THE
NATIONAL
PRISON
PROJECT
A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 12, No.4, Fall 1998 & Winter 1999 • ISSN 1076-769X

Sexual Abuse and Civil Rights:
The Impact of the PLRA Physical Injury Requirement
By Giovanna Shayl
r'fWo women prisoners are
strip searched by male
guards. Following the
incident, one suffers stressinduced migraine headaches.
The other attempts suicide and
must undergo a stomach pump.

1.

Deputies at a jail subject
women prisoners to constant
verbal sexual harassment and
requestsfor sexualfavors.
Deputies ask women to strip
and masturbate in front of
them. Women who comply are
granted special privileges.
Women who complain become
the targets ofretaliation.
A woman prisoner is raped by
a male inmate who pays a
guard to let him into her cell.

Do these incarcerated women
have viable civil rights lawsuits?
Regardless ofthe substantive law
governing their claims, the Prison
Litigation Reform Act of 1996
(PLRA) threatens their ability to
seek relief in federal court.
In recent years, the problem of

sexual abuse of incarcerated
women in United States prisons
and jails has gained increasing
attention. Cases such as Cason v.
Seckinger,2 Women Prisoners of
D. C. v. District ofColumbia, 3 and
Lucas v. White 4 have exposed

rampant sexual misconduct and
shocking incidents of sexual
assault. The United States
Department ofJustice is litigating
cases alleging systemic sexual
abuse in both the Arizonas and
Michigan state systems. 6 Human
rights agencies7 and the popular
press8 report grievous sexual
violence against incarcerated
women. In 1998, the United
Nations Special Rapporteur on
Violence Against Women toured
the U. S. to investigate the
problem of sexual exploitation of
women in U.S. state custody.9
Yet even as incarcerated
women and their advocates
expose sexual abuse, the PLRA
threatens to close federal courts to
prisoners who have been
victimized. Specifically, a
provision of the PLRA bars
recovery in federal civil rights

actions by prisoners who cannot
demonstrate a physical injury. It
states: "no federal civil action
may be brought by a prisoner
confined in a jail, prison, or other
correctional facility, for mental or
emotional injury suffered while in
custody without a prior showing
of physical injury." 42 U.S.C.
Section 1997e(e). Lawyers for
women prisoners have reason to
fear that courts will interpret this
provision to bar relieffor some
types of sexual harassment, abuse,
and assault. 10
A case that did not even involve a
sexual assault, Siglar v.
Hightower, foreshadowed the
impact ofthe PLRA on the civil
rights of sexually abused women
prisoners. In Sig/ar, the Fifth
Circuit dismissed a Section 1983
action brought by a prisoner
alleging excessive force. ll The
prisoner, Lee Andrew Siglar, n,
alleged that, in an incident arising
out of his possession of a biscuit,
a prison guard had verbally abused
him, twisted his arm behind his
--continued on next page

The National Prison Project JOURNAL

Fall 1998 & Winter 1999

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2

back, and twisted his ear. 12
Although Siglar's ear was bruised
and sore for three days, he neither
sought nor received medical
treatment, and he sustained no
injury.13 The Fifth Circuit applied
Eighth Amendment standards in
interpreting the PLRA physical
injury requirement. f4 The court
concluded that, because Siglar's
injuries were de minimis, he had
failed to articu permanent late/a
claim under the Eighth
Amendment and to demonstrate
the physical injury required by the
PLRA. 15
Unfortunately, a U. S.
Magistrate soon applied Siglar in
a case involving a cross-gender
strip search, with disastrous
results for the plaintiffs. In Moya
v. City ofAlbuquerque, a federal
magistrate in the district ofNew
Mexico dismissed a claim by two
incarcerated women who had been
strip searched by male guards in
violation of the Fourth
Amendment. 16 One of the
plaintiffs suffered migraine
headaches due to the stress of the
incident. The other attempted
suicide and was subjected to a
stomach pump. The court relied
on Siglar to interpret the PLRA
physical injury requirement. It
concluded: "Even if the Court
were to consider any injury to
Lisa Martinez as a result of her
attempted suicide as a qualifying
physical injury under the statute,
a few hours of lassitude and
nausea and the discomfort of

having her stomach pumped is no
more than a de minimis physical
injury. Similarly, the mere fact
that Sharon Moya now suffers
headaches which she attributes to
the stress of her strip search is not
a serious physical injury.
Following the guidance of Siglar,
such injuries are insufficient to
overcome the hurdle posed by
Section 1997e(e)."17
In Luong v. Hatt, aU. S.
Magistrate Judge employed a
similar analysis to dismiss a Texas
prisoner's failure to protect claim.
Although not a sexual assault
case, Luong contained facts
common to sexual assault
scenarios. According to his DOC
medical records, the plaintiff, who
had been attacked by other
inmates, suffered "cuts, scratches,
abrasions, lacerations, redness,
and bruises. ,,18 The Magistrate
Judge concluded, however, that
the plaintiffs medical records
described only de minimis injuries,
and that, therefore, the prisoner
had failed to demonstrate the
requisite physical injury under
Section 1997e(e). The court
reasoned that only injuries
involving "lasting disability" or
"severe pain" constitute physical
injuries within the meaning of the
PLRA. 19 It concluded that, "a
physical injury is an observable or
diagnosable medical condition
requiring treatment by a medical
care professional. ,,20
Not all federal courts have
demonstrated such callousness. In

Nunn v. Michigan Dept. of
Corrections, a federal district

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

court concluded that the Section
1997e(e) physical injury
requirement did not bar an Eighth
Amendment claim brought by
prisoners who had been raped and
sexually assaulted by DOC
employees. 21 Such attacks, the
court reasoned, necessarily entail a
physical injury at least sufficient to
overcome a Rule 12(b)(6) motion.22
Advocates for incarcerated
women may attempt to escape the
"mental or emotional injury" label
by emphasizing their clients'
somatic reactions to sexual abuse.
In the pre-PLRA case Women
Prisoners ofD. C. v. District of
Columbia, plaintiffs' expert testified
that systemic sexual harassment
and misconduct caused plaintiffs to
suffer "significant depression,
nausea, frequent headaches,
insomnia, fatigue, anxiety,
irritability [and] nervousness. ,,23 In
another pre-PLRA case, Jordan v.
Gardner,24 the Nmth Circuit
concluded that a policy allowing
male guards to conduct random,
non-emergency, suspicionless
clothed body searches on women
prisoners violated the plaintiff
prisoners' rights under the Eighth
Amendment. The court based its
conclusion on the fact that such
searches caused many members of
the plaintiff class severe emotional
distress and psychological
suffering, largely due to the
women's prior experiences of
sexual abuse. 2s However, it
highlighted an extreme somatic
reaction: a prisoner who, after
being subjected to such a search,
"had to have her fingers pried loose
3

IIIIIHIIII

from bars she had grabbed during
the search ... and vomited after
returning to her cell block. ,,26 As
Moya demonstrates, however,
some courts may reject such
physical reactions as de minimis
injuries under Siglar.
The D.C. Circuit recently
concluded that certain somatic
symptoms were insufficient to
establish a physical injury within
the meaning of Section 1997e(e).
In Davis v. District ofColumbia,
a prisoner who had sued for
mental and emotional distress
arising from the disclosure of his
mv status sought to amend his
complaint to allege physical
injury.27 He relied on an affidavit
by his psychiatrist· stating that he
had experienced "weight loss,
appetite loss, and insomnia after
the disclosure of his medical
status."28 The D.C. Circuit
declined to allow him to amend.
It concluded that the Section
1997e(e) requirement of a "prior"
physical injury, as well as the
legislative purpose of
discouraging "frivolous" lawsuits
"preclude reliance on the somatic
manifestations of emotional
distress that Davis alleges. ,,29 It
remains to be seen whether other
courts will follow Siglar and
Davis in cases involving severe
and long-lived somatic reactions
to sexual abuse.
Perceiving that Section
1997e(e) prohibits relief even for
psychological torture, prisoners'
advocates have attempted to
challenge the provision on
constitutional grounds. Several

early opinions by magistrate
judges questioned the
constitutionality ofthe physical
injury requirement.30 However,
both the Seventh and D.C.
Circuits have upheld the provision
against constitutional challenges.
Ironically, both courts did so on
grounds that left open the
possibility of injunctive relief
In Zehner v. Trigg, 133 F.3d
459 (7th Cir. 1997), the plaintiffs
challenged Section 1997e(e) on
three grounds, claiming that: (1)
Congress lacks the power to strip
federal courts of their power to
remedy constitutional violations;
(2) Section 1997e(e) violates
equal protection by impinging on
the plaintiffs' fundamental right of
access to the courts; and (3)
Section 1997e(e) violates
separation of powers by
impermissibly directing the
outcome of constitutional cases. 31
The Seventh Circuit rejected
all three claims. The court
disposed of the jurisdictionstripping argument by stating that,
"the Constitution does not
demand an individually effective
remedy for every constitutional
violation. ,,32 As for access to
courts, the court wrote, Section
1997e(e) does not limit prisoners'
access to courts, but, rather, their
access to relie£33 Finally, the
court concluded that Section
1997e(e) does not prescribe a
"rule of decision" any more than
any other statute setting out prima
facie elements.34
The D.C. Circuit upheld
Section 1997e(e) on similar

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

reasoning in Davis. 35 The plaintiff
in Davis claimed that prison
officials had violated his
fundamental constitutional right of
privacy by disclosing his HIV
status. He alleged mental and
emotional distress arising from the
constitutional violation. 36 The
district court dismissed his claim,
relying on Section 1997e(e).37 The
plaintiff appealed to the D.C.
Circuit, alleging, inter alia, that
Section 1997e(e) violated his rights
to equal protection and access to
the courts.38
The D.C. Circuit rejected both
claims. 39 It concluded that the
physical injury requirement did not
impermissibly infringe on the
plaintiff's fundamental right of
privacy because it "is merely a
limitation on damages. ,,40 Reading
the statute as applying only to
injuries "suffered" in the past, the
court reasoned that it did not
preclude prospective relief such as
declaratory and injunctive relief 41
It further noted that "suits for
declaratory and injunctive relief
against the threatened invasion of a
constitutional right do not
ordinarily require proof of any
injury other than the threatened
constitutional deprivation itself ,,42
Precluding "backward-looking"
relief in cases alleging only mental
and emotional injury, it reasoned,
did not "directly and substantially"
interfere with the plaintiffs exercise
of his constitutional right of
privacy.43 The court rejected the
right of access claim on similar
grounds. 44 In circuits following
Zehner and Davis, therefore,
4

plaintiffs may seek injunctive and
declaratory relief for sexual
harassment.
In an opinion by Judge
Reinhardt, the Ninth Circuit
offered prisoners and their
advocates some hope. In Canell
v. Lightner, the Ninth Circuit
concluded that a prisoner's
constitutional claim did not fall
within the Section 1997e(e)
prohibition on claims for "mental
or emotional" injury. The court
declined to apply Section
1997e(e) to bar a prisoner's claim
that officials had violated his
rights under the Establishment and
Free Exercise Clauses of the First
Amendment to the U. S.
Constitution. 4s The court
reasoned: "Canell is not asserting
a claim for 'mental or emotional
injury.' He is asserting a claim for
a violation of his First Amendment
rights. The deprivation ofFirst
Amendment rights entitles a
plaintiff to judicial relief wholly
aside from any physical injury he
can show, or any mental or
emotional injury he may have
incurred. Therefore, Section
1997e(e) does not apply to First
Amendment Claims regardless of
the form of relief sought. ,,46
Similarly, sexual abuse plaintiffs
may argue that they claim
violations oftheir Eighth and
Fourteenth Amendment rights, not
mere "mental or emotional injury."

on Crime, Communities & Culture's
Soros Justice Fellowship Program. I
have relied heavily on both the ACLU
National Prison Project's Significant
Decisions Regarding the Prison
Litigation Reform Act and John Boston's
The Priso11'Litigation Reform Act: The
Story SoFar.

2. Consent Order filed in Civil Action
No. 84-313-1-MAC (MD. Ga.
November 23, 1994).
3. Women Prisonersv. District of
Columbia, 877 F. Supp. 634 (D.D.C.
1994), vacated in part, modified in part,
899 F .Supp. 659, remanded, 93 F.3d
910 (D.C. Cir. 1996), cert. denied, 117

S. Ct. 1552 (1997).
4. "U.S. Prisons Will Change Sexual
Assault Policies," N. Y. Times National,
March 4, 1998, at A13.
5. Tony Ortega, "Feds Sue Arizona:
State Accused of 'Failing to Protect
Women Inmates From Sexual
Misconduct' Involving Prison Guards,"
Phoenix New Times, March 13, 1997.
6. Anjali J. Sekhar, "In Michigan:
Female Inmates Abused and Mistreated,
Suit Claims, Corrections Officials Say
Justice Department Lacks Evidence,"
The Detroit News, June 6, 1997, at D3.
7. Human Rights Watch, "All too
Familiar: Sexual Abuse of Women in
U.S. State Prisons" (1996); Human
Rights Watch, "Nowhere to Hide:
Retaliation Against Women in
Michigan State Prisons" (1998);
Women's Institute for Leadership
Development for Human Rights,
"Human Rights for Women in U.S.
Custody" (1998).

ENDNOTES

8. Nina Siegal, "Locked Up in
America: Slaves to the System," Salon

1. This article was supported by a grant

Magazine, http://www.

from the Open Society Institute's Center

salonmagazine.com/mwt/feature/
1998/09/cov_0lfeature4.htm.

The ~ational Prison Project JOURNAL

Fall 1998 & Winter 1999

9. International Human Rights Law
Group Women's Rights Advocacy
Program, The United Nations Special
Rapporteur on Violence Against Women:
Q & A Fact Sheet (May 1998).

23. 877 F. Supp. at 665.

43. ld. at 3.

24. 986 F.2d 1521 (9th Cir. 1993).

44. ld. at 4.

25. ld., 1525-26.

45. 143 F.3d 1210, 1212 (9th Cir.
1998).

10. The PLRA physical injury
requirement does not apply to plaintiffs
who are no longer incarcerated; Kerr v.
Puckkett, 138 F.3d 321, 323 (7th Cir.
1998); and courts have declined to apply
the provision retroactively; see Swan v.
Banks, 160 F.3d 1258 (9th Cir. 1998);
Craigv. Eberly, 1998 WL 886748 at 3
(10th Cir. 1998).

26. ld., 1523.

11. Siglarv. Hightower, 112 F.3d 191
(5th Cir. 1997).

12. ld. at 193.

27. 1998 WL 743572 (D.C. Cir. 1998).
28. ld. at 6.

29. ld. See also Plascencia v. State of
California, 1998 WL 804713 at 8 (C.D.
Cal. 1998)("weight loss is insufficient to
constitute a prior physical injury under
PLRA"); Valentino v. Jacobson, 1999
WL 14685 at 3 (S.D.N.Y.
1999)("anxiety" and "somatic emotional
difficulties" fail to state a civil rights
claim under PLRA).

13. ld.
14. ld. at 193.
15. ld. at 194. But see Gomez v.
Chandler, 1999 WL 304 at 4 (5th Cir.
1999)(distinguishing Siglar and noting
that "there is no categorical requirement
that the physical injury be significant,
serious, or more than minor. ").

30. See, e.g., Calhoun v. DeTella, 1997
WL 75658 (N.D. Ill. Feb. 18,1997);
Dorn v. DeTella, 1997 WL 85145 (N.D.
Ill. Feb. 24, 1997).
31. 133 F.3d 459,461-65 (7th Cir.
1997).

32. ld., 462.

16. No. 96-1257 DJS/RLP, Mem Op.
and Order (D.N.M. Nov. 17, 1997)
(unpublished).

33. ld. at 463.

17. ld. at 4.

35. 1998 WL 743572 at 1.

18. Luong v. Hatt, 979 F. Supp. 481, 485
(N.D. Tex. 1997).

36. ld. at 1.

34. ld. at 464.

37. ld.
19. ld.

38. ld. at 1.
20. ld.,486.

39. ld. at 7.
21. Nunn v. Michigan Dept. of
Corrections, No. 96-CV-71416, Order
and Op. at 9 (B.D. Mich. Feb. 4,
1997)(unpublished).

22. ld. at 9.

5

.

46. Id., 1213. "See also Self-Allah v.
Ammucci, 1998 WL 912008 at 5
(WDNY 1998)."

40. ld. at 1.

41. ld. at 2.
42. ld.

Giovanna Shay, J.D. Yale 1997,
is on a Soros Justice Fellowship
with the National Prison Project
focusing on issues affecting
incarcerated women.

NPP JOURNAL
The National Prison Project is a special
project of the ACLU Foundation which seeks
to strengthen and protect the rights ofadult
and juvenile otIenders~ to improve overall
conditions in correctional facilities; and to
develop alternatives to incarceration.
The reprinting of]OURNAL material
is encouraged with the stipulation that the
National Prison Project JO URNAL be
credited as the source ofthe material, and
that a copy of the 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
by the National Prison Project of the
ACLUF:

1875 ConnecticutAve.,NW, Ste. 410
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Phone: (202) 234-4830
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(NO COLLECT CALLS PLEASE)
NPP Director:

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Editorial Assistant: Laura Kamoie
Regular Contributor: John Boston

JOURNAL Editor:

The National Prison Project JOURNAL

Fall 1998 & Winter 1999

Case Law Report: Highlights of Most Important Cases
By John Boston

Prison Litigation Reform Act!
In Forma Pauperis/Standing
Lyon v. Krol, 127 F.3d 763
(8th Cir. 1997). The plaintiff
lacked standing to challenge the
"three strikes" provision of the
Prison Litigation Reform Act. He
could not allege a burden on his
right of court access because he
had not sustained actual injury,
since he had enough money to
pay the filing fee. Filing fees
. themselves do not
unconstitutionally burden the
right of court access. The statute
does not limit litigants' ability to
pursue legal claiins, it merely
limits their ability to proceed in
forma pauperis. This opinion
dishonestly evades the equal
protection analysis by ignoring
the fact that being charged the
filing fee is sufficient injury in fact
to confer standing.
Prison Litigation Reform Act!
PublicationslIn Forma
Pauperis
Shabazz v. Parsons, 127 F.3d
1246 (10th Cir. 1997). The
Prison Litigation Reform Act's
filing fee provisions apply to
appeals in actions filed before the
statute was passed in which a
notice of appeal is filed after that
date. The provisions are not
unconstitutional.
6

The plaintiffwas denied entire
issues ofMuhammad Speaks.
The defendants' refusal to redact
offending portions ofthe
publication is upheld under the
Turner standard on the ground
that the cost would be prohibitive
and such a procedure would
prevent the prisoner from
obtaining meaningful
administrative review.
Protection from Inmate
AssaultlPersonal Involvement
and Supervisory Liability/
Summary Judgment!
Evidentiary QuestionsNerbal
Abuse
Fischl v. Armitage, 128 F.3d
50 (2d Cir. 1997). The plaintiff,
housed in protective custody,
flooded the tier so the porters had
to clean it up. Inmates
complained to officers on the next
shift. Six inmates got into the
plaintiffs cell and assaulted him.
His cell was opened from outside
and he heard one of his assailants
say the sergeant gave them ten
minutes. It took two hours to get
him medical care. He had facial
fractUres and was in the prison
hospital for two weeks. One of
the officers who had been on duty
allegedly came to the hospital and
threatened him, and continued to
do so after his release from the
hospital.
The defendants should not
have been granted summary
judgment. The district court

drew inferences favorable to the
defendants rather than the
plaintiff Since one defendant
was the company officer, it was
reasonable to infer for summary
judgment purposes that he
opened the plaintiffs cell;
although there were other officers
who could have used their keys to
get access to the cell-opening
mechanism, there was no
evidence that any of them were
present and the defendant had
sole responsibility for the area.
Since the officer was either in the
control room or patrolling the
unit at the time of the assault, a
jury could infer either that he
opened the cell or that he was
present and did nothing when the
attack occurred.
The defendant who
threatened the plaintiff should not
have been dismissed on the
ground that only verbal abuse
was at issue. The threats support
an inference that he collaborated
with the attackers (he allegedly
brought a couple of them to the
hospital with him when he
threatened the plaintiff). The
attackers' statements that the
sergeant had given them ten
minutes are not hearsay if the
sergeant is a defendant; they are
admissions. Also, the statement
would not be admitted for the
truth ofwhat it asserted but as
evidence that the sergeant had
foreknowledge of the attack and
endorsed it. It could also come in

The National Prison Project JOURNAL

as the statement of a
coconspirator.

Medical Care-Fees/ Standing!
Non-English Languages/
Procedural Due ProcessProperty/Access to Courts
Reynolds v. Wagner, 128 F.3d
166 (3d Cir. 1997). A county
prison charged $3.00 per sick call
visit; doctor visits were free if
referred by sick call staffbut
$5.00 if not; prescription
medication and over-the-counter
medication deemed necessary by
medical staffwere free, and aTC
medication was also available in
the commissary; initial
examinations were free; treatment
for chronic conditions was free;
some emergencies were free,
others--like a twisted ankle from
recreation--were not. Mental
health services were free. No one
was denied care because of lack
of funds. Half ofincoming
monies were credited toward' any
negative balance.
The defendants arguedthm
the plaintiffs did not have
standing under Lewis v. Casey
because they did not show that
serious medical conditions went
untreated or that treatment was
delayed because of the fee policy.
The plaintiffs argued that Helling
v. McKinney's holding concerning
unreasonable risks to future
health gave them standing. The
court does not see these holdings
as "necessarily inconsistent" but
avoids the standing question
because the plaintiffs lose on the
merits. The notion that the fee

itself constitutes "injury in fact"
conferring standing is not
mentioned.
The policy is not
unconstitutional on its face. At
174: "If a prisoner is able to pay
for medical care, requiring such
payment is not 'deliberate
indifference to serious medical
needs. '" The program does not
condition services on ability to
pay, nor does it delay care. At
175: "If any delay occurs, it is
solely because of decisions made
by the inmates themselves, not
because of any conduct on the
part of the prison administration. "
(At 177: There is no support for
the claim of delays; the claim of
conflict with the need to spend
money for litigation expenses fails
because no "vital expenses" were
cited and the most important
commissary items are provided
free to indigents.) The program
is just "a modest disincentive to
abuse sick call." The rationale of
the program--to teach prisoners
financial responsibility and to
deter the abuse of sick call-passes muster under the Turner
standard.
The policy is not
unconstitutional as applied.
Charging higher fees than
Medicaid (ifthat is the case) is
not unconstitutional. Failure to
provide a Spanish-language
version of the policy is not
unconstitutional since it is
explained by Spanish-speaking
employees (though the court
"urges" defendants to provide a
translation). The failures to

Fall 1998 & Winter 1999

define "chronic illness" and
"emergency" except by example
are not unconstitutional.
Charging for treatment of
contagious diseases is not
unconstitutional. Conceivably, a
prisoner could show that a fee
policy deterred others from
getting treatment, risking an
epidemic, but no such evidence
appears here.
At 179: "Inmates have a
property interest in funds held in
prison accounts." Notice ofthe
policy and the availability of a
grievance proceeding to contest
deductions satisfied due process
requirements; authorization for
each specific deduction was not
required. At 181 n. 7: the state's
heightened procedural protections
do not create a liberty interest.
The policy is not rendered
unconstitutionally v~gue by the
definitions of "chronic" and
"emergency. "
The plaintiffs lack standing to
argue that the policy denies
access to courts by diverting
funds from prisoners' legal
expenses because they fail to
show harm under Lewis. There is
no First Amendment right to
subsidized mail and
photocopying.

Psychotropic Medications
Morgan v. Rabun, 128 F.3d
694 (8th Cir. 1997). Washington
v. Harper is applied to an insanity
acquittee who was involuntarily
medicated in a state mental
hospital. There was no
substantive due process violation.

7

I

I

The National Prison Project JOURNAL

The doctor legitimately
concluded that he was dangerous
and ordered forcible medication
on two occasions, since he had a
prior homicide conviction and
had a hostile demeanor. The
plaintiff denied the latter, but
even if this "self-serving denial" is
true there was enough evidence
that the doctor exercised his
professional judgment based on
the allegations ofwhich the
plaintiff had been acquitted
(stabbing someone based on
psychotic beliefs). The fact that
he had been in jail for six months
without medication and didn't
hurt himself and others ("in such
a volatile atmosphere for six
months, unmedicated, and
harboring active psychotic
beliefs") supports the doctor's
determination. (Heads I win, tails
you lose. Cf Korematsu v.
United States.)
There was no procedural due
process violation in the 18
months of daily non-forcible
medication because the plaintiff
accepted it voluntarily and was
not forced to take it when he did
refuse.

Procedural Due Process-Disciplinary Proceedings
Wagner v. Hanks, 128 F.3d
1173 (7th Cir. 1997). The
relevant comparison, in
determining whether placement in
punitive segregation is "atypical
and significant" under Sandin, is
whether the confinement is
substantially more restrictive than
any non-punitive confinement
8

Fall 1998 & Winter 1999

anywhere in the state's prison
system. At 1175: "... [U]nder
Sandin the key comparison is
between disciplinary segregation
and nondisciplinary segregation
rather than between disciplinary
segregation and the general
prison population." The court
suggests that a national
comparison might make sense but
doesn't go that far.
At 1175: "When Sandin is
interpreted in light of the transfer
cases, it becomes apparent that
the right to litigate disciplinary
confinements has become
vanishingly small." The court
says the Second Circuit "seems
inclined to leave the door open a
bit wider than Sandin, when read
in light of the transfer cases,
appears to allow. "

Ex Post Facto LawslPersonal
Property
United States v. Williams,
128 F.3d 1239 (8th Cir. 1997).
The Mandatory Victims
Restitution Act, passed in 1996,
is not an ex postfacto law as
applied to conduct partly
performed before that date, since
the defendant committed some of
the conduct after that date and
was on notice that his conduct
might result in restitution to
persons other than those
victimized by the specific conduct
for which he was charged. The
court does conclude that in this
statute, unlike other restitution
statutes, the restitution is
punishment.

Prison Litigation Reform
ActlIn Forma Pauperis
Tierney v. Kupers, 128 F.3d
1310 (9th Cir. 1997). Cases
dismissed as frivolous or for
failure to state a claim before the
Prison Litigation Reform Act was
passed count as "strikes" barring
a prisoner from utilizing in forma
pauperis procedures. Any other
interpretation would permit the
filing of additional frivolous IFP
cases. The statute does not pose
a retroactivity problell). because it
does not impair substantive rights
but merely affects prisoners' right
to proceed IFP.

Prison Litigation Reform
ActlIn Forma Pauperis
Keener v. Pennsylvania Bd
ofProbation and Parole, 128
F.3d 143 (3d Cir. 1997). The
Prison Litigation Reform Act's
"three strikes" provision may be
triggered by "strikes" that
occurred before the passage of
the statute.

Criminal
Proceedings/Searches-PersonlDeference
United States v. Holloway,
128 F.3d 1254 (8th Cir. 1997).
The plaintiff was suspected of
drug trafficking in prison and was
placed in a "dry cell"~ ultimately
balloons of heroin were recovered
from his feces. The court
assumes without deciding that dry
cell placement implicates the
Fourth Amendment. However,
the plaintiff's placement based on
reliable information of intent to

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

smuggle drugs was a
"proportionate response." The
court appears to use the
deference and exaggerated
response standards of prison law
rather than a standard of probable
cause or reasonable suspicion,
though the substantive difference
does not seem large.

Sexual Abuse/Color of Law/
Prison Litigation Reform Act
Walker v. Taylorville
Correctional Center, 129 F.3d
410 (7th Cir. 1997). The Prison
Litigation Reform Act's revised
standards for in forma pauperis
screening do not apply to cases
filed before PLRA was passed.
A staff member alleged to
have sexually harassed the
plaintiff acted under color of state
law because she allegedly abused
her state authority. The plaintiff
went to her for help in her
capacity as counselor, and the
other alleged incidents were
possible only because she had
access to the plaintiff as a result
of her official position. The fact
that she may have been pursuing
her own interests is beside the
point.
Allegations that the officer
harassed the plaintiffby rubbing
his arm and his penis and making
suggestive comments "appear to
satisfy the threshold standard for
sexual harassment claims in. a §
1983 case." (414) The court
holds only that the claim is not
frivolous, since the defendant has
not been served.

Protection from Inmate Assault
Rich v. Bruce, 129 F.3d 336
(4th Cir. 1997). The plaintiff:
held in a segregation unit, was
assaulted by another inmate who
was known to have a grudge
against him. The assault was
made possible by the defendant
officer's violation of four separate
rules (e.g., no more than one
inmate should be out of his cell
for recreation at once). The
defendant was not deliberately
indifferent. Although he knew of
the risk to the plaintiff: he was
too stupid to perceive that his
conduct was adding to it; in
Farmer's language, he did not
"draw the inference."
Medical CarelFederal Officials
and Prisons
United States v. Smartt, 129
F.3d 539 (lOth Cir. 1997). A
prisoner may be eligible for a
"special circumstances reduction"
of a prison sentence based on
medical condition, but such a
motion must be brought by the
Director of the Bureau ofPrisons.
In Forma Pauperis/Appeal
Wooten v. District of
Columbia Metro. Police Dept.,
129 F.3d 206 (D.C.Cir. 1997).
The plaintiff: subject to an order
requiring him to seek leave of the
district court to file new
complaints after certifying that
they raised new matters, sought
to appeal a dismissal for
disobeying that order. The
district court certified that his
appeal was not taken in good

faith. Therefore he must pay the
filing fee on appeal unless the
appeals court grants his motion to
proceed IFF. The court rejects
his motion; his appeal will be
dismissed unless he pays the full
fee.

Prison Litigation Reform
ActlIn Forma Pauperis
Henderson v. Norris, 129
F.3d 481 (8th Cir. 1997). When
a prisoner has been denied IFP
status on appeal by the district
court because the appeal is not
taken in good faith, the prisoner
may move in the appeals court
under Rule 24(a), Fed.R.App.P.,
to proceed IFF. Such a motion
triggers the obligation to pay the
full fee in installments under
PLRA, or up front if the three
strikes provision applies. A
notice of appeal als.o triggers the
obligation to pay fees. The fee
will initially be assessed at $35 or .
other reasonable amount if the
prisoner does not submit the
required account information.
Apparently there is no option to
refuse to pay and have the appeal
dismissed.
Prison Litigation Reform
Act/Judicial Disengagement
Inmates ofSuffolk County
Jail v. Rouse, 129 F.3d 649 (1st
Cir. 1997). The Prison Litigation
Reform Act's termination
provisions apply to consent
decrees and not just "relief'
flowing from them. Despite the
linguistic uncertainty in the
statute's use of "relief' and

9

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i f iii I ~ ! i

The

Na~ional

"consent decree," the legislative
intent is clear.
The statute does not violate
the separation of powers.
"Consent decrees ofthe type at
issue here" are not final
judgments for separation of
powers purposes. Prospective
equitable judgments "can
succumb to legislative action if
the legislature alters the
underlying rule oflaw." (656)
The underlying law is not the
Eighth Amendment because there
was no adjudication of rights.
Rather, the underlying law relates
to the authority of the federal
court to maintain relief absent a
federal law violation. Nor is
there a violation ofthe Klein rule.
The statute has changed the law
and left the courts free to apply
the new law to the facts as they
discern them.
The statute does not deny due
process. At 658: "..... [F]rankly
modifiable decrees cannot create
vested rights." Any contract
rights created by a consent decree
are reviewed under a rational
basis standard, which the statute
meets.
The statute does not deny
equal protection. It does not
abridge detainees' right to be free
from punishment because ,punitive
conditions of confinement can be
remedied under it. At 660:
"[W]hile there is a constitutional
right to court access, there is no
complementary constitutional
right to receive or be eligible for a
particular form of relief" Absent
violation of a fundamental right,
10

Fall 1998 & Winter 1999

Prison Project JOURNAL

the rational basis test applies.
Limiting the powers of federal
courts in prison cases and
discouraging frivolous cases are
clearly legitimate ends and the
means are "stern" but reasonably
related to the goals. The
legislative record does not show
that the statute was motivated by
animus; sponsors' statements
about prisoners are merely
political rhetoric.
The district court concluded
that its prior findings did not
establish a constitutional
violation, and the court defers to
that conclusion. There is nothing
in the record to suggest further
inquiry into the constitutionality
of conditions. The district court
properly refused to predict
whether there would be
constitutional violations in the
future.
The decree should be
terminated, not vacated. Vacatur
would eviscerate collateral effects
of the judgment and would "cast
a shadow" over past actions taken
under it.

Correspondence-Non-Legal
Davidson v. Mann, 129 F.3d
700 (2d Cir. 1997). A directive
limits the number of stamps that
can be purchased for non-legal
mail to 50 every two weeks, or
50 a month for prisoners in
segregation. The plaintiff did not
allege that he had ever been
prevented from purchasing
stamps or from sending mail, so
the statute is assessed only on its
face. Under Turner, there is a

valid and rational connection
between the regulation and
interests in avoiding a backlog of
mail and in allocating prison
personnel efficiently. Limits on
purchases are rational because
stamps are like currency and the
limits reduce the risk ofthefts and
disputes. Prisoners have the
alternative of prioritizing their
mailings, and there is an
extenuating circumstances
exception. There are no ready
alternatives to the policy and no
specific allegations of why
anybody needs more than 50 or
100 stamps a month for non-legal
mail.

Ex Post Facto Lawstremporary
Release/Habeas Corpus/StateFederal Comity
Plyler v.Moore, 129 F.3d
728 (4th Cir. 1997). The RookerFeldman doctrine bars federal
court relitigation of an issue
litigated before the state courts by
the same parties here (a class of
prisoners) unless federal
jurisdiction is via habeas corpus.
The relief sought here--earlier
release--is habeas relief, so the
doctrine does not apply.
A statute providing for
furloughs six months before
release to relieve prison
overcrowding was amended to
exempt prisoners convicted 'of
certain offenses. The amendment
violates the Ex Post Facto Clause
under Lynce because it
retroactively extends the length of
some prisoners' incarceration.

The National Prison Project JOURNAL

Prison Litigation Reform
Act/Judicial Disengagement
Dougan v. Singletary, 129
F.3d 1424 (lith Cir. 1997). The
Prison Litigation Reform Act's
termination provision does not
reopen final judgments because
consent decrees are not final for
separation of powers purposes;
they are II comparatively
adaptable ll relative to the Plaut
judgment of dismissal. (Klein
was not argued.)
Plaintiffs' due process
argument fails for the same
reason as the finality argument.
The statute does not deny
equal protection. The court
refuses to consider the PLRA as a
whole. The termination provision
does not restrict court access; it
restricts relief The statute passes
rational basis scrutiny because it
advances "the unquestionably
legitimate end of minimizing
prison operation by judges. II .
(1427, footnote omitted)
The case is remanded for
consideration ofwhether the
consent judgment can survive
underPLRA.
Protection from Inmate
Assault/ Mental Health
Care/Class Actions-Effect of
Judgments and Pending
Litigation! Appointment of
Counsel
Luttrell v. Nickel, 129 F.3d
933 (7th Cir. 1997). The plaintiff
was double celled on arrival at a
prison with a mentally disturbed
prisoner; his request to be moved
was not acted on, and he did not

Fall 1998 & Winter 1999

take it to a higher official. He
was sexually assaulted, defended
himself with a weapon, and was
reprimanded for possession of the
weapon.
Failing to transfer the plaintiff
did not violate a court order
because that order applied to a
different prison. It was not
deliberate indifference because
the plaintiff did not show that the
officer to whom he complained
knew there was a substantial risk
that he would be seriously
harmed. At 936: IIHer failure
personally to investigate the
cellmate's mental state and her
response to his request with
laughter did not amount to
deliberate indifference. II Anyway
the assailant was taking
medication to control his mental
illness.
The failure to appoint counsel
was not an abuse of discretion;
the plaintiff, though he did not
appear competent to try the
action himself, had the assistance
of IIjailhouse lawyers."

Medical Care-Standards of
Liability--Deliberate
Indifference
Palacios v. City ofOakland,
970 F.Supp. 732 (N.D.Cai.
1997). A police officer pushed
the plaintiff and he fell and hit his
head on the curb. He appeared to
be uninjured and was taken to jail
and not to a medical facility. He

later proved to have an epidural
hematoma and suffered injury.
The lack of visible evidence
of injury means that the
defendants did not know of his
medical condition and cannot be
found deliberately indifferent.
The fact that he was unconscious
at one point did not inform
defendants of his medical
condition, since he was also
intoxicated, and since he regained
consciousness and appeared
normal.

Protection from Inmate
AssaultlPre-Trial Detainees/
Qualified Immunity
Martinez v. Mathis, 970
F.Supp. 1047 (S.D.Ga. 1997).
The defendant jailer disclosed to
other inmates that the plaintiff
was accused of child molestation;
they later assaulted'him. The
jailer's comments, and statements
made to him, showed his
subjective knowledge ofthe risk
to the plaintiff ("Martinez is going
to get his butt kicked"). These
facts make out a constitutional
claim.
The jailer is entitled to
qualified immunity. He acted
within his discretionary authority,
since anything he said to other
inmates IIoccurred while he was
acting within his authority and
pursuant to his duties as a jailer. II
There is no case in point in which
similar conduct has been found
unconstitutional, so it lIis not
clearly established that prison
officials violate constitutional
laws when they make statements

11

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Fall 1998 & Winter 1999

The National Prison ProjectlOURNAL

in the presence of inmates that a
particular inmate is 'sick' and
'should have his ass beat.'" (1052)

Publications/CorrespondencePostage and Materials/
Procedural Due ProcessProperty/Grievances and
Complaints about Prison
Allen v. Wood, 970 F.Supp.
824 (E.D.Wash. 1997). The
plaintiff was denied the receipt of
catalogs, "sexually explicit"
materials, postage stamps and an
oversized greeting card.
The prohibition on catalogs is
upheld under Turner based on
concerns for storage space, fire
hazards, preserving sanitation and
limiting contraband. Some curio
[sic] catalogs are permitted
because of their rehabilitative
value, and catalogs from various
vendors are made available in
common areas.
The prohibition of sexually
explicit material is upheld. The
defendant Director"avers, based
on his research of numerous
studies, that inmates exposed to
pornography become desensitized
to what they are viewing and
require more and more graphic
material which may ultimately
result in acting out sexual
fantasies," leading to more
consensual and non-consensual
homosexual activity, spread of
STDs, aggressive and predatory
behavior, and disrespect for
female staff There is no blanket
prohibition of certain
publications; each one is reviewed
separately. Inmates have an
12

alternative: they can read
publications that are not
prohibited. Publications, once
admitted to the prison, cannot be
controlled and can be read by
anyone including sex offenders.
Postage stamps have
monetary value and can be
bartered, so the prohibition on
receiving them from outside is
upheld. Prisoners are permitted
to buy stamps in the store.
The prohibition on oversize
greeting cards is upheld because
of storage concerns and because
of the opportunity that oversized
or padded or laminated or
mechanical cards present to hide
contraband.
The rejection of the plaintiffs
mail does not constitute a Fifth
Amendment violation, since there
is no showing that the property
was taken for public use.
The existence of an appeal
process for rejected mail satisfies
due process requirements.
Prisoners are not constitutionally
entitled to a grievance process.

Medical Care/Mootness/
Procedural Due Process-Disciplinary Proceedings/
Injunctive Relief/Habeas
Corpus/
Disabled/Hygiene/Exercise and
Recreation
West v. McCaughtry, 971
F.Supp. 1272 (E.D.Wis. 1997).
The plaintiff's medical care
complaint, which sought access
to an outside specialist, was
moot, since he had been taken to
the specialist and had received

physical therapy as a result.
The claim that the plaintiff
was segregated because the
defendants thought he could walk
when he couldn't is barred under
the Seventh Circuit's rule
extending Heck v. Humphrey to
all prison disciplinary convictions.
The failure to provide
"walking assistance" so the
plaintiff could return to general
population was not atypical and
significant under Sandin.
However, the failure to provide
showers and recreation because
of his failure to walk stated an
Eighth Amendment claim. No
ADA claim was pled.

Prison Litigation Reform
Act!Judicial Disengagement!
Modification of Judgments
Taylor v. State ofAriz., 972
F.Supp. 1239 (D.Ariz. 1997),
aff'd. The PLRA's termination
provision violates the separation
of powers: It is retroactive
legislation because it applies to
decrees approved before its
enactment. It explicitly provides
for retroactive application so it is
not necessary to resort to the
Landgraf default rules;
Landgrafs comments on
prospective relief are
distinguished (n. 12). Consent
decrees are final judgments. The
fact that courts can reopen them
does not mean that Congress can
subject them to new reopening
requirements. PLRA does not
codify pre-existing reopening
requirements. Finality for appeal
and finality for separation of

The National Prison Project JOURNAL

powers purposes are not
different.
Wheeling Bridge II provides
for reopening ofjudgments by
retroactive legislation only to the
extent that they are based on
"public rights common to all." At
1246: "Constitutional rights
inhere to the individual and, as
such, they are the very antithesis
of public rights." The right to
limit federal judicial activity is not
a public right that the PLRA can
act on; the focus of Wheeling
Bridge is the rights protected by
the judgment. The fact that
constitutional rights may still be
protected under PLRA is not
dispositive. At 1246: "The
separation of powers is concerned
with Congressional encroachment
on judicial power, not that such
encroachment will lead to a
violation of the rights underlying
the judgment."
Wheeling Bridge may also be
read to create an exception only
for injunctions based on statutory,
rather than constitutional, rights.
(1247 n. 15)
The Benjamin district court
opinion is distinguished at length.
The court notes that PLRA "is
precisely the type oflegislation
that is inimical to separation of
powers." Legislatures setting
aside judgments is one of the
things the separation of powers
was designed to avoid.
Absent the PLRA, there is no
basis to terminate the consent
decree in this case. Rufo rather
than Dowell applies because Rufo
is a prison case. (The court does
13

I I! II I I

Fall 1998 & Winter 1G99

not treat these cases as applying
to different questions, which is
more accurate.) The lack of a
continuing constitutional violation
does not compel tennination.
A modification granted based
on notice only to a plaintiffs'
lawyer who had been relieved in
1980 was not consistent with due
process, and is therefore void.
The modification is set aside.

Personal Propertylln Forma
PauperislPrison Litigation
Reform Act
Beck v. Symington, 972
F.Supp. 532 (D.Ariz. 1997). A
state statute requiring installment
payment of court fees by
prisoners, similar to the
subsequent federal Prison
Litigation Refonn Act, does not
unconstitutionally chill the
fundamental right of access to
courts; it merely burdens the right
"to file a lawsuit free of charge,"
which does not exist. The statute
is upheld under the rational basis
test against both court access and
equal protection claims, relying
on authority upholding the
PLRA.

Medical Care/Service of
Process
Webber v. Hammack, 973
F.Supp. 116 (N.D.N.¥. 1997).
The court grants summary
judgment to defendants against
the complaint of a prisoner with a
knee injury who received a lot of
treatment, does not appear to
have identified any substantial
maltreatment, and aggravated his

own problems by engaging in
athletic activities during recovery.
The Department of
Correctional Services should not
have returned a mail summons
addressed to "Dr. Hammock";
they should reasonably have
inferred that it was for "Dr.
Hammack." However, the
plaintiff lacked good cause for
failing to make service because he
failed to do anything about this
for seven years.

Procedural Due ProcessDisciplinary Proceedings
Glaspie v. Mahonie, 973
F.Supp. 401 (S.D.N.Y. 1997). It
was not clearly established as of
1992 that there must be an
independent assessment of
confidential informants' credibility
in disciplinary hearings.
Segregated confine~ent for three
weeks pending disposition of
disciplinary proceeding did not
deprive the plaintiffof a liberty
interest under Sandin. Under
Briscoe v. Lahue, a staff
member's testimony at a
disciplinary hearing is "a legally
insufficient predicate for
constitutional tort liability. "
(405) (Briscoe is actually about
the absolute immunity of
witnesses in a judicial proceeding.
Freeman v. Rideout supports the
same conclusion in prison
disciplinary proceedings without
resort to immunity doctrine.)
This prisoner served 270 days
in SHU for an assault based on
the eyewitness testimony of a
confidential informant despite the

Fall 1998 & Winter 1999

The National Prison Projeet/OURNAL

presence ofa "go-around sheet"
showing he was locked in his cell
at the time. An officer testified at
the hearing that these sheets are
correct only about 50% ofthe
time and that he had heard that
other prisoners had disarmed their
cell door locks with magnets and
other devices.
Procedural Due ProcessDisciplinary
Proceedings/Habeas
Corpus/Damages-Due Process
Violations
Wright v. Miller, 973 F.Supp.
390 (S.D.N.Y. 1997). The
plaintiffs were convicted of
disciplinary offenses, had their
convictions administratively
reversed, and were convicted
again on rehearing. The results
ofthe rehearings cannot be
challenged under § 1983 because
they have not been overturned in
state proceedings or via habeas.
However, challenges to their
initial convictions are not barred.
Even though the result of the
second hearings had been the
same, the plaintiffs would be
entitled to nominal damages and
. to compensation for mental
anguish resulting from the due
process violation itself, but not
for the penalties imposed.
Segregated confinement of 12
to 15 months requires a factual
determination of whether the
plaintiffs were subjected to an
atypical and significant hardship
under Sandin.
Law Libraries and Law
14

Books/Standing/Class Actions-Conduct of Litigation
Walters v. Edgar, 973
F.Supp. 793 (N.D.Ill. 1997). The
court had found court access
violations in several segregation
units, but the proceeding was still
open when Lewis v. Casey was
decided. The court interprets
Lewis as requiring the named
plaintiffs to prove individual
prejudice at trial (797-98). The
actual injury requirement is
satisfied by allegations and proof
that a plaintiff wanted to present
a claim with arguable merit, and
could not. If one named plaintiff
shows this at trial, standing
requirements are satisfied. At
798: "A court can then look at
injuries suffered by other plaintiffs
of the same type in determining
the scope of appropriate relief"
The court notes (804-05) that
those who are most likely to have
inadequate access to courts are
least likely to come forward as
named plaintiffs.
In this case, one of the named
plaintiffs' claims failed because
the legal question he had wished
to present concerning his criminal
conviction was held not to
provide a basis for habeas corpus
and since the state court decision
on which he relied had been held
not retroactive; the only way he
could have benefited would have
been to raise the issue on direct
appeal, where he was represented
by counsel and did not have
Bounds rights. Also, during some
of the period when he said he
needed assistance, he was not in

segregation.
The second named plaintiff
failed to establish that some ofhis
various claims had arguable merit;
for other claims, he had counsel
and therefore access to court.
Procedural Due ProcessDisciplinary Proceedings/
ReligionlWork Assignments/
Habeas CorpuslDeference

Rowold v. McBride, 973
F.Supp. 829 (N.D.Ind. 1997).
The plaintiffwas disciplined for
refusing to work on his "religious
day of rest." He is both a
Messianic Jew and a Seventh Day
Adventist.
There was some evidence that
he had refused to work, so his
conviction did not deny due
process. A disciplinary
conviction for being a habitual
offender did not constitute double
jeopardy by being imposed while
the same issues were before the
federal court in a habeas
proceeding. The Double
Jeopardy Clause has no
application in prison disciplinary
proceedings even ifthey result in
extending the prisoner's release
date.
The court incoherently
discusses the fact that the
plaintiff's loss of good time on an
earlier conviction was reversed
but was reimposed in a
proceeding accusing him ofbeing
a habitual offender. The bottom
line is indecipherable.
Requiring the plaintiffto
work on his Sabbath is upheld
under the Turner standard. At

The National Prison Project JOURNAL

837: "If this court were to hold
Rowold's right to assert his
religious beliefs outweighed the
rights ofthe penal system to
maintain order and balance it is
quite possible other prisoners
would convert to Judaism or the
Adventist following to avoid
Sabbath work duty."
Under the Anti-Terrorism and
Effective Death Penalty Act, a
petitioner must show that the
challenged conduct was contrary
to, or unreasonably applied,
clearly established federal law as
determined by the Supreme
Court, or involved an
unreasonable determination of the
facts. This rule applies to
challenges to administrative as
well as judicial action.

Pre-Trial DetaineesfUse of
ForceNerbal Abuse
Albritten v. Dougherty
County, Ga., 973 F.Supp. 1455
(M.D.Ga. 1997). A use offorce
after arrest but before
arraignment is governed by the
Fourth Amendment, at least
where the force was close in time
to the initial arrest, the arresting
officer was still present and had
custody, the stated purpose of the
force was to effect a search
incident to arrest, and the
apparent purpose of the
incarceration was something
other than pre-trial detention.
The use of racial epithets by
one of the officers could support
a conclusion that the use of force
was predicated on race-based
animus, which would show that
15

I I II EII I I

Fall 1998 & Winter 1999

the force used was unreasonable.

Procedural Due Process-Disciplinary Proceedings/Good
Time
Marino v. Klages, 973
F.Supp. 275 (N.D.N.Y. 1997).
Generally, SHU confinement for
under a year has not been held
atypical and significant under
Sandin. It is the actual and not
the potential penalty that governs.
The plaintiffs 300 days in SHU is
therefore not actionable. In New
York, loss of good time does not
deny liberty because disciplinary
hearings can only recommend the
loss of good times and the Time
Allowance Committee, which
makes the decision, applies
discretion, and therefore there is
no liberty interest.
Federal Officials and Prisons/
Programs and ActivitieslPreTrial Detainees
United States v. Sutton, 973
F.Supp. 488 (D.NJ. 1997). The
decision whether to place a
federal prisoner in the shock
incarceration program is to be
made by the Bureau of Prisons
and not the sentencing court.
The court does recommend that
the defendant be placed in a
prison near his family in New
Jersey.
There is controversy whether
deplorable conditions of pre-trial
detention justify a downward
departure under the federal
sentencing guidelines. The court
concludes that it has authority to
do so, but declines to do so. The

plaintiffs ten months in jail were
largely a result of his own
conduct in engaging in plea
negotiations and in providing
cooperation with the government.
(Heads they win, tails you lose.)
The jail conditions, while
criticized in a court monitor's
report, were not shown to be
atypical compared to jails in other
jurisdictions. At 493:
Although the Court
recognizes that pre-trial
detention is not
"punishment" within the
constitutional meaning of
the word, ... even a
regulatory measure, such
as pretrial detention, can
have deterrent and
punitive effects. There
can be little doubt that
pretrial detention in
substandard conditions
can have a punitive effect
not contemplated by the
Guidelines.

Punitive Segregation/Education
and Training
Leacock v. DuBois, 974
F.Supp. 60 (D.Mass. 1997). The
plaintiff's confinement in
disciplinary segregation, (a twoyear sentence for an injurious
assault on another prisoner) did
not violate the Eighth
Amendment. 'He has daily
exercise and interaction with
other prisoners; the ability to earn
telephone privileges and inperson visits after 30 days of
good behavior; access to mental
health care; and a defined term of

Fall 1998 & Winter 1999

The National Prison Project]OURNAL

confinement. Expert evidence of
the potential consequences of
isolated confinement does not
suffice in the absence of evidence
that the plaintiff has suffered such
damage.
A state statute limiting
"isolation" to 15 days did not
apply to the plaintiffs
confinement; inmates in isolation
were not permitted television,
radio, outside contact, or any
books other than religious books.
A prohibition on educational
materials in disciplinary
segregation is not
unconstitutional under Turner
because it is reasonably related to
deterring misconduct.

Use of Force/Res Judicata and
Collateral EstoppellPersonal
Involvement and Supervisory
Liability/Medical Carel
Procedural Due Process-Disciplinary ProceedingslUse of
Force--Restraints
Mitchell v. Keane, 974
F.Supp. 332 (S.D.N.Y. 1997).
The plaintiffs criminal conviction
for assault estops him from
claiming that a disciplinary charge
for assault for the same incident
was done from retaliatory motive.
An allegation that an officer
twisted his baton in the plaintiffs
shackles, inflicting considerable
pain, supported an Eighth
Amendment claim. The fact that
the plaintiff had assaulted an
officer earlier that day did not
justify this treatment in the
absence of any evidence that he
was being aggressive or resisting.
16

At 341: "While the Eighth
Amendment permits the use of
force to subdue a violent
prisoner, it does not allow an
officer to inflict pain in retaliation
for a previous episode of
violence." A supervisory official
who was present at the time of
the incident and did not intervene
could also be liable.
Refusing to remove the
shackles did not violate the
Eighth Amendment in light of the
prisoner's earlier conduct.
The failure to x-ray the
plaintiffs back did not violate the
Eighth Amendment; such a
medical decision is not actionable.
Nor is the failure to fill out an
injury report, which is not
medically necessary.
Confinement in involuntary
protective custody for three days
before a disciplinary hearing was
not a liberty deprivation under
Sandin.
Criminal prosecution and
prison discipline for the same
conduct do not violate the
Double Jeopardy Clause.

Religion--Practices--Diet
Abdullah v. Fard, 974
F.Supp. 1112 (N.D.Ohio 1997).
The plaintiff complained that
Halal meat was not provided for
Muslim prisoners. The prison
provided a nutritionally' adequate
meat alternative. Defendants are
entitled to summary judgment.
At Ill?: "To be protected by
the Constitution, the particular
religious ritual must be central or
indispensable to the inmate's

religious observances and must be
a conviction shared by an
organized group as opposed to a
personal preference."
Defendants' policy, which
acknowledges that not eating
pork is central but says avoiding
non-Halal food is not, is not
unconstitutional. There is also no
substantial burden, since a
nutritionally adequate alternative
has been provided.
Having concluded that no
fundamental right is burdened, the
court need not apply the Turner
analysis. However, the standard
is met. Although the defendants
submitted no economic analysis,
it is "obvious" how burdensome it
would be to accommodate"each
and every unique request from
each sect"; hence the prison's
policy of dealing with "faith
groups" (e.g., all Muslims) rather
than "sects." Defendants'
contention that they would be
subjected to a "barrage" of
requests for special treatment
need not be supported by
evidence either. Evidence that
the defendants had not found an
Ohio supplier ofHalal meat
"demonstrates that no ready
source" is available.
The denial ofHalal meat even
though kosher meals are provided
to Jews does not deny equal
protection absent a
"discriminatory purpose" and a
sufficient showing under the
Turner test. Defendants'
assertion that the number of
Orthodox or Conservative Jewish
inmates is small and that there are

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

local suppliers suffice to satisfy
this court. (Note the
contradiction between their
actions with respect to Jews and
their concern about a "barrage" of
requests if they accommodated
the Muslims.)

Medical Care
Davis v. City ofGreenville,
Miss., 974 F.Supp. 884
(N.n.Miss. 1997). The plaintiff
was assaulted by other inmates
and received a puncture wound;
he said that he had been
threatened, but nonetheless was
put back in the same cell with
them. They poured caustic
solution in his eyes; a jailer
looked at him through the tray
slot and determined nothing was
wrong. Another jailer took him
out about three hours later; after
another four hours he was taken
to the hospital.
The second jailer was not
entitled to summary judgment.
Either he did nothing to ensure
medical care for four hours or he
did nothing to ensure that his
orders for medical care (if he
gave them) were carried out. The
assault claim is not at issue on
this motion.
Federal Officials and
PrisonslPrograms and
Activities! Exhaustion of
Remedies
Gissendanner v. Menifee, 975
F.Supp. 249 (W.n.N.y. 1997).
The petitioner sought a writ of
mandamus requiring the warden
of Allenwood to consider him for
11

i I I II i I I

the Intensive Confinement
Center, a shock incarceration
program. He did not have a
"clear right" under Bureau of
Prisons policy statements or the
authorizing statute, both of which
grant the Bureau discretion, or
the due process clause, which
does not confer a protected
interest in classifications or
eligibility for programs.
Therefore he was not entitled to
mandamus.
The petitioner had also failed
to exhaust his administrative
remedies. At 251: "A mere
conclusory allegation of futility is
insufficient to excuse the
petitioner from the requirement
that he exhaust the remedies
available to him through the BOP
Administrative Remedy
Procedure. . . ."

Protection from Inmate
AssaultlExhaustion of
Remedies! Prison Litigation
Reform Act
Morgan v. Arizona Dept. of
Corrections, 976 F.Supp. 892
(D.Ariz. 1997). The plaintiff
alleged that he had been identified
by prison officials to other
inmates as a child molester, that
his requests for protective
custody had been refused, and
that he had been assaulted. He
did not get a timely response to
his grievance and abandoned the
process because it would provide
no "resolution" to the assault. He
sued for damages and to be
placed in protective custody.
The complaint is dismfssed

for failure to exhaust
administrative remedies. At 895:
"When the exhaustion of
administrative remedies is
required by federal statute, the
failure to exhaust is a
jurisdictional defect that prevents
the district court from hearing the
claim." A continuance to exhaust
is no longer permitted, although a
continuance to amend the
complaint may be. Here, none is
granted because the plaintiff
admits he did not exhaust. The
fact that he had not gotten a
timely response from the early
stages of the process did not
excuse him from proceeding with
the rest of it; the rules provide
that if a time limit passes the
prisoner is entitled to proceed to
the next step. The case involves
a "prison condition" within the
meaning ofPLRA.

Procedural Due ProcessDisciplinary
ProceedingslHabeas Corpus
Burnell v. Coughlin, 975
F.Supp. 473 (W.n.N.Y. 1997).
Under Second Circuit law, the
court cannot determine whether a
sentence of730 days SHU,
reduced to 365, is atypical and
significant under Sandin. A
recommendation of a year's loss
of good time is atypical and
significant. The court notes that
good time is provided by statute
but does not address the
argument that loss of good time is
contingent in New York
disciplinary proceedings and the
ultimate decision by the Time

The National Prison Project JOURNAL

Allowance Committee is
discretionary.
The plaintiffs claim is barred
by Edwards v. Balisok; his
allegation, of a biased and
deceitful hearing officer, is
exactly the same as in that case.
In addition, the court thinks the
procedural violations alleged
(refusal to take certain testimony,
contacting witnesses outside
plaintiffs presence, etc.) would
also "impl[y] the invalidity of the
conviction." The court also
states its belief that Balisok
applies to all disciplinary cases
regardless of the sanction
imposed. At 477: "The rationale
is the same---where an inmate
complains about the process and
procedure at the. hearing that
cause him to lose good time, or
result in confinement in SHU, his
remedy is not an action for
damages but an action to
'overturn' the conviction. "

Hazardous Conditions and
SubstanceslPersonal
Involvement and Supervisory
Liability/ Statutes of
Limitations
Doyle v. Coombe, 976
F.Supp. 183 (W.D.N.Y. 1997).
The plaintiff alleged that he was
exposed to asbestos during his
ordinary duties as a maintenance
worker while removing asbestoscontaining insulation from pipes.
He was also forced to work in
areas where asbestos removal
was going on and which were
marked as such, and complained
that his cell was "open to the
18

Fall 1998 & Winter 1999

same air space" as asbestos in the
basement.
The court considers qualified
immunity sua sponte and grants it
as to his exposure during his
ordinary work activities and in his
cell, since in 1990-92 no Supreme
Court or Second Circuit case had
held that exposure to asbestos or
any other substance causing
delayed harm was actionable
under the Eighth Amendment.
Qualified immunity did not bar his
claims of being required to enter
areas clearly marked as being
dangerous. At 188: "While
failing to protect inmates from
possible exposure to asbestos has
[sic] not been clearly established
as unlawful prior to 1993,
actively forcing an inmate to
work under known dangerous
conditions certainly was. "
An amended complaint
naming new parties does not
relate back to the filing of the .
complaint unless, inter alia, the
party to be added should have
known that but for a mistake of
identity he or she would have
been sued. The failure to identify
individual defendants whom the
plaintiff knows must be named is
not such a "mistake."

Pre-Trial Detainees/Class
Actions--Conduct of Litigation/
Prison Litigation Reform Act/
Monitoring/lnjunctive Relief-Changed Circumstances/
Negligence, Deliberate
Indifference and Intent
Jones v. City and County of
San Francisco, 976 F.Supp. 896 .

(N.D.Cal. 1997). In this jail
conditions case, the court
dismissed the individual claims of
the named plaintiffs and then
granted a motion to decertify the
class subject to the naming of a
new class representative.
In response to defendants'
continuing claims of changed
conditions, the court directed that
the record be closed as of a date
certain, "so as to account for
recent changes without making
summary adjudication
impracticable." (903) It deems
this action consistent with
Farmer v. Brennan.
A special master who
antedated the Prison Litigation
Reform Act was not"appointed
under [the PLRA] subsection,"
and the PLRA did not apply to
his appointment or his activities.
At 903: "Even if the PLRA
governed the appointment of the
Special Master in this case, the
provision obviously serves to
protect parties excluded from the
Special Master's ex parte
communications; defendants have
no standing to object to the
Special Master's conversations
with their own employees. "
The special master's report
was entitled to deference under
the "clearly erroneous" standard
because the injunctive claims
were nonjury claims. The
presence ofjury claims did not
require a different result; those
claims could be tried separately.
Under the Eighth
Amendment, deliberate
indifference must be shown; in a

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

pre-trial detainee case, "reckless
indifference" will also suffice.
The Special Master's finding that
defendants had actual and
constructive knowledge ofjail
deficiencies, combined with his
.report from 1990, established
deliberate indifference.
Programs and Activities.
Recreation and Exercise (907):
"[Some] conditions intrinsically
cannot have constitutional
significance, such as the quantity
of programs .available to inmates,
. . . and the physical condition of
the upper and lower exercise
yards."
Crowding. Cell Confinement,
Length of Stay, Injunctive Relief-Changed Circumstances,
Negligence, Deliberate
Indifference and Intent (907-08):
The jail was at 124 per cent of
capacity, resulting in double
ceIling in 41-square-foot cells;
inmates were in their. cells 16
hours a day and in some cases 23
hours a day or 25 hours at a time
on alternate days because of lack
of staff to supervise out-of-cell
activities. The average tenure
was 103 days. "The many
harmful consequences of this
overcrowding on inmates' health
and safety appear obvious, and
they include such phenomena as
increased violence due to
inadequate supervision levels per
inmate, a taxing of the physical
facilities such that inadequate
plumbing and sewage treatment
pose health risks, and a depletion
of opportunities for time outside
ofthe cell for such activities as

recreation and religious services."
These conditions amounted to
punishment. However,
defendants' efforts to move
inmates out to relieve
overcrowding, which had
eliminated double ceIling,
preclude a finding of current
deliberate indifference. However
(at 916), the risk of recurrence is
such that injunctive relief is
warranted.
Fire Safety (908-09):
"Inmates 'have the right not to be
subjected to the unreasonable
threat of injury or death by fire
and need not wait until actual
casualties occur in order to obtain
relief from such conditions."'
(Citation omitted). The
defendants had eliminated many
hazards, but not the absence of
fire-rated door assemblies to
separate the jail's central core, or
the absence of sprinklers in
critical areas, or the use of
flammable mattresses, or
combustible storage, or
inadequate staffing for evacuation
during one shift, or the
deteriorating electrical system.
The persistence of serious
inadequacies "suggests that
defendants' response has been
something less than reasonable"
under Farmer. "In determining
whether to find deliberate
indifference in this case, the
Court cannot restrict its
examination to whether
defendants made substantial
efforts to improve safety, thereby
excluding any consideration of
whether the improvements have

actually left inmates reasonably
safe from fire." Ruiz is
distinguished as an Eighth
Amendment case.
Physical Conditions-Structure, Financial Resources,
Negligence, Deliberate
Indifference and Intent (909-10):
The building's structural
deficiencies pose a "high seismic
risk," and its malfunctioning bar
locking system and inadequate
staffing enhance the risk by
potentially leaving inmates
trapped in their cells. The fact
that buildings like libraries
present similar risks is not
dispositive because people don't
live in them. The existence of
building codes requiring that such
buildings be vacated, repaired, or
demolished suggests that society
does not tolerate such risks. The
fact that a retrofit would cost $3
million and defendants have tried
to pass a referendum to pay for it
·does not negate deliberate
indifference, since the City"chose
the one type of measure, a
referendum, that required
approval of two-thirds ofthe
voters," unlike a general
obligation bond or certificate of
participation. Also, it had
allocated the money but diverted
it to other projects.
Plumbing (910): The
antiquated water supply system,
sanitary fixtures in disrepair,
deteriorated asbestos insulation,
absence of vacuum breakers, and
sewage treatment deficiencies, as
well as other health hazards,
violates the Fourteenth

19

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Fall 1998 & Winter 1999

The National Prison Project JOURNAL

Amendment. Plaintiffs need not
produce evidence that these
conditions have resulted in
disease.
Food. Changed
Circumstances (910-11):
Repeated food service sanitation
violations do not constitute
deliberate indifference because of
defendants' recent improvements,
including implementing a regular
extermination program and
requirement ofimmediate
disposal of unused foods, and
allocating money for physical
improvements, though none of it
has been spent.
Protection from Inmate
Assault (911-13): The court
denies cross-motions for
summary judgment. There are
identified hazards: "a jail designed
to house petty thieves and drunks
will not accommodate maximumsecurity pretrial felons with
histories of violence, escape and
gang activity.... The excessive
length of the tiers and their
numerous sight obstructions
inhibit the detection of
malfeasance." Staffing and
surveillance are inadequate for
supervision. Population
reductions have not had much
effect on violence rates. "It is not
self-evident that the occurrence
of one fight every three days--in a
facility housing 500 high-security
pre-trial felons--subjects inmates
to an unconstitutionally high risk
ofviolence. " (At 911 n. 14: The
relevant figure is the rate of
violence per capita, not the
number of incidents; that rate was
20

.19 or .20 per inmate-year.) The
court needs more evidence to
determine what risk is acceptable.
Heating and Ventilation (91213): The air ducts seem never to
have been cleaned, asbestos is on
steam pipes and elsewhere in the
building, and there is no air flow
in some areas. There are dozens
ofbroken radiators and heaters,
inadequate thermostats, hundred
ofbroken windows which the
maintenance stafflacks the
resources to replace, etc.
Defendants have made efforts to
correct the problems but the
court cannot grant summary
judgment on this record.
Medical Care. Mental Health
Care (913-14): No violation is
found despite deteriorated
physical facilities based on
improvements made by
defendants.
Visiting (913): No violation
found.
Attorney Consultation (91314): The lack of privacy in
attorney-client consultations
raises a Fourteenth and Sixth
Amendment issue; defendants'
claims concerning a video
conferencing system are
insufficiently detailed to support
summary judgment. The lack of a
showing of harm is not
dispositive under Lewis v. Casey,
which permits relief when harm is
"imminent." That is likely where
inmates might be hesitant to
disclose important information to
their attorneys. In any case, Sixth
Amendment analysis is not
subject to Lewis.

Law Libraries and Law
Books (914): The law library
seems adequate for everyone but
non-English speakers, but
plaintiffs identified no one who
had been denied court access
within the meaning of Lewis v.
Casey..
Religion--Services Within
Institution (914-15): Limitations
on congregate worship are upheld
under the Turner test because
they result from limited space in
the jail and plaintiffs put forward
no "ready alternative."
Noise (915): Noise levels
typically ranging from 73 to 96
decibels violate the Fourteenth
Amendment. Defendants have
given deputies control over TV
volume and put more deputies on
the tiers. These efforts are
cosmetic. Plaintiffs are granted
summary judgment.
Lighting (915): "Where
lighting appears so poor as to be
inadequate for reading and to
cause eyestrain and fatigue, the
conditions appear
unconstitutional even under the
Eighth Amendment." Lighting
generally less than 5 foot-candles
is unconstitutional.
Recreation and Exercise
(916): Improvements affording
about 6 hours a week of exercise
meet constitutional standards
despite inadequate clothing for
cold weather exercise.
Inmate Legal Assistance
Tinea v. United States, 977
F.Supp. 245 (S.D.N.Y. 1996).
The absence of "trained

The National Prison Project JOURNAL

paralegals" in federal prison law
libraries does not provide cause
for having failed to raise habeas
corpus claims in his first petition.
At 254: "A prison is not required
to provide assistance from
'persons with legal training,' but
may do so as an alternative to an
adequate law library. "

Religion-Practices
Combs v. Corrections Corp.
ofAmerica, 977 F.Supp. 799
(W.D.La.1997). The American
Indian Religious Freedom Act "is
a law without teeth. It creates
neither a cause of action nor any
judicially enforceable individual
rights." The Indian Civil Rights
Act, which requires Native
American tribal governments to
protect certain constitutional
rights, has no bearing on a civil
rights suit against prison officials.
Under the Tumer/O'Lone
standard, restricting the practice
ofNative American religion to
persons ofNative American
ancestry is unconstitutional. It
"offends the fundamental
constitutional right to practice
religion of one's choice. The
policy is akin to a requirement
that practicing Catholics prove an
Italian ancestry, or that Muslims
trace their roots to Mohammed.
Under the Constitution, the
freedom to believe, or not to
believe, in a religious faith is
reserved not to a select class of
citizens, but to all." Defendants
said that the penological interest
behind their policy was to prevent
a prison gang, but there are other

Fall 1998 & Winter 1999

ways to do this--for example,
limiting the size of religious
gatherings.
The policy requiring Native
American religious objects to be
secured in the chaplain's office is
"provisionally acceptable, but
incomplete." The court directs
that plaintiffs be allowed to
practice the Native American
religion at the same frequency as
before the challenged policies
were introduced, and that they be
allowed to use sacred items not
described in the policy when
these do not breach prison
security. However, restrictions
on the construction of a sweat
lodge are upheld.

--Effect of Judgments and
Pending Litigation
Imprisoned Citizens Union v.
Shapp, 977 F.Supp. 335 (E.D.Pa.
1996). An order certifying the
plaintiffclass as including
prisoners at six named prisons
limited the scope of the
subsequent consent judgment to
those prisons, notwithstanding
general language indicating that
the defendants would comply
with their own regulations and try
to ensure compliance by "all
institutional staff"
Only institution- or systemwide patterns of noncompliance
may be brought before the court
because the consent decree says
so; it explicitly disavows creating
a private cause of action or a
private contempt claim. A
provision for "appropriate legal
proceedings" to enforce the

decree does not authorize pro se
filings. At 341: ". . . [I]t is clear
that the only appropriate legal
proceeding in a class action is one
initiated by class counsel." (Here,
class counsel had notified the
court that he would not adopt
most ofthe pro se filings before
the court.)
Prisoners must exhaust the
prison grievance procedures
before moving to enforce the
consent judgment because the
consent judgment says so.
The Prison Litigation Reform
Act is not addressed in this
opmlOn.

False ImprisonmentlFederal
Officials and
PrisonstExhaustion of
Remedies
Puccini v. United States, 978
F.Supp. 760 (N.D.Ill. 1997). The
plaintiff, while serving a federal
sentence, was arrested on a state
charge, went into state custody,
and was denied bail because of
the federal detainer. She was
granted a writ of habeas corpus
on the ground that she should
have been returned to federal
custody and her time would have
been credited against her state
sentence.
The individual defendants are
entitled to qualified immunity on
the Eighth Amendment claim
because there is no indication
they were deliberately indifferent
to her rights. A more thorough
investigation would not have
helped; defendants went "by the
book." The habeas court

21

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IIi

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The National Prison Project JOURNAL

concluded that the "book" was
wrong, but that conclusion was
not self-evident. Her due process
claim also lacked merit. Her
successful habeas petition
satisfied due process.
The court notes that the
plaintiff did not exhaust her
administrative remedies formally,
and notes that to do so would
have been futile.
The Federal Tort Claims Act
claim fails because the FTCA
excepts claims arising out of false
imprisonment except when they
relate to the conduct of
"investigative or law enforcement
officers ofthe United States
Government," and the persons
responsible here were "acting as
prison administrators, not
investigative or law enforcement
officers. " .

Procedural Due ProcessDisciplinary
Proceedings/FederalOfficials
and Prisons
Thompson v. Hawk, 978
F.Supp. 1421 (D.Kan. 1997).
The petitioner was convicted of
possession of a weapon found in
a light fixture in his cell. The
federal prisons' "constructive
possession" rule, which makes a
prisoner responsible for anything
found in his cell unless
exculpatory evidence makes
application of the rule unreliable,
is not unconstitutional. The court
relies on Hamilton v. O'Leary,
which holds that a 25%
probability of guilt is sufficient to
convict. This petitioner was the
22

Fall 1998 & Winter 1999

sole occupant of his cell, and the
"open door" policy does not
undermine the application of the
rule. At 1424: "Application of
the constructive possession rule is
not defeated by a claim that
prison officials failed to search a
cell for contraband prior to
assigning prisoners to the cell."
At 1424: "The denial of
documentary evidence in a prison
disciplinary hearing can give rise
to a due process claim. . . It has
been recognized that Brady v.
Maryland, ... requires the
disclosure of material exculpatory
evidence in prison disciplinary
proceedings." The evidence
sought, records of the theft of the
knife and of inspections of light
fixtures, would not have been
sufficiently probative that their
withholding is a due process
denial on these facts.

Religion--Practices-Diet
Washington v. Garcia, 977
F.Supp. 1067 (S.D.Cal. 1997).
The plaintiff alleged that he was
denied a Muslim diet in
segregation during Ramadan.
The defendants are not entitled to
summary judgment. They argued
that the policy of regular meals in
segregation was constitutional,
but failed to establish that that
was indeed the policy or that it
precluded religious meals during
Ramadan, or that it was logically
connected to valid penological
interests. The plaintiff had
alternative means of religious
exercise, like fasting and praying,
but the court is not convinced this

meets the Turner standard. At
1073: "If it were, the factor
would have no meaning because
an inmate would always be able
to pray privately." The plaintiff
admitted that he "gassed" (threw
feces and urine on) various staff
members. However, the
defendants did not show that they
were justified in not letting him
savehismealsumilno~daylig~

hours. Defendants did not show
that they could not accommodate
his request; in fact, his Prisoner
Appeal was ultimately granted.
The latter point suggests that
there was a ready alternative
(giving him the meal).
The plaintiffs right to
religious meals may have been
clearly established; defendants are
not entitled to summary judgment
on qualified immunity.
.

Publications
Miniken v. Walter, 978
F.Supp. 1356 (E.D.Wash. 1997).
Defendants treated Prison Legal
News as "bulk mail" and
destroyed it without notice to
publisher or subscriber. The
publication did not even fit the
prison's definition of "bulk mail, "
though they changed it twice after
the lawsuit was filed.
Jones v. North Carolina
Prisoners' Labor Union is not
controlling because this case does
not involve "bulk mail" as Jones
used the term; this mail was paid
for and specifically addressed to
the prisoner.
At 1361: "The court is
satisfied that the Defendants have

The National Prison Project JOURNAL

set forth a valid rational
connection between the ban on
mass mailing types of truly bulk
mail, such as unsolicited catalogs
addressed to 'current occupant'[,]
and a legitimate neutral purpose,
but as previously noted, that is
not the issue." The question is
whether such a policy is properly
applied to subscriptions from
nonprofit organizations. The
original policy prohibited mail
"without endorsement (i.e.,
address correction
requested...)"; PLN bears that
endorsement; so after suit was
filed, defendants changed the
policy twice to permit only mail
bearing the endorsement "return
postage guaranteed," then to
include mail marked as "nonprofit" or "bulk mail." The court
gives no credibility to defendants'
explanation of the policy and its
changes.
Under Turner, no legitimate
penological interest has been'
provided for excluding
publications like Prison Legal
News. The claim that such mail
often lacks a complete address is
answered by the fact that a
separate rule excludes mail that
lacks a complete address. The
most recent change in the rule
discriminates against nonprofit
publications. There is no
alternative for the plaintiff, since
the entire nonprofit operation is
centered on mailing the
publication third class as an
economic matter and subscribers
can't force the publisher to send
the publication by more expensive

Fall 1998 & Winter 1999

means. There is no evidence that
delivering the publication would
have more impact on prison
personnel and resources than
delivery of first class mail.
Defendants have ready
alternatives to exclude
publications for other reasons and
to limit the number or volume of
publications received or
possessed.
The failure to notify either the
recipient or the publisher of the
denial ofthe publication denied
due process. The court does not
explicitly say that both must be
notified. The court gives weight
to the statement in Thornburgh v.
Abbott acknowledging the
presence of procedural
protections.
The defendants are not
entitled to qualified immunity. At
1364: "... [N]o reasonable
prison official could have believed
that an absolute prohibition of a
paid-for subscription, without any
reasonable connection to a
legitimate, neutral prison policy,
did not violate a prisoner's First
Amendment rights. "

District Court
Non-Prison Cases
Use of Force/Judicial and
Prosecutorial Immunity
Martin v. Henderson, 127
F.3d 720 (8th Cir. 1997). A
police officer who used force on
the plaintiff in court pursuant to a
judge's order to remove her was
entitled to absolute immunity
from her claim that he used

excessive force.

Disabled/Standing
Jairath v. Dyer, 972 F.Supp.
1461 (N.D.Ga. 1997). At 1467:
money damages are not available
under the ADA, so a plaintiffwho
cannot benefit from an injunction
lacks standing to challenge
alleged violations ofthe ADA.

Class Actions-Certification of
Classes
Death Row Prisoners of
Pennsylvania v. Ridge, 169
F.R.D. 618 (E.D.Pa. 1996). The
court certifies a class of death
row prisoners who have not yet
filed federal habeas petitions and
who sought an injunction to
prevent Pennsylvania from
claiming to be an "opt-in" state
under federal law with a sixmonth statute of limitations on
filing for habeas relief (The
Supreme Court has subsequently
held that this question is not
justiciable under Article III.
Calderon v. Ashmus, 118 S.Ct.
1694 (1998).)
Numerosity should not be
rigidly applied when injunctive
relief is sought, since the
defendant will not be prejudiced
by class certification. There were
201 class members and 20-25
more are added each year. The
class size, its fluidity, the need for
speedy resolution ofthe issue,
and the illiteracy, isolation, and

23

IIII

IIi

The National Prison Project JOURNAL

mental illness of some of the class
members support certification.

Class Actions-Certification of
Classes
Hill v. Butterworth, 170
F.RD. 509 (N.D.Fla. 1997). The
court certifies a class of death
row inmates who challenge
Florida's claim to be an "opt-in"
state under federal law with a sixmonth statute of limitations on
filing for habeas relief.
Numerosity is generally not
satisfied by fewer than 21
plaintiffs, but 40 is generally
adequate. Here, 31 suffices.
Other factors, including the ease
ofidentifYing class members, are
relevant. The presence of an
unknown number offuture class
members bolsters the claim of
numerosity rather than defeating
it. At 514: "The proper focus is
not on numbers alone, but on
whether joinder of all members is
practicable in view ofthe
numerosity ofthe class and all
other relevant factors." (Citation
omitted)
The court finds the Florida
Office of Capital Collateral
Representative competent to act
as class counsel despite a state
statute limiting their involvement
in civil litigation, which the state
Supreme Court refused to apply,
and despite the office's previous
assertions that it lacked staffing
and funding to handle its existing
obligations. The court rejects the
claim that there is a conflict of
interest because the office is
seeking additional funding for
24

Fall 1998 & Winter 1999

itself
The court rejects the lack of
necessity argument for class
certification. Injunctive relief
which benefits non-parties and
class-wide injunctive relief may
be appropriate in individual
actions, but that does not
preclude certification where the
requirements ofRule 23 are met.
Essentially, defendants are
making a "superiority" analysis
appropriate for Rule 23(b)(3),
and plaintiffs seek certification
under Rule 23(b)(2).

Federal Officials and Prisons/
Service of Process
Hurlburt v. Zaunbrecher, 169
F.RD. 258 (N.D.N.Y. 1996).
Incarcerated pro se IFP prisoners
are entitled to rely on the
Marshals Service for service of
process. When service is
defective but the defendant has
actual notice ofthe action and is
not prejudiced, some courts have
implicitly or explicitly deemed the
service effective, and others have
ordered the Marshals Service to
do it right or directed the plaintiff
so to request.
The Second Circuit requires
the latter approach, which the
court terms "the ultimate in
exalting form over substance."
(259) Here, where the defendant
refused to acknowledge mail
service, the court directs the
Marshals to serve the defendant
personally, but orders that if the
defendant continues to in~ist on
this, the full cost will be imposed
on her personally, and

reimbursement by any third party
will be prohibited.

PleadinglParties Defendant!
Statutes of Limitations
Henderson v. Hackel, 170
F.RD. 430 (E.D.Mich. 1997).
The plaintiii: who had been
assaulted by other prisoners,
sought to amend his complaint to
add the identities of John Doe
defendants. The claims against
the new defendants relate back to
the filing ofthe original
complaint; the existing defendant
would have had to investigate the
allegations when initially served,
and the court cannot believe that
he would not have discussed the
matter with the other jail
personnel involved, and therefore
they must have had notice and
knew or should have known that
they would have been named but
for the plaintifPs ignorance of
their identity.

Access to Courts-Punishment
and Retaliation/Access to
Courts-Confiscation and
Destruction of Legal Materials
Riley v. Coutu, 172 F.RD.
224 (E.D.Mich. 1997). The
plaintifPs verified complaint and
answer state that the defendant
confiscated and destroyed some
of his legal materials in retaliation
for his exercise of his right to
court access, resulting in actual
injury. The defendant's motion
for summary judgment was
therefore denied. After Lewis v.
Casey, the defendant obtained
leave to file a motion based on

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

changes in the law. However, in
the Sixth Circuit, Lewis did not
change the law. Nor is there any
change oflaw with respect to the
plaintiffs retaliation claim. A due
process "shocks the conscience"
analysis does not apply where the
plaintiff asserts retaliation for the
exercise of an enumerated
constitutional right.

Class Actions-Settlement of
Actions/Attorneys' Fees and
Costs
In re Southern Ohio
Correctional Facility, 173 F.R.D.
205 (S.D. Ohio 1997). The
parties jointly moved for approval
of a settlement in a class action
arising from a 1993 riot and
subsequent lockdown at the
Lucasville prison, alleging failure
to protect inmates during the riot,
excessive force and other
misconduct by staff during the
riot, and a retaliatory lockdown
after the riot. The class had been
certified under Rule 23(b)(2)
despite the presence of damage
claims. Counsel and consultant
Steve Martin had negotiated an
endtothelockdown,the
restoration of many services, the
revision of the classification
system, a special disciplinary
procedure for riot-related
charges, etc.
The settlement provides terms
affecting "quality oflife" issues
including single-ceIling maximum
security inmates, modifying the
classification system, and other
policy and practice changes, plus
a $4.1 million settlement fund for
25

IIII!!illl

compensation of those persons,
or their estates, ifthe prisoner
was murdered during the riot,
physically injured during the riot,
lost property during or as a result
of the riot, or suffered other
serious riot-related injury and the
settlement's other provisions are
seriously inadequate for that
person.
Notice was mailed to all
prisoners who had been at the
prison at the pertinent time and
was posted in all cellblocks;
notice and the settlement itself
were placed in every prison
library; class counsel visited class
members at seven prisons.
At 211: "The law generally
favors the settlement of complex
class actions." The court must
preliminarily approve the
settlement, notice must be given,
and after a hearing the court must
determine whether the settlement
is fair, reasonable and adequate
and consistent with the public
interest.
The court approves the
settlement. The "quality oflife"
provisions are better than the law
would provide:
Crowding (212-13): Double
ceIling is not unconstitutional
(Rhodes v. Chapman came from
this prison), but the settlement
requires single ceIling.
Classification. Transfers
(213): There is no constitutional
right to a particular classification
or to be housed at a particular
prison, but this settlement gives
prisoners access to their
classification documentation so

they can know how to improve
their classification and get
transferred out ofthe prison.
Cell Confinement (213): It
would be difficult to prevail at
trial on terms such as the
settlement's provisions for 40
hours a week out of cell time.
Procedural Due Process-DisciplinaIy Proceedings (213):
Sandin limited the due process
rightsofinmmesfacinglockdown
status, but the settlement
institutionalizes disciplinary
procedures.
The settlement fund is also
the largest such fund established
in a case of this nature. Litigating
this case would result in
substantial delay and expense.
Experienced trial counsel
recommends the settlement. Only
25 out of3000 class members
objected, and the court is not
impressed by their objections.
The settlement is in the public
interest because it addresses some
of the causes ofthe riot and
avoids costly litigation.
Attorneys' fees are awarded
on the basis that this is a
"common fund" case, and not
under § 1988 (permitting the
court to avoid dealing with the
Prison Litigation Reform Act,
which is not mentioned in this
opinion). However, the court
uses the lodestar method rather
than the more common
percentage ofthe recovery
method, though it doesn't explain
the calculations, and notes that
the result represents 34% of the
settlement fund.

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

Criminal ProceedingslPrison
RecordslDiscovery
United States v. Storey, 173
F.R.D. 290 (D.Kan. 1997). A
prisoner charged with conspiracy
was to be provided, per prior
order, with any documents from
the Bureau ofPrisons' files on the
Aryan Brotherhood at
Leavenworth that would establish
that he was not a member of it by
virtue of his not being named in
them, but the court allowed the
government to comply simply by
declaring that its files do not
reflect his involvement. The
defendant objected, stating that
he is entitled to know how many
documents there are, how many
persons are identified as AB
members in them, how many
times each confirmed member is
mentioned, and the general nature
of the informat.ion in the
documents. The court directs
provision of the number of
documents, whether they contain
any information about the
defendant, and how many AB
members are identified in the
documents. Another opinion,
173 F.R.D. 292 (D.Kan. 1997):
the government provided a
summary of information forming
the basis of its belief that two
other prisoners with whom the
defendant ate meals were AB
members; they didn't have to
produce names of informants and
other suspected gang members.
Procedural Due ProcessDisciplinary Proceedings/Class
Actions-Certification of
26

Classes/ Habeas Corpus
Umar v. Johnson, 173 F.R.D.
494 (N.D.IlI. 1997). The plaintiff
challenged a practice at Stateville
of denying prisoners the right to
call witnesses at disciplinary
hearings by having an investigator
interview requested witnesses
separately and provide a summary
oftheir testimony.
The court previously certified
a class of prisoners who have had
or will have pending disciplinary
hearings and whose requested
witnesses are denied as a result of
defendants' policy, and who had
or will have the potential loss of
good time credits at stake.
Heck bars the plaintiff's
challenge to the result of his
hearing, but his narrower
challenge to the defendants'
procedures is not barred because
it would not necessarily imply the
invalidity of the loss of good
time. Edwards v. Balisok
modifies the law as previously
stated by the Seventh Circuit.
A request for prospective
injunctive relief is not barred by
Heck because it does not imply
the invalidity of an earlier loss of
good time.
The plaintiff's individual
claim, as de facto amended in
motion papers after discovery, is
no longer representative ofthe
class's claim, so he cannot
represent the class. The class
need not be decertified. Cases
like Geraghty "teach that once a
class has been certified it acquires
an existence separate and apart
from that of the individual named

plaintiff, so that the failure of his
or her individual claim does not
impair the class' entitlement to
relief" The appropriate
procedure is to substitute a new
named plaintiff
The named plaintiff's claim
has no merit because he did not
request one witness until he
appeared at the hearing. Another
of his witnesses had previously
testified at his own hearing and
the Adjustment Committee
considered that testimony, which
the plaintiff had no right to be
present for; use of this prior
testimony was not an abuse of the
discretion conferred by Wolff v.
McDonnell.

Use of ForcelDiscovery
Cox v. McClellan, 174 F.RD.
32 (W.D.N.Y. 1997). In a use of
force case, the prisoner plaintiff
was entitled to production of
records of the prior arrest for
assault of one of the officers. At
34: "Prior civilian complaints
made against the defendants and
incidents of excessive force by
individual defendants are clearly
discoverable in § 1983
actions. . . . Moreover, evidence
which demonstrates that Heuser's
supervisors knew about his prior
assault may be relevant or lead to
relevant evidence to prove
plaintiff's claims against Heuser's
supervisors." The fact that the
charge was adjourned in
contemplation of dismissal does
not matter. The conduct, and not
the disposition ofthe charge, is
what is relevant. The holding

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

that the evidence is discoverable
does not establish its
admissibility, and the defendant
may move in limine to exclude it.

Federal Rules Decisions
Non-Prison Cases
Class Actions-Certification of
Classes/Class Actions-Conduct
of Litigation
Wyatt by and through
Rawlins v. Poundstone, 169
F.R.D. 155 (M.D.Ala. 1995).
Here is another example of an
attack on a class action and on
class counsel similar to R. C. by
Alabama Disabilities Advocacy
Program v. Nachman, 969
F.Supp. 682 (M.D.Ala. 1997)
An action that had been
treated as a class action for 25
years would continue to be so
treated, even ifno one can find a
formal order certifying the class.
At 160: "Where the court is
confronted with named plaintiffs
who no longer have live interests,
the appropriate course is to
substitute new named class
members."
The court declines to
decertify because of differing
opinions among class members,
noting that some of the conflict
arises from misinformation
disseminated by the defendants.
(They sent a letter to guardians of
mentally retarded residents
stating that plaintiffs' counsel
wanted to close the facilities
down. They neglected to add
what plaintiffs wanted to replace
them with.) In any case the
27

I I I II Ii II

remedy is to provide accurate
information and reevaluate any
expression of conflict. At 161:
". . . [T]he question should not be
whether there is a 100%
concurrence of interests within
the class, but rather whether the
class as a whole and as to some
primary issues being litigated is
being adequately represented. "
Here, the position taken by some
class members is being adequately
articulated by defendants,
resulting in adequate
representation. If necessary,
subclasses can be certified, and
class members can intervene for
the purpose of representing a
subclass.
The defendants argued that
class counsel had not been
adequate representatives because
they examined clients' records
without first obtaining their
guardians' permission. However,
the court has upheld their right to
do so. Counsel was not negligent
in failing to post notices of the
status of the action; they depend
on defendants' cooperation for
this. Defendants argued that
plaintiffs had become "the
dominus litus," which the court
rejects.
The class should be certified
under Rule 23(b)(2), not Rule
23(b)(3) as defendants advocate.
At 167: "... TA] structure
should be established in which
plaintiffs' counsel could have
regular and adequate access to
the plaintiff class." Also, there
should be a procedure for
providing immediate notice~

followed by regular and adequate
notice, ofthe issues in and status
of the litigation, to the plaintiff
class and their guardians,
caretakers, next ofkin and
attorneys.

Discovery
Morrissey v. City ofNew
York, 171 F.R.D. 85 (S.D.N.Y.
1997). The plaintiff police officer
was shot in the foot in a scuffle
with another police officer, who
was a "cooperator" in the 30th
Precinct corruption investigation.
Complaints to the Civilian
Complaint Review Board and
disciplinary charges against the
defendant officer are relevant,
whether substantiated or not.
Though they may not be
admissible, they are reasonably
calculated to lead to the
discovery of admissible evidence.
Information on wrongdoing
by other "cooperators" is relevant
to plaintiff's allegation that
defendants had a policy or
custom of permitting dangerous
and violent individuals to
continue carrying weapons and
acting as police officers without
adequate supervision.
The law of privilege in police
misconduct cases "is extremely
muddled and confused" (89), and
Judge Motley undertakes to sort
it out. In the Second Circuit,
there is both a federal "law
enforcement privilege" which
protects investigations, and a
broader "official information
privilege." The privacy ofpolice
officers generally is not a concern

The National Prison ProjectlOURNAL

ofthe law enforcement privilege.
The law enforcement privilege
may be invoked without an
ongoing investigation ifthe ability
to conduct future investigations
would be seriously impaired by
disclosure. The names of
unindicted officers and civilians
may not be redacted under this
privilege. Status reports in which
action is contemplated against
particular officers are not
protected because the
investigations are all concluded,
and there is no showing that
future investigations will be
jeopardized by disclosure.
Information on how recording
devices are attached to
informants is not discoverable
because plaintiffs showed no need
for it.
The official information
privilege addresses "the state's
general concern in protecting
police personnel files and
investigative reports from 'fishing
expeditions. III (92) However,
there must be a "substantial
threshold showing" of specific
harm likely to result from
disclosure in order to invoke the
privilege, and after such showing
is made, the factors set out in
King v. Conde govern the
decision whether disclosure is
required. Here, defendants have
made a threshold showing with
respect to the legitimate privacy
interests of unindicted police
officers and civilians in avoiding
association with a highly
publicized corruption
investigation. They have failed to
28

Fall 1998 & Winter 1999

do so with respect to the status
reports on officers subject to
investigation. At 92:
[block indent]Numerous court in
this District and elsewhere have
expressed skepticism about the
assertion by police departments
that disclosure will result in the
chilling of police candor.... It is
extremely likely that police
candor will at all be affected by
disclosure of this report because
police officials do not have §
1983 cases in mind when drafting
reports ofthis kind.
The identities of unindicted
persons are barely relevant and
need not be disclosed; it is
cooperators who are at issue.
Plaintiff need not be provided
with his own pre-employment file
to prove wrongdoing by
defendants, and defendants have
an interest in preserving their
ability to perform background
checks. The officer defendant's
pre-employment file is highly
relevant and should be produced.
All documentation to be
produced is subject to an order of
confidentiality (protective order)
forbidding disclosure and use of
the information in other litigation.

Discovery
Collins v. Mullins, 170
F.R.D. 132 (W.D.Va. 1996).
Witness statements collected by
the Sheriffs Department
concerning an alleged use of
force by a deputy are not
protected by the work product
doctrine. The court rejects the
argument that they are prepared

in anticipation of litigation. To be
protected, they must have been
prepared because of the prospect
of litigation, and these statements
were collected consistently with
the normal practice of the
Sheriffs Department in handling
civilian complaints.
The Sheriff in any case cannot
assert a work product privilege
because he is about to be a nonparty, the court having found no
basis for a claim against him.

Discovery
Wiggins v. Burge, 173 F.R.D.
226 (N.D.TIl. 1997). The 13year-old plaintiff alleged that he
was tortured by the Chicago
police. The case settled on the
eve of trial. During discovery,
the plaintiff obtained investigative
files concerning his and ten other
alleged police torture cases, along
with other internal police reports,
subject to an agreed protective
order in another case. The
plaintiffthen moved to strike the
confidential designation of these
documents; various intervenors
supported the motion; the
Fraternal Order ofPolice
intervened to oppose it.
At 228: "Generally, 'pretrial
discovery must take place in
public unless compelling reasons
exist for denying the public access
to the proceeding.'" (Citation
omitted) The parties' agreement
to keep discovery confidential
does not obviate the need to
show good cause for issuance of
a protective order. The
determination of good cause is

The National Prison Project JOURNAL

within the discretion of the court.
Good cause for nondisclosure
is not shown here. Allegations of
police torture are of significant
public interest. Privacy interests
are diminished when the party
seeking protection is a public
person subject to legitimate
public scrutiny. The court does
not believe that this kind of
disclosure makes much difference
to officers when they file their
reports. At 229: "Before
determining that there is a chilling
effect, the court should have
some empirical evidence that

Fall 1998 & Winter 1999

police officers conceal or distort
statements in their internal
reports." Defendants produced
none. The fact that the
allegations may be false does not
support nondisclosure. The
public is sophisticated enough to
understand that allegations are
not proof.

Class Actions-Certification of
Classes
Caroline C. by Carter v.
Johnson, 174 F.R.D. 452 (D.Neb.
1996). The numerosity
requirement is generally met by a

class exceeding 40 members. The
financial resources of class
members, their ability to institute
individual suits, and requests for
injunctive relief that would
benefit future class members are
factors affecting certification.
These plaintiffs, who are mentally
ill and lack knowledge and
sophistication, are in a poor
position to seek legal redress
individually.

John Boston is the Director of
the Prisoners' Rights Project,
Legal Aid Society ofNew York.

NPP Litigation Docket Highlights for 1998
Youngv. Harper (Oklahoma):
The United States Supreme Court
appointed the NPP to represent
the prisoner. The Court ruled
unanimously in June 1997 that the
prisoner had been denied due
process when he was removed
from pre-parole without a
hearing.
Carty v. Farrelly (Virgin
Islands): The NPP had challenged
seriously inadequate medical and
mental health care, resulting in a
settlement in which the
defendants agreed to expanded
medical services, including testing
and treatment for tuberculosis,
and a separate program for
mentally ill prisoners. In 1997 the
district court found defendants in
contempt for failing to obey the
consent decree requiring
comprehensive improvements in
prison conditions.

29

I I Iii IIII

Shumate v. Wilson
(California): In 1994 the NPP had
filed suit on behalf of the
approximately 5,500 women at
the Central California Women's
Facility and the California
Institution for Women. The
women were receiving
systematically inadequate
treatment for a number of chronic
diseases, including mv/AIDS,
cancer, heart disease,
tuberculosis, sickle cell anemia, as
well as inadequate gynecological
care. In December 1997, the
district court approved a
settlement agreement providing
for comprehensive improvements
in the medical care for the
women. The plaintiffs have
continued to monitor, and in
December 1998 the Assessors
appointed under the settlement
agreed with plaintiffs that the two
facilities are not yet in full

compliance with the settlement.

Casey v. Lewis (Arizona):
The NPP had challenged
systematically inadequate mental
health care in Arizona prisons.
Many mentally ill prisoners never
received treatment, or received
clearly inadequate treatment,
because of a lack of staff
Seriously mentally ill male
prisoners were placed in
segregated confinement without
treatment for long periods of
time, while there was essentially
no treatment at all for mentally ill
women. The district court found
that the mental health deficiencies
constituted cruel and unusual
punishment in violation ofthe
Eighth Amendment and that the
failure to treat women was a
violation of their equal protection
rights. The court ordered the
appointment of a special master

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

to help the defendants implement
a constitutional system. After the
order, the state legislature passed
a statute designed to make it
impossible for the special master
to continue her work. The Nmth
Circuit Court of Appeals held the
statute unconstitutional. The
Supreme Court refused to grant
the state's petition for a writ of
certiorari.

Onishea v. Herring
(Alabama): Alabama is one of
three states that test all incoming
prisoners for IllV, and
completely segregate all prisoners
who test positive. The
segregated prisoners are denied
access to general population
programs otherwise available to
prisoners, such as work release
and education and vocational
classes. The Eleventh Circuit
Court of Appeals reversed a
decision from the district court
upholding the exclusion ofIllVpositive prisoners from all prison
programs. The court of appeals
also ordered that the judge who
had twice ruled against the
plaintiffs be removed from the
case before the next trial. The
Eleventh Circuit granted
rehearing en banco The full court
held arguments in October 1998,
we await a decision.
Craig V. Eberly (Colorado):
This case challenges the provision
of the PLRA that prohibits
prisoners from bringing litigation
regarding mental or emotional
injuries in the absence of physical
30

injury. The district court upheld
the constitutionality of the
provision, and held that it applied
to a lawsuit already pending when
PLRA was enacted. The
plaintiffs appealed to the Tenth
Circuit, and the NPP joined the
case to provide counsel on
appeal. On December 21, 1998,
in a published decision, the Tenth
Circuit Court of Appeals
unanimously reversed, holding
that the physical injury
requirement does not apply to
cases already in court at the time
PLRA was enacted.

Amos v. Maryland Dept. of
Public Safety & Correctional
Services (Maryland): NPP
represents severely physically
disabled prisoners in their
damages action against the State
ofMaryland for its failure to
accommodate them in the design
and operations of a prison built
after the enactment of the
Rehabilitation Act. In 1997, the
Fourth Circuit Court of Appeals
upheld the district court's
dismissal of plaintiffs' case. On
June 22, 1998, the Supreme
Court granted plaintiffs' petition
for certiorari and reversed the
Fourth Circuit's decision in light
of Pennsylvania Dep 'to of
Correction V. Yeskey, in which it
held that the Americans with
Disabilities Act applies to state
prisoners. Following remand, the
Fourth Circuit ordered briefing on
whether Congress had exceeded
its authority in enacting the
statute. Plaintiffs presented oral

argument in December, 1998.

Hadix v. Johnson (Michigan):
In 1996 the defendants filed a
PLRA motion to terminate a
consent decree requiring
adequate medical and mental
health care, and to stay all relief
under the PLRA automatic stay
provision. The district court held
the automatic stay provision of
PLRA unconstitutional. The
defendants appealed that decision
to the Sixth Circuit. In May
1998, the Sixth Circuit issued a
decision construing the automatic
stay provision to be ineffective in
changing the ordinary standards
by which federal courts are to
grant or deny stays, and therefore
constitutional. Further, the court
said that if the provision had
affected the standard for granting
or denying stays, it would have
been held unconstitutional. This
decision, which in large part
neutralizes the provision ofthe
PLRA, has become the leading
decision on this issue.
Cody v. Hillard (South
Dakota): This case involved a
consent decree designed to assure
medical and mental health care,
physical plant sanitation, and legal
access at the South Dakota State
Penitentiary. In 1996, the
defendants filed a motion to
dismiss, which the district court
granted in April 1997. In March
1998 the court of appeals
unanimously reversed and
remanded in a published decision.
After remand, the district judge

The National Prison Project JOURNAL

transferred the case to a new
judge. The parties have
extensively rebriefed defendants'
motion to dismiss. An evidentiary
hearing is scheduled for March
1999.

Prison News
NPP endorsed Senator Paul
Wellstone's Mental Health
Juvenile Justice Act at a press
conference held in February to
introduce his new legislation. It
authorizes badly needed
improvements in the treatment of
emotionally disturbed children
enmeshed in our criminal justice
system and creates a narrow but
important exception to the Prison
Litigation Reform Act.
It is estimated that 20 percent
of incarcerated juveniles suffer
from a diagnosable psychiatric
disorder. Too often, these
children are held in clinically
inappropriate settings where they
receive substandard or nonexistent medical care. In
addition, these children are
routinely abused or neglected by
inexperienced and ill-equipped
correctional staff Lawsuits
brought by NPP and other public
interest groups to improve
conditions in these institutions
have been hampered by passage
of the 1996 PLRA.
Senator Wellstone's bill
addresses these problems on all
fronts. For example, it improves
training that will help correctional
staff more promptly identify
juvenile prisoners suffering from
31

Fall 1998 & Winter 1999

emotional disturbance or
substance abuse, and it funds
more effective intervention and
diversion programs that can
provide mental health services
and reduce recidivism. It also
bolsters efforts to educate
prosecutors, judges and defense
attorneys about mental illness.
NPP is especially pleased that
the bill limits the scope of the
Prison Litigation Reform Act in
targeted cases. The PLRA,
intended to reduce frivolous
lawsuits by prisoners, has gone
too far in depriving federal judges
of the tools they need to enforce
the Constitution in prisons and
jails. As a result, the Act has had
a disastrous impact on the
.
conditions in which juvenile and
mentally ill prisoners are housed.
Senator Wellstone's bill will
simply permit federal judges to
enforce the constitutional
guarantee against cruel and
unusual punishment in limited
circumstances involving these
especially vulnerable inmates.
Amnesty International
launched its year long campaign
against human rights abuses in the
United States with the release of
its report, United States of
America: Rightsfor All, in
October. The report criticizes
America's refusal to ratify
significant United Nations' human
rights conventions and exposes
U. S. failure to adhere to current
international standards. The
report highlights issues on police
abuse of power, brutality and

violence in prisons and jails, and
the immoral expansion of the
death penalty. Amnesty
International also released, in
November, Betraying the Young:
Human Rights Violations Against
Children in the US Justice
System as part of their campaign.
This report exposes the horrors
of conditions of confinement for
detained youth and the unjust
transfer of prosecution of children
to adult criminal court. Amnesty
plans to release their final report
in March which will focus on
women In pnson.

Prisoners with HIVInfection: A Global Perspective,
a report drafted by Dr. Abe M.
Macher, ChiefMedical Advisor at
the U.S. Public Health Service,
and Dr. Eric P. Goosby, Director
ofHIY/AIDS Policy at the U.S.
Public Health Service, highlights
numerous presentations at the
12th International AIDS
Conference in Geneva. Statistics
show, in New York State, my
infection rates decreased among
male prisoners but remained high
and stable for female prisoners.
Additional data from a state
prison in California indicated that
my-infected inmates experienced
higher morbidity and mortality
rates for Pneumocystis carinii
pneumonia (PCP) compared to
non-incarcerated mY-infected
persons in the community. For
more information, write to U.S.
Public Health Service, 5600
Fishers Lane, Room 7A-55,
Rockville, MD 20857.

Fall 1998 & Winter 1999

The National Prison Project JOURNAL

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