THE NAT!O~JAL PRISON PROJECT

Journal
American Civil Liberties Union Foundation

ISSN 1076-769X

Vol. 11 No.2, December 1996
Our apologies to all our patient subscribers who have waited so long for this edition of the Journal. This is only the
second edition to be published in 1996 -- and it will probably be 1997 before it reaches you. Your subscription will be
automatically extended to make up for the two issues you have missed, and we will be back on a quarterly schedule for
1997, publishing in March, June, September and December.
When the Prison Litigation Reform Act was signed into law in April of this year, the Project took on the role of
coordinator in a nation-wide network of litigators challenging the Act. We had to do this without any additional staff or
resources so it was inevitable that some other activities would have to be cut back. The Prison Project has always sought
to use its limited resources to maximum effect. It was clear after April that our time and energy would be most effectively
spent in working to limit the impact of the Prison Litigation Reform Act which threatens the civil rights of all of the 1.6
million men, women and children imprisoned in the United States. Unfortunately the Journal had to be put on hold for
sixth months as a consequence of this increased workload. It is good to be back!

Prison Litigation Reform Act Update-The Good, the Bad and the Ugly
Since the Prison Litigation Reform
Act (PLRA) was passed on April 26, there
has been considerable activity inthe courts
and plaintiffs have been contesting the
act's constitutionality with some success.
Goodordersandopinionshave been issued
on the retroactivity of attorneys' fees,
special masterships as prospective relief
and the automatic stay provisions of the
act. On the other hand, there have been
two bad decisions terminating longstanding consent decrees in New York city
and South Carolina. The FoUrth Circuit
upheld the District Court in the South
Carolina (Plyler) case. The Second Circuit
heard the appeal against termination in
the New York City case (Benjamin) in
November but had not issued a decision
by the time we went to print.
Decisions in cases involving litigants
filing informa pauperis have been mixed.
A district court judge in Iowa found that

the"threestrikes and you're out" provision
limiting IFP filings was unconstitutional.
The courts have disagreed on the extent
of to which the new IFP procedures are
retroactive and the Tenth and Second
Circuits reached different decisions on the
application of PLRA to mandamus
petitions. The next issue of the Journal
will look at these decisions in more detail,
together with some ofthe other provisions
riot reviewed in this edition.
The "ugly" award, as usual, goes to
the politicians. The Department ofJustice
filed a brief in July in Benjamin which
found the act constitutional but only by
construing it in some ways that provided
for reasonable flexibility in interpretation
However, after this briefwas criticized by
some members of the Senate Judiciary
Committee, the DOJ hastily reversed their
original stance. Still this retreat was still
not enough for Senator Abraham of

Michigan who held a senate hearing on
PLRA in September designed primarily
to pillory the Department of Justice for
continuingwith their suit in his home state.

Inside
Prison Litigation Reform Act . 2
Significant decisions reviewed

Elizabeth Alexander. . . . . . . . . 8
NPP's new director

Lewis v. Casey . . . . . . . . . . . . . 9
John Boston examines the
Supreme Court's decision

Sexual Abuse of Women
Prisoners
14
Human Rights Watch Report
AIDS Project Update

15

THE NATIONAL PRISON PROJECT Journal -- page 2
The most significant PLRA decisions
are summarized on the following pages
according to the key provisions addressed.
In order to include these key decisions we
are not carrying John Boston's case notes
in this edition. They will return in March.
Any litigators who would like to be a part
ofour PLRA network and receive regular
updates
should
contact
Jenni
Gainsborough. Unfortunately we cannot
offer this service to prisoners as it requires
fax or email access but we will continue
to carry information in the Journal. You
can also fmd information on PLRA and
other topics on our internet website (see
page 8 for details).

The National Prison Project is a special
project of the ACLU Foundation which
seeks to strengthen and protect the rights
ofadult and juvenile offenders; to improve
overall conditions in correctional facilities;
and to develop alternatives to incarceration.
The reprinting of Journal material is
encouraged with the stipulation that the
National Prison ProjectJournalbe credited
as the source ofthe material, and that acopy
ofthe reprint be sent to the editor.
Subscriptions to the Journal are $30 ($2
for prisoners) prepaid by check or money
order. The Journal is published quarterly

y

The National Prison Project of the
American Civil Liberties Foundation Inc.
1875 Connecticut Ave., Ste.410
Washington. DC 20009
Phone: (202) 234-4830
NO COLLECT CALLS

Fax: (202) 234-4890
Email: JenniGains@AOL.COM
NPP Director: Elizabeth Alexander
Journal Editor: Jenni Gainsborough
Regular Contributor: John Boston

Significant Decisions
Under the Prison
Litigation Reform Act
by Ayesha Khan
AUTOMATIC STAY-PLRA § 802(a) (amending 18 U.S.c. §
3626(e)(2»
United States v. Michigan, No. 1:84 CV
63, Opinion (W.O. Mich. July 3, 1996)
(stay denied by 6th Cir., $q)l 17, 1996);
Hadix v. Johnson, No. 4:92:CV: 110.
Opinion (WD. Micb.. July 3, 1996) (stay
deniedby6thCir~Sept..19.1996):Judge
Enslen
declared the provision
unconstitutional under the principle of
separation of powers aod due process.

Hadixv.JoImson;No.80-01-73581-DT,
Opinion and Ordec Denying a Stay of the
ConscntDeaee(E.D. Mich. July 5, 1996):
Judge Feikens declared the provision
unconstitutiona adopting Judge Enslen's
reasoning.
Carty v. Farrelly, No. 94-78, Order
(D.V.Is., July 17, 1996): Judge Brotman
granted plaintiffs' motion for a stay of the
provision. His Order contained no
analysis.
Gavin v. Ray, No. 4-78-70062, Ruling
and Order Staying Automatic stay
Provision (S.D.IowaAug. 9,1996): Judge
Vietor declined to give effect to the
automatic stay provision. The Order did
not setforth any reasons but, at the hearing
on the motion, Judge Vietor stated that the
provision is "vel)' likely unconstitutional"
and that Judge Enslen's decision in United
States v. MichiganlHadix v. Johnson is
"well-reasoned. "
Ruiz v. Scott, Civ. Act. No. H-78-987
(S.D. Tex. Sept 25, 1996): Judge Justice
found the PLRA's 30-day and 180-day
autornaticstayprovisionsunconstitutional.
(He addressed both provisions because

r 1996
the defendants have filedtwotamination
motions -- one under the PLRA and the
other under DowelllFretmJa1l.) He
reasoned as follows:
It is impossible for the Court
to resolve defendants' motions
withinthe3O-day period specified
in
18
U.S.c.
sec.
3626(e)(2)(A)(I), or the 180-day
period in subsection (A)(ii). The
Court believes that the status quo
should be preserved pmding the
resolubooofiii fi:'....s'IDlbnns.
aod fiDds dull the PLRA
-aukJma1ic stay" provisions
vioIaIe the Separation of Powers
and due process of law,
substantially for the reasons
discussed in Hadix and Gavin.
McClendon v. Albuquerque, Civ. No.
95-24 MVIRLP, Memorandum Opinion
and Order (D.N.M. Oct. 29, 1996): Judge
Vasquez found that the automatic stay
provisionviolates the separation ofpowers
because it encroaches upon the uniquely
judicial act ofdeciding to terminate relief
His reasoning drew extensively on Judge
Enslen's decision in Hadix, and turned in
part on the fmding that the parties were
not (and could not have been) prepared
to make the requisite evidentiary
presentation within the 30-day period
~Wtbag«bocactsWe·'tJi1DeWer."u1e&>

court stated in dicta that it "agrees that the
immediate termination provision of the
Act is unconstitutional as applied to final
judgments." Id. at 7.
Inmates at the Indiana State Farm v.
Bayh, CauseNo. IP 82-0477-C MIS (S.D.
Ind. Nov. 20, 1996): The defendants
moved for termination ofa consent decree
pursuant to the PLRA. Two days before
the 30-day automatic stay was to take
effect, the plaintiffs moved for a
preliminary injunction of the stav
provision. Approximately one week late;,
Judge Larry McKinney denied the

THE NATIONAL PRISON PROJECT Journal -- page 3

PLRA § 802(a) (amending 18 US.c. §§
3626(b)(2) and (b)(3»

provision does not violate the due process
"vested rights doctrine" because the
plaintiffs have no property interest in the
rights conferred by the consent decree; and
that the test required of "retroactive"
application of statutes need not be met
because this is not a retroactive
application.

Plyler v. Moore, No. 96-6884 (4th Cir.
1996): In a unanimous opinion (Judges
Wilkins, Williams, and Motz), the court
upheld the district court's termination of
a consent decree under § 3626(b)(2). The
cowt ruled that interpreting "federal right"
to include rights created in a consent
decree would be "nonsensical;" that the
holding ofPlautv. SpendthriftFarm Inc.,
115 S. Ct. 1447 (1995), is limited to
retrospective relief and that the holdings
of State o/Pennsylvania v. Wheeling &
Belmont Bridge Co., 59 US. (18 How.)
421 (1855) ("Wheeling Bridge"), System
Fed'n No. 91 v. Wright, 364 US. 642
(1961), and Ru/o v. Inmates o/Suffolk
County Jail, 502 US. 367 (1992),
authorize the legislative termination of
prospective relief; that the provision does
not run afoul of United States v. Klein,
80 U.S. (13 Wall.) 128 (1871), because
Congress has amended the underlying law
(which is not the Eighth Amendment, but
the authority ofthe courts to award relief
greater than that required by federal law)
and because the provision provides a
standard to which district courts must
adhere (the Constitution sets the ceiling)
but does not dictate the result that they
must reach; that the provision does not
burden the fundamental right of access to
courts because it impairs neither the rights
to bring a claim or to enforce the reliefthat
is obtained (rather, itjust limits the relief
to which one is entitled); that the
provisions rational serves the legitimate
purpose of preserving state sovereignty
by protecting states from overzealous
supervision by the federal courts in the
areaofprison conditions litigation (a point
that the inmates conceded); that the

Gatesv. Gomez,No. Civ. S-87-1636LKK
(E.D. Cal. July 23, 1996): The defendants
moved under § 3626(b)(2) to terminate
an Order issued by Judge Karlton on April
9, 1996. That Orderfound that defendants
were not in compliance with the consent
decree in the case and ordered defendants
to take necessary action to remain in
compliance. Judge Karlton denied the
defendants' motion to terminate the April
9th Order, finding that the Order was
necessary to "correct the violation of [a]
Federal right," namely, the violation ofthe
consent decree. That is, a fmal judgment
ofa federal court, valid at the time ofentIy,
creates rights which can fairly be
characterized as a "federal right. "
The court also found that the
defendants had waived their right -- a right
that was existent at the time the decree was
entered, and one that they retain under the
PLRA -- to have plaintiffs' relief limited
to statutory or constitutional minima This
finding relied in part on the fact that the
decree atissue states that "the parties agree
that in entering into this consent decree
they waive specific findings of fact and
conclusions oflaw and any determination
whether the remedies provided are legally
required." However, the cowt's reasoning
seems applicable to decrees that do not
include such a provision because such
"waiver" is implicit in a consent decree.
The court stated that its rulings were
based on its duty to construe statutes to
avoid constitutional questions. The court
also stated that "to the extent that the
PLRA appears to constrain the ability of
a state to settle its litigation on terms
satisfactory to itself, the statute raises
questions under the Tenth Amendment. "

plaintiffs'motion, stating that the stay had
already gone into effect under the statute

"by operation oflaw" and that the motion
is therefore moot.

TERMINATION --

December 1996
(Citing United States v. Bekins, 304 US.
27, 52 (1937) ("It is of the essence of
sovereignty to be able to make contracts
and give consents bearing upon the
exertion ofgovernmental power"».

Benjamin v. Jacobson, 935 F. Supp. 332
(S.D.N.Y. July 23,1996) (stayed by 2nd
Cir., Aug. 27,1996): Judge Baer upheld
§ 3626(b)(2), terminating consent decrees
in seven different cases involving Rikers
Island and 16 otherjails in New York City.
He rejected the rules Enabling Act argument, finding that the termination
provision is not in direct conflict with
FRCP 60(b).
Separation ofPowers: He rejected the
finality argument, finding that the holding
of Plaut does not apply to injunctions,
pursuant to the holding of Wheeling
Bridge. He rejected the United States v.
Klein, 80 US. (13 Wall.) 128 (1872),
argument, finding that the PLRA does not
dictate certain findings or results under
old law, but changes the law governing
the district court's remedial powers. He
found that the termination provision does
not prevent the federal courts from
imposing effective relieffor constitutional
claims, although it does create "cramped...new legal standards."
Equal Protection: He found that the
statute is subject to "rational basis"
scrutiny because it does not "implicate
[prisoners' fundamental right of court
access, which is limited under Lewis v.
Casey, U6 S. Ct. 2174 (1996), to a] right
of initial access to commence a lawsuit."
The termination provision survives this
scrutiny because it serves the legitimate
interests of (I) "ensur[ing] that federal
courts return control over prison
managementtodemocraticallyaccountable
state and local governments as soon as
federal court supervision became
unnecessary to remedy a ... constitutional
violation;" and (2) "creat[ing] a uniform
national standard for consent and litigated
judgments based on a belief that consent
judgments, even though agreed to initially,

THE NATIONAL PRISON PROJECT Journal·· page 4
imposedsevereburdens on states and local
governments and that these burdens
exceeded what was constitutionally
required." With respect to Congress'
singling out prison conditions litigation,
he ruledthat "Congress maydeterminethat
the problems ofprison conditions consent
decrees involveunique issues that are more
pressing and in need of reform."
Due Process: He found that the
analysis under the "vested rights" doctrine
is parallel to that under PlautlWheeling
Bridge. Moreover, although consent
decrees are contracts, the impairment of
such contracts is subject to the rational
basis review that is applied to
congressional impairment of private
contracts.
Judge Baer found that he lacked a
record on which to make the findings that
would be necessary to allow the relief to
remain in effect under 18 U.S.c. §
3626(b)(3), and that the statute directed
the immediate termination ofan injunction
in such circumstances. He denied the
plaintiffs' request to postpone a decision
on this motion pending an opportunity to
create a factual record necessary to make
such findings.
Gavin v. Ray, Civil No. 4-78-cv-70062,
Order Denying Motion for Immediate
Termination (S.D. Iowa Sept. 18, 1996):
Judge Vietor declared the PLRA's
immediate termination provisions
unconstitutional under the principle ofthe
separation ofpowers. He found that the
holding of Wheeling Bridge is limited to
public rights, and that the holding ofPlaut
extends to cases involving injunctive relief
for constitutional claims. He also found
as follows:

Further, the PLRA undermines
the court's power to decide when
prospective relief should end.
The federal judiciary is vested
with the "power, not merely to
rule on cases, but to decide
them...." Plaut, 115 S. Ct. at

1453.
Under the PLRA,
however, in order to prevent
immediate termination of the
decree, plaintiffs must show a
current or ongoing violation of
a federal right. 18 U.s.c. §
3626(b)(3).
As long as
defendants comply with the
consent decree, plaintiffs cannot
prove a current or ongoing
violation of a federal right. In
these types of cases, there is no
opportunity for the court to
"decide" whether prospective
relief should remain in effect.
He declined to reach the other
constitutional arguments raised by the
plaintiffs -- equal protection and due
process. He rejected the Rules Enabling
Act argument.
McClendon v. Albuquerque, Civ. No.
95-24 MVIRLP, Memorandum Opinion
and Order (D.N.M. Oct. 29, 1996): In
ruling on the constitutionality of the
automatic stay provision, Judge Vasquez
stated that "the court agrees that the
imrriediate termination provision of the
Act is unconstitutional as applied to final
judgments [but] the parties disagree and
the Court questions [,but does not here
decide,] whether [one of the four orders
sought to be tenninated] constitutes a final
judgment" [d. at 7. Although the order
states that the termination motion remains
to be decided by the court, this sentence
seems to be a ruling (or at least a tentative
ruling) on the termination question with
respect to the other three orders.
Hadix v. Johnson, Case No. 80-73581
(E.D. Mich. Nov. 1, 1996): Judge Feikens
ruled that § 3626(b)(2) and (b)(3) violates
the separation ofpowers because they run
afoul of Plaut and because they abrogate
a court's power to enforce its orders, one
ofthe most vital constitutional powers of
the judiciary. This power is not one that
is subject to congressional override

December 1996
because it derives from the Constitution,
as interpreted by the Supreme Court in the
line ofcases from Dowell to Rufo. Judge
Feikensmakes thefollowing notable point:

The Act's use of the term
"prospective relief' masks the
real issue ...: can injunctive relief
based on past negotiations, costs
assessments, and compromises
between parties be overturned by
an act of Congress?
I conclude that it is not
prospective relief that is being
altered, but the consentjudgment
itself.
[d. at 17. Judge Feikens did not reach the

plaintiffs' other arguments, such as equal
protection and due process.

Bobby M. v. Chiles, Case No. 83-7003
MMP (N.D. Fla. Nov. 6, 1996): Judge
Maurice Paul terminated the remaining
portions of a consent decree pursuant to
the PLRA. The plaintiffs did not argue
that the termination provisions are
unconstitutional; rather, they asked the
court to make the fmdings necessary to
allow the relief to remain in effect under
§ 3626(b)(3). The court declined to do
so, reasoning that even if current
conditions are unconstitutional, the
defendants have adopted renovation and
construction plans to remedy the problemareas. Thus, continuation of the consent
decree is not a necessary means of
correcting the violations.
Inmates at the Indiana State Farm v.
Bayh, CauseNo. IP 82-0477-C MIS (S.D.

Ind. Nov. 20, 1996): In addressing the
defendants' motion to terminate a consent
decree, Judge Larry McKinney found that
the present record did not provide
sufficient evidence to allow him to make
the fmdings that permit continuation of
the decree under § 3626(b)(3). He then
gave the parties the following obtuse

THE NATIONAL PRISON PROJECT
directions:
Assuming that it was not
Congress' intent to destroy valid
consent decrees based on
settlements that were freely
reached by both sides after years
oflitigation, the Courtnoworders
both sides of this controversy to
do one ofthree things. First, they
may request a hearing at which
both sides will present evidence
that would enable the Court to
have a basis to fmd that the
original agreed entry met the
requirements of the PLRA....
Second, they could request a
hearing at which each side would
present evidence and defend a
proposed modification of the
original consent decree. If either
ofthese fIrst two alternatives is
employed, the parties are
cautioned that the Court would
expect to be presented with
evidence with which to make
written fIndings that the relief
remains necessary to correct a
current or ongoing violation of
a federal right, that it is narrowly
drawn and the least intrusive
means ofcorrecting the violation
If neither ofthese alternatives is
acceptable, the Court will have
no choice but to fmd that nonconstitutional grounds do not
existfor deciding the dispute, and
will tum to the constitutional
issues raised by the Inmates.
Order at 12-13 (citation and paragraph
breaks omitted). To muddle matters
further, the Court added the following
footnote (without any citations to the
legislative history or to anything else):
TheCourtacknowledgesthelogic
ofthe Inmates' argument that for
the PLRA to require a fInding
that the defendant has actually

Journal·· page 5
violated the prisoners' federal
rights it would have to have a
full-blown trial. It would be
highly unlikely that a defendant
would stipulate to thatfact during
a settlement.
Moreover,
conducting a trial to determine
the existence ofa violation would
defeat the purpose of a
settlement.
Apparently,
something less than a full
adversarial
hearing
was
contemplated by Congress. All
that is needed, in fact, is a finding
that the remedy sought would be
aimed at correcting a violation.

Order at 12 n.3.

Hazen v. Reagan, No. 4-75-CV-80201,
andDee v. Brewer, No. 4-77-CV-80102
(S.D. Iowa): Judge Charles R. Wolle
denied the defendants' motion to terminate
consent decrees in two cases pursuant to
the PLRA, stating as follows:
I have compared the issues,
the briefs, and the theories
presentedhere and in Gavin. The
arguments presented by counsel
are essentially the same. Judge
Vietor's reasoning is sound.
Judges of this court have usually
followed decisions of other
districtjudges in cases with facts
and applicable law that are not
readily distinguishable.
For the reasons set forth by
Honorable Harold D. Vietor in
Gavin v. Ray, Civil No. 4-78CV-70062 (S.D. Iowa Sept. 18,
1996), the court denies the
defendants'
motion
for
termination ofreliefin these two
cases.

ATTORNEYS' FEES -PLRA § 803, subsection (d) (amending
42 U.S.C. § 1997e)

December 1996
Retroactivity
Jensenv. Clarke, 1996WL498960, 1996

U.S. App. LEXIS 23219 (8th Cir. Sept.
5, 1996): The Eighth Circuit ruled that
the fee provisions do not apply
retroactively. The opinion does not
indicate whether the ruling is limited to
work performed beforepassage orextends
to work performed after passage in cases
pending at the time ofpassage. However,
the plaintiffs' attorney told me that all of
the work at issue in the fee award was done
before the PLRA's passage.

Cooperv. Cas~, USCA No. 95-2324 and
95-3529, 1996 U.S. App. LEXIS 26009
(7th Cir. Oct. 2, 1996): Judge Posner held
that the PLRA's attorney fee provisions
are inapplicable to work performed before
the Act's passage.
Alexander S. v. Boyd, CIA No. 3:90-

3062-17, OrderAwardingAttorneys'Fees
(D.S.C. May 29,1996): JudgeAnderson
found that the fee provisions are
inapplicable to work performed before
passage ofthe Act. The decision does not
address the question of the applicability
ofthe provisions to work performed after
passage.
Hadix v. Johnson, Civ. Action No. 80-

73581, Opinion and Order Regarding
Plaintiffs' Motion for Attorney Fees (B.D.
Mich.May30, 1996): JudgeFeikensruled
that the fee provisions are inapplicable to
work performed before passage ofthe Act.
The decision does not address the question
of the applicability of the provisions to
work performed after passage.
Weaverv. Clarke, 1996 U.S. Dist. LEXIS
9682 (D. Neb. June 18, 1996): The court
found at a preliminary injunction hearing
that the plaintiffwas likely to succeed on
the merits but denied the request for a
preliminary injunction because ofthe lack
ofirreparable injury. Thereafter, the defendants "voluntarily" ceased the practice

THE NATIONAL PRISON PROJECT Journal·· page 6
that plaintiff was challenging and then
successfully moved for summary
judgment. The plaintiffs then filed for
attorneys' fees. The defendants argued
that the PLRA's requirement that fees can
only be awarded to the extent that they are
"directly and reasonably incurred in
provingan actual violationoftheplaintiff's
rights" abolished catalyst theory. The
judge ruled in plaintiff's favor, finding that
the fee provisions are not applicable
retroactively to cases in which "all the
events that triggered entitlement to
attorney's fees took place prior to the date
of enactment of the PLRA." The court
also ruled that "at the very least Plaintiff
established a presmnptive violation ofthe
Eighth Amendment [at the preliminary
injunction hearing]. Consequently, ... the
requested attorney's fee was directly and
reasonably incurred in proving an actual
violation of the plaintiffs rights."
Chappellv. Gomez, No. C 93-4421 FMS

(N.D. Cal. Aug. 8, 1996): Judge Fern
Smith ruled that the fee provisions are
inapplicable to a case that was reduced
to judgment before the passage of the
PLRA. This is so even for fees incurred
after passage.

(The decisions do not squarely address
whetherthetriggeringdatefor retroactivity
analysis is the date of the district court's
decision on the merits or the district court's
decision that plaintiffs' counsel are entitled
to fees.)
Webb v.Ado County, Case No. CV 910204-S-EJL (D. Idaho Sept. 30, 1996):
JudgeLodgeheldthatthePLRA'sattorney
fee provisions are not applicable to a case
in which plaintiffs "prevailed" before the
statute's passage and all of the work at
issue was performed before passage.
Browning v. Vernon, Case No. CV 910409-S-BLW,
Report
and
Recommendation (D. Idaho Oct. 2, 1996):
A Magistrate recommended that the fee
provisions be found inapplicable to work
performed before passage. The plaintiffs
had prevailed, and the Magistrate had
recommended afee award, before passage.
However, the language in the
Recommendation would support a claim
that the PLRA's attorney fee provisions
should not be applied to cases that were
filed before the PLRA's passage,
regardless of whether the plaintiffs
prevailed before passage or the award
relates to work performed before passage.

Mdler-Bey v. Stiller, No. 93-CV-72111-

DT (ED. Mich. Aug. 20, 1996): A
Magistrate recommended that the fee
provisions be found inapplicable to work
performed before passage of the Act.
Anderson v. Kern, No. CIV F-90-0205
GEB JFM P, Order at 2 n.l (ED. Cal.
Sept. 30, 1996) (adopting Magistrate's
Order ofAug. 20, 1996): Judge Burrell
adopted a Magistrate's recommendation
that the fee provisions be found
inapplicable to work performed before or
after the PLRA's passage in a case in
which an injunction was issued, and
plaintiffs' counselwerefound to be entitled
to a fee award (although the amount ofthe
fee award has been the subject of dispute
since that time) before the Act's passage.

Gatesv.Deukmejian,No.CIVS-87-1636
LKK
JFM
P,
Findings
and
Recommendations (E.D. Cal. Nov. 25,
1996): In a case involving a 1989 consent
decree, Magistrate Judge Moulds has
recommended that the PLRA's attorney
fee provisions be found inapplicable to
work performed by plaintiffs' counsel
before the Act's passage. The Magistrate
declined to reach the question of the
applicability of the provisions to work
performed after passage.

Hadix v. Johnson, Civ. Action No. 8073581, Opinion and Order (ED. Mich.
Dec. 4, 1996): In a case involving an
eleven-year-old consent decree, Judge
Feikens ruled that PLRA rates -- $112.50

December 1996
per hour -- are applicable to work
performed after April 26, 1996, the date
of the statute's passage.
Finding
congressional intent unclear, the court
reasoned that the prospective application
ofthe statute was not "retroactive" under
Landgrafand would not create a manifest
injustice.

Application to Juvenile Plaintiffs
Alexander S. v. Boyd, CIA No. 3:903062-17, Order Awarding Attorneys Fees
for the Period Februaxy-July 1996 (D.S.c.
Aug. 30, 1996): Judge Anderson ruled
that the fee provisions are inapplicable to
actions filed by juvenile plaintiffs. His
conclusionrests on the distinction between
adult and juvenile facilities in the
definitional sections of42 U.S.c. § 1997,
which were not amended by the PLRA.

SPECIAL MASTERS -PLRA § 802(a) (amending 18 U.S.c. §
3626(f))
The omnibus appropriations bill signed
by the President on September 30, 1996
contains a provision prohibiting the use
offimds appropriated to the judiciary for
the payment of masters appointed before
the PLRA's passage. The precise text of
the provision is as follows:
None ofthe fimds available to the
Judiciary in :fiscal years 1996 and
1997 and hereafter shall be
available for expenses authorized
pursuant to section 802(a) oftitle
VIII of section 101(a) of title I
of the Omnibus Consolidated
Rescissions and Appropriations
Act of 1996, Public Law 104134, for costs related to the
appointment of Special Masters
prior to April 26, 1996.
P.L. No. 104-208, Title ill, § 306 (Sept.
30, 1996) (reprinted at 142 Congo Rec.
H 11656 (Sept 28, 1996)). Theprovision

THE NATIONAL PRISON PROJECT Journal.· page 7
strongly supports the view that the other
provisions regarding masters are also
inapplicable to masters appointed before
the Act's passage.

this case in Madrid as implicitly reaching
the same conclusion. See Madrid Order
at 7 n.6.

INJURY --

PRISONERRELEASE ORDERS-

Taifa v. Bayh, 1996 WL 441809 (N.D.
Ind. June 6, 1996), report and
recommendation approvedsubnom., Isby
v. Bayh, 1996 WL441820 (N.D. ill. July
24, 1996): The court conclusorily applied
the provision in rejecting a claim that was
filed before the PLRA's passage, without
reference to the issues of statutory
construction,
retroactivity,
or
constitutionality.

Casey v. Lewis, Nos. 90-0054 and 911808PHXCAM (D. Ariz. May 15,1996);
Gluth v. Arizona Dep't ofCo"ections,

PLRA § 802(a) (amending 18 U.S.c. §
3626(a)(3»

No. CIV 84-1626-PHX CAM (D. Ariz.
May 15, 1996); Hook v; Arizona, No.
CIV 73-97 PHX CAM (D. Ariz. May 16,
1996): Judge Muecke ruled in three
separate cases that the appointment of a
special master is not "prospective relief'
and that, consequently, the automatic stay
provisions are not applicable to a motion
to modi.fY an appointment.

Doev. Younger, Civ. Action No. 91-187,
Opinion and Order at 10-12 (B.D. Ky.
Sept. 4, 1996): Judge Bertelsman ruled
that an injunction that forbids the county
from housing juveniles in the Kenton
County Detention Center (KCDC) for a
period of more than 15 days is not a
"prisoner release order" under the PLRA.
The county argued that the order "has the
purpose or effect of reducing or limiting
the prison population" under 18 U.s.c.
§ 3626(g)(4), so that the order cannot go
intoeffectwithout invoking the procedural
mechanisms setforth in § 3626(aX3). The
Court disagreed, fmding that the text of
the statute and the House Judiciary
Committee's Report indicated that
"prisoner release orders" are limited to
"prison caps, i.e., orders directing the
release ofinmates housed in a particular
institution once that institution houses
more than a specific nwnber of persons. "

Coleman v. Wilson, No. Civ. S-90-520
LKK (B.D. Cal. July II, 1996); Gates v.
Gomez, No. Civ. S-87-1636 LKK (B.D.
Cal. July 12, 1996): Judge Karlton found
in two separate cases that: (1) the
appointment of a special master is not
"relief' within the meaning of the statute
such that the PLRA's special master
provisions are not applicable to
masterships created before passage ofthe
Act; and (2) a "mediator" whose
appointment was a "creature of an
agreement between the parties" (rather
than a creature of FRCP 53 or the
"inherent power ofthe court"), and whose
powers and duties resemble and overlap
with, but differ from, a Rule 53 master,
is not subject to the special master
provisions of the PLRA.

December 1996

EXHAUSTION -PLRA § 803(d) (amending 42 U.S.C. §
1997e(a»
Handeherry v. Thompson, No. 96 Civ.

Madrid v. Gomez, No. C90-3094-TEH,
Order (N.D. Cal. Aug. 23,1996): Judge
Henderson ruled that the special master
provisions are inapplicable to masterships
created before passage because the
appointment ofa master is not "relief' and
the application of the provisions to such
masterships would have a "retroactive"
effect under the holding of Landgraf

6161 (KMW)(Dec.lO, 1996): Magistrate
Francis recommended that the PLRA's
exhaustion requirement be found
inapplicable to a class action in which the
available grievance system did not provide
an "adequate and speedy" remedy for the
plaintiffs' claims; in such a case,
exhaustion would be "futile." In reaching
this ruling, the Magistrate drew on the
general body oflaw regarding exhaustion
of administrative remedies.

Wz/liams v. Edwards, 87 F.3d 126, 133
(5th Cir. 1996): Judge Henderson cited

MENTAL OR EMOTIONAL
INJURY WITHOUT PHYSICAL

PLRA § 803(d) (amending 42 U.S.c.
1997e(e»

Markley v. DeBruyn, 1996 WL 476635

(N.D. Ind. Aug. 19, 1996): The court
conclusorily applied the provision in
rejecting a claim that had been filed before
the PLRA's passage, without reference to
the issues of statutory construction,
retroactivity, or constitutionality.
Adamsv. Hightower,No. 3:96-CV-2683G (N.D. Tex. Sept. 25, 1996): The
plaintiffsought compensation for mental
stress caused by an invasion ofhis privacy.
The court dismissed the action after
finding that the plaintiffhad failed to show
physical injury, without any discussion
about the breadth ofthe application ofthe
provision or its constitutionality.
Barnesv.Ramos, 1996WL599637(N.D.
lli. Oct.lI, 1996): JudgeCoarfoundthis
provision inapplicable to the plaintiff's due
process challenge to a prison disciplinary

proceeding:
Barnes has not brought this suit
to recover damages for mental or

emotional injuries suffered as a
consequence of defendants'
actions. Rather, he alleges that
his constitutional rights were
violated because he was denied
due process, because false
charges were filed against him,
and because he was subjected to
cruel and unusual punishment.

THE NATIONAL PRISON PROJECT Journal.· page 8
For none of these claims does
Barnes assert that he suffered
emotional ormental harm, nor do
any of these causes of action
require such an allegation. For
example, a § 1983 action alleging
a procedural due process clause
violation requires proof of three
elements, none ofwhich include
emotional, mental, or physical
harm: 1) a deprivation of a
constitutionally protected liberty
or property interest; 2) state
action; and 3) constitutionally
inadequate process. Therefore,
the PLRA does not require
dismissal of Barnes's claims.
lei. at 2 (citation omitted).

THREE STRIKES YOU'RE OUT
-- PLRA § 804(d) (amending 28 US.c.
§ 1915(g))
Lyon v. Van De Krol, No. 4-96-CV-

10356 (S.D. Iowa): Judge Longstaff
struck down the "three strikes you're out"
provision of the PLRA, 28 US.c. §
1915(g), as violative of equal protection
because it treats those who proceed IFP
differently from those who do not. He
subjected the provision to strict scrutiny
because it burdens the fundamental right
ofprisoners.to file constitutional claims
in federal court. He found that the
standards of review set forth in Turner
v. Safley, 482 U.S. 78 (1987),Procunier
v. Martinez, 416 US. 396 (1974), and
Thornburgh v. Abbott, 490 U.S. 401
(1989), are inapplicable because they
involved "prison administration and
security matters," while § 1915(g) relates
to "federal court administration and legal
issues." In applying strict scrutiny, he
found that, even if the interest in deterring
frivolous lawsuits is compelling, § 1915(g)
onlystops indigent inmates. Furthermore,
the provision's application is not limited
to frivolous lawsuits. That is, the
provision is both under- and overinclusive, rather than narrowly tailored.

ACLU Announces New
Director for the NPP
The ACLU's Legal Director, Steven
Shapiro, announced in June that Elizabeth
Alexander had been appointed director of
the National Prison Project to succeed
Alvin 1. Bronstein, who had been director
since the start ofthe Project in 1972. (See
NPP Journal, Vol. 10 No.3, Summer
1995.)
"Elizabeth Alexander is one of the
premier prison litigators in the country,"
said Shapiro. "She brings to the National
Prison Project a unique combination of
courage, commitment and intellectual
savvy. I look forward to seeing her guide
the Projectthrough this difficult time when
the rights of prisoners are under
unprecedented attack. This is a critical
juncture in the Project's mission:
incarceration rates are at an all-time high,
while the three branches of government
are cutting back on long-held safeguards
for prisoners."
"Public officials need to be reminded
that prisoners are entitled to fair and
humane treatment," said Alexander.
"Undermyleadership, the National Prison
Project will redouble its efforts to ensure
that the Constitution's prohibition against
cruel and unusual punishment is honored"
Ms. Alexander is a graduate of Yale
Law School. She has worked on behalf
ofprisoners' rights since the early 197Os,
when, as an attorney in Madison,
Wisconsin, she served as chief staff
counsel at Corrections Legal Services
Program, and then as assistant state public
defender responsible for conditions of
confmement litigation. Ms. Alexander
joined the Project as a staff attorney in
1981, and was promoted to associate
litigation director in 1990. During that
time, she argued several major prisoners'
rights cases before the US. Supreme
Court, including Farmer v. Brennan,
Wilson v. Seiter, and Lewis v. Casey, as
well as litigating many of the project's

December 1996
cases before other courts. Currently, she
is lead counsel in the Shumate case
challenging medical care in California's
two women's prisons which is due to go
to trial early in 1997, in addition to cases
in Arizona, Michigan, South Dakota,
Pennsylvania.

For NPP news, PLRA updates
and other significant events
check the NPP's website-We have updated our website and have
a new address -- www.npp.org. We now
have a much more comprehensive section
on the PLRA that includes a summary of
all significant decisions. The address to
the
PLRA
section
is
www.npp.orglplrahome.htm. and the
listing
of
cases
is
at
www.npp.orglcases.htm. The website will
be revised with each update. Ifyou have
comments or suggestions for the website,
please e-mail Kelly Gardner at
kellygard@aol.com.

THE NATIONAL PRISON PROJECT Journal .. page 9

Case Law Report -- Highlights ofMost Important Cases
by John Boston
If Lewis v. Casey, 116 S.Ct. 2174
(1996), were a self-help book, it might be
titled "Plaintiffs Who Win Too Much".
Lewis was a class action challenge to the
provision ofcourt access to prisoners by
the State of Arizona. After a trial, the
district court entered a comprehensive
remedial order that was affirmed in most
respects by the Court ofAppeals. Casey
v. Lewis, 834 F.Supp. 1553 (D.Ariz.
1992), affd in part and vacated and
remanded in part, 43 F.3d 1261 (9thCir.

1994). Now that order has provided a
platform, if not a poster child, for those
Justices who are most hostile to modem
civil rights litigation and to prisoners'
rights.
Justice Scalia'sopinion asserts several
major propositions about the nature ofthe
right to court access, and substantially
restricts the scope of that right as
articulated in Bounds v. Smith, 430 U.S.
817 (1977), and its lower court progeny.
Bounds held that states are obligated to
"assist inmates in the preparation and
filing of meaningful legal papers by
providing prisoners with adequate law
libraries or adequate assistance from
persons trained in the law." 430 U.S. at
828. Justice Scalia, however, emphasized
that the right at issue is the "right ofaccess
to the courts" and not "the right to a law
library or legal assistance." Lewis, 116
S.Ct. at 2179 (emphasis in original).
Therefore, he stated, a plaintiffmust show
that shortcomings in the prison's library
or assistance program caused "actual
injury"-that it "hindered his efforts to
pursue a legal claim," e.g., by causing a
complaint to be dismissed because the
plaintiffwas unable to research pleading
requirements or was unable to file a
complaint at all. Id. at 2180.
The "actual injwy" requirement is not
novel, but Lewis' formulation is

significantly less favorable to prisoners
than were prior lower court decisions.
Most courts had adopted some variation
of the Ninth Circuit rule, under which
substantial denial or interference with the
"core requirements" of court access, i.e.,
access to an adequate law library or to
legal assistance, required no specific
showing ofprejudice. See Sands v. Lewis,
886 F.2d 1166, 1171 (9th Cir. 1989),
citing Peterkin v. Jeffes, 855 F.2d 1021
(3d Cir. 1988). Lewis appears to leave
no room for such views. See LeWiS, 116
S.Ct. 2181 atn. 4.
With the right ofcourt access defined
narrowly, the Court had little difficulty in
finding the record below-made under a
very different view of the actual injury
standard-grossly inadequate to sustain
a finding of denial of court access
encompassing the entire Arizona prison
system.
"Bounds does not guarantee
inmates the wherewithal to
transform
themselves
into
litigating engines capable of
everything from shareholder
derivative actions to slip-and-fall
claims." Justice Scalia.

The Court went on to say that actual
injury is not defined as stringently as it
could have been. A plaintiff must show
that the pursuit of a legal claim was
"hindered," id. at 2180, or "had been
fiustrated or was being impeded." Id. at
2181. He need not show that he lost a case
that he would have won but for the
deficiencies of the legal access system.
Thus, it appears that significant delays in
pursuing a claim will meet the injury
requirement Allenv. Sakai,48F.3d 1082,
1091 (9th Cir. 1995) (holdingthatprisoner
whose papers were rejected by the court
showed prejudice even though he had been
permitted to refile them later). Moreover,
Lewis does not appear inconsistent with

December 1996
the view that "'injury' includes . . .
allegations left out ofthe complaint, legal
theories not pursued, and cases not cited
in the briefs that plaintiff did manage to
file." Canell v. Bradshaw, 840 F.Supp.
1382, 1391 (D.Or. 1993).
There are two important categories
ofcourtaccess cases not directly addressed
in Lewis and likely to result in differing
applications of Lewis in the lower courts.
One is cases involvingretaliation byprison
officials for legal activity by prisoners.
In such cases, it is the retaliation itself, and
not the actual effect, if any, on the
prisoner's legal activity, that constitutes
the actual injury required by Article III.
See Lowrance v. Coughlin, 862 F.Supp.
1090(S.D.N.Y. 1994)(awardingdarnages
for retaliatory transfers and segregation).
The second category involves the privacy
ofcommunications with counsel, courts,
and others concerning legal issues or
proceedings. Courts may be tempted to
hold that scrutiny of one's legal
communications does not sufficiently
affect the conduct oflitigation to establish
actual injwy. Some pre-Lewis decisions
held that the "chilling effect" oflack of
confidentiality of legal mail meets the
"injwy in fact" requirement of Article III
as well as the requirements of an access
to courts claim. Muhammad v. Pitcher,
35 F.3d 1081, 1083 (6th Cir. 1994);
Proudfootv. Williams, 803 F.Supp. 1048
(B.D.Pa. 1992). Nothing in LewiS
oVemUes these decisions. However, it is
probably prudent to rely also on the Sixth
Amendment when a criminal proceeding
is at issue, and in all cases to raise claims
under the First Amendment, see
Chinchello v. Fenton, 763 F.Supp. 793
(M.D. Pa. 1991), and the Fourth
Amendment, which may be better adapted
to the protection ofprivacy interests than
any other legal theory. At a minimum, the
values underlying the attorney-client
privilege should suffice to render
surveillance of legal mail, at least without
a warrant, an unreasonable search.
Nonetheless, Lewis clearly raises the

THE NATIONAL PRISON PROJECT Journal·· page 10
evidentiary stakes for plaintiffs in systemic
court access challenges, and does so in a
way that will value anecdotes over analysis
of the system. Counsel in systemic
challenges will probably be well advised
to devise systematic means of presenting
evidence of actual obstructions to court
access rather than simply proving the systemic deficiencies by expert testimony and
addingsuch prisonertestimony as is handy
at the time of trial.
Lewis holds that, to be actionable,
restrictions on legal access must affect a
"nonfrivolous" or "arguable" claim. Lewis,
116 S.Ct. at 2181 and n. 3. Justice
Souter's concern in his concurring and
dissenting opinion that district courts now
"may be required to examine the merits
of each plaintiffs underlying claim,"
resulting in "a lot ofpreliminary litigation
over nothing," 116 S.Ct. 2204, seems
exaggerated, at least as applied to federal
constitutional claims, given the nonrigorous scrutiny applied by courts in
determining frivolousness.
More troubling is Lewis' narrow
definition ofthe proceedings to which the
right ofcourt access extends: "The tools
[Bounds] requires to be provided are those
that the inmates need in order to attack
their sentences, directly or collaterally, and
in order to challenge the conditions oftheir
confmement. Impairment of any other
litigating capacity is simply one of the
incidental (and perfectly constitutional)
consequences of conviction and
incarceration." 116 S.Ct. at 2181-82.
This holding is both ambiguous and
theoretically dubious. The ambiguity lies
in the difference between "civil rights
actions" and "challenge[s to] theconditions
of their confmement." Many such
challenges are not litigable as federal civil
rights actions but only as state law claims
in state court. See, e.g., Daniels v.
Williams, 474 US. 327 (1986). In some
instances, the availability of state law
remedies is part of the federal
constitutional analysis. See, e.g., Parratt
v. Taylor,451 US. 527 (1981). Arethese

state proceedings then within the scope
ofthe Bounds right? Justice Scalia states
that "Bounds does not guarantee inmates
the wherewithal to transform themselves
into litigating engines capable of filing
everything from shareholder derivative
actions to slip-and-fall claims." 116 S.Ct
at 2182. But this derisive remark, without
more, cannot be taken to exclude a slipand-fall claim based on negligence by
prison officials, like Daniels v. Williams,
even though that claim might involve only
state law.
The theoretical problem is exposed
by asking the question: why must prison
officials provide any assistance to
prisoners seeking to bring lawsuits? Nonprisoners are notentitledto such assistance
except in proceedings where there is a
constitutional or statutoI)' right to counsel.
Presumably, the reason for the Bounds
right is that prisoners are, in practice,
disabled by their incarceration from
helping themselves by using public
research facilities, asking questions at the
clerk's office, or, in most cases, from
obtaining the assistance of legal services
agencies or private lawyers. After all, the
practical disabilities ofimprisonment are
the reason that government must provide
food, medical care, and protection from
assault to prisoners but not other citizens.
DeShaney v. Winnebago County Dept.
0/ SOCial Services, 489 US. 189, 200
(1989). This rationale seems equally
applicable to a prisoner's efforts to
preserve his family relationships or his
property interests from tennination under
state law.
Moreover, insofar as the right ofcourt
access is founded on the First Amendment
right to petition for redress ofgrievances,
Lewis' restrictive holding seems to have
little basis in principle. The Supreme
Court has observed generally that the right
to petition for redress of grievances
protects" [g]reat secularcauses, with small
ones," and not solely religious or political
grievances, Thomas v. Collins, 323 US.
516, 531 (1945) (addressing labor

December 1996
organizing), and that "collective activity
undertaken to obtain meaningful access
to the courts is a fundamental right within
the protection of the First Amendment.
UnitedTransportation Unionv. State Bar
o/Michigan, 401 U.S. 576, 585 (1971)
(addressing means of providing counsel
for suits over occupational injuries).
LeWis' holding appears inconsistent
with the broad sweep of these decisions.
However, Bounds v. Smith, the case that
announced prisoners' "fundamental
constitutional right" of court access, did
not place it on any clear analytical footing.
Subsequent
cases
perfunctorily
rationalized it as a "consequence" of due
process, as an "aspect" of equal protection,
Murray v. Giarratano, 492 US. 1, 11 n.
6 (1989), or as included in the First
Amendment right to petition, Hudson v.
Palmer, 468 U.S. 517, 523 (1984),
without engaging in any further analysis.
See LeWiS, 116 S.Ct. at 2187 (Thomas,
1., concmring). Thus there is no doctrinal
basis for resistance to a seemingly
arbitrary restriction such as proposed by
Lewis. In effect, Bounds is hoist with its
own penumbras.
The other troublesome limitation in
Lewis involves the reach of the Bounds
right within the compass of a particular
legal controversy. Justice Scalia states that
the Bounds right is "a right to bring to
court a grievance that the inmate wished
to present," and disclaims other statements
that "appear to suggest that the State must
enable the prisoner to discover grievances
and to litigate effectively once in court. "
119 S.Ct. at2181 (emphasis in original).
This holding is troublesome because
ofits ambiguity, which arises at least in
part from the Court's complete failure to
describe the factual context to which it is
intended to apply. At least one court has
already characterized it as limiting the
Bounds right to a "right of initial access
to commence a lawsuit," Benjamin v.
Jacobson, 935 F.Supp. 332, 352
(S.D.N.Y. 1996), appeal docketed, No.
96-7957 (2d Cir., argued November 15,
II

THE NATIONAL PRISON PROJECT Journal·· page 11
1996), relying on the above quoted phrase

"a right to bring to court a grievance that
the inmate wished to present." But closer
examination of Lewis' text does not
support this interpretation. Justice Scalia
adds at the end ofthe quoted passage: "To
demand theconferral ofsuch sophisticated
legal capabilities upon a mostly
uneducated and indeed largely illiterate
prison population is effectively to demand
pennanent provision ofcounseL which we
do not believe the Constitution requires. "
Lewis, 119 S.Ct. at 2181. This reference
to "sophisticated legal capabilities"
suggests that Justice Scalia's quarrel with
the phrase "litigate effectively once in
court" is not with the notion that the right
ofcourt access survives beyond the clerk's
office, but with any obligation on the part
of government to make uneducated
prisoners "effectiveD" litigators.
The contrary conclusion makes no
sense. As Justice Scalia states, "It is the
role of courts to provide relief to
claimants, in individual or class actions,
who have suffered, or will imminently
suffer, actualhann. ..." 119 S.Ct. at2179
(emphasis supplied). A court does not
"provide relief' based on a complaint, no
matter how meritorious. "Presenting" a
claim to court requires the claimant both
to defend the claim (e.g., through
responding to motions to dismiss and for
summaryjudgment) and to move it toward
judgment (e.g., through discovery, motion
practice, and ultimately trial). A plaintiff
who files a complaint and does nothing
more will receive only a dismissal for want
ofprosecution Forthese reasons, itwould
appear that a prison law library with a
"complaints and petitions only" policy
would violate Bounds.
Justice Scalia's disclaimer of any
Bounds obligation to help prisoners
"discover grievances" is equally murky.
Ifhe meant that prisoners with grievances
have no right to assistance in determining
whether their legal rights have actually
been violated, that position would be hard
to square with the view that prisoners, like

other litigants, are obliged to determine
the legal merits oftheir claims before they
file them. See Lewis, 116 S.Ct. at 2181
n. 3 (noting risk ofsanctions to prisoners
who file frivolous actions).
It should be kept in mind that Lewis
addresses only the Bounds right to
affirmative assistance from prison
officials, and not the right to be free from
active obstruction of litigation. In one
recent case, the plaintiff had (perhaps
wrongly) "acknowledge[d] that prisons
do not have to provide inmates with
affirmative help to litigate their cases once
they have gotten in the court house
door. . .. [Lewis] cannot, however, be read
to give officials license to thwart that
litigation once it is filed." Rhoden v.
Godinez, 1996 WL 559954 (N.D.Ill.
1996). That holdingshould logically apply
as well to prison officials' interference with
cases outside the criminal conviction!
conditions of confinement circle drawn
by Lewis.
Lewis' actual injury holding is set
emphatically in the framework of Article
III standing doctrine. It would seem that
a simple holding that the plaintiffs' proof
was insufficient to support the district
court's judgment would have sufficed, and
would have been preferable as the
narrower ground of decision.
Justice Scalia began his Article ill
discussion in a context ofsuspicion about
the scope ofinstitutional reform litigation.
He states that it is the courts' role to
provide relief to prisoners subject to
present or imminent harm, but the role of
theotherbranches ofgovernmentto "shape
the institutions of government in such
fashion as to comply with the laws and the
Constitution." 116 S.Ct. at 2179. These
roles "briefly and partially coincide" when
a court remedies such actual harm by
directing changes in institutional
organizations or procedures.
But the distinction between the
two roles would be obliterated if,
to invoke intervention of the
courts, no actual or imminent

December 1996
harm were needed, butmerely the
status of being subject to a
governmental institution that was
not organized or managed
properly. If-to take another
example from prison life-a
healthy inmate who had suffered
no deprivation ofneeded medical
treatment were able to claim
violation of his constitutional
right to medical care ... simply
on the ground that the prison
were
medical
facilities
inadequate,
the
essential
distinction between judge and
executive
would
have
disappeared: it would have
become the function ofthe courts
to assure adequate medical care
mpnsons.
ld at 2179.
By contrast, in Helling v. McKinney,
113 S.Ct. 2475 (1993), which involved
an Eighth Amendment challenge to
exposuretoenvironmental tobacco smoke,
the SupremeCourtrejected the proposition
that future harm to prisoners' health is not
actionable, and did not restrict its holding
to "imminent" harms:
We have great difficulty
agreeing that prison authorities
may not be deliberately
indifferent to an inmate's current
health problems but may ignore
a condition of confinement that
is sure or very likely to cause
serious illness and needless
sufferingthenextweek or month
or year....
That the Eighth Amendment
protects against future harm to
inmates is not a novel
proposition.... We thus reject
petitioners' central thesis that
only deliberate indifference to
current serious health problems
ofinmates is actionable under the
Eighth Amendment.
113 S.Ct. at 2480-81 (citation omitted,
emphasis supplied).

THE NATIONAL PRISON PROJECT Journal·. page 12
This holding as to what risk actually
violates the Eighth Amendment applies
a fortiori to the question what risk is
sufficient to confer standing to pursue an
EighthAmendmentclaim. WhileHellings
"sureorvery likely" is a stringent standard,
it is a far cry from Lewis' "imminent," and
Hellings choiceofwords is not accidental.
Helling went on to observe that prisoners
may obtain relief "even though it was not
alleged that the likely harm would occur
immediately and even though the possible
[harm] might not affect all of those [at
risk]." 113 S.Ct. at 2480, citing Hutto
v. Finney, 437 U.S. 678 (1978).
One might distinguish Helling on the
ground that the rights ofcourt access and
to medical care are similar in that they are
relevant only to a restricted
group-respectively, those individuals
with legal claims and those with illnesses
or injuries. By contrast, the kinds ofrisks
cited by Helling-not only second-hand
smoke,but also exposuretocommunicable
disease, unsafe drinking water, exposed
wiring, deficientfirefighting measures, and
the risk of assault-may endanger
everyone in a particular prison or part of
a prison. But this distinction goes only
so far. While it may be true that only those
who are HIV-infected are at risk from lack
of adequate HN care, other kinds of
medical problems-such as injury from
accidentorassault-eanhappen to anyone
on short notice. Is it consistent with
Helling to hold that healthy prisoners lack
standingtochallengethecomplete absence
of any measures for emergency injury care
in a prison with a significant rate of such
injuries? Compare Farmer v. Brennan,
114 S.Ct. 1970,1982 (1994) ("... [1]t
does not matter ... whether a prisoner
faces an excessive risk of attack for
reasons personal to him or because all
prisoners in his situation face such arisk.")
(citing Helling). Lewis seems to assume
that "actual injury" requires an imminence
and specificity ofrisk that is inconsistent
withtheholdingofHelling-a caseJustice
Scalia does not cite, although it is cited

by Justice Souter for precisely this point.
Lewis, 116 S.Ct. at 2204 n. 2
(concurring!dissenting opinion).
Lewis seems to assume that
"actual injury" requires an
imminence and specificity of risk
that is inconsistent..with Helling.
Justice Scalia's discussion of remedy
is also rooted in part in Article III: "The
remedy must of course be limited to the
inadequacythatproducedthe injury-in-fact
that the plaintiff has established." 116
S.Ct. at 2183. This proposition is as
applicable in class actions as individual
lawsuits, and inadequacies that "have not
been found to have harmed any plaintiff'
in a class action may not be the subject
of remedial relief.
This assertion
immediately raises a serious problem of
definition, illustrated by the Court's own
example. Where the only actual injury
shown involved illiterate inmates, "we can
eliminate from the proper scope of this
injunction provisions directed at special
services or special facilities required by
non-English-speakers, by prisoners in
lockdown, and by the inmate population
at large." Id. But what is the difference
betweenilliterateinmatesandnon-Englishspeaking inmates for purposes ofthis controversy? For both, the problem is that
they can't read the materials in the library
and write legal pleadings readable by an
English-speaking court. Aren't these
variations ofthe same problem? Perhaps
not, if the supposed solution to the
language problem is interpretive services
and to the illiteracy problem is to have
trained assistants actually do the research
and writing. But that answer would make
litigants' standing contingent on the nature
of the relief to be awarded-a question
that is usually not reached (and indeed
cannot be reached under Lewis) until after
liability has been determined.
ln any case, Lewis' holding potentially
turns the Article III question into a

December 1996
semantic war over the level of generality
at which questions are stated. For
example, suppose in a medical care case,
several diabetic prisoners show that
disorganization of the medical care
programresults inthe repeated loss oftheir
medical records, the failure to dispense
prescribed medication consistently, the
failure to deliver therapeutic diets, the lack
ofability to respond to emergencies such
as diabetic comas, and the general inability
to track and treat prisoners with chronic
diseases. One would think that this proof
would entitle the plaintiff class to an
injunction addressing the medical records
system,
medication dispensation,
therapeutic diets, emergency care, and
chronic illness care. Will defendants then
argue that the court may only require a
protocol for diabetics? Under LeWis, much
time is likely to be wasted on such
distinctions that should not make a
difference. In practice, the potential for
such debate may place a heavy burden on
plaintiffs' counsel to have acomprehensive
remedial theory before trial, and to tailor
their proof accordingly.
Justice Scalia's discussion of remedy
and standing also includes some puzzling
references to the named plaintiffs in this
class action, e.g., noting that the district
court "found actual injury on the part of
only one named plaintiff" 116 S.Ct. at
2183 (emphasis supplied). Whatever the
significance ofsuch references, the Court
does not hold that only evidence received
from the named plaintiffs in a class action
may confer standing to seek injunctive
relief. Once a class is properly certified,
the Article ill inquiry is addressed to the
class, not the named plaintiffs; upon
certification, "the class of unnamed
persons described in the certification
acquire[s] a legal status separate from the
interest asserted by [the named plaintiff]."
Sosna v. Iowa, 419 U.S. 393, 399 (1975)
(footnote omitted). Although there must
be a continuing case or controversy, it may
exist "between a named defendant and a
member of the class represented by the

THE NATIONAL PRISON PROJECT
named plaintifl: even though the claim of
the named plaintiff has become moot."
Sosna, 419 US. at 402; accord, Franks
v. Bowman Transportation Co., 424 US.
747, 753-54 (1976); Moss v. Lane
Company, Inc., 471 F.2d 853,855 (4th
Cir. 1973); Wilson v. Sullivan, 709
F.Supp. 1351, 1355-56 (D.N.J. 1989) and
cases cited. I
Justice Scalia also
objected to the geographical scope of the
injunction: even if two illiterate inmates
proved a Bounds violation, that is "a
patently inadequate basis for a conclusion
of systemwide violation and imposition
of systemwide relief."
119 S.Ct. at 2184.
It is a relief... that the Court does
notfind Bounds to be satisfied by
giving books to people who
cannot read them.
If a policy or practice is, however,
shown to be systemwide-either through
evidence or because it is dictated by
systemwide policies-there is no apparent
reason why prisoners from one institution
cannot obtain systemwide relief. Cf
Thornburgh v. Abbott, 490 US. 401
(1989) (adjudicating constitutionality of
national regulations applying to entire
Federal Bureau of Prisons).
Citing Turner v. Safley, 482 U.S. 78
(1987), Justice Scalia found several
additional grounds for objecting to the
district court's remedy under the principle
of deference to prison authorities'
discretion. He asserts that delays in court
access resulting in actual injury are not
ofconstitutional stature if they result from
the application of rules that pass the
Turner reasonableness test. He adds that
the injunction was "inordinately-indeed,
wildly-intrusive" and the ne plus ultra
ofenmeshment in prison minutiae. And
finally, he condemns the failure of the
district court to give the defendants the
initialresponsibilityfordevising aremed:y;
"on that ground alone this order would

Journal .. page 13

have to be set aside." 119 S.Ct. at 2186
Is there anygoodnews in this opinion?
Well, yes, sort of. The state had argued
that as long as it provides access to law
libraries with clerks and assistants, it has
discharged its duty under Bounds, even
to the illiterate and the non-Englishspeaking. The Court disagreed, finding
that it is the capability of actually filing
nonfrivolous claims, "rather than the
capability oftumingpages in a law library,
that is the touchstone." 119 S.Ct. at2182.
In light of the rest ofthe opinion, it is a
relief to see that the Court does not fmd
Bounds to be satisfied by giving books
to people who cannot read them.
I
In Sosna, the claim was by nature
"capableofrepetition,yetevadingreview,"
419 US. at 399-401, but the Supreme
Court subsequently made clear that the
Sosna holding was by no means restricted
to such situations. Franks v. Bowman
Transportation Co., 424 US. at 753-54.
Sosna was about mootness, but its
principle is equally applicable to standing.
Lynch v. Dawson, 820 F.2d 1014,1016
(9th Cir. 1987); LaDuke v. Nelson, 762
F.2d 1318, 1325 (9th Cir. 1985); see East
Texas Motor Freight Systems, Inc. v.
Rodriguez, 431 US. 395, 406 n. 12
(1977) (dismissal of class claims would
be inappropriate after trial even if named
plaintiffs proved not to be members ofthe
class). Indeed, standing versus mootness
is a distinction without a difference in this
context;mootnessamounts to "thedoctrine
ofstanding set in a time frame." United
States Parole Commission v. Geraghty,
445 US. 388, 397 (1980), quoting
Monaghan, Constitutional Adjudication:
The Who and When, 82 Yale 1.1. 1363,
1384 (1973).

John Boston isDirectoroftheNew York
Legal Aid Society's Prisoners' Rights
Project

December 1996

New Publications
The National Prison Project has published
anewedition ofthe Prisoners 'Assistance
Directory - the 11th Edition. The
Directory lists national, state, and local
organizations and sources of assistance
for prisoners, including, legal, AIDS,
family support and ex-offender aid. The
Directory is recommended for prison
libraries and for organizations providing
assistance to prisoners and their families.
Copies are $30 each, prepaid, from the
NPP. The price includes shipping and
handling.

***

The 1996 edition ofA Jailhouse Lawyer '5
Manual (JIM) is now available. The 989page legal self-help guide completely
updates previous JIM editions and
supplements. Written and edited by
members ofthe Columbia Human Rights
Law Review, the JIM provides assistance
to prisoners pursuing appeals, postconviction relief: civil rights actions, and
parole.
While a good source of
information for all prisoners, it is
especiallyvaluableto anyone pursingcases
in New York. (Note - the JIM went to
press prior to passage of the PLRA, so
does not cover the changes to prison
litigation resulting from the Act.) The
JIM costs $35 per copy, with a special
priceof$13 for prisoners orderingdirectly.
All prices include shipping and handling.

***

CURE (Citizens United for Rehabilitation
of Errants) has published a 40-page
Prisoners 'Directory to Earning College
Degrees which provides information on
courses available by correspondence and
guided independent study. Copies are $8
each, including shipping and handling,
from CURE, PO Box 2310, National
Capital Station, Washington, DC 20013.

THE NATIONAL PRISON PROJECT Journal.· page 14
OnDecember7,HumanRightsWatch
Women's Rights Project released a report,
AllTooFamiliar: SexualAbuse ofWomen
in US State Prisons. According to the
report, male officers in state prisons from
Georgia to California are sexually abusing
female prisoners with near total imptmity.
State and federal officials in a position to
address such misconduct often deny that
it exists or fail to take adequate steps to
prevent it. As a result, sexual misconduct
in 0. S. state prisons for women is
emerging as an explosive national
problem. Human Rights Watch calls on
all states to adopt and enforce prison rules
that clearly defme and prohibit all forms
of sexual misconduct, including sexual
intercourse and touching, inappropriate
visual surveillance, and verbal degradation
and harassment. They also calion states
to make all sexual contact by officers with
prisoners a crime and to ensure that
correctionalemployees whoengageinsuch
misconduct are prosecuted to the fullest
extent ofthe law. The United States has
the dubious distinction of incarcerating
the largest known number ofprisoners in
the world, ofwhich a steadily increasing
number are women. Since 1980, the
number of women entering 0. S. prisons
had risen by almost 400 percent, roughly
double the incarceration rate increase of
males. Fifty-twopercentofthese prisoners
are African-American women who
constituteonlyfourteen percent ofthe total
U.S. female population. According to
current estimates, at leasthalfofall female
prisoners have experienced some form of
sexual abuse prior to incarceration.
One ofthe main factors contributing
to sexual misconduct in US. state prisons
is that the US., in violation of
international noImS, allows male officers
to serve in positions that involve constant
physical contact with female prisoners.
Thus, the increased number of women in
US. state prisons are more often than not
being guarded by men. In fact, in many
women'sfacilities maleofficers outnumber
their female counterparts by two, and

sometimes three to one.
AllTooFamiliarreflects researchinto
sexual abuse of women in U.S. state
prisons conducted by the Human Rights
Watch Women's Rights Project and other
Human Rights Watch staff from March
1994 to November 1996. It is based on
interviews with the US. federal
government, state departments of
corrections and district attorneys,
correctional employees, civil and women's
rights lawyers, prisoner aid organizations,
and over sixty prisoners formerly or
current1y incarcerated in eleven women's
prisons in California, Georgia, Illinois,
Michigan, New York, and the District of
Columbia (D.c.). It fmds that male
officers vaginally, anally, and orally rape
and sexually assault and abuse female
prisoners. They use mandatory pat-frisks
to grope women's breasts, buttocks, and
vaginal areas, view them inappropriately
while in a state ofundress, and engage in
constant verbal harassment of female
prisoners, contributing to a custodial
environmentthat is oftenhostile and highly
sexualized. In some cases, women have
been impregnated as a result of sexual
misconduct and some of these prisoners
have faced additional abuse in the form
of inappropriate segregation, denial of
adequate health care, and/or pressure to
seek an abortion. In committingsuch gross
misconduct, male officers have abused
their nearly absolute power over female
prisoners to force them to have sex, either
through actual or threatened physical
violence or through the provision or, by
implication, threat to deny goods and
privileges. In other cases, male officers
have offered or provided goods and
privileges to female prisoners as a form
ofreward for engaging in sexual relations
or have violated their most basic
professional duty and engaged in sexual
contact with female prisoners absent the
use or threat of force or any material
exchange.
The US. is clearly bound under
constitutional and international law to

December 1996
prohibit all forms of custodial sexual
misconduct. Yet, according to the Human
Rights Watch report, neither the nation's
capital nor any of the five states they
investigated are adequately upholding
these national and international
obligations. All ofthem have prison rules
concerning sexual misconduct, but they
often refer only vaguely
to
"overfamiliarity" or "fraternization."
Where criminal laws exist, they are
inadequately enforced.
The Prison Project shares Human
Rights Watch's concern over the sexual
harassmentandabuseofwomen prisoners.
We have heard reports of problems from
our own clients, from other women and
from attorneys who have been asked to
represent individuals and groups of
victims. In order to address the problem
in amore systematicmanner, we are asking
anyone involved in a case of sexual
harassment or abuse, or who is aware of
this problem in a particular facility, to
contact us. We would like to establish a
clearing house to provide information and
technical assistanceto anyone dealing with
this issue, and to collect briefs that could
be shared with others who are bringing
lawsuits. We are particularly interested
to know if anyone has been deterred from
bringing a case to court by the PLRA's
provision barring suit for mental or
emotional injwy without a prior showing
of physical injury.

***

Please send information by mail to
Karen Bower at the National Prison
Project.

***

Copies of the Human Rights Watch
report are available for $20 from HRW
at 485 Fifth Avenue, New York, NY
10017. Phone (212) 972 8400. For
further information, check their website
at www.hrw.org.

THE NATIONAL PRISON PROJECT

NPP AIDS Education
Project Update
The NPP's AIDS Education Project
continues to serve as a resource for
prisoners, family members, community
based organizations and attorneys. In
1996 we received over 600 requests for
information and assistance. Among the
emerging issues we heard about during
the year were new policies requiring copayments for doctor visits and the impact
of managed health care.
Jackie Walker the NPP's AIDS
Education Project Coordinator, is a
member of the National Organizations
Responding to AIDS Working Group on
Incarcerated Populations. During its first
year, working Group activities have
included meetings with staff from the
National AIDS Policy Office, the Health
Resources and Services Administration
and the Centers for Disease Control to
address the needs of prisoners living with
HIV/AIDS. Individuals and Organizations
interestedinbeingmembers shouldcontact
the AIDS in Prison Project.

Some useful resources:
An updated publication, The 1996
Bibliography AIDS in Prison, will be
released by the NPP in February. The
bibliography includes citations to over 200
articles in criminal justice, medical and
legal journals and a list of community
based organizations that provide services
and advocacy for prisoners living with
AIDSIHIV.

***
Compassionate
release
programs
analyzed. The American Bar Association
has released a set ofrecommendations and
model legislation on compassionate
release. The report-ABA Report with
Recommendations
Concerning
CompassionateReleasefromPrisons and

Journal·· page 15

Alternativesto Sentencing/orNonviolent
Terminally III People- is available from
the ABA AIDS Coordinating Project at
(202) 662-1025.

***
The American Public Health Association
update Standards for HIV/AIDS Care in
Prisons
&
Jails,
includes
recommendations on a variety of topics
from women prisoners to discharge
planning. To receive copies contact the
American Public Health Association
Publications Department at (202) 7895600.

***
Prisoner peer educators profiled! A new
video documenting the AIDS Education
andCounselingProgram(ACE) atBedford
Hills Correctional Facility in New York
is available. The video, ACEAgainst The
Odds, by Debra Levine, is available from
Rubyrae Productions, (718) 965-9536.

***
Looking for an analysis of AfricanAmerican and Latino prisoners and the
AIDSIHIV epidemic? The recently
released Prisons and AIDS: A Public
Health Challenge devotes a chapter to
the impact on these communities. Coauthored by Ronald Braithwaite, Theodore
M. Hammett and Robert M. Mayberry the
book addresses a range of subjects from
education and prevention to legal issues.
ContactJossey-BassPublishers(415)4331740 for orders.

Friendsmoumedin 1996
The Prison Project and the wider civil
rights community lost some good friends
during the past year.
In April, Haywood Burns died in an
automobile accident in Cape Town where
he was attending a conference on

Decem ber 1996
democracy and international law.
Haywood was a longtime civil rights
advocate who worked with the Rev. Dr.
Martin Luther King, Jr., represented
AngelaDavis against charges ofkidnaping
and murder, coordinated the defense for
prisoners indicted in the Attica prison riot,
and helped found the National Conference
of Black Lawyers. Haywood described
the Attica rebellion and its aftermath as
an "indelible experience" and he remained
committedto the cause ofprisoners' rights
throughout his life as a friend and advisor
to the National Prison Project and a
member of its steering committee.
In June, Henry Schwarzschild died of
cancer in New York. Henry was a major
figure in the civil rights movement of the
1960s,headingthe Lawyers Constitutional
Defense Committee which provided
lawyers to assist civil rights workers in
the south. He spent the last several
decades of his life fighting against the
death penalty, for part of that time as
director of the ACLU's Capital
Punishment Project.
In July, Steven Donaldson, executive
director of Stop Prisoner Rape, died in
New York. He had AIDS. Steven was
a civil rights activist, starting in the gay
liberation movement in the 1960s. In
1973, during a peaceful Quaker protest
against the bombing of Cambodia outside
the White House, he was arrested and held
in the D.C.jail where he was gang-raped
repeatedly over a two-day period. He later
testified about his experience at hearings
in· the District and went on to become a
prominent public spokesperson on the
issue of prison rape, as well as working
to help prisoners who had been raped. The
work ofthe organization he headed-Stop
Prisoner Rape~ntinues. SPR can be
reached at P.O. Box 264, Stafford, CT
06075.

THE NATIONAL PRISON PROJECT

Highlights from the
Prison Project's
Docket
Fallowing
are
some
new
developments in our non-PLRA
litigation over the past few months.
Young v. Harper-The U.S. Supreme
Court asked the NPP to represent the
respondent in his case against the state of
Oklahoma. Harper is an Oklahoma
who
challenged
the
prisoner
constitutionality of the process by which
hewas tenninated from the OklahomaPreparole Conditions Supervision Program.
He successfully took part in the prerelease
program for five months, living at home
and working at two jobs. Then his
participation in the program was abruptly
tenninated and he was returned to prison
because the governor decided that he was
not eligible for parole (although parole
eligibilitywas not a requirement for taking
part in the program at the time he entered).

Journal .. page 16

Harper maintains
that
the
circumstances of the prerelease program
(living in the community, working, etc.)
created a liberty interest protected under
the 14th Amendment which entitled him
to a due process hearing. He lost his case
in the district court but won on appeal,
representing himself at both stages. The
state wasgranted certiorari. The Supreme
Court heard argument on December 9.

Redwoman v. Cook-The Oregon
Department of Corrections has an
administrative rule which bans any
religious activity unless a chaplain or
qualified religious volunteer conducts the
activity. This rule effectively endedNative
American religious activities because of
the shortage of such religious personnel
to conduct them. A pro se complaint was
filed in June 1995 and amended in
November 1995 by a pro bono attorney.
The district court judge found against the
plaintiffs on August 1. The case has now
been joined with three others brought on
the same issue. Two of the cases involve
restrictions on Native American religious

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

December 1996
activity and one on Nation of Islam
members. The NPP is representing the
plaintiffs on appeal to the Ninth Circuit
and our brief will be filed at the end of
January.

Amosv. MarylandDepartment ofPublic
Safety-In 1991, physically disabled
prisoners in Maryland filed suit seeking
injunctive relief and damages to remedy
violations of the Rehabilitation Act the
Americans with Disabilities Act (ADA)
and alleging unconstitutional standards
ofmedical care. The prisoners claimed that
they were denied access to pre-release,
work release and other programs because
oftheir handicaps, and that the facility's
cells, bathrooms and showers were not
physically accessible. The district court
granted summary judgment to the
defendants and found that the ADA was
not applicable to prisons. The NPP is
representing the prisoners in their appeal
to the Fourth Circuit. Briefs were filed
in December.

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