THE
NATIONAL
PRISON
PROJECT
A Project of the American Civil Liberties Union Foundation, Inc.
Vol. 14, No.3 & 4, Fall 2000/ Winter 2001 • ISSN 1076-769X

NPP Challenges Abusive Supermax Confinement
By David C. Fathi
NPP Staff Counsel
The proliferation of "supennax" prisons is
the latest round in the perpetual "tough on crime"
bidding war. Often against the advice of
corrections professionals, politicians push for the
construction of these facilities regardless of cost
and in the absence of any demonstrated need.
While individual facilities differ, supennax
prisons typically feature almost complete social
and sensory deprivation, and often a pervasive
climate of excessive force. The National Prison
Project has made challenging supennax
confinement a top priority.
On February 7,2001, the NPP, along with
the Connecticut Civil Liberties Union, filed suit in
U.S. District Court in Hartford, challenging
Connecticut's decision to send prisoners to
Virginia's Wallens Ridge State Prison.
Approximately 200 Connecticut prisoners have
been housed at WRSP since November 1999
pursuant to a contract between Connecticut and
Virginia. The suit, Joslyn v. Armstrong, charges
that Conn~cticut Corrections Commissioner John
J. Armstrong houses prisoners at WRSP despite
his knowledge that conditions there violate the
Eighth Amendment's prohibition on cruel and
unusual punishments.!
The lawsuit focuses on WRSP's
indiscriminate use of five-point restraints and
electroshock weapons. WRSP prisoners are
routinely placed in five-point restraints for trivial
offenses such as kicking a cell door. Prisoners are
almost invariably left in restraints for 48 hours.
Because they are allowed only infrequent
opportunities to use the toilet, many prisoners
urinate and defecate on themselves while tied to a

restraint table.
Guards at WRSP also shock prisoners with
electroshock weapons when they displease prison
staff. One prisoner was shocked when he verbally
insulted a staff member, another when he refused
an order to kneel. Electroshock weapons inflict a
powerful and painful electric shock and sometimes
leave bum marks on the skin. Connecticut
prisoner Lawrence Frazier died in July 2000 after
being repeatedly shocked by WRSP staff.
The American Correctional Association's
standard on restraints states that "Four/five point
restraints should be used only in extreme instances
and only when other types of restraints have
proven to be ineffective." Standard 3-4183-1,
1998 Standards Supplement. Similarly, federal
courts have repeatedly condemned the use of
immobilizing restraints except as a last resort to
control a prisoner whose behavior poses an
imminent danger ofhann. See, e.g., Hope v.
Pelzer, 240 F.3d 97~,; 980-81 (11 th Cir. 2001)

View of Wallens Ridge State Prison in Big Stone Gap, V A.

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(cuffing prisoner to "hitching post" for two hours
was unconstitutional; policy and practice of
restraining prisoners "for a period oftime that
surpasses that necessary to quell a threat or restore
order is a violation of the Eighth Amendment");
French v. Owens, 777 F.2d 1250, 1253 (7th Cir.
1985) (describing use of restraints for 12 to 24
hours as "outmoded and inhuman" and a
"catalogue of inhumanities"); see also Williams v.
Benjamin, 77 F.3d 756, 763 (4 th Cir. 1996) (noting
that courts have approved "limited" use of fourpoint restraints "as a last resort, when other forms
of prison discipline have failed").
With regard to electroshock weapons,
Amnesty International has noted that "electricity
has long been one of the favored tools of the
world's torturers. Portable, easy to use, and with
the potential to inflict severe pain without leaving
substantial visible marks on the human body,
electroshock stun equipment is particularly open to
abuse by unscrupulous law enforcement officials."
The organization has called on the United States to
suspend the use of electroshock weapons by law
enforcement and corrections agencies. Amnesty
International, Cruelty in Control? The Stun Belt
and other Electro-shock equipment in Law
Enforcement, June 1999, at 1-3. See also Hickey
v. Reeder, 12 F.3d 754, 757-59 (8 th Cir. 1993)
(using stun gun on prisoner who refused to clean
his cell violated the Eighth Amendment); Madrid
v. Gomez, 889 F. Supp. 1146, 1174-75 n. 43 (N.D.
Cal. 1995) (noting that taser inflicts "significant
pain" and raises "questions about significant
health risks").
The ACLU is not alone in its
condemflation of conditions at WRSP. In
February 2001, the State of Connecticut
Commission on Human Rights and Opportunities
called on Commissioner Armstrong to withdraw
all·Connecticut prisoners from WRSP. In May,
Amnesty International echoed this call, saying
reports from WRSP may indicate "a persistent
pattern of institutionalized abuse in Virginia's
supermaximum security prisons."
Commissioner Armstrong's response to the
lawsuit has been to deny all responsibility for

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Fall 2000/ Winter 2001

conditions under which Connecticut prisoners are
held at WRSP. He moved to have the case
transferred to Virginia and to stay all discovery,
but on May 16, 2001, U.S. District Judge
Christopher F. Droney denied these motions, and
ordered Armstrong to answer the complaint within
30 days.
In December 2000, the NPP joined the
ACLU of Wisconsin and a team of Wisconsin
lawyers as plaintiffs' counsel in Jones 'EI v. Berge,
a challenge to the Supermax Correctional
Institution (SMCI) in Boscobel, Wisconsin.
Opened in 1999 in a remote part ofthe state,
SMCI is by far Wisconsin's most expensive
prison, and is designed to subject prisoners to
extreme social isolation and sensory deprivation.
Conditions include 24 hour illumination and "bed
checks" in which prisoners are woken hourly
throughout the night. Prisoners are locked in their
windowless cells for all but four hours a week.
They receive no outdoor exercise. All visits,
except with attorneys, are conducted via video
screen. Some prisoners are allowed only one 6minute telephone call per month. On a recent visit
to SMCI by the prisoners' attorneys, a staff

THE NATIONAL PRISON PROJECT JOURNAL

member boasted that prisoners never even see the
sky.
Such conditions raise serious questions
under the Eighth Amendment. See Keenan v.
Hall, 83 F.3d 1083, 1089-91 (9 th Cir. 1996)
(allegations of no outdoor exercise and 24 hour
illumination stated Eighth Amendment claim);
Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th
Cir. 1988) (prisoners must be allowed at least five
hours of out-of-cell exercise per week); Ruiz v.
Johnson, 37 F.Supp.2d 855,913 (S.D. Tex. 1999),
rev'd on other grounds, 243 F.3d 941 (5 th Cir.
2001) (conditions in administrative segregation
units violate Eighth Amendment; prisoners "suffer
actual psychological harm from their almost total
deprivation of human contact, mental stimulus,
personal property and human dignity"). Courts
have also condemned the placement of mentally ill
or developmentally disabled prisoners in isolated
confinement; one court compared this practice to
"putting an asthmatic in a place with little air to
breathe." Madrid, 889 F. Supp. at 1265; see also
Ruiz, 37 F.Supp.2d at 913-15; Casey v. Lewis, 834
F. Supp. 1477, 1548-49 (D. Ariz. 1993); Langley
v. Coughlin, 715 F. Supp. 522,540 (S.D.N.Y.
1989).
Jones 'EI v. Berge was filed in 2000 in
federal court in Madison by two SMCI prisoners
acting pro se. U.S. District Judge Barbara Crabb
appointed counsel, and on February 15, 2001,
certified the case as a class action. Despite this
ruling, defendants refused to allow class counsel to
meet with their clients, stating that such meetings
would be inconvenient for the prison. On April
10, U.S. Magistrate Judge Stephen L. Crocker
ordered defendants to allow plaintiffs' counsel to
meet with class members at the prison; these
interviews are now ongoing.
Both lawsuits have attracted significant
media attention. On April 23, the Milwaukee
Journal Sentinel, Wisconsin's largest newspaper,
published an editorial titled "Cruel and Unusual
Prison?" The editorial called conditions at SMCI
"disturbing," adding that the lawsuit "raises valid
points about the extreme isolation routinely
practiced in supermax prisons." "At what point

Fall 2000/ Winter 2001

does this kind of isolation and sensory deprivation
simply make things worse, particularly for those
who are already mentally ill?" the paper asked.
"That question deserves to be answered fully and
publicly."
1. After a prison-building binge in the mid-1990s, Virginia
has so much excess capacity at its two supermax prisons that
it rents space to Connecticut, New Mexico, and the District
of Columbia.

DC PRISONER WINS $175,000 IN
CONDITIONS CASE
On January 25,2001, a federal jury in
Washington, D.C. awarded nearly $175,000 to DC
prisoner Lawrence Caldwell in his challenge to
conditions at the District of Columbia's Maximum
Security Facility (MSF) in Lorton, Virginia. The
award included $25,000 each in punitive damages
against the Warden and Deputy Warden of MSF,
where Caldwell was housed until the facility's
recent closure.
Caldwell filed suit pro se in 1997,
challenging the conditions of his confinement in
MSF's notorious Cellblock 3. After the suit .
survived a motion to dismiss (see Caldwell v.
Hammonds, 53 F.Supp.2d 1 (D.D.C. 1999)), the
court appointed the National Prison Project to
represent Caldwell. Director Elizabeth Alexander
and Staff Counsel David Fathi represented Mr.
Caldwell.

To-scale floor plan, used during trial, of Mr. Caldwell's cell.

In his amended complaint, Mr. Caldwell

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alleged that he was held on the mental health tier
of Cellblock 3 for 3 Yz months, although the prison
psychiatrist found that he was not mentally ill.
Conditions on the mental health tier included
nearly constant screaming and feces-throwing by
severely mentally ill prisoners, as well as poor
ventilation, extreme heat, and frequent fires and
flooding. He was then held in other segregation
units (Cellblocks 2 and 4) for over two years, and
then returned to Cellblock 3 for another year. He
was released to general population only after U.S.
District Judge Gladys Kessler ruled that prison
officials had violated the District of Columbia's
Lorton Act by keeping him in segregation after the
prison's Housing Board repeatedly voted to
release him to population.
Caldwell also charged that prison officials
had failed to treat his skin cancer and glaucoma.
After a dermatologist found that he needed surgery
and ordered that he return within a month, prison
officials waited nearly a year before taking him
back to the dermatologist. As a result, Caldwell
required a more invasive and painful form of
surgery to remove a cancerous growth from his
face. Security staff also ignored medical orders
that Mr. Caldwell be provided a broad-brimmed
hat and long-sleeved shirts to protect his skin from
further sun damage. The orders from his
opthalmologist were also ignored.
With the exception of the claim that
conditions in Cellblocks 2 and 4 violated the
Eighth Amendment, after a five-day trial, the jury

Fall 2000/ Winter 2001

found for Mr. Caldwell on all of his claims: that
his transfer to a mental health unit without a
hearing denied him due process under Vitek v.
Jones, 445 U.S. 480 (1980); that conditions in
Cellblock 3, and defendants' failure to treat his
medical conditions, violated the Eighth
Amendment; and that Caldwell's case managers
violated the Lorton Act by failing to schedule
hearings that could have resulted in his release
from segregation.
The jury awarded $1501 against Robert
Wiley, the officer who placed Mr. Caldwell on the
mental health tier; $116,576 against the District of
Columbia, MSF Warden Adrienne Poteat and
Deputy Warden Belinda Watson Barney; $5,200
against the District of Columbia and Poteat; $1.00
each against Case Managers JoAnn Williams and
Rex lliezue; $900 against the District of Columbia,
Poteat, Watson Barney, and Robert Fulton, the
officer who overruled Caldwell's medical orders;
and $25,000 each in punitive damages against
Poteat and Watson Barney.
Following the jury verdict, Elizabeth
Alexander said "This case sends a message to the
District of Columbia Department of Corrections
that the community will not tolerate neglect and
mistreatment. The conditions inflicted on Mr.
Caldwell were dangerous and dehumanizing.
Despite Mr. Caldwell's repeated grievances, no
one from the Department of Corrections took
action to clean up Cellblock 3 or to assure that his
health care needs were met."

Case Law Report: Highlights of Most Important Prison Cas'es
By John Boston
Director, Prisoner Rights Project ofthe NY Legal Aid Society

IU.S. Court of Appeals Cases I
AIDSmisabled/Financial Resourcesmeference
Onishea v. Hopper, 171 F.3d 1289 (11th
Cir. 1999), cert. denied sub nom. Davis v. Hopper,
120 S. Ct. 931 (2000). The HIV-positive plaintiffs
challenged their segregation and exclusion from

4

recreational, religious and educational programs,
under the Constitution and the Rehabilitation Act.
The district court ruled for the defendants across
the board.
Under Arline, a person who poses a
significant risk of communicating an infectious
disease in the workplace is not otherwise qualified
for the job if reasonable accommodation will not

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THE NATIONAL PRISON PROJECT JOURNAL

eliminate the risk. When the adverse event is the
contraction of a fatal disease, the risk of
transmission can be significant even if the
probability of transmission is low: death itself
makes the risk "significant." (1297).
Under this standard the district court was
correct. It found that violence, IV drug use, and
sex may cause blood-to-blood contact, and occur
in unlikely and unexpected places and defy
surveillance. It found that sex and drug use likely
transmit the disease and that "violent exchanges of
blood raise the specter oftransmission." (1299)
The Turner standard does not in terms
apply to statutory rights, but the district court was
"entitled to find on this record" that the prison's
requirements for program participation are
determined in part by legitimate penological
interests, including security and cost. So even if
the district court "was not precisely correct as a
matter of legal theory, determining whether
penological concerns impose requirements for
program participation is not error." (1300)
The district court's finding that defendants'
response is not exaggerated is consistent with
Turner, since plaintiffs' proposed "easy
alternative" is to exclude from programs prisoners
who might react violently to integration ofHIVpositive prisoners, and the record does not support
defendants' ability to assess attitudes and predict
behavior.

Transfers/Federal Officials and Prisons
Wong v. Warden, FeI Raybook, 171 F.3d
148 (2d Cir. 1999). The plaintiff complained that
he was denied a transfer to a Canadian prison
under the",convention on the Transfer of
Sentenced Persons based on his race or nationality
or on his exercise of protected rights. The
government argued that there is no judicial review
ofthe Department of Justice's actions under the
Convention. At 149: "It is well-established that
judicial review exists over allegations of
constitutional violations even when the agency
decisions underlying the allegations are
discretionary. "

Fall 2000/ Winter 2001

PLRA: Screening and Dismissal
Gomez v. USAA Federal Sav. Bank, 171
F.3d 794 (2d Cir. 1999). Dismissal under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim should not be without leave to amend.

PLRA: Judgment Termination, Automatic Stay
Benjamin v. Jacobson, 172 F.3d 144 (2d
Cir. 1999) (en banc).
The PLRA judgment termination provision
applies to consent decrees, since the definition of
"prospective relief' includes all relief other than
compensatory monetary damages, and the
definition of "relief' includes consent decrees. All
constitutional challenges are rejected.
The court "notes its disagreement" with the
panel's view that consent decrees may remain
enforceable in state courts as contracts.
Termination does not mean vacatur. Past consent
decrees are notto be "annulled and stripped of all
past significance or collateral effect."
Immediate termination does not really
mean immediate. Since the statute provides for
findings that can prevent termination, plaintiffs
who so request must receive an opportunity to
show current and ongoing violations of their
federal rights. The district court had postponed
the automatic stay for 60 days consistently with
the statute; these appellate proceedings followed.
The stay period therefore starts to run again on the
day following the issuance of the appeals court's
mandate.

PublicationslDeference
Herlein v. Higgins, 172 F.3d 1089 (8th Cir.
1999). A prohibition on the possession of music
cassettes labelled "parental advisory--explicit
lyrics" is not unconstitutional.

Protection from Inmate AssaultlPre-Trial
DetaineeslMunicipalitieslMedical Care:
Standards of Liability, Deliberate
Indifference/Staffing: Training,
Surveillance/State, Local, and ProCessional
Standards

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THE NATIONAL PRISON PROJECT JOURNAL

Lope.z v. LeMaster, 172 F.3d 756 (10th Cir.
1999). The plaintiff was attacked by other
detainees, complained to jailers, and was then put
back in general population, wher:e he was attacked
as a snitch. He was not taken to a hospital; he was
told "you are still conscious, we don't have to take
you." He was given aspirin. He was later found to
have "severe contusion to the skull with postconcussion syndrome" among other injuries.
There was some evidence of poor training of
jailers.
The Oklahoma Department of Health jail
standards require 24-hour supervision of prisoners
by jailers on the floor or by video/audio
surveillance, and location of posts to permit
monitoring and response to calls for help,
disorders, and emergencies. That evidence
comprises a Jail Inspection Division report noting
deficiencies in staff, backup, training, and
supervision of inmates, in particular the failure to
segregate sentenced from unsentenced prisoners.
There is evidence of the Sheriffs
knowledge of the risk: A subsequent report on a
jail suicide, though not directly probative as to this
incident, contains an admission that the Sheriff
knew the jail was understaffed, tried to comply
with the standards, but the county commissioners
had failed to provide adequate funding. The
Sheriff need not have known about the specific
risk to the plaintiff from his cellmates if he knew
of an obvious, substantial risk to inmate safety.
The plaintiff has made a sufficient ,showing
of an unconstitutional policy of understaffing and
failing to monitor. He has also shown deliberate
indifference in that the county legislature failed to
provide adequate funding, or alternatively because
the Sheriff is the final policymaker and failed to
provide for adequate staffing and surveillance.
The evidence could support an inference
that the person who told the jailer only
unconscious people were taken to the hospital was
the Sheriff, so factual issues precluding summary
judgment exist.
Color of Law/Criminal Prosecution
United States v. Colbert, 172 F.3d 594 (8th

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Fall 2000/ Winter 2001

Cir. 1999). A police officer was convicted of
violating a prisoner's civil rights and sentenced to
27 months in prison after he used his official
authority to get the prisoner out of his cell. (The
prisoner had made derogatory remarks about him.)
At 596: "These events took place in a restricted
area of the jail. Mr. Colbert was allowed to be in
the area only because of his status as a police
officer. On account ofthis same status, he
obtained a key to Mr. Harshaw's cell and had the
authority to remove the prisoner. He also, of
course, had the authority to make arrests." The'
officer was therefore acting under color of law
even ifhe was not on duty and his motivation was
personal.
PLRA: Judgment Termination
Nichols v. Hopper, 173 F.3d 820 (11th Cir.
1999). The judgment termination provision
doesn't violate the Klein rule against legislative
"rules of decision" for pending cases. (This court
rejected the other separation of powers arguments'
earlier in Dougan v. Singletary.)
The court also rejects the claim that the
PLRA strips the courts of their ability to enforce
effective remedies in constitutional litigation.
PLRA: Screening and Dismissal, Mental or
Emotional Injury/Classification/Searches/
Mental Health/Administrative Segregation
Harper v. Showers, 174 F.3d 716 (5th Cir.
1999). The plaintiffs claim about being classified
as an extreme security risk after a successful
escape and unsuccessful attempts was frivolous.
The court buys in to the idea that the
mental/emotional injury provision limits damages,
not claims or actions.
A claim of repeated placement in filthy
cells formerly occupied by psychiatric patients,
and placement near them exposing the plaintiff to
screaming and various forms of deranged
behavior, causing him to lose sleep, is not
frivolous. At 720: "... [S]leep undoubtedly
counts as one of life's basic needs. Conditions
designed to prevent sleep, then, might violate the
Eighth Amendment." Frequent searches with no

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Fall 2000/ Winter 2001

purpose but to harass also may violate the Eighth
Amendment.

a deliberate indifference claim has been rendered
virtually impenetrable." (538)

Medical Care: Deliberate Indifference
Stewart v. Murphy, 174 F.3d 530 (5th Cir.
1999). This is the case of the elderly prisoner who
died of bedsores over a period of several months
while medical staff did next to nothing.
A Dr. Dial treated Stewart for leg swelling,
indicative of congestive heart failure, for five days
and discharged him. The next day he was told that
Stewart had a large decubitus ulcer on his back,
which he had managed not to notice. He ordered
cleaning and dressing of the area and placed him
on the next sick call.
Stewart was readmitted to the prison
hospital under a Dr. Kim, who took cultures from
the bedsores, debrided them several times, and
administered antibiotics and IV fluids. She
ordered that the dressings be changed two or three
times daily and that Stewart be repositioned every
three hours, but acknowledged that due to staffing
problems "the nurses sometimes had difficulty
following all of the orders." (535) She sent him
to a hospital for consultation, but upon his return
did not follow the recommendation that he be
transferred to another facility to receive physical
therapy.
Dr. Kim did, however, find Stewart's
condition serious enough to transfer his care to Dr.
Knutson, who gave no consideration to
transferring Stewart, but gave palliative care
similar to Kim's. He did not read the nurses' notes,
which indicated that Stewart had an infection from
a catheter; he did not see Stewart (nor did any
other doctor) for the four-day Thanksgiving
weekend. When next he saw Stewart, Stewart
"appeared like he was going to die," and he had
him transferred to a hospital two days later. The
doctor who admitted him said he had the worst
bedsores she had ever seen. But the court says
none ofthe doctors' actions amounted to
deliberate indifference.
The dissenting judge says: "If these
appellees are guilty of nothing more than a bit of
innocuous medical malpractice, then the barrier to

Religion/Administrative Segregation: High
Security/Class Actions: Certification of
ClasseslDeference/Cruel and Unusual
Punishment: Proof of Harm/Negligence,
Deliberate Indifference and Intent
In re Long Term Administrative
Segregation, 174 F.3d 464 (4th Cir. 1999). Here,
the Fourth Circuit holds that prison officials can
lock up members of an arguably religious group
(the Five Percenters) indefinitely, based solely on
membership, until they renounce their affiliation.
This was done pursuant to a "Security Threat
Group" policy.
The plaintiffs dispute the underlying facts.
At 470: "But to draw these inferences in the
inmates' favor would tum Turner's command of
judicial deference on its head. The question is not
whether Moore's conclusion was indisputably
correct, but whether his conclusion was rational
and therefore entitled to deference."
The plaintiffs challenge the placement as
not content neutral, since it is based on group
affiliation. But it need only be "unrelated to the
suppression of expression," and it is, since it
"rationally furthers the neutral policy of protecting
prison security and order." (471)
The restrictive conditions of administrative
segregation (23-hour lockup, no radio or TV, five
hours of exercise a week, exclusion from all
programs) do not violate the Eighth Amendment,
since they do not deprive people of a "basic human
need" (food, clothing, shelter, medical care,
safety), and isolation is not unconstitutional.
Indefinite duration (already over three years)
doesn't render it unconstitutional; length oftime is
'''simply one consideration among many' in the
Eighth Amendment inquiry." The defendants are
not deliberately indifferent, since they have.
procedures for periodic visits by medical
personnel and referrals for mental health
treatment, and there is no contention that these
have not been followed.

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AIDS/PrivacyIHomosexuals and
Transsexuals/Qualified Immunity
Powell v. Schriver, 175 F.3d 107 (2d Cif.
1999). The plaintiff alleged that an officer
disclosed that she was an HIV-positive
transsexual. The gratuitous disclosure of an
inmate's confidential medical information as
humor or gossip--the apparent circumstance ofthe
disclosure in this case--is not reasonably related to
a legitimate penological interest, and it therefore
violates the inmate's constitutional right to
pnvacy.
The defendants are entitled to qualified
immunity on the privacy claim. However, they are
not entitled to qualified immunity on the Eighth
Amendment claim.
Access to Courts: Punishment and
Retaliation/Inmate Legal Assistance/Mental
Health Care: Transfer and Admission to
Mental Health Facilities/Food/Sanitation/
Administrative Segregation
Thaddeus-X v. Blatter, 175 F.3d 378 (6th
Cir. 1999) (en banc). The two plaintiffs had an
approved "Legal Assistance Request and
Agreement" under which X would assist Bell with
his legal problems. They complained that prison
officials began to harass them and to try to hinder
them. A badly divided court tries to address
retaliation claims comprehensively.
The court rejects the view that prisoners'
right of court access, like the speech rights of
public employees, is protected from retaliation
only if it involves matters of public concern. It
also holds that the right of court access is limited
to "particularized causes of action--direct appeal,
collateral attack, and § 1983 civil rights actions"
(392), which are always of personal concern to the
pnsoner.
In a retaliation claim like this, however, the
harm suffered is the adverse consequences which
flow from the inmate's constitutionally protected
action. Instead of being denied access to the
courts, the prisoner is penalized for actually
exercising that right. Such injury is sufficient in a
retaliation case to confer standing.

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Fall 2000/ Winter 2001

A retaliation claim essentially entails three
elements: (1) the plaintiff engaged in protected
conduct; (2) an adverse action was taken against
the plaintiffthat would deter a person of ordinary
firmness from continuing to engage in that
conduct; and (3) there is a causal connection
between elements one and two--that is, the adverse
action was motivated at least in part by the
plaintiffs protected conduct.
Plaintiff X's allegation that he was placed
in an area where mentally ill patients are kept,
where prisoners throw human waste and urine at
each other and at staff, there is a constant foul
odor, the prisoners repeatedly flood the gallery and
bang their footlockers, some refuse to bathe or
flush their toilets, and the area is cleaned only
rarely, supports a retaliation claim and states an
Eighth Amendment claim.

PLRA: Attorneys' Fees
Collins v. Montgomery County Board of
Prison Inspectors, 176 F.3d 679 (3d Cir. 1999) (en
banc). The PLRA fees limitations (both the hourly
rate and the limitation based on the size ofthe
judgment) apply to work done after enactment.
The court en banc is equally divided on the
question whether the restriction on hourly rates
and fees as a percentage of the judgment deny
equal protection.
At 684 n.5: There might be "difficult
questions" under the "150% ofthe judgment" rule
in a case where a prisoner "obtains extensive and
important equitable relief and a modest award of
damages." The limitation might not apply in that
case.
PLRA: Exhaustion of Administrative Remedies
Williams v. Norris, 176 F.3d 1089 (8th Cir.
1999). The district judge erred in dismissing for
non-exhaustion when the plaintiff had exhausted
by the time the court ruled.
Grievances and Complaints about
PrisonlDamages: Conditions of Confinement,
Punitive

THE NATIONAL PRISON PROJECT JOURNAL

Trobaugh v. Hall, 176 F.3d 1087 (8th Cir.
1999). The plaintiff filed a grievance contesting
being taken to court early, which was denied; filed
a grievance seeking to appeal the deputy's
decision, which was denied; and filed a grievance
to contest the apparent lack of an appeal process,
also denied. He was then put in isolation for three
days for filing "repeat grievances." The deputy
conceded that this conduct violated the First
Amendment right to petition for redress of
gnevances.
The district court awarded $1.00 in
nominal damages. This was an abuse of discretion
(l089). The court believes $100 a day would be
about right, and the district court also ought to
consider punitive damages.

PLRA: Judgment Termination, Intervention
Loyd v. Alabama Dept. ofCorrections, 176
F.3d 1336 (lith Cir. 1999). The state Attorney
General intervened in a j ail consent decree case
and moved to terminate; the AG was not a party to
the decree.
It was an abuse of discretion for the district
court to refuse to conduct an evidentiary hearing
on current conditions. The fact that there were
court monitor's reports, one only two months old,
does not obviate the need for a hearing.
Use of Force: Restraints/Procedural Due
Process
Key v. McKinney, 176 F.3d 1083 (8th Cir.
1999). The plaintiff was restrained in handcuffs
and leg shackles for 24 hours for throwing water
on a correction officer. Policy prescribed this for
all prisoners caught spitting, throwing objects, or
starting fires. The handcuffs and shackles are
chained together but prisoners are "generally"· able
to take care of their basic bodily functions.
Prisoners are fed "food loaf' while restrained.
The district court found that the policy was
intended to "manage behavior" rather than to
punish and was not malicious and sadistic. There
is no liberty interest in not being shackled. 24
hours in restraints was not atypical and significant
under Sandin.

Fall 2000/ Winter 2001

Religion: Practices, Beards, Hair, Dress
Cofer v. Schriro, 176 F.3d 1082 (8th Cir.
1999). A Rastafarian prisoner's allegations of an
intermittent, unexplained requirement that he cut
his hair states a non-frivolous claim,
notwithstanding decisions that security concerns
might justify requiring him to cut his hair.
Mental Health Care: Psychotropic
Medicationffienial of Ordered CarelMedical
Care: Denial of Ordered Carelln Forma
Pauperis/Appeal/Parties Defendant
Wakefield v. Thompson, 177 F.3d 1160
(9th Cir. 1999). The plaintiff, who took
psychotropic medication, was not provided with it
on his release, even though his prison psychiatrist
had given him a prescription for two weeks worth
of it. An officer said it "wasn't available" and
refused to call the prison medical staff about it
because he was too busy.
At 1164: "We therefore hold that the state
must provide an outgoing prisoner who is
receiving and continues to require medication with
a supply sufficient to ensure that he had that
medication available during the period oftime
reasonably necessary to permit him to consult a
doctor and obtain a new supply."
PLRA: Judgment Termination
Cagle v. Hutto, 177 F.3d 253 (4th Cir.
1999). The district court terminated a 1981
consent decree governing living conditions at
Powhatan prison. Plyler resolves the statute's
constitutionality. The fact that the district court
had made tentative findings of unconstitutionality
before entry of the consent decree in the context of
a motion for a preliminary injunction doesn't help
the plaintiffs, since the district court didn't make
the findings required by the statute. The court
rejects plaintiffs' request to remand for "post hoc
findings." At 258:
Even though a district court is not required
to hold an evidentiary hearing in all cases, it
nevertheless may do so in appropriate,
circumstances. At a minimum, however, a district
court must hold such a hearing when the party

9

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opposing tennination alleges specific facts which,
if true, would amount to a current and ongoing
constitutional violation.

PLRA: Exhaustion of Administrative Remedies
Powe v. Ennis, 177 F.3d 393 (5th Cir.
1999) (per curiam). At 394: "A prisoner's
administrative remedies are deemed exhausted
when a valid grievance has been filed and the
state's time for responding thereto has expired."

Disabled/State Officials and
Agencies/Deference
Amos v. Maryland Dept. ofPublic Safety,
178 F.3d 212 (4th Cir. 1999). The Americans
with Disabilities Act is a legitimate exercise of
Congress's power under Section 5 of the
Fourteenth Amendment. The court declines to
read the ADA standard as limited by the Turner v.
Safley reasonableness standard. To do so would
be to rewrite the statute. The court declines to
strike down the Department of Justice
ADAIRehabilitation Act regulations as applied to
prisons. Because Congress made an express
delegation by directing the DOJ to promulgate
implementing regulations, the court is ordinarily
obliged to defer to DOJ's interpretation of the
statute.

Protection from Inmate AssaultlMunicipalities/
Personal Involvement and Supervisory
Liability
Giroux v. SomersetCounty, 178 F.3d 28
(1st Cir. 1999). The plaintiff was threatened by
another inmate in his housing area. The plaintiff
continued to receive threats from the same
prisoner and his brother and the plaintiff asked for
protective custody. He was placed on cell feed
status, which e~ployees testified was a protective
measure. He was then left in the visiting waiting
area with the brother ofthe prisoner who had
initially threatened him; the brother assaulted and
injured him.
The shift supervisor at the time of the
assault knew that cell feed status was often
protective in nature and part of his job was to

10

Fall 2000/ Winter 2001

review the cell block assignment roster, which
indicated cell feed status, at the start of his shift.
The record "supports the inference that Hartley
was aware of a high probability that Giroux was
vulnerable to attack from another inmate but took
no action despite that awareness." (33)
Other jail employees testified it was the
shift supervisor's responsibility to tell them about
inmates who were being cell fed for protective
purposes. The shift supervisor gave no reason
why he did not or could not have done that. This
record sufficiently supports a claim of deliberate
indifference to withstand summary judgment.

PLRA: Judgment Termination, Prisoner
Release Orders
Berwanger v. Cottey, 178 F.3d 834 (7th
Cir. 1999). A maximum population limit is a
prisoner release order. However, a request to
modify a pre-PLRA order may not be based on the
prisoner release provision because the statute says
"no court shall enter. ..." (836)
The statute calls for "prompt" rather than
"instant" decision after a tennination motion is
filed. By letting more than a year pass without
action, and then tenninating the decree without
making findings under §§ (b)(2) or (b)(3), the
district court erred.
The plaintiffs could ask to have the decree
reinstated, the new bunks removed, and their
occupants released pending decision, but all they
ask for is a prompt decision on their contention
that relief continues to be appropriate. They are
entitled to this much--and within 30 days.
A hearing may not be needed. A monitor
was appointed and perhaps infonnation already in
hand will resolve the motion. If the district judge
can't resolve the matter within 30 days, he should
infonn the chiefjudge of the district court so the
case can be transferred.

Medication/FoodlMedical Care: Standards of
Liability, Deliberate Indifference, Serious
Medical Needs/Personal Involvement and
Supervisory Liability

THE NATIONAL PRISON PROJECT JOURNAL

Fall 20001 Winter 2001

Reed v. McBride, 178 F.3d 849 (7th Cir.
1999). The plaintiff, with a panoply of illnesses,
complained that every Friday for some period of
time, when he returned from hospital treatment, he
could not retrieve his ill until the following
Monday or Tuesday and therefore could not
receive food or medication.
Deprivation of food may violate the Eighth
Amendment depending on the "amount and
duration of the deprivation." (853) A deprivation
might have had more severe repercussions for the
plaintiff, allegedly already infirm, than for others.
The allegation.ofthree to five day deprivations
cannot be dismissed.
Allegations that the plaintiff sent letters of
complaint to the defendant warden and
commissioner were sufficient to support a claim
that they were aware of facts from which the risk
of harm could be inferred; the risk was sufficiently
obvious that they could be found to have drawn
the inference.

Burnsworth v. Gunderson, 179 F.3d 771
(9th Cir. 1999). The plaintiff was convicted of
escape at a disciplinary hearing after he said that if
he weren't placed in protective custody, his only
option would be to "hit the fence." There was no
evidence that he escaped or made any attempt to
do so. The district court concluded that there was
no atypical or significant hardship under Sandin
(he lost no good time and was not placed in
segregation) but directed the expungement of his
conviction on the grounds that there was no
evidence against him.
,The plaintiffs due process rights were
violated even if no cognizable liberty interest was
lost. Superintendent v. Hill and other cases
finding an interest in avoiding arbitrary
punishment only where there is a liberty interest
do not apply where a conviction is totally
unsupported by evidence. Expungement was the
appropriate remedy for the wrong suffered by the
plaintiff.

Procedural Due Process: Disciplinary
Proceedings/Habeas Corpus/PLRA:
Exhaustion of Administrative Remedies;
Mental and Emotional Injury
Jenkins v. Haubert, 179 F.3d 19 (2d Cir.

PLRA: Exhaustion of Administrative Remedies
Harper v. Jenkin, 179 F.3d 1311 (11th Cir.

. 1999). The plaintiff sufficiently exhausted his
administrative remedies by appealing the
disciplinary sanctions imposed on him.
In Spencer v. Kemna, five Justices held
that where habeas corpus is not available to
remedy constitutional wrongs (e.g., when the
petitioner is no longer in custody), § 1983 must be
available. At 27: "Accordingly, we hold that a §
1983 suit"by a prisoner ... challenging the validity
of a disciplinary or administrative sanction that
does not affect the overall length of the prisoner's
confinement is not barred by Heck and Edwards."
In dictum, the court suggests that the
PLRA mental/emotional injury provision may be a
defense to claims of improper disciplinary
confinement.

Procedural Due Process: Disciplinary
Proceedings

1999). Where a grievance procedure allowed
waiver of time limits for filing a grievance based
on "good cause," a prisoner whose grievance was
rejected as untimely and did not apply for waiver
ofthe time limits had not exhausted.

Procedural Due Process: Temporary
ReleaselDamages: Due Process Violations,
Punitive
Kim v. Hurston, 182 F.3d 113 (2d Cir.
1999). Removal from a work release program
deprives a prisoner ofliberty. Young v. Harper is
dispositive, since the conditions of the plaintiffs
work release (living at home, working at a job,
reporting regularly to the work release facility) is
"virtually indistinguishable from either traditional
parole" or the pre-parole program in Young.
There is no procedural right to prior notice
of physical removal from work release; learning of
a positive urinalysis result constituted,an
emergency justifying immediate removal.

11

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Medical Care: Standards of Liability-Deliberate Indifference
McElligott v. Foley, 182 F.3d 1248 (11th
Cir. 1999). The plaintiff had had burning
abdominal pains for five months before admission
to jail. In jail it got worse and he was placed on a
liquid diet and given Pepto-Bismol. The jail
doctor, who spent three or four hours a week at the
jail, did not see him for several weeks, just
prescribed by telephone. When the doctor did see
him, he prescribed palliative treatment. The
plaintiffs complaints got worse and he continued
to receive only palliative treatment, and not much
of that. The doctor, who had been waiting for
months for the plaintiffs records from the VA
hospital, performed no further diagnostic tests,
even though the plaintiff continued to complain of
pain and was losing weight. After about six
months, a CT scan was ordered, which showed an
intestinal obstruction; he was then hospitalized,
and the next day was prematurely released from
the jail and discharged from the hospital without
diagnosis two days later. He was then admitted to
the VA Hospital and was diagnosed with terminal
cancer.
The doctor cannot be held liable for failing
to diagnose colon cancer; it may have been
extremely negligent, but no more. However, the
record could support a finding of deliberate
indifference to the plaintiffs "medical need for
further diagnosis of and treatment for the severe
pain he was experiencing." (1256-57) The Eighth
Amendment may be violated by failure to treat
pain. A jury could conclude that the defendants
knowingly "took an 'easier but less efficacious
course ii>ftreatmentlll reflecting deliberate
indifference. The multiple delays in the doctor's
even seeing the plaintiff could be found to be
deliberate indifference, as could the failure to
alleviate pain or to monitor plaintiffs condition
between the time a CT scan was ordered and the
arrival of the results.
Medical Care/Class Actions: Conduct of
Litigation/Qualified Immunity

12

Fall 2000/ Winter 2001

Rouse v. Plantier, 182 F.3d 192 (3d Cir.
1999). The plaintiff class of past, present, and
future insulin-dependent diabetic prisoners sought
injunctive relief and damages concerning their
medical care. The district court denied summary
judgment to defendants and they appealed on
qualified immunity grounds.
The district court erred in "concluding on a
wholesale basis" that plaintiffs had alleged an
Eighth Amendment violation. Some diabetics are
stable and some are unstable, and they require
different levels of care. At 199: "On remand,
therefore, the Court should address the specific
needs of each such group.... Then, the District
Court should consider the appropriate level of care
due under the Eighth Amendment." Only after
this is done should the defendants' actions with
respect to each subgroup be considered under the
Eighth Amendment.
The court cautions that in the unusual
context of a class action for damages under the
Eighth Amendment, the court must approach each
defendant's liability to each plaintiff in the same
manner as if the plaintiff had sued the defendant
separately.

PLRA: Three Strikes Provision
Smith v. District ofColumbia, 182 F3d 25
(D.C.Cir. 1999). The plaintiffwas denied IFP
status under the three strikes provision.
Dismissals count as strikes if the time for appeal
has expired as ofthe time of filing ofthe action in
which the three strikes provision is asserted.
PublicationslRehabilitationlDeference
Waterman v. Farmer, 183 F.3d 208 (3d
Cir. 1999). The plaintiffs, "convicted pedophiles"
held at the Adult Diagnostic and Treatment
Center, which is operated solely for housing and
rehabilitating sex offenders who have exhibited
behavior that is "repetitive and compulsive,"
challenged a New Jersey statute banning "sexually
oriented and obscene" materials from that facility.
The district court struck down the statute.
Several weeks after appellate argument, the
defendants advised the court that the state had

THE NATIONAL PRISON PROJECT JOURNAL

promulgated regulations narrowing it. They
limited "associated anatomical area" to mean
"exposed or unclothed genitalia or female breasts";
"sexual activity" to mean "actual or simulated
ultimate sexual acts". Materials are not considered
"sexually oriented" unless they are predominantly
oriented to such descriptions or displays on a
routine or regular basis, or the publication
promotes itself based upon such depictions in the
case of individual one-time issues.
The district court erred in holding the
statute vague and over-broad without first
considering whether it was rationally related to a
legitimate penological interest. The state has a
legitimate penological interest in rehabilitating
dangerous and compulsive sex offenders. The
district court erred in concluding from the lack of
relevant legislative history that rehabilitation was
not the true purpose of the statute. The statute is
neutral because its goal of rehabilitation is
"unrelated to the suppression of expression." The
statute has a "valid, rational connection" to its
goal. This standard is similar to rational basis
review. The district court's finding that plaintiffs'
psychological experts were more convincing than
defendants' was insufficient to support relief
absent a conclusion that defendants' experts'
opinions were irrational or unreasonable.

Religion: Practices, Diet/Deference/Appeal!
Qualified Immunity/Magistrates/Damages:
Intangible Injury
Makin v. Colorado Dept. ofCorrection,
183 F.3d 1205 (10th Cir. 1999). The plaintiff
claimed improper interference with his ability to
fast during Ramadan because of the schedule of
meal delivery in punitive segregation; defendants'
Ramadan procedures were not extended to
segregation.
Defendants violated plaintiffs right to
observe Ramadan by failing to accommodate him
with their meal schedule. (The court emphasizes
that the defendants defined the issue as the right to
observe Ramadan, not some broader right of
religious exercise.) He was able to fast, but only
by refraining from eating two of three meals each

Fall 2000/ Winter 2001

day, thereby (as the district court put it)
"substantially diminish[ing]" his "qualitative
spiritual experience." (1212) This argument "is
founded on the unacceptable notion that prison
authorities may burden the observance of religious
practices for no legitimate reason at all" and
"makes the question ofthe legitimacy of
government action dependent on the personal
strength of the individual affected." (1212) The
district court was justified in concluding that the
bUrden of accommodating the plaintiff was
minimal, in the absence of actual evidence
concerning the difficulty of accommodating
prisoners in segregation generally.
This is an unusually plaintiff-favorable
application of the Turner v. Safley standard in that
it holds prison officials to the weaknesses oftheir
own record and arguments just like other litigants.

Mental Health Care/Pre-Trial
Detainees/Negligence, Deliberate Indifference,
and Intent/Municipalities
Sibley v. Lemaire, 184 F.3d 481 (5th Cir.
1999). The plaintiff engaged in floridly bizarre
behavior (like reading the Bible upside down).
After a doctor who noted this said that he was "on
the list" at Mental He.alth and really needs to go
there, he was put in leg shackles either to punish
him for disruptive behavior or to protect him, then
was shackled in the nude, at which point he
plucked out his eyes. It took an hour for him to be
taken to a hospital.
The district court should have first
determined whether a specific employee had acted
with deliberate indifference before reaching the
question of whether the prison's policy was
reasonably related to a legitimate government
objective. The deputies could be found negligent,
but not deliberately indifferent, for not calling for
medical assistance.

Procedural Due Process: Administrative
Segregation and Disciplinary Proceedings
Hatch v. District ofColumbia; 184 F.3d
846 (D.C.Cir. 1999). The plaintiff spent more
than seven months in segregation after

13

THE NATIONAL PRISON PROJECT JOURNAL

proceedings that combined elements of
administrative and disciplinary segregation. His
disciplinary charges were dismissed for procedural
reasons, then he was retained in administrative
segregation by the Housing Board, then his
disciplinary charges were adjudicated
notwithstanding that they had been dismissed, and
he was sentenced to 14 days of "adjustment
segregation"; after 60 days, the Housing Board
recommended his return to general population, but
that decision was not implemented for four more
months.
The court does not decide whether
Sandin's test "supplements or supplants" (853)
Hewitt's, since the Hewitt state-created liberty
interest test is met by regulations setting out four
circumstances in which administrative segregation
may be imposed.
The court held that due process is required
when segregative confinement imposes an
"atypical and significant hardship" on an inmate in
relation to the most restrictive conditions that
prison officials, exercising their administrative
authority to ensure institutional safety and good
order, routinely impose on inmates serving similar
sentences. These conditions included the usual
conditions of administrative segregation at Lorton.
They also included more restrictive conditions at
other prisons if it was likely both that inmates
serving sentences similar to appellant's will
actually be transferred to such prisons and that
once transferred they will actually face such
conditions. Length of stay must also be
considered in the "atypical and significant"
inquiry, as must the length of the sentence the
prisoner is serving.

Pre-Trial DetaineeslMedical Care: Standards
of Liability, Deliberate Indifference, Serious
Medical Needs
Olabisiomotosho v. City o/Houston, 185
F.3d 521 (5th Cir. 1999). The plaintiff was
arrested and arrived at the police station having an
asthma attack. She asked to see a doctor and was
told that the clinic was closed. She said she was
not medically screened; the clinic assistant on duty

14

Fall 20001 Winter 2001

claimed that he did screen her, even though there
was no record to that effect. In court the next day,
she could not stand up. The judge, on hearing her
story, said the clinic was never supposed to be
closed and ordered a guard to take her there for
treatment. He did not; he put her in a holding cell
and led her to an eating area, where she fainted,
and was subsequently sent to an emergency room,
where she lapsed into a coma, required a
respirator, and temporarily lost her eyesight.
Under Fifth Circuit law, because this case
involved an "episodic act or omission," individual
liability is governed by the subjective deliberate
indifference standard and municipal liability by
the objective deliberate indifference standard
(though only if subjective deliberate indifference
is found on the part of an individual employee).
The plaintiffs medical needs were not
serious at the time she told the police officer
defendants she had asthma and that they were
walking too fast, and she was wheezing and
experiencing shortness of breath. They were?
serious at the time she was "coughing really bad
and wheezing really loud" and asked to go to the
clinic, and the time when she couldn't stand up in
court.
The police officers couldn't be found
deliberately indifferent, since one of them got her
inhaler for her. The clinic assistant also cannot be
found deliberately indifferent, since the only direct
evidence of his mental state is his own affidavit,
which contains no evidence that he knew of a risk
to the plaintiff or deliberately disregarded a risk.

Religion: Practices/PLRA: Attorneys' Fees
Chatin v. Coombe, 186 F.3d 82 (2d Cir.
1999). The Muslim plaintiff is required to pray
and perform rakat (the ritual movements of
Muslim prayer) five times daily at times
depending on the season. A facility memorandum
forbade "demonstrative prayer" anywhere other
than individual cells or designated religious areas.
The plaintiff performed modified rakat in the yard
in an area where no one else was present. He was
then given a misbehavior report and keeplocked
for praying in the yard.

THE NATIONAL PRISON PROJECT JOURNAL

The rule under which the plaintiff was
disciplined states in its entirety that "[r]eligious
services, speeches or addresses by inmates other
than those approved by the Superintendent or
designee are prohibited." The district court held
the rule unconstitutionally vague, and the appeals
court affirms. The correct standard is first,
whether the statute gives the person of ordinary
intelligence a reasonable opportunity to know
what is prohibited, and second, whether the law
provides explicit standards for those who apply it.
The rule is vague as applied because it
does not provide reasonable notice that "solitary,
silent, demonstrative prayer" is prohibited. The
fact that there were a prison directive and a
memorandum saying "no prayer in the yard" did
not provide adequate notice because the plaintiff
testified to his knowledge that some officers
permitted silent prayer and some did not. In
DOCS' administrative scheme, a facility
memorandum cannot create a regulation stricter
than the one promulgated by DOCS. The rule also
lacks sufficiently explicit standards for those who
apply it.

Negligence, Deliberate Indifference and
Intent/Class Actions: Conduct of Litigation and
Certification of Classes/Jury Instructions and
Special Verdicts/Trial
Blyden v. Mancusi, 186 F.3d 252 (2d Cir.
1999). The court reverses the jury award in the
Attica rebellion class action. Hudson [v.
McMillian} does not limit liability to that subset of
cases where "malice" is present. Rather, Hudson
simply makes clear that excessive force is defined
as force not applied in a "good-faith effort to
maintain or restore discipline." Because decisions
to use force are often made under great pressure
and involve competing interests, the good-faith
standard is appropriate.
Supervisors may be held liable for direct
participation; for failing to remedy a wrong after
learning ofthe violation through a report or
appeal; for creating a policy or custom under
which unconstitutional practices occurred; for
allowing such a policy or custom to continue; or

Fall 2000/ Winter 2001

for being grossly negligent in managing
subordinates who caused the unlawful condition or
event.
The district court's bifurcation ofthe case
into liability and damages phases, both to be
conducted before juries, violated the Seventh
Amendment because both juries were asked to
determine whether the same acts constituted
"reprisals." Thus the damages jury reexamined the
verdict ofthe liability jury.
The court questioned how, with regard to
this particular class, common issues of law and
fact predominated over individual ones. The court
directs that the case be expedited on remand.

Privacy/Rehabilitation
Doe v. Sauer, 186 F.3d 903 (8th Cir.
1999). The plaintiff was denied parole for
refusing to take a sexual offender treatment
program, which he did because he refuses to admit
guilt concerning any act of sexual abuse, including
his offense of conviction. He contended that the
requirement that he admit guilt for uncharged
offenses violated the Fifth Amendment right
against self-incrimination.
The plaintiff provided no evidence to
support his claims, and even if he had, he would
lose. Prison officials may constitutionally deny
benefits to a prisoner who invokes the privilege
against self-incrimination to refuse to make
statements necessary to his rehabilitation, as long
as the officials based their denial on the prisoner's
refusal to participate in rehabilitation, not the
invocation of the privilege. Evenifthe Parole
Board denied parole based on the plaintiffs
program refusal (which it denied doing), the denial
was based on refusal of rehabilitation and not on
invocation of the privilege.
Pre-Trial Detainees/Use of Force: Chemical
Agents/Suicide Prevention
Lambert v. City o/Dumas, 187 F.3d 931
(8th Cir. 1999). The decedent was arrested for
public intoxication; there was a fight when he was
booked, resulting in his being sprayed with pepper
spray or other chemical restraint. The officers

15

-...

THE NATIONAL PRISON PROJECT JOURNAL

carried him to a cell and sprayed him again. Later,
another officer told him to quiet down or he would
"get some more," and then several officers went
back to the cell "where another fight occurred" and
the plaintiff was sprayed again. After that, nobody
paid attention to him for the next three hours, and
he hanged himself.
Actual injury is required to sustain a claim
of excessive force, and is supplied by the existence
of a small cut of the eyelid and small scrapes of
the knee and calf. The defendants are entitled to
qualified immunity for the plaintiffs suicide
because there is no evidence showing that they
were actually and subjectively aware of the risk of
suicide.

Grievances and Complaints about
Prison/Protection from Inmate Assault/PLRA:
Mental or Emotional Injury/Pro Se Litigation
Jones v. Greninger, 188 F.3d 322 (5th Cir.
1999). Prisoners claiming retaliation must allege
"(1) a specific constitutional right, (2) the
defendant's intent to retaliate against the prisoner
for his or her exercise of that right, (3) a retaliatory
adverse act, and (4) causation." The plaintiff
alleged retaliation for his filing of grievances that
limited him to five hours of law library time a
week. However, such a limit does not deny court
access, and the plaintiff therefore has no retaliation
claim. (Wrong. Retaliation for the exercise of a
constitutional right need not itself be
unconstitutional, as the court itself suggests in the
phrase "a retaliatory adverse act.") The district
court properly dismissed with prejudice.
Pre-Trial Detainees/PublicationslDeference
Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.
1999) (en banc), cert. denied, 120 S.Ct. 1419
(2000). Ajail policy forbade prisoners from
possessing "sexually explicit" materials, defined as
"personal photographs, drawings, and magazines
and pictorials that show frontal nudity." The
plaintiff was denied Playboy under the policy.
The policy is upheld under the Turner standard.
The policy meets the "valid, rational
connection" requirement of Turner. It "is

16

Fall 2000/ Winter 2001

expressly aimed at maintaining jail security,
rehabilitating inmates and reducing sexual
harassment of female detention officers." These
are all legitimate goals, except for rehabilitation in
connection with pre-trial detainees in this mixed
population (1059 n. 1). The policy is also neutral,
since it furthers important or substantial interests
unrelated to the suppression of expression. Prison
officials need only show that they "might
reasonably have thought that the policy would
advance its [sic] interests." (1060) Since prisoners
have used nude photographs to draw anatomical
comparisons with the significant others of other
inmates, leading to fights and disturbances, and
with female staff members, and to masturbate
openly and otherwise sexually harass them, the
connection between the policy and defendants'
purposes is rational.

Protection from Inmate Assault/PLRA:
Exhaustion of Administrative Remedies
Snider v. Dylag, 188 F.3d 51 (2d Cir.
1999). The plaintiff said he was assaulted by other
prisoners because the defendant officer had
previously announced that it was "open season" on
him. At 55: "IfDylag did, in fact, declare 'open
season' on Snider, indicating to other inmates that
their abuse of Snider would be unimpeded by
prison officials, deliberate indifference to Snider's
safety would be obvious." The officer could be
held liable even ifhe was not actually present at
the assault.
Communication and Expression: Group
Activity/Inmate Legal Assistance
Nicholas v. Miller, 189 F.3d 191 (2d Cir.
1999) (per curiam). The plaintiff complained of
prison officials' denial of his request to form a
Prisoners' Legal Defense Center to disseminate
information to the public and media, to lobby state
and federal government, and to provide legal
assistance to selected prisoners. Initially prison
officials said that this request "conflicted with an
already existing group and would thus result in
duplication of services." Later, an official not
involved in the initial decision said that it would

THE NATIONAL PRISON PROJECT JOURNAL

"undermine the safety and security" ofthe prison,
would "foster, and perhaps even instigate,
adversarial conflicts" within the facility and "incite
collective subversive activities."
Under the Turner standard, summary
judgment for defendants was improper. The
district court failed to address the Turner factors.
The plaintiff has questioned the validity ofthe
prison's asserted interest in avoiding duplication of
services because prison officials never identified
the inmate group providing the same service, and
has challenged the stated security concerns as
being unrelated to the denial of his application,
raising genuine issues of fact. The defendants are
entitled to qualified immunity against the
plaintiffs damage claims.

Mootness/Transfers/Religion: Practices
Smith v. Hundley, 190 F.3d 852 (8th Cir.
1999). The plaintiff complained he was denied
items needed for the practice of his Seax-Wicca
faith (robe, rune set, tarot cards, pentacle, etc.).
The district court ruled that defendants' denial of
these based on concerns about plaintiffs
possessing them in his cell did not satisfy the
Turner standard since other prisoners were given
access to similar materials in the chapel.

U.S. District Court Cases
Transportation to Court
Hawks v. Timms, 35 F.Supp.2d 464 (D.Md.
1999). The plaintiff sued over excessive force by
police officers. He is at Lewisburg in
Pennsylvania and wants to attend his trial in
Maryland. Request granted. The plaintiffs claim
will depend entirely on his own testimony and
credibility; appearing by affidavit or deposition
will put him at a serious disadvantage. The
Marshal says that bringing him 135 miles will not
be excessively burdensome. The court regularly
has prisoners produced in court for criminal and
civil proceedings. Since the plaintiff has
completed 5 years of a 26 year sentence, a stay is

Fall 2000/ Winter 2001

not reasonable. The trial is only scheduled to take
3 days and the plaintiff need not be brought far.

Correspondence-Legal and OfficiaI/Medical
Care: Staffing/Pendent and Supplemental
Claims-State Law in Federal Courts
Lewis v. Sheahan, 35 F.Supp.2d 633
(N.D.Ill. 1999). At 636 n. 3: the PLRA
mental/emotional injury provision does not bar the
plaintiffs access to courts claim; the question is
not whether there was physical injury but whether
the plaintiff suffered legal injury to actual or
contemplated litigation.
Judicial Disengagement/PLRA: Prospective
Relief Restrictions, Judgment Termination/
Women/Equal Protectionffieference
Glover v. Johnson, 35 F.Supp.2d 1010
(E.D.Mich.1999). On remand from the Sixth
Circuit, the court decides the merits of defendants'
motion to terminate the judgment in this gender
discrimination case. The motion antedated the
PLRA.
The "parity of treatment" standard applied
in the earlier proceedings in this case is overruled
by Turner v. Safley; the "reasonable relationship"
standard now governs. The court does not reopen
its prior findings of a facial gender classification
or that male and female prisoners are similarly
situated (rejecting the "not similarly situated"
approach of Klinger et al. for that reason).
The court finds educational, vocational,
and apprenticeship opportunities to be comparable
for female prisoners. The court rejects plaintiffs'
argument that it must examine the quality ofthe
degree programs offered to male and female
prisoners absent an allegation that courses offered
are a sham. The court attributes its unwillingness
to examine this issue to the Turner deference
principle. There are 17 vocational programs
offered to men and seven to women, but this is
sufficiently comparable; the six programs most
frequently offered to men are offered to all the
women; enrollment rates per capita are similar.
(No single men's prison offers more than six
vocational programs.) The disparities are

17

THE NATIONAL PRISON PROJECT JOURNAL

acceptable under Turner, since strict comparability
would mean that some of the women's facilities
would have to provide more programs than they
could reasonably support. As to apprenticeships,
there are 12 programs for men and seven for
women, but all women who seek apprenticeships
get them and only a fraction of men do. A strict
parity requirement would be contrary to Turner.
For similar reasons the existence of small OJT
programs for men but not women does not deny
equal protection.

Use of Force/Summary Judgment
Sanders-El v. Spielman, 38 F.Supp.2d 438
(D.Md.1999). The plaintiff said he was kicked
and stomped by three officers while a fourth
turned his back. The defendants said he slipped
and fell. There is a factual dispute precluding
summary judgment.
The defendants argued that plaintiffs
injuries were de minimis because his medical
records indicated a small ecchymotic area under
the eye, swelling over the left elbow, and
tenderness around his ribs, wrists, and elbow, and
that he complained of elbow pain almost two
months later. The court distinguishes the Fourth
Circuit case of Taylor v. McDuffie on the ground
that in that case, there was clearly a reason for
some force to have been used.
Pre-Trial DetaineeslWork Assignments
Ford v. Nassau County Executive, 41
F.Supp.2d 392 (E.D.N.Y. 1999). The plaintiff
said he was forced to serve without payment as a
"food c'i!;rt worker" under threat of discipline.
The court denies summary judgment to
defendants on the plaintiffs claim of an official
policy of making pre-trial detainees work, since it
is difficultto believe that he would have been
threatened with punishment if there were not a
policy in place.
The forced work did not deny due process
under Wolfish because there was no evidence of
intent to punish or that the practice was excessive
in relation to its legitimate purpose of getting the
food served.

18

Fall 2000/ Winter 2001

The plaintiff had no Thirteenth
Amendment claim; such a claim requires a
showing of "compulsory labor akin to African
slavery which in practical operation would tend to
produce like undesirable results." (401, quoting
Butler v. Perry, 240 U.S. 328, 332 (1916))
Crediting the plaintiffs claim would trivialize
slavery.

Pre-Trial DetaineeslMedical Care/Personal
Involvement and Supervisory Liability/
Municipalities/Judicial and Prosecutorial
Immunity/State Officials and Agencies
Wilson v. City afChanute, 43 F.Supp.2d
1202 (D.Kan. 1999). The decedent was arrested.
He was allowed to keep his prescription
medications and took a lot of Valium in the course
of his initial court proceedings. As his condition
deteriorated, and was observed by police and other
official personnel, they talked about taking him to
a hospital but didn't do anything; rather, they
contrived to release him on his own recognizance'
even though the judge had set bail. They sent him
home and he died.
Several officers who observed the
decedent's condition and did nothing could be
found deliberately indifferent. Evidence of one
other detainee who had been taken directly to jail
from the police station without receiving medical
care, and of a letter from the county sheriff to the
police chief expressing concern about receiving
prisoners from the police who needed medical
attention, was "evidence of actual notice and
acquiescence with respect to a practice of denying
necessary medical care to detainees" (1213) as to
the police chief, and cause for denial of summary
judgment to him. The evidence of the police
chiefs liability "is sufficient to show notice to [the
police chief] acting for the city."
Pre-Trial Detainees/Privacy/False
Imprisonment/Chemical AgentslUse of Force:
Restraints/Personal Involvement and
Supervisory LiabilitylMunicipalities/Pendent
and Supplemental Claims; State Law in
Federal CourtslIndemnification and Insurance

THE NATIONAL PRISON PROJECT JOURNAL

Moore v. Hosier, 43 F.Supp.2d 978 .
(N.D.Ind. 1998). The plaintiff said he was beaten
by officers; the defendants said he was beaten by
one officer, who was fired and recommended for
criminal investigation. He was allegedly unruly,
was gassed with pepper spray and then strapped
into a restraint chair and carried to the shower,
where he allegedly continued to struggle and was
gassed again and beaten some more while in
restraints.
When an officer metes out unconstitutional
punishment, bystanding officers have an
affirmative duty to act to prevent the violation if
they have an opportunity to do so. On these facts,
plaintiffs' claims against the bystanders narrowly
survives their summary judgment motion.
Use ofthe pepper spray and the restraining
chair in the bathroom were used to subdue the
uncooperative plaintiff and not as punishment and
are not actionable as assault and battery.
The officer who most seriously beat the
plaintiff acted in an unauthorized manner, but may
still have acted within the scope of his
employment under Indiana law, since his attack
was not "divorced in time, place, and purpose"
from the use of force in subduing the plaintiff,
which clearly was within the scope of officers'
employment.

PLRA: Three Strikes Provision
Ayers v. Norris, 43 F.Supp.2d 1039
(E.D.Ark. 1999). This petition for habeas corpus
concerning the parole process is construed as a §
1983 action by the court. The case is subject to the
three strikes provision even though it was filed as
a habeas petition; litigants can't escape § 1915(g)
by mislabelling their pleadings. The court
declines to address the claim that his prior
dismissals weren't really frivolous.
Under Lyons, the plaintiff has standing to
challenge § 1915(g) because he has less than $150
and therefore can't proceed if the statute is applied.
Since his constitutional challenge is based on the
right to court access, he must show actual or
threatened injury. He has done this, since he is
trying to vindicate a fundamental constitutional

Fall 2000/ Winter 2001

right via § 1983, and denial ofIFP would actually
injure him by barring him from court. The court
rejects the proposition that prisoners aren't barred
from court, they merely have to be frugal so they
can pay their fees, since "prisoners often have little
if any money, and there is no guarantee that they
will have income while in prison." (1049)
"Although in forma pauperis status is not a
right, it is a means for ensuring that an indigent
prisoner is guaranteed his fundamental right of
court access...." For these reasons strict scrutiny
is applied. It is too narrow in that it does nothing
to reduce the frivolous filings of non-indigent
prisoners.... The provision is too broad in that it
may bar non-frivolous actions of indigent
prisoners." The provision therefore denies equal
protection.

Hazardous Conditions and Substances/
Personal Involvement and Supervisory
Liability/Statutes of Limitations/Pro Se
Litigation
Crawfordv. Coughlin, 43 F.Supp.2d 319
(W.D.N.Y. 1999). The plaintiff complained that
he was exposed to dangerous chemicals in a prison
industrial shop because dust masks ran out and
were not replaced, goggles were supplied only
intermittently, he was never supplied with work
gloves, and he wore the same clothes to work as
he did in general population.
The plaintiffs alleged injury, the risk of
future illness resulting from exposure to toxins, is
actionable under Helling. The allegation that the
plaintiff was never provided any safety equipment
and did not receive any safety instruction
concerning toxic substances raises a factual issue
barring summary judgment for defendants on the
question of deliberate indifference.
Classification: Race/PLRA: Mental or
Emotional InjurylDamages/Summary
JudgmentlPersonal Involvement and
Supervisory Liability
Mason v. Schriro, 45 F.Supp.2d 709
(W.D.Mo. 1999). The plaintiff alleged racial
segregation in cell assignments. His allegation that

19

THE NATIONAL PRISON PROJECT JOURNAL

this policy is outlined in written policies and
procedures sufficiently alleges the personal
involvement of the Directors of the Department of
Corrections and the Division of Adult Institutions.
Another high-ranking defendant is retained for the
same reason and in addition because he responded
to the plaintiffs grievance appeal and defended the
policy.
The defendants failed to show that using
race in housing assignments served a compelling
state interest. They said that in the particular
prison (a reception and diagnostic center), the
large volume of cell assignments and changes and
the need to make them quickly, combined with the
lack of time to question prisoners about their
preferences, justified using race as an indicator of
compatibility. However, they did not provide
specific evidence of security dangers resulting
from failure to segregate or of alleviation of
dangers by making same-race assignments.
Defendants moved for summary judgment
under the mental/emotional injury provision of the
PLRA. The court decided that it is highly unlikely
Congress would have intended to foreclose a
damage remedy in such cases. Such interpretation
would raise "grave constitutional concerns. Even
if the mental/emotional injury provision applied to
the plaintiffs' claims for compensatory damages,
they would not apply to the nominal damages
claim. The court relies on Carey v. Piphus for this
conclusion. The defendants argued that even if the
action wasn't barred, summary judgment should be
granted as to compensatory damages if the
plaintiff didn't produce proof of compensable
injury. Tpe court rejects this argument because
such injury isn't an essential element of an equal
protection claim.

HIVlMedicationlDisabled/Pre-Trial Detainees
McNally v. Prison Health Services, 46
F.Supp.2d 49 (D.Me. 1999). The HN-positive
plaintiff was arrested and jailed for three days. He
repeatedly told jail personnel that he was on an
HN medication protocol, had missed doses, and
needed his medications. He received none even
though PHS had his records from a prior

20

Fall 20001 Winter 2001

incarceration. PHS claimed that it had policies to
avoid interruption of medication, but that the
nurses on duty thought it could be dangerous to
restart medications after missed doses.
Defendants were subjectively aware of the
plaintiffs serious condition; he repeatedly
requested it from arresting officers and from
nurses, and PHS knew of his HN status and his
prescriptions. He was also suffering from chills,
fever, night sweats, and flu-like symptoms.
This is not a disagreement over proper
medical treatment. PHS said it chose to check out
the plaintiffs viral load before restarting his
medication. However, given his symptoms and
his treating physician's advice to start the
medication immediately, the fact that it wasn't
clear waiting for the viral load test was actual
policy, and the questions as to whether that is
really the reason the medication was not
immediately started, there is a material question of
fact barring summary judgment.
The plaintiffs allegation that he was not
provided medication for HN while other detainees
were given medication immediately for other
illnesses stated a claim under the Americans with
Disabilities Act.

Pre-Trial DetaineeslHeat and
VentilationlMunicipalities/Medical
Care/Personal Involvement and Supervisory
Liability/Procedural, Jurisdictional and
Litigation Questions
Anton v. SheriffofDupage County, Ill., 47
F.Supp.2d 993 (N.D.IlI. 1999). The plaintiff tried
to commit suicide and he was placed naked in a
rubberized cell on suicide watch (every 15
minutes). He alleged that he got very cold and
was ridiculed when he complained; he requested
medical attention and received it only after two
hours, after he reminded the defendant officers
that failure to provide medical attention to a
prisoner is a felony; a nurse arrived, found his
temperature abnormally low and gave him a
blanket; the officers took it away after she left,
giving it back only after he started crying.

THE NATIONAL PRISON PROJECT JOURNAL

The facts pled by the plaintiff sufficiently
allege a claim for deprivation of adequate shelter.
Although temporary exposure to cold does not
necessarily violate the Constitution, the fact that
the plaintiff was naked and had no way to protect
himself, that the guards responded with jeers and
laughter, that his body temperature had fallen
below normal, and that the guards failed to take
other measures to prevent his exposure supported
a finding of unconstitutionality.
Allegations that the plaintiff informed the
guards ofthe cold and they responded with jeers
and laughter could sufficiently support a finding of
deliberate indifference. The guards' removal of
the blanket given to the plaintiff by a nurse after
she measured his body temperature below normal
constituted deliberate indifference to his serious
medical needs, since the defendants must have
known the severity of the plaintiffs circumstances:
naked, with a temperature three decrees below
normal, with no other method of preventing
exposure to the cold.
The guards are not entitled to qualified
immunity; the right to adequate heat and medical
attention is clearly established. The plaintiffs
conclusory allegations of conspiracy are
sufficiently supported by the totality of the facts to
allege an agreement between the guards to deprive
him of adequate shelter and medical treatment and
overt acts in furtherance of that end.

Disabled/State Officials and Agencies/
Damages: Conditions of Confinement,
Punitive/Jury Instructions and Special Verdicts
Beckford v. Irvin, 49 F.Supp.2d 170
(W.D.N.Y.. 1999). The wheelchair-bound plaintiff
was transferred to a prison that had a wheelchairaccessible medical unit, and was placed in the
Mental Health Unit because the cell was bigger
and his wheelchair fit in it. Then they took away
his wheelchair. Then he performed various selfdestructive acts and was moved to SHU, where he
did not have access to his wheelchair. When
shower time came, the guards would open his cell
door, but he couldn't get to the shower without his
wheelchair. This was designated a refusal to take

Fall 2000/ Winter 2001

a shower. He went without a shower for 32 days.
Similarly, at recreation time, his door was opened,
but he was not permitted his wheelchair. He had
bedsores. At one point, he was placed in a cell
where he could only reach the toilet to get water
unless he had a cup, but he was not permitted a
cup. He was extracted from his cell at one point to
remove his wheelchair; he was then shackled hand
and foot and left face down on a shower floor,
with the water intermittently turned on and off, for
about 20 minutes.
A jury returned a verdict of $0 in
compensatory damages on the Eighth Amendment
claim, $125,000 in compensatory damages on the
ADA claim, and $25,000 in punitive damages on
the Eighth Amendment claim against two
defendants.
The plaintiff sufficiently showed deliberate
indifference on the part of the Deputy
Superintendent for Administration and the
Superintendent through testimony from himself
and various prison officials; a prisoner's testimony .
that he filed grievances on the plaintiffs behalf; a
former PLS lawyer's testimony that he saw
plaintiffs bedsores and reported them to prison
staff; medical records showing that he was
recommended for physical therapy and might be
able to walk if fitted with leg braces and assistive
devices, which he never received; he was also
denied mental health medications.
Punitive damages can be awarded without
an award of compensatory damages. The jury did
not award nominal damages on the Eighth
Amendment claim, but the court can and does do
so. Compensatory damages of$125,000 for the
ADA violation are not excessive. They fall under
the statutory ceiling of $300,000, and are not
inconsistent with ADA awards in other cases. The
award of punitive damages was clearly proper.
Jury instructions concerning damages are
quoted.

AIDSlMedical CarelMunicipalities
Murphy v. Bray, 51 F.Supp.2d877
(S.D.Ohio 1999). The plaintiff, diagnosed for five
years with full-blown AIDS, was arrested and
21

THE NATIONAL PRISON PROJECT JOURNAL

charged with "importuning." He informed jail
officials that he was HIV-positive and was taking
several drugs (in addition to anti-retrovirals,
medications for thrush, meningitis, herpes, and
depression). They notified the medical provider,
Correctional Medical Systems, who obtained a full
medical profile and agreed that his medications
could be brought from home. However,
correctional staff wouldn't let them in, and CMS
and the jail have written policies prohibiting
bringing in prescription medications. He then sent
a form to eMS to complain about this, but it was
returned to him for unexplained reasons. He did
not get his medications during the nine days he
was in jail.
Plaintiff alleged evidence that the
defendants knew that there was a custom in direct
contradiction to the written policy but that practice
was not uniform regarding allowing medications
to be brought from home. That evidence raised a
genuine issue of material fact whether the Sheriff
(sued here in his official capacity) knew of and
disregarded an excessive risk of harm.
Medical Care: Standards of Liability,
Deliberate Indifference, Serious Medical
NeedslPersonal Involvement and Supervisory
Liability
Petrichko v. Kurtz, 52 F.Supp.2d 503
(E.D.Pa. 1999). The plaintiff alleged that another
prisoner pushed him into a steel pole, dislocating
his shoulder; the officer on duty said they didn't
have staff to take him to the hospital, and
instructed another prisoner to "relocate" his
shoulder. The plaintiffs multiple requests to see a
doctor were ignored for two weeks. He suffered
additional medical neglect during the succeeding
two· months, during which he was transferred
twice. When he arrived at state prison, he was
told that the delay in treatment had caused a
permanent injury to his shoulder.
The plaintiff alleged a serious medical
need in that he claims that he has suffered a
permanent injury. The officer who refused to have
the plaintiff taken to the hospital and who directed
another prisoner to "relocate" the plaintiffs

22

Fall 20001 Winter 2001

shoulder could be held liable. An allegation that
the warden ignored the plaintiffs written requests
for medical treatment for non-medical reasons
sufficiently alleged deliberate indifference, since
that conduct denied the plaintiff access to a
physician capable of evaluating the need for
treatment (509), and he alleged knowledge. The
deputy warden who allegedly denied the plaintiff
ice for his injury because the ice machine was
broken could be held liable, since this is an
allegation of delay oftreatment for non-medical
reasons. The plaintiff sufficiently alleged
supervisory liability by stating that conscious
inadequacies in the supervisors' training of the
officer led to the actionable medical treatment
decisions by the officer.
AIDS/DisabledlMedication/Cruel and Unusual
Punishment: Proof of Harm/Medical Care
McNally v. Prison Health Services, 52
F.Supp.2d 147 (D.Me. 1999). The plaintiff
alleged that he was deprived of his HIV
medication for three days while jailed. He
sufficiently alleged injury resulting from deliberate
indifference. Although his expert can't say that
"more probably than not" his symptoms resulted
from the deprivation, "the evidence shows that
Plaintiff suffered from fever, chills, and flu-like
symptoms that possibly were caused" by the
interruption of medication. In addition, the
interruption "possibly caused some mutational
changes" which would help cause drug resistance
in the future. Summary judgment is therefore
denied.
PLRA: Judgment Termination/Judicial
DisengagementlMental Health
CarelRehabilitation
King v. Greenblatt, 53 F.Supp.2d 117
(D.Mass. 1999). The Massachusetts Treatment
Center for Sexually Dangerous Persons is not a
"prison" and persons civilly committed to it are
not "prisoners" for purposes ofthe PLRA
judgment termination provisions. Persons
committed to it received indeterminate sentences
of one day to life to participate in an intensive

THE NATIONAL PRISON PROJECT JOURNAL

treatment program. However, in 1990 civil
commitment was abolished and the facility was
subsequently transferred to the control ofthe
Department of Correction.

Sanitation/Transfer and Admission to Mental
Health Facilities/Classification: Race/
Hazardous Substances and ConditionslDenial
of Ordered CarelMunicipalities
Caldwell v. Hammonds, 53 F.Supp.2d 1
(D.D.C. 1999). The court rejects the proposition
that only the Mayor, the City Council, and the
Director of the Department of Correction can be
final policyrnakers with respect to prison
conditions. The verified complaint "alleges facts
from which a jury might easily conclude that the
unsanitary and unhealthy conditions ... (including
fires, floods, feces and urine contaminating the
cells, and secondhand tobacco smoke) existed for
such a long time and were so obvious to any
observer that the policyrnakers for the Department
of Corrections either acquiesced in those
conditions or abandoned their responsibilities as
policyrnakers to [lower-level officials]." In
addition, the plaintiff showed that he had
submitted an administrative appeal concerning
these conditions to the Director. These allegations
stated an Eighth Amendment claim.
The plaintiff alleged that prescribed
treatment for skin cancer was delayed, resulting in
the cancer spreading. He also alleged continuous
exposure to second-hand tobacco smoke and
smoke from fires. These allegations "state a claim
for 'deliberate indifference' by failing to provide a
place of confinement free from harmful
contaminants." (9) Defendants' citation to their
no-smoking policy is unavailing, since their own
commissary list shows tobacco products for sale,
and the plaintiff alleged that correctional officers
permitted smoking in the cell block. At 9:
"Governments can not adopt a 'policy' that is
plainly ignored and then claim that violations are
not officially sanctioned and therefore not
sanctionable."
The plaintiffs allegation that he was
transferred to a block with unacceptable

Fall 2000/ Winter 2001

conditions, inhabited by mentally ill persons
whose behavior caused further intolerable
conditions, because of his race, stated a claim. At
10: "A housing transfer based only on the race of
the individual certainly would violate clearly
established constitutional law, as any reasonable
correctional officer or prison psychologist knew or
should have known."

PLRA: Exhaustion of Administrative
Remedies/Procedural Due Process:
VisitinglRehabilitation
Cooper v. Garcia, 55 F.Supp.2d 1090
(S.D.Cai. 1999). The presence ofunexhausted
claims does not require the dismissal of exhausted
claims under the PLRA, by contrast with habeas
corpus. Plaintiff gets 60 days to amend to
demonstrate exhaustion of unexhausted claims on
pain of dismissal with prejudice of these claims
without further leave to amend. (This is not
explained. Dismissal for non-exhaustion is usually
without prejudice.)
PLRA: Prospective Relief Restrictions/Punitive
SegregationlRecreation and ExerciselMental
Health Care
Goffv. Harper, 59 F.Supp.2d 910
(S.D.Iowa 1999). The court, in a 1997 opinion
that is for some reason unreported, found (a) a
substantive due process violation resulting from
extraordinarily long lockup sentences; (b) an
Eighth Amendment violation resulting from
inadequate mental health treatment; (c) an Eighth
Amendment violation resulting from deprivation
of exercise during the winter months; and (d) an
Eighth Amendment violation resulting from "the
pandemonium and bedlam the mentally-stable
inmates must suffer" from confinement with
mentally ill inmates who can't or don't control
their behavior. Defendants submitted a series of
remedial plans but even their fourth version,
reviewed in this opinion, doesn't quite cut the
mustard. The court directs changes.as follows and
makes the PLRA need/narrowness/intrusiveness
findings about them.

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THE NATIONAL PRISON PROJECT JOURNAL

Long lockup sentences: Before, prisoners
could only get 30 days for a single incident
(though some of them accumulated as much as 50
years from multiple incidents); now, they can get
up to one year for a single incident and two years
total, though officials have taken measures to
expedite getting people out (e.g., more general
population cells, a "reintegration unit"). The court
declines plaintiffs request to limit disciplinary
detention periods to 30 days, but does require a
two-day "break" every 30 days in which the
prisoner will be allowed property, telephone calls
and other privileges. The court also directs the
Director or his designee from outside the
particular prison to meet with three representatives
of the plaintiff class, once a month for six months,
face to face or by teleconferencing, to discuss
problems with the implementation of the
defendants' plan.
Mental health treatment: defendants are
moving in the right direction setting up a 200-bed
special needs unit, but court directs them to
maintain and fill three psychologist positions (they
have only one filled) in the next four months, or to
contract with a third-party provider; if anybody
resigns, defendants have six months to hire or
contract to replace them.
Exercise: Defendants are on the right track
in creating exercise facilities long-term and
converting a couple of cells short-term. No relief
is necessary to protect outdoor areas from the rain.
Defendants are directed to provide exercise
equipment consistent with security.

Sexual Abuse/Women/Staffing:
SurveiltancelMunicipaiities
Newby v. District ofColumbia, 59
F.Supp.2d 35 (D.D.C. 1997). The plaintiff was
forced by guards to participate in strip shows and
exotic dancing on three occasions, and engaged in
a sexual relationship with a staff member, which is
per se illegal under D.C. law. There were no
supervisory personnel present during the shows.
Although the District of Columbia had
been found liable previously for permitting a
pattern of sexual harassment in its jails, they had

24

Fall 2000/ Winter 2001

done nothing except issue a policy and add
training; they did not institute a meaningful system
of supervision, and have not done so even to this
date, whether by placement of surveillance
cameras or requiring supervisors' presence when
staff make their rounds. The court grants
judgment as a matter of law on liability against the
District after trial; damages remain for the jury to
decide.

Disabled/Denial of Ordered Care/Cruel and
Unusual Punishment/Pendent and
Supplemental Claims; State Law in Federal
Courts
Schmidt v. Odell, 64 F.Supp.2d 1014
(D.Kan. 1999). The plaintiff, whose legs had been
amputated below the knee, was jailed for drunk
driving. He had his prosthetic legs, but one got
damaged and they were hard for him to use, and
later he was injured and was unable to use them or
be fitted for new ones. He asked for a wheelchair,
but his request was denied. The plaintiff therefore
got around on his knees. They gave him kneepads.
The refusal to provide a wheelchair was
not unconstitutional in itself. However, "the
ability of the plaintiff to move himself about the
j ail in an appropriate manner was a basic need that
the defendants were obligated to help provide
under the Eighth Amendment." He was also
denied the use of a wheelchair entering and
leaving the jail, requiring him to crawl into the
parking lot and onto the van at the jail, and repeat
the process at the courthouse. Defendants also
refused to provide a shower chair for six or seven
months, requiring him to crawl in the shower.
Offering to put the plaintiff in housing units where
a shower was closer to his cell did not meet
defendants' Eighth Amendment obligations.
The foregoing facts could also support an
ADA claim. At 1033: "The fact that plaintiffwas
actually able to use most of the jail services does
not preclude his claim in light of the fact that he
was able to do so only by virtue of exceptional and
painful exertion which was contrary to a
physician's instructions concerning his disability."

THE NATIONAL PRISON PROJECT JOURNAL

The foregoing facts could also support a
claim for the intentional infliction of emotional
distress.

Sexual Abuse/Use of Force/Staffing:
Sex/Municipalities/Damages: Punitive/Pendent
and Supplemental Claims; State Law in
Federal Courts
Cain v. Rock, 67 F.Supp.2d 544 (D.Md.
1999). The plaintiff alleged that a male officer
had engaged in sex with her, taking advantage of
her mental and physical state. The officer was
fired and entered an Alford plea to criminal
charges.
A policy of "cross-gender guarding" is not
unconstitutional, and the municipality cannot be
held liable for it. Nor is there evidence of
deliberate indifference, since the County does
protect prisoners against mistreatment, e.g., by
having a policy against male guards' stripsearching females absent emergency.
The plaintiff had no excessive force claim
against the officer, since there was no evidence
that his actions were "motivated by malice or the
will to pain." (551) Nor did she have an Eighth
Amendment claim, since a random sexual assault
is not "punishment." (The court cites Johnson v.
Glick, long since abandoned elsewhere.)
However, the allegations of sexual activity while
the plaintiff was mentally incapacitated "shock the
judicial conscience" in light of officers' power
over prisoners, and therefore state a Fourteenth
Amendment claim under the deliberate
indifference standard. (552)
PLRA: AUorneys' Fees
flick v. Miller, 68 F.Supp.2d 1169 (D.Nev.
1999). The court previously found that the
plaintiffs' suit was a catalyst in making prison
officials change their use of force policy. At 1173
n. I: "To the extent that the court is obliged to find
that the post-PLRA fees were 'directly and
reasonably' incurred in proving a violation of a
prisoner's rights, the court does so here. See 42
U.S.C. § 1997e(d). All of the evidence provided
by plaintiffs shows there were violations of

Fall 2000/ Winter 2001

prisoner's constitutional right on an ongoing basis
at ESP, and that this litigation caused those
injurious practices to cease."
At 1174: PLRA fees are to be paid at the
rate set by the Judicial Conference (up to $75),
rather than the statutory figure of $60, even though
the former has not actually been funded, because
the statute calls for the rates "established" by the
CJA and not those "paid" or "awarded."
The CJA rate established and paid for
Washington, D.C. is $75 per hour, thus making the
PLRA rate $112.50 per hour." (The relevant
community is Washington, D.C. where the
National Prison Project is located.)
At 1179: The PLRA doesn't say what to do
about fees for paralegals and law clerks. Leaving
them at pre-PLRA rates would be
disproportionate. In light of the clear
congressional intent behind the fee caps, the court
reduces paralegal time by 40%, proportional to the
reduction in attorneys' fees resulting from the
PLRA.

Pre-Trial Detainees/Use of Force:
Restraints/Class Action: Certification of
Classes/State and Local
Officials/Standing/lnjunctive Relief:
Preliminary/Municipalities
Von Colin v. County of Ventura, 189
F.R.D. 583 (C.D.Cai. 1999). The plaintiffs
complained of abuse of restraint chairs, e.g., being
strapped into them for asking questions and not
being let out to go to the bathroom.
The plaintiffs had standing to seek an
injunction concerning the use of restraint chairs
because they had damage claims concerning them.
This standing rule is unique to the Ninth Circuit.
The existence of a policy authorizing use of a
restraint chair and evidence from the defendants
showing a pattern or practice of abuse of the chair
sufficed to establish sufficient likelihood of
recurrence. The possibility of recurrence ceases to
be speculative when actual repeated incidents are
documented.
Evidence that 377 arrestees in a year were
put in the restraint chair is sufficient to establish

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THE NATIONAL PRISON PROJECT JOURNAL

numerosity, especially since the plaintiffs sought
to represent persons who had been or will be
subjected to it. The class met the commonality
and typicality requirements, notwithstanding the
County's argument that not everybody defecated
and urinated on themselves in the chair. The fact
that plaintiffs sought damages individually did not
preclude certification of a class for injunctive
relief only.
The court grants a preliminary injunction.

Fall 2000/ Winter 2001

Here there is a policy which forbids the use of the
chair as punishment, but doesn't define the term,
allowing lower-level supervisors discretion to do
as they will; the policy doesn't put a time limit on
use of the chair; and it has no provisions for
allowing them out to urinate or defecate. The
court doesn't want to get into the day-to-day
operation of the jail; so it enjoins all use of the
chair pending trial.

National Prison Project Publications
The publications listed below are available,
prepaid, from the NPP. Orders may be sent with
check or money-order to 733 15 th Street, NW,
Suite 620, Washington, DC 20005.
The National Prison Project Journal is a
biannual newsletter featuring articles, reports,
legal analysis, legislative news, and other
developments in prisoners' rights. An annual
subscription is $30 or $2 for prisoners.

The PLRA: A Guide for Prisoners is part of a
special issue of the NPP Journal still available to
prisoners for $2 a copy. Written by John Boston,
Director of the Prisoners' Rights Project of the NY
Legal Aid Society, it provides a comprehensive
explanation of the Prisoners' Litigation Reform
Act.
The Prisoners' Assistance Directory lists and
describes local, state, national and international
'"
organizations
that provide services to inmates,
ex-offenders and their families. Latest edition
was published in 1998. The directory is available
for $30. [New edition will be available soon.]
1998 AIDS in Prison Bibliography catalogues
resource materials on AIDS in prison available at
the NPP or at other locales. It references
corrections' policies on AIDS, educational
materials, medical and legal articles, and recent
AIDS studies. It also provides a listing of

26

"prisoner friendly" AIDS organizations. The
bibliography is available for $10.

Play It Safer, written for prisoners, describes
sexually transmitted diseases, the
signs of disease, the
b"~~~4~~ importance of safer sex, and
the need for treatment. Eleven·
ofthe most common STDs are
explained, from Chancroid to
Trichomoniasis. The 27 page booklet also
includes a national resource list for prisoners.
Booklet bulk rates are 100 copies for $35.00, 500
copies for $150.00, 1,000 copies for $280.00.
Send order requests to Jackie Walker at NPP.
Women in Prison Bibliography, Volume II
contains annotated bibliographies for
NPP's collection of materials on women's
incarceration. This 59 page resource
focuses on materials published in the last 10
years and includes sections on battered women and
crime, capital punishment, girls in the juvenile
justice system, sexual assault of female prisoners
and more. Documents listed in the bibliography,
but not available from publishers or libraries, are
available from NPP for 15 cents per page. Copies
of the bibliography are available for $10.

I

THE NATIONAL PRISON PROJECT JOURNAL

Anti-Privatization Bill Reintroduced
In May, Congressman Ted Strickland of
Ohio and Senator Russell Feingold of Wisconsin
reintroduced the Public Safety Act, H.R. 1764 and
S. 842. The legislation is nearly identical to the
bill introduced in the House of Representatives
last session and the ACLU has again chosen to
endorse this important act. The bill prohibits
placement of federal prisoners in private prisons
and denies federal grants to states and localities
that contract with private correctional facilities.
Congressman Strickland is the original
sponsor of the legislation and first introduced the
Public Safety Act in 1999. The bill stalled in
committee last year and no companion bill was
ever introduced in the Senate. Fortunately, this
year identical bills were introduced in the House
and Senate on the same day and the House version
has already garnered 32 co-sponsors. When
Senator Feingold introduced the bill on the Senate
floor he noted, "The result [of private prisons] is
that prisoners are deprived of the rehabilitation,
education, and training that make it less likely that
they will commit more crimes after they have
served their time. This drive to keep 'beds filled'
is especially troubling because it adversely affects
our nation's African American community, which
is already over-represented in the prison system."
The National Prison Project bases its
opposition to the private prison industry on
America's sad national experience. Over the
years, serious constitutional violations have
developed all over the country in private prisons.
In facilities in New Mexico, riots resulted in
several injtiries and extensive facility damage.
One riot occurred only a few months after two
attempted cover-ups of correctional officers'
excessive use of force and two prisoner stabbing
deaths. In 1998, a juvenile correctional facility
run by a for-profit company in Tallulah, Louisiana
was taken over by the State after a Justice
Department investigation found that the juveniles
housed there were routinely beaten. Just two years
later, another Justice investigation of another
Louisiana juvenile facility, owned and operated by

Fall 20001 Winter 2001

Wackenhut Corrections Corporation, found that
"[the facility] fails to provide reasonable safety,
improperly uses chemical restraints, and provides
inadequate mental health, medical and dental care
for the approximately 276 adolescent boys." Dr.
Nancy Ray, an expert evaluating conditions there,
concluded that at least some ofthe problems were
linked to Wackenhut's reluctance to spend
enough money to provide care for the youth.
Ending these conditions and the profit
motive in corrections is ofutmost importance for
the NPP. As a result, we are very excited about
the reintroduction ofthis legislation and look
forward to assisting in its passage.

New Report Released on Prison Rape
In April, Human Rights Watch released No
Escape: Male Rape in U.S. Prisons, the first
national survey of prisoner on prisoner rape. The
report found rape to be a horrifically predictable
consequence of confinement because of
corrections and prosecutorial indifference.
No reliable national data exists regarding
the extent ofthe problem because many states do
not track the number of incidents, but academic
studies find that in some states 21 percent of
prisoners have encountered at least one instance of
forced or pressured sex. In addition, numerous
state departments of correction, surveyed in the
study, underscored the prevalence of this violent
behavior. New Mexico prison officials reported to
HRW that their facilities had no incidents of rape
over the last few years.
The report also provides dramatic
testimony from prisoner correspondence collected
over a three year period. One prisoner wrote, "I
have seen or heard of rapes on a weekly basis at
the least. Mostly it is a daily occurrence. Rapes
are a very common occurrence due to the fact of
coercion being "played" on ignorant first timers.
Once someone is violated sexually and there is no
consequences on the perpetrators, that person who
was violated then becomes a mark or marked. That
means he's fair game."

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THE NATIONAL PRISON PROJECT JOURNAL

Fall 20001 Winter 2001

Editor's Note
Dear Loyal Subscriber,
The National Prison Project Journal was first published in the fall of 1984 with a cover article
written by then staff attorney Elizabeth Alexander. Seventeen years later, Ms. Alexander still works for
the Project, but now serves. as its director. Since our first issue, many things about the National Prison
Project and the Journal have changed, but many things have also stayed the same.
The National Prison Project has decided to make the Journal a biannual publication. This change
finally recognizes our practice in recent years of combining issues and doubling the size of each issue.
This formal change is necessary because of the extra cost and staff time required to publish four issues a
year. We hope that finally changing the publication schedule to twice a year will reduce reader confusion.
Because in the future each issue will be a double issue, like this one, the cost of a yearly subscription for
prisoners and non-prisoners will also remain the. same.
With this change, I want to assure all of our subscribers that the Journal's commitment to share
our views, concerns and expertise on prisoner rights and criminal justice reform will remain and so will
our loyalty to you and to the NPP's mission, stated so well by NPP's former executive director, Alvin
Bronstein, in our inaugural edition.
"We must devote even more of our efforts toward the goal of a uniform acceptance by all
branches of government, as well as the media and the public, of the principle that prisoners
must be afforded certain fundamental rights if we are to regard ourselves as a civilized
society. Those rights must include: personal safety, decent care, personal dignity, work,
self-improvement, the vote, and the right to a future. We should do no less if we believe
that the Bill of Rights applies to all persons, and if we expect prisoners to return to society
as lawful and productive citizens."
We continue to hope the Journal will broaden this discussion and promote these goals.
Thank you for your understanding and support.

The National Prison Project
American Civil Liberties Union Foundation
733 15th Street, NW, Suite 620
Washington, DC 20005
~21

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