-87-

1.

Absent

class

certification,

there

is

a

great

likelihood that the individuals' claims will be mooted before
judgement.

(See JVI.A. above.)

This danger is increased in jail

cases both by the temporariness of the plaintiffs' status and by
the relative complexity of the. cases, both as to liability and as
to remedy.

It takes longer to take a jail conditions case to

judgement than it does a challenge to a welfare regulation.

By

contrast, cases finding class certification unnecessary generally
involve the legality J!!.!...!!2!!. of a statute, regulation, or clearly
defined

administrative

policy.179/

Moreover,

the

danger

of

mootness persists even after a judgement on the merits, since in

•

a challenge to -a series of conditions in the jail ••• obedience of
[the) court's order with respect to future detainees would not be
as

automatic

statute.- 180 /
judgement

or

as

simpl.

as

the

non-enforcement

of

a

Jail litigation is notoriously productive of poet-

controversies

(see

IX.

below),

and

absent

class

certification there may be no party entitled to enforce or defend
any relief that is ordered~

179/ Mitchell v. Johnston, 701 P.2d 337,345 (5th Cir. 1983):
Hurley v. Ward, 584 F.2d 609, 611-612 (2d Cir. 1978): Ruiz v.
Blum, note 177 above.
180/ Lucas v. Wasser, 73 P.R.D. 361, 363 (S.D. N.Y. 1976).
181/ Lasky v. Quinlan, 558 F.2d 1133, 1137 (2d Cir. 1977).

-88-

2.
is

based

TO the extent that the -lack of necessity· argument
on

a

presumption of

presumption is misplaced

in

official

regularity,182/

that

jail and prison litigation.

The

cases are legion in which correctional officials have been found
not

to

have

complied

with

prior

court decisions..!W

This

general argument should be supported by any readily available and
incontrovertible proof that the particular defendants opposing
certification are

in plain violation of applicable case law,

statutes, or regulations.
3.

The scope of available relief may be drastically

reduced by the denial of class certification, either because a
record restricted to the named plaintffs' claims does not support
broad relief 184 / or because relief that

is~facto

class-wide

182/ Numerous -lack of necessity- decisions are also based on an
affirmative representation by the defendants that they will
extend the benefits of an adverse decision to all members of
the putative class. See Mitchell v. Johnston, note 179
above, at 345: McCoy v. Ithaca Housing Authority, 559 F.Supp.
1351, 1354 (N.D. N.Y. 1983) and eases cited.
183/ See, e.g., Inmates of suffolk county Jail v. Kearney, 573
F.2d 98 (1st Cir. 1978): Inmates of Allegheny Co. Jail v.
Wecht, 565 F.Supp. 1278 (W.O. Pa. 1983): Mobile County Jail
Imates v. Purvis, 551 F.Supp. 92 (S.D. Ala. 1982): Miller v.
Carson, 550 F.Supp. 543 (M.D. Fla. 1982): 524 F.Supp. 1174
(1981), and 515 F.Supp. 1375 (1981): Benjamin v. Malcolm, 528
F.Supp. 924 (S.D. N.Y. 1981) and 495 F.Supp. 1357 (1980):
Jones v. wittenbers, 509 F.Supp. 653 (N.D. Ohio 1980): Powell
v. Ward, 487 F.Supp. 917 (S.D. N.Y. 1980): Jordan v. Arnold,
472 F.Supp. 265 (M.D. Pa. 1979): . Palmiqiano v. Garrahy, 448
F.Supp. 659 (D. R.I. 1978): Hamilton v. Love, 358 F.Supp. 338
(E.D. Ark. 1973): . McGoff v. Rapone, 78 F.R.D. 8 (E.D. Pa.
1978) •
184/ See, e.g., Hurley v. ward, 549 F.Supp. 174 (S.D. N.Y. 1982).

-89-

may violate due process if imposed without the notice procedures
required in class actions~
4.

The absence of notice

to the class

ability

to prepare

(see 5VI.E.

below)

may prejudice counsel's

a

factual

case.

The fact of incarceration is a substantial barrier to the

search for witnesses and information; the distribution of class
notice informs potential witnesses of the lawsuit's pendency and
counsel's identity so they may come forward.

In a case where the

credibility of witnesses and the pervasiveness of conditions are
at

issue,

counsel's

access

to a wide range of testimony

is

essential.l!!/
D.

If certification Is Denied.

In some

jail cases p

district judges have denied or have

failed to decide .,tions for class certification.

Since class

certification Jll()tions are not appealable until final judgement
even if they amount to the -death knell- of the litigation,187/
unless you can persuade a court to certify the question for

185/ Simer v. Rios, 661 F.2d 655 (7th Cir. 1981), cert. ~., 102

s.Ct. 1173 (1982).

186/ Cf. Mitchell v. Johnston, ~ote 179 above, at 345 (where
notice was an essential part of relief, class certification
necessary) •

a,

187/ Coopers & Lybrand v. Livesa
437 0.5. 463 (1978) • . See also
Gardner v. Westlnghouse Broa casting Co., 437 U.S. 478, 491
(1979) (denial of class certification which -lim~ts the scope
of the relief that may ultimately be granted- 1S not · appealable under 29 U.S.C. 51292(a) (1) as an order refusing
an injunction).

-90-

appeal,188/

creative

clients' interests.

lawyering

is

required

to

protect

your

Our suggestions are as follows.

In every case, if the court cites any factual deficiency in
your motion as a ground for denial, cure the defect if possible
and

renew the JIIOtion.

The rules explicitly contemplate that

class certification decisions -may be altered or amended before
the decision on the merits- 189 / -if, upon fuller development of
the facts, the original determination appears unsound.-190/
If this tactic is not available or does not work, counsel has
two broad strategic options:

try to deal with the problem at the

trial court level or try to get before an appellate court as
quickly as possible.

This choice is constrained by the nature of

the named plaintiffs' claims.
If the named plaintiffs' claills lire quickly mooted, counsel
clln inform the court of tbis filet or enter into a stipulation of
IIOOtness with defense counsel.

This will permit an appeal of the

class certification decision~

If counsel deems it preferable

to remain in the district court in this situation, it will be
necessary to conduct a -relay race- of motions to intervene new

188/ 28 U.S.C. Sl292 (b) • See Coopers
187 above, at 475, n.27.

&

Lybrand v. Livesay,. note

189/ Rule 23(c) (1), F.R.C.P.
190/ Rule 23(c) (1), F.R.C.P., Supplementary Note of Advisory
Committee regarding this rule.
191/ United States Parole Commission v. Geraghty, 445 U.S. 388,
404 (1980).

-91-

While

plaintiffs 192/

there

is

no

theoretical

barrier

to

proceeding this way, in practice it is likely to be complicated,
expensive and time-consuming.
If mootness is not an immediate problem, because of the named
plaintiffs' prospects of longer confinement or because there are
damage claiJls still pending,. the option in the district court is
to

attempt

to

litigate

the

case

as

if

the

class

had

been

certified and to renew the class motion repeatedly based on any
resulting problems such as defendants'

refusal

to comply with

broad discovery demands or counsel's lack of sufficient inmate

•

contact because of the failure to post notice of the lawsuit.
The

object

of

this

procedur~

is

to

demonstrate

that

class

certification is, indeed, ·necessary· if counsel is to pursue
relief sought in the complaint.
file

a

motion

aspect of

for

a

th~

To get to an appellate cOllrt,

preliminary injunction on some severable

the case that can be quickly prepared,

and

if the

injllnction is denied, yOIl may appeal the denial as of right 193/
and may also request the court of appeals to consider the class
certification

question

under

its

discretionary

pendent

jurisdiction. 194 /
Which of these strategies to adopt should depend in large
measure on exactly what the problem is in the district court.

192/ See Cruz v. Hauck, 627 F.2d 710·, 718-19 (5th Cir. 1980).
193/ 28 U.S.C. Sl292 (a) (1) •
194/ Marcera v. Chin1und, 595 F.2d 1231, 1236 n.8 (2d Cir. 1979):
Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538
F.2d 164, 166 n.2 (7th Cir. 1976).

-92-

There

are

a

few

judges who

are

implacably hostile

actions or to their use by prisoners.

to class

If you are before one of

these judges, further education or cajole:y in the district court
is probably a waste of time.

Moreover, you are more likely to

convince an apellate court to find an abuse of discretion!!2/ if
the tr ia1 judge is someone with a well-known bias.

You should

therefore research the d istr ict judge's pr ior record of class
certification decisions and the court of appeals' treatment of
that judge's decisions before deciding on a strategy.
E.

Notice.

Notice to the class of the pendency of a class action is
required
provision

only

in

most

actions

certified

frequently

used

for

under
class

~~le

23(bj (3),

damage

the

claims~

However, the district court has discretion to order notice and to
prescribe

the

actions 197/

form

and

manner

of

the

notice

in

all

class

COunsel should without fail request that notice be

given to the class.

The best time and place to make this request

is in the motion for class certification.

195/ Class certification decisions are generally reviewed under
the -abuse of discretion- standard. Califano v. Yamasaki,
442 U.S. 682, 703 (1979).
196/ Rule 23(c)(2), F.R.C.P.
197/ Rule 23(d) (2), F.R.C.P.~ Payne.v. Travenol Laboratories.
Inc., 673 F.2d 798, 812 (5th cir. 1982) ~ E.E.O.C. v. General
Telephone Co. of Northwest, 599 F.2d 322, 333 (9th Cir.
1979)., aff'd, 446 u.s. 318 (1980). See 7A Wright' Miller,
Federal Practice , Procedure 51786 (1972).

-93-

Notice to the class serves the basic principle of fairness
that

people

interests.

should

know

about

things

that may

affect

their

More important to counsel, notice is an essential

tool for effective litigation.

Notice ensures that every member

of the class has the opportunity to receive accurate information
about the lawsuit and about the means of contacting plaintiffs'
attorneys.

The contacts with

the

inmate population that an

adequate notice procedure will generate should provide a broad
enough base of information so that counsel will learn of the full
range of legal claims that should be pressed on behalf of the
class, have access to a sufficient amount of eyewitness evidence
to prove those claimer and be able to form an accurate impression
of

life

inside

the

jail 80 as

witnesses who come forward.

to

judge the credibility of

Moreover, notice -- a procedure

which the court directs the defendants to perform or permit -shows the inmate

~pulation

at an early stage in the lawsuit that

the jail staff is not all-powerful even inside. the jail.

This is

an important message to be conveyed to the staff as well as to
the inmates.
Notice can take various forms.

In a closed institution, a

basic form of notice which should be sought in all cases is
posting in common areas such as day rooms, bathrooms, mess halls,
etc. ,

where

all inmates will have an opportuni ty to see

it.

Notices should remain posted through the pendency of the lawsuit,
and continued posting should be verified by asking clients if the
notices are still up and by looking for them on tours or visits
to the jail.

Counsel may also request that each inmate be given

a copy of the notice individually at the beginning of the case,
and even that each inmate entering the facility be given a notice

-94-

upon arrival.

In a jail, it is practical for such mass notice to

be given out by institutional staff, saving the enormous postage
costs

that

accrue

from

personal

notice

in

other

kinds

of

l i tigation.
An

effective notice should be simply written so

with little education can understand it.

~hat

inmates

It should contain the

name of the case, the name of the court and the judge before whom
the case is pending, a simple statement of who the class members
are and what the complaint alleges, an explanation of the relief
sought and of the r igbt to intervene personally in the action,
and

the

names

and

addresses of counsel.

If

plaintiffs are

seeking only declaratory and injunctive relief, the notice should
make it clear that damages are not being sought, so as to avoid
the possibility of barring class members' damage claims through
the operation of res judicata 198/

198/ Res. judicata and collateral estoppel questions arising from
class actions are too esoteric for extended discussion
here. Bowever, several well-reasoned opinions suggest that,
at a minimum, if the class notice says that particular claims
or issues will not be litigated, the class action judgement
will not preclude them. Crowder v. Lash, 687 F.2d 996, 1008
(7th Cir. 198~)J Bogardv. Cook, 586 F.2d 399,408-09 (5th
Cir. 1918). See also Jones-Bey v. Caso, 535 F.2d 1360 (2d
CiI. 1976). But see Jackson v. Hayakawa, 605 F.2d 1121 (9th
CiI. 1919)J International Prisoners' union v. Rizzo, 356
F.Supp. 806 (E.D. Pa. 1913). On the other hand, it is
possible that a class action victory may collaterally estop
the defendants in a subsequent action by an individual class
member. Bogard v. cook, 586 F.2d at 409J Williams v.
Bennett, 689 F.2d 1370, 1381-82 (11th CiI. 1982) cert. den.
sub nom~ Bennett V. Williams, 104 S.Ct. 335 (1983). Seegene~ly Bodensteiner, "Application of Preclusion Principles
to Section 1983 Damage Actions after a Successful Class
Action for Equitable Relief,· 16 Clearinghouse Review 977
(March 1983).

-95-

The

court

has

appropriate orders,

discretion
including

conduct of litigation.
that the

under
further

Counsel might,

jail post notice

Rule

23 (d)

to

notice orders,
fo~

issue

for

the

example, seek an order

that counsel will be present at a

designated time to interview class members who so request.
Counsel !!lay also wish to provide notice directly to class
members of important events in the litigation without applying to
the court.

Ideally, counsel should be able to deliver copies of

a notice to the jail for distribution.

If defendants are not

cooperative, counsel may have to resort to the mail.

A current

list of jail inmates should be obtainable through discovery for
addressing purposes.

Courts have been firm in protecting this

type of communication. 199 /
F.

Settlement or Dismissal.

Rule 23 (e) provides, -A class action shall not be dismissed
or compromised without the approval of the court, and notice of
the

proposed

dismissal

or

compromise

shall

be given

to

members of the class in such manner as the court directs.-

all
This

requirement, an incident of the court's obligation to protect the
interests of absent class members, may apply to lawsuits

199/ For a discussion of the appropriateness of such
communications and the narrow limits within which a court can
restrict them, see Gulf Oil v. Bernard, 452 U.S. 89,
(1981). See also Williams v. United States District Court,
658 F.2d 430 (6th Cir. 1981): Coles v. Marsh, 560 F.2d 186
(3d eire 1977): Peoples v. wainwright, 325 F.Supp. 402 (M.D.
Fla. 1971)

-96-

containing class allegations even if the class has not actually
been

certified

when

the

named

parties

attempt

to

end

the

I i tigation. 200/

The proponents of a settlement are required to persuade the
court that a settlement is fair,
In

making

this

determination,

reasonable, and adequate. 201/
the

court

must

consider

such

factors as the strength of the plaintiffs' case weighed against
the proffered relief: the possibility of collusion in reaching a
settlement:

the

reaction

competent counsel:

and

of

the

class

members:

stage of

the

opinion

of

the proceedings and

the

amount of discovery completed.lW

However, the approval of a

settlement

trial

should

not

become

the
settlement is intended to avoid. 203 /

on

the

merits

that

Notice of settlement can be given in the same way as notice
of the pendency of an action.

However, it is preferable, if the

200/ Simer v. Rios, 661 F.2d 655, 664-65 (7th Cir. 1981): 3B
Moore's Federal Practice, 23.50 (1982).
201/ Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th
Cir. 1983)': Malchman v. Davis, '706 F.2d 426, 433 (2d Cir.
1983): Costello v. waInwright, 489 F.Supp. 1100, 1101 (M.D.
Fla. 1980).
~~~~~~"-~~~~~~~ 703 F.2d 170, 172 (5th Cir.
1

actice ,23.80 (4] (1982).

203/ Walsh v. Great Atlantic & Pacific Tea Co., Inc., 96 F.R.D.
632, 642 (D. N.J. 1983).

-97-

court can be persuaded, to permit counsel to meet personally with
groups

of

interested

inmates ~

explanation will go further

Often,

counsel's personal

than a written legal document in

persuading class members that a proffered settlement is as good
as or better than the likely result of a trial on the merits.
Moreover,

in

our

experience,

someth ing

unexpected

in

these

counsel

will

meetings,

often

invariably

hear

something

that

requires changes in the settlement or other action.
While it may seem strange to talk about further modifications
after a settlement has been reached, the period between initial
agreement and court approval may be a fruitful period for more
negotiations. at least as to issues which are not completely new
to the discussions and which would not impose major new problems
or costs on the defendants.

This is especially true if the

support of the court can be enlisted.
increasing willingness

to

scrutinize

Judges are displaying an
individual provisions of

settlements and to demand changes rather than simply to approve
,.. /
or disapprove the settlement as a whole ,v~a
At this stage of

.

the

litigation,

with

so

much

committed

to

the

agreement,

defendants are likely to be flexible in order to preserve what
has been accomplished.

204/ See Costello v. Wainwright, 489 F.Supp. 1100, 1101 (M.D.
Fla. 1980): see also watson v. Ray, 90 F.R.D. 143 (S.D. Iowa
1981) (judge met with inmate group).
204a/ See, e.g., Reid v. State of New York, 570 F.Supp. 1003
(S.D. N.Y. 1983): Morales v. Turman, 569 F.Supp. 332 (E.D.
Tex. 1983): Williams v. Vukovich, 720 F.2d 909,921 (6th
Cir. 1983) (nlf the court determines that the decree is
problematic, it should form the parties of its precise
concerns and give them an opportunity to reach a reasonable
accommodation.-).

-98-

SECTION VII.

Discovery
because

in

of

practices.

jail

some
In

cases

often

jails'

addition,

DISCOVERY

presents

special

unsophisticated

many

problems

administrative

local government attorneys

are

unfamiliar with complex federal civil rights litigation and with
jail operations1 they may also lack the time and support staff to
prepare

proper

and

timely

answers

to

comprehensive

discovery

demands.
For these reasons, the lawyerly impulse to begin discovery by
filing interrogatories and requests for documents and to follow

•

up by

taking depositions

productive.
for

long

about

the

responses lillY be counter-

Large-scale discovery request!! may go unanswared

periods

or

be

answered

incompletely

or

erroneously

because of the ineptitude, ignorance or recalcitrance of counsel
or other persons

involved in preparing the answers.

claims of privilege may be
federal

practice

raised

or' unwilling

Baseless

by lawyers unfamiliar with

to

do

the

work

involved

in

answering large-scale discovery demands.

While plaintiffs will

usually

in

win

motions

to

compel

discovery

these

situations,

discovery disputes may take months to resolve, during which time
the case will remain bogged down and counsel's credibility and
contacts with the jail population will be eroded.
It

is

without

waiting

discovery.
knowledge

probably

better

for

to

answers

begin
to

depositions
written

and

immediately,
documentary

The early depositions should be of persons with broad
and

authority

within

the

jail.

This

tactic

may

preclude asking the deponents about documents produced later in

-99-

the case.

Bowever, this may be a small loss if the jail is one

where written procedures and record-keeping have not caught on
yet.

Also,

proceeding

immediately with depositions

has

the

advantage of providing some useful information at the outset,
establishing

the

lawsuit's

presence

more

firmly

in

tbe

defendants' minds, and opening valuable face-to-face contact with
jail authorities.

It also permits counsel to ask about the

existence of written policies and procedures and about recordkeeping

practices,

wbich

documentary discovery more

should

make

focused

subsequent

and effective.

written

and

Technical

objections and claims of privilege are less likely to be asserted
in the give-and-take of an oral deposition: there, the path of
least

resistance for a

lazy adversary

is to let the witness

answer rather than to object~
A productive middle course is to serve a subpoena duces tecum
in connection with the notice of deposition~

In some cases,

this may result in documents being assembled by the deponent or
under the deponent's supervision and not by a less knowledgeable
secretary or clerk.

Documents are more likely to be produced

205/ In federal court, deposition costs may be reduced by using
tape recorders rather than stenographers. Rule 30(b) (4),
P.R.C.P. In our experience, these savings may be consumed by
the necessity to correct the many errors that inevitably
appear in a transcript made from a tape. If it is clear that
you will need a written transcript, it is preferable to use a
stenographer in the first instance. In some cases, the need
for a transcript may be obviated by turning the significant
information obtained into requests for admissions.
Requests
for admissions are discussed later in this section and in
SIX.S. below.
206/ See Rules 30(b) (5), (6), and 34, F.R.C.P.

-100-

quickly using this procedure, and the deponent can be questioned
about them:

if they are not

initially produced as requested,

defendants can hardly object to a continuance for this purpose,
and counsel will get two cracks at the witness.
have

limitations.

This device does

A subpoena _ duces, tecum should not be

too

extensive, if it is, the deponent may be unable to comply by the
deposition date, or counsel will be unable to sort and study the
documents quickly enough to use them at the deposition.
Sometimes

defendants

will

respond

to

a

large or

complex

request for documents by suggesting that counsel come to the jail
and inspect and copy whatever he or she wants.

Such offers are

usually made to save defendants or their lawyer work, but they
should be accepted with alacrity.

Even if it is inconvenient and

unpleasant to go to the jail for this purpose, the alternative -demanding formal production in counsel's office -- will probably
be more inconvenient · and unpleasant in the long run,
following
written

reason.

A request

in general

organiZe and

for

documents will

for the

usually

be

terms without knowledge of how defendants

label their documents:

it will be served on an

attorney who probably knows even less about the jail's records
than plaintiff's counsel:

then

it will be

forwarded

to

jail

personnel who are unaccustomed to interpreting legal documents
and who probably have a pretty haphazard record-keeping system to
begin with.

Going to the

jail, looking at the records,

and

asking questions about the records will put you in a much better
position

to

get

a

prompt

and

complete

demanding delivery to your office.

response

than

will

Even if you ultimately do

-101-

demand such production, a visit to the jail will permit you to
revise your request in a way that the defendants and their lawyer
can understand easily (e.g., -Produce all the green sheets since
January 1, 1980· instead of ·Produce all documents reporting,
summarizing,

or

commenting

on

physical

altercations

between

inmates or between inmates and jail personnel, or on injuries
sustained in said altercations, since January 1,1980.-).
Another

discovery

device

which

should

be

used,

and

used

early, is the tour with experts, obtained through a request for
entry upon land pursuant to Rule 34 of ·the Federal Rules of Civil
Procedure.
tours.)
both

(See

Srv.8.3.

above

for

additional

of

There is no substitute for an actual view of the jail,

for

understanding

its

problems

credibility of your expert witness.

and

for

have other advantages as well.
jail personnel;

bOlstering · the

This is especially true in a

case where physical conditions are at issue.

with

discussion

Tours with experts

They provide face-to-face contact

they dellOnstrate

to

jail personnel that

there are respected corrections professionals who sympathize with
the litigation I and the mere presence of plaintiffs' lawyers in
the jail enhances their credibility with both inmates and staff.
Requests for admission~ may also be extremely useful in
jail litigation.

They have the advantage that if they are not

timely

they

answered,

objected

to,

are

deemed

an explanation of the

admitted,

and

if

they

are

reasons must be provided.

Their utility will be greatest later in the litigation, after

207/ See Rule 36, F.R.C.P.

Also see SIX below.

-102-

counsel

has

obtained

enough

completely and accurately.

information

to

draft

admissions

Often, requests for admissions can

readily be converted into proposed findings of fac,t or used in
support of motions for summary judgement or preliminary relief,
and they should be drafted with these purposes in mind.

Requests

for admissions are also useful for establishing the authenticity
of documents. 207a /
The topics of discovery will obviously be determined by the
claims raised in the complaint.

However, there are some bas ic

approaches, supplemental to a basic inquiry into the facts, that
can be used in connection with most if not all jail conditions
issues.
1.

Ask the defendants what efforts they have made to

remedy or improve the situation -- for example, requests for more
staff or money.
constitute)

Answers to these questions may lead to (or even

virtual

concessions

of

liability

and

to

clearer

conceptions on counsel's part of the remedial options.

If the

people running the jail have requested something similar to what
plaintiffs'

counsel

wants,

the Bell v.

-deference-

to prison officials'

judgement may

support judgement for the plaintiffs.
further

discussion of deference.)

Wolfish

principle
be

turned

of
to

(See SIX.C.l. below for '
Often

there

is no better

plaintiffs' witness than a frustrated jail administrator: asking

207a/ The foregoing discussion is based on a general
understanding of the Federal Rules of Civil Procedure
governing discovery. Be aware that many district courts
have supplemented these rules with local ones.

-103-

the defendants about their attempts to improve the jail may lay
the groundwork for a tacit alliance between plaintiffs' counsel
and

the

jail

source.

administration

a

recalcitrant

funding

Th is tactic may be especially frui tful with med ical,

dental and psychiatric staff.
case

against

is

likely

conditions.

to

be

Also, you should determine if the

defended

by

a

claim

of

improved

(See SVIII.B. below for further discussion of the

improved conditions defense and related discovery issues.)
2.

Orient your questions around your proposed remedies

and ways they could be illPlemented.
-how bad-

to

-how

to- lIay make

Changing the emphasis from
the witness

less defensive,

convince the witness you aJ:e not necessarily the enellY, elicit
more

useful

examination,

information
and

shift

than

the

a

focus

staffing. funding and plant issues.

confrontational
froll

security

type

concerns

of
to

Asking a. jailor -Why don't

you have contact visits?- is likely to elicit an answer about the
dangers of contraband ~ asking -What would you need in order to
operate a secure contact visiting program?- may lead you to more
tractable· questions
search procedures.

about

numbers

of officers and post-visit

Your experts may be able to euggeet types of

questions about remedy that should be asked.
3.

Use relevant correctional standards in questioning

jail officials~

While it is true that these standards do

208/ See Appendix II for a list of and where to obtain
correctional and other relevant standards.

-104-

not

establish

requirements,lQV

constitutional

responses to them may be helpful in several ways.
case

a

jail official

who

is

completely

defendants'
In the worst

ignorant of

the

standards of his or her profession -- you can argue that the
official's views are entitled to less deference because of his or
her lack of expertise 2!Q/

If the witness can be persuaded to

agree with a standard which the jail does not meet, it will be
difficult thereafter for the witness to defend existing practices
on security grounds; again, you may be able to shift the ground
from security concerns to staffing and funding.

If the witness

does not agree with a standard, probing the 'reasons for

this

rejection of a professional consensus may help you argQe that the
jail's practices constitute an -exaggerated response- to security
concerns.

When the standard is one Pertaining to health and

physical safety, areas in which -deliberate indifference- is the
consti tutional standard, ask the witness what he or she thinks
the purpose of the standard is, whether the jail practice is
equally

protective

of

health

different method was chosen.

or

safety,

and

if

not,

why

a

This may set up an argument that

-deliberate indifference caused an easier and less efficacious

209/ Bell v. Wolfish, 441 U.S. 520, 543-44 n.27 (1979).
Standards may be given more weight by state courts,
especially if they are promulgated or endorsed by state
agencies. See, e.g., De Lancie v. Superior Court, note 28
above (state prison regulations); In re Inmates of Riverside
Co. Jail v. Clark, note 27 above (state jail regulations) .
210/ See Beckett v. Powers, 494 F.Supp. 364, 367 (W.D. Wis. 1980)
(deference is due only when -the practice reflects an
informed judgement of prison administrators-) (emphasis in
original) •

-105-

[method] to be consciously chosen •••• • 211 /

(See SIX.C. below for

additional discussion of the deliberate indifference standard.)
Depositions of expert witnesses are not favored under the
Pederal RUles of Civil Procedure, which provide that normally,
discovery as to experts who will be called at trial is limited to
interrogatories seeking the identity of witnesses and the sUbject
matter

and substance of the testimony to be given.

Purther

discovery, and any discovery as to experts who will not testify,
generally requires leave of court.
be required to pay the expert. 21 2 /

A party seeking discovery may
Despite the rules, in many

jurisdictions it is cOJllDOn practice for the parties to depose
each other's experts by agreement.

This can be advantageous in a

jail case not only for the usual reasons of assisting in trial
preparation but also to let the defendants know early on what
they are up against.

Depositions of your experts may be useful

tools in persuading' defendants to settle.
Counsel

should

bear

in

mind

the

possibility

that

jail

personnel may be presented by defendants as expert witnesses.
Their credentials and

th~ir

opinions should be explored in

211/ Williams v. Vincent, 508 P.2d 541,544 (2d Cir. 1974),
quoted with approval in Estelle v. Gamble, 429 U.S. 97, 104
n.10 (1976).
212/ Rule 26(b) (4), P.R.C.P.

-106-

depositions~

If defendants' counsel objects to and prevents

answers to questions elicting opinions, plaintiff's counsel may
either pursue the matter through a motion to compel discovery or
may seek a stipulation that the witness will not offer his or her
opinion at trial.

213/ The restrictions of Rule 26(b) (4) do not limit inquiry into
the opinions of parties or their agents who may also be
experts. Rodriguez v. Hrinda, 56 F.R.D. 11 (W.D. Pa. 1972):
Broadway & 96th St. Realty Co. v. Loew's Inc., 21 F.R.D 347,
360 (S.D. N.Y. 1958).

-107-

SECTION VIII.
Jail

officials

conditions

lawsuits

DEFENSES IN JAIL CASES

typically

raise

besides

the

a

number

usual

of

defenses

defenses

to

that

the

plaintiffs' allegations are not true or do not state a claim.
These defenses often speak to the reluctance of federal judges to
intervene in the affairs of local institutions.
Some
hand.
not

of

these defenses

may

usually be dismissed out of

Plaintiffs' failure to exhaust
a

defense

under

51983

administ~ative

except

under

the

remedies is
restricted

circumstances set forth in the Civil Rights of Institutionalized
Persons Act. 2l4 /

E1haustion of administrative remedies may be

214/ patsy v. Board of Regents 6f State of Florida,
U.S.
, 102 S.Ct. 2557 (1982). The Civil Rights of
Institutionalized Persons Act, 42 U.S.C. 51997 (e) (1976 ed.,
Supp. IV) provides that if a state creates -plain, speedy,
and effective- administrative remedies which are certified as
acceptable by the United State Attorney General, or which a
court finds meets the Attorney General's standards, the court
may stay the action for 90 days if so doing would be
-appropriate- and -in the interests of justice.- These
provisions will seldom apply to substantial challenges to
jail conditions because, so far, no jail officials have
successfully obtained certification and, in any case, it is a
rare administrative remedy that will make available the scope
of relief typically sought in a 51983 jail case.

-108-

required in a state court suit pursuant to state law.

Similarly,

plaintiffs in a jail conditions case are not required to exhaust
state judicial.remedies. 21S /
The Eleventh Amendment iDlllunity of states against federal
lawsuits generally does not protect local governments,n!! nor
does it usually bar federal lawsuits involving state activity as
long as the named defendants are individual state officials and
not the state or its agencies~

The doctrine of federal court

215/ MOnroe v. Pape,.36S U.S. 167, 183 (1961). Judicial
exhaustIon is required onl~ in cases which seek the immediate
or earlier release of inmates and are therefore deemed to
fall within tbe -heart of habeas corpus.- , Preiser v.
Rodriguez, 411 U.S. 475, 498 (1973). In cases challenging
jail condfilons in whicb releaae haa been contemplated solely
as a means of ensuring constitutional conditions, this
requirement has not been deemed to apply. S~~. Duran v.
Elrod, 713 P.2d 292,297-98 (7th Cir. 1983), Detainees of
Brooklan House of Detention for Men v. Malcolm, 520 F.2d 392,
399 (2 cIr. 1975)~ .. Inmates of the Allegheny County Jail v.
Wecht, Civil Action No. 76-743, Memorandum OpInion and Order,
(W.O. Pa.,· Oct. 10, 1983)~ " Benjamin v. Malcolm, 75 Civ. 3073,
Propoa~ Jsic;:J_ Or_d~t:_JS .D. N.Y., oct.. 31, 1983), enforcing
5U :r ... . Supp. 668 . _ (S.D. N.Y. 1983) •. Vazquez v. Gray,
523 P.Supp. 1359, 136' (S.D. N.Y. 1981), Anderson v. Redman,.
429 F.Supp. 1105, 1127-28 (D. Del. 1977) ,Padgett v. Stein,
406 P.Supp. 287, 303 (M.D. Pa. 1975).
216/ See Mt. Bealthy City Board of Education v. ooyle, 429 U.S.
274,280-81 (1977).
217/ Compare Milliken v. Bradley, 433 U.S. 267, 289 (1977)
(federal court injunction against state officials requiring
prospective expenditures upheld~ with Alabama v. pu~h, 438
U.S. 781 (1978) (federal suit barred against state ltself).
The Supreme Court has recently held that the Eleventh
Amendment'S prohibition does bar federal lawsuits against
state officials based on state law claims. Pennhurst State
School and Bospital v. Balderman, note 40a above. This
holding may extend to local offIcials and governments when
their activities are funded by the state. Id. at 4164,
n.34. (See 55 II.A. and II.C., above, for ilcrditional comment
on this subject.)

-109-

abstention is also rarely applicable, being reserved for those
exceptional circumstances where a state court determination of
state law might moot or alter a constitutional quest-ion, where
difficult

state

law questions

or

a

complex

state

regulatory

scheme are involved, or where a pending state law enforcement
action is pending.11!l
jailor

prison

These considerations rarely exist in a

conditions

rejected in them 219/

case

and

abstention

is

routinely

-Good faith- is also not a defense to an

injunctive lawsuit under S19a3~
A.

Lack of punding Defense.

Defendants may cIa ill that
because

they

improvements

do

not

demanded

have
by

they should not be held liable
sufficient

plaintiffs.

funds
However,

to

make

the

is

well

it

established that -ri]nadequate resources of financea can never be
an excuse for depriving detainees of their constitutional

21B/ Colorado River water Conservation District v. United States(
424 U.S. 813-17 (1976): , Chancery Clerk of Chickasaw County,
Miss. v. Wallace, 646 F.2d 151 (5th Cir. 1981).
219/ Ramos v. Lamm, 639 F.2d 559,563-64 (10th Cir. 1980): Grubbs
v. Bradley, 552 F.Supp. 1052, 1056-57 (M.D. Tenn. 1982):
Capps v. Atiyeh, 559 F.Supp. 894 (D. Ore. 1982); Robert E. v.
Lane, 530 F.Supp. 930 (N.D. Ill. 19B1) r Lucas v. Wasser, 425
F.Supp. 955, 957-61 (S.D. N.Y. 1976): Cudnik v. Kreiger, 392
F.Supp. 305, 308-09 (N.D. ohio 1974)r Jones v. Wittenberg,
323 F.Supp. 93, 98 (N.D. Ohio 1971), affid sub nom. Jones v.
Metzger, 456 F.2d 854 (6th Cir. 1972). Contra,~nney v.
Cabell, 654 P.2d 1280 (9th Cir. 1980)rBergstrom v. Rlcketts,
495 F.Supp. 210 (D. Colo. 1980).
220/ National Treasury Employees Union V. Nixon, 492 F.2d 587
(D.C. Cir. 1974); Knell v. BenSinger, 522 P.2d 720 (7th Cir.
1975) •

-110-

rights, .. 221/ although fiscal considerations may play a role in
determining
found~

the

scope

. (See

and

SX.B.

form of

below

relief

for

after

discussion

liability

of

is

defendants'

failure to provide funding after a judgement.)
B.

Improved Conditions Defense.

Frequently,

defendants

too

seek

to

avoid

a

direct

confrontation, either over the federal courts' powers or over an
adverse

judgement

sufficiently

by

by
the

claiming
time

of

that

conditions

decision

that

have

improved

no

judicial

intervention is warranted.

221/ Detainees of Brooklyn House of Detention for Men v. Malcolm,
520 F.2d 392,399 (2d Gir. 1975). Accord, Smith v. Sullivan,
611 P.2d 1039, 1043-44 (5th Cir. 1980) and cases citedl
Nicholson v. Choctaw County, Ala., 498 P.Supp. 295, 311 (S.D.
Ala. 1980)l Feliciano v. Barcelo, 497 P.Supp. 14, 36 (D. P.R.
1979)l Benjamin v. Malcolm, 495 F.Supp. 1357, 1363 (S.D. N.Y.
1980) and cases cited. See also watson v. City of Memphis,
373 U.S. 526, 537 (1963) (· ••• it is obvious that vindication
of conceded constitutional rights cannot be made dependent
upon any theory that it is less expensive to deny them than
to afford them."). As one court observed, permitting cost
considerations to influence the determination of
constitutionality ·would lead to this perverse result: the
worse the conditions existing in a facility and the more
costly the expenditures required to correct such conditions,
the less likely that such conditions could be
unconstitutional." Jordan v. Wolke, 460 F.Supp. 1080, 1088
(E.D. Wis. 1978), rev'd.2!!.. other grds., 615 F.2d 749 (7th
Cir. 1980).
222/ LaReau v. Manson, 651 F.2d 96, 104 (2d Cir. 1981)l Wright v.
Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) l Dawson v.
Kendrick, 527 F.Supp. 1252, 1283 (S.D. W.Va. 1~81) l Heitman
v. Gabriel, 524 F.Supp. 622, 624 (W.O. Mo. 1981) l MCMurry v.
Phelps, 533 F.Supp. 742, 769 (W.O. La. 1982). Lack of
resources may be defense to a damage action against an
individual, see Williams v. Bennett, 689 F.2d 1370, 1387-88
(11th Cir. 1982), cert. den. sub nom., Bennett v. Williams,
104 S.Ct. 335 (1983). However;-if the local government
itself is sued, underfunding will not be a defense and may in
fact help prove liability. See SII.C.2. above.

-111-

Spmetimes this defense is expressed in terms of mootness.
However,

it is clear that the voluntary cessation of unlawful

conduct after a lawsuit is filed does not moot the case, since
without a court order, the defendant remains free to resume the
unlawful conduct2W

Rven the construction of a new jail may

not moot a case where there is a danger that the new one will be
operated in an unlawful manner.l1!I
The argument may also be phrased in terms of the court's
discretion in granting injunctive relief; even though the merits
should be decided based on conditions at the time the complaint
Jas filed.lli! the scope of relief may be more closely tied to
conditions at the time of decision~
In responding to the -improved conditions· defense you should
be prepared to argue that it was only the lawsuit that prompted
the improvements and that conditions are likely to deteriorate
again unless the court enters an order.

You should be conscious

from the outset of the possibility of improved conditions and be
careful to preserve evidence of the conditions at the time the

223/~C~i~t~~~~~~~~~A~1~a~d~d~i~n~'~s~c~a:st~le~~In~c~. 455 U.S. 283,

2
an cases c1te ~ ones v. 0 amand, 636 F.2d 1364,
1375 (5th Cir. 1981) (en bane) •

224/ Jones v. Diamond~ id.; Jones v. Wittenberg, 73 F.R.D. 82, 84
(N.D. Ohio 1976).
225/ Martino v. Carey, 563 F.Supp. 984, 987-88 (D. Ore. 1983);
OWens-El v. Robinson, 442 F.Supp. 1368, 1374 (W.O. Pa.
1978). Contra, Lovell v. Brennan, 506 F.Supp. 672 (D. Me.
1983), appeal pending in First Circuit.
226/ City of Mesquite v. Aladdin's Castle! Inc., note 223 above,
at 289; Campbell v. McGruder, 580 F.2 521, at 542-43 (D.C.
.
Cir. 1978).

-112-

complaint was filed: for this purpose, it can be very important
to maintain contact with the original named plaintiffs even if
they have been released.

In discovery, inquire into the timing

and motivation of improvements, and demand documentary proof if
defendants
lawsuit.

claim

that

improvements

were

planned

before

the

Also call the court's attention to any evidence showing

that improvements will be transitory without an injunction:

for

example, rising population, budget cuts, or physical dilapidation
that cannot be permanently repaired. 227 /

Your expert wi tnesses

may be extremely valuable in assessing the -likely permanence of
purported reforms.
C.

Puture Improvements oafenae.

A variation of
promise

of

improvements

the

"improved conditions· defense

future

improvements.

consist

of

a

SOmetimes

completely

new

the

jail.

is

the

promised

_ Again

the

argument is likely to be couched in terms either of mootness or
of equitable restraint.
Plaintiffs'

counsel

should

respond

improvements· defense in several ways:

to

the

·future

test the credibility of

the promises, try to get them embodied (with a schedule)
court

order,

and

attempt

to get

involved

(with your

in a
expert

witnesses), either as critic or as negotiator, in planning the
improvements.
should

also

Perhaps most important to your clients, counsel
insist

on

substantial

interim

presently incarcerated.

227/ See Campbell v. McGruder, ide at 541-42.

relief

for

those

-113-

I~

practice, the -future improvements· defense often does not

stand up to close examination, either because the defendants do
not

actually

have

any

concrete

plans

or

because

they

incapable of acting on their plans in any timely fashion.

are
The

best attack on this defense is intensive discovery: demand to
know exactly what the defendants propose to do, when they propose
to do it, whom they will hire to do the work, where they will get
the

money,

etc.

In

many

cases,

the

vagueness

and

insubstantiality of their claims will be revealed, in most other
cases,

pinning defendants down to particular time cOJlllitments

will help demonstrate
proclaimed
place.

deadlines

the
pass

need for

judicial relief when the

and

improvements

the

are

not

in

The latter demonstration may be particularly helpful

where defendants intend to open a new jail, counsel should try to
sbow tbat,

like any other _jor construetion project, the new

facility is likely to be long delaye d228 / and the court must deal
meanwhile

with

conditions

in

the

old

jail.

Interim

relief

regarding an old jail is available even when a new one is

228/ See. Duran v. Elrod, 713 P.2d 292, 296 n.2 (7th Cir. 1983);
Palmigiano v. Garrahy, 443 P.Supp. 956, 978 (D. R.I. 1977):
Inmates of Allegheny county Jail v. Wecht, 565 P.Supp. 1278,
1295 (M.D. Pa. 1983).

-114-

planned: 229 / its scope may depend on how much doubt plaintiffs'
counsel can cast on the plausibility of defendants' plans and
schedules.
Discovery as to planned improvements should be retrospective
as well as prospective.
plans

and

proposals

Defendants' claims may well be based on

which

have

been

floating

around

without

action for years and which have been dusted off solely in order
to ward off judicial intervention.

This is particularly true of

large budget items like new facilities.

Showing the court that

the defendants have a history of not acting on their own remedial
schemes

may

provide

powerful

evidence

of

the

need

for

an

injunction. 230 /
When

defendants

promise

future

improvements,

become the major issue in the lawsuit.

timing

may

Defendants may seek long

adjournments of the trial or of sUbstantive motions, or even a
stay of discovery, pending making improvements, completing plans,
etc.

Counsel

should

strenuously

oppose

such

delays

unless

defendants are willing to sign a consent decree cOlllllitting them
to make constitutionally acceptable changes by dates certain.

As

a minimum fallback position defendants should be required

to

229/ Martinez Rodriguez v. Jimenez r 409 F.SuPp. 582, 595 (D. P.R.
1976), stay den., 537 F.2d -1 (1st Cir. 1976): Inmates of
Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 689 (D.
Mass. 1973) : . Hamilton v. Love, 328- F.Supp. 1182, 1190 (E.D.
Ark. 1971). See also Duran v. Elrod, 713 F.2d 292, 295-98
(7th Cir. 1983) (release pursuant to prior judgment ordered
even though new construction had been approved).
230/ See, e.g., Ramos v. Lamm, 485 F.Supp. 122, 133 (D. Colo.
--- 1979): Palmiqiano v. Garrahy, 443 F.Supp. 956, 978 (D. R.I.
1977) •

-115-

submit

frequent

and

regular

reports on

their progress.

If

defendants are not willing to do this, that fact in itself should
cast doubt on

thei~

bona fides.

Moreover, even if defendants are

proceeding in good faith, experience suggests that results are
actually forthcoming more
court dead1ine.nY

readily when there

is an

impending

Defendants' minds tend to wander to other

priorities during long adjournments.

Por these reasons, a motion

for a preliminary injunction is often a productive tactic in jail
cases.

It

is' a

means of

putting

serious

defendants much earlier than a date for trial.

pressure on

the

Moreover, in the

worst case -- a judge who prefers to do nothing indefinitely in
hopes that the defendants' actions will someday make the case go
away -- the denial of a preliminary injunction will create the
option of an immediate appeal. (gee SII.B.3. above on preliminary
relief.)
Where defendants are willing to make improvements, it may be
possible for plaintiffs '. counsel to have substantial impact on
their

p1ans~

either by threatening further litigation about them

or by convincing defendants that plaintiffs' counsel may have
access to helpful resources and insights.
immediately

receptive

to

plaintiffs'

If defendants are not
counsel's

discovery may provide a means 6f breaking the

involvement,
ice.

Counsel

should try to find out who is involved in planning and executing
any changes or construction:

depositions of those persons may

231/ See Campbell v. McGruder, 580 F.2d 521, 541 (D.C. Cir.
1978) •

-116-

prove highly educational for the deponents if defendants have
done

their

homework

(e.g.,

-Mr.

Architect,

Standard X of the National Sheriffs

are you

Associat~on

~ot

aware of

which calls for

Ideally, counsel should ellerge from a case where a new
jail is planned with a judgement concerning present conditions in
the old jail and a consent judgement governing conditions in the
jail to be built. 232 /
D.

Damage Case Defenses.

Defendants often rely on official immunity defenses in damage
cases.

Absolute immunities of various types are discussed in SII

above.

Most officials are, however, entitled only to -qualified

immunity, - under whicb tbey are I"iable if tbey -knew or sbould
bave

known-

tbat

tbey

were

violating

tbe

plaintiff's

rigbt

because tbey were violating -clearly establisbed constitutional
or

statutory rigbts of whicb a

known-

at

the

time

the acts

i_uni ty may be defeated

reasonable

person would

were committed.lW

have

Qualified

if defendants violated. a statute, a

judgement against them, or tbe bolding of a previously decided

232/ Some courts are reluctant to enter orders concerning
facilities which do not yet exist. See Ahrens v. Thomas, 570
F.2d 286 (8th Cir. 1978). Por this reason, dealing with
future construction through negotiation (backed up with the
threat of a new lawsuit when the new facility opens) is
preferable. Counsel should also consider structuring the
class certification in such a way that the definition of the
class is not irrevocably tied to a particular physical
structure.
233/ Barlow v. Fitzgerald,_ U.S. _ , 102 S.Ct. 2727, 2738
(1982). Formerly, officials could be held liable for
malicious acts whether or not they violated c.1early
established rights; however, the court in Harlow ruled that a
showing of malice would no longer defeat qualified immunity.

-117-

case binding in their jurisdiction. 234 /

Some courts have held

that qualified immunity is defeated if defendants violated their
own

regulation~ or

an established constitutional standard

even if there is no prior case involving identical facts~
Defendants have the burden of pleading qualified immunity; it
is waived if not pled~

Moat courts hold that defendants also

have the burden of proving it.1lY Immunity can be raised on a
motion for summary judgement~

234/ Harlow v. Fitzgerald, note 233 above, at 2739; Pr~cunier v.
Navarette, 434
555 (1971); Scott v. Plante, 691 P.2d 634
(3rd cIr. 1982)r Williams v. Treen, 671 F.2d 892 (5th Cir.
1982); Williams V. Bennett, 689 F.2d 1310, 1385-86 (11th Cir.
1982)r Powell v. Ward, 643 F.2d 924,934 n.13 (2d Cir. 1981);
Chavis v. Rowe, 643 F.2d 1281 (7th eir. 19~1); Bryant V.
McGinnis, 463 F.Supp. 373 (W.O. R.Y. 1978); Ware v. Heyne,
575 F.2d 593 (7th eir. 1978).

u.s.

235/ McCray v. Burrell, 622 P.2d 705 (4th Cir. 1980); Strachan v.
Ashe, 548 F.Supp. 1193, 1205 (D. Mass. 1982); O'Connor V.
Keller, 510 F.Supp. 1359 (D. Md. 1981).
236/ Layne V. Vinzant. 657 P.2d 468 (1st Cir. 1981); Doe v.
Renfrow, 631 F.2d 91 "(7th Cir. 1980); Chapman v. Picket':, 586
F.2d 22 (7th Cir. 1980); Little V. walker, 552 F.2d 193, 198
(7th Cir. 1977); Masiid Muhammad-D.C.C. v. Keve, 479 F.Supp.
1311, 1326 (D. Del. 1979); Picha V. Wielgos, 410 F.Supp.
1214, 1219 (N.D. Ill. 1976); Landman v. Royster, 354 F.Supp.
1292, 1318 (E.O. Va. 1973). But see Picariello V. Carlson,
491 F.Supp. 1020 (M.D. Pa. 1980).
237/ Gomez v. Toledo, 446 U.S. 635 (1980); Boyd V. Carroll, 624
F.2d 730 (5th Cir. 1980); Perkins v. Cross, 562 F.Supp. 85
(E.D. Ark. 1983).
238/ Alexander V. Alexander, 706 F.2d 751 (6th Cir. 1983); Buller
V. Buechler, 706 F.2d 844 (8th Cir. 1983); Wolfel v. Sanborn,
666 F.2d 1005 (6th Cir. 1982); Williams v. Treen, 671 F.2d
892 (1982); Dehort v. New Castle Count Council, 560 F.Supp.
889 (D. Del. 19 3); Contra Saldana V. Garza, 684 F.2d 1159
(5th Cir. 1982); Crowder v. Lash, 687 F.2d 996 (7th Cir.
1982) •

l1iI

Harlow v. Fitzgerald, note 233 above, at 2739.

-118-

Qualified immunity has often been referrred to as -good faith
immunity.-

It is preferable to use the term -qualified immunity-

because the words -good faith- seem to focus on the subjective
motivation of the defendant, which is not properly an issue and
which may distract from the more technical question of what the
defendant -knew or should have known. faith-

terminology

have

sometimes

courts using the -good

reached

results

seemingly

inconsistent with the qualified immunity doctrine. 240 /
The other major defense in 51983 daaage cases is usually a
claim

that

higher-ranking

or

supervisory

defendants

are

not

liable because they were not personally involved in the claimed
deprivation of rights.

Strictly speaking. this is not really a

defense but part of plaintiff's case on which plaintiff bears the
burden of proof.

However. as a practical aatter, the scope of

particular defendants' liability ia generally raised defensively
on IIOtions

to dismiss or for

defendants,

as

well as at

sWlllDary judgement filed

tria!.

(See SII.C.l.

for

by the
further

discussion of personal involvement.)

240/ See, e.g., Giles v. City of Prattville,.. 556 F.Supp. 612
(M.D. Ala. 1983).

-119-

SECTION IX.

PROVING THE CASE

Trying a complex jail case presents two major challenges for
counsel:

making it real and making sense out of it.

The trier

of fact must come away from the trial with some idea of what it
is like- to be subjected to the conditions and practices that
exist at the jail.

He or she must also be provided with the

means to write a favorable decision that will stand up on appeal.
A.

Making I t Real.

There are three basic ways of bringing a jail conditions case
to life:

testimonYr photographs, and a tour by the court.

Eyewitness testimony as to jail conditions will !IOstly come
from three sources:

present and former inmates r your experts who

have- toured the jail. and employees or officials of the jail.
(See SIV for a discussion of espert testimony.)

Occasionally

there will be other witnesses. such as health or fire inspectors
or persons

inVOlved in religious or social programs who are

permitted to enter the jail.

Most eyewitness testimony usually

will be provided by inmates~
Jail and prison inmates have some limitations as witnesses
becausa

most

will

be

subject

to

attacks

on

their

241/ Prisoners' parents, spouses and children can be powerful
witnesses as to visiting conditions, problems with mail and
telephone communications, and in some cases their observation
of physical injuries of inmates who have been assaulted.
iven if their testimony is somewhat cumulative, it can be
very helpful to have corroboration of prisoners' testimony by
persons not viewed by the trier of fact as criminals.
Contacts with these persons can be made either through
information provided by prisoners or by approaching them in
the visitors' waiting area or outside the visi"tors'
entrance. In our experience, they are rarely reluctant to
talk about problems at the jail.

-120-

However,

credibility.1i1I

in

our

experience,

with

adequate

preparation and selection their testimony can be more credible
and

compelling

than that of jail employees.

We suggest the

following rules of thumb in preparing your eyewitness case.
Select a variety of witnesses.

1)

While an obvious

professional criminal or young tough may not be credible viewed
in isolation, his or her testimony may be very credible if it is
substantially consistent with that of other witnesses.

Look for

a balance according to race, sex, age, criminal record, physical
size, demeanor and attitude.
for

the one perfect witness,

Don't spend a lot of time looking
and

even

if you find one

(the

straight-A college student picked up for drunken driving, etc.),
don't cut back on other inmate testimony.
witnesses

who

are

not

very

smart

Also, don't write off

or' not

very

articulate.

Sometimes these persons can be the most powerful witnesses, their
obvious

inability

to

fabricate

or

embellish

accounts all the more stark and compelling.

may

make

their

(A judge may even

wonder what someone with very limited mental abilities is doing
in jail in the first place.)

242/ Counsel may be able to have witnesses' criminal records
excluded from evidence pursuant to Rule 609(a), F.R.Ev.,
although there is dispute as to whether this provision
applies to civil cases. Compare Howard v. Gonzales, 648 F.2d
352, 358-59 (5th Cir. 1981) with Garnett v. Kepner, 541
F.Supp. 241, 244-45 (M.D. Pa. 1982). Rule 403, F.R.C.P., may
also permit the exclusion of criminal convictions. Rozier v.
Ford Motor Co., 5'73 F.2d 1332 (5th Cir. 1978). Whether it is
worthwhile to seek their exclusion in a nonjury case is
questionable.
Even if a criminal record is allowed in, counsel can
seek to reduce its impact by immediately placing the record
before the trier of fact and putting it in the best light
possible to the prisoner.

-121-

2)

Interview a lot of inmates.

You should talk to as

many inmates as possible 243 / during the course of the lawsuit and
find out how to keep up with them atter they are released or (in
many cases) sentenced to state prison.

Given the high turnover

in jails, you cannot assume that any individual will still be
there at the time of trial.

You also cannot assume that everyone

who is willing to testify in January will still be interested in
June.

You should therefore keep a fairly long list of potential

witnesses and be prepared to make last-minute sUbstitutions.
Interviewing
advantages.

a

large

number

of

inmates

has

other

The more inmates you talk with, the better you will

get at assessing their credibility and judging how they will fit
in with the rest of your proof.

Also, the more inmates you talk

with, the better known you will become at the jail, and the more
inmates will seek you out and provide information.
3)

rapes,

Look for

medical

-horror stories.-

neglect,

and

suicide

Assaults, stabbings,

attempts

may

grab

the

attention of an otherwise uninterested judge and may graphically
demonstrate the seriousness of issues of staffing, supervision
and procedures that otherwise may seem like technical disputes.
You should not rely exclusively on direct contacts with inmates

1!11

If the jail is large and your time is limited, it may be
worthwhile to try to distribute a questionnaire among inmates
as a means of finding potential witnesses and deciding which
ones are most worth interviewing. The means for distributing
such a questionnaire range from mailing it to individuals to
having it made available in housing units or libraries,
depending on how cooperative defendants are. Also, a court
probably has the authority to order distribution in a class
action pursuant to Rule 23(d), F.R.C.P. The National Jail
Project will supply a model questionnaire on request.

-122-

to find such witnesses.

If there are records of serious injuries

or altercations at the jail, it is worthwhile to try to track
down the victims even if they are no longer at the facility.
Borror

stories

must,

however,

be

put

in

a

connected with regular practices at the jail.

context

and

If your only

inmate testimony is accounts of stabbings and rapes, the court
may be

tempted

to write

these

incidents off as

aberrations.

Corroborating testimony about the underlying problems should also
be presented.

If a witness testifies that he or she was jailed

for a weekend and raped and that the guards never came to the
cell area, other witnesses should also testify regarding the lack
of supervision even if they were not raped or assaulted.
4)

Look for

Obviously, your witnesses'

cor~oboration.

stories -- especially horror stories -- should be checked against
any available source of corroboration (including jail records and
the stories of the defendants and other inmates) so you can avoid
presenting false or incredible testimony.

You should also be

prepared to present any corroborating evidence that you do find
even

if

defendants
Even

account.

if

testimony -- e.g.,

do
the

not

seriously

evidence

a medical

contest

only

record

your

supports

witness's

part

of

the

showing injuries but ' not

reflecting their cause -- it is helpful to begin showing
judge

as

early

as

possible

that

your

witnesses

are

the

to

be

believed.
5)

Be prepared for efforts to limit testimony.

Some

judges feel that they should not have to listen to a parade of
inmates testifying to the same conditions.

If the court or the

defense objects to your inmate testimony as cumulative, ask the

-123-

defendants

if

they

will

stipulate

to

the

truth

--

and

more

importantly, the typicality of what your witnesses have said, if
not, you should argue that when the facts are contested, it is
inappropriate to limit a party's ability to buttress its case.
You should also have prepared offers of proof for each inmate so
that if the judge is inclined to limit your presentation you can
at

lesst get

similarly.

i~

You

on

the

may

also

record
wish

that
to

others

ask

the

would

testify

defendants

for

stipulations regarding your offers of proof.
Obviously it is better to avoid this situation.

One way to

do so is to inteJ:sperse inmate testimony with the testimony of
other witnesses so its cWllulativeness is less obvious; another
approach

is

to

emphasize

in

each

witness's

testimony

those

elements which are not cumulative.
Photographs may also be used to great effect in jail cases.
Photographs can be used to demonstrate dilapidation, inadequate
sanitation

practices,

cramped

conditions,

·strip

cells,·

other physical conditions, as well as injuries suffered by

and

inmates ..ill!

Often

the

best

way

to

use

photographs

is

in

connection with the testimony of an expert who toured the jail.
sometimes the best way for a judge to find out what the jail
is like is to go there.

court tours have become an accepted

practice in jail and prison cases. 245 /
can

be

conducted

with

no

advance

notice

make

cosmetic

judges

have

stayed

the

advance.

In

jails~

While few judges will go so far, it may be useful to

cases,

to

so

have

few

opportunity

or

defendants

a

no

little

It is better if the tour

changes

in

overnight

in

propose an overnight stay if only to elicit an admission from the
defendants that they cannot guarantee the judge's safety.

. Keep

•

in mind that in an adversary system counsel should not propose
that

the

judge go anywhere or do anything

unless counsel

is

willing to go along.

244/ For a published example of the effective use of photographs
in a jail case, see Rhem v. Malcolm, 432 F.Supp. 769, 790 (S.D.
N.Y. 1977).
When a practice or procedure is at issue, videotaping may be
helpful. Por example the Legal Defense Fund, incident to its
litigation concerning contact visitation, o'Bryan v. county of
Saginaw, Mich., 437 F.Supp. 582 (E.D. Mich. 1977) and 446 F.Supp.
436 (1978), obtained a videotape of the facility's court-ordered
procedure for such barrier-free visits . 437 F.Supp. 582 (E.D.
Mich. 1977) and 446 F.Supp. 436 (1978). The district court on
remand after Wolfish, 620 F.2d 303 (6th Cir. 1980), permitted
termination of the program. 529 F.Supp. 206 (1981). At the
appellate argument the tapes which were made part of the record,
were shown to the panel which heard the case. At this writing
the case is submitted: however, it is likely the panel will await
Supreme court action in Block v. Pitchess, certiorari granted
inter alia on the contact visitation issue, 104 S.Ct. 390 (1983):
see Rutherford v. Pitchess, 710 F.2d 572 (9th Cir. 1983) for the
decision belOW.
245/ See, e.g., Benjamin v. Malcolm, 564 F.SuPP. 668, 67'1 (S.D.
N.Y. 1983): United States ex reI. Wolfish v. Levi, 439 F.Supp.
114, 119 (S.D. N. Y. 1977), aff'd in part, rev'd in part ~.!!2!!!..
Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), rev'd on other
grds. ~.!!2!!!. Bell v. Wolfish, 441 U.S. (1979).
246/ Inmates of Suffolk County Jail v. Eisentadt, 360 F.Supp.
676, 678 (D. Mass. 1973).

-125-

B.

Making Sense Out of It.

A mUlti-issue

injunctive

jail

Buit

requires

counsel

to

organize a disparate mass of evidence -- lay testimony, expert
testimony,
the

jail documents, depositions and

defendants,

intelligible

to

photographs,
the

appellate court.

trial

etc.
judge

into
and,

if

interrogatories for
a

coherent

necessary,

whole
to

an

There are a number of techniques which will

assist counsel in getting a clear understanding of his or her own
case and in putting it across to the judge.
First, counsel should break the case down into issue parcels
reflecting

each

subject

lighting,

heating,

that will

sick

call,

be

the

emergency

subject of
medical

proof:

services,

protection frOll inmate assault, protection from staff assault,
etc., etc.

Even under a Wtotality of circumstances· standard,

the best way to put the case together
apart.

is first

to

take

it

Once one has identified all the issues, one shouid ask

about each:
What do the defendants claim is their policy?
What is their actual practice?
What are the relevant physical conditions?
How does the policy, condition or practice deviate from
relevant statutes, regulations, or standards?
What are the consequences for
,

inmates of the policy,

conditions, or practices?
What must be done to remedy the existing situation?

This process, which should be begun early in the litigation and
should be continued or

repeated as the case progresses, will

-126-

serve as a guide to discovery and preparation efforts up to the
time of trial.

It should also reveal to counsel new issues and

new relationships among issues which will have to be spelled out
for the court (e.g., the amount of training nurses should have

•

may

depend

on

the

way

sick

call

is

conducted,

and

the

organization of sick call may depend on physical features of the
building:

lack

of

staffing

may

be

aggravated

by

lack

of

a

classification procedure and both may contr ibute to violence in
the facility).
Second, . counsel should do as much as possible to reduce the
proof to manageable form.

There are a series of steps which can

be takeG to this end, and counsel should realiza that several of
them

--

requests

for

admissions,

stipulations,

the pre-tr ial

order, and proposed findings of fact -- may involve variations on
a single basic document, one which can be prepared relatively
easily using tbe issues outline described above.
A request for admissions should involve a series of clear and
succinct

statements whicb,

establish their case.
admissions.)

if

admitted,

will help plaintiffs

(See SVII. above for further discussion of

A compact and well organized request for admissions

can do great service in abstracting kernels of relevant evidence
from the mountains of chaff to be found in the depoSitions of
confused and inarticulate jail offiCials, the voluminous records
maintained by the jail, and other reports, correspondence, and
documentation which refer to jail affairs.

For example, counsel

may have to take five or six depositions to find out how sick
call is supposed to work, how often a doctor comes to the jail,
and how a sick or injured inmate can get taken to an emergency

-127-

Having

room.

so,

done

counsel

information in ten sentences.

can

probably

summarize

the

If admissions as to these can be

obtained, counsel can avoid the whole rigmarole of putting the
depositions
trial.

into

evidence 247 /

or

the

calling

witnesses

at

Multiply this example by the number of issues to be dealt

with, and it is clear that the use of requests for admissions can
greatly simplify counsel's task at trial and the court's task
after trial.
Other

uses

of

requests

for

admissions

include

obtaining

concessions as to the validity of summaries of voluminous records
such as

reports of

injuries,. assaults,

suicides, attempts at

suicides, medical procedures, or disciplinary proceedings, and as
to the content. of documents that are difficult to read.
addition,

In

admissions can be sought as to the authenticity of

documents that will be produced at trial, and for that matter as
to

their

admissibili ty

the

in

face

of

other

poss ible

objections.
Counsel should remember in drafting admissons to leave room
for

the

evidence

to

be

presented

at

trial.

An

admission

regarding defendants' policy in some regard should be drafted so
as

not

to

exclude

proof

that

requirements of that policy.

defendants

have

not

met

the

Moreover, proof that may be more

effective presented live -- for example, narratives of assaults
and rapes -- should not be reduced to admissions even if you

247/ Using portions of the actual depositions often leads to the
annoying scenario in which the adverse party then introduces
the whole deposition pursuant to Rule 32 (a) (4), F.R.C.P.,
giving the judge more hundreds of pages to slog through.

-128-

think the defendant will admit them.

A photograph of a dead rat

in the kitchen will probably have more impact than an admission
about it.
Even i f plaintiffs' admissions are mostly denied and if the
court

declines

to

compel

a

response~ the

different

work

involved in drafting them will not be wasted, since, as noted
above, they can be recycled as portions of a pre-trial order or
as proposed findings of fact.
Material

that

appropriate for
working

is

appropriate

ordinary stipulations,

relationship

with

satisfactory way to proceed.
if

no

response

for

opposing

admissions

and

is

also

if one has a good

counsel

this

may

be

a

Admissions have the advantage that

is made within

a

set

time,

they are deemed

admi tted, placing some constraint on an adversary who is lazy,
inept, or uncooperative.
The

pre-trial order

is

a

mechanism used

in

various

and

discretionary ways by federal judges to narrow issues and make
trials more manageable.
to

hold

pertaining

a

pre-trial
to

trial

Rule 16, F.R.C.P., authorizes the court
conference
management

to
and

discuss
to

memorializing the results of the conference.

various
issue

an

issues
order

In practice, many

judges first direct the parties to prepare a pre-trial order of

248/ Rule 36(a), F.R.C.P., permits the party seeking admissions
to move to determine the sufficiency of the answers.

-129-

more

or

less

specificity

and

then

either

dispense

with

the

conference or hold a conference only about those matters which
cannot be resolved in the written order.
Pre-trial orders can be of
litigation.

A

comprehensive

immense help
pre-trial

in institutional

order

may

contain

stipulated facts, contested facts, contested legal issues, lists
of each party's exhibits and objections to exhibits, lists of
each party's lay and expert witnesses, and the expected length of
the trial.

The great virtue of the pre-trial order procedure is

that it compels one's adversary to determine exactly what his or
her defense will be, which otherwise may be unknown until the
trial

begins.

However,

it

is

often v8ry difficult

to get

defendants' counsel to deal responsibly with the pre-trial order;
one should begin pressing early to - avoid a last-minute crush
before the court's deadline.

Too often,

the opposing counsel

meet at the last minute, waste their time quibbling about trivia,
and wind up submitting what amounts to independent reports to the
court.
Pre-trial conferences and orders may also provide a useful
forum for the commencement of settlement negotiations.

Often it

is not until opposing counsel for the first time is forced to
confront the reality of trial that he or she becomes interested
in settlement.

This epiphany on the part of defense counsel

carries risks as well as benefits to plaintiffs.

Last-minute

settlement negotiations may drag on until plaintiffs' evidence is
stale and witnesses are scattered posing serious risks to the
case if negotiations break down.

Counsel should remember that

-130-

the most powerful incentive for meaningful nec.:Jotiations is an
impending trial date and should therefore not consent to more
than

a

brief

adjournment

until

there

is a

signature on

an

agreement.
At the trial, one's options regarding the order of witnesses
are likely to be limited by the need to accommodate the schedules
of expert witnesses.

If possible, however, it is often effective

to begin with a strong general expert witness (usually a present
or a former correctional official) who has toured the jail and
who can give an overall view of the jail's problems and provide a
context in which the judge can place the more limited or specific
testimony of the witnesses to follow.
After the trial, it is appropriate, at the judge's option, to
submit proposed findings of fact and conclusions of law or a
post-trial brief.

The former may be easier, since if you have

drafted admissions, stipulation, or a pre-trial order you should
be able to transplant much of their contents with little change
except to add appropriate citations to the record. Depending on
the judge's familiarity with the issues and on whether a pretrial brief was submitted, you may wish to submit a document with
a statement of facts in the form of proposed findings but a legal
argument in the usual brief style rather than in the form of
conclusions of law.

-131-

C.

Fitting the Facts to the Law.

There are a number of recurrent factual problems that arise
in trying to meet the relevant legal standards in jail cases. 249 !
Deference.

1.

In Bell v. Wolfish the Supreme court

held -- repeatedly -

that courts should accord "wide-ranging

deference"

administrators

to

prison

preserving institutional security~
comments on "deference. It)

in

matters

related

to

(See 5I.A. for additional

At first blush, this rule appears to

present a purely legal issue.

However, there is r.oom for factual

maneuver within the confines of the "deference" standard.

There

may be someone to whom the court can "defer" who supports the
plaintiffs' position.

In places, the Wolfish opinion suggests

that the basis for deference

is the expertise of corrections

officials,25l/ the opinion also acknowledges, however, that this
expertise may sometimes be nonexistent, and expresses the view
that "the operation of our correctional facilities is peculiarly
the province of the Legislative and Executive Branches of our

249/ The following highly selective discussion of particular
substantive issues does not reflect our view of the relative
importance of the issues~ rather, we have selected the issues
about which we have something useful to say. For a recent
catalogue of substantive issues in prison and jail cases, see
Manville and Boston, Prisoners' Self-Help Litigation Manual,
(Oceana Press 1983), Chapter v.
250/ 441 U.S. 520, 547 (1979) ~ see also id at n.29, 548, n.30,
551, n.32, 554-55, n.40, 563.
251/ Id.
-

at 548.

-132-

Government, not the Judicial."1211

This language suggests that if

there is a state law or regulation, or even a non-binding standard
promulgated
violates,

pursuant
the

relief. 252a/

to

deference
Conversely,

statutory

authority,

standard
if

the

can

be

which

invoked

the
to

jail

support

jail administrator expresses a

supportive view contrary to that of the commissioner, sheriff, or
mayor, counsel can argue that the expert administrator who has dayto-day

familiarity

with

jail operations

should

be

There may be other permutations of these strategies.

deferred

to.

In some cases,

it may be possible to show such a conflict of views that .the idea of
deference to anyone becomes nonsensical.
that

counsel

should

identify

all

persons

The essential point is
and

organizations

in

positions of authority vis-a-vis the jail and explore their views.
Counsel should also exploit any inconsistencies in defendantt
justifications for their policies.

A practice defended as essential

to secur i ty dur ing litigation may have been presented solely as a
money-saving device or a convenience at some other time.

If this is

the case, counsel should press the court for a factual finding that
defendants' views regarding security are not sincerely held.

Such a

finding not only undermines the requirement of deference but is also
less

vulnerable

on

appeal

than

a

legal

conclusion

that

defendant's views constitute an "exaggerated response."l2l/

252/ Id.
252a/ See e.g. Michaud v. Sheriff of Essex County, 390 Mass. 523
(Mass. Sup. Jud. Ct. 1983) (State sanitary regulations
reflect current standards of decency aga~nst which court
measures violations of constitutional rights.)
l2l/ See Morris v. Travisono, 707 F.2d 28, 31 (1st Cir. 1983).

the

-133-

Length of

2.

Stay.

The constitutionality of

conditions may depend on how long they must be endured.
v.

Wolfish,

the

Court

emphasized

that

become a major factual issue.

In Bell

-[n]early all of

detainees are released wi thin 60 days. -254/

jail

the

Length of stay may

Even if the underlying facts are

undisputed, what they mean may depend on who does the arithmetic.
First, one must decide what data to use.

A calculation may

be made based on all the inmates who pass through the jail during
a year or other long period of time.
the

short-term,

high-turnover

This method will emphasize

population of

inmates

who

are

bailed after arrest or who receive short sentences for petty
offenses.
day

Alternatively, one can base the calculation on a one-

-slice-

including

particular

date.

approaches

is

things.- 255 /

all

persons

-Neither

dishonest.

of
They

found
these

in

the

opposing

lIerely

jail on

a

statistical

measure

different

In either case, one should use a period far enough

in the past that most of the inmates in question will have been
released so their full terms of incarceration will be reflected.
Once one has selected the data base, the impulse may be to
calculate a mean (average) or median.

However, for a court to

rule on this basis is like building a bridge based on the average
height of the ships that will pass under it.

It is preferable to

break length of stay down into intervals (e.g., 0-30 days, 31-60

254/ Note 250, above, at 544. See also Hutto v. Finney, 437 U.S.
678, 686-87 (1978) (length of stay emphasized in Eighth
Amendment analysis).

li1/ LaReau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981).

-134-

days, 60-90 days, etc.), which will usually show that, along with
a large short-term population, there is also a substantial longterm population of persons serving sentences of several months or
awaiting trial on serious charges.

This presentation is the best

way to show that some portion of the jail population is subjected
to "genuine privation and hardship over an extended period of
time.· 256 /
3.

Medical

Care.

The

constitutional

standard

for

prison and jail medical care prohibits ·deliberate indifference
to serious medical needs of prisoners •••• • 251 /
on ' the

health

care

system

and

not

on

the

When the focus is
treatment

particular individual, courts have interpreted the

of

a

ill-adapted

·deliberate indifference- standard 258 / to hold that ·a series of
incidents closely related in time ••• may disclose a pattern of
conduct amounting

~

deliberate indifference- and that injunctive

256/ Bell v. WOlfish, note 250, above, at 542.
251/ Estelle v. Gamble, 429 U.S. 97, 105 (1976).

Estelle based
its holdIng on the Eighth Amendment's prohibition of the
"unnecessary and wanton infliction of pain.· Gregg v.
Georgia, 428 U.S. 153, 182-83 (1976). Pre-trial detainees
enjoy due process rights ·at least as great as [these) Eighth
Amendment protections.· City of Revere v. Massachusetts
General Hospital,
U.S. --' 103 S.Ct. 2979, 29B3 (19B3).
It is unlikely tha~the due process standards will ever be
defined as significantly more favorable than the Eighth
Amendment standard. Since deprivation of care for serious
medical needs is presumably not a legitimate means of
punishment, the difference between "punishment· and "cruel
and unusual punishment" in this context should be minimal.

~ For criticism of this standard, see Estelle v. Gamble, note

257 above, at 117 (Stevens, J., dissenting); Neisser, Is
There a Doctor in the Joint? The Search for ConstitutTOnal
Standards for Prison Health care, 63 Va. L.Rev. 921 (1979).

-135-

relief

can be granted

"'if

it can be shown that the medical

facilities were so wholly inadequate for the prison population's
needs that suffering would be inevitable."259/
evidence

of

subjective
beside the point. 260 /

motivations

of

In such cases,

jail personnel

may

be

Although the above quoted standard suggests that the ·series
of incidents" and "inadequate facilities· are alternative bases
for granting injunctive relief, the prudent litigator will pursue
both avenues of proof.

Evidence of a series of failures of the

medical system may prove that something is wrong, but without
evid~nce

concerning systems and procedures the court will have

little basis on which to formulate an injunction; conversely,
without proof that individuals have suffered, experts' criticism
of the system and proof of its deviation from standards may be
dismissed as mere theorizing or as policy differences that do not
rise to a constitutional level.
The Estelle v. Gamble standard also requires that "ser ious
medical needs of prisoners· be involved.
need

has

been defined

as

·one

that

A ·serious· medical

has been diagnosed by a

259/ Bishon v. Stoneman, 508 F.2d 1224, 1226 (2d Cir. 1974)
(empfiaSls supplied). "
260/ Thus, in one leading case, the court found systemic
deficiencies in medical care to violate the ·deliberate
indifference" standard at the same time that it found that
the prison medical staff "appeared to be truly concerned with
the well-being of the inmates they served." Todaro v. Ward,
431 F.Supp. 1129,1160 (S.D. N.Y. 1977), aff'd, 565 F.2d 48
(2d Cir. 1977). Accord, Wellman V. Faulkner, 715 F.2d 269,
273 (7th Cir. 1983) (violation found despite "apparent good
intentions of prison officials").

-136-

physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor' s
attention.- 261 /

However, courts sometimes dismiss medical lapses

which might otherwise state a constitutional violation on the
ground that they do not relate to serious needs. 262 /

You should

therefore be sure to present evidence of the actual or potential
consequences of the kinds of medical failures that you prove.
This should be done both through expert testimony and through
testimony of inmates who have suffered.

It should be sufficient

to show that a condition causes significant pain.1!lI
4.

-entitled

to

Protection

from

Inmate

protection

from

assault

Assault.
by

other

Prisoners

are

inmates;

the

constitutional standard forbids -deliberate indifference- to

261/ Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), ·cert.
~., 450 U.S. 1041 (1981) and cases cited.
262/ See, e.g., Butler v. Best, 478 F.Supp. 377 (E.D. Ark. 1979)
(ten-day failure to give prescribed medication did not relate
to serious medical needs).

1!lI West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978): Case v.
Bixler, 518 F.Supp. 1277 (S.D. Dh. 1981).

-137-

prisoners' physical safety.1iiI

This standard may be met either

by showing a failure to act in the face of a known risk to a
particular

prisoner 265 /

or

by

proving

the

"constant threat of violence"266/ or of a

existence

of

a

"pervasive risk of

harm" to all prisoners or to some identifiable group of the~
combined with a failure to take adequate remedial measures.
finding such a
extensive

failure,

history

of

courts have cited such factors
prior

assaults,268/

a

In

as an

well-entrenched

subculture of sexual violence and a failure properly to classify
prisoners,269/

and

overcrowding,

understaffing

and/or

under funding which iaterially contributed to the risk of

264/ Branchcombe v. Brewer, 669 F.2d 1297 (8th Cir. 1982): Holmes
v. Goldin, 615 F.2d 83(2d Cir. 1980): Little v. Walker, 552
F.2d 193 (7th Cir. 1977) cert den. 435 U.S. 932 (1978).
Courts have also u3ed a variety of other terms, such as
"reckless disregard," "gross negligence," and "callous
indifference," to state essentially the same standard. See
Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981), aff'd on other
grds.sub . ~. Smith v. Wade, _
U.S.' _ , 103 S.Ct. 1625
(1983): Clappier v. Flynn, 605 F.2d 519 (lOth Cir. 1979)
(conduct so grossly incompetent, inadequate or excessive as
to shock the conscience or be intolerable to basic
fairness). As with medical care, no meaningful distinction
between convicts and detainees has so far been drawn.
265/ Gullatte v. Potts, 654 F.2d 1007 (5th Cir. 1981): Wade V.
Haynes, note 264 above: Holmes V. Goldin! note 264 above.

1!iI Ruiz v. Estelle, 679 F.2d 1115, 1140-42 (5th Cir. 1982);
Ramos v. Lamm, note 261 above, at 572.

267/ Withers V. Levine, 615 F.2d 158, 161 (4th Cir. 1980).

1&!1 Stevens v. County of Dutchess, N.Y., 445 F.Supp. 89 (S.D.
N.Y. 1977).

1iiI

Doe V. Lally, 467 F.Supp. 1339 (D. Md. 1979); Redmond v.
Baxlev, 475 F.Supp. 1111 (E.D. Mich. 1979).

-138-

assault.11Q!
show

some

The pOint to keep in mind is that plaintiffs must

fault

authorities,

on

both

the
to

part of

establish

jail officials or other
liability

and

to

local

formulate

a

remedy.
In

proving

a

"risk

of

assault"

case,

one

carefully at protective custody cells or units

should

(if any)

look
in the

An unusually large protective custody population is one

jail.

indirect measure of lack of safety.271/
reasons

why

revealing.

individuals

are

in protective custody may also be

It may be also that provisions for protective custody

do not provide adequate safety.
cells

there

enough.

Records (if any) of the

are

and

ask

a

Find out how many protective

correctional

expert

if

there

are

Find out if protective custody inmates are intermingled

with inmates who have been segregated for other reasons such as
violent
admitted

acts. 272 /
to

Explore

protective

the

means

custody:

are

by

which

requests

prisoners
ever

are

rejected?

Must inmates "name names· and risk retaliation?

270/ Ruiz v. Estelle, note 266 above, at 1140-42 (crowding and
understaffing) 1 Dawson v. Kendrick, 527 F.Supp. 1252, 1289
(S.D. W.Va. 1981) (understaffing) 1 Finney v. Mabry, 534
F.Supp. 1026, 1039 (E.D. Ark. 1982) (crowding which made
proper surveillance impossible): McKenna v. County of Nassau,
538 F.Supp. 737 (E.D. N.Y. 1982) (crowding) 1 Mayes v. Elrod,
470 F.Supp. 1188 (N.D. Ill. 1979) (underfunding).
271/ Ramos v. Lamm, 485 F.Supp. 122, 141 (D. Colo. 1979), aff'd
in part ~ remanded, 639 F.2d 559 (lOth Cir. 1980), cert.
~., 450 U.S. 1041 (1981): Palmigiano v. Garrahy, 443
F.Supp. 956, 967 (D. R.I. 1977).

11lI

Palmigiano v. Garrahy, id.

-139-

One should also look for architectural . ·blind spots· 273 / and
other

physical

units

and

features

common

which

areas.

impede

These

surveillance

structural

in housing

issues

can

be

particularly crucial in facilities containing dormitory housing,
since without adequate supervision there may be nowhere an inmate
can be safe.
Records of ·unusual incidents· or of officers' use of force,
of injuries to inmates, and of disciplinary proceedings may be a
productive source of proof of a personal safety claim.

However,

one must not simply rest on the jail's records in proving such a
claim. The jail's records should be the SUbject of commentary by
an expert witness who will be able to say whether the level of
violence shown by the records is more or less than it should be
under appropriate safeguard's . and what the causes and remedies of
excessive violence are in the particular jail.

One should also

be

well

aware

maintained,

that
are

jail

records,

unlikely

to

no

reflect

assaultive behavior because of
inmates to

matter

the

the

fear

inform on each other.11.Y

how
full
or

they

incidence

are
of

unwillingness of

Often,

jail officials

themselves will acknowledge that many assaults are never

273/ Ramos v. Lamm, note 271 above, at l4l~ Palmiqiano v.
Garrahy, note 271 above.

l1!I

See Grubbs v. Bradley; 552 P.Supp. 1052, 1078-81 (M.D. Tenn.
1982) for an extensive discussion of the ·inmate code w and
inadequacy of institutional records to establish the level of
violence. See also Ramos v. Lamm, note 271 above, at 141.

-140-

reported; one official at a large urban jail recently estimated
that no more than 20 percent of assaults resulted in any written
record.
This point is of the utmost importance if -- as is often the
case -- you are litigating personal safety issues in connection
with

overcrowding.

professionals

that

It

is

crowding

a

truism

increases

the

among
risk

corrections
of

assault.

However, in Rhodes v. Chapman, the Supreme court emphasized in
reversing the lower court's finding of unconsti tutionali ty that
the demonstrated increase in violence was ·only in proportion to
the increase in population •• 275/ Thus, the risk of assault for
each prisoner was not increased.

To

avoid a similar finding (if

you do not obtain an admission), you should be prepared either to
show from jail records that assaults bave increased at a rate
disproportionate to the increase in population, or to argue that
the jail records do not accurately reflect the increase which
must

exist

based

on

your

expert's

relationship of crowding and violence.

testimony

about

the

You should also argue

that the more crowded and chaotic the jail is, the more likely it
is that assaults will go unnoticed or unrecorded by overworked
employees. 276 /

275/ 452 U.S. 337, 373 (1981). In Rhodes, unlike Grubbs v.
Bradley, the prison's records were uncontroverted and were
found by the district court to be credible. Id. at 349 n.1S.
276/ See Fischer v. Winter, 564 F.Supp. 281, 291-2 n.10 (N.D.
Calif. 1983).

-141-

5.

Access to Courts.

Prisoners have a right of access to

the courts which may be satisfied either by access to an adequate
law library or by adequate assistance from persons with legal
training~

to

state

and

This requirement extends to local jails as well as
federal

prisons,

although

permitted to have small libraries~

small

jails

may

be

In jail cases, where most

inmates are pre-trial detainees, defendants will often claim that
the provision of criminal defense counsel sufficiently protects
the right of court access.

As to criminal defense,

correct; even if an inmate chooses to proceed

~~,

that is
the offer

of a lawyer's assistance obviates the necessity to provide access
to a law library.l1!l

However, the right of court access also

encompasses habeas corpus proceedings, civil rights actions, and
other

matters

counsel..llil
and

prove

the

in

which

there

is

no

right

to

appointed

In a jail case, couns~l should carefully explore
limitations

in

services

of

the

local

public

defender or legal aid office or of any other source of legal

277/ Bounds v. Smith, 430 U.S. 817, 827 (1977).
278/ Leeds v. watson, 630 F.2d 674 (9th Cir. 1981); Parnell v.
Waldrep, 511 F.Supp. 764 (W.O. N.C. 1981); Fluhr v. Roberts,
460 F.Supp. 536 (W.O. Ky. 1978). But see Williams v. Leeke,
584 F.2d 1336, 1340 (4th Cir. 1978) (suggests some jails may
be exempt from law library requirement).
279/ United States v. Garza, 664 F.2d 135 (7th Cir. 1981) cert.
den. 102 S.Ct. 1620 (1982); Almond v. navis, 639 F.2d 1086
T4th Cir. 1981).
280/ Bounds v. Smith, note 277 above, at 827: Wolff v. MCDonnell,
418 U.S. 539, 579 (1974): Johnson v. Avery, 393 U.S. 483, 489
(1969) •

-142-

assistance available to pr isoners.1.!!l
true

even

if

there

is

a

legal

This prescr iption holds

services . agency

which

is

specifically charged with providing civil legal services to jail
inmates: either by contract or because of large caseloads, these
agencies may exclude

important categories of claims,

such as

damage cases, from consideration.
In injunctive challenges to the inadequacy of court access,
courts are usually satisfied with proof that the existing means
of access do not meet the needs of all prisoners~

It should

not be necessary to present evidence that particular inmates have
lost or been unable to file meritorious legal claims.

However,

counsel should at least present testimony by inmat es who have
sought or have needed legal services or information that were not
available.

otherwise, the court may find that no actual need for

court access has been shown on the record.
Even i f the jail has a law library, it lIay not be adequate.
Counsel

should

look

closely at

the

arrangements

for

access to the library and for using it once one is there.

gaining
If the

281/ Spates v. Manson, 644 P.2d 80, 84 (2d Cir. 1981): Leeds v.
Watson, note 278 above: Hooks v. wainwright, 578 F.2d 1102
(5th Cir. 1978): Carter v. Mandel, 573 F.2d 172 (4th Cir.
1978). But see Kelsey v. State of Minnesota, 622· F.2d 956
(8th cir. 1980) (program that excluded -lawsuits against
public agencies or public officials to change social or
public policy· adequate).
282/ Williams v. Leeke, note 278 above: Hooks v. wainwright, 578
F.2d 1102 (5th Cir. 1978) ,on remand, 536 F.Supp. 1330 (M.D.
Fla. 1982): Nadeau v. HelgeiiiOe, 561 P.2d 411, 418 (1st Cir.
19·77): Carter v. Mandel, note 281 above: Cruz v. Hauck, 627
F.2d 7io (5th cir. 1980): Battle v. Anderson, 614 F.2d 251,
254-56 (10th Cir. 1980).
.

-143-

hours are limited,1!1/ if tbere is no actual physical access to
the library,284/ or if cumbersome or harassinq procedures are
required in order to use the library~ the Constitution may be
violated.

It may also be possible to show that most inmates are

not capable of effectively usinq

a

law library without some

assistance by trained personnelr several courts have required
some trained ·assistance· in addition to the mere provision of a
library.l!!l

283/ Cruz v. Hauck, 627 F.2d 710, 720 (5th eire 1978): Walker v.
Johnson, 544 P.Supp. 345 (Z.D. Mich. 1982): Ramos v. Lamm,
485 F.Supp. 122, 166 (D. Colo. 1979), aff'd in part~ rev'd
in pari' 639 F.2d 559 (lOth eire 1980), cert. den., 101 S.Ct.
Tr59 ( 981).
.
284/ Leeds v. watson, note 288 above: Williams v. Leeke, note 278
above: united States ex reI. Wolfish v. Levi, 439 F.Supp.
114, 129 (S.D. N.Y. 1977), aH'd 2:!!. pertlnent part ~~.
Wolfish v. Levi, 573 F.2d 118 (2d eire 1978), rev'd on other
grds. sub nom. Bell V. Wolfish, 441 U.S. 520 "(1979) :~ooks·v.
wainwri9ht:'536 F.Supp. 1330 (M.D. PIa. 1982).
285/ Ruiz v. Estelle, 679 P.2d 1115, 1154 (5th eire 1982).
286/ Cruz v. Hauck, 627 F.2d 710,721 (5th eire 1980): Battle v.
Anderson, 614 P.2d 251 (10th eire 1980): Hooks v. Wainwright,
536 F.Supp. 1330 (M.D. Fla. 1982): Glover V. Johnson, 478
F.Supp. 1075 (E.D. Mich. 1979).

-144-

SECTION X.

ENFORCING AND DEFENDING A JUDGEMENT.

Most lawsuits end with a judgement.

In jail litigation, the

judgement often seems to be only the beginning.

Jail officials

are frequently unable or unwilling to comply even with judgements
they have consented

to,

requiring enforcement motions by the

p1aintiffs,1!1l and second

thoughts or new developments often

lead to motions to vacate or modify judgements. 288 /

Translating

a paper victory in litigation into permanent benefits for the
plaintiffs may be the greatest challenge in a jail conditions
case.

•

Writing an Enforceable Judgement.

A.

Effective poet-judgement work
judgement.

depends

on what

is

in

the

Plaintiffs' counsel will have more or less to say

about the terms of a judgement depending on defendants' style of
negotiations and the judge's practices in writing or settling
l i tigated

that

judgements.

should

be

kept

However, there are certain basic ideas
in mind

in negotiating

a

settlement or

drafting a proposed judgement.

287/ See, e.g., West v. Lamb, 497 F.Supp. 989 (D. Nev. 1980):
Padgett v. Stein, 406 F.Supp. 287 (M.D. Pa. 1975): Jones v.
Wittenberg, 323 F.Supp. 93 (N.D. ah. 1971), supplemented, 330
F.Supp. 707 (N.D. ah. 1971), aff'd.2!l. other grds. ~E.2!!!..
Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), motion to
vac. den., 357 F.Supp. 696 (N.D. ah. 1973), defendants tlE!ld
in contempt, 73 F.R.D. 82 (N.D. Oh. 1976), further relief
ordered, 440 F.Supp. 60 (N.D. Oh. 1977), further relief
ordered, 509 F.Supp. 653 (N.D. Oh. 1980).

1!!1

See, e.g., Benjamin v. Malcolm, 564 F.Supp. 668 (S.D. N.Y.
1983): Benjamin v. Malcolm, 528 F.Supp. 925 (S.D. N.Y. 1981):
McGoff v. Rapone, 78 F.R.D. 8 (E.D. Pa. 1978).

-145-

Spell out the defendllnts' obligations explicitly.
Avoid

vague

words

and

terms

efforts" wherever possible.

such

as

"reasonable"

or

"best

A judgement that contains such terms

is subject to reinterpretation by the defendants for their own
ends and may be too unclear to be the subject of a contempt
finding..ill!
Some judges have an aversion to judgements that they think
are "too detailed" or that they think go beyond constitutional
requirements,

even

if

the

parties

agree

to

them~

The

underlying concern appears to be that imposing detailed rules on
jail officials will drag the court into a morass of disputes
about what the judgement means.

If the judgement is a proposed

consent judgement, try to get the defendants to say that they
would rather have.an unambiguous set of rules so their staff will
always know what their obligations are, and point out that the
more specific the judgement is the less likely the court will be
required to clarify or interpret it.

Suggest to the court that

if the defendants have agreed to particular terms, to reject the
settlement

in

favor

of

a

different

or

less

detailed

order

formulated by the court after litigation would be contrary to the
spirit of the Bell v. Wolfish "deference" principle.
I.A.,

IX.C.l.

for

further discussion of deference.)

(See §S
Remember

(and remind the judge) that every term of a judgement need not be

2B9/ See Polsum v. Blum, 554 F.Supp. B2B (S.D. N.Y. 19B2) 1
Rinehart v. Brewer, 4B3 F.Supp. 165, 170-71 (S.D. Ia. 1980)
Jordan v. Arnold, 472 F.Supp. 265, 2B9 (M.D. Pa. 1979).
290/ See Morales v. Turman, 562 F.2d 993, 999 (5th Cir. 1977).

1

-146-

independently

compelled

judgement

a

as

whole

by

the

should

COnstitution:
be

designed

to

rather,

the

remedy

the

constitutional violation~
Often, jail practices violate not only the Constitution but
also state or local statutes, regulations or standards.

Tracking

the language of a state or local rule in the judgement has the
advantage of giving the defendants a single standard to obey and
thus avoiding a possible source of confusion.

A federal judge

may also be more willing to enter a detailed judgement when it
embodies pre-ezisting state or local policy~

When the case

is litigated to judgement rather than settled, adopting the terms
of state or local law is arguably more consistent with the

,
291/ Hutto v. Finne~, 434 "O.S. 678,685-88 (1978): Ruiz v.
Estelie, 679 P. d 1115", 1155 (5th Cir. 1982). One court has
observed that ·an equitable decree properly may prohibit more
than the statute on which the decree is based prohibits, in
order more completely to restore the status quo ante, or more
securely to prevent a repetition of the alleged violation by
making the decree easy to administer •••• • Larsen v. Sielaff,
702 F.2d 116, 118 (7th Cir. 1982) cert. den. 104 S.Ct. 372
(1983) (dictum). But see Washington v. ~well, 700 F.2d 570
(9th Cir. 1983) (consent judgement not enforced where terms
not required by Constitution and where Attorney General
lacked power under state law to bind state to terms). Some
recent caselaw has suggested that litigated judgements should
be carefully limited to assure that they do not do more than
the law requires, and that the district court should approach
the remedial process in stages in order to assess precisely
how much relief is necessary to remedy the constitutional
violation. Ruiz v. Estelle, 679 F.2d 1115, 1144-46 (5th Cir.
1982): Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).
292/ See padgett v. Stein, 406 F.Supp. 287, 292 (M.D. Pa. 1975).

-147-

Ashwander doctrine 293/ of avoiding unnecessary constitutional
adjudication than is entering a wholly court-written judgement.
For

that

reason,

borrowing

such

existing

provisions

may

be

compliance

on

the

particularly attractive to a federal judge.
Place
defendants.

the

burden

Defendants may

b~

of

showing

required to keep records, to make

them available to the court or plaintiffs' counsel, to submit
reports, or otherwise to demonstrate their compliance with a
judgement.294/
Although counsel cannot rely exclusively on
defendants'
records,
these will often
reveal compliance
problems.

MOreover. the necessity of keeping records or making

reports _y cause the defendants to approach their substantive
tasks

in a \IlOre organized fashion and may reveal correctable

administrative or procedural defects in their operations.
Ensure counsel's. access to the jail for assessing
compliance.

Many failures of compliance will not be evident from

defendants' records.
jail are

necessary,

Physical access to and inspection . of the
especially where physical renovations or

delivery of medical, psychiatric or other services are

293/ See Ashwander v. Tennessee Valley Authority,. 297 u.S. 288
(1936).
294/ West v. Lamb, 497 F.SUpp. 989, 996, 1006 (D. Nev. 1980)1
Davis v. Watkins, 384 F.SuPp. 1196, 1203-05 (N.D. Ohio 1974) 1
Alberti v. Sheriff of Harris county, 406 F.Supp. 649, 678-82
(S.D. Tex. 1975) 1 Valvano v. McGrath, 325 F.Supp. 408, 411-12
(E.D. N.Y. 1971)1 Cronin v. Holt, 81-8309-CIV-EPS (S.D. Fla.,
September 25, 1982) (Stipulation and Order) 1 Jensen v. County
of Lake, H-74-230 (N.D. Ind., June 26, 1983) (Judgment and
order).

-148-

concerned.

Provisions can be wr i tten permitting counsel an'd

experts to tour part or all of the jail at stated intervals or
upon request. 295 /
Ensure

continuing

inmate

contact

and

continuing

publicization of the judgement.

Counsel must maintain contact

with

assess

the

inmates

in

judgement is entered,

order

to

compliance.

After

a

inmates will generally no longer receive

notice of the lawsuit's existence and counsel's identity, and
they

may

soon

be

forgotten,

especially

institution like most local jails.

in

a

high-turnover

There are several means of

avoiding this, any and all of which can be provided for in a
judgement:
a.
the

judgement's

Require that new inmates be notified of
terms

and

counsel's

identity

in

some

fashion.l!Y

295/ See New York State Association for Retarded Children v.
Carey, 706 F.2d 956, 960-61 (2d Cir. 1982) (post-judgment
tours by plaintiffs' counsel and expert witnesses approved as
enforcement measure)J Cronin v. Holt, note 294 above: Jensen
v. COunty of Lake, note 294 above (establishes -community
committee- to keep public advised of living conditions at
jail: access to jail, staff and prisoners as well as jail
records required): O'Bryan v, County of Saginaw, Mich., 446
P.Supp. 436, 446 (E.D. Mich. 1978) (weekly inspections by
plaintiffs' counsel): Martinez v. Board of County
Commissioners, 75-M-1260, Consent Judgment at 3 (D. Colo.,
December 11, 1975) (plaintiffs' counsel permitted to tour
without notice): Jackson v. Hendrick, No. 2437, Final Decree
I at 13 (Pa. Ct. of Common Pleas, November 20, 1976) (counsel
may inspect on one day's notice and consult with any inmate
or group of inmates).
296/ See Shakman v. Democratic Organization of Cook County, 533
P.2d 344, 352 (7th Cir. 1976) (judgement provided for notice
to all employees: notices still posted three years later),

-149-

b.

Permit counsel to meet with inmates during

the jail tours discussed above.
c.

Permit counsel to meet regularly with an

inmate. councilor other representative body if one exists.
Get

outside

assessing compliance.

assistance

in

monitoring

and

The use of monitors, special masters, and

other impartial third parties is well established in jan and
prison litigation.llil
to

remove

enforcement

some
from

course, is that

of

The great advantage of these devices is

the

long-term

plaintiffs"
SOlie

burden

counsel.

The

monitoring

and

disadvantage,

of

influence and control over enforcement is'

shifted away from plaintiffs' counsel.
resources are

of

limited and

However,

the monitoring task

if counsel's
is large,

the

trade-off may be fully justified.
The value of a monitoring arrangement depends absolutely on
who is chosen for the job.
magistrates,

attorneys,

courts have approved or apPointed

academics,

corrections

professionals,

medical and other experts, and agencies of government to assess
compliance, depending on the nature of the task and the expertise

297/ See,. e.g., Miller v. carson, 563 F.2d 741, 752-53 (5th Cir.
1977); Lightfoot v. Walker, 486 F.Supp. 504, 528-29 (S.D.
Ill. 1980); Finney v. Mabry, 458 F.Supp. 720, 724 (B.D. Ark.
1978); OWens-Hl v. Robinson, 457 F.Supp. 984, 988 (W.O. Pa.
1978); parmigiano v. Garrafiy, 443 F.Supp. 956, 989 (D. R.I.
1977). See also Note, "Mastering- Intervention in Prisons,
88 Yale L.J. 1062 (1979); V.M. Nathan, The Use of Masters in
Institutional Reform Litigation, 10 Toledo L.Rev. 419, 427-28
(1979) •

-150required~

Counsel should, carefully consider the exact nature

of the monitor in9 task, to the extent it can be predicted, in
proposing or

selecting a monitor.

Whether

the

task will be

primarily fact-finding and reporting, negotiating and consulting
with

jail officials,

or

advising

the

court and

the

parties

concerning remedial modifications or improvements, and whether
the

activities

expertise,

will

to

be monitored
be

major

Try

to 11mi t

involve specialized

considerations

technical

influencing

this

decision.

options.

the defendants I

post-judgement

You shoul.d assU1lle frolll the beginning that defendants

will be unable or unwilling to comply with any judgement and will
try to get out of it whenever its terms become inconvenient.
(Plaintiffs I

strategy

in responding

to attempts to vacate or

298/ Campbell v. Cauthron, 623 F.2d 503, 508-09 (8th Cir. 1980)
(dietitian): Miller v. Carson, 563 F.2d 7411 752-54 (5th Cir.
1977) (magistrate): Powell v. Ward, 540 F.Supp. 515 (S.D.
N.Y. 1982) (attorney); Milburn v. Coughlin, 79 Civ. 5077
(RJW), Stipulation for Entry of Final Judgment (S.D. N.Y.,
Aug. 20,1982) (social medicine department of hospital): Union
County Jail Inmates v. Scanlon, 537 F.Supp. 993, 998 (D. N.J.
1982), ,rev'd ,2!l. ,other grds.sub!!2!!!.. Union County Jail Imates
v. Di Buono, 713 F.2d 984 (3d""Cir. 1983) (retired state court
judge): OWens-El v. Robinson, 457 F.Supp. 984, 985 (W.O. Pa.
1978) (former warden and penology expert): Palmigiano v.
Garrahy, 448 F.Supp. 659, 662 (D. R.I. 1978) (corrections
expert) Goldsby v. Carnes, 429 F.Supp. 370, 381 (W.O. Mo.
1977) (Community Relations Service of U.S. Justice
Department); Negron v. Ward,)4 Civ. 1480, Order (,S.D. N.Y.,
July 12, 1976) (psychiatrist): . Lasky v. Quinlan, 419 F.Supp.
799,808 (S.D. N.Y. 1976), vae. as moot, 558 F.2d 1133 (2d
Cir. 1977) (director of county board of health): Taylor v.
Perini, 413 F.Supp. 189, 198 (N.D. Ohio 1976) (law
professor): Valvano v. McGrath, 325 F.Supp. 408, 411, 12
(E.D. N.Y. 1971) (City agency with supervisory power over
jails) •

-151-

modify the decree is discussed in more detail in SX.B. below.)
Counsel should try to anticipate the most probable post-judgement
problems and draft language specifically addressinq them.

For

example, one consent decree contained terms estopping defendants
from relyinq on economia considerations in seeking to escape the
decree's

obligations~

If

a

decree

contains

an

-escape

clause- for emerqency situations. counsel might attempt to define
or limit the term -emergency, - e.q., by stating in the decree
that shortaqes of personnel or overcrowding do not constitute an
ellerqency. 300/

Counsel should also seek to avoid the situation

in which detendadts attempt to vacate the decree and litigate the
IIerits

~

novo at a time when plaintiffs· proof is stale and

there is an

iapendin~

crisia of jail population or manageability

which places political pressure on the court.
this proble1l -

One approach to

one which will usually be strongly resisted by

defendants -- is to demand concessions of unconstitutionality, in
the decree. 30l /

While none of these provisions will be immune

from subsequent moditication, they should serve to increase the
defendants' burden in seekinq to avoid the decree's terms and
should also refute any argument.that the problems the provisions
address are new and unforeseen.

299/ West v. Lamb, 491 P".Supp. 989, 996 (D. Nev. 1980).
300/ See Costello v. Wainwright, 489 F.Supp. 1100, 1107 (M.D.
Fla. 1980) (limited definition of emergency in consent
decree. )
301/ See Benjamin v. Malcolm, 564 F.Supp. 668, 670-71 (S.D. N.Y.
1983) •

B.

Enforcing an Injunction.

If

defendants

do

not

comply

with

a

judgement,

one

must

usually go to court to make them. · Sometimes negotiations or the
threat of an enforcement motion can resolve minor and technical
compliance

problems.

Noncompliance

in

politically

sensitive

areas like population reduction or complicated and expensive ones
like

physical

renovation

is

rarely

corrected

without

court

intervention.
A federal court has the inherent power to enforce its orders
through civil contempt,l.2Y it has. power under statute, court
rule, and traditional equity doctrine e303 / to make further orders
necessary to effectaate its judgements.
permits

the

imposition of coercive relief including fines or

incarceration.1.Q.!/
grant

further

purpose~

A finding of contempt

Even without a contellPt finding, courts may

relief to effectuate the original

injunction's

Such relief may include new inspection, record-

302/ United States v. United Mine Workers, 330 u.s. 258, 303-04
(1947) McComb v. Jacksonville paper Corp., 336 U.S. 187
(1949): Powell v. ward, 487 F.Supp. 917 (S.D. N.Y. 1980),
aff'd as mod., 643 F.2d 924 (2d Cir. 191), cert. den., 454
U.S. 8:ri (1982): Miller v. carson, 550 F.Supp. 54~M.D. Fla.
1982): . Palmigiano v. Garrahy, 448 P.Supp. 659 (D. R.I. 1978).
303/ 28 U.S.C. 51651 (All Writs Act): Rule 60(b), P.R.C.P.:
united States v. united Shoe Machinery Corp., 391 U.S. 244,

248-49 (1968).

304/ Newman v. State of Alabama, 683 P.2d 1312, 1318 (11th Cir.
1982) Mobile County Jail Inmates v. Purvis, 551 P.Supp. 92
(S.D. Ala. 1982): Miller v. Carson, 550 F.Supp. 543 (M.D.
Fla. 1982).
305/ United States v. United Shoe Machinery Corp., note 303
above, at 248-49: but see Newman v. State of Alabama, id. at
1319·-20 (further injunctive relief not available until
coercive sanctions of contempt found inadequate).

-153keeping or reporting requirements~ appointment of a master or
monitor~

or

injunction.lQ.Y

even

substantive

modifications

of

the

prior

Such modifications need not be predicated on a

finding of -grievous wronCJ-~309/ plaintiffs need only show that
the existing order has not accomplished its purpose~

If the

modifications sought .are sweeping,. however, the proceeding may
amount to

a.~

novo consideration of the constitutionality of

conditions at the time of the

motion~

Enforcement of judgements in complex jail conditions cases is
frequently frustrating and difficult.
reluctant to hold jail officials in

Many judges are extremely

contempt~

many are frightened

of the politically explosive issue of jail population, others
become worn down by the sheer ineptitude and sloth demonstrated
by many jail officials.

At best. defendants are likely to be

giveft many e.tensions of time and opportunities to comply before

306/ Powell v. Ward, note 302 above, Todaro v. Ward, 74 Civ. 4581
(RJW), (S.D. N.Y., November 2l. 1979) (Order).
.
307/ Powell v. Ward,. note 302 above, Jones v. Wittenberg, 73
F.R.D. 82 (N.D. Ohio 1982)1 Jensen v. County of Lake, note
304 above.
308/ Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278,
1297 (W.O. Pa. 1983) (overcrowding limited based on finding
that it impeded implementation of prior conditions orders) ~
553 F.Supp. 1365, 1386-87 (N.D. Calif.
rocedural safeguards added where abuses in
use of segregation persisted) •
309/ See text accompanying notes 319-324 below.
310/ United States v. United Shoe Machinery Co., note 303 above,
at 248-49, King-Seeley Thermos Co. v. Aladdin Industries,
Inc., 418 F.2d 31,35 (2d Cir~ 1969); English v. Cunningham,
269 F.2d 517, 523 (D.C. Cir. 1959).
311/ Fischer v. Winter, 564 F.Supp. 281, 299 (N.D. Calif. 1983).

-154-

the court takes any decisive action.

Por this reason, it makes

little sense to delay enforcement motions if compliance is not
forthcoming

immediately

or

by

a

court-set

deadline.

It

is

generally wishful thinking to believe that the defendants will
shape up i f plaintiff's counsel goes easy for a while.

The

sooner the court learns of the noncompliance and begins to hear
the

defendants'

explanations,

sequence

the

sooner

of

its

lame

excuses

patience will

be

and

changing

exhausted

and

meaningful enforcement will commence.
Plaintiffs' counsel should keep in mind that in enforcement
situations it ig often necessary to do defendants' work as well
as their own.
population
release ..llY

of

Por example, there are numerous ways to reduce a
pre-trial

detainees

Defendants can

short

usually be

of

relied

court-ordered
upon

not

to

implement or even canvass these alternatives unless forced to do

312/ See Benjamin v. Malcolm, note 301 above, 688-911 West v. Lamb,
note 301 abOve, at 1006, -i008-13, Alberti v. Sheriff of Harris
County, note 29'4 above:- Cronin v~· Holt, note 294 abovel Cherco
v. County of Sonoma, C-80-0334-SAW (N.D. Calif., September 27,
1982) (consent decree required county to reduce population
through citation program and to improve pretrial release efforts
through increase in staffing and resources). Litigators are
advised to consult with their experts and with agencies and
organizations which provide information and materials on
alternatives to incarceration, such as the National Jail
Project. Another valuable source of assistance is the Pretrial
Services Resource Center, 918 P Street N.W., Washington, D.C.
20004-1482, (202) 638-3080, a non-profit federally-funded agency
which provides technical analysis and assistance materials. The
Resource Center also contracts independently and through the
National Institute of Corrections (NIC) Jail Center to assess
the effects of pre-trial practices on jail populations and
recommends appropriate remedial alternatives. NIC, an agency of
the u.S. Department of Justice, provides assistance to local
correctional agencies through the Jail Center, 1790 30th Street,
Suite 140, Boulder, CO 80301, (303) 497-6700.

-155-

so~

monitor

Counsel should also consider the advantages of having a
or

master

with

relevant

experience

who

can

canvass

remedial alternatives and make recommendations to the court. As a
practical

matter,

solutions

to

it

is

defendants'

plaintiffs'
and

the

burden

courts'

to

bring

attention,

these

both

to

assist the defendants in meeting their obligations and to show
the court that noncompliance is in fact caused by defendants'
nonfeasance and not inezorable fate.

In this area and in others,

the assistance of experts may be as important after judgement as
before judgement.
The difficult question

is what

the court

is to do if a

legislature or other funding source Simply refuses to provide the
required funds after the court rules against them.

The federal

courts have not agreed as to whether and how they can directly

313/ See, e.g., Mobile County Jail Inmates v. Purvis, 551 F.Supp.
92,96 (S.D. Ala. 1982); Anderson v. Redman, 429 F.Supp.
1105, 1123 (0. Del. 1977) (notlng prison officials' inability
to act ·unless and until supp1ied with the protective succor
and warmth of a federal court order"). See also Special
Project, "The Remedial Process in Institutional Reform
Litigation," 78 Columbia L. Rev. 784, 795-96 (1978).

-156-

order expenditures of' funds by state and local governments,1!Y
and have preferred

to

avoid

the question where possible. 3 l 5 /

However, there is little doubt that if the defendants fail to
make the required expenditures or improvements, the coart can

314/ Compare Griffin v. School Board of Prince Edward count r. 377
U.S. 218,
lstrlct court cou_ ~equ.re ccu~t
officials to levy tazes to reopen schools): Jones v. Diamond,
519 F.2d 1090, 1101 n.20 (5th Cir. 1975) (county supervisors
proper defeDdants -by virtue of their statutory duties and
their control over the budget-I: Inmates of Suffolk county
Jail v. Eisenstadt, 518 P.2d· 1241, 1242 (1st Cir. 1975)
(contInued funding of Bail Appeal Project required): united
States v. Missouri, 515 F.2d 1365, 1372-73 (8th Cir. 1975) ,
cert. den., 423 U.S. 957 (1975) (district court could direct
school~x levy): Jones v. Metzger, 456 P.2d 854,856 (6th
Cir. 1972) (local government funds ordered redirected to jail
improvements):
351 F.Supp. 549, 552-53
(E.D. La. 1972)
Ombudsman- required) with
Smith
Sullivan, 553 P.2d 373, 380-381 (5th Cir. 1977)
(order to raise guards' pay rever3ed): Rhem v. Malcolm, 507
P .2d 33, 341 (2d Cir. 1974) (district court should avoid
-difficult position of trying to enforce a direct order to
the City to raise and allocate large sums of money-): Padgett
v. Stein, 406 P.Supp. 287, 303 (M.D. Pa. 1975) (court lacks
power to order public funds expended): Hamilton v. Love, 328
P.Supp. 1182, 1194 (E.D. Ark. 1971) (same). See also Cabrera
v. Municipality of Bayamon, 622 F.2d 4 (1st Cir. 1980)
(contempt fines may be imposed and the funds used to
implement remedial measures): Palmigiano v. Garrahr, 448
P.Supp. 659 (D. R.I. 1978) (same): Mobil County Jall Inmates
v. Purvis, Civ. Action '76-4l6P, Memorandum Order (S.D. Ala.
December, 1983) (contempt fine used to create bail fund to
help relieve jail overcrowding).

v.

315/ See welsch v. Likins, 550 F.2d 1122, 1131-32 (8th Cir.
1977): Palmigiano v. Garrahy, 599 F.2d 17, 20-21 (1st Cir.
1979) •

-157-

order the institution closed or inmates released~

Generally,

in these cases push does not come to shove, and local governments
eventually shoulder their

legal obligations .317/

(See §XI.K.

below for comment on enforcement of attorneys' fees awards.)
C.

Modification of Judgements.

Increasingly, jail and prison officials who find themselves
inconvenienced

by or

unable

to comply with court orders are

seeking to have them vacated or modified.

In federal court, such

relief is sought under the authority of the rule providing inter
alia, when "a prior judgement upon which [the challenged judgement]
is based has been reversed or otherwise vacated, or it is no

316/ Duran v. Elrod, 713 P.2d 2'2 .. 2"-98 (7th Cir. 1'83)~ Dimarzo
v. Cahill, 575 P.2d lS~ 1'-20 (1st Cir. 1978): Inmates of
Suffolk County Jail v. Kearney, 573 P.2d 98, 101 (1st Cir.
1978): Rhem v. Malcolm, 507 P.2d 333, 340-41 (2d Cir. 1974)~
Parnell v. Waldrep, 511 P.Supp. 765 (W.O. N.C. 1981): Barnes v.
Government of Virgin Islands, 415 P.Supp. 1218, 1227, 1230 (D.
V.I. 1976). See also Li9htfoot v. Walker, 486 F.Supp. 504,524
(S.D. Ill. 1980) (if med~cal services not enhanced, prison
population must be reduced to level commensurate with existing
services). One court, however r has held that an injunction
regarding conditions mU9t be enforced at least initially through
contempt and not by a release order. Newman v. State of
Alabama, 683 F.2d 1312 (11th Cir. 1982) cert. den. 103 S.Ct.
1312 (1983). On remand, the district court en~ed both a
judgement of contempt and a new release order to take effect
some months later. Newman v. Alabama
P.Supp.
, Civ.
Action • 350l-N, Order and Judgement arur-Memorandum Opinion
(M.D. AI. 1983), appeal pending in 11th Circuit. See also Mobil
County Jail Inmates v. Purvis, ~ote 314 above (bail fund created
by court order). See generally Nagel, Separation of Powers and
the Scope of Pederal Equitable Remedies, 30 Stan. L. Rev. 661,
721 (1978): Comment, "Enforcement of Judicial Pinancial
Orders: constitutional Rights in Search of a Remedy:" 59 Geo.
L.J. 393, 418-19 (1970).

1!11 Harris and Spiller, Resource Center on Correctional Law' Legal
Services, Commission on Correctional Pacilities and Services,
American Bar ASSOCiation, After Decision:
1m lementation of
Judicial Decrees in Correct~ona Sett~ngs,
-2
9) •

-158-

longer

equitable

that

the

judgement

application;

or ••• any other reason
operation of the judgment.- 318 /
Traditional

doctrine

holds

should

have

prospective

justifying relief from the

that

when

defendants

seek

to

escape the terms of an injunction, - [nlothing less than a clear
showing of grievous wrong evoked by new and unforeseen conditions
should

lead

us

litigation.- 3l9 /

to

change

what

was

decided

after

years

of

This doctrine is applicable equally to consent

decrees and to litigated judgements.1lQ!

The -grievous wrong-

standard has been followed by lIany modern courts in jail and
pr ison

cases

declined,

and

in other

contexts.1W

often without explanation,

officials to the usual standard 322/

Other

to hold

courts

have

jail and prison

One federal circuit has

adhered to tbe -new and unforeseen conditions· requirement while-

318/ Rule 60(b) (5) and (6), P.R.C.P.
319/ united States v. Swift' Co., 286 O.S. 106, 119 (1932).
Plaintiffs seeking additional relief to effectuate the intent
of an injunction are governed by a less exacting standard.
See test accompanying note 310.
320/ Note 319 above, at 114.
321/ Duran v. Elrod, 713 F.2d 292, 296-97 (7th Cir. 1983);
Mayberry v. Maroney, 529 F.2d 332, 335 (3d Cir. 1976)
(-exceptional circumstances·); Humble Oil Refining Co. v.
American Oil Co., 405 F.2d 803, 813 (8th Cir. 1969), cert~
den., 395 U.S. 905 (1969) (-oppressive hardship·); Frazier v.
~d, 528 F.Supp. 80 (N.D. N.Y. 1981); Rhem v. Malcolm, 432
F.Supp. 769, 780 (S.D. N.Y. 1977).0
322/ Campbell v. McGruder, 554 P.Supp. 562 (D. D.C. 1982);
Thompson v. Enomoto, 542 F.Supp. 768 (N.D. Calif. 1982);
Merriweather v. Sherwood, 518 F.Supp. 355 (S.D. N.Y. 1981);
Imprisoned Citizens Union v. Shapp, 461 F.Supp. 522 (E.D. Pa.
1978); Gates v. Collier, 454 F.Supp. 579,582 (N.D. Miss.
1978) . 0

-159-

relaxing

the

"grievous wrong"

standard-. 1ll/

circui t

has

held

"grievous

inapplicable

in

that

complex

the

injunctive

Another

wrong"

cases

if

federal

standard
the

is

proposed

modification is not "in derogation of the primary objective of
the decree.,,324/

The courts are divided as to whether changes in

decisional law constitute a basis for modification 325,
)

In OPPOSing a motion to modifYr there are various approaches
to take, depending on the issue, the facts, and the nature of the
judgement.

Under the traditional modification standard, counsel

should emphasize defendants' failure to show new and unforeseen
circumstances and

their

failure

to show sufficiently serious

problems to justify disturbing the finality of judgements.1l!/
Sometimes these may be apparent

Oft

the face of the papers r and

counsel should attempt to have thet DIOtion dismissed without a

323/ Compare Nelson v. Collins, 700 F.2d 145 (4th Cir. 1983)
(modification prohibited without proven changes in
circumstances after entry of judgement) with Nelson v.
Collins, 659 F.2d 420 (4th Cir. 1981) ("review anew·
justified by cbanged conditions and Supreme Court decisions).
324/ New York State Association for Retarded Children v. Carey,
706 F.2d 956, 969 (2d Cir. 1983), cert. den., 104 S.Ct. 277
(1983). See Benjamin v. Malcolm, 564 F.Supp.668, 685-87
(S.D. N.Y. 1983) (modif1cat10n denied -where in conflict with
primary objective of decree).
325/ Compare Coalition of Black Leadership v. Ciana,.570P.2d 12,
16 (1st Cir. 1978) ~ Morris v. Travisono, 499 F.Supp. 149, 154
(D. R.I. 1980) Wallace Clark & Co., Inc. v. Acheson
Industries, Inc., 394 F.Supp. 393, 395 n.4 (S.D. N.Y.),
aff'd, 532 F.2d 846 (2d Cir.), cert. den., 425 U.S. 916
(1976) with Gomes v. Moran, 605 F.2d~(lst Cir. 1979) ~
Jordan v. School District of Erie, pa., 583 F.2d 91 (3d Cir.
1978)~ Nelson v. Collins, 659 F.2d 420 (4th Cir. 1981).
326/ See Frazier v. Ward, 528 F.Supp. 80 (N.D. N.Y. 1981)
(staffing problems not "oppressive hardship").

-160-

hearing.

If

discovery.
they are

there

is

to be a hear ing,

neposi tions are preferable for this purpose, since
likely

to expose defendants'

failure to think through their
sensitize

counsel should seek

them

to

these

lack of foresight

written discovery may

positionB~

problems

in

time

Further expert tours might be advisable.
modification

standard,

plaintiffs

and

to cover

them up.

Under a more relaxed

should

be

prepared

to

demonstrate that the constitutional violation persists, or that
it

would

recur

under

the

defendants'

proposal

(although

burden of proof should presumably be on the defendant).
testimony and consultation
circumstances.

If

the

is plainly called for

judgement

is

a

the

Expert

under these

mUlti-issue

consent

judgement and defendants seek relief as to one or a few issues,
counsel should argue that the judgement is a product of give and
take in which the parties lIay have liIacrificed benefits on sOlie
issues

to obtain benefits on others J

in that context,

it

is

unfair to permit a party to reopen only those issues as to which
it is dissatisfied.327/

An alternative position is

to request

that the court, if it considers defendants' motion on the merits,
also reopen issues on which the plaintiffs might be entitled to
more

relief~

if attorneys' fees have been settled, reopening the

327/ See United States v. Armour & Co., 402 U.S. 673, 681 (1971)
(· ••• in exchange for the saving of cost and elimination of
risk, the parties each give up something they might have won
had they proceeded with the litigation.·)

-161-

amount of fees.
motion.
the

Counsel's object should be to preserve the integrity of

judgement

burdensome
court.

They may be a fruitful subject for a counter-

for

by

making

the

any

defendants

reopening
and

more

of

it

more

inconvenient

risky

and

for

the

-162-

SECTION XI.

A'l"l'ORNEYS' FEES

Under the Civil Rights Attorney's Fees Awards Act of 1976,
codified

in 42 U.S.C.

S1988,

probably

be

efforts.

The Act provides that in federal civil rights actions,

compensated

to

successful S1983
some

extent

for

litigants will
their

time

and

-the court, in its discretion, may allow the prevailing party,
other than the united States, a reasonable attorney's fee as part
of

the

cost.-

Legislative

history

makes

it

clear

that

a

prevailing plaintiff -should ordinarily recover an attorney's fee
unless special circumstances would render an award unjust. -328/
Attorneys' fees motions are more hotly contested than the merits
in many cases.

There is consequently an enormous body of fees

caselaw in every federal jurisdiction.

This brief review is

328/ S.Rep. No. 94-1011, 94th Congo 2d Sess., 4 (1976), quoting
390 U.S. 400,
from
402 ri~~~~~~~~~~~~~r.H~~~~~~tl
•
eva
are
to fees only
if the plaintiffs'
was frivolous or in bad faith.
Hughes v. Rowe, 449 U.S. 5, 14 (1980); Hughes v. Repko" 578
F.2d 483 (3d Cir. 1978).
Substantial awards have been made in many jail cases,
with rates and amounts depending on the jurisdiction, when
the work was done, the length and complexity of the case, and
the credentials of the lawyers. See. e.g., Robinson v.
Moreland, 655 F.2d 887 (8th Cir. 1981) ($40-$60 an hour):
Campbell
Cauthron, 623 F.2d 503 (8th Cir. 1980) ($2,000
for prosecuting appeal); Miller v. Carson, 563 F.2d 741 (5th
Cir. 1977) ($45,792 at $30-$60 an hour); Miller v. Carson,
628 F.2d 346 (5th Cir. 1980) ($17,407.50 for further
proceedings): Martino v. Carey, 568 F.Supp. 848 (D. Or. 1983)
($125 and hour plus $75 an hour multiplier: total award of
$195,470): Forney v. Wolke, 483 F.Supp. 809 (E.D. Wis. 1980)
($17,047.90 at $50-$75 an hour); Adams v. Mathis, 458 F.Supp.
302 (M.D. AI. 1978) ($50 an hour) ; Penland v. Warren County
Jail, Civ-4-82-9 (E.D. Tenn., 1983) ($14,465 at $65 an hour);
Brown v. Barr, CA 78-3046 (S.D. W.Va., 1981) ($50 an hour in
court and $35 out-of-court time for further proceedings).

v.

-163-

intended only to suggest the courts' basic approaches to some of
the common fees issues jail 1itigators will face~
A.

Record Keeping.

From the beginning of the litigation,

counsel should be careful to document hours expended with the
same care that would be accorded billing records of a private
paying client.
lenient

with

Although
lawyers

who

the

courts

were

reconstructed

initially

the ,hours

somewhat
spent

on

litigation, rather than submitting contemporaneous records, those
days are now gone.

The lack of contemporaneous time records can

be expected to result in a reduction of fees, if not an outright
denial...llVstanda~dized

The records

for

each lawyer should be

kept on

forms, with a designation of all requested hours and

a brief description of the nature of the tasks performed during
these hours.
Prelrailinq Party StatuS'.

B.

likely

that

the

single

moat

In jail litigation p

recurrent

issue

will

is'

it

be

the

plaintiff's entitlement to a full fee award when the plaintiff
succeeds on one or more,
routinely

arises

in

but

totality

not all
of

issues.

conditions

The problem

jail

involving numerous issues and requests for relief.

litigation

The Supreme

329/ A comprehensive review of attorneys' fees issues may be
found in Larson, Federal court Awards of Attorneys' Fees,
(Harcourt Brace Jovanovich, Publishers, 1981) (hereinafter,
"Larson") •

llQ/ Hensley v. Eckerhart~ ___ U.S.

103 S.Ct. 1933, 1939
(1983). At least three Circuits have now announced a
requirement of contemporaneous records. New York State
Ass'n. for Retarded Children v. Carey, 711 F.2d 1136, 1147
(2d Cir. 1983) l Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983):
and National Ass'n. of Concerned Veterans v. Secretary of
Defense, 675 F.2d 1319, 1327 (D.C. Cir. ' 1982).
---J

-164-

court has addressed but has done little to clar ify this issue.
It does appear, however, that the court has adopted the view that
plaintiffs may be considered prevailing parties for purposes of
awarding

fees

if

they

succeed
litigation on the merits. 33l /

on

any

significant

issue

in

Nevertheless, achieving the position of prevailing party is
but the first hurdle.
trial

court

must

If plaintiffs are prevailing parties, the

determine

the

number

of

hours

reasonably

expended on the litigation under a reasonable hourly rate.

After

that determination, the trial court can adjust the amount awarded
in

either

direction.

tf

the

different claims for relief based
theories,

o~

presented

different facts

distinctly
~

1"9!!1

time on an unsuccessful, unrelated claim can not be

compensated.1lY
COIlllOR

lawsuit

As'a practical utter, this should not be a

problem for

successful couDsel in jail cases.

Supreme CO\lrt acknowledges,

to arise with great frequency.

Moreover,

the Supreme Court also recognized

difficult

to

the

the

in civil rights cases, completely

unrelated claims are unlikely

divide

As

hours

expended

on

that it would be
a

claim-by-claim

basis..lll/

331/ Hensley v. Eekerhart at 1939 and cases cited. But see Best
v. Boswell, 696 F. 2d 1282, 1289 (11th Cir. 1983) (plaintiff
who did not prevail on ·central issue· not entitled to fees).
332/ Bensley at 1940-41; . McCann v. Coughlin, 698 F.2d 112, 129-30
(2d Cir. 1982).
333/ Hensley at 1940. See Jones v. Diamond, 636 F.2d 1364, 1382
(5th Cir. 1981) (en bane) (acknowledges ·overlapping and
intertwined· issues).

-165-

Accordingly, the practical problem is the status of issues of
related but unsuccessful claims.

First, in its examination, the

supreme Court notes that -in some cases of exceptional success,an

enhanced

award

(multiplier)

may

be

given.

In

such

circumstances-, the award should not be reduced simply because the
plaintiff has not been successful on every claim.

When the

plaintiff has achieved only partial or limited success, then the
trial

court

must

examine

the

total

fee,

as

determined

by

multiplying the time reasonably expended by the hourly rate, and
determine whether that fee remains reasonable in light of the
results obtained. 334 /
C.

Interim Awards.

In injunctive actions. wben plaintiffs succeed in obtainingpreliminary relief on the issues. an application for fees is in
order~

However, inter!. procedural victories are not

334/ Rensley at 1940-41.

1l2I See, e.g., Fitzharris v. Wolf, 702 F.2d 836 (9th Cir. 1~83)

(fees awarded for obtaining temporary restraining order even
though case was later mooted)T Deerfield Medical Center v.
City of Deerfield Beach, 661 P.2d 328, 339 (5th Cir. 1981)
(fees to be awarded based on preliminary injunction) T
Coalition for Basic Needs v. King, 691 F.2d 591 (1st Cir.
1982): Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980):
Bucktown v. NCAA, 436 F.Supp. 1258 (D. Mass. 1977): Howard v.
Phelps, 443 F.Supp. 374 (E.D. La 1978) (interim award in jail
case). But see Planned Parenthood of Minn. v. Citizens for
community Action,5S8 F.2d 861, 871 (8th Cir. 1977)
(inequitabie to provide fees in initial stages of lawsuit) 1
Smith v. university of North Carolina, 632 P.2d 316 (4th Cir.
1980) (Title VII case where plaintiffs won reinstatement
through a preliminary injunction but ultimately lost case
after trial not prevailing party for attorney fee
purposes). See also Larson at 244-49: SII.B.3. above for
additional comments on interim fee motions.

-166-

compensable

until

and

unless

plaintiffs

establish

their

entitlement to some relief on the merits~
D.

Awards to Public .Interest Lawyers.

Most courts have held tbat the fact that plaintiffs' counsel
was provided by legal services lawyers or by a public interest
organization like the Legal Defense Pund or the American Civil
Liberties union was irrelevant to a fees award~
Appeals

recently

held

that

lawyers should not be higher
lawyers on

bourly

fees

for

One Court of

public

interest

than hourly fees for comparable

tbe lower end of billing rates

in the community,

unless tbe public interest lawyers can demonstrate overhead costs
justifying a higher hourly rate..ll!/

As we write, the Sup;:eme

Court

case

bas

question

granted
of

the

certiorari
proper

in

a

compensation

of

which

presents

Legal

Aid

the

Society

lawyers ..ill!
E.
When

Prevailing Under a Consent Decree.
the

plaintiffs

obtain

relief

through

a

settlement

agreement, they have prevailed and are entitled to a fee on the

336/ Hanrahan ·v. Hampton, 446 U.S. 754, 757 (1980).
337/ Ramos v. Lamm, 713 P.2d 546, 551 (lOth Cir. 1983) and cases
cited1 Larson at 99-113.
338/ New York Association for Retarded Children, Inc. v. Carey ..
711 P.2d 1136 (2d cir. 1983). This decision reflects
judicial concern over the high billing rates prevalent among
prestigious private lawyers in New York City. Counsel should
argue that its holding is limited to New York and similar
legal markets (if any).

ll!I

Stenson v. Blum, 512 P.Supp. 680 (S.D. N.Y. 1981), aff'd,
671 P.2d 493 (2d Cir. 1981), cert. grant., 103 S.Ct. 2426
(1983).

-167-

same

basis

Sometimes

as

if

defendants

the

case

refuse

had
to

been

settle

fully
on

the

litigated.l!Q/
merits

unless

plaintiffs waive fees, presenting a major ethical problem for
plaintiffs' counsel, who face a conflict between their clients'
best interests and their own.

A number of courts have suggested

that putting counsel in this position is unethical,34l/ but the
Supreme court has stated:
Although sensitive to the [ethical] concerns that
petitioner raises, we decline to rely on this
proferred basis. On considering whether to enter a
negotiated settlement, a defendant may have good
reason to delland to know his total Iiabili ty for
both damages and fees.
Although such situatfons
may
raise
difficult
ethical
issues
for
a
plaintiff's attorney, we are reluctant to hold that
no resolution is ever available to ethical
counsel.342/

Despite

this

language,

some

civil

rights

lawyers

take

the

position that there can be no discussionl!f bearing on fees while
negotiations
alternative

on

the

mer its

are

proceed ing •

A

possible

is to indicate to defendants the total number of

hours billed in the case and what the lawyers consider their

340/ Maher v. Gagne, 448 U.S. 122 (1980).
341/ Prandini v . National Tea Co., 557 F.2d 1015, 1021 (3rd Cir.
1977): Mendoza v. United States, 623 F.2d 1338, 1352-53 (9th
Cir. 1980): Obin v. District No.9 of the Int'l. Ass'n. of
Machinists, 651 F.2d 574, 582-83 (8th cir. 1981): Munoz v.
Ariz. State University, 80 P.R.D. 670, 671-72 (D. Ariz.
1978): Lyon v. State of Ariz., 80 P.R.D. 665, 669 (D. Ariz.
1978): Reqalado v. Johnson, 79 P~R.D. 447, 451 (N.D. Ill.
1978). See also Rule 1.46, Manual for Complex Litiqation, 62.
342/ white v. New Hampshire Dept. of Employment Security, 455
U.S. 445, 454, n.15 (1982).

-168-

normal billing rates to be.
informed

of

their

total

In that manner, the defendants are

potential liability,

but plaintiffs'

counsel is not in the position of trading fees for the rights of
the clients~

In one case where defendants adamantly refused

to negotiate without a waiver of fees,
defendants

to

enter

settlement

the court ordered the

negotiations

on

the

merits

separately from the question of the plaintiffs' entitlement to
attorneys fees.344/
F.

Prevailing as a Catalyst for Relief.

Sometimes plaintiffs'

claim to prevailing party status is

based neither on a favorable decision nor on a formal consent
judgement, but on a claim that the lawsuit acted as a catalyst to
produce the relief sought by plaintiffs.

In one widely cited

case the First Circuit beld that it is plaintiffs' burden to show
that the lawsuit is causally related to defendants' actions that
afforded

relief~

In another case the Fifth Circuit remanded

for the district court to determine whether the lawsuit was -a
substantial factor or a significant catalyst in motivating the

1!11

This has been the practice of staff attorneys with the
National Prison Project and has been proposed for all ACLU
attorneys in Barrett, ·Settlement of cases in Which Statutory
Attorneys Pees Are Authorized: An Ethical Dilemma,- 10 ACLU
Lawyer 5 (1983).

344/ Lisa F. v. Snider, 561 F.Supp. 724 (N.D. Ind. 1983). Cf.
Shadis v. Beal, 685F.-2d 824 (3rd Cir. 1982) (the court
voided a provision in legal services contract prohibiting
attorneys' fees awards as against public policy).
345/ Nadeau v. Helqemoe, 581 F.2d 275, 281 (1st Cir. 1978). See
also Mendoza v. Blum, 560 F.Supp. 284 (S.D. N.Y. 1983) (fees
awarded where lawsuit -encouraged· action by defendants) ;
Jordan v. Multnomah County, 694 F.2d 1156, 1158 (9th Cir.
1982) (jail case); Martino v. Carey, 568 F.Supp. 848, 853 (D.
Or. 1983) (jail case); Larson at 68-74.

-169defendants to end their [challenged] behavior. n346 /

While in an

Eighth Circuit case the court simply stated that plaintiffs were
probably catalysts and were therefore prevailing parties. 347 /
G.

Prevailing on Claims Other than 51983.

Sometimes the plaintiff prevails, but prevails on a non-§1983
claim.

Maine v Thiboutot 348/ and Maher v. Gagne, 349/ when

taken together, hold that attorney's fees are available in state
or federal court in §1983 actions based on a federal statutory
claim.

In addition,

the Supreme Court held in Thiboutot,

in

language that also appears to apply to pendent claims based on
state law, that fees may be awarded when the plaintiffs prevail
on a claim pendent to a substantial constitutional claim or one
in which a substantial constitutional and a pendent claim are
settled favorably to the plaintiffs without adjudication.
5II.A.2.

above

concerning

pendent

state

claims;)

(See

However,

plaintiffs may not be entitled to fees if they prevail on a non51983 claim but lose on the 51983 claim. 350 /

~ Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir. 1981).
In a withdrawn opinion, the court had held that the
chronological sequence of events had established the
.
lawsuit's catalytic effect. 620 F.2d 468 (5th Cir. 1980).

347/ Williams v. Miller, 620 F.2d 199 (8th Cir. 1980).
348/ 448 u.S. 165 (1980).
349/ 448 U.S. 122 (1980).
350/ Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980): Allen v.
Housin Authorit of Count of Chester, 563 F.Supp. 108,
E.D. Pa. 19 3). But see Milwe v. Cavuoto, 653 F.2d 80 (2d
Cir. 1981) (fees awarded where plaintiff recovered
compensatory damages on pendent claim but only nominal
damages under §1983).

-170-

Finally, for those lawsuits brought against federal jails, in
which S1988 is not applicable, fees may be awarded against the
federal govenment pursuant to the Equal Access to Justice AC~
if

the

United States cannot establish
substantially justified. 352 /
H.

that

its position was

Recovering Experts' Costs and Other Litigation Expenses.

In many

jail cases

the . plaintiffs

outlays for experts' fees and expenses.

will have

substantial

In Jones v. Diamond,353/

the Fifth Circuit held that successful plaintiffs could recover
these outlays as part of the attorney's fees award.
COurt

subsequently

dismissed

the

thellselves.1i!/

granted

case

after

certiorari
the

on

pa rties

this

The Supreme
issue,

settled

then
among

Other courts- have awarded expert fees in 51983

cases~355/ some have refused to do

so..llY

The lower federal

351/ 28 U.S.C. 524l2(d).

1i1!

For an example of an award under the act in jail litigation,
see Boudin v. Thomas, 554 F.Supp. 703 (S.D. N.Y. 1982).

353/ 636 F .2d 1364 (5th Cir. 1981) (en banc).
354/ Ledbetter v. Jones, 452 U.S. 959~ 4.53 U.S. 911: _
102 S.Ct. 27 (1981).

u.S.•_ ,

355/ See, e.g., Wuori v. Concannon, 551 F.Supp. 185 (D. Me. 1982)
(expert fees and costs recoverable as costs)~ Loewen v.
Turnipseed, 505 F.Supp. 512 (N.D. Miss. 1980) (consultant and
expert fees reimbursed under 51988).

122/ Miller v. City of Mission, Kansas, 516 F.Supp. 1333 (D. Ran.
1981) •

-171-

courts have taken various approaches as to what other out-ofpocket costs can be reimbursed and whether they are to be awarded
under 51983 or as ordinary costs. 357 /
I.

Recovering Fees Against the Governmental Unit.

In most cases, attorneys' fees will be assessed against the
relevant unit of government or against the defendants in their
official capacities, which amounts to the same thing.12!l

Some

cases have awarded fees against defendants in their individual
capacities when the acts for which liability was found could not
be said to represent official policy,lli/ ?sing the criteria of
Monell v. New Yor-k City Department of Social Services J!Q/

So

far. this distinction has been reserved for damage claims and not
injunctive cases.

357/ See, e.g.., Dowdell v. City of APopka, Fla., 698 F.2d 1181,
1192 (11th Cir. 1983) (all reasonable expenses except normal
office overhead compensable under 51988); Lenard v. Argento,
699 F.2d 874 (7th Cir. 1983) (deposition costs compensable
under §1988); united Nuclear Corp. v. Cannon, 564 F.Supp.
581, 591-92 (D. R. I. 1983) (law clerk, paralegal, Lexis costs
reimbursed under 51988); WUori v. Concannon, note 355 above
(copying. travel. telephone expenses recoverable under 51988;
deposition expenses recoverable as costs) l Dickerson v.
Pritchard, 551 F.Supp. 306 (W.D. Ark. 1983) (teiephone and
copying recoverable as costsl travel, accommodations and
parking not recoverable); Ruiz v. Estelle, 553 F.Supp. 567,
596 (S.D. Tex. 1982) (-all reasonable expenses, including
travel expenses· reimbursed).
358/ See Hutto v. Finney, 437 U.S. 678, 692-93 (1978).

lli/ Morrison v. Fox, 660 F.2d 87 (3d Cir. ·1981); Williams v.

Thomas, 511 F.Supp. 535, 545 (N.D. Tex. 1981). See Collins
v. Thomas, 649 F.2d 1203, 1205 (5th Cir. 1981).

]!Q/ 436 U.S. 658, 694 (1978).

-172-

Compliance Work.

J.

A final
winning

issue

relief

additional
compliance.

time

arises when the plaintiffs'

for
in

their clients,
enforcement

find

lawyers,

after

that they must expend

litigation

and

monitoring

of

In general, courts hold that successful compliance

efforts are as compensable as any other work in the case. 36l /
Indeed,

courts

have

awarded

fees

for

unsuccessful compliance

efforts, once plaintiffs were initially prevailing parties. 362 /
K.

Getting Paid.

Unfortunately, fee awards are not self-enforcing.

Al though

it seems clear that state statutes, procedures, or actions that'
have the effect of denying payment are unlawful,363/ counsel may
be relegated under Rule 69(a), P.R.C.P. to the state's procedures

for

enforcing

consuming .1W

judgements,

however

It may be tbat,

cumbersome

upon a showing

or

time

that timely

payment is essential to continue the litigation, speedier

361/ See Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981) 1 Bond
v. Stanton, 630 F.2d 1231 (7th Cir. 1980)1 Northcross v.
Board of Education of Mem;his City Schools, 611 F.2d 624 (6th
Cir. 1979) cert. den., 44 U.S. 911 (1980): See also
Rutherfordv. pitcfiess, 713 P.2d 1416, (9th Cir. 1983).
362/ Mader v. Crowell, 50'6 P.Supp. 484 (M.D. Tenn. 1981).
363/ Spain v. Mountanos, 690 P.2d 742 (9th Cir. 1982) 1 Collins v.
Thomas, 649 F.2d 1203 (5th Cir. 1981)1 Gates v. Collier, 616
F.2d 1268 (5th Cir. 1980). See Hutto v. Finney, 437 U.S.
678, 793-95 (1978) (fee statute abrogates states' Eleventh
Amendment immunity)
364/ Preston v. Thompson, 565 F.Supp. 294, 300-310 (N.D. Ill.
1983) •

-173-

procedures

may

be

required.

Some courts

have

required

the

creation of a fund for

the payment of future awards based on

defendants'

delay

history

of

in payment~

·In order

to

minimize the effect of appeLlate delay· on the payment of fee and
cost awards,

attorneys are advised to seek an order requiring

immediate payment of any conceded or uncontested amounts~

,

365/ Miller v. Carson, 628 F.2d 346, 349 (5th Cir. 1980)
Estelle, 555 F.Supp. 567, 596 (S.D. Tex. 1982).

1!!1

1

Ruiz v.

Martino v. Carey, 568 F.Supp 848 (D. Or. 1983) (defendants'
experts' lowest estimate of appropriate fee ordered paid
immediately) •

-174-

Appendix I
Leading Post-Wolfish and Chapman Federal Decisions
First Circuit:
Blake v. Hall, 668 F.2d 52 (1st Cir. 1981) (prison case).
Second Circuit:
Benjamin v. Malcolm, 495 F.Supp., 1357 (S.D. N.Y. 1980); 528
F.Supp. 925 (S.D. N.Y. 1981); 564 F.Supp. 668 (S.D. N.Y.
1983) ;
LaReau v. Manson, 507 F.Supp. 1177 (D.Conn. 1980) aff'd ~ mod.
651 F.2d 96 (2d Cir. 1981).
Third Circuit:
Union Co. Jail Inmates v. DiBuono, 713 F.2d 984 (3rd Cir. 1983)
pet. for reh. den., 718 F.2d 1247 (1983) (Gibbons, J.
dissenting);
Inmates of Alleghenx Co. Jail v. Pierce, 612 P.2d 754 (3rd Cir.
1979), on reman, 487 F.Supp. 638 (W.D. Pa. 1980); further
relief ~anted, Inmates of Allegheny Co. Jail v. Wecht, i65
F.Supp. 1278 (W.O. Pa. 1983).
Fourth Circuit:
Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981);
Gross v. Tazewell Co. Jail, 533 F.Supp. 413 (W.O. Va. 1982);
Parnell v. Waldrep, 511 F.Supp. 764 (W.O. N.C. 1981).
Fifth Circuit:
Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en bane);
Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 1980);
Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980) aff'd in
part, ~. in part, E£.. without prejud ice l!l. part remanded
~ . further proceedings, 659 F.2d 1115 (5th Cir. 1982)
(pr~son case) •
Sixth Circuit:
Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983);
Jones v. Wittenburg, 509 F.Supp. 653 (N.D. Oh. 1980);
Grubbs v. Bradley, 552 F.SUpp. 1052 (M.D. Tenn. 1982)
(prison case).
Seventh Circuit:
Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981);
Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1980);
Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983);
Smith v. Fairman, 690 F.2d 122 (7th Cir. 1982)
(prison case);
Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983) (prison case).

-175-

Eighth Circuit:
campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980):
Hutchings v. Corum, 501 F.Supp. 1276 (w.o. Mo. 1980):
Heitman v. Gabriel, 524 F.Supp. 622.(W.D. Mo. 1981).
Ninth Circuit:
Rutherford v. Pitchess, 710 F.2d 572 (9th Cir. 1983): cert •
granted ~~., Block v. Rutherford, 104 S.Ct. 390 (1983).
Leeds v. watson, 630 F.2d 674 (9th Cir. 1980):
Martino v. carey, 563 F.Supp. 984 (D. Or. ·1983):
Fischer v. Winter, 564 F.Supp. 281 (N.D. Cal. 1983):
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1983) (prison case) :
Touissant v. Rushen, 553 F.Supp. 1365 (N.D. Cal. 1983) aff'd,
722
F. 2d 1490 (9th Cir. 1984) (prison case).
Tenth Circuit:
Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981):
Ramos v. Lamm, 485 F.Supp. 122 (D. Col. 1979), aff'd in pait
and remanded, 639 F.2d 559 (lOth Cir. 1980), cert. d~., 01
---- S.Ct. 1259 (1981): on remand 520 F.Supp. 1059 (0:-1:01.1981)
(prison case):
--Battle v. Anderson, 708 P.2d 1523 (lOth Cir. 1983) (prison case).
Eleventh Circuit:
See Fifth Circuit cases above. Bonner v. City of Prichard,
Ala., 661 F.2d 1206, 1209-12 (11th Cir. 1981) (en bane)
(pre-September 30, 1981 decisions of Fifth Circuit panels
adopted as binding precedent by newly created court): Stein
v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.
1982) (post-September 30, 1981 decisions of Unit B of the
former Fifth Circuit also adopted as binding precedent) .
D.C. Circuit:
campbell v. McGruder, 554 F.Supp. 562 (D.C. D.C. 1982):
DOe v. District of Columbia, 701 F.2d 948, 957-58 (D.C. Cir.
1983) (Separate Statement of Edwards, J.) (discussion of
totality approach in prison context).

-176-

Appendix II
A List of Correctional and Other Relevant
Standards (and Where to Obtain Them)
1.

NAC Standards
National Advisory ~ommission on Criminal Justice Standards
and Goals, Report on Corrections (1973)
Superintendent of Documents
U.S. Gov't. Printing Office
Washington, D.C. 20402
Pr ice: $ 6 .95
Stock No.: 027-000-00175-1

2.

ABA Standards
American Bar Association, Fourth Draft of Standards Relating
to the Legal Status of Prisoners (1980) (Approved as ABA
poliey by The House of Delegates on 2/9/81)
Richard P. Lynch
ABA
1800 M"St., N.W.
wasbington, D.C.

20036

Price: $10.00
3.

ACA Standards (also known as the CAC Standards)
OO. . ission on Accreditation for COrrections,
Manual of Standards for Local and Adult Detention Facilities,

2d

ea.

(1981)

American COrrectional Association publications
4321 Hardwick Road, Suite L-208
college Park,·MD 20740
Price:
4.

$10.00

U.S. Dept. of Justice Standards (DOJ Standards)
Federal Standards for Prisons and Jails (1980)
Superintendent of Documents
U.S. Gov't. Printing Office
Washington, D.C. 20402
(202) 783-3238
Stock 1027-000-01083-1

5.

UN Standards
The Standard Minimum Rules for the Treatment of Prisoners In LIght of Recent Developments in the Correctional Field
united Nations
2101 L Street, N.W., Suite 209
Washington, D.C. 20036

-177-

6.

National Sheriffs' Association Standards (NSA Standards) Set of seven monographs entitled: Jail Architecture:
Sanitation in the Jail: , Jail Programs: Food Service in Jails:
Jail Security; Classification and Discipline: Inmate Legal
Rights: and Jail Administration
Publications Division
,
National Sheriffs' Association
1250 Connecticut Ave., N.W.
Suite 320
Washington, D.C. 20036
Price:

7.

$2.00 per monograph, $10.00 for a set of 7

ANA Standards
American Medical Association Jail project
Standards for Health Care In Jails
ANA Jail Project
535 NOrth Dearborn
Chicago, IL 60610
Price:

8.

•

One copy free and each copy thereafter $2.50

Della Penna" Health Care in Correctional Institutions
Superintendent of Documents
O.S. Gov"t. Printing Office
Washington, D.C. 20402
Price: $3.00
Stock No.: 027-000-00349-4 (please include)

9.

APHA Standards
American Public Health Association: Standards for Health
Services in Correctional Institutions ,(1978)
APHA
1015 15th Street, N.W.
Washington, D.C. 20036
Price:

$5.00

10. American Association of Correctional Psychologists
Standards for Ps chola ical Services in Adult Jails and
Pr sons
Dr. S.W. Wing
President American Association of Correctional
Psychologists
Legal Offender Unit
Western State Hospital
Fort Steilacoom, WA 98984
Pr ice:

$2.00

-178-

11. ABA Mental Health Standards
American Bar Association Standing Committee on Association
Standards for Criminal Justice, First Tentative Draft,
Criminal Justice Mental Health Standards (July 1983)
Standing Committee on Association Standards for Criminal
Justice
ABA
1800 M Street, N.W.
2nd Floor, South Lobby
Washington, D.C.
Price:

No charge

12. Life Safety Standards
National Fire Protection Association
Life Safety Code 101-81
National Pire Protection Association
Battery March
Quincy, MA 02269
Price: $10.50
13. NAPSA Standards
National Association of Pretrial Services Agencies
Performance Standards and Goals for Pretrial Release and
DIversIon (1978)
National Association of Pretrial Services Agencies
918 P Street, N.W., Suite 500
Washington, D.C. 20004
Price:

No charge

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