AMERICAN CIVIL LIBERTIES UNION

~~~~~~AL JOURNAL

. PROJECT

Vol. 19, No.1, Winter/Spring 2007· ISSN 1076-769X DOUBLE ISSUE

Report Details Horrible Treatment of Prisoners in the Wake of
Hurricane Katrina
Shortly before the one-year anniversary of
Hurricane Katrina, the ACLU's National Prison
Project released a report documenting the
experiences of thousands of men, women and
children who were abandoned at Orleans Parish
Prison in the days after the storm. The report,
Abandoned & Abused: Orleans Parish Prisoners
in the Wake o/Hurricane Katrina, seeks to
provide a comprehensive picture of what the
individuals at the jail endured. It is written to
capture their experiences, so that their voices can
be heard. "The prisoners inside the Orleans
Parish Prison suffered some of the worst horrors
of Hurricane Katrina," said Eric Balaban, a staff
attorney with the National Prison Project.
"Because society views prisoners as second-class
citizens, their stories have largely gone unnoticed
and therefore untold."
In the days following Hurricane Katrina,
the public was inundated with stories of personal
tragedies that were unfolding day by day in the
city of New Orleans and throughout the Gulf
Coast region. Some reports were of amazing
rescues, but much of the coverage focused on the
disaster within the disaster-the thousands of
men, women, and children left stranded around
New Orleans, in their homes, the Louisiana
Superdome, and the Convention Center. But just
a few miles away from the Superdome and the
Convention Center, another disaster within the
disaster was developing at Orleans Parish Prison
("OPP"), the New Orleans jail.

A Brief History of Problems at OPP
The ACLU report describes a history of
neglect at OPP, one of the most dangerous and
mismanaged jails in the country. Conditions at

OPP have been the subject of litigation in federal
court since 1969, when a prisoner named Louis
Hamilton filed a class action on behalf of all of
the individuals housed in OPP. Hamilton v.
Morial, C.A. No. 69-2443 (E.D. La.).
Hamilton's lawsuit complained of gross
overcrowding, horrendous medical and mental
health care, and the jail's complete lack of
preparedness to handle a fire emergency. The
Court quickly ruled in June 1970 that "the
conditions of confinement in Orleans Parish
Prison so shock the conscience as a matter of
elemental decency and are so much more cruel
than is necessary to achieve a legitimate penal
aim that such confinement constitutes cruel and
unusual punishment in violation of the Eighth
and Fourteenth Amendments of the United States
Constitution." Hamilton v. Schiro, 338 F. Supp.
1016, 1019 (RD. La 1970). In 1989, the
National Prison Project became class counsel in
the Hamilton lawsuit.
The jail's culture of neglect has long been
evident in OPP's lackluster provision of medical
care to detainees. In October 2004, an OPP
prisoner died of a ruptured peptic ulcer.
Members of the public organized a rally to
highlight the problems with medical services at
opp after another prisoner died in February 2005
of tuberculosis, and an OPP deputy died of
pneumonia two weeks later. On the same day as
the rally, an OPP prisoner died of bacterial
pneumonia. Two months later, a prisoner died
nine days after his attorneys complained that he
was not receiving his proper medications, and the
following month a prisoner died while receiving
kidney dialysis. In fact, in the two months
preceding Hurricane Katrina, two more prisoners

NATIONAL PRISON PROJECT JOURNAL

died while under medical observation at OPP, and
a third is reported to have died the day before the
storm hit New Orleans, although no more
information is available at this time.
There has also been a series of tragedies
due to OPP's failure to treat detainees with serious
mental illnesses. In 2001, a young man arrested
on traffic charges died of dehydration after being
left largely unsupervised in five-point restraints
for 42 hours. Less than two years later, a suicidal
detainee was placed in four-point restraints,
supposedly under close and constant
watch-twelve hours after being placed in
restraints, the man was found hanging from the
upper bunk by a leather belt that inexplicably had
been left in his cell. Just over three weeks before
Hurricane Katrina, yet another prisoner in the
mental health tier committed suicide by hanging.
The Descent into Chaos
This same culture of neglect was apparent
in the days before Katrina, when Orleans Parish
Criminal Sheriff Marlin N. Gusman declared that
the prisoners would remain "where they belong,"
despite the mayor's decision to order the city's
first-ever mandatory evacuation. While President
Bush was declaring a state of emergency for
Louisiana, and the population of New Orleans was
ordered to evacuate the city, OPP was still
packing in its prisoners. Over 100 of the men
held in the jail's receiving tiers during Hurricane
Katrina had been arrested and booked on minor
charges during the day or two before the storm
made landfall. Quantonio Williams, whose story
appears in the report, was one of those men,
arrested on a charge of possession of marijuana
(first offense)-that charge was ultimately refused
by prosecutors. OPP even accepted prisoners
from other facilities, including juveniles as young
as 10, to ride out the storm.
Although Sheriff Gusman refused to
evacuate the prisoners, he was unprepared to
handle the consequences. Deputies and staff
admit that they received no emergency training
and were entirely unaware of any evacuation plan.
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Winter/Spring 2006

-_. __....'----------------_..._----_.--

The only emergency plan produced by the
sheriffs office in response to numerous requests
by the ACLU of Louisiana was a patently
inadequate, two-page document. "The sheriffs
office was completely unprepared for the storm,"
said Tom Jawetz, Litigation Fellow for the
National Prison Project and one of the coauthors
of the report. "The Louisiana Society for the
Prevention of Cruelty to Animals did more for
its 263 stray pets than the sheriff did for the more
than 6,500 men, women and children left in his
care."
Left to fend largely for themselves, the
prisoners did what they could to survive. As
floodwaters rose in the OPP buildings, power
was lost, and entire buildings were plunged into
darkness. Deputies left their posts wholesale,
leaving behind prisoners in locked cells, some
standing in sewage-tainted water up to their
chests. Over the next few days, without food,
water, or ventilation, prisoners broke windows in
order to get air, and carved holes in the jail's
walls in an effort to get to safety. Some prisoners
leapt into the water, occasionally tying bed sheets
together to lower themselves from higher floors.
When they hit the water, deputies stationed
around some buildings and on the roofs of others
shot at the prisoners. Many prisoners and
deputies reported seeing prisoners hanging from
the rolls of razor wire lining the fences that
surround the buildings. Other individuals made
signs or set fire'to bed sheets and pieces of
clothing to signal to rescuers; without adequate
ventilation, the smoke from those fires made it
difficult to breathe inside the jail, especially for
elderly individuals and those suffering from
asthma and other respiratory illnesses. Prisoners
with serious medical conditions went for
extended periods of time without necessary
medications; at least two prisoners died within
weeks of being rescued from the jail.
Once freed from the buildings, prisoners
were brought by boat to an overpass, and were
later bused to receiving facilities around the state.
For some, conditions got worse. At the Elayn

NATIONAL PRISON PROJECT JOURNAL

Hunt Correctional Center, thousands of OPP
evacuees spent several days on a large outdoor
field, where prisoner-on-prisoner violence was
rampant and went unchecked by correctional
officers. "Some prisoners at Hunt attacked other
prisoners, and guards did nothing to prevent this
from happening," said Katie Schwartzmann, a
staff attorney for the ACLU of Louisiana.
"Guards threatened prisoners with guns when they
were approached for help, and shot at one prisoner
who had been stabbed by a group of other
prisoners." One man, Ronnie Lee Morgan, Jr.,
was a federal prisoner in protective custody when
he was transferred from OPP to Hunt. When Mr.
Morgan and other prisoners in protective custody
told Hunt officials that they could not safely be
placed on the field with thousands of other
prisoners, Mr. Morgan was told that he should not
tell the prisoners on the field that he was in
protective custody, and was advised to turn his
sweatshirt reading "Federal" inside out. Once on
the field, gang members attacked Mr. Morgan,
who was stabbed in the head and neck, and was
turned away when he ran to the guards seeking
help. Mr. Morgan is now represented by the
ACLU of Louisiana, which has filed a federal
civil rights lawsuit on his behalf
From Hunt, prisoners went to other
facilities, where some were subjected to
systematic abuse and racially motivated assaults
by prison guards. Ivy Gisclair was being held at
OPP for several hundred dollars in traffic
violations and had never before been in any
serious trouble with the law. After Hunt, he was
tr~sferred to Bossier Parish Maximum Security
Jail, where he saw his release date corne and go.
When Mr. Gisclair asked a guard whether there
was anything he could do to get released, he was
pepper sprayed through his cell door, and then
repeatedly shocked with a Taser, beaten by
multiple guards, and put in solitary confinement
with no clothes. "They were saying things to me
like 'You New Orleans ni**ers think you so bad.'
The~ also said 'you all are animals. I'm gonna put
you III the woods with the animals.' Three weeks

Winter/Spring 2006

after his scheduled release date, Mr. Gisclair was
dropped offby the side of the road wearing an
orange OPP jumpsuit-it was the day Hurricane
Rita hit the Gulf Coast. "They left us at a Shell
gas station in our OPP jumpsuits, fit to get shot
by anyone who thought we had escaped from
jail."
Recommendations
The report makes a series of
recommendations to local, state, and federal
authorities designed to ensure that the jail that
emerges from Hurricane Katrina is more costeffective, humane, and focused on ensuring real
public safety. The ACLU recommends that state
and local authorities (1) design and implement a
coordinated emergency plan to ensure that all
prisons and jails are capable of quickly and safely
evacuating before the next disaster strikes; (2)
downsize OPP by ending the practice of holding
people who are serving state time; (3) implement
reforms to decrease the number of pre-trial
detainees held at the jail; (4) convene a Blue
Ribbon Commission to develop and implement a
full set of recommendations for detention reform·,
(5) reduce the use ofjuvenile detention by
exploring viable alternatives to detention; (6)
view detention as a process rather than a place;
and (7) appoint an Independent Monitor to
review opp policies, procedures, critical
incidents, complaints and quality of complaint
investigations.
In conjunction with the report's release,
the National Prison Project also urged the
president and Congress to push for a technical
audit of the jail's emergency preparedness
system. Such an audit would help to ensure that
the mistakes chronicled in the report are never
repeated. Moreover, the ACLU is calling for a
full and immediate investigation by the
Department of Justice into abuses at Louisiana
correctional facilities during and after the storm,
and is urging the DOJ to make the findings from
such an investigation public and accessible to

state and federal prosecutors.
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Winter/Spring 2006

--------------

What You Can Do
Right now, you can write to your
representatives in Congress-and tell your family
and friends to write-and tell them that these
abuses must be investigated. Tell them that the
lack of emergency preparedness displayed at OPP
is unacceptable, and that the Department of
Justice should commission a technical audit of the
jail's emergency preparedness system. If you live
in Louisiana, urge your local and state officials to
take action also. "These are the untold horrors of
Hurricane Katrina," Balaban said. "We must
preserve these stories to create a record of the
tragedy and to ensure that the mistakes detailed in
this report are never repeated." Various civil and
human rights organizations contributed to the
report, including the ACLU of Louisiana, Human
Rights Watch, and the NAACP Legal Defense and
Educational Fund. The report is available online
at http://www.aclu.org/opp.

NPP Director: Elizabeth Alexander
Editor: Jody Kent
Asst. Editor: Katelyn O'Brien
Subscriptions Assistant: Johnice Galloway
The National Prison Project is a special
project of the ACLU Foundation. It seeks to
strengthen and protect the rights of adult and
juvenile prisoners, improve overall conditions in
correctional facilities, and develop alternatives to
incarceration.
The Journal is published biannually by
the ACLU's National Prison Project, located at
915 15 th St., NW, 7th Floor, Washington, DC
20005. Contact us by phone at (202) 393-4930,
fax at (202) 393-4931 or email at jkent@nppacIu.org for more information. (NO COLLECT
CALLS PLEASE)
The reprinting of Journal material is
encouraged with the stipulation that it is credited
as the source of the material, and a copy of the
reprint is sent to the editor. Subscriptions to the
Journal are $30 per year ($2 for prisoners),
prepaid by check, cash, stamps or money order.

4

Case Law Report: Highlights of the Most
Important Prison Cases
By John Boston
Director, Prisoner Rights Project of the NY Legal
Aid Society
SUPREME COURT CASES

Prison Litigation Reform Act (PLRA)
Jones v. Bock, 549 U.S. _, 127 S.Ct. 910
(2007). This case involved the combined cases
of three Michigan Prisoners challenging the Sixth
Circuit's glosses on the PLRA's exhaustion
requirement. The Supreme Court rejected all of
the Sixth Circuit procedural rules implementing
the PLRA's exhaustion requirement which
included: I) the rule requiring a prisoner to allege
and demonstrate exhaustion in his complaint; 2)
rules permitting suit only against defendants who
were identified by the prisoner in his grievance;
and 3) rules requiring courts to dismiss the entire
action if the prisoner fails to satisfy the
exhaustion requirement as to any single claim in
his complaint. Id. at 914.
As to the issue of whether the exhaustion
requirement under the PLRA is a pleading
requirement that the prisoner is required to
satisfy, or an affirmative defense the defendant
must plead or prove, the Court finds that the onus
is squarely on the defendant. Id. at 921.
Significantly, the Court found that the text of the
PLRA did not justify deviations from the usual
pleading practices under the Federal Rules (in
keeping with its line of argument in Leatherman,
Swierkiewicz and Hill), and further that the
provisions of the PLRA and Congress's focus on
the exhaustion requirements within the PLRA
supports a finding that no implicit deviation from
the usual practice under the Rules is mandated.
Id. at 919-21.
In rejecting the Sixth Circuit's per se rule
that exhaustion is inadequate under the PLRA
unless all defendants are named in the prisoner's
initial grievance, the Court again noted that the

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Sixth Circuit rule lacks a textual basis in the
PLRA. Id. at 922-23. The Court's ruling here is
narrower than might first be thought, however,
because it is based on the fact that the Michigan
DOC's grievance policy at the time the grievances
at issue were filed did not contain a provision
specifying who must be named in the grievance.
Id. Citing Woodford, 548 U.S. _, the Court
reiterated that proper exhaustion requires only that
prisoners complete the grievance process in
accordance with the rules defined by the prison
grievance process itself. Thus, procedural rules
for exhaustion are defined by the prison policy
and not the PLRA. Id. at 922-23.
Finally, the Court found that the PLRA
does not require "total exhaustion" under which
no part of a suit may proceed if a single claim in
the action is not properly exhausted. Id. at 923.
The language ofthe PLRA in Section 1997e(a),
"no action shall be brought," does not support the
"total exhaustion" rule because it is boilerplate
language, frequently used in the Federal Code.
And such language has never been construed to
lead to the dismissal of an entire action if a single
claims fails to meet the pertinent standards.
Moreover, statutory references to an "action" have
not 'been read to mean that every claim included in
an action must meet the pertinent requirements for
an "action" to proceed. The Court also noted the
general court practice of dismissing bad claims
and not a complaint as a whole. Id. at 924. The
respondents' reliance on the total exhaustion rule
of habeas corpus was also unavailing because
separate claims in a habeas petition generally seek
the same relief and success on one is often as
good as success on another. In contrast, a PLRA
suit typically has multiple, disparate and discrete
complaints where a failure to exhaust on one does
not affect the other. Id. at 924-25.
Finally, the Court rejected the respondents'
policy arguments for total exhaustion, noting that
the effect of the total exhaustion rule would likely
be the proliferation of prisoner suits because it
will be safer for prisoners to file a separate suit on
every claim in order to avoid possible dismissal of

Winter/Spring 2006

an entire suit due to one exhaustion defect. And
such a result is clearly contrary to the intent of
the PLRA. Id. at 925-26.
PLRA - Exhaustion of Administrative
Remedies. Woodford v. Ngo, 126 S. Ct. 2378
(2006). The PLRA's grievance exhaustion
provision requires "proper exhaustion," which
"demands compliance with an agency's deadlines
and other critical procedural rules because no
adjudicative system can function effectively
without imposing some orderly structure on the
course of its proceedings." (2386). However, the
exhaustion requirement is not jurisdictional
(2392).
Assistance of Counsel
Halbert v. Michigan, 125 S.Ct. 2582
(2005). The due process and equal protection
obligation to provide counsel for indigents on
initial appeals as of right, if the state allows
criminal appeals at all, is applicable to persons
who are convicted after pleas of guilty or nolo
contendere, notwithstanding a Michigan statute,
upheld by the state Supreme Court, denying
counsel in most plea appeals, and
notwithstanding that intermediate appeals in
Michigan plea cases are now by leave only. On
the latter point, the Court says that even though
defendants don't have an appeal as of right, they
have an entitlement to apply for leave. At 2590
(footnote omitted): "Of critical importance, the
tribunal to which [the defendant] addresses his
application, the Michigan Court of Appeals,
unlike the Michigan Supreme Court, sits as an
error-correction instance." Dispositions of leave
applications entail some evaluation of the merits
of the case. In effect, the Court holds such
applications to be equivalent to initial appeals as
of right.
SupermaxlProcedural Due Process-Administrative Segregation
Wilkinson v. Austin, 125 S.Ct. 2184
(2005). The plaintiffs alleged that their
5

NATIONAL PRISON PROJECT JOURNAL

placement in the Ohio State Penitentiary (aSp),
the state's "supennax" prison, denied them due
process. The Supreme Court holds that
placement in the supennax does create a
"significant and atypical hardship" under Sandin
v. Conner, and therefore prisoners are entitled
due process protections before they are moved
there.
The Court notes that the circuits have
disagreed as to the proper "baseline from which to
measure what is atypical and significant in any
particular prison system," but says it doesn't
matter here because asp placement "imposes an
atypical and significant hardship under any
plausible baseline." (2394). At 2394-95: "For an
inmate placed in aSP, almost all human contact is
prohibited, even to the point that conversation is
not pennitted from cell to cell; the light, though it
may be dimmed, is on for 24 hours; exercise is for
1 hour per day, but only in a small indoor room.
Save perhaps for the especially severe limitations
on all human contact, these conditions likely
would apply to most solitary confinement
facilities, but here there are two added
components. First is the duration. Unlike the 30day placement in Sandin, placement at asp is
indefinite and, after an initial 30-day review, is
reviewed just annually. Second is that placement
disqualifies an otherwise eligible inmate for
parole consideration...."
The Court detennines what process is due
with reference to the Mathews v. Eldridge factors.
The Court finds that Ohio's procedures
established in the policy are sufficient. At 2395:
"The New Policy provides that an inmate must
receive notice of the factual basis leading to
consideration for asp placement and a fair
opportunity for rebuttal. Our procedural due
process cases have consistently observed that
these are among the most important procedural
mechanisms for purposes of avoiding erroneous
deprivation. . . . Requiring officials to provide a
brief summary of the factual basis for the
classification review and allowing the inmate a
rebuttal opportunity safeguards against the
inmate's being mistaken for another or singled out
6

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Winter/Spring 2006
---~-~~---------

for insufficient reason. In addition to having the
opportunity to be heard at the Classification
Committee stage, Ohio also invites the inmate to
submit objections prior to the final level of
review. This second opportunity further reduces
the possibility of an erroneous deprivation.
Although a subsequent reviewer may overturn an
affinnative recommendation for asp placement,
the reverse is not true; if one reviewer declines to
recommend asp placement, the process
tenninates. This avoids one of the problems [sic]
apparently present under the Old Policy, where,
even if two levels of reviewers recommended
against placement, a later reviewer could
overturn their recommendation without
explanation. If the recommendation is asp
placement, Ohio requires that the decision maker
provide a short statement of reasons. This
requirement guards against arbitrary decision
making while also providing the inmate a basis
for objection before the next decision maker or in
a subsequent classification review. The
statement also serves as a guide for future
behavior. ..."
The Court does not actually say that any
of the above is constitutionally required. Though
it appears to concede that notice and opportunity
to be heard are due process requirements, it does
not say whether the personal appearance at the
Classification Committee is required.
The Court holds that Ohio is not required
to allow prisoners to call witnesses at their
transfer hearing, and that "the infonnal,
nonadversary procedures set for in Greenholtz v.
Inmates ofNeb. Penal and Correctional Complex
... and Hewitt v. Helms . .. provide the
appropriate modeL.." (2397).
Habeas Corpus/Medical Care
Nelson v. Campbell, 124 S.Ct. 2117
(2004). The plaintiff, sentenced to death,
complained that the "cut-down" procedure prison
officials would have to employ to get to his drug
abuse-ravaged veins in order to administer the
lethal injection would violate the Eighth
Amendment. At 2122-23: "We have not yet had

NATIONAL PRISON PROJECT JOURNAL

occasion to consider whether civil rights suits
seeking to enjoin the use of a particular method of
execution--e.g., lethal injection or electrocution-fall within the core of habeas corpus or, rather,
whether they are properly viewed as challenges to
the conditions of a condemned inmate's death
sentence. Neither the 'conditions' nor the 'fact or
duration' label is particularly apt."
While enjoining a method of execution
doesn't call into question the validity ofthe
sentence, it could impose significant costs by
requiring statutory amendment or variance, and
could result in delay in carrying out the sentence.
The Court needn't get into this question
generally since it's undisputed that a challenge to
the vein cut-down procedure for purposes of
medical treatment would be a proper § 1983
action. Even if a challenge to the method of
execution would sound in habeas, the fact that the
cut-down procedure is a prerequisite to it doesn't
mean the cut-down procedure has to be brought by
habeas; indeed, the plaintiff s argument is that the
procedure is gratuitous. At 2123: "Merely
labeling something as part of an execution
procedure is insufficient to insulate it from a
§1983 attack." That is especially true where, as
here, the cut-down procedure is not mandated by
statute and the plaintiff concedes there are
alternative ways of killing him. Thus the court
allows the plaintiffs to proceed.
This approach is consistent with the
Court's treatment of damages actions: only suits
that would "necessarily imply" the invalidity of a
conviction or the length of incarceration are
subject to the favorable termination requirement.
Here, the question is whether the challenge to the
cut-down procedure would necessarily prevent the
execution.

RFRA and RLUIPAlEstablishment of
Religion
Cutter v. Wilkinson, 125 S.Ct. 2113
(2005). The Religious Land Use and
Institutionalized Persons Act (RLUIPA) does not
violate the Establishment Clause.

Winter/Spring 2006

RLUIPA, on its face, is "a permissible
legislative accommodation of religion that is not
barred by the Establishment Clause." (2121). At
2121:
Foremost, we find RLUIPA's
institutionalized-persons provision
compatible with the Establishment Clause
because it alleviates exceptional
government-created burdens on private
religious exercise. . .. Furthermore, the
Act on its face does not founder on shoals
our prior decisions have identified:
Properly applying RLUIPA, courts must
take adequate account of the burdens a
requested accommodation may impose on
nonbeneficiaries ...; and they must be
satisfied that the Act's proscriptions are and
will be administered neutrally among
different faiths....
The Court rejects the argument that
privileging religion in this fashion will encourage
prisoners to "get religion," noting that the
argument "founders on the fact that Ohio already
facilitates religious services for mainstream
faiths." (2122 n.1 0)
The Court observes the Federal Bureau of
Prisons has operated under the Religious
Freedom Restoration Act (RFRA), which
imposes the same standard as RLUIPA, for a
decade; Congress was aware of that in enacting
RLUIPA; and there is no reason to believe that
there will be more problems from "abusive
prisoner litigation" in state and local institutions
(2125, noting PLRA provisions designed "to
inhibit frivolous filings"). Should the statute
impose unjustified risks or burdens, an as-applied
challenge would be in order.

Use of Force--Restraints
Deck v. Missouri, 125 S.Ct. 2007 (2005).
The petitioner, a capital defendant, was shackled
with leg irons, handcuffs, and a belly chain
during the sentencing phase. At 2012: Based on
prior Supreme Court decisions, "Courts and
commentators share close to a consensus that,
during the guilt phase of a trial, a criminal

:

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defendant has a right to remain free of physical
restraints that are visible to the jury; that the right
has a constitutional dimension; but that the right
may be overcome in a particular instance by
essential state interests such as physical security,
escape prevention, or courtroom decorum." At
2014: "The considerations that militate against the
routine use of visible shackles during the guilt
phase of a criminal trial apply with like force to
penalty proceedings in capital cases." These
considerations obviously include the interference
of physical restraints with attorney-client
communication and participation in defense, and
maintaining a dignified judicial process. In a
capital case, the concern for the presumption of
innocence is no longer applicable, but the penalty
phase implicates related concerns, since the
decision between life and death is of equal
importance to the determination of innocence or
guilt.
Habeas Corpus/PLRA--Exhaustion of
Administrative Remedies
Rhines v. Weber, 125 S.Ct. 1528 (2005).
District courts have the discretion to stay their
consideration of a "mixed" (i.e., partly exhausted)
habeas petition pending exhaustion of state court
remedies for unexhausted claims.
When the Court imposed a total exhaustion
rule on habeas petitions in Rose v. Lundy, there
was no statute oflimitations on such petitions.
Now there is, under the Antiterrorism and
Effective Death Penalty Act (AEDPA), and
consequently dismissal of a partly exhausted
petition may result in the petitioner's claims
becoming time-barred, since there may not be
time to go to state court, exhaust, and return to
federal court within the limitations period,
especially since it may take the federal court some
time to resolve the exhaustion question. At 1534:
"District courts do ordinarily have authority to
issue stays.... AEDPA does not deprive district
courts of that authority."
The Court holds that federal courts' power
to stay an exhausted claim has limits. At 1535:
[S]tayand abeyance is only
appropriate when the district court
8

Wimer/Spring 2006

determines there was good cause for the
petitioner's failure to exhaust his claims
first in state court. Moreover, even if a
petitioner had good cause for that failure,
the district court would abuse its discretion
if it were to grant him a stay when his
unexhausted claims are plainly meritless.
. .. Even where stay and abeyance is
appropriate, the district court's discretion
in structuring the stay is limited by the
timeliness concerns reflected in AEDP A.
A mixed petition should not be stayed
indefinitely.... Without time limits,
petitioners could frustrate AEDPA's goal
of finality by dragging out indefinitely
their federal habeas review. Thus, district
courts should place reasonable time limits
on a petitioner's trip to state court and
back. ...
The Court concludes, "if a petitioner
presents a district court with a mixed petition and
the court determines that stay and abeyance is
inappropriate, the court should allow the
petitioner to delete the unexhausted claims and to
proceed with the exhausted claims if dismissal of
the entire petition would unreasonably impair the
prisoner's right to obtain federal relief."
The PLRA is not mentioned but it is
difficult to see why these rules should not apply
in any circuit that has adopted a total exhaustion
rule under the PLRA (a question that is before
the Supreme Court).
Habeas CorpuslProcedural Due Process
Wilkinson v. Dotson, 125 S.Ct. 1242
(2005). Two Ohio prisoners brought § 1983
actions challenging parole procedures. Both of
them challenged retroactive application of new
parole guidelines, and one alleged that his parole
release hearing otherwise denied due process.
They sought new hearings applying lawful
procedures, and an injunction requiring Ohio to
comply with legal requirements in the future.
The plaintiffs' claims need not be brought
via habeas corpus. At 1247-48:
Throughout the legal journey from
Preiser to Balisok, the Court has focused

NATIONAL PRISON PROJECT JOURNAL

on the need to ensure that state prisoners
use only habeas corpus (or similar state)
remedies when they seek to invalidate the
duration of their confinement--either
directly through an injunction compelling
speedier release or indirectly though a
judicial determination that necessarily
implies the unlawfulness of the State's
custody.... These cases, taken together,
indicate that a state prisoner's § 1983 action
is barred absent prior invalidation--no
matter the relief sought (damages or
equitable relief), no matter the target of the
prisoner's suit (state conduct leading to
conviction or internal prison proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement
or its duration.
These plaintiffs' claims "do not fall within
the implicit habeas exception." At 1248: "Success
for Dotson does not mean immediate release from
confinement or a shorter stay in prison; it means at
most new eligibility review, which at most will
speed consideration of a new parole application.
Success for Johnson means at most a new parole
hearing at which Ohio parole authorities may, in
their discretion, decline to shorten his prison term.
. .. Because neither prisoner's claim would
necessarily spell speedier release, neither lies at
the core of habeas corpus."
The Court rejects the argument that parole
proceedings themselves are part of the prisoners'
sentences, since Heck uses "sentence" to refer to
substantive determination of length of
confinement, not procedures.
Classification--RacelEqual Protection
Johnson v. California, 125 S.Ct. 1141
(2005). Prison officials assigned newly admitted
prisoners (including transferees) to double cells
for up to 60 days by factors including race. The
Court holds that the classification policy is subject
to strict scrutiny analysis. At 1146 (emphasis
supplied, citations omitted): "We have held that
'all racial classifications [imposed by government]
... must be analyzed by a reviewing court under
strict scrutiny.'" That means lithe government has

Winter/Spring 2006

the burden of proving that racial classifications
'are narrowly tailored measures that further
compelling governmental interests." That is to
"smoke out illegitimate uses of race" by making
sure that the goal is important enough to justify
it.
Prison officials' claim that their policy is
neutral doesn't exempt it from that rule, since it
"ignores our repeated command that 'racial
classifications receive close scrutiny even when
they may be said to burden or benefit the races
equally.'" (1147, citation omitted) The Court has
previously applied heightened review in
evaluating prison segregation in Lee v.
Washington, which held that prison authorities
may "acting in good faith and in particularized
circumstances" (emphasis supplied) take racial
tensions into account.
California's policy is unique or close to it.
The Federal Bureau of Prisons relies on
individualized consideration, and there's no
indication why California can't do that, especially
as to transferees whom they have evaluated
already at least once.
The Court declines to make an exception
to the strict scrutiny rule and apply the Turner
standard. At 1149:
We have never applied Turner to
racial classifications. Turner itself did not
involve any racial classification, and it cast
no doubt on Lee. We think this is
unsurprising, as we have applied Turner's
reasonable-relationship test only to rights
that are 'inconsistent with proper
incarceration.' ..... " The right not to be
discriminated against based on one's race
is not susceptible to the logic of Turner. It
is not a right that need necessarily be
compromised for the sake of proper prison
administration. On the contrary,
compliance with the Fourteenth
Amendment's ban on racial discrimination
is not only consistent with proper prison
administration, but also bolsters the
legitimacy of the entire criminal justice
system. Racial discrimination is
'especially pernicious in the administration
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ofjustice.' . .. And public respect for our
system ofjustice is undermined when the
system discriminates based on race....
When government officials are permitted to
use race as a proxy for gang membership
and violence without demonstrating a
compelling government interest and
proving that their means are narrowly
tailored, society as a whole suffers.
The Court doesn't buy the argument that
deference to prison officials' expertise requires a
more lenient standard, since strict scrutiny has
been applied in other areas where officials
traditionally exercise substantial discretion, ~,
prosecutors' peremptory challenges and electoral
redistricting plans. At 1150: "Turner is too
lenient a standard to ferret out invidious uses of
race. . .. Turner would allow prison officials to
use race-based policies even when there are raceneutral means to accomplish the same goal, and
even when the race-based policy does not in
practice advance the goal."
The case is remanded for application of
strict scrutiny by the lower court.
Procedural Due Process--Disciplinary
Proceedings/Habeas Corpus
Muhammad v. Close, 124 S.Ct. 1303
(2004) (per curiam). The plaintiff challenged a
disciplinary proceeding that resulted in segregated
confinement but not in loss of good time. The
Heck v. Humphrey favorable termination rule
(requiring exhaustion of state remedies followed
by federal habeas corpus before a § 1983 suit may
be filed) does not apply. At 1304: "Challenges to
the validity of any confinement or to particulars
affecting its duration are the province of habeas
corpus ...; requests for relieftuming on
circumstances of confinement may be presented in
a § 1983 action." Regardless ofrelief sought,
where the action "impl[ies] the invalidity either of
an underlying conviction or of a particular ground
for denying release short of serving the maximum
term of confinement," the litigant must obtain
favorable termination in a state or federal habeas
corpus proceeding. At 1304 n.1: The assumption
is that the incarceration that matters under Heck is
10

Winter/Spring 2006

the incarceration ordered by the original
judgment of conviction, not special disciplinary
confinement for infraction of prison rules. This
Court has never followed the speculation in
Preiser . .. that such a prisoner subject to
"additional and unconstitutional restraint" might
have a habeas claim independent of § 1983, and
the contention is not raised by the State here.
The Court rejects (at 1306) "the mistaken
view expressed in Circuit precedent that Heck
applies categorically to all suits challenging
prison disciplinary proceedings."
Visiting
Overton v. Bazzetta, 123 S.Ct. 2162
(2003). In response to increasing prison
population and volume of visits, with the
attendant problems of maintaining order,
supervising children, and preventing drug
smuggling and trafficking, the prison system
introduced new restrictions on visiting. This
challenge to the restrictions applies only to the
non-contact visits to which the highest security
prisoners are limited.
The regulations do not infringe a
constitutional right of association. At 2167:
We have said that the Constitution
protects certain kinds of highly personal
relationships, . .. And outside the prison
context, there is some discussion in our
cases of a right to maintain certain familial
relationships, including association among
members of an immediate family and
association between grandchildren and
grandparents. . .. This is not an
appropriate case for further elaboration of
those matters. The very object of
imprisonment is confinement. Many of
the liberties and privileges enjoyed by
other citizens must be surrendered by the
prisoner. An inmate does not retain rights
inconsistent with proper incarceration....
And, as our cases have established,
freedom of association is among the rights
least compatible with incarceration....
We do not hold, and we do not imply, that
any right to intimate association is

NATIONAL PRISON PROJECT JOURNAL

altogether terminated by incarceration or is
always irrelevant to claims made by
prisoners. We need not attempt to explore
or define the asserted right of association at
any length or determine the extent to which
it survives incarceration because the
challenged regulations bear a rational
relation to legitimate penological interests.
This suffices to sustain the regulation in
question. Turner v. Safley, ... (internal
citation and quotation marks omitted)
The regulations barring minors unless they
are children, stepchildren, grandchildren, or
siblings of the prisoner; barring children if the
prisoner's parental rights have been terminated;
and requiring them to be accompanied by parent
or legal guardian "bear a rational relation to
MDOC's valid interests in maintaining internal
security and protecting child visitors from
exposure to sexual or other misconduct or from
accidental injury. The regulations promote
internal security, perhaps the most legitimate of
penological goals, ... by reducing the total
number of visitors and by limiting the disruption
caused by children in particular. Protecting
children from harm is also a legitimate goal. ..."
(2168)
Requiring the presence of adults charged
with protecting the child's best interests is
reasonable, as is the consanguinity limit. Id.: "To
reduce the number of child visitors, a line must be
drawn, and the categories set out by these
regulations are reasonable. . .. The prohibition on
visitation by children as to whom the inmate no
longer has parental rights is simply a recognition
by prison administrators of a status determination
made in other official proceedings." The ban on
former inmates, except for those who are
members of the prisoner's immediate family and
have been approved by the warden, "bears a selfevident connection to the State's interest in
maintaining prison security and preventing future
crimes." (2168)
The ban on visits for prisoners with two
substance-abuse violations serves the legitimate
goal of deterring use of drugs and alcohol in
prison. "Drug smuggling and drug use in prison

Winter/Spring 2006

are intractable problems." (2168) The Court
does. say "if faced with evidence that MDOC's
regulation is treated as a de facto permanent ban
on all visitation for certain inmates, we might
reach a different conclusion in a challenge to a
particular application of the regulation" (2169),
but that situation is not presented here.
Prisoners have alternative means of
exercising their claimed constitutional rights of
association by passing messages through those
who are allowed to visit, write letters, and
telephone. (2169). Accommodating the
prisoners' demands "would cause a significant
reallocation of the prison system's financial
resources and would impair the ability of
corrections officers to protect all who are inside a
prison's walls," facts which invoke "particularly
deferential" review. (2169)
The prisoners have not suggested an
alternative that "fully accommodates the asserted
right while not imposing more than a de minimis
cost to the valid penological goal. Respondents
have not suggested alternatives meeting this high
standard for any of the regulations at issue."
(2169) (internal citation omitted). Proposals that
would increase the number of child visitors
"surely would have more than a negligible effect
on the goals served by the regulation" (i.e.,
reducing the number of child visitors). The ban
on former prisoners could be time limited, "but
we defer to MDOC's judgment that a longer
restriction better serves its interest in preventing
the criminal activity that can result from these
interactions." Shortening the suspension of visits
for those with substance abuse offenses or
limiting it to the most serious violations "do not
go so far toward accommodating the asserted
right with so little cost to penological goals that
they meet Turner's high standard." (2170)
The ban on visits for those with substance
abuse offenses does not violate the Eighth
Amendment. At 2170:
Michigan, like many other States,
uses withdrawal of visitation privileges
for a limited period as a regular means of
effecting prison discipline. This is not a
dramatic departure from accepted
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NATIONAL PRISON PROJECT JOURNAL

standards for conditions of confinement. ...
Nor does the regulation create inhumane
prison conditions, deprive inmates ofbasic
necessities or fail to protect their health or
safety.
Justice Stevens (with Souter, Ginsburg, and
Breyer) concurs, stating that the Turner standard
is still in the saddle and nothing here suggests that
the Eighth Amendment is the outer boundary of
prisoners' constitutional rights.
Justice Thomas (with Scalia) concurs in the
judgment, seeming to argue that states can make
deprivation of constitutional rights part of their
criminal sentencing limited only by the Eighth
Amendment. At 2172: "Here, if the prisoners'
lawful sentences encompassed the extinction of
any right to intimate association as a matter of
state law, all that would remain would be
respondents' (meritless ...) Eighth Amendment
claim."
Sex Offenders/Procedural Due Process
Connecticut Dept. ofPublic Safety v. Doe,
123 S.Ct. 1160 (2003). The state sex offender
registration statute, which provides for posting of
the registry on the Internet and making it available
in state offices, does not deny due process. The
court does not reach the question whether under
Paul v. Davis, there is a liberty interest in
avoiding stigmatization as a sex offender. Even if
there is, sex offenders are not entitled to a hearing
to determine whether or not they are likely to be
currently dangerous, since current dangerousness
is irrelevant under the state statute, which operates
solely on the basis of a criminal conviction. Only
if that rule is substantively unconstitutional is
there a due process problem, and the plaintiff
disavowed any substantive due process argument.
Sex Offenders/Ex Post Facto Laws/Punishment
Smith v. Doe I, 123 S.Ct. 1140 (2003).
Convicted sex offenders and the wife of one of
them brought an Ex Post Facto Clause challenge
to the Alaska Sex Offender Registration Act
(SORA), which requires the usual panoply of
registration, verification, photography,
fingerprinting, notification of changes of address,
12

Winter/Spring 2006

etc., with information on the offenders and their
whereabouts made public.
The statute does not violate the Ex Post
Facto Clause. At 1146-47:
The framework for our inquiry is
well established. We must "ascertain
whether the legislature meant the statute
to establish 'civil' proceedings." Ifthe
intention of the legislature was to impose
punishment, that ends the inquiry. If,
however, the intention was to enact a
regulatory scheme that is civil and
nonpunitive, we must further examine
whether the statutory scheme is "'so
punitive either in purpose or effect as to
negate [the State's] intention' to deem it
'civil.'" .. Because we "ordinarily defer to
the legislature's stated intent," ... "'only
the clearest proof will suffice to override
legislative intent and transform what has
been denominated a civil remedy into a
criminal penalty." (internal citations
omitted).
Here the legislature made it clear that sex
offenders pose a high risk of reoffending and it
wanted to protect the public from them, a
legitimate nonpunitive objective. The fact that
protecting the public is also one of the purposes
of the criminal justice system does not mean that
pursuing that purpose in a regulatory scheme
makes the scheme punitive. Nor does the fact
that the registration provisions are codified in the
state criminal procedure code; plenty of other
noncriminal provisions (e.g., civil forfeiture)
appear there too. Requirements to notify
offenders of the civil consequences when they
plead guilty and at sentencing don't make the
scheme criminal either.
Absent an identifiable punitive intent, the
court examines the statute's effects under the
punishment analysis of Kennedy v. MendozaMartinez. At 1149: "The factors most relevant
to our analysis are whether, in its necessary
operation, the regulatory scheme: has been
regarded in our history and traditions as a
punishment; imposes an affirmative disability or
restraint; promotes the traditional aims of

..

NATIONAL PRISON PROJECT JOURNAL

punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect
to this purpose." Sex offender notification doesn't
have much history, and the Court rejects the
analogy to historical punishments involving
public shaming, humiliation, and banishment.
(1150).
The publicity may cause adverse
consequences for the convicted defendant, but that
isn't an integral part of the scheme's objective.
Internet notification doesn't change that
conclusion. rd.: "Widespread public access is
necessary for the efficacy of the scheme, and the
attendant humiliation is but a collateral
consequence of a valid regulation."
The scheme does not impose an affirmative
disability, since the offender need not update his
registration in person. The scheme is not
analogous to parole or probation or supervised
release, since persons subject to it can go where
they want and generally do as they wish, though
they must report some actions to police.
At 1152: "A statute is not deemed punitive
simply because it lacks a close or perfect fit with
the nonpunitive aims it seeks to advance." Alaska
could conclude that a sex offense conviction itself
is evidence of a substantial risk of recidivism; no
case-by-case assessment of risk is necessary. At
1153: "The Ex Post Facto Clause does not
preclude a state from making reasonable
categorical judgments that conviction of specified
crimes should entail particular regulatory
consequences." The scheme in Kansas v.
Hendricks required individual assessment because
the restraint was much more serious than here.

LOWER COURT CASES
Pre-Trial DetaineeslMedical Care--Standards
of Liability--Deliberate Indifference, Serious
Medical Needs
Blackmore v. Kalamazoo County, 390 F.3d
890 (6th Cir. 2004). The plaintiff was arrested,
started having sharp abdominal pains, was given
antacids, continued to have pain, was moved to an
observation cell but given no treatment, and
finally on Monday morning, after more than 48

Winter/Spring 2006

hours injail, was diagnosed by a nurse with
"classic signs of appendicitis" and taken to the
hospital for surgery.
There was a material factual issue of
deliberate indifference precluding summary
judgment, based on the plaintiffs complaints of
sharp abdominal pain and the facts that he was
given antacids by non-medical personnel, that he
vomited, that he was placed in an observation
cell, and that he received no medical attention for
over 50 hours after his arrest.
The lack of "verifying medical evidence"
does not negate a serious medical need on these
facts. At 899-900: "[W]e hold today that where a
plaintiffs claims arise from an injury or illness so
obvious that even a layperson would easily
recognize the necessity for a doctor's attention,
... the plaintiff need not present verifying
medical evidence to show that, even after
receiving the delayed necessary treatment, his
medical condition worsened or deteriorated.
Instead, it is sufficient to show that he actually
experienced the need for medical treatment, and
that the need was not addressed within a
reasonable time frame."

Sex Offenders/Civil Commitment
Brock v. Seling, 390 F.3d 1088 (9th Cir.
2004) (per curiam). A jury finding that a
prisoner suffered from some combination of
mental abnormality and personality disorder
which made him likely to engage in predatory
acts of sexual violence satisfied the constitutional
requirements for commitment as a sexual
offender at the conclusion of his prison term. It
is not necessary for the jury to identify the mental
abnormality (there was evidence here both of
paraphilia and of a personality disorder).
Good Time/Federal Officials and Prisons
White v. Scibana, 390 F.3d 997 (7th Cir.
2004). The court upholds the federal Bureau of
Prisons' policy of calculating good time based on
time actually served rather than the number of
years imposed. The court applies "full Chevron
deference" since the interpretation at issue was
adopted pursuant to notice and comment
13

NATIONAL PRISON PROJECT JOURNAL

rulemaking. Accord, Sash v. Zenk, 428 F.3d 132
(2d Cir. 2005); Mujahid v. Daniels, 413 F.3d 991
(9th Cir. 2005); Yi v. Federal Bureau ofPrisons,
412 F.3d 526 (4th Cir. 2005).

Publications/Procedural Due Process-Disciplinary Proceedings
Shakur v. Selsky, 391 F.3d 106 (2d Cir.
2004). The plaintiff complained of the
confiscation of "New Afrikan political literature"
which the officer in question characterized as
"Nubian gang materials." The plaintiff was
charged with violating Rule 105.12, which
prohibits possessing "unauthorized organizational
insignia or materials." An "unauthorized
organization" is "any gang or any organization
which has not been approved by the deputy
commissioner for program services." The
plaintiff's request that the material be forwarded to
the Facility Media Review Committee was
refused. The same thing happened a second and
third time. Then on a fourth occasion, the seizing
officer's superior sent the materials to Media
Review, where it was found that three pages were
objectionable, and the plaintiff was given the rest
of the materials. On initial screening, the district
court dismissed with prejudice the prisoner's
complaint.
The Second Circuit reversed. The plaintiff
stated a First Amendment freedom of speech
claim under the Turner standard as to the facial
constitutionality of Rule 105.12. The rule appears
to ban all literature from outside organizations
unless they have been officially approved. At
115: "Assuming that Rule 105.12 is targeted at the
legitimate goal of securing prisons, we are not
sure how a complete ban on the materials of
'unauthorized organizations' is rationally related to
that goal." In Thornburgh v. Abbott, the Supreme
Court noted in upholding censorship regulations
that it was "comforted" by the "individualized"
determinations required and the fact that the
regulations rejected "shortcuts that would lead to
needless exclusions." Those "needless
exclusions" included creation of an excluded list
of subscription publications. Rule 105.12
"appears to take a much more serious shortcut. It
14

Winter/Spring 2006

seems to ban all the publications of unlisted
organizations and allow only a discrete set of
enumerated organizational materials. This
'shortcut' greatly circumscribes the universe of
reading materials accessible to inmates. It thus
appears that Rule 105.12's ban is not sufficiently
related to any legitimate and neutral penological
objective. "
There is no record to show the alternative
means by which the plaintiff might exercise his
right, or how widely Rule 105.12 has been
applied. However, the third Turner factor favors
the plaintiff, since there is an obvious alternative:
send the publications to the Media Review
Committee, whose purpose is to review inmates'
reading materials. This alternative is supported
by the fact that on the fourth occasion, his
materials were sent there. It is unlikely that its
cost is prohibitive since it is already in place.
Assuming Rule 105.12 did not authorize
the challenged confiscations, the plaintiff also
states an as applied claim, since the first Turner
factor requires a "neutral" objective, and that
doesn't include personal prejudice, which is the
gravamen of the plaintiff's allegation that the
confiscations were "arbitrary and unjustifiable."
At 116: "Our precedent indicates that a failure to
abide by established procedures or standards can
evince an improper objective." Bypassing the
Media Review Committee suggests that the
confiscation was not done for legitimate and
neutral reasons.

PLRA-Filing Fees
Boriboune v. Berge, 391 F.3d 852 (7th
Cir. 2004). The district judge declared that
prisoners would no longer be able to file joint
complaints because of the PLRA and problems
resulting from multi-plaintifflitigation,
notwithstanding the permissive joinder regime of
Fed. R. Civ. P. 20. The court rejects the
argument that the PLRA modifies or repeals Rule
20 and holds joint complaints are permissible.
The question of filing fees is separate.
Although "one case, one filing fee" is the norm in
litigation, the PLRA requires every plaintiff to
pay a filing fee. At 856: "A per-litigant approach

NATIONAL PRISON PROJECT JOURNAL

is a natural concomitant to a system that makes
permission to proceed in forma pauperis (and the
amount and timing of payments) contingent on
certain person-specific findings, see § 1915(a),
§1915A, including the number of unsuccessful
suits or appeals the prisoner has pursued in forma
pauperis, see § 1915(g), and the balance in the
prisoner's trust account, see § 1915(b)."
Contradictions between the PLRA and multipleplaintiff litigation vanish if all plaintiffs have to
pay a fee.
On remand, the district judge has just
interpreted the above quoted language about §
1915(g), the "three strikes" provision, as requiring
that a plaintiff in a dismissed multi-plaintiff suit
receive as many strikes as there are plaintiffs
whose claims were entirely dismissed. Boriboune
v. Berge, 2005 WL 1320345 (W.D.Wis., June 1,
2005).
Protection from Inmate Assault
Pierson v. Hartley, 391 F.3d 898 (7th Cir.
2004). The plaintiff was badly beaten in an open
dormitory "meritorious assignment" unit that
required the prisoners to have been in general
population for one year and to have been free for
ten years from convictions or conduct violations
that would be considered a serious security threat.
The assailant had been placed there despite having
spent no time in the general population, having
had a history of violent conduct in the local jail he
came from, and having arrived with a letter from
the Sheriff describing him as an "escape and
assault risk." He remained in the unit despite a
disciplinary conviction for possessing a weapon.
There was evidence that the two prison
officials who were found liable knew of the risk
the assailant posed to other inmates--i.e., that they
knew of the letter concerning the assailant's
aberrant behavior, that they would have known of
his weapons conviction based on their job
descriptions, and that they knew he was in the unit
in violation of prison policy. At 903: "Whether
the defendants knew that Wilkinson posed a
specific risk to Pierson--rather than all the
members of 'E' dorm--is unimportant; for in order
to establish a constitutional violation, it does not

Winter/Spring 2006

matter 'whether a prisoner faces an excessive risk
of attack for reasons personal to him or because
all prisoners in his situation face such a risk.'"
(903, citations omitted) The jury could have
found that the defendants disregarded that risk by
assigning the assailant to the dorm and then by
allowing him to remain after the weapons
conviction. At 904: "Such inaction in the face of
a substantial risk is sufficient to demonstrate
deliberate indifference under the Eighth
Amendment."
Medical Care--Standards of Liability-Deliberate Indifference, Access to Outside
Services
Rosado v. Alameida, 349 F. Supp.2d
1340 (S.D. Cal. 2004). The plaintiff has a lifethreatening liver condition (Hepatitis C with
cirrhosis) and sought injunctive relief to be
placed on a liver transplant list and receive other
necessary care.
Differences of opinion about appropriate
treatment are not actionable. At 1344-45: "In
order to prevail on a claim involving choices
between alternative courses of treatment, a
prisoner must show that the course of treatment
the doctors chose was medically unacceptable in
light of the circumstances and that they chose
this course in conscious disregard of an excessive
risk to plaintiffs health."
It is undisputed that a liver transplant is
the only thing that will keep the plaintiff alive for
long. The defendants argue only that they have
provided a lot of medical care. The plaintiff
demonstrates a strong likelihood of proving that
a liver transplant is medically necessary.
The plaintiff shows more than a mere
possibility of irreparable harm, i.e. death. On a
preliminary injunction motion, "the Ninth Circuit
expects lower courts to protect physical harm
[sic] to an individual over monetary costs to
government entities." (1348) Where budgetary
impact is more speculative and physical harm to
plaintiffs is "uncertain only in timing and
severity," the balance of hardship tips in the
plaintiffs favor.

IS

NATIONAL PRISON PROJECT JOURNAL

The court therefore grants a preliminary
injunction requiring the defendants to contact the
ten liver transplant centers in California that have
not already seen the plaintiff to determine whether
they will accept a prisoner. Of those who will, the
defendants shall choose the two that are likely to
accept the plaintiff in the shortest time frame, and
then arrange for evaluations at those facilities. If
none of this works out, plaintiff may return to
court.
Religion--Practices/Sex Offenders
Wares v. Simmons, 392 F.3d 1141 (lOth Cir.
2004). The plaintiff refused to enroll in the
Sexual Abuse Treatment Program. As a result, his
security classification was increased and various
restrictions were imposed on him, including
denial of religious texts and study materials. The
district court dismissed his case under the
reasoning of McKune v. Lite, which involved the
same program. The Tenth Circuit holds that
McKune is irrelevant, since the issue there was
whether the Fifth Amendment barred any
restrictions on prisoners who refused to participate
in the program, and the issue here is whether a
particular restriction violates the First
Amendment.
The court concludes that on this pleadingstage record all the evidence must be viewed in a
light most favorable to the plaintiff, and remands
for further proceedings, since the record does not
permit the court to conclude that the prisoner has
failed to state a claim upon which relief can be
granted.
PublicationslDeference
Jacklovich v. Simmons, 392 F.3d 420 (10th
Cir.2004). Prisoners and the publisher of Prison
Legal News challenged a rule banning the receipt
of gift publications and subscriptions, a limit of
$30 a month on publication purchases, and a
complete ban on purchase of publications by
"Level I" inmates (which includes all prisoners for
the first 120 days after completing intake). In
addition, notice of non-delivery was given only to
the recipient and not to the sender. The district
court concluded that the policies were rationally
16

Winter/Spring 2006

related to security, deterrence, and rehabilitation,
and are content neutral.
The Tenth Circuit holds that the district
court erred in failing to consider the other three
Turner standard factors; that is proper only when
there is no rational relationship between the
challenged prison practice and legitimate
penological ends. In addition, there are factual
disputes concerning the existence of a rational
relationship. Plaintiffs expert opined that the
policies served no legitimate interest and might
undermine rehabilitation. The McKune v. Lite
holding endorsing the use of "incentives to
behave" does not "equate with an endorsement of
every aspect of the privilege and incentive
system; review under the Turner factors is still
appropriate." (429) The complete ban on
publications, except for a primary religious text,
in Level I "appears to be a function of status, not
behavior.... We fail to see how a four-month
complete denial of access to constitutionally
protected materials (regardless of behavior)
furthers behavior management or rehabilitation."
(429) The limitation on expenditures is not
adequately linked to increased payment of
restitution, child support, or court filing fees; if
prisoners are required to meet these obligations
first, the $30 limit doesn't seem to be a factor.
The fact that prisoners are permitted to spend
$180 a month for canteen items raises further
questions. The central rationale for the policy is
the prevention of strong-arming, but there is no
limit on the funds from outside that can be put in
an inmate's account, facility canteen purchases
are permitted up to $180 a month, and those
items (which include TVs) would appear more
likely prospects for strong-arming.
As to alternative means of exercising the
right, access to radio or TV "is not an adequate
substitute for reading newspapers and
magazines." (431) The question is whether the
challenged policies permit a broad range of
publications to be read, and the cost of
subscriptions may foreclose such access absent
gift subscriptions; even if it's easy for friends and
relatives to send money, the $30 limitation is
restrictive.

Winter/Spring 2006

NATIONAL PRISON PROJECT JOURNAL

As to the effect of accommodation, it is
questionable whether removing the $30 limit
would affect the strong-arming policy in view of
the high limit on canteen purchases and the ability
to receive items such as radios and TVs from
outside. Delivering gift publications given that
they already deliver authorized publications would
not seem burdensome. At 432: "Also relevant,
other institutions apparently permit receipt of gift
publications, including the Federal Bureau of
Prisons."
As to the availability of ready alternatives,
the prison system maintains a database allowing it
to check every publication entering the facility, so
it already spends significant time and effort
tracking publications and presumably could track
more.
The failure to give notice of nondelivery to
the sender of publications presents factual issues
under the Turner standard. Under Procunier v.
Martinez, both inmates and correspondents have a
qualified liberty interest in uncensored
communication, and Thornburgh v. Abbott held
that publishers have a First Amendment right in
access to prisoners. At 433: "Other courts have
recognized that both inmates and publishers have
a right to procedural due process when
publications are rejected." This one agrees. Most
rejections, under present policy, will be for lack of
a prison purchase order; there is evidence in the
record of at least one error in this regard.
Providing individualized notice "would appear to
impose a minimal burden. . .. On remand, the
district court may fashion an appropriate
procedure. The district court may consider any
changed circumstances in imposing a remedy."
Thus the appeals court appears to be directing
summary judgment for the plaintiffs.

Sex Offenders/Civil Commitment Pre-Trial
DetaineeslDue Process--Conditions of
Conrmement as Punishment
Jones v. Blanas, 393 F.3d 918 (9th Cir.
2004), cert. denied, 126 S.Ct. 351 (2005). The
plaintiff completed his criminal sentence but was
held in jail pending proceedings to commit him
civilly under the state Sexually Violent Predator

Act, which requires confinement in a "secure
facility" separate from convicts and detainees
held for criminal proceedings, and in
"administrative segregation," which means
"separate and secure housing that does not
involve any deprivation of privileges other than
what is necessary to protect the inmates and
staff." The plaintiff wound up spending two
years at the Sacramento County Jail, for the first
year in the general criminal detainee population,
and for the second year in administrative
segregation, where he endured numerous strip
searches, some conducted outdoors, some at
gunpoint in the middle of the night, and some in
the sight of many staff members of both sexes.
The plaintiffs substantive claims are
governed by the "more protective" Fourteenth
Amendment standard and not by the Eighth
Amendment standard. At 932: "... [T]he
conditions of confinement for an individual
detained under civil process but not yet
committed must be tested by a standard at least
as solicitous to the rights of the detainee as the
standards applied to a civilly committed
individual accused but not convicted of a crime."
Further (at 932), "when a SVPA detainee is
confined in conditions identical to, similar to, or
more restrictive than, those in which his criminal
counterparts are held, we presume that the
detainee is being subjected to punishment. The
court also held it is also relevant to "compare
confinement conditions of civil detainees preadjudication to conditions post-commitment. ...
Or, to put it more colorfully, purgatory cannot be
worse than hell. Therefore when an individual
awaiting SVPA adjudication is detained under
conditions more restrictive than those the
individual would face following SVPA
commitment, we presume the treatment is
punitive." (932).
I

Religion--Practices--Diet
Searles v. DeChant, 393 F.3d 1126 (10th
Cir.2004). The Jewish plaintiff was assigned to
work in food service, where he said he was
subject to "aroma, ingestion, and contact with
non-kosher food."
17

NATIONAL PRISON PROJECT JOURNAL

To the extent defendants argue that
avoidance of "aroma, ingestion, and contact with
non-kosher food" is a "non-central religious
practice" and therefore entitled to less protection
than "central or core tenets," the court disagrees,
citing the Supreme Court's statement, "It is not
within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the
validity of particular litigants' interpretations of
those creeds." (1131 n. 6, citation omitted) The
court further notes that the plaintiffs interpretation
of kosher is "not far-fetched," citing the fact that
he had twice subjected himselfto prison discipline
over it.
The plaintiffloses anyway. At 1132:
"The district court relied on the two penological
interests advanced by defendants: budgetary
concerns, and the need for a nondiscriminatory
and consistent prison staffing. These appear to be
legitimate penological interests."

Legal Correspondence/Emergencies and
LiabilitylDeference/Qualified Immunity
Allah v. Brown, 351 F.Supp.2d 278 (D.N.J.
2004), aff'd, 461 F.3d 353 (3d Cir. 2006). After
9/11/01, the Acting Governor of New Jersey
issued an executive order authorizing state
agencies to suspend or modify existing rules to the
extent they jeopardized public welfare, so the
prison system stopped opening legal mail in
prisoners' presence to check for contraband and
anthrax contamination and did so elsewhere on
the prison grounds.
Wolffv. McDonnell upheld a regulation
prescribing opening of legal mail in the prisoner's
presence, but did not say whether opening it
outside the prisoner's presence is unconstitutional.
However, in the Third Circuit "it is clear that as a
general matter, prisoners have a constitutional
right to be present when their legal mail is
opened." The question is whether that is still the
case "in the context of today's heightened
terrorism concerns, and more specifically, the
threat of anthrax contamination through the mail."
(281)
Applying the Turner standard, the court
finds there is no reasonable connection between
18

Wimer/Spring 2006

the new legal mail policy and the asserted
interest. Defendants offer no evidence of an
elevated risk of anthrax contamination in prisons
or of any attempt to expose prisoners to anthrax
in the past three years. The new procedure
doesn't lessen the risk of exposure, it just changes
who is subjected to it. At 282: "A policy
requiring that legal mail be opened in an
enclosed area would be reasonable, and a policy
providing that any suspicious letters marked as
legal mail be opened outside the inmates'
presence might also be appropriate." But the
blanket policy overreaches the legitimate interest
in safety and security.
There are no alternatives for inmates
freely to communicate with attorneys and courts,
but defendants argue that the policy is only a
"minor burden" on prisoners' rights since they say
they don't read the mail. However, as Wolffsaid,
the only way to insure the mail is not read is to
require the prisoner's presence, and the plaintiffs'
allegations suggest that they believe the mail is
being read. This is precisely the "chilling effect"
the Third Circuit warned about, so opening the
mail outside prisoners' presence could have a
significant effect on communication with
attorneys and courts and is not a "minor burden."
Defendants have not shown that opening
the mail in the prisoners' presence is burdensome.
The fact that they have centralized mail opening
on the prison grounds and bringing the prisoners
there would cause a "logistical nightmare" is not
persuasive because there are surely other mail
processing procedures, such as doing it within
the prison building.
The defendants are entitled to qualified
immunity, since the policy was "enacted at a very
uncertain time in our history" for legitimate
purposes, and a reasonable official could believe
it was constitutional.

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Pre-Trial Detainees/Hygiene/Dental
Care/Medical Care--Serious Medical Needs,
Deliberate Indifference/Heating and
Ventilation/Hazardous Conditions and
Substances
Board v. Farnham, 394 F.3d 469 (7th Cir.
2005). The two plaintiffs, detained for 126 days,
alleged that they were not provided with
toothpaste, respectively, for 90% of that period,
despite repeated requests to the Sheriff; one
plaintiff said he lost several teeth as a result.
The court says that only the plaintiff who
lost teeth has a claim for deliberate indifference to
medical needs because "significant harm or
injury" must be shown. The plaintiffs testimony
that he suffered dental pain throughout his
incarceration and that teeth which should have
been surgically removed were merely broken off
below the gum line, posing further risk of serious,
even life-threatening infection and possibly death,
sufficiently established a serious medical need.
The testimony that he complained to the Sheriff
about 15 times supported a deliberate indifference
claim. The law forbidding deliberate indifference
to serious medical needs was well established and
a reasonable officer would have understood he
was violating it; qualified immunity is denied.
Both plaintiffs argued that the denial of oral
hygiene supplies was an Eighth Amendment
violation independent of resulting injury. At 482:
"This is a distinct and cognizable constitutional
claim under the Eighth Amendment." Therefore
the court analyzes it "in the context of the
constitutional right of pretrial detainees to receive
necessary and proper personal hygiene items as
preventative of future medical and physical harm."
(482) While the court said in Harris v. Fleming
that 10 days without toothpaste doesn't violate the
Eighth Amendment, other circuits have
recognized a right to toothpaste. At 482: "Indeed,
the right to toothpaste as an essential hygienic
product is analogous to the established. right to a
nutritionally adequate diet" since it helps prevent
future potentially serious dental problems. Since
the plaintiffs said they complained repeatedly to
the Sheriff, they have sufficiently alleged
deliberate indifference. The right to adequate

Winter/Spring 2006

dental care is clearly established; it's a basic
human need.
The plaintiffs also said they suffered
frequent nosebleeds as a result ofthe jail's
ventilation system, which issued a "constant flow
of black fiberglass dust," a claim corroborated by
a contractor who inspected the system. One
plaintiff further claimed that the poor ventilation
exacerbated his asthma, and he was deprived of
his inhaler on several occasions:
At 484... [A]sthma can be, and
frequently is, a serious medical condition
depending on the severity of the attacks." The
defendant officers "knew or should have known
that Duke was suffering from asthma, a serious
medical condition, and to refuse the man his
inhaler putting Duke [sic] at a 'serious risk of
being harmed'; both guards made a conscious
decision not to act when they easily could have."
The right to treatment for serious medical needs
was clearly established and the defendants were
or should have been on notice that their conduct
could violate it.
At 485-86: There is a constitutional right to
adequate ventilation. The conditions alleged by
the plaintiffs constitute an objectively serious
harm. Evidence that a contractor found the duct
system contaminated with black mold and
fiberglass liner which constituted a health hazard,
and defendants when notified did nothing but
vacuum the grates, sufficiently supported a
deliberate indifference claim. The "right to
adequate and healthy ventilation" has been
clearly established for almost two decades.

Sex Offenders/Procedural Due Process
Coleman v. Dretke, 395 F.3d 216 (5th
Cir.2004). The plaintiff, on parole, was charged
with child molestation but pled guilty only to
misdemeanor assault. He was released on
mandatory supervision. A month later the parole
board required him to register as a sex offender
and attend sex offender therapy, without notice
or hearing. His parole was revoked for failure to
comply. At 222-23 (footnotes omitted):
Applying Vitek [v. Jones} in the
sex offender arena, the Ninth and
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NATIONAL PRISON PROJECT JOURNAL

Eleventh Circuits have held that prisoners
who have not been convicted of a sex
offense have a liberty interest created by the
Due Process Clause in freedom from sex
offender classification and conditions. We
agree. . .. As in Vitek, the state imposed
stigmatizing classification and treatment on
Coleman without providing him any
process. The state's sex offender therapy,
involving intrusive and behavior-modifying
techniques, is also analogous to the
treatment provided for in Vitek.. ...
Texas's sex offender therapy program is
"qualitatively different" from other
conditions which may attend an inmate's
release. Accordingly, the Due Process
Clause, as interpreted in Vitek, provides
Coleman with a liberty interest in freedom
from the stigma and compelled treatment on
which his parole was conditioned, and the
state was required to provide procedural
protections before imposing such conditions.
The court says the state courts' decision to
the contrary contravenes clearly established
federal law and can support habeas relief under
AEDPA.
The imposition of sex offender treatment
without a sex offense conviction does not "shock
the conscience" and therefore does not deny
substantive due process; conscience-shocking
conduct is likely to be conduct intended to injure
which is unjustifiable by any government interest,
and sex offender treatment does serve a purpose
and doesn't seem intended to injure.
FLSA/Private Prisons
Bennett v. Frank, 395 F.3d 409 (7th Cir.
2005). At 409: "The Fair Labor Standards Act is
intended for the protection of employees, and
prisoners are not employees of their prison,
whether it is a public or a private one. So they are
not protected by the Act." At 410: "We cannot
see what difference it makes if the prison is
private."

20

Winter/Spring 2006

Publications/Qualified Immunity
Prison Legal News v. Lehman, 397 F.3d
692 (9th Cir. 2005). The court affirms the
district court's holding that a prohibition on
receipt of non-subscription bulk mail and
catalogs violates the First Amendment. At 699:
"Publishers have a First Amendment right to
communicate with prisoners by mail, and inmates
have a First Amendment right to receive this
mail."
Defendants' policy does not satisfy the
Turner standard. It lacks a rational relationship
to reducing the volume of mail that may contain
contraband; the court thinks it is far more likely
that contraband would be contained in first class
mail than in bulk mail. The prohibition has no
rational relationship to reducing the risk of fire
because defendants already regulate the total
amount of property prisoners may have in their
cells. For the same reason, the prohibition is not
rationally related to increasing the efficiency of
cell searches.
The fact that in this case the prisoners did
not pay for the mail sent them does not matter; "it
is the fact that a request was made by the
recipient, and not the fact that the recipient is
paying to receive the publication, that is
important." (700). The same procedural
protections must be observed as for first class,
periodical, or subscription bulk mail: "notice and
review of rejections. " (701)
The prison system's policy regarding
"third-party legal material" prohibits delivery of
"mail containing information which, if
communicated, could create a risk of violence
and/or physical harm to any person," and permits
delivery ofjudicial opinions and orders and
litigation documents consistently with that
restriction. This policy is constitutional on its
face. Prison officials are not entitled to qualified
immunity from a claim that they applied this
policy in a discriminatory fashion to suppress
materials that would embarrass the agency and
educate prisoners on how to file their claims. For
this claim, their bad motivation itself would
violate the First Amendment.

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PLRA--Three Strikes Provision/PLRA--In
Forma Pauperis Provisions--Applicability
Andrews v. King, 398 F.3d 1113 (9th Cir.
2005). Plaintiffs don't have to plead
inapplicability of the three strikes provision,
defendants have to produce documentary evidence
of three dismissals that fit the statutory definition
of strikes. Once they do that, the burden shifts to
the prisoner to show that the prior dismissals
should not count as strikes.
At 1121: "Not all unsuccessful cases qualify
as a strike under § 1915(g). Rather, § 1915(g)
should be used to deny a prisoner's IFP status only
when, after careful evaluation of the order
dismissing an action, and other relevant
information, the district court determines that the
action was dismissed because it was frivolous,
malicious or failed to state a claim."
The fact that the plaintiff had 22 prior
dismissals did not shift the burden to the plaintiff
to show that they were not strikes.
Dismissals of cases filed when the prisoner
was in INS detention are not strikes unless the
detainee also faces criminal charges. The statute
addresses only "prisoners," who are people held in
connection with criminal matters. INS detainees
are civil detainees and not prisoners. "On remand,
Andrews bears the burden of establishing that he
was in INS custody and that he was not facing
criminal charges at the time he filed the action."
(1122)
Dismissed habeas petitions are not strikes
(1122). But (at 1123 n.12), "[w] erecognize,
however, that some habeas petitions may be little
more than 42 U.S.c. § 1983 actions mislabeled as
habeas petitions so as to avoid the penalties
imposed by 28 U.S.C. § 19l5(g). In such cases,
the district court may determine that the dismissal
of the habeas petition does in fact count as a strike
for purposes of § 19l5(g)."
Protection from Inmate Assault/Classification-Race
Brown v. Budz, 398 F.3d 904 (7th Cir.
2005). The plaintiff, who is white, was held at the
Sexually Violent Persons and Detention Facility
awaiting a civil commitment trial as a sexually

Winter/Spring 2006

violent person. There he was assaulted by an
African-American resident who had attacked
other white residents and, it is alleged, whose
propensity for violence and history of attacking
white prisoners were known to the defendants,
along with the general tendency of AfricanAmericans in the Facility to attack whites.
The plaintiff s allegations state a
constitutional claim under the deliberate
indifference standard. The court rejects the
argument that the plaintiff suffered "no more
than a generalized risk of violence experienced
by all Caucasian residents in a facility
predominantly populated by Caucasians." Under
Farmer v. Brennan, a risk need not be personal
to the plaintiff. This plaintiff "has alleged a risk
posed by a specific assailant, with known
propensities of violence toward a specific class of
persons ... who was left in his presence
unsupervised." At 915:
While we have often found
deliberate indifference where custodians
know of threats to a specific detainee
posed by a specific source, we have not
been constrained by this fact pattern. It
is well settled that deliberate indifference
may be found though the specific identity
of the ultimate assailant is not known in
Indeed, the
advance of assault.
converse is also true
[D]eliberate
indifference can be predicated upon
knowledge of a victim's particular
vulnerability (though the identity of the
ultimate assailant not known in advance
of attack), or, in the alternative, an
assailant's predatory nature (though the
identity of the ultimate victim not known
in advance of attack).
Thus a deliberate indifference
claim may be predicated on custodial
officers' knowledge that a specific
individual poses a heightened risk of
assault to even a large class of detainees-notwithstanding the officials' failure or
inability to comprehend in advance the
particular identity of this individual's
ultimate victim.... Deliberate
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NATIONAL PRISON PROJECT JOURNAL

indifference may also be predicated on the
custodian's knowledge of an assailant's
predatory nature.
Grievances and Complaints about Prison
Hasan v. Us. Dep't ofLabor, 400 F.3d
1001 (7th Cir. 2005). The plaintiff filed a
grievance accusing a guard of having tampered
with his typewriter; after an investigation found
the accusation to be groundless, the plaintiff was
disciplined for lying. Although prisoner
grievances, unless frivolous, are protected by the
First Amendment, the plaintiffs claim fails
because he did not dispute the defendants'
evidence that he was punished not for filing a
grievance, but instead for lying.
The court rejects the notion that a retaliation
plaintiff must prove that "but for" the retaliation,
the adverse action would not have occurred; in
employment cases, the plaintiff need only show
that the protected speech was a "motivating
factor," at which point the burden shifts under Mt.
Healthy and the defendant must show that the
adverse action would have been taken anyway. At
1006:
We cannot think of a reason why a
stricter standard for proof of causation
should apply when the plaintiff is a prisoner
rather than an employee. A prisoner has less
freedom of speech than a free person, but
less is not zero, and ifhe is a victim of
retaliation for the exercise of what free
speech he does have, he should have the
same right to a remedy as his free
counterpart. Cf Turner v. Safley, supra,
482 U.S. at 84....
Searches--Person--Convicts/Pendent and
Supplemental Claims; State Law in Federal
Courts
Padgett v. Donald, 401 F.3d 1273 (11th Cir.
2005). The Georgia statute requiring DNA
sampling of all convicted incarcerated felons is
not unconstitutional. Federal appeals courts have
unanimously upheld such statutes, under either the
"special needs" analysis or the traditional Fourth
Amendment balancing test. This court adopts the
22

Winter/Spring 2006

general balancing test and relies on prisoners'
reduced expectations ofprivacy in their
identities.
The statute does not violate the due
process right to bodily privacy. The Supreme
Court has recognized two types of interests
protected by this right: "an individual's interest
in avoiding disclosure of certain personal
matters" and "an individual's autonomy in
making certain important decisions, such as those
involving marriage, contraception, and
procreation." (1280) The plaintiffs waived their
argument concerning disclosure of personal
information. The court declines to extend its
decision in Fortner v. Thomas, which held that
being viewed in the nude by officers of the
opposite sex may violate the right to privacy,
beyond compelled nudity. The right at issue here
is not "fundamental" or "implicit in the concept
of ordered liberty"; the intrusion is similar to
drug testing, which is done routinely.
The statute does not violate the Georgia
constitution, even though that constitution
protects a privacy right broader than that
recognized by the federal Constitution and
governed by a compelling state interest/narrow
tailoring standard. Law enforcement is a
compelling state interest and the statute is
narrowly tailored to promote it, limiting DNA
profiling to incarcerated felons and limiting
release of information to law enforcement
purposes.
Other decisions upholding DNA
collection requirements include Nicholas v.
Goord, 430 F.3d 652 (2d Cir. 2005); Groceman
v. United States Dep 't ofJustice, 354 F.3d 411
(5th Cir. 2004) (per curiam).
Grievances and Complaints about
PrisonIWork Assignments/Pleading
McElroy v. Lopac, 403 F.3d 855 (7th Cir.
2005) (per curiam). Under the federal notice
pleading standards, the prisoner sufficiently
stated a retaliation claim by alleging that he was
falsely charged with disciplinary offenses for
exercising his right of free speech. It was
sufficient to state the retaliatory conduct and the

NATIONAL PRISON PROJECT JOURNAL

allegedly constitutionally protected activity that
motivated it. However, the plaintiff's speech to
his work supervisor was not protected by the First
Amendment, because it pertained to a "matter of
'purely individual economic importance' and not
of public concern." Some other circuits have
refused to apply public employee standards to
prisoner First Amendment claims. Compare
Friedl v. City ofNew York, 210 F.3d 79,87 (2d
Cir.2000).
Hazardous Substances and Conditions
Talal v. White, 403 F.3d 423 (6th Cir. 2005).
The plaintiff alleged that he is allergic to tobacco
smoke, that defendants failed to enforce the nosmoking rule in his non-smoking housing unit,
and that when he complained about it they
retaliated against him by exposing him to even
more tobacco smoke. He stated an Eighth
Amendment claim. At 427 (footnote omitted):
[The plaintiff] alleges that he has
been subjected to excessive levels of smoke
at the hands of both staff and other inmates
and that TCIP's ventilation system merely
re-circulates smoke-filled air. Additionally,
he has substantiated that he suffers from
ETS allergy. The record contains medical
documentation evidencing this fact and
establishing that smoke causes Talal sinus
problems and dizziness. On several
occasions, medical staff recommended that
Talal have a non-smoking cell partner. On
at least one occasion, medical staff
recommended that he be placed in a nonsmoking unit. Based upon these facts, we
conclude that Talal has alleged that he has a
medical condition which is sufficiently
serious to satisfy the objective component of
the Helling test.
The plaintiff also sufficiently alleged
deliberate indifference, since prison records
attached to the Complaint show that his allergy
was known to prison officials; he alleged that
officers smoked and allowed prisoners to smoke;
and he filed grievances and requested a cell
change. This case is in stark contrast to one in
which prison officials made good-faith efforts to

Wimer/Spring 2006

enforce a no-smoking policy. The allegations
here reflect both knowledge and obduracy and
wantonness. At 428: "Contrary to the district
court's opinion, the mere existence of nonsmoking pods does not insulate a penal
institution from Eighth Amendment liability
where, as here, a prisoner alleges and
demonstrates deliberate indifference to his
current medical needs and future health."
Food/Hygiene/Cruel and Unusual Punishment
Rodriguez v. Briley, 403 F.3d 952 (7th
Cir.2005). A prison rule that requires prisoners
to stow certain of their personal property in a box
whenever they leave the cell can be enforced by
not letting them leave the cell if they don't
comply. The plaintiff repeatedly refused to
comply, and therefore missed 75 showers and
300 to 350 meals in 18 months, losing 90
pounds. At 952: "Not that he needed those 90
pounds, since, before he started skipping meals,
he weighed between 250 and 300 pounds and he
is only 5 feet 8 inches tall." There is no Eighth
Amendment violation. At 952-53: "... [W]e
think that deliberate noncompliance with a valid
rule does not convert the consequences that flow
automatically from that noncompliance into
punishment. Rodriguez punished himself." The
court analogizes to civil contempt. At 953: "At
some point, refusal to eat might tum suicidal and
then the prison would have to intervene....
Likewise if noncompliance with the rule were a
product of insanity."
Sexual AbuselMunicipatities
Gonzales v. Martinez, 403 F.3d 1179
(10th Cir. 2005). The female plaintiff alleged
that she was raped at knife point by the
administrator of the Huerfano County Jail on the
same day that another female prisoner was
sexually assaulted by the senior detention officer.
The prisoners complained immediately and the
two staff members were suspended and
criminally convicted.
The plaintiffs municipal liability claim
was supported by evidence from the preceding
year that tended to show that the jail was out of
23

NATIONAL PRISON PROJECT JOURNAL

control; some of it had nothing to do with sexual
misconduct by staff. At 1186-87: "[V]iewing the
evidence in a light most favorable to [the
plaintiff], it may be fairly inferred Sheriff
Salazar's purported ignorance of the dangerous
conditions in the jail was a direct result of his
lackadaisical attitude toward his responsibility to
run the institution." The Court found that an
"inference of the sheriff s lack of responsiveness"
could be drawn from other factors as well. First,
the Sheriff stated that the jail administrator did not
want to investigate allegations of problems at the
jail. Second, the evidence demonstrated the
Sheriff's "consistent willingness to ignore inmate
complaints by attributing them to attitudes of the
complainants, characterizing them as
'troublemakers' or 'conjuring up' incidents to
'discredit' his deputies, allowed him to excuse his
failure to pursue the issues any further." (1187).
Third and "most astonishing," after being advised
that two visibly upset female prisoners alleged
sexual abuse by jailers, the Sheriffleft them in the
custody and control of the men accused of the
assaults.
The court adds that the district court misread
Farmer, believing it required the plaintiffto show
that the Sheriff "specifically knew [the assailant]
posed a substantial risk of harm to her." Under
Farmer, if the prison official knows of an "an
obvious, substantial risk to inmate safety," it is
immaterial that the prison official "did not know
that the complainant was especially likely to be
assaulted by the specific prisoner who eventually
committed the assault." (1187 quoting Farmer).
Knowledge of a substantial risk may be shown by
inference from circumstantial evidence.
Disabled/Transfers/Special DietsIMedical
Care--Standards of Liability--Deliberate
Indifference/Summary Judgment/Statutes of
Limitations
Scott v. Garcia, 370 F.Supp.2d 1056
(S.D.Cal. 2005). The plaintiff developed severe
stomach and digestive problems and was
diagnosed with esophageal erosion, possible
Barrett's esophagus, multiple gastric erosions,
gastric ulcer, pyloric channel ulcer, duodenal bulb
24

Winter/Spring 2006

ulcer and multiple second duodenum ulcers. He
was prescribed anti-reflux medication and told to
avoid fatty and spicy foods. The chief medical
officer said that he needed a transfer to an
institution with medical hospital facilities. By
the time he actually got transferred, the medical
officer had issued three more recommendations
for "immediate transfer" and five months had
passed while classification and other personnel
shuffled papers. At one point the
recommendation was overruled by a chief
medical officer in Sacramento, who said an
outpatient facility would be sufficient, without
explanation of the basis for his opinion or
evidence that he examined the plaintiff or
reviewed his medical records. When he was
finally transferred, it was determined that he
needed surgery, and three months later half of his
stomach was removed.
Members of the classification committee
could be found deliberately indifferent,
notwithstanding their claim that they could not
transfer inmates but only make recommendations
to transfer, because they didn't make
recommendations consistent with the chief
medical officer's direction, and that
recommendation was necessary in order for the
transfer to happen. They kept trying to arrange a
transfer to Corcoran or Pelican Bay. At 1068-69:
"The fact that the Defendants were considering a
transfer to Pelican Bay indicates that they were
not concerned with, or failed to consider,
Plaintiff's medical needs given that Pelican Bay
does not have an on-site acute care hospital."
Further, there is evidence that the plaintiff
suffered from extreme anxiety over his condition
and from extreme abdominal pain before having
the surgery, showing that "Defendants were
aware of a risk of serious injury to Plaintiff when
they denied him transfer to a licensed hospital for
a period of five months." (1069)
The warden could not be found
deliberately indifferent based on evidence that
the plaintiff told her about his problem, she
displayed compassion and said she would see
what she could do, and he was transferred a
month later.

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Winter/Spring 2006
----------------

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A doctor who refused to transfer the plaintiff
to a prison that could accommodate his dietary
requirements and who denied requests to receive
an extra lu~ch and dietary supplement drinks
pursuant to his own prior medical
recommendations could be held deliberately
indifferent. (He said the plaintiff needed more
time to eat, then said it was a "custody issue"
when correction staff wouldn't allow it, and
wouldn't readmit him to a medical facility where
his needs could be met.)
The plaintiffraises a material factual issue
under the Americans with Disabilities Act. He is
disabled. Eating is a major life activity, and the
plaintiff s dietary restrictions are serious enough
to substantially limit it. He provides evidence that
he was denied access to the prison meal service
because of his disability in that he was not given
enough time to eat or to eat small frequent meals.
Telephones/Equal Protection
Gilmore v. County ofDouglas, State of
Nebraska, 406 F.3d 935 (8th Cir. 2005). A 45%
commission paid to the county by the jail
telephone provider and surcharged to prisoners'
relatives did not deny them equal protection
relative to other telephone users who receive
collect calls from non-prisoners. The district
court held there was no violation because the
recipients of inmate calls are not similarly situated
to recipients of non-inmate calls. The appeals
court says the plaintiffloses even accepting her
view of the proper comparison, since the disparity
is reasonably related to defraying the costs of
providing telephone service to prisoners. The
absence of evidence that defraying the costs was
actually the reason for the disparity doesn't matter
under the rational basis test, which requires only a
showing that there is a reasonably conceivable
basis that could justify the classification.
At 983: "Under rational basis review, a
plaintiff must show more than that the
government treated two classes differently
for some irrational reason, a plaintiff must
show that the government intended to
discriminate against the class."

Correspondence--Legal and Official/Access to
Courts
Simkins v. Bruce, 406 F.3d 1239 (lOth
Cir.2005). The plaintiff was temporarily
transferred (for a year) from prison to a local jail
for court proceedings, and his legal mail was held
rather than being forwarded, resulting in his not
receiving notice of a summary judgment motion
in a civil case and the granting of that motion as
uncontested.
At 1242: ... [T]he plaintiff's claim that a
right of access to the courts has been
impeded requires him to allege
intentional conduct interfering with his
legal mail, and does not require an
additional showing of malicious motive.
Negligence is not sufficient. The mail
room supervisor's affidavit stating she
held the mail "in accordance with her
training" shows intentional conduct. (The
prison regulation requires forwarding, but
she said she was trained to forward mail
only within the state, and the plaintiff was
held in another state). This conduct
violated clearly established law.
At 1243: "Indeed, the principle that
unimpeded transmission of inmate legal
mail is the 'most obvious and formal
manifestation' of the right of access to the
courts, ... has been clearly established
for some time now."
The plaintiff sustained "actual injury" as
required by Lewis v. Casey. At 1243-44
(footnote omitted):
Given that plaintiffs failure
to receive the summary judgment
motion and order in the prior
action resulted in (l) admission of
the defendants' version of the
facts, (2) inability to argue the
legal issues, and (3) loss of an
opportunity to appeal, this case
presents a compelling example of
an impediment or hindrance
demonstrating actual injury under
Lewis...

25

NATIONAL PRISON PROJECT JOURNAL

... Lewis does not suggest that the plaintiff
must prove a case within a case to show that
the claim hindered or impeded by the
defendant necessarily would have prevailed.
The Court took pains to explain that
'[d]epriving someone of an arguable (though
not yet established) claim inflicts actual
injury,' Lewis. . .. Moreover, the Court
explained that cognizable harm arises not
only when a claim is lost or rejected on
account of the defendant's misconduct, but
also when the plaintiff's efforts to pursue a
claim are impeded.... Consistent with these
points, a plaintiff need not show that a claim
with which a defendant interfered would
have prevailed, but only that it was not
frivolous....
(Internal citations omitted)
Pre-Trial DetaineeslPersonal
Property/Procedural Due Process--Property
Slade v. Hampton Roads Regional Jail, 407
F.3d 243 (4th Cir. 2005). The plaintiff challenged
the constitutionality of a statutorily authorized
charge of one dollar a day to pre-trial detainees to
defray the costs of incarceration. Those
adjudicated not guilty on all charges can get the
money back if they ask within 60 days.
The charge does not violate substantive due
process because it is not "punishment" under Bell
v. Wolfish. The plaintiff does not show that its
express purpose is to punish; that it lacks rational
relationship to the legitimate governmental
interests of defraying jail expenses and
contributing to effective jail management; or that
at one dollar a day, it is excessive for that goal.
The plaintiff did not sufficiently plead his
procedural due process claim, and even ifhe did
he loses. Defendants concede that the plaintiff
has a property interest in the money in his
account. However, it is a limited one, since
Virginia requires trial within five months of a
probable cause hearing, so the charge will be
imposed only for a limited time. There is also
little risk of erroneous deprivation that would be
remedied by a pre-deprivation hearing, since "the
daily deduction of the charge from the prisoner's
26

Winter/Spring 2006

account is a ministerial matter with no discretion
and minimal risk of error." (253) The court does
not say what if any process is due if a predeprivation hearing is not required.
The plaintiff did not sufficiently plead his
Takings Clause claim either, but even ifhe did,
its merits are "dubious." (254) There is a strong
argument that the charge is a "reasonable user
fee" and not a taking. Further, since the court
can deprive a person of liberty before trial upon a
showing of probable cause, it is likely that
probable cause could also support this minimal
charge, "depending upon the lawfulness of the
arrest and a close link between the charge and the
cost of pretrial detention."
Grievances and Complaints about
Prison/Access to Courts--Punishment and
Retaliation
Rhodes v. Robinson, 408 F.3d 559 (9th
Cir. 2005), amending and superseding 380 F.3d
1123 (9th Cir. 2004). At 562-63: "We must
resolve a legal quandary that only Joseph Heller,
the author of Catch-22, could have imagined: Do
the exhaustive efforts of an incarcerated prisoner
to remedy myriad violations of his First
Amendment rights demonstrate that his First
Amendment rights were not violated at all?" The
court holds that the fact that the plaintiff
continued to make complaints after he was
retaliated against did not mean he suffered no
First Amendment violation. The question is
whether the retaliation "would chill or silence a
person of ordinary firmness from future First
Amendment activity" (568-69), not whether the
particular plaintiff was actually silenced. At 569:
The consequences of a contrary
holding would be remarkably perverse. It
would keep all retaliation claims out of
court, since the PLRA requires
exhaustion of administrative remedies,
but exhaustion would be deemed to show
that the prisoner had not been chilled.
The district court's holding that filing this
lawsuit itself defeats the retaliation claim
would create "an even more vicious
Catch-22."

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Federal Officials and PrisonslMedical
CarelHabeas Corpus/Appeal
Glaus v. Anderson, 408 F.3d 382 (7th Cir.
2005). The plaintiff, who has Hepatitis C, was
treated with interferon for a year, and his viral
load dropped from more than 21 million to a little
over one million. However, he was deemed a
"non-responder" and treatment was stopped
because under the Federal Bureau of Prisons'
policy, interferon treatment will continue only if
the viral load drops below one million. Six
months after treatment was stopped, his viral load
had reached 189 million. The plaintiff filed a
habeas petition under § 2241 asking for release
from prison, which the district court dismissed
without prejudice.
Dismissals without prejudice are generally
not appealable because the plaintiff is free to
amend and re-file. However, the plaintiff can't
amend this petition and re-file it in light of the
district court's ruling, so the dismissal is
appealable.
At 386: "If a prisoner is not challenging the
fact of his confinement, but instead the
conditions under which he is being held, we
have held that she must use a § 1983 or
Bivens theory: ..." The court notes it has
said that habeas can be used to get out of
solitary confinement, but the Supreme Court
has never said so. (387 n.**.) Release from
prison is not a possible remedy for an Eighth
Amendment deliberate indifference claim;
proper treatment or damages are. His
conditions of confinement claim must be
brought either as a civil rights claim, a
Federal Tort Claims Act claim, or "an
Administrative Procedures Act challenge to
the BOP guidelines on treatment for
hepatitis C." (387)
Legal Assistance Programs/Personal
Involvement and Supervisory
LiabilitylDamages--Access to Courts,
Punitive/lnjunctive Relief
White v. Kautzky, 386 F.Supp.2d 1042 (N.D.
Iowa 2005). Iowa has stopped updating its law
libraries and has instituted a system of "contract

_.-

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Winter/Spring 2006

_ - - - - _ .. _----_

_---.

__

_--_.-

attorneys." The plaintiff went to the contract
attorney with a question about the validity of his
conviction in light of the handling of his
extradition. The contract attorney gave him a
post-conviction relief application form and told
him to complete it and send it in immediately.
However, the plaintiffwas afraid to do so
without legal research about the merits of his
claim because pursuant to his plea agreement,
filing such an application would have allowed
the prosecutor to reinstate additional charges
bearing additional potential sentences of up to
150 years. The contract attorney said that it was
his understanding he was not to do research, he
didn't have time to do research given the number
of prisoners he had to assist, and a sign in the law
library said that the contract attorney's duties did
not include doing research.
The contract attorney's contract provided
that he will "confer with" and "advise" prisoners
about the merits of and proper parties to
proposed litigation. This obligation to "confer
and advise" "necessarily and reasonably requires
provision of competent advice." Where
circumstances warrant, "confer and advise"
includes at least the minimal level oflegal
research reasonably required to provide
professionally competent advice. (1053) The
failure to satisfy this requirement is not the fault
of the contract attorney but of the legal assistance
system, given the attorney's instructions, lack of
time, and the fact that he wasn't being paid to do
the research. This is not a respondeat superior
theory but one in which the defendant prison
officials can be held liable for their own actions,
which impeded the plaintiff s access to the court.
(1055)
The court is not holding that the plaintiff
is entitled to the level of research that would
permit the attorney to represent him, but to the
level of research needed to render reasonably
competent advice. At 1056:
Wherever the line must be drawn
to provide the minimum level of research
required by an inmate's specific legal
problem in order to provide that inmate
with adequate legal advice to permit the
27

Wimer/Spring 2006

NATIONAL PRISON PROJECT JOURNAL
--------------------------_.

--

-- -----------------------------.---.-----------

inmate to file a claim, a legal assistance
system that effectively precludes any and all
legal research by the legal advisor, whatever
the nature of the claim raised by the
prisoner, is constitutionally deficient." At
1057: The defendants are responsible for
the deficiency "because they instituted that
system, defined the obligations of the
contract attorneys under the system, and
defendant Ault told the contract attorney ...
that he could not research inmates' claims.
The plaintiff showed actual injury. The
court is not convinced he would have won his
claim but that isn't the question; it is whether the
claim was frivolous. The plaintiff has shown he
was so stymied by the system's inadequacies that
he could not even file a complaint.
The plaintiff is not entitled to compensatory
damages for the cost of the legal services he didn't
get because he didn't pay for them. His damages
are limited to nominal damages. There is no basis
for punitive damages. At 1061: "The court
declines to read a sinister motive into what
appears to be shortsighted cost-cutting measures
that simply failed to contemplate realistically what
would be necessary to provide inmates with
unusual claims with 'a reasonably adequate
opportunity to present claimed violations of
fundamental constitutional rights to the courts. '"
Medical Care--Standards of Liability-Deliberate Indifference
Johnson v. Wright, 412 F.3d 398 (2d Cir.
2005). A reasonable jury could find that
application of New York State's policy of
categorically excluding from hepatitis C treatment
anyone with a recent history of drug use
constituted deliberate indifference where the
plaintiffs treating physicians, including prison
physicians, unanimously believed that the
medically appropriate course of action was to
provide treatment in the form of Rebetron therapy,
and the defendants did nothing to investigate or
verify whether that was the case. The question is
not whether the policy is generally justifiable but
whether its application to the plaintiff could have
constituted deliberate indifference.
28

The court has previously held that "a
deliberate indifference claim can lie where prison
officials deliberately ignore the medical
recommendations of a prisoner's treating
physicians." (404) It finds that principle
applicable here, even though the defendants in
the prior case were not medical personnel with
responsibility for implementing treatment
policies, as are the present defendants. Here, the
only justification for denying treatment is
concern about drug users' compliance with the
therapeutic regime, and the fact that all the
treating physicians expressly recommended
treatment notwithstanding compliance concerns
creates an issue of fact barring summary
judgment. At 406: "... [A] jury could find that
the defendants acted with deliberate indifference
by reflexively relying on the medical soundness
of the Guideline's substance abuse policy when
they had been put on notice that the medically
appropriate decision could be, instead, to depart
from the Guideline and prescribe Ribavirin to the
plaintiff."
Privacy/Evidentiary Questions
Us. v. Romo, 413 F.3d 1044 (9th Cir.
2005). The defendant was convicted of
threatening the President. His confession to a
prison counselor that he had written a threatening
letter was not protected by the psychotherapistpatient privilege. The privilege applies when the
communication is made to a licensed
psychotherapist, is confidential, and is made
during the course of diagnosis or treatment. The
meeting between the defendant and the therapist
was not a counseling, treatment, or therapy
session, even though the counselor had
previously provided mental health care to the
defendant and the defendant had asked to see
him. No therapy was provided at this encounter,
and the counselor (whose title was "program
director") had a wide variety of duties besides
counseling.

NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2006
----

Religion--Practices/Federal Officials and
Prisons
u.s. v. Baker, 415 F.3d 1273 (lIth Cir.
2005) (per curiam). The criminal defendant
moved for a new commitment order to reflect his
religious name change. He was not entitled to it.
Prisoners are entitled to have religious name
changes recognized prospectively via a dual-name
policy (which the Federal Bureau of Prisons has),
but not to have records changed retroactively.
RFRA and RLVIPA/Habeas CorpuslReligion-Practices--Beards, Hair, Dress/lnjunctive
Relief--Preliminary/Deference
Warsoldierv. Woodford, 418 F.3d 989 (9th
Cir. 2005). The plaintiff alleged that the state
prisons' three-inch limit on hair length violated
his Native American religious beliefthat he
should cut his hair only upon the death of a loved
one. He was repeatedly disciplined for
noncompliance.
The district court should have granted the
injunction, and the appeals court granted one
pending appeal. The plaintiff showed a likelihood
of success on his claim. A "substantial burden"
under RLUIPA means "a significantly great
restriction or onus" on religious exercise (995).
Cell confinement, imposition of additional duty
hours, reclassification into a work group receiving
no time credits and lesser privileges, loss of phone
call privileges, expulsion from programs and the
Inmate Advisory Council, exclusion from the
main yard, and reduction in commissary purchases
meet that standard, notwithstanding the state's
argument that as long as they don't physically
force the plaintiff to cut his hair, his religious
practice has not been restricted. At 996: "Because
the grooming policy intentionally puts significant
pressure on inmates such as Warsoldier to
abandon their religious beliefs by cutting their
hair," a substantial burden is imposed.
The state cited as justifications for its policy
the security needs for quick and accurate
identification, making contraband searches easier,
and reducing animosity and tension by removing
methods of signaling gang affiliation. They also
cited the health and safety concerns of reducing

the spread of head-borne parasites, the risk of
injury while using heavy machinery, and the
public safety concerns of easy identification of
escapees. Security clearly is a compelling
interest, but the state does not show its rule is the
least restrictive alternative, supporting its
position only by conclusory statements and outof-circuit cases, all of which dealt with maximum
security prisons rather than the minimum security
institution the plaintiff is held in. At 998-99:
"Inmates at facilities such as ACCF have a
greater degree of freedom than inmates at higher
security facilities precisely because they pose
fewer security risks.... [999] Given the reduced
security pressures at such minimum security
facilities, the least restrictive means in a
maximum security facility may not be identical
to what is required for a minimum security
facility. "
At 999: "Moreover, even outside the
context of a minimum security facility, CDC
cannot meet its burden to prove least restrictive
means unless it demonstrates that it has actually
considered and rejected the efficacy ofless
restrictive measures before adopting the
challenged practice." Possible alternatives
include the creation of religious exemptions,
which defendants dismiss without explanation.
Other prison systems, including the Federal
Bureau of Prisons, either do not have such hair
length policies or, if they do, provide religious
exemptions. The state doesn't explain why those
prison systems can get along without such
restrictive rules but California can't. At 1000:
"Contrary to CDC's argument, we have found
comparison between institutions analytically
useful when considering whether the government
is employing the least restrictive means. Indeed,
the failure of a defendant to explain why another
institution with the same compelling interests
was able to accommodate the same religious
practices may constitute a failure to establish that
the defendant was using the least restrictive
means."
CDC also fails to explain why it does not
have a similarly restrictive policy at its women's
prisons, since the interests in health and security
29

NATIONAL PRISON PROJECT JOURNAL
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_ .... _ - - - - - - - - -

are no less compelling for female inmates. The
court rejects the claim that women are less violent
than men; CDC's data show that women commit
assaults and/or batteries at a rate of 3.2 per 100
inmates, compared to 4.7 per 100 among men.
Equal protection decisions upholding different
treatment of the genders for grooming purposes
are not persuasive, since they were decided under
intermediate scrutiny or less and not the strict
scrutiny required by RLUIP A. Forcing the
plaintiff to choose between following his religious
beliefs and being punished or abandoning them
satisfies the irreparable harm argument. In the
Ninth Circuit, the existence of a colorable First
Amendment claim can constitute irreparable harm
for this purpose. (1001-01)
The balance of hardships favors the plaintiff.
The fact that he is scheduled to be released in 18
days does not alter that conclusion, since the loss
of First Amendment freedoms for even brief
periods constitutes irreparable injury. (Apparently
this was as of the district court's decision, and
subsequently he has been denied good time and
remains in prison).
Religion--Services Within
Institution/Establishment of
Religion/Publications
Kaufinan v. McCaughtry, 419 F.3d 678 (7th
Cir. 2005). Prison officials denied the plaintiffs
request to form an atheist study group, applying
the less flexible policy that pertains to nonreligious inmate groups.
The court declares that atheism is a religion
for First Amendment purposes. However, the
refusal to permit the plaintiff to meet with other
atheist inmates to study and discuss their beliefs
does not violate the Free Exercise Clause. The
plaintiff did not provide evidence that he would be
unable to practice atheism effectively without the
benefit of a weekly study group. He can study
atheist literature on his own, consult informally
with other atheist inmates, and correspond with
members of outside atheist organizations, and he
has offered no evidence that these alternatives are
inadequate. (683)

30

Winter/Spring 2006
------

Id.: "Moreover, an inmate is not entitled to
follow every aspect of his religion; the prison
may restrict the inmate's practices if its
legitimate penological interests outweigh the
prisoner's religious interests." The defendants
said that allowing any group of inmates to
congregate raises security concerns and a need
for supervision, and their denial of the plaintiffs
request was "rationally related to that [security]
interest." (683) The court does not discuss all the
Turner/O'Lone factors and does not discuss
whether other groups are allowed to congregate.
The plaintiff prevails on his
Establishment Clause claim. The district court
erred in assuming that the plaintiff was seeking
to form a non-religious group. If that were the
case, he would lose; "no one says that a person
who wants to form a chess club at the prison is
entitled under the Establishment Clause to have
the application evaluated as if chess were a
religion...." (684) Id.: "It is undisputed that
other religious groups are permitted to meet at
Kaufman's prison, and the defendants have
advanced no secular reason why the security
concerns they cited as a reason to deny his
request for an atheist group do not apply equally
to gatherings of Christian, Muslim, Buddhist, or
Wiccan inmates."

PLRA--Exhaustion of Administrative
Remedies
Barnes v. Briley, 420 F.3d 673 (7th Cir.
2005). The plaintiff exhausted one setof claims
against one set of defendants, then he got
counsel, and filed an amended complaint
asserting a second set of claims against different
defendants, after exhausting those claims. The
district court dismissed on the grounds that the
second set of claims was not exhausted at the
time suit was filed on the first set.
The district court's dismissal was
erroneous. The plaintiff "complied with the
purpose and letter of the PLRA." At 678: "It is
evident, therefore, that Mr. Barnes did not
attempt to re-plead improperly exhausted claims
in his amended complaint. Rather, he asserted
properly exhausted FTCA claims in his original

NATIONAL PRISON PROJECT JOURNAL

complaint, and later he raised new, properly
exhausted § 1983 claims against new defendants."
He also complied with the purpose of the PLRA
by making repeated requests for a hepatitis test
and any necessary treatment through the prison
grievance process before suing the new
defendants. At 678: "He therefore afforded those
defendants the opportunity to address his
grievances before he filed suit against them." The
plaintiff filed a grievance naming defendant Dr.
Smith, which was denied as untimely. He later
filed a grievance not naming Smith but asserting
that his medical needs were being ignored, and
noting that he had asked for TB, Hepatitis, and
HIV tests for several years. This grievance
"restarted the grievance process" (679), and the
grievance system did not require naming of
defendants, so the plaintiff did not abandon his
claim against Dr. Smith by not naming him.
Procedural Due Process--Disciplinary
Proceedings/Punishment
Porter v. Coughlin, 421 F.3d 141 (2d Cir.
2005). Prison disciplinary proceedings are civil in
nature and do not implicate the Double Jeopardy
Clause.
PLRA--Exhaustion of Administrative
Remedies
Brown v. Valoff, 422 F.3d 926 (9th Cir.
2005). The court considers at what point
exhaustion is completed when a grievance is
referred into a separate "staff complaint" process
under the aegis of the Office of Internal Affairs.
Bottom line: for anything referred to Internal
Affairs, the prisoner has to wait until the Internal
Affairs investigation is finished, assuming he or
she can find out. If there is any aspect that is not
referred to Internal Affairs, the prisoner must
continue with the grievance process.

Winter/Spring 2006

Transfers/Group Activities/Administrative
Segregation--High Security/PLRA-Exhaustion of Administrative Remedies/Ex
Post Facto ClauselDiscovery/Procedural Due
Process--Administrative Segregation
Westefer v. Snyder, 422 F.3d 570 (7th Cir.
2005). The plaintiffs complained of their transfer
to Tamms, a super-high-security prison designed
to be unpleasant for deterrent purposes. The
"gang plaintiffs" alleged that they were placed
there solely because of their gang affiliation, and
the "litigation plaintiffs" say they were
transferred in retaliation for their lawsuits.
The claims of the gang plaintiffs about
transfer based on gang affiliation were properly
dismissed, since gang affiliation is not protected
by the First Amendment (575) and there is no
violation of the Ex Post Facto Clause of the
Constitution (576).
The district court dismissed the claims of
several of the litigation plaintiffs for nonexhaustion. At 578: "Although exhaustion is a
precondition to the prisoners' suit, failure to
exhaust is an affirmative defense that IDOC has
the burden of proving."
Defendants fail to meet their burden.
Inmates who are in administrative detention
when they arrive get a transfer review hearing
within 10 days. Those in disciplinary segregation
get a hearing only when their segregation time is
up. There is a 90-day review of continued
placement at which the prisoner has no
opportunity to be heard. For administrative
detention prisoners, the transfer review
committee conducts an additional hearing
annually at which there is an opportunity to
present evidence. Defendants alleged that
prisoners must seek review both through the
transfer review process and through the grievance
process to exhaust. The transfer review process
is not available to disciplinary segregation
prisoners, and defendants don't argue that its
existence after their segregation ends is an
available remedy. At 579:
IDOC's position that the
transfer review process affords an
administrative remedy is
31

NATIONAL PRISON PROJECT JOURNAL

unconvincing for another reason.
Many of the prisoners contend that
they were not told the reasons for
their transfer to Tamms; indeed,
several prisoners filed grievances to
complain about this problem. IDOC
regulations do not require the
department to notify prisoners why
they have been transferred. We doubt
whether the transfer review process
is effective for prisoners who do not
know the grounds for their transfer
and who thus have no basis with
which to contest their transfer. More
importantly, if a prisoner discovers
the reasons for his transfer shortly
after completing the initial transfer
review hearing and wishes to contest
the transfer because, for instance, the
reasons are based on incorrect facts,
he must wait at least one more year
before he can present evidence at his
annual review hearing. For all these
reasons, with respect to the transfer
review process, IDOC has not
carried its burden of establishing that
the prisoners have not satisfied
PLRA exhaustion requirements.
This holding seems to be implicitly contrary
to all the cases that say a remedy must merely be
"available" and any complaints about its adequacy
are beside the point.
Defendants also say the grievance process is
an avenue for challenging transfer to Tamms, but
the grievance regulations say that process can't be
used for complaints regarding "decisions that have
been rendered by the Director." (579) At 579:
"There seems to be significant confusion within
IDOC, presumably caused by the 'or decisions
that have been rendered by the Director' clause
... , as to whether a Tamms prisoner may grieve
his transfer...." Plaintiffs who have filed
grievances have received inconsistent responses.
At 580:
IDOC does not point to any
regulation or department policy that clearly
identifies how a prisoner challenges his
32

Winter/Spring 2006

transfer to Tamms. . .. If the ARB took
consistent positions on its authority to
address a transfer grievance, a clear route
for the prisoner at least would be evident
and we could proceed to determine its
effectiveness. But, as this case comes to
us, we fmd the record "hopelessly unclear
... whether any administrative remedy"
remained open for the prisoners to
challenge their transfers through the
gnevance process. . ..
So now the court says there is no available
remedy. It also notes that the district court erred
in holding the grievances that were filed
inadequate. All the PLRA requires is to "alert[]
the prison to the nature of the wrong for which
redress is sought." (580) At 580-81:
Although their purported [581]
placement challenges were made within
substantive complaints about Tamms
conditions, each prisoners' [sic]
grievance expressed concern about not
being told the reason for his transfer to
Tamms or listed something to the effect
of "Transfer from Tamms" as the
requested remedy. These complaints
were sufficient to alert prison officials
that Mr. Felton and Mr. Horton
challenged their transfers, even though
the grievance officers in each case
addressed the prison condition complaints
without mentioning their transfers to
Tamms.
Religion--Practices--Beards, Hair,
DresslRFRA and RLUIPA/Deference
Hoevenaar v. Lazaroff, 422 F.3d 366 (6th
Cir. 2006). The Native American plaintiff
challenged a prison restriction on hair length, and
the district court granted a preliminary injunction
under RLUIPA allowing him to grow a kouplock,
an area at the back of the head about two inches
square where the hair is permitted to grow longer
than elsewhere. It found that although the
warden was likely to show that the regulation
served compelling interests in identifying
prisoners and suppressing contraband, he was

NATIONAL PRISON PROJECT JOURNAL

unlikely to show that a blanket ban on long hair
was the least restrictive means; prison officials
must consider both accommodations such as the
kouplock and the security risk posed by each
individual, just as they consider that women
generally pose less of a security risk than men. It
mentioned that the plaintiff was a medium
security prisoner and also that he has diabetic
neuropathy in his feet.
The Sixth Circuit finds that the district court
"improperly substituted its judgment for that of
prison officials" in applying the least restrictive
means test. Under RFRA, "courts must give due
deference to the judgment of prison officials,
given their expertise and the significant security
concerns implicated by prison regulations." (370)
The same rule applies under RLUIP A. This court
held before Turner, applying a least restrictive
means test under the First Amendment, that "once
prison officials have provided expert testimony
sufficient to justify the security regulation and
resultant impingement of prisoner rights, 'the
courts must defer to the expert judgment of the
prison officials unless the prisoner proves by
"substantial evidence ... that the officials have
exaggerated their response" to security
considerations.'" (370) At 371: "While the
district court is not required to blindly accept any
policy justification offered by state officials, the
district court's analysis does not reflect the
requisite deference to the expertise and experience
of prison officials, as required by case law
interpreting the RFRA and RLUIP A." As an
example, the court cites the district court's
discounting the warden's testimony about the
resentment and enforcement problems arising
from individualized exemptions, on the ground
that there was no showing of increased escapes
and contraband from the period when they
allowed individualized exemptions. Another
official testified that contraband was a problem
regardless of security level, and a kouplock could
conceal an ice pick or other small items that the
plaintiff had been found in possession of.
There's a pretty direct conflict between this
decision and Warsoldier v. Woodford, 418 F.3d

989 (9th Cir. 2005).

-----------------------

Winter/Spring 2006
--------

-------

PLRA--Exhaustion of Administrative
Remedies/Res Judicata and Collateral
Estoppel
Brengettcy v. Horton, 423 F.3d 674 (7th
Cir. 2005). The plaintiff alleged that he was
beaten; he filed a grievance within 15 days as the
policy required. He did not get a reply within 30
days as policy provided nor was he notified that
his grievance would take longer than 30 days to
resolve. Two months later he asked about the
status of his grievance and was told that
sometimes grievances get tom up. The next
month he filed another grievance. Again, he
received neither a decision nor a notification that
it would take longer than 30 days to resolve.
The court has said that prisoners must
exhaust at the time and in the manner prescribed
by prison rules. At 682: "Nevertheless, we have
also held that prison officials' failure to respond
to a prisoner's claim can render administrative
remedies unavailable...." Here the plaintiff
filed a grievance in compliance with CCDOC's
internal timetables, and the policy does not tell
prisoners what to do when they don't get a
response and don't have a decision to appeal. Id.
Habeas Corpus
Osborne v. District Attorney's Office for
the Third Judicial District, 423 F.3d 1050 (9th
Cir.2005). The plaintiff's § 1983 action to
compel the state to release the DNA evidence
against him for more sophisticated testing than
available when he was convicted was not barred
by Heck v. Humphrey, since a ruling in his favor
would not "necessarily imply" the invalidity of
his conviction. The fact that he is trying to "set
the stage" for a challenge to his conviction does
not bring this action within the Heck rule.
Dotson v. Wilkinson removes "[a]ny remaining
doubt as to the propriety of this approach."
(1055)
PLRA-Exhaustion of Administrative
Remedies
Braham v. Clancy, 425 F.3d 177 (2d Cir.
2005). The plaintiff made numerous written and
oral requests to officers and lieutenants for a cell
33

NATIONAL PRISON PROJECT JOURNAL

change because he was afraid of his cell mate. He
was moved only after his cell mate assaulted him.
The plaintiff did not file a grievance. He
argued that he had initiated the informal process
required before a grievance is filed, and that he
was assaulted before the filing deadline of30 days
after denial of a request; therefore, he said, he "no
longer had a viable grievance that could be filed
or acted upon."
The plaintiff did not exhaust available
remedies, since prison officials could have taken
some action ifhe had filed a grievance. However,
on remand the court must consider whether
Braham's filing of request forms, his complaint
about prison officials' responsiveness to them
during his disciplinary appeal, or some
combination, "provided sufficient notice to the
prison officials 'to allow [them] to take
appropriate responsive measures,' thereby
satisfying the exhaustion of administrative
remedies requirement. ...." (183) The plaintiff
"appears to have a colorable argument" that he
was trying to exhaust at the time he was attacked,
so prison officials may have had sufficient notice
of Braham's concerns to deal with them
administratively. He also raised prison officials'
unresponsiveness to his request forms in his
disciplinary appeal process. The district court may
consider his submissions in the disciplinary appeal
process sufficiently put prison officials on notice
of his concerns. It may also wish to consider
whether the fact that the plaintiff got his cell
change is a "special circumstance" that might
have led the plaintiff reasonably to conclude that
he had prevailed in the grievance process and
need not proceed further.
PLRA-Exhaustion of Administrative
RemedieslTransportation to Court
Thornton v. Snyder, 428 F.3d 690 (7th Cir.
2005). The plaintiff alleged the conditions of his
cell were dangerous and filed an emergency
grievance to the warden requesting a transfer; this
form of grievance is an alternative to the ordinary
grievance process. The warden responded that he
did not think it was an emergency, and the
plaintiff neither appealed the warden's response,
34

Winter/Spring 2006

nor filed a non-emergency grievance.
Nevertheless, he got the requested transfer within
the time limit for an appeal. Defendants argue
that the plaintiff failed to exhaust, because he
neither filed a new grievance, nor did he attempt
to appeal the warden's response. The court notes
that "nothing in the current regulatory text ...
requires an inmate to file a new grievance after
learning only that it will not be considered on an
emergency basis." (694) The court also rejects
defendants' argument that the plaintiff should
have appealed even though he got the relief he
sought. "Unlike the defendants ... we do not
take the requirement to exhaust 'all available'
remedies to mean Thornton must appeal
grievances that were resolved as he requested and
where money damages were not available." (695)
The court also reviews the policy justifications
behind the exhaustion requirement to conclude
that "the defendants' notion that Thornton should
have appealed to higher channels after receiving
the relief he requested in his grievances is not
only counter-intuitive, but it is not required by
the PLRA." (697)
Sexual Minorities
Praylor v. Texas Dep 't ofCriminal
Justice, 430 F.3d 1208 (5 th Cir. 2005) (per
curiam). At 1209:
This circuit has not
addressed the issue of providing
hormone treatment to transsexual
inmates. Other circuits that have
considered the issue have
concluded that declining to
provide a transsexual with
hormone treatment does not
amount to acting with deliberate
indifference to a serious medical
need. . .. Assuming, without
deciding, that transsexualism does
present a serious medical need, we
hold that, on this record, the
refusal to provide hormone
therapy did not constitute the
requisite deliberate indifference.

NATIONAL PRISON PROJECT JOURNAL

------

In Praylor's case, the record
reflects that he did not request any
form of treatment other than hormone
therapy. Testimony from the medical
director at the TDCJ revealed that the
TDCJ had a policy for treating
transsexuals, but that Praylor did not
qualify for hormone because of the
length of his term and the prison's
inability to perform a sex change
operation, the lack of medical
necessity for the hormone, and the
disruption to the all-male prison....
Moreover, the director testified that
Praylor had been evaluated on two
occasions and denied eligibility for
hormone treatment and that the TDCJ
did provide mental health screening as
part of its process for evaluating
transsexuals.... Accordingly, based
upon the instant record and
circumstances of Praylor' s complaint,
the denial of his specific request for
hormone therapy does not constitute
deliberate indifference....

Procedural Due Process--Administrative
Segregation/Access to Courts--Punishment and
Retaliation
Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003).
The plaintiff alleged that he was "validated" as a
gang member in retaliation for his activities as a
jailhouse lawyer and in filing grievances, and that
he was denied due process.
The plaintiffs due process claim is governed
by the "some evidence" standard of
Superintendent v. Hill and not the "heightened
standard of Wolffv. McDonnell" because
segregating gang members is an administrative
protective strategy and not a disciplinary measure.
The court doesn't explain what this "heightened
standard" is; Superintendent v. Hill's "some
evidence" standard was asserted in a disciplinary
case governed by Wolff. A Los Angeles Sheriffs
Department report indicating the plaintiffs
membership in the Black Guerrilla Family and the
Crips, a probation report indicating that his

-- .. _ . - - - -

Winter/Spring 2006

criminal co-defendant was also validated as a
BGF member, and the statement of a confidential
informant were sufficient to meet the some
evidence standard; any of the three would have
sufficed since each has "sufficient indicia of
reliability." (1288)
At 1288: ... [AJ chilling effect on a
prisoner's First Amendment rights to file
prison grievances is sufficient to raise a
retaliation claim." The plaintiffs
retaliation claim raises material factual
issues barring summary judgment. The
"suspect timing of the validation--coming
soon after his success in the prison
conditions grievances" is circumstantial
evidence. The fact that the same
evidence now used to validate the
plaintiff was previously determined to be
insufficient, and the plaintiffs account of
statements made by the person who
validated him that he had "pissed off
higher-ups" with his complaints, also
supported his claim.
The existence of some evidence of gang
membership did not dispose of the retaliation
claim. At 1289: "The 'some evidence' standard
applies only to due process claims attacking the
result of a disciplinary board's proceeding, not
the correctional officer's retaliatory accusation."
Although the plaintiff must show the absence of
legitimate correctional goals for the challenged
conduct, if defendants used the validation
process "as a cover or a ruse to silence and
punish Bruce because he filed grievances, they
cannot assert that Bruce's validation served a
valid penological purpose, even though he may
have arguably ended up where he belonged."
(1289) rd.: "This comports with other circuits
[sic] holdings that prison officials may not defeat
a retaliation claim on summary judgment simply
by articulating a general justification for a neutral
process, where there is a genuine issue of
material fact as to whether the action was taken
in retaliation for the exercise of a constitutional
rights."
The court declines to enjoin the
defendants from relying on the same evidence in
3S

NATIONAL PRISON PROJECT JOURNAL

the future and declines to make a declaration
whether the plaintiff is in fact a gang member.
PLRA--Mental or Emotional
Injury/SanitationlHygiene
Alexander v. Tippah County, Miss.; 351 F.3d
626 (5th Cir. 2003). Confinement under
disgusting and unsanitary conditions did not
support an award of compensatory damages under
the PLRA's mental or emotional injury provision.
At 631:
The district court found that the only
physical injury suffered by either Alexander
or Carroll was nausea: Carroll allegedly
vomited from the smell of the raw sewage
covering the floor of the isolation cell.
While we recognize that vomiting is an
unpleasant experience, there is no indication
that Carroll's nausea was severe enough to
warrant medical attention. Furthermore,
Carroll has not alleged that his nausea was a
symptom of some more serious malady, or
had any lasting effects. . . . Furthermore, we
note that Alexander never claimed to have
suffered a physical injury from confinement
in the isolation cell. Therefore, we find that
§ 1997e(e) precludes Alexander and Carroll
from recovering for their emotional and
mental injuries.
PLRA--Exhaustion of Administrative
Remedies
Mojias v. Johnson, 351 F.3d 606 (2d Cir.
2003). Plaintiff filed a form complaint and
checked the boxes indicating that the institution
had a grievance process but that he did not present
his complaint to it. The district court dismissed
for non-exhaustion at initial screening. The
Second Circuit reversed. At 610 (footnote
omitted): "As we held in Snider, a court
considering dismissal of a prisoner's complaint for
non-exhaustion must first establish from a legally
sufficient source that an administrative remedy is
applicable and that the particular complaint does
not fall within an exception." The Second Circuit
held that the district court erred in relying solely
on the plaintiff's responses on the form complaint.
36

Winter/Spring 2006

Pre-Trial Detainees/Use of Force--Beating,
Chemical Agents/Medical Care/Special
Diets/Intake/Personal Involvement and
Supervisory Liability
Lolli v. County ofOrange, 351 F.3d 410
(9th Cir. 2003). The plaintiff was stopped for a
bicycle infraction and then arrested for an unpaid
parking ticket. He told the arresting officer and
the jail nurse that he was diabetic, felt ill, and
needed to eat as soon as possible. Instead he was
put in a holding cell for about four hours. He
then complained about the lack of food, to which
a deputy responded, "Where the fuck do you
think you are, the Holiday Inn?" The plaintiff
alleged that he was thrown to the ground and
kicked, punched, poked with batons, and pepper
sprayed, even after he was handcuffed and taken
to a mental observation cell. He never received
food or insulin. The officers said he was
violently resisting, denied kicking him or striking
him with batons, and denied knowing he was a
diabetic or needed food or insulin. He was later
found to have a variety of injuries including a
perforated eardrum and three fractured ribs.
Pre-trial detainees' claims of excessive
force are governed by the Fourth Amendment
standard articulated in Graham v. Connor. (This
is contrary to most decisions, which apply the
Due Process Clause to such claims.) Here the
plaintiff submitted sufficient evidence for a jury
to find excessive force, based on the type and
amount of force used and the apparent lack of
need for any force.
Though the plaintiff could not identify
which deputy inflicted which blow, he presented
evidence that they all participated in the beating.
At 417: "Lolli has done more than simply place
the officers at the scene of the altercation and
assert a group liability theory. . .. Instead, he has
properly relied on the deputies' own admissions
that they were involved in the altercation and that
they exerted some physical force on him to create
the necessary inference that the deputies were
'integral participants in the alleged unlawful act.'"
The plaintiffs allegations that he put jail
staff on notice that he was diabetic and needed
food supported a deliberate indifference claim.

NATIONAL PRISON PROJECT JOURNAL

---_

_-----_

While there is no direct evidence that the officers
inferred that there was a serious risk to the
plaintiff, their indifference to the plaintiffs
extreme behavior, his sickly appearance, and his
explicit statements about his condition could
support a finding of actual knowledge. At 421:
"Much like recklessness in criminal law,
deliberate indifference to medical needs may be
shown by circumstantial evidence when the facts
are sufficient to demonstrate that a defendant
actually knew of a risk of harm."
Religion--Practices--Services Within
Institution, Diet
Ford v. McGinnis, 352 F.3d 582 (2d Cir.
2003). The Muslim plaintiff complained that he
was denied the Eid ul Fitr feast, which marks the
successful completion of Ramadan, because he
was in the secured housing unit (SHU) in
connection with a transfer.
Since courts are ill-equipped to judge the
verity of religious beliefs, a free exercise
complainant need only demonstrate that the
beliefs at issue are sincerely held and "in the
individual's 'own scheme of things, religious.'"
(588, citation omitted). The Supreme Court has
said that any "sincerely held religious belief' is
protected.
The court assumes, since the plaintiff doesn't
argue otherwise, that Free Exercise claims require
a showing of a "substantial burden" on religious
exercise. The circuits are divided over whether
such a requirement applies to prisoners' First
Amendment free exercise claims.
Whether a burden is substantial does not
tum on whether the practice is mandated by the
religion. At 593:
To confine the protection of the First
Amendment to only those religious practices
that are mandatory would necessarily lead us
down the unnavigable road of attempting to
resolve intra-faith disputes over religious
law and doctrine. . . . . .. The relevant
question ... [is whether the practice] is
considered central or important to [the
plaintiffs] practice of [religion]. The
testimony of DOCS' religious experts is not

Winter/Spring 2006
.

dispositive in light of the plaintiffs
insistence that the practice at issue is
critical to his religious beliefs, is a claim
which is not "so bizarre ... as not to be
entitled to protection under the Free
Exercise Clause." (593-94, quoting
Thomas v. Review Board).
PLRA--Three Strikes Provision
Ciarpaglini v. Saini, 352 F.3d 328 (7th
Cir. 2003). The plaintiff alleged that his
medication for attention deficit hyperactivity
disorder and panic disorder was improperly
terminated. His allegation that his resumed panic
attacks cause him to suffer heart palpitations,
chest pains, labored breathing, choking
sensations, and paralysis in his legs and back
sufficiently alleges "imminent danger of serious
physical injury" under 28 U.S.C. § 1915(g) and
allows him to proceed in forma pauperis despite
having three "strikes."
Religion--Practices and DietIRLUIPA
Lindell v. McCallum, 352 F.3d
1107 (7th Cir. 2003). The plaintiff alleged that he
is a follower ofWotanism, alk/a Odinism or
Asatru ("It is an obscure religion, but he didn't
make it up. "), but that prison officials refuse to
acknowledge it on the ground that it is racist and
disruptive of prison life. Therefore, he says, they
have destroyed Wotanist mail, ignored dietary
restrictions, housed Wotanists separately so they
can't congregate or discuss their beliefs, and
excluded Wotanist literature and videos from the
religious materials available to prisoners. This
complaint states a claim under the Religious
Land Use and Institutionalized Persons Act. At
1110: "We are given no reason to think that the
fact that Wotanism is not a mainstream religion
is disqualifying," and while defendants might
show it is racist and they have a compelling
interest in suppressing it, they haven't done so
yet.

37

NATIONAL PRISON PROJECT JOURNAL

Sex Offenders/Procedural Due Process-Classification
Gwinn v. Awmiller, 354 F.3d 1211 (lOth
Cir.2004). The plaintiff, whose sexual assault
charge had been dismissed, was classified as a sex
offender and required to complete a treatment
program, which in tum required that he admit
guilt of the dismissed charge. He was also
required to register as a sex offender after release
and attend a community treatment program.
Damage to reputation alone does not
implicate due process protections. A plaintiff
raising such a claim must show that the
government made a statement sufficiently
derogatory to injure his or her reputation, that is
capable of being proved false, that he or she
asserts it is false, and that the plaintiff experienced
some "governmentally imposed burden that
'significantly altered [his or] her status as a matter
of state law.'" (1216) Under the court's prior
authority, the reduction in ability to earn good
time resulting from sex offender status meets that
standard (1218-19). The process due is the same
as for prison disciplinary proceedings: Wolffv.
McDonnell rights plus the requirement of "some
evidence." Here the hearing panel relied on a
detailed written account of the alleged sexual
assault; the plaintiff presented no more than a
general written denial; the hearing panel did not
deny his due process rights by "applying an
improper presumption" and finding that he had
engaged in sexually violent and abusive conduct.
The lack of counsel did not deny due process.
"More troubling" is the allegation that
the panel wasn't impartial because it included one
of the people already named as a defendant in this
litigation, a fact which "raises at least the
possibility that the Hearing Panel was not fair and
impartial." However, honesty and integrity are
presumed on the part of a tribunal, exposure to
evidence in nonadversary investigative procedures
doesn't impugn the fairness of a later hearing, so
allegations of bias like these "should be decided
on a case-by-case basis." (1220) The court
concludes that there is no impartiality problem;
the fact that the panel member had told the
plaintiff he was a sex offender based on the
38

Wimer/Spring 2006

dismissed charge doesn't mean he can't fairly
weigh evidence to determine whether he actually
committed the crime.
After release from prison, a registration
requirement for sex offenders may be sufficient
to implicate a liberty interest under the "stigrnaplus" test. The district court should determine
what process is due if in fact a liberty interest is
created.
The denial of a higher rate of good time
accrual because the plaintiff would not admit to
the dismissed sex offense did not violate the
Fifth Amendment privilege against selfincrimination under McKune v. Life; withholding
of good time is not sufficiently serious to compel
him to be a witness against himself.
The court summarily rejects the plaintiffs
ex post facto, Eighth Amendment, First
Amendment and equal protection claims. At
1228: "... [A]bsent an allegation of a suspect
classification, our review of prison officials'
differing treatment of various inmates is quite
deferential: in order to withstand an equal
protection challenge, those classifications must
be reasonably related to a legitimate penological
purpose."

Publications
Bahrampour v. Lampert, 356 F.3d 969
(9th Cir. 2004). The plaintiff was denied receipt
of Muscle Elegance magazine under a rule
prohibiting "any '[p]ortrayal of actual or
simulated' penetration or stimulation, sexual
violence, sexual contact between two people, or
sexual contact between a person and an animal,"
unless it has "scholarly value, or general social or
literary value." The magazine contains
"advertisements for videos where a bikini-clad
woman applies 'Brutal Scissors Domination' to a
man's face between her legs, and where a woman
has locked a man's torso in what is described as
'Painful, Erotic Domination.'" The rule was
justified by the Superintendent's assertion that the
materials "would be highly valued as barter and
'may result in prohibited sexual activity or
unwanted sexual behavior, including rape,'" and
by an expert witness who said sexually explicit

NATIONAL PRlSON PROJECT JOURNAL

materials would present risks of "increasing
aggressive and inappropriate tendencies and
behaviors by inmates," risks amplified in the
prison setting by the "lack of 'socially sanctioned
sexual outlets,' and the lack of the moderating
influences of family and nonaggressive peers."
(972)
The plaintiffwas also denied receipt of
White Dwarf magazine under a rule prohibiting
material that "contains role-playing or similar
fantasy games or materials." The Superintendent
said that this rule "is intended to prevent inmates
from placing themselves in fantasy roles that
reduce accountability and substitute raw power for
legitimate authority," and also that role-playing
materials often contain dice, which are prohibited
gambling paraphernalia. (973)
The court declares that defendants'
"evidence adequately demonstrates that the
regulations support the legitimate penological
interests of reducing prohibited behaviors such as
sexual aggression and gambling, and maintaining
respect for legitimate authority" (973) with no
further comment. As to the "valid, rational
connection" requirement, the only question is
whether the magazines contained prohibited
content, which they do; White Dwarf fits the
definition of role-playing because "it simulates
violent battles in an imaginary fantasy world in
which the roll of dice determines which leaders
have the power to crush their enemies." (976).
The court also held that the restrictions were
neutral "because they target the effects of the
particular types of materials, rather than simply
prohibiting broad selections of innocuous
materials." (976).

Procedural Due Process--Disciplinary
Proceedings
Luna v. Pica, 356 F.3d 481 (2d Cir.
2004). The plaintiff was convicted of assaulting
another prisoner who wrote an initial statement
that the plaintiff did it but then refused to testify.
There was no evidence of guilt that did not derive
from the victim's statement.
Under the Supreme Court's "some
evidence" standard, the Second Circuit has not

Winter/Spring 2006

construed "any evidence" literally but has
"looked to see whether there was 'reliable
evidence' of the inmate's guilt." (488) Here, the
only evidence was a bare accusation by a victim
who then refused to confirm it, and no apparent
effort was made to confirm the assailant's identity
or to evaluate the victim's credibility. At 490:
"We conclude, as a matter oflaw, that a
prisoner's due process rights are violated, as in
the confidential informant context, when he is
punished solely on the basis of a victim's hearsay
accusation without any indication in the record as
to why the victim should be credited."

Verbal Abuse; Cruel and Unusual
Punishment
Johnson v. Dellatifa, 357 F.3d 539 (6th
Cir. 2004). The plaintiff alleged that an officer
continuously bangs and kicks his cell door,
throws his food trays through the bottom slot of
his cell door so hard the top flies off, makes
aggravating remarks to him, insults him about his
hair length, growls and snarls through his
window, smears his window to keep him from
seeing out, behaves in a racially prejudicial
manner towards him and jerks and pulls him
unnecessarily hard when escorting him from his
cell. At 546: "... [W]hile the allegations, if
true, demonstrate shameful and utterly
unprofessional behavior by [the officer], they are
insufficient to establish an Eighth Amendment
violation." Harassment and verbal abuse do not
violate the Eighth Amendment.
Sex OffendersIPLRA--Exhaustion of
Administrative Remedies
Kalinowski v. Bond, 358 F.3d 978 (7th
Cir. 2004). A person held under the Illinois
Sexually Dangerous Persons Act is subject to the
PLRA for purposes of exhaustion, etc., because
under that statute, criminal charges are deferred
while the defendant undergoes treatment, and so
he remains a pre-trial detainee.

39

NATIONAL PRISON PROJECT JOURNAL
.~-~

Federal Officials and
PrisonslFTCA-Discretionary Function
Exception/Accidents
Bultema v. Us., 359 F.3d 379 (6th Cir.
2004). The plaintiff fell out of an upper bunk and
severely injured his knee. He sued under the
Federal Tort Claim Act, and the government
invoked the discretionary function exception. At
383:
Where a particular government
action is a deliberate or necessary result of a
discretionary general policy, such that a tort
suit based on the particular act or omission
would amount to a challenge to the protected
across-the-board policy, then the
discretionary function exception applies....
But where a particular government action is
not a necessary result of such a general
policy, the act does not necessarily amount
to an exercise of a discretionary function
merely because carrying out the general
policy provided the opportunity for the
negligent act. . . . A fortiori, if a particular
act violates a governmental policy, the act
cannot be protected under the discretionary
function exception by the fact that the
violated policy itself was an exercise of a
discretionary function.
Under these standards, the prison's policies
of not having rails on upper bunks and of relying
on inmates to notify officials of previously issued
lower bunk passes were protected by the
discretionary function exception. At 384: "The
decision generally not to have bed rails, and the
decision to have inmates notify unit management
of a bunk pass, both involve the type of acrossthe-board policy-making judgment that the
discretionary function exception was meant to
leave to federal administrators."
The allegation that officials were negligent
in not giving the plaintiff the proper number of
forms and instructions to notify unit management
of his approval for a lower bunk was not barred by
the discretionary function exception, since the
policy involved did not allow any discretion, and
even if it did, the discretion wasn't protected by
the exemption, since it was not required by the
40

.....

Winter/Spring 2006
_._-_ ..-

across-the-board policy of requiring the prisoners
to give notice.

Sex OffendersNisiting/SelfIncrimination/Equal Protection
Wirsching v. Colorado, 360 F.3d 1191
(10th Cir. 2004). The plaintiff, a convicted sex
offender, challenged various measures taken
against him for refusing to participate in a
treatment program.
The prison's denial to the plaintiff of
visitation with his child does not violate his right
of familial association under the Turner standard
as illuminated by Overton v. Bazzetta. The ban is
reasonably related to the legitimate penological
interests of protecting his children and furthering
his rehabilitation. The state's evidence (an
affidavit from a social worker) may be debatable,
and a particular sex offender may pose no threat,
but the plaintiff offered no evidence to show that
the defendants' objectives were invalid. The
plaintiff has alternatives: he can write and
telephone his children, and defendants need not
provide him the best method of communication.
The prison's actions did not violate the
plaintiffs Fifth Amendment privilege against
self-incrimination. The total denial of visits with
his children and the denial of opportunity to earn
good time at the rate available to other prisoners
are not serious enough to constitute coercion.
The fact that the plaintiff was convicted by
Alford plea made no difference to the selfincrimination analysis.
Treating sex offenders differently from
other offenders does not deny equal protection
because it is rationally related to a legitimate
state penological objective.
Sexual Minorities/Protection from Inmate
Assault
Greene v. Bowles, 361 F.3d 290 (6th Cir.
2004). The plaintiff, a pre-operative male-tofemale transsexual, was assaulted in the
protective custody unit by a "predatory inmate"
placed there because he had testified against
other prisoners involved in a riot.

NATIONAL PRISON PROJECT JOURNAL

Under Farmer v. Brennan, prison officials
can't escape liability by showing that they didn't
know the complainant was particularly likely to be
victimized by an obvious, substantial risk. At
294:
[W]here a specific individual poses
a risk to a large class of inmates, that risk
can also support a finding of liability even
where the particular prisoner at risk is not
known in advance. . .. Therefore, ...
Greene need only point to evidence from
which a finder of fact could conclude that
her vulnerability made her placement in the
PCU with high-security inmates a
substantial risk to her safety, of which
Warden Brigano was aware, or alternatively,
evidence from which that finder of fact
could conclude that Frezzell's placement in
the PCU without segregation or other
protective measures presented a substantial
risk to other inmates in the PCU, of which
Warden Brigano was aware.
Evidence that the warden was aware that the
plaintiff was potentially in danger because of her
physical appearance, that transgendered prisoners
are often placed in protective custody for that
reason, that the plaintiff was put in PC for that
reason, that the assailant had a lengthy prison
misconduct record, including convictions for
violent assault, that he was a "predatory inmate"
and had a long history of being disruptive and
violent was sufficient to create a factual issue
barring summary judgment.
PLRA--Exhaustion of Administrative
Remedies
Ford v. Johnson, 362 F.3d 395 (7th Cir.
2004). The plaintiff filed a grievance, the review
board called him in for an interview, and he
refused to go, saying he had a federal suit going.
The court affirms dismissal for non-exhaustion.
He did exhaust, regardless of procedural failings,
because the review board decided the merits.
However, he sent in his complaint before the
process was completed. It doesn't matter that the
initial review process was delayed and complaint
was not formally filed until after exhaustion was

Winter/Spring 2006

completed; prisoners must complete exhaustion
before the complaint is tendered to the clerk.
The court rejects the claim that no
remedies were "available" because the plaintiff
had waited six months for a decision and prison
regulations said a decision should be rendered
within 60 days "whenever possible." At 400:
"Some appeals are simple and will be wrapped
up within two months; others are more complex.
. .. Even six months is prompt compared with
the time often required to exhaust appellate
remedies from a conviction."
Dismissal for non-exhaustion should
always be without prejudice, since states may
allow cure of failure to exhaust; or a state may
allow litigation in state court without the
exhaustion rule that § 1997e(a) adopts for federal
litigation. In either case, dismissal with prejudice
blocks what may be an appropriate suit.
Publications
Clement v. California Dep't of
Corrections, 364 F.3d 1148 (9th Cir. 2004) (per
curiam). The appeals court affirms the injunction
against the Pelican Bay State Prison rule
forbidding receiving information downloaded
from the Internet unless it is re-typed. At 1151:
"The First Amendment 'embraces the right to
distribute literature, and necessarily protects the
right to receive it.' . .. It protects material
disseminated over the internet as well as by the
means of communication devices used prior to
the high-tech era.... " At 1152: "Prohibiting all
internet-generated mail is an arbitrary way to
achieve a reduction in mail volume. . .. CDC
did not support its assertion that coded messages
are more likely to be inserted into internetgenerated materials than word-processed
documents. Moreover, Clement submitted expert
testimony that it is usually easier to determine the
origin of a printed email than to track
handwritten or typed mail."

Federal Officials and Prisons/Publications
Ramirez v. Pugh, 379 F.3d 122 (3d Cir.
2004). The plaintiff, a federal prisoner at the low41

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security institution in Allenwood, challenged the
Ensign Amendment, which prohibits the use of
federal funds to distribute or make available
commercially published material that "is sexually
explicit or features nudity." Though rehabilitation
is a legitimate interest, the lower court in
upholding the statute did not adequately describe
"the specific rehabilitative goal or goals furthered
by the restriction on sexually explicit materials."
The connection between the statute and
rehabilitation that seemed obvious in prior
litigation about sex offenders "becomes
attenuated" upon consideration of the entire prison
population. On remand, the district court "must
first identify with particularity the specific
rehabilitative goals advanced by the government
to justify the restriction at issue, and then give the
parties the opportunity to adduce evidence
sufficient to enable a determination" whether there
is a rational connection between ends and means
(128). The other three prongs of the Turner
analysis are "fact-intensive" requiring a
"contextual, record-sensitive analysis." At 130:
"Where the link between the regulation at issue
and the legitimate government interest is
sufficiently obvious, no evidence may be
necessary to evaluate the other Turner prongs."
Here, however, the Turner factors involving
whether accommodating the asserted right would
have an adverse effect on guards, other inmates,
and the allocation of prison resources, and
whether there are de minimis cost alternatives,
require factual development. (No factual
development is required concerning alternative
means for prisoners to exercise their rights:
obviously they can just read something else). The
right at issue must be viewed "sensibly and
expansively." (131)
The scope of the interest in rehabilitation has
never been defined by the Supreme Court.
Policies targeting the specific behavioral patterns
that led to a prisoner's incarceration, or that
emerge during incarceration and present a threat
of lawbreaking, are certainly legitimate. At 128:
"To say, however, that rehabilitation legitimately
includes the promotion of 'values,' broadly
defined, with no particularized identification of an
42

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Wimer/Spring 2006
.

---

existing harm towards which the rehabilitative
efforts are addressed, would essentially be to
acknowledge that prisoners' First Amendment
rights are subject to the pleasure of their
custodians."
Procedural Due Process--Disciplinary
Proceedings/Summary Judgment
Sira v. Morton, 380 F.3d 57 (2d Cir.
2004). The Second Circuit deals
comprehensively with confidential informants in
disciplinary proceedings. Disciplinary
convictions must be supported by "some
evidence," which means "some 'reliable
evidence'." (69)
At 70: [D]ue process requires more than
a conclusory charge; an inmate must
receive notice of at least some "specific
facts" underlying the accusation....
Such notice is especially important
where, as in this case, large parts of the
disciplinary hearing are conducted outside
the inmate's presence. The law
recognizes that legitimate concerns for
inmate safety may sometimes require
confidential proceedings, ... but in such
circumstances, there is a particular due
process interest in requiring some factual
specificity in the misconduct notice.
The Constitution does not demand
painstaking detail, "but there must be sufficient
factual specificity to permit a reasonable person
to understand what conduct is at issue so that he
may identify relevant evidence and present a
defense." (72) At 72: "[W]e are doubtful that
inadequate written notice can be cured merely
through oral disclosures at the hearing. Certainly
such curative disclosures would be insufficient
unless the inmate was also afforded the
meaningful opportunity to prepare a response to
the new information."
At 74: An inmate's due process right to
know the evidence upon which a
discipline ruling is based is well
established. . .. Such disclosure affords
the inmate a reasonable opportunity to
explain his actions and to alert officials to

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Winter/Spring 2006

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possible defects in the evidence. However,
hearing officers may decline to inform a
prisoner of evidence when it would present a
risk of violence or intimidation. A need to
keep informants' identities confidential does
not support keeping the substance of their
testimony confidential when it can be
disclosed without identifying the informant.
Non-disclosure of that information supports
a due process claim and defendants are not
entitled to qualified immunity.
The credibility of confidential informants
must be supported by an independent assessment
of credibility for their testimony to be relied on.
(78). Conclusory assertions even by credible
informants--here, that an informant saw the
plaintiff "coerce inmates through strong arm
tactics and threats of violence to participate in
certain stages of the planned strike"--do not by
themselves qualifY as "some reliable evidence of
inmate misconduct." (80)
PLRA--Exhaustion of Administrative
Remedies
Giano v. Goord, 380 F.3d 670 (2d Cir.
2004). The plaintiff alleged that he was subjected
to retaliatory discipline and evidence was
tampered with. He pursued a disciplinary appeal.
The court follows its prior decisions "which
make clear that there are certain 'special
circumstances' in which, though administrative
remedies may have been available and though the
government may not have been estopped from
asserting the affirmative defense of nonexhaustion, the prisoner's failure to comply with
administrative procedural requirements may
nevertheless have been justified." In such cases,
the present unavailability of remedies doesn't
serve to keep the suit from going forward.
This plaintiff "reasonably interpreted" (676)
prison regulations to mean that his only
administrative recourse was a disciplinary appeal.
The court doesn't "attempt any broad statement of
what constitutes justification," but this plaintiff
has sufficiently alleged it, given his reasonable
belief that prison regulations foreclosed his
grieving his complaint. At 679: Defendants argue

that he misread the regs, but even assuming that's
correct, "his interpretation was hardly
unreasonable." The regulations "do not
differentiate clearly between grievable matters
relating to disciplinary proceedings, and nongrievable issues concerning the 'decisions or
dispositions' of such proceedings." After all, a
"learned" district court judge has endorsed an
interpretation nearly identical to plaintiffs.
At 680: If it seems that prison grievance
procedures are still available to Giano, the
district court should dismiss without prejudice,
subject to reinstatement if the prison does not
allow him to file and pursue his grievance.
PLRA--Exhaustion of Administrative
RemedieslFederal Officials and Prisons
Johnson v. Testman, 380 F.3d 691 (2d
Cir.2004). At 695: "The failure to exhaust
available administrative remedies is an
affirmative defense. At least two other circuits
have explicitly held that the PLRA's exhaustion
requirement may be waived ....We today join
them and hold that this defense is waiveable."
The plaintiffs other claim involved an
inmate-inmate assault allegedly provoked by
staff, and he said he exhausted through the appeal
of the resulting disciplinary proceeding, which he
won. The court has held that a prisoner who acts
reasonably in the face of unclear regulations has
exhausted. This plaintiff "contends that because
under BOP regulations the appellate process for
disciplinary rulings and for grievances is one and
the same, he reasonably believed that raising his
complaints during his disciplinary appeal
sufficed to exhaust his available administrative
remedies." (696) This argument "cannot be
dismissed out of hand, especially since the
district court has not had the opportunity to
examine it." (696-97)
The court then asks whether the plaintiffs
administrative submission was substantively
sufficient. The exhaustion requirement is
designed to provide "time and opportunity to
address complaints internally" before suit, per
Porter. At 697:

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[T]he Seventh Circuit has held that,
if prison regulations do not prescribe any
particular content for inmate grievances, "a
grievance suffices if it alerts the prison to
the nature of the wrong for which redress is
sought. As in a notice pleading system, the
grievant need not layout the facts, articulate
legal theories, or demand particular relief.
All the grievance need do is object
intelligibly to some asserted shortcoming." .
.. We believe that this formulation is a
sound one. . .. In order to exhaust,
therefore, inmates must provide enough
information about the conduct of which they
complain to allow prison officials to take
appropriate responsive measures. (internal
citation omitted)

PLRA--Exhaustion of Administrative
Remedies
Hemphill v. New York, 380 F.3d 680 (2d Cir.
2004). The plaintiff complained of a use of force.
He didn't file a grievance, but wrote a letter to the
Superintendent. He said officers including one of
the defendants had assaulted him again and
threatened him ifhe complained in any fashion.
At 686:
Read together, our recent decisions, and our
holdings today in the other consolidated
cases, suggest that a three-part inquiry is
appropriate in cases where a prisoner
plaintiff plausibly seeks to counter
defendants' contention that the prisoner has
failed to exhaust available administrative
remedies as required by the PLRA, 42
U.S.C. § 1997e(a). Depending on the
inmate's explanation for the alleged failure
to exhaust, the court must ask whether
administrative remedies were in fact
'available' to the prisoner. Abney v.
McGinnis, No. 02-0241. The court should
also inquire as to whether the defendants
may have forfeited the affirmative defense
of non-exhaustion by failing to raise or
preserve it, Johnson v. Testman, No.
02-0145, or whether the defendants' own
actions inhibiting the inmate's exhaustion of
44

Winter/Spring 2006

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remedies may estop one or more of the
defendants from raising the plaintiffs
failure to exhaust as a defense, Ziemba,
366 F.3d at 163. If the court finds that
administrative remedies were available to
the plaintiff, and that the defendants are
not estopped and have not forfeited their
non-exhaustion defense, but that the
plaintiff nevertheless did not exhaust
available remedies, the court should
consider whether "special circumstances"
have been plausibly alleged that "justify
'the prisoner's failure to comply with
administrative procedural requirements. '"
Giano v. Goord, No. 02-0105 (citing
Berry v. Kerik, 366 F.3d 85, 88 (2d
Cir.2003); Rodriguez order).
Here, the grievance process was available
to Hemphill at the outset. However, threats by
staff may make remedies unavailable-either all
remedies, or the usual grievance remedy. At 688:
The test for deciding whether the ordinary
grievance procedures were available must
be an objective one: that is, would a
similarly situated individual of ordinary
firmness" have deemed them available.
Cf Davis v. Goord, 320 F.3d 346, 353
(2d Cir.2003) (articulating the "individual
of ordinary firmness" standard in the
context of a prisoner retaliation claim).
Moreover it should be pointed out that
threats or other intimidation by prison
officials may well deter a prisoner of
"ordinary firmness" from filing an
internal grievance, but not from appealing
directly to individuals in positions of
greater authority within the prison system,
or to external structures of authority such
as state or federal courts.
As to special circumstances, the plaintiff
alleges that his writing directly to the
Superintendent "comported with DOCS
procedural rules, or, at a minimum, reflected a
reasonable interpretation of those regulations."
(689) DOCS had issued a "clarification" of the
rules which, plaintiff said, showed that the
previous version was not clear. These arguments

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"are not manifestly meritless. Accordingly,
having held in Giano that reliance on a reasonable
interpretation of prison grievance regulations may
justify an inmate's failure to follow procedural
rules to the letter," the court remands for
consideration of the claim.
On remand, if the district court finds that the
failure to exhaust as per DOCS regulations was
justified, it should "ask whether administrative
remedies are still available to the plaintiff." If so,
it should dismiss without prejudice, and subject to
reinstatement if the remedies tum out to be
unavailable. If remedies are no longer available,
Hemphill may simply proceed "without further
ado." (691)
PLRA--Exhaustion of Administrative
Remedies
Abney v. McGinnis, 380 F.3d 663 (2d Cir.
2004). The plaintiff filed repeated grievances
about his orthopedic footwear, was repeatedly told
by the same physician that he would receive
services, but he never got shoes that fit. The court
characterizes: "Each [grievance] resulted in a
favorable ruling by the IORC and the
Superintendent." (666)
At 668: prison regulations say the
superintendent should verify compliance
with favorable grievance decisions, but
there's nothing in the regulations to allow
inmates to enforce that. "Indeed, there is no
mechanism in DOCS regulations that allows
inmates to appeal a favorable decision where
prison officials fail to implement that
decision." There is no time within the fourday appeal deadline to assess whether prison
officials have implemented a favorable
decision. The court rejects the argument
that prisoners should always appeal
favorable decisions to allow for the
possibility of noncompliance. Absent any
remedy for implementation failures, the only
thing to do is file another grievance, and
Abney did just that. At 669: "Despite his
dogged pursuit of repeated grievances over
two years, Abney was mired in a Catch-22.
The defendants' failure to implement the

Winter/Spring 2006

multiple rulings in Abney's favor
rendered administrative relief
'unavailable' under the PLRA.... Once
Abney received a favorable ruling from
the Superintendent on his lOP grievances,
no further administrative proceedings
were available to propel him out of stasis.
Consequently, there was no further
'possibility of some relief for Abney.
See Booth, 532 U.S. at 738.
Where, as here, prison regulations do not
provide a viable mechanism for appealing
implementation failures, prisoners in Abney's
situation have fully exhausted their available
remedies. A prisoner who has not received
promised relief is not required to file a new
grievance where doing so may result in a
never-ending cycle of exhaustion.
Personal Property/Temporary Release
Givens v. Alabama Dep't a/Corrections,
381 F.3d 1064 (11th Cir. 2004). The plaintiff
challenged a rule prohibiting work release
prisoners from receiving the interest on that
portion of their wages placed by the state in bank
accounts as an unlawful taking. The rule is
upheld. To state a Takings Clause claim, a
plaintiff must first show a property interest that is
constitutionally protected. The court evades
Supreme Court and Ninth Circuit precedent
relying on the common law maxim that interest
follows principal by holding (following
Blackstone) that "at common law an inmate not
only did not have a property right in the product
of his work in prison, but he could also be forced
to forfeit all rights to personal property." (1068)
Further, contrary authority assumes that a
"complete property right" exists in the principal;
but here, as a prisoner, the plaintiff was not free
to receive the deposits in cash, make withdrawals
whenever he wanted, or spend money without
prison officials' approval.
Absent a common law property right, the
court asks whether there is a state-created
property right based on statute, regulation, or
policy. None of the relevant statutes mentions

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interest, so they don't vest the plaintiff with a
property right in it.
Protection from Inmate AssaultlPLRA-Exhaustion of Administrative
Remedies/Personal Involvement and
Supervisory Liability/Equal Protection; Sexual
Minorities
Johnson v. Johnson, 385 F.3d 503 (5th Cir.
2004). The plaintiff alleged that he was
repeatedly raped and bought and sold among
prison gangs despite his repeated complaints to
prison officials, who did nothing. He claimed
racial discrimination as well as Eighth
Amendment violations and discrimination based
on sexual orientation.
Prison grievances "should give prison
officials 'fair notice' of the problem that will form
the basis of the prisoner's suit." (516) At 517:
Further, as a practical matter, the
amount of information necessary will likely
depend to some degree on the type of
problem about which the inmate is
complaining. If an inmate claims that a
guard acted improperly, we can assume that
the administrators responding to the
grievance would want to know--and a
prisoner could ordinarily be expected to
provide--details regarding who was involved
and when the incident occurred, or at least
other available information about the
incident that would permit an investigation
of the matter... Beyond those general
practical considerations, the prison system's
own rules regarding grievances provide both
inmates and the courts with more specific
guidance. Since prisoners are generally
required to follow the procedures adopted by
the state prison system, the specificity
requirement should be interpreted in light of
the grievance rules of the particular prison
system, here the [Texas Department of
Criminal Justice] TDCJ....
At 517-18: Legal theories need not be
presented in grievances. However, the plaintiff s
failure even to mention race in his grievances
precludes him from pursuing a racial
46

Winter/Spring 2006
.

----

discrimination claim in his lawsuit. As to sexual
orientation, his references to it are intertwined
with his complaints about lack of protection, so
he may pursue that claim.
The grievance deadline is 15 days and the
plaintiff complained about a sequence of events.
At 519: Anything that happened more than 15
days before the first grievance is not exhausted;
to hold otherwise just because the complaints
were similar "would effectively negate the state's
fifteen-day rule and frustrate the prison system's
legitimate interest in investigating complaints
while they are still fresh." However, once
officials were on notice from that grievance that
the plaintiff was being subjected to repeated
assaults and was not receiving any protection
from the system, he was not required to file
repeated grievances about the same issue.
The court refuses to require grievances to
name each defendant in all cases. The purpose is
to alert prison officials to a problem, not to notify
particular officials that they may be sued. But
the grievance must give officials a fair
opportunity under the circumstances to address
the problem, and for some problems this will
often require, as a practical matter, identifying
the relevant staff members. Here, the plaintiff
failed to mention two officers who allegedly
failed to protect him on a few discrete occasions.
He didn't exhaust against them.
A grievance can sufficiently identify a
person even if it doesn't provide a name;
"functional descriptions and the like--e.g., a
reference to 'the guards in the shower room' on a
certain date would suffice." (523) Referring to
classification committees is sufficient to "put the
prison administrators on notice that members of
the UCCs were connected, indeed most closely
connected, with Johnson's problem" (id.).
The Executive Director, the Senior
Warden, and the Director of Classification, who
had notice of the plaintiffs claims and were
obliged under Farmer to take reasonable
measures to protect inmates, are all entitled to
qualified immunity. They can't be expected to
intervene personally in response to every inmate
letter; "referring the matter for further

NATIONAL PRISON PROJECT JOURNAL

investigation or taking similar administrative
steps" was "a reasonable discharge of their duty to
protect the inmates in their care." (526) Courts
have not delineated what supervisory officials
must do in these circumstances, so they did not
violate clearly established law.
Members of the Unit Classification
Committee who did nothing in response to the
plaintiffs claims except to tell him to fight offhis
attackers ("learn to f--- or fight") were not entitled
to qualified immunity. While Farmer does not
spell out officials' obligations, it "does make it
abundantly clear that an official may not simply
send the inmate into the general population to
fight off attackers." (527) The defendants'
argument that no single person could have granted
the plaintiffs requests "does not transform this
deliberately indifferent failure to take any action
into a reasonable method of discharging their duty
to protect the prisoners in their care." (527)
The plaintiffs equal protection claim is not
based on verbal comments; it is based on a failure
to protect because of his sexual orientation, and
the comments are relevant to the defendants'
motivation. The failure to identify nonhomosexual prisoners who were similarly situated
but treated better does not require dismissal, since
the plaintiff pled generally that he qualified for
safekeeping status, but didn't get it while other
vulnerable inmates did, because of his sexual
orientation. Further, where (as here) the plaintiff
has direct evidence of intentional discrimination,
he need not present such group comparisons.
Procedural Due Process--TransferslPrivate
Prisons
Overturfv. Massie, 385 F.3d 1276 (10th Cir.
2004). The petitioners were convicted in Hawaii,
transferred to a private prison in Oklahoma, which
was then bought by Oklahoma for operation as a
state-owned prison. Their due process claim is
foreclosed by Olim v. Wakinekona;
notwithstanding various factual distinctions from
that case, they clearly don't have a liberty interest
in where they are confined. The petitioners argued
that Hawaii constructively pardoned them by
failing to transfer them out of the private prison

Winter/Spring 2006

when Oklahoma bought it. At 1279:
"Petitioners' claim that Hawaii lost jurisdiction
over them is legally incorrect." Criminal
jurisdiction remains with the sentencing
jurisdiction regardless of transfers. The
"constructive pardon" rationale of a case where a
state released a prisoner erroneously and waited
28 years to do anything about it has nothing to do
'----with this case. Nor is there an Eighth
Amendment claim for banishment: Olim
specifically holds that transfer of a prisoner to
another state does not constitute banishment.
(1279)
Medical Care--Standards of Liability-Deliberate Indifference/Personal Involvement
and Supervisory Liability
McKenna v. Wright, 386 F.3d 432 (2d
Cir.2004). The plaintiff asked for Hepatitis C
treatment but was deemed ineligible since he had
an upcoming parole hearing and might not be in
the system for 12 more months. After he was
denied parole, he asked for treatment again, but
was denied because he was not enrolled in an
Alcohol and Substance Abuse program; he had
previously been deemed ineligible for ASAT
because of his medical condition. A year later,
by which time his disease had progressed to
cirrhosis, he was denied treatment because his
cirrhosis was decompensated, i.e., accompanied
by complications such as jaundice, ascites, and
hemorrhaging. When he asked for a liver
transplant, however, Chief Medical Officer
Wright denied the request because the cirrhosis
was probably compensated. The next year, he
was denied treatment again because he wasn't in
ASAT. So he enrolled in ASAT, but he still did
not receive treatment. Finally, the next year (four
years after he had started asking), he was
approved for treatment, but by then his disease
was so advanced that the side effects rendered
him too weak to continue treatment.
Based on the pleadings, the court rejects
the defendants' argument that they can't be found
liable because the plaintiffs condition was
"continuously assessed and monitored" and any
lack of treatment resulted from the plaintiffs
<II

47

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failure to meet applicable treatment guidelines.
The complaint "alleges a series of failures to test
for his condition despite known danger signs of
his disease, failure to initiate treatment when the
need for treatment was apparent, failure to send
McKenna for follow-up visits ordered by doctors
at the Albany Medical Center, and denial of
treatment on the basis of inapplicable or flawed
policies." (437) The plaintiff's allegation that "he
was denied urgently needed treatment for a
serious disease because he might be released
within twelve months of starting the treatment"
sufficiently alleged deliberate indifference. !d.
Various medical supervisors, including the
Chief Medical Officer, are alleged to have
participated in the denial of treatment and are not
entitled to dismissal. The non-medical defendants
were prison superintendents who were not merely
linked in the prison chain of command, or faulted
for failing to dictate specific medical treatment,
but were "adequately alleged to have had
responsibility for enforcing or allowing the
continuation of the challenged policies that
resulted in the denial of McKenna's treatment." Id.
While "it is questionable whether an adjudicator's
rejection of an administrative grievance would
make him liable for the conduct complained of," a
Deputy Superintendent for Administration not
only rejected the grievance but was alleged to
have been responsible for the prison's medical
program. At 438: "When allegations of
improperly denied medical treatment come to the
attention of a supervisor of a medical program, his
adjudicating role concerning a grievance cannot
insulate him from responsibility for allowing the
continuation of allegedly unlawful policies within
his supervisory responsibility."

Pre-Trial Detainees/Assistance of CounsellLaw
Libraries and Law Books
Bourdon v. Loughren, 386 F.3d 88 (2d Cir.
2004). A prisoner who has a criminal defense
lawyer has received the "adequate assistance from
persons trained in the law" prescribed in Bounds
v. Smith as one of the two means of satisfying the
right of court access. (94). Therefore this former
criminal defendant, subsequently convicted, was
48

Wimer/Spring 2006

not denied access to courts by being denied
materials from the jail law library, by the failure
to have an adequate and current law library, and
by the failure to provide timely notarial services.
(He was trying to file a motion to dismiss the
indictment pro se.) His claim that his lawyer was
ineffective adds nothing, because the right of
access to courts (notwithstanding the "adequate
assistance" language of Bounds) does not
incorporate the Sixth Amendment inquiry into
effectiveness of counsel. (95)

Federal Officials and Prisoners/Temporary
Release
Elwood v. Jeter, 386 F.3d 842 (8th Cir.
2004). Contrary to the abruptly announced
policy limiting prisoners' placement in
community confinement to the last six months or
10% of sentence, the Bureau of Prisons has
discretion to transfer prisoners to community
incarceration at any time during incarceration. A
community corrections center is a "place of
imprisonment" under the relevant statute, and the
other statute referring to 10% or six months
defined the Bureau of Prisons' pre-discharge
obligations, not its discretion in placing
prisoners. The court grants relief on the statutory
argument and doesn't reach the plaintiffs
Administrative Procedures Act and Ex Post Facto
Clause arguments.
PLRA-Three Strikes ProvisionlMedical Care-Standards of Liability--Serious Medical
Needs, Deliberate Indifference
Brown v. Johnson, 387 F.3d 1344 (lIth
Cir. 2004). The defendants argued that the
plaintiffs complaint should be dismissed under
the three strikes provision; the court holds that it
falls within the "imminent danger of serious
physical injury" exception. The plaintiff alleged
that his prescribed medications for HIV and
Hepatitis C were stopped, and, as a result he
suffered prolonged skin and newly developed
scalp infections, severe pain in the eyes and
vision problems, fatigue and prolonged stomach
pains, and alleged that without treatment he
would be exposed to opportunistic infections,

NATIONAL PRISON PROJECT JOURNAL

such as pneumonia, esophageal candidiasis,
salmonella, and wasting syndrome, which would
shorten his life. At 1350: "Liberally construed,
Brown alleges a total withdrawal of treatment for
serious diseases, as a result of which he suffers
from severe ongoing complications, is more
susceptible to various illnesses, and his condition
will rapidly deteriorate."
Prisoner Accounts/Procedural Due Process-Property/Grievances and Complaints about
PrisonIWork Assignments
Vance v. Barrett, 345 F.3d 1083 (9th Cir.
2003). A state statute provided for crediting
monies earned by and sent to prisoners to their
prison accounts. The Department of Prisons
required all prisoners to sign an agreement in
order to be eligible for prison employment which
provided that their savings accounts would not
accrue interest for their sole benefit. The
plaintiffs refused to sign the agreement, were
fired, and brought this suit alleging retaliation for
exercising their constitutional rights.
The plaintiffs raised claims under the
Takings Clause and the Due Process Clause. At
1089 (footnotes and citations omitted): "[T]he
protections afforded by each are distinct. The
Takings Clause limits the government's ability to
confiscate property without paying for it. It is
"designed to bar Government from forcing some
people alone to bear public burdens which, in all
fairness and justice, should be borne by the public
as a whole." . .. "The Due Process Clause, on the
other hand, requires that the government provide
appropriate procedural protections when taking
such property--with or without compensation."
Both these claims depend on the existence of
an underlying constitutionally protected property
interest. The court has previously held that
interest on prisoner accounts is a constitutionally
protected property interest, both as a result of state
statute and as an independent constitutional
matter.
The Takings Clause analysis is confined to
those deductions that were authorized by statute;
actions officials took without statutory

Winter/Spring 2006

authorization are analyzed under the Due Process
Clause.
Officials have the right to deduct
expenses incurred in creating and maintaining the
prisoners' accounts. Reasonable user fees for the
reimbursement of the cost of government
services are permissible, and absent any
allegation that the charges were unreasonable or
unrelated to administration of the accounts, the
Takings Clause challenge fails. At 1090:
"Without underlying authority and competent
procedural protections, NDOP could not have
constitutionally confiscated the net accrued
interest." Since officials had neither statutory
authority nor a procedure, the plaintiffs due
process claim is valid.
The "well-settled doctrine of
unconstitutional conditions" says that
government may not require a person to give up a
constitutional right in exchange for a
discretionary benefit that has little or no
relationship to the property. That doctrine
applies in prison, but the law is unclear whether
the standard "essential nexus/rough
proportionality" test or the Turner standard
governs. Also, the standard test is directed
towards Takings Clause claims, not procedural
due process claims, and they may be different.
So the defendants are entitled to qualified
immunity on the unconstitutional conditions
claims.
The plaintiff prevails on his claim of
retaliation for refusing to waive protected rights.
Defendants could prevail if their action advanced
legitimate goals and was tailored narrowly to
them, but here they don't have a legitimate goal.
Their interest in recouping costs and running the
prisons efficiently "does not extend to avoiding
the limits placed upon them by the state
legislature and failing to provide constitutionally
adequate procedural protections." (l093) They
are not entitled to qualified immunity, since the
court had held in 1994 that prisoners have a right
to interest and officials cannot make deductions
from prisoner accounts without statutory
authority, and since the law of retaliation for
assertion of constitutional rights is well
49

NATIONAL PRISON PROJECT JOURNAL

developed. Prison officials say past precedent
deals only with retaliation for affinnatively
exercising a right, and there's no precedent
concerning refusal to waive a right, but that is "a
distinction without a difference." (1094) The fact
that defendants received misguided advice from
the state Attorney General's office doesn't help
them.
Procedural Due Process--Disciplinary
Proceedings/Disabled/Equal
ProtectioniClassification-- Race/
Serrano v. Francis, 345 F.3d 1071 (9th Cir.
2003). The wheelchair-bound plaintiff alleged
that prison officials refused to allow him to
present live witness testimony at a disciplinary
hearing.
There is no single standard for detennining
whether a prison hardship is atypical and
significant; the court looks to (1) "whether the
challenged condition "mirrored those conditions
imposed upon inmates in administrative
segregation and protective custody," and thus
comported with the prison's discretionary
authority; (2) the duration of the condition, and
the degree of restraint imposed; and (3) whether
the state's action will inevitably affect the duration
of the prisoner's sentence. . .. Typically,
administrative segregation in and of itself does not
implicate a protected liberty interest. ..." (1079).
However, the plaintiff "wallowed in a nonhandicapped-accessible SHU for nearly two
months--25 days of which immediately followed"
his being sentenced to a year in SHU. Id. He was
denied use of his wheelchair and alleges he could
not take a proper shower, had to drag himself onto
the toilet with his arms, could not go to the yard,
and had to drag himself around a vennin-infested
floor. Here, "the conditions imposed on Serrano
in the SHU, by virtue of his disability, constituted
an atypical and significant hardship on him." Id.
(footnote omitted)
A blanket denial of live witnesses at a
disciplinary hearing is impennissible, even where
authorities allowed interviewing of witnesses
outside the disciplinary procedure. The hearing
officer cannot rely on a regulation that says
50

Winter/Spring 2006

witnesses will be called unless the appearance
would endanger the witness, the official
detennines the witness has no relevant additional
infonnation, or the witness is unavailable. This
regulation provides no defense, since it also calls
for the hearing officer to document the reasons
for refusing.
The hearing officer is entitled to qualified
immunity because the court has never dealt with
the question of the effect of disabilities on the
existence of liberty interests in segregation.
The plaintiff alleged sufficient facts to go
to trial on a claim that the decision to disallow
live testimony was racially motivated. The
hearing officer said that he didn't "know how
black people think" and made references to the
ongoing OJ. Simpson trial.
Personal Property/Procedural Due Process-Property
Schneider v. California Dep't of
Corrections, 345 F.3d 716 (9th Cir. 2003).
California prisoners are allowed to establish
savings accounts that pay interest and Inmate
Trust Accounts (ITAs) that do not pay interest; a
prisoner must have an ITA to make canteen
purchases and must keep at least $25 in it to
maintain a savings account. Interest earned on
the ITA money is not paid to the prisoners but to
an Inmate Welfare Fund.
Allocation of interest on the ITAs to the
Inmate Welfare Fund is a taking of property
"because it appropriates the interest earned by the
ITAs and allocates them [sic] for a public use."
(720) The district court found that the expense
of administering an interest-bearing ITA system
would be larger than the interest generated,
leaving nothing for distribution. At 720:
"Notwithstanding the district court's reliance on
these average cost estimates, there remains the
fundamental question for takings purposes of
whether an individual inmate was deprived of
any net interest." At 721 :
For takings purposes, ... the relevant
inquiry is not the overall effect on fund
administration but whether any of the
individual inmates themselves have been

NATIONAL PRISON PROJECT JOURNAL

deprived of their accrued net interest. The
government is not absolved of its
constitutional duty to pay 'just
compensation' to an individual whose
property has been taken for public use
merely because the same government has
benevolently conferred value on another
affected property owner. Indeed, even if the
total costs of operating a pooled fund
outweigh the total interest generated,
individual account holders in that fund are
not precluded, on a proper showing, from
enjoyment of their constitutionally protected
property rights.
The relevant law has been in a "state of
flux," so the defendants are entitled to qualified
immunity.
The court notes that the state has stopped
putting the ITA money in an interest-bearing
account. At 722 n.3: "Curiously, California
appears concerned that it would actually have to
compensate individual prisoners for their net
accrued interest and sought to forestall such
calamity by eliminating deposits of ITA funds to
the State treasury system altogether." The court
reserves comment on the propriety of that action.
Religion--Practices/RFRA and RLUIPAlPro Se
Litigation/Deference
Hammons v. Saffle, 348 F.3d 1250 (10th Cir.
2003). The plaintiff challenged a prohibition on
possessing Muslim oils in his cell or purchasing
them from the canteen; prisoners were allowed
only to obtain them from volunteer chaplains, or
to keep them in designated worship areas. They
were still allowed to buy "imitation designer
colognes and oils," which were chemically the
same as the Muslim oils. Later these, too, were
prohibited.
The policy meets the Turner standard.
The legitimate penological interests at stake are
preventing the use and possession of drugs,
maintaining order and safety, crime deterrence,
and rehabilitation. The policy is rationally related
to them. At 1255: "Constraining prayer oil use to
supervised, communal areas decreased the
likelihood that these oils could have been used by

Wimer/Spring 2006

inmates to mask the odor of drugs or to slip out
of handcuffs. " The failure to ban other oils at the
same time does not render the policy irrational.
Government "can, in some circumstances,
implement policies that are logical but yet
experiment with solutions and address problems
one step at a time." Id.
The plaintiff has alternative means to
exercise his rights, since he can get oils through a
volunteer chaplain. He can't get it five times a
day, but admits that oil-less prayers "did not
completely eradicate the value of his prayers."
(1256)
Accommodating the plaintiffs prayer oil
needs five times a day "would likely have heavily
burdened prison resources and other inmates'
religious interests" since other groups also
require access to chapel and chaplain. (1256-57)
There was no evidence in the record of
a way to accommodate the plaintiff five times a
day at de minimis cost to valid penological
interests. Though he had been allowed to use the
oils in his cell "without incident" under former
policy, "[t]he mere lack of incident under the
former policy ... does not establish that such an
incident would not occur in the future." (1257)
At 1258: "Pro se plaintiffs are required
to allege the necessary underlying facts to
support a claim under a particular legal theory."
However, RLUIPA did not exist when the
plaintiff filed his complaint, and he didn't raise it
in the district court, so the defendants didn't have
an opportunity to defend against the claim.
"Given the unique facts and procedural posture,"
the district court should consider the RLUIPA
claim.
Protection from Inmate Assault
Odom v. South Carolina Dep't of
Corrections, 349 F.3d 765 (4th Cir. 2003). The
plaintiff was attacked after prisoners started a fire
in order to create an opportunity to attack him.
He told an officer that they would try to kill him
ifhe was put on the recreational field, but the
officer put him there anyway, and when inmates
started trying to get into the cage he was in, the

51

NATIONAL PRISON PROJECT JOURNAL
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._-------_._- - - - --- - - - - - - - _ . __ .-

officers ignored him and did nothing. Eventually
the assailants got to him and injured him badly.
The defendants were not entitled to qualified
immunity. At 772: "adorn presents evidence that
Powell saw the inmates destroying the fence
between them and adorn, and did nothing; that
Evans realized Odom was in danger, but walked
away from adorn when Evans was personally
threatened by one of the inmates; and that Taylor
told adorn, in effect, that adorn was going to get
what he deserved." It was clearly established that
doing nothing in response to an assault or violent
threats violates the Eighth Amendment.
PLRA--Prospective Relief Restrictions--Entry
of Relief/Publications
Ashker v. California Dep't ofCorrections,
350 F.3d 917 (9th Cir. 2003). The defendants
required all incoming books and magazines sent
to secure housing unit (SHU) inmates to have
"approved vendor" labels and stamps affixed to
them, making it difficult or impossible for the
prisoners to get books.
The policy fails the Turner standard
because it lacks a rational relationship to the
asserted legitimate interest in security and order.
The evidence refutes any common-sense
connection and the defendants fail to produce
evidence that the connection is not so remote as to
make the policy arbitrary or irrational (923).
Defendants' policy already requires that material
be sent directly from approved vendors, and
compliance can be readily determined; the
approved vendor label and stamp add nothing for
security purposes. All personal property mailed to
prisoners is searched before delivery; even though
there are instances where contraband is missed
because of human error, defendants have
"articulated no scenario" in which their policy
adds any security. The notion that the lack of a
label can be a "red flag" alerting staff to books
from non-vendors is unsupported by evidence.
Nor is there any rational basis for applying the
label policy to books but not tennis shoes, thermal
clothing, or appliances. At 923: "CDC has made
no effort to explain why books are more

S2

Winter/Spring 2006

susceptible to being used to deliver contraband
than other items."
Having failed the rational connection test,
the policy need not be tested against the other
Turner factors, but those favor the plaintiff. The
prisoners have no alternatives because they can't
force the vendor to use the labels.
Accommodating the right doesn't have much
impact on the prison because they already search
all incoming packages. There are obvious and
easy alternatives, such as examining package
address labels and invoices, suggesting that
requiring a special label is an exaggerated
response.
Private Prison
Rosborough v. Management and
Training Corp., 350 F.3d 459 (5th Cir. 2003)
(per curiam). A private entity acts under color of
state law under the public function doctrine when
it performs a function which is traditionally the
exclusive province of the state. At 461: "We
agree with the Sixth Circuit and with those
district courts that have found that private prisonmanagement corporations and their employees
may be sued under § 1983 by a prisoner who has
suffered a constitutional injury. Clearly,
confinement of wrongdoers--though sometimes
delegated to private entities--is a fundamentally
governmental function."

LEGAL DEPARTMENT
NATIONAL P·RISON
PROJECT

AMERICAN CIVIL LIBERTIES UNION

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