AMERICAN CIVIL LIBERTIES UNION

By Tom Jawe/z, NPP StaffAttorney

Inside this issue:

NPP Takes on Immigration
Detention Centers
1
Memorial Tribute to
Pat McManus

1

Know Your Rights:
ThePr~onLitigationReform

4

Recent PLRA Decisions _ 8
Case Law Report: Highlights
ofthe Most Important Prison
11
Cases
Contact Information

JOURNAL

NPP Takes on Immigration Detention Centers

Volume 19, Issue 2
Fall 2007

Act (PLRA)

NATIONAL
PRISON
PROJECT

23

dreds of county jails as well as a handful of facilities run by the U.S. Department of Homeland Security (DHS) and
private prison companies. Although
some of these people may be detained
for a matter of weeks, many are detained for months or years.
Since January 2007, the NPP
has filed three lawsuits on behalf of
immigrant detainees. In January, we
filed Kiniti v. Myers, No. 05-cv-1013
(S.D. Ca1.), an overcrowding lawsuit
involving the San Diego Correctional
Facility (SDCF). SDCF is run by Corrections Corporation of America
(CCA), the largest for-profit correctional services provider in the nation.
Hundreds of detainees were crammed
three-to-a-cell, requiring the third detainee to sleep on the floor by the toilet. Conditions were filthy and the

Since 1972, the National Prison
Project (NPP) of the American Civil
Liberties Union has defended the constitutional rights of detained persons to
humane conditions of confinement.
The NPP regularly litigates on behalf
of prisoners in more than 25 states, and
represents tens of thousands of pretrial criminal detainees in large urban
jails around the country.
But until recently, the NPP has
never focused on the unique problems
faced by persons detained by U.S. Immigration and Customs Enforcement
(ICE) pursuant to civil immigration
charges. Over the past ten years, this
population has increased at an alarming rate. There are currently over
29,000 immigrants in detention on any
given day, and nearly 300,000 each
year. Plans already are in place to exContinued on page 2. See Immigration
pand ICE's capacity to detain thousands more. Immigrant detainees are
scattered across the country in hun-

Memorial Tribute to Pat McManus
By Alvin J. Bronstein, Director Emeritus, The
National Prison Project ofthe ACrU

Patrick D. McManus, a longtime friend and consultant to the National Prison Project passed away on
July 29,2007 in Minnesota after a
short illness. He is survived by his
wife Nancy and his children Michael,

Kathryn, and John, and grandchildren
Meghan, Jenna, and Georgia. He was
a very important part of the NPP's litigation program and appeared as an expert witness, consultant, special master, or court monitor in many of its significant cases.
Continued on Page 3. See Pat McManus

Immigration Detention
"There are currently over 29,000
immigrants in detention on any given
day. "
overcrowding caused tension at the facility and diminished access to health care. The NPP's account of
overcrowding was recently bolstered by a U.S. Government Accountability Office report that described
severe overcrowding at the facility and noted the potential safety and security issues raised by the problem. Hundreds of detainees were transferred out of
SDCF just days after the NPP entered the case. The
lawsuit is now proceeding as a class action.
In March, the ACLU filed a series oflawsuits
against DHS officials for holding innocent children,
including toddlers, in prison-like conditions at the T.
Don Hutto Family Residential Center in Taylor,
Texas, without sufficient access to recreation, medical care, or education. In the months that followed,
DHS made improvements to the facility to correct
the problems challenged by the ACLD. The 26 individual lawsuits were consolidated under the caption
In re Hutto Family Detention Center, No. 07-cv-164
(W.D. Tex.), and on the eve of trial, we reached a
landmark settlement with DHS. The Settlement
Agreement guarantees that the improvements already
made at the facility will remain, that additional
changes will be made, and that ICE's compliance
with the conditions reforms will be subject to external oversight.
In June, the ACLU filed a second lawsuit on
behalf of the detainees at SDCF. This lawsuit,
Woods v. Myers, No. 07-cv-1078 (S.D. Cal.),
charges CCA, ICE, and the Division ofImmigration
Health Services, a government agency, with failing
to provide adequate medical and mental health care
to SDCF detainees. The Woods plaintiffs suffer
from mental illness, chronic health conditions, and
serious injuries that have not been appropriately
treated while in ICE custody.

P age 2

Major newspaper articles have recently highlighted the grossly deficient medical care provided
to immigration detainees and have revealed previously unreleased figures on the number of detainees
to have died in ICE custody in recent years. The
editorial boards ofthe Miami Herald, New York
Times, and Washington Post have called on DHS to
promulgate binding regulations pertaining to conditions of confmement, and on Congress to investigate
poor medical care and in-custody deaths.
The NPP's lawsuits, along with our public
education and advocacy work on behalf of detained
immigrants, are shining a spotlight on a problem that
previously received scant public attention. Unlike
persons going through the criminal justice system,
immigration detainees have no right to a free attorney and the majority appear in court pro se. Many
detainees face language barriers, are held in remote
locations far from advocates and friends, and fear
retaliation in their immigration case for speaking up
about poor treatment. As a result, the problems
faced by this community are often more difficult to
uncover than those faced by other detained population. If you know of places where immigrant detainees are subjected to poor treatment, please contact
the National Prison Project's Immigration Detention
Initiative.

National Prison Project Journal

Pat McManus
He also became a close friend.
I fIrst met Pat in the mid-1970's, when he
was Assistant Commissioner of Corrections for the
State of Minnesota. From 1979 until 1983, he
served as the Director of the Kansas Department of
Corrections, appointed by the Governor. It was after that, when he became an independent criminal
justice consultant, that he began to assist lawyers at
the NPP in their litigation. He fIrst assisted us in a
statewide prison conditions case in Tennessee as an
expert witness at trial and then as the federal court's
Special Master working with us and state officials in
devising and implementing a remedial plan. He
later worked with us as an expert witness, monitor,
or master in cases in Alabama, Nevada, New Hampshire, Rhode Island, and Michigan.
I came to know Pat well when he served as
an expert in our case against the State of Hawaii
dealing with horrendous conditions at a large men's
prison and the state's only women's prison, both on
the island of Oahu. The case was settled on the eve
of trial. After that Pat served on a panel of experts
agreed to by the parties to assist in and oversee compliance with a consent judgment, and later as the
federal court's Independent Monitor. As I was lead
counsel in the case, Pat and I would make regular
trips to Hawaii to review and monitor the state's progress in making the required changes and improvements. This entire process continued from 1985 until
the court approved a fmal dismissal of the case in
September 1999. During the last 10 years of that
process, we made quarterly trips to Hawaii, all of
them lasting about a week. Although we spent the
entire day in one or the other prison, we had dinner
together almost every evening telling each other stories about our respective lives.
I learned from Pat that as a young man in
Minnesota he started out thinking of working in the
Catholic Church. He had graduated from the Saint
Paul Seminary of the University of Saint Thomas in
Minnesota and then went to Italy where he received
Volume 19, Issue 2

a graduate degree in Theology at the Gregorian University in Rome (with honors). He then returned to
Minnesota and thought more about teaching and obtained a Master's degree in Education Administration at the University of Saint Thomas. I was fascinated by his stories of studying in Rome and his
work in the Vatican. On fmishing school in Minnesota, he began working with young people, fIrst as a
juvenile court probation officer in Minneapolis, then
as Principal of a residential high school for delinquent or at-risk juveniles and then became Director
of a Community Corrections training Center in Minneapolis. From there he went to the Department of
Corrections where I fIrst met him.
During his years as a consultant, he also
worked for other lawyers, often as a consultant to
state and federal courts as well as the United States
Department of Justice, Civil Rights Division in matters involving jails in Georgia and Virginia. He
more recently served as a member of an international
advisory group to the International Centre for Prison
Studies, Kings College, London, England. He assisted in the development of "A Human Rights Approach to Prison Management-Handbook for Prison
Staff" Pat was also recently a member of an American Bar Association Task Force drafting standards
on The Legal Status of Prisoners.
I knew that Margaret Winter, Associate Director ofthe NPP had worked with Pat and she gave
me the fo llowing few sentences to include in this

Page 3

Pat McManus
memorial tribute: "I worked with Pat in a major trial
in 1994 to challenge Alabama's discrimination
against prisoners with HIV. It was an unforgettable
collaboration for me because of Pat's surpassing
brilliance, humanity, compassion, imagination, humor, and his tireless fierce drive to get the job done
right no matter how high the hurdles-he truly lived
the phrase 'Let justice roll down like waters and
righteousness like a mighty stream.'"
Pat was a wonderful friend and colleague and he will
be missed by many.
Photo courtesy Nancy McManus.

Know Your Rights: The Prison Litigation Reform Act (PLRA)
The Prison Litigation Reform Act (PLRA) makes
it harder for prisoners to file lawsuits in federal
court. This fact sheet outlines the information
you need to know before filing a lawsuit.
If you are thinking about filing a lawsuit, then
you should know about a 1996 law called the Prison
Litigation Reform Act (PLRA), which makes it
harder for prisoners to file lawsuits in federal
court. There are many parts to the PLRA, but the
following parts are the most important for you to
understand.

I. EXHAUSTION OF ADMINISTRATIVE
REMEDIES (42 U.S.c. § 1997e(a»
The fIrst key to remember about the PLRA is
that before you file a lawsuit, you must try to resolve
your complaint through the prison's grievance procedure. This usually requires that you give a written
description of your complaint (often called a
"grievance") to a prison official. Ifthe prison provides a second or third step (like letting you appeal
to the warden), then you must also take those
steps. If you file a lawsuit in federal court before
taking your complaints through every step of your
Page 4

prison's grievance procedure, it will almost certainly
be dismissed.
A. What is exhaustion?
Exhausting your remedies for the PLRA requires
filing a grievance and pursuing all available administrative appeals. ill In addition, every claim you
raise in your lawsuit must be exhausted.
ill However, if a prisoner does not file a grievance
because he is unable to obtain grievance forms, no
administrative remedy is "available" and the prisoner may file in
court. ill
In a multi-step grievance system, if staff fail to
respond within the time limits established in the
grievance system's rules, the prisoner must appeal to
the next stage.Hl Ifthe prisoner does not receive a
response at the fmal appeal level, and the time for
response has passed, the prisoner has exhausted.

ill
An exception to the requirement that all appeals
be taken occurs if the prisoner cannot appeal without
a decision from the lower level of the grievance system, and the lower level did not respond to the grievance.IQl

National Prison Project Journal

Know Your Rights: PLRA
Courts have differed widely on when failure to
exhaust might be excused. [7] But the safest course
is always: with respect to each claim you want to
raise, and each defendant you want to name, in your
eventual lawsuit, you should file a grievance and
appeal that grievance through all available levels of
appeal.
Ultimately, proper exhaustion depends upon
the policy requirements of your particular jailor
prison. W You should get a copy of your prison or
jail's grievance policy and follow it as closely as you
can.
B. What happens if you don't exhaust the grievance process?
The Supreme Court held that failure to exhaust is
an affIrmative defense that must be raised by the defendants.L2l Then, if the court fmds that the prisoner
has not exhausted, the case is dismissed without
prejudice,ilQl meaning that the lawsuit may be filed
again once the prisoner has exhausted, as long as the
statute oflimitations has not run. If you have exhausted some of your claims, but not all, the court
will dismiss only the unexhausted
claims. illl
Missing a deadline in the grievance system will
forfeit your right to file a lawsuit in almost all circumstances. If you are in this situation, you should
appeal through all the levels ofthe grievance system
and explain in the grievance the reasons for the failure to file on time. If the grievance system addresses your claim on the merits, courts will probably hold that you satisfied the exhaustion requirement.Lll1
Finally, the statute of limitations is tolled while a
prisoner is in the process of exhausting.I.lTI
C. There are very few exceptions to the exhaustion requirement.
Prisoners seeking to bring a damages action must
exhaust available administrative remedies even if the
administrative remedy in question, like almost all
prison grievance systems, does not provide money
damages as a possible remedy..L.Ml
Other means of notifying prison offIcials of your
complaint, such as speaking to staff, putting in a

Volume 19, Issue 2

kite, or writing to the warden, do not constitute exhaustion. You must use the grievance system.
Some courts have suggested that under PLRA,
courts may still issue injunctions to prevent irreparable injury pending exhaustion of administrative
remedies.U2l
The exhaustion requirement does not apply to detainees in INS facilities.OO Also, the exhaustion
requirement does not apply to cases filed before the
effective date ofPLRA, which is April 26, 1996.

illl
II. FILING FEES (28 U.S.c. § 1915(b».
The second key to remember about the PLRA is
that all prisoners must pay court filing fees in full. If
you do not have the money up front, you can pay the
filing fee over time through monthly installments
from your prison commissary account, but the filing
fee will not be waived.
A complex statutory formula requires the indigent
prisoner to pay an initial fee of20% of the greater of
the prisoner's average balance or the average deposits to the account for the preceding six
months. After the initial payment, the prisoner is to
pay monthly installments of 20% of the income
credited to the account in the previous month until
the fee has been paid.
A major complication of this procedure is that it
requires the prison or other facility holding the prisoner to cooperate administratively in the process for
assessing the court's statutory fee. The courts can
require the prison administration to provide the necessary information..LlBl
III. THREE STRIKES PROVISION (28 U.S.c. § 1915(g»
The third key thing to remember
about the PLRA is that each lawsuit
or appeal you file that is dismissed
because a judge decides that it is
frivolous, malicious, or does not
state a proper claim counts as a
"strike." After you get three
strikes, you cannot file another lawsuit in forma pau-

Page 5

Know Your Rights: PLRA
get three strikes, you cannot file another lawsuit in
forma pauperis- that is, you cannot file unless you
pay the entire court filing fee up-front. The only exception to this rule is if you are at risk 0 f suffering
serious physical injury in the immediate future.
An appeal of a dismissed action that is dismissed
is a separate strike.Ll.2J. Even dismissals that occurred prior to the effective date ofPLRA count as
strikes. [20]
An exception to the "three strikes" rule may be
invoked if a prisoner is in imminent danger of serious physical injurY.I2ll A court will evaluate the
"imminent danger" exception at the time the prisoner attempts to file the new lawsuit, not at the time
that the incident that gave rise to the lawsuit occurred. [22]

IV. PHYSICAL INJURY REQUIREMENT (42
U.S.c. § 1997e(e))
The fourth key to remember about the PLRA is
that you cannot file a lawsuit for mental or emotional injury unless you can also show physical inJury.
The requirement of physical injury only applies to
money damages, it does not
apply to claims for injunctive
and declaratory relief
I2Jl Some courts have suggested the possible availability of nominal and punitive
damages even when compensatory damages are barred by
the requirement of physical injury.[24] The courts
are split on whether a claim for violation of constitutional rights is intrinsically a claim for mental or
emotional injury in the absence of an allegation of a
resulting physical injury (or injury to property).
I.Ql Not surprisingly, the courts differ in their
evaluation of what constitutes sufficient harm to
qualify as a physical injury.[26]
Last updated 10/07.

Page 6

NOTES

ill White v. McGinnis,

131 F.3d 593 (6 th Cir.

1997).

ill See Jones v. Bock, 549 U.S. _ ,

127 S. Ct. 910,
925-26 (2007) (if exhausted claims and unexhausted
claims are filed in the same lawsuit, the court should
dismiss the unexhausted claims and allow the exhausted claims to proceed).
ill Miller v. Norris, 247 F.3d 736 (8 th Cir. 2001).
ill White v. McGinnis, 131 F.3d 593 (6th Cir. 1997).
ill Powe v. Ennis, 177 F.3d 393 (5 th Cir.
1999). Cf Lewis v. Washington, 300 F.3d 829 (7th
Cir. 2002) (when prison officials do not respond to a
prisoner's initial grievance, administrative remedies
are exhausted).
[Ql Taylor v. Barrett, 105 F. Supp. 2d 483 (B.D. Va.
2000); see also Miller v. Tanner, 196 F.3d 1190 (11 th
Cir. 1999) (prisoner had exhausted when told by
staffno appeal possible); Pearson v. Vaughn, 102 F.
Supp. 2d 282 (E.D. Pa. 2000) (same).
ill See,~, Miller v. Tanner, 196 F.3d 1190
(11 th Cir. 1999) (prisoner who failed to sign and date
grievance form did not fail to exhaust administrative
remedies; inmate did not fail to exhaust remedies by
failing to appeal institutional-level denial of his
grievance, after being told unequivocally that no
such appeal was possible); Nyhuis v. Reno, 204 F.3d
65 (3d Cir. 2000) (substantial compliance with
grievance procedure will satisfy exhaustion requirement); cf Camp v. Brennan, 219 F.3d 279 (3d Cir.
2000) (holding that investigation of complaint by
Secretary of Corrections rather than regular grievance system satisfied exhaustion requirement); but
see Freeman v. Francis, 196 F.3d 641 (6 th Cir. 1999)
(investigations by use 0 f force committee and state
police are not exhaustion).
ill Woodford v. Ngo, 548 U.S. 1015 (2006)
(exhaustion requires going through all the steps the
grievance system requires, and going through them
as the grievance system requires, so that the prison
addresses the grievance on the merits).
I2l Jones v. Bock, 549 U.S. _ (2007) (exhaustion
requirement under the PLRA is not a pleading re-

National Prison Project Journal

Know Your Rights: PLRA
quirement that a prisoner must plead and prove before filing suit, rather it is an affIrmative defense a
defendant must plead or prove).
ilQl Perez v. Wisconsin Dept. of Correction, 182
F.3d 532(7th Cir.1999);Wendell v. Asher, 162 F.3d
887 (5th Cir.1998); Wright v. Morris, III F.3d 414
(6th Cir. 1997).
[11] Jones v. Bock, 549 U.S. _ (2007) (rejecting
6 th Circuit's requirement under the PLRA that a prisoner properly exhaust every claim in a lawsuit or
face dismissal of the entire suit).
L12l Harper v. Jenkins, 179 F.3d 1311 (11 th Cir.
1999) (holding that prisoner who filed an untimely
grievance was obliged to seek a waiver of the time
limits in the grievance system); Gates v. Cook, 376
F.3d 323, 331 n.6 (5th Cir. 2004) (relying on defendants' failure to reject grievance for rules noncompliance); Pozo v. McCaughtry, 286 F.3d 1022
(7th Cir. 2002) (prisoner who missed deadline on one
of the levels of appeals of the grievance system
barred from filing lawsuit).
L1ll Johnson v. Rivera, 272 F.3d 519 (7th Cir.
2001); Brown v. Morgan, 209 F.3d 593 (6 th Cir.
2000); Harris v. Hegmann, 198 F.3d 153 (5 th Cir.
1999).
.Ll£ Booth v. Chumer, 532 U. S. 731 (2001).
il21 Marvin v. Goord, 255 F.3d 40 (2d Cir. 2001);
Jackson v. District of Columbia, 254 F.3d 262 (D.C.
Cir.2001).
.LlQl Edwards v. Johnson, 209 F.3d 772 (5 th Cir.
2000).
U1l See,~, Salahuddin v. Mead, 174 F.3d 271 (2d
Cir. 1999); Bishop v. Lewis, 155 F.3d 1094 (9 th Cir.
1998); Brown v. Toombs, 139 F.3d 1102 (6 th Cir.
1996).
I.lID Hall v. Stone, 170 F.3d 706 (7th Cir. 1999)
(hoIding warden in contempt for failure to forward
fees from the prisoner's account).
Il2l Jennings v. Natrona Co. Detention Center, 175
F.3d 775 (loth Cir. 1999); Patterson v. Jefferson Corrections Center, 136 F.3d 626 (5 th Cir. 1998).
[20] See~, Ibrahim v. District of Columbia, 208
F.3d 1032 (D.C. Cir. 2000); Welch v. Galie, 207
F.3d 130 (2d Cir. 2000).

Volume 19, Issue 2

l2ll See Gibbs v. Cross, 160 F.3d 962 (3d Cir.
1998) (plaintiff alleged an imminent danger of serious physical injury where dust, lint and shower odor
came from his cell vent, causing him to suffer
"severe headaches, changes in voice, mucus that is
full of dust and lint, and watery eyes."). See also
Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998)
(allegations that staff placed plaintiff in proximity to
known enemies satisfied imminent danger requirement).
112l Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d
Cir. 2001) (en banc).
I2..TI See Harper v. Showers, 174 F.3d 716 (5 th Cir.
1999); Perkins v. Kansas Dept. of Corrections, 165
F.3d 803 (loth Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998).
[24] See Allah v. AI-Hafeez, 226 F.3d 247 (3d Cir.
2000) (claims for nominal and punitive damages can
go forward); Searles v. Van Bebber, 251 F.3d 869
(lOth Cir. 2001) (PLRA does not bar punitive and
nominal damages for violation ofprisoner's
rights); Davis v. District of Columbia, 158 F.3d
1342 (D.C. Cir. 1998) (noting possibility that nominal damages would survive).
I2.2l See Rowe v. Shake, 196 F.3d 778 (7th Cir.
1999) (First Amendment claim not barred by physical injury requirement); Canell v. Lightner, 143 F.3d
1210 (9 th Cir. 1998) (claim for violation of First
Amendment is not a claim for mental or emotional
injury); cases going the other way include: Thompson v. Carter, 284 F.3d 411 (2d Cir.
2002); Searles v. Van Bebber, 251 F.3d 869 (loth
Cir. 2001); Allah v. AI-Hafeez, 226 F.3d 247 (3d
Cir. 2000) (First Amendment claims involve mental
or emotional injuries); Davis v. District ofColumbia, 158 F.3d 1342 (D.C. Cir. 1998) (claim for violation ofprivacy is claim for mental or emotional injuries).
[26] See Gomez v. Chandler, 163 F.3d 921 (5 th Cir.
1999) (allegations of cuts and abrasions satisfy
physical injury requirement); Liner v. Goord, 196
F.3d 132 (2d Cir. 1999) (intrusive body searches
qualify as physical injury); compare to Herman v.
Holiday, 238 F.3d 660 (5 th Cir. 2001) (claim of

Page 7

Know Your Rights: PLRA
"physical health problems" by prisoner exposed to
asbestos does not specify a physical injury which
would permit recovery for emotional or mental
damages due to fear caused by increased risk of developing asbestos-related disease); Harper v. Showers, 174 F.3d 716 (5 th Cir. 1999) (confmement in
filthy cell where exposed to mentally ill patients not
physical injury); Sigler v. Hightower, 112 F.3d 191
(5 th Cir. 1997) (bruised ear does not qualify as
physical injury).

Recent PLRA Decisions
Exhaustion of Administrative Remedies
Whitington v. Ortiz, 472 F.3d 804 (loth Cir.
2007). The 10th Circuit rejected a district court's
application ofthe PLRA's exhaustion rule where
the lower court dismissed a prisoner's suit because
he filed his complaint before receiving a response
on a third step grievance and because he allegedly
included a new claim in his complaint that was not
included in his grievances. Due to this latter alleged defect, the lower court applied the 10th Circuit's "total exhaustion" rule to dismiss the entire
case. Id. at 807 (note: this case was decided before
the Supreme Court's ruling in Jones v. Bock rejected total exhaustion). In reversing the lower
court, the 10th Circuit noted that the Department of
Correction's grievance process required a written

response within 45 days of receipt and that the
Plaintiffhad in fact waited 196 days for a response
before filing his complaint with the district court.
Id. The court held that a prisoner is not required
"to wait indefmitely" for prison officials to respond
to a grievance before seeking judicial review.
Therefore, when prison officials fail to timely respond to a grievance, the prisoner has exhausted
"available" remedies under the PLRA. Id. at 80708.
Kikumura v. Osagie, 461 F.3d 1269 (lOth Cir.
2006). The Tenth Circuit joins the Seventh Circuit
in holding that the determination of what an administrative grievance must contain is tied to the specific
requirements of the relevant grievance process. Id.
at 1282. In this instance, because the regulations
governing the BOP's ARP do not specify what information is needed, the court fashions a default rule
based on the approach adopted by the Second and
Seventh Circuits: "a grievance will satisfy the exhaustion requirement so long as it is not 'so vague as
to preclude prison officials from taking appropriate
measures to resolve the complaint internally. '" Id. at
1283 (quoting Brownell v. Krom, 446 F.3d 305,310
(2d Cir. 2006)). The court rejects for many reasons
defendants' proposed rule that prisoners be required
to name alleged wrongdoers; the BOP's ARP gives
prisoners no notice of this specificity requirement,
and the Supreme Court has long disfavored the creation of procedural technicalities in statutory schemes
designed to be used by unrepresented laymen. See
Kikumura at 1283-85.
Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006).
Plaintiff claims that his case manager denied him
grievance forms, threatened him, and solicited other
prisoners to attack him in retaliation for filing grievances. Plaintiff was ultimately beaten by other prisoners and transferred to another facility to receive
proper medical care. The Seventh Circuit reverses

Page 8

.
National
Prison Project Journal

Recent PLRA Decisions
the district court's grant of summary judgment to
defendants, seemingly adopting the Second Circuit's
Hemphill analysis of "availability" of remedies. See
id. at 686. (The court never explicitly states that it is
adopting the Hemphill inquiry of whether "a similarly situated individual of ordinary firmness would
have deemed the grievance procedures to be available," see Hemphill v. New York, 380 F.3d 680, 688
(2d Cir. 2004), but ultimately considers what an
"ordinary prisoner in [plaintiffs] shoes" would have
done under the circumstances, see Kaba, at 686).
Brownell v. Krom, 446 F.3d 305 (2d Cir. 2006).
Plaintiff lost property during transfer and made various efforts to exhaust his administrative remedies.
The court of appeals concludes that "special circumstances" justify the plaintiffs noncompliance with
the PLRA's exhaustion requirements because:
(l) prison officials erroneously refused to
investigate the circumstances of
Brownell's lost-property claim and frustrated administrative appellate review of
this error and (2) after Brownell subsequently conducted his own investigation
into the circumstances surrounding
his lost property, he reasonably believed
that he could not raise the new facts discovered in administrative proceedings.
Id. at 313.
Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006).
The plaintiff attempted to file a grievance with the
Administrative Review Board (ARB), as required by
Illinois regulations. Because he was unable to mail
the grievance himself, he placed the grievance in an
envelope addressed to the ARB and left it in the
"chuckhole" of his cell for pick up by a guard; the
defendants agreed that a guard picked up the envelope. When the plaintiff later sent a follow-up letter
to the ARB inquiring about this grievance, he was
informed that the ARB had no record of receiving
the grievance; he was given no instructions on how

Volume 19, Issue 2

vance will be considered if a prisoner shows good
cause, the plaintiff did not re-file his grievance. The
district court granted summary judgment to the defendants based on the plaintiff's alleged failure to
exhaust.
The 7th Circuit reverses, holding that the
plaintiff strictly complied with the regulations, and
prison officials were responsible for mishandling his
grievance. Id. at 811. The court explains that the
prison cannot use its mistake to shield it from possible liability, "relying upon the likelihood that a prisoner will not know what to do when a timely appeal
is never received." Id. The court does not penalize
the plaintiff for not re-filing his grievance and asking the ARB to exercise its discretion to consider an
untimely grievance, because the plaintiff had already
given the ARB a chance to consider his grievance,
and the fault for not considering it lay entirely with
prison officials. Moreover, had the plaintiff filed a
late grievance and been rejected, he would be barred
from future relief because the court would have
found the claim to be indefmitely unexhausted. Id.
at 810.
Three Strikes
Andrews v. Cervantes, 493 F.3d 1047 (9th Cir.
2007). Plaintiff had filed several dozen lawsuits and
was barred from obtaining IFP status pursuant to 28
U.S.c. § 19l5(g). However, some of the counts in
the case at bar alleged that he was in imminent danger of contracting a contagious disease as a result of
the defendants' failure to screen incoming prisoners
upon reception. Plaintiff had previously contracted
Hepatitis C. As an initial matter, the court of appeals held that if some of plaintiff's claims qualified
under the "imminent danger" exception to the threestrikes rule, then he would be entitled to IFP status
with respect to the action as a whole. Id. at *5.
Similarly, the court held that "imminent danger of

Page 9

Recent PLRA Decisions
serious physical injury" should be evaluated with
respect to conditions as they existed at the time the
complaint was filed. Id. at *4. However, the court
qualified this ruling by requiring plaintiffs to alleged
an "ongoing danger." As the court explained, " ... a
prisoner who alleges that prison officials continue
with a practice that has injured him or others similarly situated in the past will satisfy the 'ongoing
danger' standard and meet the imminence prong of
the three-strikes exception." Id. at *8. Applying this
standard, plaintiff adequately alleged imminent danger for the purposes of section 19l5(g). Id.
Butler v. DOJ, 492 F.3d 440 (D.C. Cir. 2007). The
D.C. Circuit held that a dismissal for failure to
prosecute did not constitute a strike. Id. at 443-44.
However, the court exercised its discretion to deny
IFP status to a plaintiff who had filed several appeals
that had been dismissed for failure to prosecute and
who had engaged in a "pastime" of repetitive filings.
Id. at 447.
Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007).
The D.C. Circuit considered five distinct questions
regarding the defmition of a strike pursuant to 28
U.S.C. § 19l5(g). The court concluded the following: (1) Prisoners seeking IFP status are not required
to produce evidence regarding the reasons for prior
dismissals. The initial burden falls upon the defendant. Once such evidence is produced, the burden
shifts to the prisoner to demonstrate why the dismissals should not be treated as strikes. Id. at 43536. (2) Appellate affrrmances of strikes do not count
as additional strikes. Id. at 436. (3) Dismissals for
lack ofjurisdiction do not count as strikes. Id. at
437. (4) Unexhausted complaints dismissed on a
12(b)(6) motion or dismissed sua sponte expressly
for failure to state a claim will count as strikes.
However, dismissals on other grounds, including
under Rule l2(b)( 1) or on summary judgment, will

Page 10

not count as strikes. Id. at 438-39. (5) Not all actions dismissed pursuant to 28 U.S.c. § 19l5A are
strikes. Id. at 439.
Owens v. Isaac, 487 F.3d 561 (8 th Cir. 2007). Plaintiff appealed denial of in forma pauperis status under
the three-strikes rule. The court of appeals held that
the summary appellate affrrmance of a district
court's dismissal did not count as a strike. Id. at
563. Further, the court of appeals criticized the district court's dismissal of one of the underlying actions as frivolous pursuant to 28 U.S.c. § 19l5A.
The court noted that plaintiff had filed multiple motions to amend and, when read together, the original
complaint and amendments stated claims against
some ofthe defendants. Id. at 563-64.
Campbell v. Davenport Police Dept., 471 F.3d 952
(8 th Cir. 2006). A pro se prisoner filed his Section
1983 complaint after filing three other such complaints the month before. The district court dismissed the complaint on the basis that the dismissals
of the three previous complaints constituted three
"strikes" under the PLRA, 28 U.S.c. § 19l5(g). The
prisoner appealed and requested in forma pauperis
status (IFP). Citing 10th and 5th circuit precedent, the
court noted that the three dismissals could not be
counted as strikes when the lower court cited them
because the plaintiff had not yet exhausted or waived
his appeals in those cases when he filed the instant
case. The decision was remanded to the lower court
to conduct initial review of the complaint under the
PLRA and IFP status was granted. Id. at 953.
Ibrahim v. District of Columbia, 463 F.3d 3 (D.C.
Cir. 2006). The D.C. Circuit grants plaintiff leave to
appeal in forma pauperis despite having three prior
strikes, because his pro se complaint, construed liberally, meets the Section 1915(g) requirement that

National Prison Project Journal

Recent PLRA Decisions
plaintiff is ''under imminent danger of serious physical injury." Id. at 6-7. The court fIrst holds that
"failure to provide adequate treatment for Hepatitis
C, a chronic and potentially fatal disease, constitutes
'imminent danger'" for purposes of the three strikes
rule. Id. The D.C. Circuit then holds that plaintiff is
in danger of "a serious physical injury," because
Hepatitis C is "a chronic disease that could result in
serious harm or even death." Id.
Green v. Young, 454 F.3d 405 (4th Cir. 2006). The
Fourth Circuit holds that a "routine" dismissal for
failure to exhaust administrative remedies does not
constitute a "strike" for purposes of28 U.S.C. §
1915(g). This statutory interpretation decision follows from Anderson v. XYZ Correctional Health
Servs., Inc., 407 F.3d 674 (4th Cir. 2005) (holding

that Congress did not authorize sua sponte dismissal
of claims on exhaustion grounds). This decision creates a circuit court split. See Green v. Young, 454
F.3d at 409 n.2 (citing Steele v. Federal Bureau of
Prisons, 355 F.3d 1204, 1210, 1213 (lOth Cir. 2003)
(concluding that a PLRA action that does not allege
exhaustion does not state a claim and concluding
without additional explanation that dismissal for
failure to exhaust counts as a strike) and Rivera v.
Allin, 144F.3d 719,731 (llthCir. 1998)("A claim
that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim
upon which relief may be granted.").

Case Law Report: Highlights of the Most Important Prison Cases
By John Boston
Director, Prisoners' Rights Project ofthe NY Legal Aid Society

u.S. Court of Appeals Cases
Medical Care/Standards of Liability/Deliberate
Indifference/Appointment of Counsel/Financial
Resources
Johnson v. Doughty, 433 F.3d 1001 (7th Cir.
2006). The plaintiff had a hernia and several doctors
found that it did not require surgery notwithstanding
his complaints of pain and interference with ordinary
activity.
The district court did not abuse its discretion
in declining to appoint counsel. A district court
"will be held to have abused its discretion under §
1915(e)(l) (not to appoint counsel) only if the denial
of counsel made 'it impossible for [the plaintiff] to
obtain any sort ofjustice.' ..." This case does not
meet that standard. It was not overly diffIcult. The
Volume 19, Issue 2

plaintiff filed an acceptable complaint, a successful
opposition to a motion to dismiss, and other litigation papers including a motion in limine. The plaintiff could have presented evidence concerning his
pain and restricted activities and elicited from the
defendants evidence of the alleged policy against
hernia operations and accepted professional standards for treating hernias and hernia pain.
The district court correctly found the defendants had not been deliberately indifferent. A grievance counselor with no medical background who
was aware of the plaintiffs complaints of pain did
not disregard his complaints but investigated, made
sure the medical staff was monitoring and addressing the problem, and reasonably deferred to the professionals' opinions. (l0 10) The same was true of
the warden, who made sure that medical care was
available to professionals could determine whether
he needs surgery. (1011)

Page II

Case Law Report: Highlights of the Most Important Prison Cases
The same was true of higher officials who reviewed
the grievance and of other non-medical professionals. Differences of medical judgment do not raise an
Eighth Amendment claim. However, "a medical
professional's erroneous treatment decision can lead
to deliberate indifference liability if the decision was
made in the absence of professional judgment."
(1013) "The cost of treatment alternatives is a factor
in determining what constitutes adequate, minimumlevel medical care, but medical personnel cannot
simply resort to an easier course of treatment that
they know is ineffective...." Here, the plaintiffs
hernia was not strangulated (which is a medical
emergency mandating surgery), so it was up to the
doctors to determine if surgery was necessary and
the treating doctor determined it was not. There was
no evidence of a cost-saving policy against operating
on hernias regardless of pain. This is a case ofmedical judgment." (The dissenting judge points out that
the plaintiff could not stand up straight for long
without pain, and that laughing, coughing, and
bowel movements also caused pain; plaintiff needed
an expert and needed discovery and didn't get it.)

Medical Care/Standards of Liability/Deliberate
Indifference, Serious Medical Needs/Pre-Trial
Detainees
Plemmons v. Roberts, 439 F.3d 818 (8 th Cir.
2006). The plaintiff alleged that he told the booking
officer he was a heart patient and about six hours
later began experiencing classic heart attack symptoms-arm and chest pain, profuse sweating, and nausea. The court holds that he has established a material issue whether he had a serious medical need.
The plaintiff s allegations that the jailers
were told of his cardiac history, did not respond to
notice via the call box of his symptoms, then dismissed them as an anxiety attack; delayed in returning to check on him for 15 to 25 minutes; then left
him in the booking room for another 10 to 15 min-

Page 12

utes before summoning an ambulance were sufficient to raise a deliberate indifference claim. The
defendants are not entitled to qualified immunity.

Medical CarelDenial of Ordered Care
Medical Care/Standards of LiabilitylDeliberate
Indifference/Personal Involvement and Supervisory Liability
lett v. Penner, 439 F.3d 1091 (9 th Cir. 2006).
The plaintiff broke his thumb and the defendants
never did manage to set it and cast it, although the
doctor who initially treated it said he should see an
orthopedist within a few days. The plaintiffs thumb
is deformed as a result.
A doctor could be held deliberately indifferent who did nothing for almost three weeks after the
plaintiff sent him a letter of complaint; the doctor's
claim that he only found out later represented only a
factual dispute, since there is a presumption that
mail sent is timely received. There is also an issue
of fact as to subsequent deliberate indifference, since
the doctor allegedly told him everything was taken
care of and he was supposed to go back to the hospital, but he was never taken. (The fact that the hospital under discussion was not one they had a contract
with was no excuse for not sending him to a hospital
they did have a contract with.) Deliberate indifference is also supported by the fact that the plaintiff
continued to submit requests for care and that the
doctor fmally made an orthopedic referral two and a
halfmonths later, acknowledging that he did need to
see an orthopedist. At 1098: "The fact fmder could
infer deliberate indifference from Dr. Penner's act of
striking out the word 'obvious,' resulting in a statement of 'no malalignment' in his notes, after reviewing a radiology report which specifically indicates a
deformity.... In our view, this is not a case involving differing medical opinions regarding treatment
methods, ... because Dr. Penner recognized, as did
all other physicians who saw Mr. lett, Mr. lett

National Prison Project Journal

..

Case Law Report: Highlights of the Most Important Prison Cases
needed to see an orthopedist. ..."
The warden and another doctor are not entitled to summary judgment. At 1098: "As prison administrators, [they] are liable for deliberate indifference when they knowingly fail to respond to an inmate's requests for help." The plaintiff is entitled to
an inference at the summary judgment stage that
they got the letters he swore he sent them.

Medical Care/Standards of LiabilitylDeliberate
Indifference/Municipalities
Long v. County of Los Angeles, 442 F.3d
1178 (9 th Cir. 2006). The decedent, 71 years old and
weighing over 350 pounds with a history of congestive heart failure, died 18 days after being jailed
without being seen by a
doctor until a few hours
before his death. His attorney had written a letter
to the county jail medical
director before he began
serving his sentence detailing his medical needs
for close supervision of
medication and exercise.
The committing judge ordered that he receive a
medical examination and that the court be advised of
the results, attaching letters from his doctor. The
decedent was transferred to a jail hospital ward and
then to the Medical Services Bureau, "a correctional
treatment facility designated to provide health care
to prisoners who do not require acute care services
but are in need of professionally supervised health
care" (1182), where he waited 38 hours in a wheelchair without his medications. He was subsequently
observed by nurses with serious edema, labored respiration and a high pulse over the ensuing days, with
no apparent physician response to his observed and
documented worsening symptoms of heart failure.
The district court erred in dismissing the
claim against the municipality. At 1185-86:
"To impose liability against a county for its failure

Volume 19, Issue 2

to act, a plaintiff must show: (1) that a county employee violated the plaintiffs constitutional rights;
(2) that the county has customs or policies that
amount to deliberate indifference; and (3) that these
customs or policies were the moving force behind
the employee's violation of constitutional rights."
Here it is undisputed that there is a triable issue
whether employees violated the decedent's rights.
There is also a triable issue as to the municipality's
failure to train. The court rejects the defendants'
argument that if they hire and rely on trained professional doctors and nurses, they can't be held deliberately indifferent.
At 1188: "A county's failure adequately to train its
employees to implement a facially valid policy can
amount to deliberate indifference." The county
knew of the decedent's condition and that the unit
was not equipped to care for acutely ill patients. The
fact that the decedent was seen 50 times by nurses
did not eliminate the triable issue.
The plaintiff also challenged the lack of adequate policies. At 1189: "This court consistently has
found that a county's lack of affirmative policies or
procedures to guide employees can amount to deliberate indifference, even when the county has other
general policies in place."

Medical Care/Standards of Liability/
Deliberate Indifference
Gordon v. Frank, 454 F.3d 858 (8 th Cir.
2006). The decedent was sentenced to 10 days in
jail for driving without a license. He was released to
a hospital to treat heart problems and was not returned to jail. A year later he went to a hospital
complaining ofpain, left without receiving treatment, but called the police for a ride home. They
arrested him on the outstanding warrant and took
him to jail. In jail, he asked for help climbing the
stairs and did not receive it; asked for a blood pressure test and complained of other medical problems
and was told the information would be relayed;
asked for medication and was told he had already
been seen; and asked again for medication, saying he

Page 13

Case Law Report: Highlights of the Most Important Prison Cases
could not breathe and was in extreme pain. On the
last occasion, he was told he had been seen, there
were no orders for medication, he could see medical
staff in the morning, and he would be put in lockdown if he continued to buzz for "non-emergency
issues." In the morning he was dead. The court rejected the defendants' qualified immunity defenses
and upheld denial of their motion for summary judgment.
At 862: "Intentional delay in providing medical treatment shows deliberate disregard if a reasonable person would know that the inmate requires
medical attention or the actions of the officers are so
dangerous that a knowledge ofthe risk may be presumed." The officer who refused to help him up the
stairs and saw him struggling, whom he told that he
could not breathe and was in pain and who knew that
these symptoms indicated high risk but delayed
medical treatment and threatened to discipline him,
knew he was at substantial risk. Another officer
who refused him help climbing the stairs and
watched him ascend, received one of his requests for
medication, and knew about his other complaints but
did nothing but promise to pass the information on,
did also. A sergeant who knew he had "medical issues that required extra observation" and was told of
his complaints of breathing troubles and chest pain
but did nothing also knew he was at substantial risk.
At 863: "... [A] reasonable officer would
consider chest pain and difficulty breathing to be
symptoms that require medical attention in anyone
who claims to have heart disease. The intentional
delay by these officers shows deliberate disregard
sufficient to reject qualified immunity." Id.: "A reasonable officer would know that it is unlawful for
officers to delay medical treatment for an inmate
with obvious signs of mental distress, especially one
who communicates this distress directly to officers."
The defendants said their mistake was reasonable because they thought if the decedent could
yell over the intercom he could not be having trouble breathing. The court, however, found this mistake to be unreasonable because the defendants did
not act upon the available information that the dece-

Page I 4

dent was experiencing shortness of breath and chest
pain even though they were responsible for responding to medical emergencies and knew the decedent
was on high observation. (863-64)

Cruel and Unusual Punishment/Proof of Harm/
Grievances and Complaints about Prison
Boxer X v. Harris, 437 F.3d 1107 (11 th Cir.
2006). The plaintiff alleged that he was forced to
masturbate for the entertainment of an officer. This
states a constitutional privacy claim. At 1111 : "We
have reaffirmed the privacy rights of prisoners emphasizing the harm of compelled nudity.... Nonetheless, we 'continue to approach the scope of the
privacy right on a case-by-case basis. '" To violate
the Eighth Amendment, the prisoner must suffer objectively sufficiently serious injury. "We join other
circuits recognizing that severe or repetitive sexual
abuse of a prisoner by a prison official can violate
the Eighth Amendment." However, the resulting
injury must be more than de minimis. "We conclude that a female prison guard's solicitation ofa
male prisoner's manual masturbation, even under the
threat of reprisal, does
not present more than
de minimis injury."
This doesn't necessarily require dismissal of
the privacy claim under
the PLRA, since the
mental/emotional injury provision does not
affect the availability of
declaratory relief.
Disabled-Medical Care/Medication/Use of Force/
Restraints/Denial of Ordered Care
Kiman v. New Hampshire Dep't ofCorrections, 451 F.3d 274 (1 st Cir. 2006). The plaintiff, a
former prisoner, developed ALS in prison, though it
was not diagnosed until shortly before his release.
He sued under the ADA but not, apparently, under
the Eighth Amendment. This opinion addresses how
and to what extent medical deprivations can be ad-

National Prison Project Journal

Case Law Report: Highlights of the Most Important Prison Cases
dressed under the ADA, and the analysis turns out to
look like a less stringent version of the Eighth
Amendment analysis. At 284: "Medical care is one
of the 'services, programs, or activities' covered by
the ADA. ... However, courts have differentiated
ADA claims based on negligent medical care from
those based on discriminatory medical care."
Under this analysis, summary judgment for
the defendants was granted with regard to their actions concerning the plaintiffs diagnosis, medical
consultations, physical therapy, or medical dosages
because their actions were not "so unreasonable as to
demonstrate that they were discriminating against
him because of his disability." (285) The medical
staff sought his medical records, arranged an outside
specialist consultation, and made reasoned judgments about how to treat his condition.
Moreover, summary judgment was appropriate for plaintiffs claim regarding the denial ofa
cane when he was readmitted to prison on a parole
violation and later when he was placed in SHU.
During the intake quarantine period, he was capable
of walking without a cane and did not have to walk
much anyway, being locked in his cell most of the
time, and the defendants were legitimately in the
process of verifying his need for the cane. In SHU,
defendants say they would
have helped him get to the
shower if he had asked, but
with his cane he was not allowed to go to the prison yard
for outdoor recreation. Upon
learning of this, his doctor issued him a pass to have recreation in the day room. The defendants' security concern that
he could have used a cane as a
weapon justified their denial.
(285) Also, the denial of plaintiffs, request for an
"early chow" or "slow movement" pass (so slowmoving people can bypass the meal lines) did not
violate the ADA, since he was in a unit for prisoners
awaiting review of disciplinary infractions who were
allowed "cell

Volume 19, Issue 2

feed" rather than "slow movement."
Summary judgment as to the other claims,
however, was denied. The plaintiff complained that
his prescriptions were not dispensed on a timely and
regular basis and the only response he got was that it
was his responsibility to get them renewed, even
though they had not expired. At 286-87: "Access to
prescription medications is part of a prison's medical
services and [287] thus is one of the 'services, programs, or activities' covered by the ADA." Defendants' failure to dispense prescriptions as written "is
not a medical 'judgment' subject to differing opinion-it is an outright denial of medical services." (287)
Evidence that a shower chair was issued by
prison officials in acknowledgment of the plaintiffs
disability-related needs, but that correction officers
would sit on it and refuse to let him use it, was also
sufficient to withstand summary judgment. (288)
Finally, the plaintiffs' testimony that prison
staff refused to honor his "front cuff pass" (issued
because of the pain rear-cuffmg inflicted on him)
was sufficient to withstand summary judgment because the pain caused by the lack of front cuffing
affected his access to a variety of the 'services, programs, or activities' covered by Title II of the ADA.
(288-89) And plaintiffs testimony that he requested
to be placed on a bottom tier and a bottom bunk, and
that defendants acknowledged his needs for accommodation by issuing a bottom bunk pass and cane
pass, but nonetheless placed him in a top bunk was
sufficient to withstand summary judgment as to the
provision of reasonable accommodations. (290)
because of the pain rear-cuffing inflicted on him)
was sufficient to withstand summary judgment because the pain caused by the lack of front cuffing
affected his access to a variety of the 'services, programs, or activities' covered by Title II of the ADA.
(288-89) And plaintiffs testimony that he requested
to be placed on a bottom tier and a bottom bunk, and
that defendants acknowledged his needs for accommodation by issuing a bottom bunk pass and cane
pass, but nonetheless placed him in a top bunk was
sufficient to withstand summary judgment as to the

Page 15

Case Law Report: Highlights of the Most Important Prison Cases
retaliation for his grievances. The court holds (at
686): "Retaliation against a prisoner is actionable
only if it is capable of deterring a person of ordinary
fIrmness from further exercising his constitutional
rights." This standard is aimed at weeding out only
"inconsequential" actions and is equivalent to a de
minimis standard. Under this standard the plaintiff's
job change is de minimis because he was only made
to work in the kitchen for a week and in the unpleasant "pot room" for a day. But transfer to a more
dangerous prison is a much more serious retaliatory
act than what has been considered de minimis in
other circuits. And it is clear that transfer to a more
dangerous prison in retaliation for the exercise of
constitutional rights has the potential to deter an inmate from the future exercise of those rights.

Federal Officials and Prisons/Color of Law and
Liability of Private Entities/Medical Care
Holly v. Scott, 434 F.3d 287 (4th Cir. 2006).
At 288: Individual employees of a privately operated
prison cannot be held liable under the Eighth
Amendment for allegedly providing inadequate
medical care to a federal inmate. The court declined
to extend the cause of action recognized in Bivens v.
Six Unknown Named Agents to these circumstances,
both because the actions of the private prison employees are not fairly attributable to the federal government and because the inmate has adequate remedies under state law for his alleged injuries.
Government Benefits
Daimler Chrysler Corporation v. Cox, 447
F.3d 967 (6 th Cir. 2006). State court orders were issued under the Michigan State Correctional Facility
Reimbursement Act requiring state prison wardens
to notify pension plans to send payments to prisoners' institutional accounts, where they would be garnished to reimburse the state for the prisoner's care
in an amount up to 90% ofthe prisoner's assets. The
Court fmds these notices to be preempted by ERISA's anti-alienation provision, which requires every
pension plan to prohibit assigning or alienating its
benefits. Once benefit payments have been dis-

Page 16

bursed, creditors may encumber the proceeds, but
the Michigan notices operated on the payments before they were sent. The court does not reach the
question whether ERISA's general preemption provision also prevents the enforcement of the orders.

Law Libraries and Law Books/Pleading Access to
Courts/Punishment and Retaliation
Marshall v. Knight, 445 F.3d 965 (7th Cir.
2006). The plaintiff alleged that restrictions on his
law library time denied him access to courts.
Notice pleading in an access to courts case
requires specific allegations as to the prejudice resulting from defendants' actions. The plaintiff sufficiently stated a claim. He alleged that defendants reduced
his law library access to a "nonexistent" level, and the resulting inability to research and
prepare for a court hearing
caused him to lose time credits
that would have shortened his
incarceration. The right of access to courts is not
limited to filing of complaints but includes cases
where the prisoner's denial of access caused a potentially meritorious claim to fail.
The plaintiff should have been allowed to file
an amended complaint, since he requested to do so
before the defendants had served an answer. His
failure to attach a copy of the proposed amended
complaint violated the local rules but the relevant
rule said that was not a reason to deny the request.
The plaintiff's allegations that almost immediately after he filed his complaint he was placed on
"idle" status with no pay, other inmates were authorized to charge him fees for library access, and he
was denied educational and vocational opportunities,
denied a transfer to minimum security, and placed
with violent cellmates "certainly amount to a chronology from which retaliation may be inferred." (971)

National Prison Project Journal

Case Law Report: Highlights of the Most Important Prison Cases
Mental Health CarelDeference/Heating and Ventilation/Lighting
Scarver v. Litscher, 434 F.3d 972 (7th Cir.
2006). The plaintiff, held in the Wisconsin supermax prison, is schizophrenic and delusional and has
murdered three people, two of them in prison. He
spent five relatively well-adjusted years in federal
prison and then was returned to the supermax, where
he was subjected to extreme heat that interacted dangerously with his psychotropic medications and to
constant illumination, and provided no audiotapes or
any other source of sound to drown out the voices in
his head. There were no windows, no air conditioning, and the prisoners were not allowed to have any
possessions except one religious text, one box of legal documents, and 25 personal letters. The plaintiff
attempted suicide twice, banged his head against the
cell wall for protracted periods, cut his head with a
razor, cut his wrists, etc. At 975: "It is a fair inference that conditions at Superrnax aggravated the
symptoms ofScarver's mental illness and by doing
so inflicted severe physical and especially mental
suffering." Defendants soon realized that the plaintiff was in severe distress, but there is no evidence
that they attributed his distress to the heat, constant
illumination, or the other conditions. They gave him
psychiatric attention and medication and kept him
under surveillance and thwarted his suicide attempts.
At 976: "What is more, the treatment of a mentally
ill prisoner who happens also to have murdered two
other inmates is much more complicated than the
treatment of a harmless lunatic. . .. Measures reasonably taken to protect inmates and staff from him
may unavoidably aggravate his psychosis; in such a
situation, the measures would not violate the Constitution."

Mental Health Care/Personal Involvement and
Supervisory Liability/Heating and Ventilation
Food
Clark-Murphy v. Foreback, 439 F.3d 280 (6 th
Cir. 2006). The decedent collapsed during a "heat
alert" and was crying and talking nonsensically. He
was taken to one of two observation cells near a con-

Volume 19, Issue 2

trol center, which have a small window and food
slots in the door. Upon his placement there, the decedent started barking like a dog and screaming at
the top of his lungs. A psychiatric referral was written. They took him back to his regular cell, but one
defendant noted that his duffel bag was packed, from
which he inferred that the decedent had planned to
leave his cell and was a "manipulator." So they took
him back to the observation cell. Over the next several days, the water was turned off in his cell, and
though his behavior became progressively more bizarre, no mental health or other staff entered his cell.
After five days in the observation cell, he was found
dead, naked on the floor, in full rigor mortis, with
eyes open and vomit encrusted on his mouth. The
water was off and his toilet was dry. The viewing
window was smeared with filth, obstructing visibility. An autopsy showed death by dehydration.
Defendants who helped the decedent when
he initially collapsed could not be found deliberately
indifferent; they conveyed information about his
condition and had no reason to expect it would not
be acted upon. As to other defendants, the court dismisses a couple who worked only one shift during
the relevant time period, but holds a number of others (Deputy Warden, lieutenants, sergeants, officers,
and a nurse and a psychologist) are not entitled to
summary judgment (at 289-90). At 292: "At the
time of this incident, it should come as no surprise
that Clark had a clearly established right not to be
deprived of food and water. ... The same holds true
for Clark's right to psychological treatment." The
court rejects defendants' argument that plaintiff
can't show proximate cause between their actions
and the decedent's death. Plaintiff "need only demonstrate a link between each defendant's misconduct
and Clark's injury, which may include his death as
well as the 'pain and suffering' ... that preceded his
death." (293)

Municipalities Medical Care/Standards of
LiabilitylDeliberate IndifferencelMedication/
Drug Dependency Treatment
Davis v. Carter, 452 F.3d 686

(7th

Cir. 2006).

Page 17

Case Law Report: Highlights of the Most Important Prison Cases
The decedent, on methadone maintenance, spent six
days in jail during which he received no methadone
despite having notified jail personnel of his need for
it on admission. He then died of a cerebral aneurysm. There was no claim that the death was related
to the methadone denial.
The plaintiff produced sufficient evidence to
defeat summary judgment by demonstrating that
Cook County has a widespread practice or custom of
inordinate delay in providing methadone treatment.
A pharmacist testified that there are essentially no
policies and procedures to ensure that methadone
maintenance status is timely verified, or that once
verification is obtained, security personnel are notified and the prisoner brought to the pharmacy in a
reasonable time. There are essentially no checks and
balances to ensure that patients undergoing withdrawal do not fall through the cracks for days, especially if admitted on a weekend. (692-93) Other
personnel confirmed a widespread practice of at
least three days' delay in confirming the regimen,
even though only a phone call is required. One employee's statement "Cook County don't work that
fast" is evidence that the delays are customary. A
PA testified that she often prescribed other medications for several days to limit withdrawal symptoms
pending receipt of methadone.
The court also found that an officer who allegedly failed to contact the paramedics or the emergency room immediately when he learned that the
decedent was "dope sick," observed that he was suffering, "and heard that 'it felt like somebody was
ripping [his] insides out, '" could be found deliberately indifferent. Further, a sergeant who was allegedly notified ofthe decedent's condition, but did not
file an unusual incident report or take any action to
get medical treatment for him, and apparently did
not speak to the decedent contrary to his alleged policy of speaking directly with prisoners who reported
ill, could be found deliberately indifferent. Finally,
a social worker who allegedly did not contact the
paramedics on the decedent's behalf could be found
deliberately indifferent. But the officer who said
"Cook County don't work that fast" was not deliber-

ately indifferent, since he then transferred the call to
the person responsible for the decedent's medical
care.

RLUIPA and RFRA
Grace United Methodist Church v. City of
Cheyenne, 451 F.3d 643 (loth Cir. 2006). Religious
activity need not be "fundamental" to be
"substantially burdened" within the meaning of
RLUIP A. Whatever "substantial burden" meant before RLUIPA, the statute "substantially modified
and relaxed the definition of religious exercise" to
include all religious exercise "whether or not compelled by, or central to, a system of religious belief." (662) So this circuit's pre-RLUIPA case law
suggesting a "fundamental" requirement in religion
cases is wrong as applied under RLUIP A.

Psychotropic MedicationlMedical Carel
Standards of LiabilitylDeliberate Indifference/
Summary Judgment/Evidentiary Questions
Spann v. Roper, 453 F.3d 1007 (8 th
Cir. 2006) (per curiam). A nurse
assistant mistakenly required the plaintiff to take
someone else's psychotropic medication. He passed
out and hit his head. The court found that the
nurse's action did not constitute deliberate indifference because it was undisputedly "a mistake."
However, a jury could find the nurse to be deliberately indifferent to the plaintiff s serious medical needs
when she left him in his cell for
three hours even though she
knew he had just taken a large
dose of mental health medications prescribed for another inmate. The court noted that not
only could a jury fmd that the nurse was aware of
the plaintiffs serious medical condition and ignored
it, but that even a lay person would know that taking
a large dose of mental health medications prescribed
for someone else is potentially dangerous. (100809) Moreover, the court held that a jury could fmd
that the three-hour delay allowed the medication to

,

Page I8

National Prison Project Journal

Case Law Report: Highlights of the Most Important Prison Cases
fully enter the plaintiffs system, whereas immediate
medical attention would have enabled medical staff
to pump his stomach or take other action to remove
the medication from his system before it was totally
absorbed. (1009)

Statutes of Limitations Recreation and Exercise Procedural Due Process/
Administrative Segregation, Disciplinary
Proceedings Equal Protection/
Classification Good Time/ReligionServices Within Institution/
Grievances and Complaints about
Prison Law Libraries and Law Books
Fogle v. Pierson, 435 F.3d 1252 (1oth Cir.
2006). The plaintiff alleged that he was improperly
placed in administrative segregation for three years,
and filed suit 22 months after he was released. The
Colorado limitations period is two years. Anything
that happened more than two years previously is
time-barred unless the plaintiff is entitled to the
benefit of equitable tolling, which the state recognizes. The plaintiff s allegation that he was kept in
23-hour lock-in five days a week and 24-hour lockin for the other two, with no access to law library
clerks or prison lawyers, might meet the
"extraordinary circumstances" test for equitable tolling. The district court should not have dismissed the
complaint as time-barred. (1258-59)
There is an arguable basis for asserting that
three years in administrative segregation with only
five hours a week out of cell is atypical and significant under Sandin. (1259) At n. 3: Allegations of
daily cell searches, 24-hour electric lighting, and no
privacy should be considered in determining the
atypical and significant question.
An allegation of three years with no outdoor exercise at all presented an arguable Eighth
Amendment claim; this court has previously noted
"substantial agreement" that regular outdoor exercise is important to psychological and physical wellbeing and that some courts hold denial of "fresh air
and exercise" to be cruel and unusual under some
circumstances. (1260)

Volume 19, Issue 2

The plaintiff had no equal protection claim,
since defendants have discretion to consider whatever they think relevant in classifying inmates, including minor differences, so it is not arguable that
there is no relevant difference between him and
other prisoners treated differently.
Placement in administrative segregation for
an escape for which the plaintiff was criminally punished did not constitute double jeopardy because
prison disciplinary sanctions are not essentially
criminal in nature and do not implicate double jeopardy protections.
Loss of the ability to earn time credits by
virtue of placement in segregation did not raise a
constitutional claim, since the credits are awarded
discretionarilyand the plaintiff therefore has no liberty interest in receiving them.
The plaintiffs allegation that he was punished for complaining about his placement in administrative segregation by being transferred to longterm administrative segregation arguably stated a
First Amendment retaliation claim. (1263-64)
The plaintiffs allegation that he was denied all opportunity for "Christian fellowship" while
in administrative segregation arguably stated a
claim. (1264)
The plaintiffs allegation that he was completely denied access to the law library and its accompanying resources and that this denial prevented
him from filing the claims in this case, some of
which are not frivolous, was not "indisputably
meritless." (1264-65)

State Officials and Agencies
Thomas v. St. Louis Bd. of Police Commissioners, 447 F.3d 1082 (8 th Cir. 2006). The city
Board of Police Commissioners is not entitled to
Eleventh Amendment immunity because it is an arm
of local, not state, government. A state supreme
court decision calls that conclusion into question,
but the U.S. Supreme Court has ruled it was not a
state agency and only the Supreme Court can overrule that holding.

Page 19

Case Law Report: Highlights of the Most Important Prison Cases
Voting, Standing Procedural, Jurisdictional and
Litigation Questions
Muntaqim v. Coombe, 449 F.3d 371 (2d
Cir.2006). The plaintiff's challenge to New York's
felon disenfranchisement statute is dismissed for
lack of standing because the plaintiff, who has been
incarcerated in New York for 30 years, is not really
aNew York resident. A prisoner retains the domicile he had before entering the institution. Because
the plaintiff lived in California before incarceration
he was never eligible to and never did vote in New
York. Moreover, this plaintiff had disavowed any
intention to remain in New York in the future. Accordingly, he is not being deprived of the right to
vote in New York by the felon disenfranchisement
statute but by his residency-based lack of eligibility.

Use of ForceNerbal Abuse/Hygiene/
Municipalities
Johnson v. Blaukat, 453 F.3d 1108 (8 th Cir.
2006). The plaintiff alleged that she, her sisters, and
another prisoner were put into lockdown after complaints that they had been bullying other inmates,
and were put into the same cell. One of them
banged a shampoo bottle on the desk and threw toilet paper at the wall. When officers decided to enter
the cell, the plaintiff stepped in front of them and
told them not to touch her sister because she and the
other prisoner could calm the sister down. An officer tackled her to the floor and tried to cuff her, with
difficulty since one hand was under her and officers
were piling on top of her. One of them placed an
Orcutt Police Nunchaku around her neck and choked
her until it broke; her head was slammed on the
floor, her hair was pulled, she was maced, and she
emerged with bruising and lacerations on her arms, a
broken thumb, and two black eyes.
Summary judgment should not have been
granted for the defendants, since the plaintiffs allegations raised questions whether their acts were defensive in nature; whether they were necessary to
maintain order or were excessive reactions by frustrated officers; whether the amount of force used
was commensurate with the situation; whether the

Page 20

plaintiff failed to comply with orders; whether she
was actively resisting; whether verbal orders or less
force would have been sufficient; whether there was
a warning before application of pepper spray. (1113)
Summary judgment was properly granted
to supervisory officers who allegedly used a racial
epithet and removed the plaintiff's personal hygiene
items. These allegations do not support an Eighth
Amendment claim, and there was no evidence that
they were deliberately indifferent to or tacitly authorized excessive force.

Use of Force/Chemical Agents/Criminal ProceedingslRights of Particular Groups/Medical CareStandards of Liability-Deliberate Indifference
U.S. v. Gonzales, 436 F.3d 560 (5 th Cir.
2006). The defendant deportation officers were convicted of deprivation of civil rights after they "took
down" a suspect, breaking his neck, and did not
summon medical assistance despite the fact that he
said he was paralyzed, dragged him into a van, and
across a parking lot, and maced him although he was
handcuffed as well as paralyzed, then drove him to
another jail lying on the van floor for three hours.
At 621-22: The plaintiffs allegation that
he was strapped into a wheelchair for several hours,
forced to urinate on himself, and left sitting in his
urine for several hours while in a manic state, and
that the jail knew of his mental condition, stated an
Eighth Amendment claim. The lack of physical injury does not negate the constitutional claim. At
623: The gratuitous infliction of pain is not limited
to physical pain, but includes psychological pain.
Intentionally denying an inmate the use of a bathroom for hours and requiring him to sit in his own
urine could constitute the requisite psychological
pain to support this claim.
At 623-24 (access to courts): "Policies or
acts that prevent either convicted prisoners or pretrial detainees from going to court and that limit
their access to attorneys are not allowed." The court
links this proposition to the actual injury requirement of Lewis v. Casey; apparently it is satisfied by
the allegation that the plaintiff has been prevented

National Prison Project Journal

Case Law Report: Highlights of the Most Important Prison Cases
from preparing defenses to charges against him.
The plaintiffs claim of denial of confidential consultation with an attorney in some instances and denial of any consultation in others states a court access claim.
At 625 (equal protection): The plaintiffs
allegation that he was discriminated against based
on mental illness by being confmed in a wheelchair
stated an equal protection claim.

Use of Force/Personal Involvement and Supervisory Liability
Valdes v. Crosby, 450 F.3d 1231 (11 th Cir.
2006), cert. dismissed, 127 S.Ct. 2028 (2007). The
estate of an inmate in the capital unit who died of
traumatic injuries from head to ankle sued the warden and others at the facility where guards claimed
the inmate died because he repeatedly threw himself
onto a concrete floor.
The central question at issue was the warden's supervisory liability. The court found insufficient evidence that the warden personally participated in the beating or that anyone was following
the warden's specific direction in doing so. But
there was sufficient evidence to support a finding
that the warden was placed on notice of a history of
widespread abuse so a causal connection between
his actions or inaction and the decedent's death was
established. Therefore supervisory liability was established in this case. (1237)
The evidence establishing supervisory liability included the fact that: the warden had been
warned by his predecessor about certain guards who
he believed to be abusive towards inmates; one of
the guards involved in this incident was one ofthose
same guards; his predecessor had moved this guard
away from the capital unit and wanted to terminate
him, but the defendant warden merely reprimanded
the guard and then promoted him and reassigned
him back to the capital unit; the warden was instrumental in bringing another defendant in this suit to
the prison despite his prior use of force history and
his having been investigated for teaching CO trainees "improper practices" (like how to kick inmates

Volume 19, Issue 2

without leaving bootprints); the warden transferred
out the assistant warden who had been brought in to
help fight excessive force; the warden ended the
practice of videotaping cell extractions; the warden
had a more "hands-off' approach than prior wardens
and the culture changed markedly; the warden did
not read use of force complaints and reports but
delegated this task to his secretary, who had no law
enforcement background; the complaints the warden
did not read included numerous allegations of excessive force; the warden received a specific warning
that the inmate who died was at risk of assault by
staff; two days before the inmate was killed, there
was another complaint from the capital unit that officers had repeatedly beaten a prisoner. (1243-44)
The evidence taken together is sufficient
for a jury to fmd that the warden established customs and policies that resulted in deliberate indifference to constitutional violations that he then failed
to take reasonable measures to correct. Moreover,
the warden is not entitled to qualified immunity because at the time of this incident (1999) it was well
established that a warden charged with directing the
governance, discipline, and policy of the prison and
enforcing its orders, rules, and regulations, would
bear such liability. (1244)

Chemical Agents
Norton v. City of Marietta, 432
F.3d 1145 (1oth Cir. 2005) (per curiam).
Several police officers entered the plaintiffs cell,
restrained him, handcuffed him to a backboard, and sprayed him
with pepper spray. The
plaintiff said that he
had been kicking his
cell door and was not
combative when they
entered his cell; they said they had to spray him to
subdue him. The district court should not have
granted summary judgment to defendants because
there were two factual disputes. At 1154: Whether
defendants' use of the spray was objectively harmful

Page 21

Case Law Report: Highlights of the Most Important Prison Cases
enough to violate plaintiffs Eighth Amendment
rights, which depended in part on how long plaintiff
was sprayed and whether he was adequately irrigated afterwards or left to suffer unnecessarily. Defendants' state of mind was also in dispute.

Procedural Due ProcesslDisciplinary Proceedings
Morgan v. Dretke, 433 F.3d 455 (5 th Cir.
2005). The petitioner challenged a disciplinary conviction for assaulting an officer causing non-serious
injury. The court notes that it is the protected liberty
interest in good time that implicates due process
here (the segregation sentence was only 15 days),
and state law determines whether good time credits
constitute a liberty interest. They don't decide here
whether Texas law creates a liberty interest since
defendants waived the issue by not raising it. (457
n.2)
The conviction denies due process because
it fails to meet the "some evidence" standard. The
issue is not the amount or quality of evidence, but
that "the evidence in the record does not fit the
charge." (458) There is evidence that the petitioner
assaulted an officer, but no evidence of injury, and
injury was part of the charge.

u.s. District Court Cases
Protection from Inmate Assault-Procedural
Due Process-Cruel and Unusual Punishment
David v. Hill, 401 F.Supp.2d 749
(S.D.Tex.2005). The plaintiff alleged that as a result of his refusal to become an informant defendants retaliated against him by filing false disciplinary charges, rifling through his mail, taking his
property, and holding him in so litary confinement.
The court rejects defendants' argument that there is
no constitutional right to avoid being pressured to
participate in a prison investigation. At 756:
"Courts have long recognized that being labeled a
'snitch' in the prison environment can indeed pose a
threat to an inmate's health and safety in violation of
the Eighth Amendment. . .. Because being labeled
a snitch could place an inmate's life in danger, it fol-

Page 22

lows that he would have a protected liberty interest
in not being labeled one. Indeed, the Fifth Circuit
has stated that, when officials are aware of a danger
to an inmate's health and safety, such as when an
inmate participates in an official prison investigation, it violates the constitutional prohibition against
cruel and unusual punishment to fail to afford that
inmate reasonable protection." The court "assumes
without deciding that plaintiff has a constitutional
right to not participate in a prison investigation" and
therefore has satisfied the first prong of the retaliation analysis. He establishes a chronology supporting his retaliation claim for some defendants but not
others.

Searches-Person-Prisoners/Sexual Abuse
Grievances and Complaints about Prison
Searches/Living Quarters
Rodriguez v. McClenning, 399 F.Supp.2d
228 (S.D.N.Y. 2005). The plaintiff alleged he was
pat searched by the defendant officer in a sexually
suggestive manner. The officer said it was more fun
that way. After plaintiff filed a grievance about it,
he was subjected to a cell search that turned up contraband and charges were brought against him but
eventually all charges were either dismissed or expunged.
The allegations about the pat search support an Eighth Amendment claim. At 237-38:
"Contemporary standards of decency have evolved
to condemn the sexual assault of prison inmates by
prison employees." In 1998, there were fifteen
states that did not prohibit sexual contact between
prison employees and inmates; now, only four states
fail to outlaw such behavior. This demonstrates "a
national consensus that any sexual assault of a prisoner by a prison employee constitutes cruel and unusual punishment."
Qualified immunity, at 238-39: The officer was not entitled to qualified immunity because
the sexual assault of a prison inmate is outside the
scope of a corrections officer's official duties. If
proved that the officer did make the alleged comments "don't even think about screaming because no

National Prison Project Journal

Case Law Report: Highlights of the Most Important Prison Cases
one is going to help" and "we do what we want because we always win," this would indicate that the
officer was not performing the pat-frisk in a manner
he reasonably believed to be lawful.
Retaliation, at 239-40: The First and Fourteenth Amendments prohibit retaliation for filing
grievances. The plaintiff can pursue a retaliation
claim for the alleged retaliatory planting of evidence
and retaliatory misbehavior report. The plaintiff
meets both requirements of a retaliation claim, in
that he engaged in constitutionally protected conduct
(filing a grievance) and provided circumstantial evidence of retaliatory motive, i.e., the short time between grievance and alleged retaliation, plus prior
good behavior on his part (he was in the honor
block) and success in the disciplinary proceeding.

Contact Information
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. 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 $35 per
year ($2 for prisoners), prepaid by check, cash,
stamps (prisoners only), or money order.
NPP Director: Elizabeth Alexander
Editor: Jody Kent
Asst. Editor: Jackie Walker
LayoutlDesign: Alicia Gathers, Jennifer
Goss, Mike Tartaglia
Subscriptions Manager: Johnice Galloway

Volume 19, Issue 2

For more information:
National Prison Project of the ACLU
Publications
915 15th St., NW
7th Floor
Washington, DC 20005
Phone: (202) 393-4930
Fax: (202) 393-4931
Email: subscriptions@npp-aclu.org

(NO COLLECT CALLS PLEASE)

Page 23

National Prison Project JOURNAL

ACLU National Prison Project
915 15th St. NW, 7th Floor
Washington, DC 20005
~210

Fall 2007

Non-Profit
U.S. Postage
PAID
Permit No. 5248
Washington, DC