410 Washington, D.C. 20009 (202) 234-4830 in November and on December 27, in a unanimous decision, upheld the trial court's ruling that the Arizona Department of Corrections denies prisoners access to the courts. The ruling affirmed virtually all of the trial court's order, and applies to all 15,000 prisoners in the Arizona system. The order, however, will not be implemented until the Supreme Court decides whether to grant review of the decision because in May 1994 the Supreme Court, with four Justices dissenting, granted a stay of the trial court decision. Knop v.johnson-involves four Michigan prisons. The case was filed in 1984 after the original comprehensive consent decree reached by the Department ofJustice and the state of Michigan in United States v. Michigan was replaced with a modified fivepage, non-enforceable consent decree. The new lawsuit, Knop v. Johnson, raised the same claims as U.S. v. Michigan as well as some additional ones. In 1992, the Sixth Circuit affirmed the trial court's finding of a denial of access to the courts but remanded to the trial court to revise the remedy. In June 1993 the defendants filed their legal access plan which the plaintiffs opposed. In March 1994 the district court held oral argument on the plan. On December 22, 1994Judge Enslen issued an order rejecting the defendants' plan and requiring them to implement a revised plan at the Michigan Reformatory on a trial basis. After evaluation of the plan at the Reformatory, it will be ordered implemented at all the Knop facilities. Onishea v. Herring-(originally Harris v. Thigpen) challenges the Alabama Department of Corrections policy of testing all state prisoners for HIV, segregating all those who test posit,ive and preventing them from taking part ilJ)Nork, educational, recreational and other programs available to nonsegregated prisoners. The plaintiffs sought relief on various constitutional claims and under §504 of the Rehabilitation Act. In 1991 the Eleventh Circuit Court of Appeals vacated and remanded the dismissal of plaintiffs' §504 claim challenging this blanket exclusion, and the dismissal of the plaintiffs' legal access claims. Years of settlement discussions finally proved fruitless, and the issues were retried before Judge Varner in November 1994. We are waiting for the court's decision. Sandin v. Conner-The NPP filed an amicus curiae brief on behalf of the respondent in this case before the Supreme Court. Conner, a Hawaii state prisoner, claimed that he was punished with 30 days of solitary confinement without an adequate due process hearing after allegedly resisting a stripsearch. The Ninth Circuit Court of Appeals, overturning the trial court's ruling in favor of prison officials, held that the prisoner had a right not to be arbitrarily subjected to punitive segregation. The Supreme Court granted prison officials' petition for certiorari from that decision. Oral argument is scheduled for February 28, 1995.• Nonprofit Org. U.S. Postage PAID Washington D.C. Permit No. 5248 Printed on Recycled Paper 20 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL