. ~:~~~:ALJOURNAL
AMERICAN CIVIL LIBERTIES UNION

. PROJECT

Vol. 17, No.2,winter/Spring 2004 ·ISSN 1076-769X

Out of Prison and Working for the ACLU
Larry Caldwell Discusses the Challenges of Re-Entry
After spending more than 30 years confined
in U.S. prisons and jails, Larry Caldwell is an expert
on prison conditions. Out since December 23,
2003, he now shares his insider knowledge and
interest in improving conditions for the men and
women who remain behind bars by working as a
paralegal for the ACLU's National Prison Project.
ill a recent interview Caldwell discussed his
experience returning to the free-world and how
other prisoners can make the re-entry process a
success.
Caldwell is not typical of most people
leaving prison. While incarcerated he successfully
brought several civil lawsuits against prison
officials. At least two cases were filed and won
against District of Columbia corrections officials for
their repeated failures to provide adequate medical
treatment for his diagnosed skin cancer. Caldwell's
awarded damages accumulated over time and
allowed him to re-enter society with enough money
to make his transition from prison to home
relatively smooth. illdeed, his savings were
essential to meeting his half-way house release
requirements that were contingent on his finding
housing in the expensive Washington, D.C. rental
market.
Caldwell points out that his unique
financial situation allowed him a much easier
reentry than most former prisoners experience.
"Former prisoners need help- clothes, money and a
place to stay," says Caldwell. "A lot of guys just go
back to the streets and hang with their old friends.
So, if all you know is crime, and you have no other
options, you will go back to the streets and rob,
steal or sell drugs to make money."
Surprisingly, his concern about the future
and welfare ofthe over 650,000 people released
every year from American prisons appears to be
shared with some politicians in Washington. ill

January, President
George W. Bush
told Congress in his
State of the Union
address that,
"America is the
land of the second
chance-and when
the gates of the
prison open, the
path ahead should
lead to a better
life." Subsequently,
a bipartisan group Photo by Darren Cambridge
of U.S.
Larry Caldwell works part-time at the
representatives
National Prison Project as a paralegal.
introduced the
Second Chances Act of2004 (H.R. 4676).
Continues on next page

U.S. Must End Torture of Prisoners
in America As Well As in Iraq
By Elizabeth Alexander

Like most Americans, I was horrified by
the sexually degrading photographs and the
reports of Iraqi detainees being threatened with
electrocution and rape by members of our
military at Abu Ghraib Prison in Iraq. Those who
are shocked by these human rights violations,
however, should be aware that equally depraved
acts are committed against prisoners in the
United States regularly without the outrage and
disgust expressed by U.S. officials in response to
conditions in Iraq.
Continues on next page

The legislation provides grants to state and
local governments for mental health services,
substance abuse treatment, aftercare, and infectious
disease treatment for people in prison and for those
recently released. It also funds collaborative efforts
between departments of corrections and technical
schools, community colleges and workforce
development employment services to help improve
prisoners' vocational skills and education. Federal
dollars authorized by the House bill can also be
used for creating post-release housing that provide
for human service needs on-sight. The President
has announced strong support for the legislation but
the likelihood of its successful passage through
Congress this year is uncertain.
During the last years of Caldwell's time
behind bars, rehabilitative opportunities for
prisoners dried up. He remembers when college
courses were available, but they were mostly taken
away in the 1990s. Paid jobs through Federal
Prison Industries were an option for him when he
was housed with the Bureau of Prisons but he calls
them "mindless jobs that are repetitious and
dangerous." He considers rehabilitative
programming effective for many prisoners but
believes training programs must advance to keep
pace with technological progress and reflect the
needs of the marketplace prisoners encounter upon
their release. "[We] must give former prisoners
meaningful employment that allows them to put
food on the table," says Caldwell. "Unfortunately,
guys who come out can make more money selling
drugs. People in today's system don't have a choice
because of poverty and poor education."
Working at the National Prison Project since
March, Caldwell first started as a volunteer
answering prisoners' letters but was quickly hired
part-time to assist the office's attorneys with legal
research and client interviews. He is now taking
classes to learn computer skills. His advice to
current prisoners is to "learn as much as you can,
listen and watch, and speak very little."
Continued from cover

End Torture in American Prisons
Indeed, accepted correctional practice allows
male officers to work in housing quarters that
2

provide views of women showering, undressing and
even using the toilet. In certain circumstances male
guards even strip search confined women, many of
whom are victims of sexual abuse, often leading to
unnecessary trauma and pain.
For U.S. prisoners who have suffered
treatment similar to what has been carried out in
Iraq, Congress has banned them from bringing a
lawsuit in our federal courts to gain redress for their
injuries. The Prison Litigation Reform Act, passed
in 1996 without any congressional hearings on its
provisions, prevents prisoners, jail detainees and
even confined juveniles from seeking damages for
deliberate sexual misconduct and other forms of
abuse, as long as the prisoner suffers no "physical
injury." Indeed, if a prisoner in our nation's capital
were threatened with electrocution by his captors
and suffered a heart attack or a mental breakdown as
a result, he would still have no remedy in federal
court.
Degradation and humiliation are just the tip
of the iceberg. The ACLU hears from thousands of
incarcerated men and women in the United States
whose human rights are violated. Many report
repeated rapes and sexual assaults committed by
prisoners and even staff. The best available data tell
us that more than 200,000 prisoners have been raped
nationally.

I NATIONAL PRISON PROJECT JOURNAL
NPP Director: Elizabeth Alexander
Editor: Kara Gotsch
Subscriptions Manager: Thandor Miller
The National Prison Project is a special project of
the ACLU Foundation. It seeks to strengthen and protect
the rights of adult and juvenile prisoners, improve overall
conditions in correctional facilities, and develop alternatives
to incarceration.
The Journal is published biannually by the
ACLU's National Prison Project, located at 733 15 th St.,
NW, Ste. 620, Washington, DC 20005. Contact us by phone
at (202) 393-4930, by fax at (202) 393-4931 or through
email at kgotsch@npp-aclu.org for more information. (NO
COLLECT CALLS PLEASE)
The reprinting of Journal material is encouraged
with the stipulation that the Journal is credited as the source
of the material, and a copy ofthe reprint is sent to the editor.
Subscriptions to the Journal are $30 per year ($2 for
prisoners), prepaid by check or money order.

I

Winter/Spring 2004

NATIONAL PRISON PROJECT JOURNAL

Texas was identified as the worst state in the
nation for prison rape in Human Rights Watch's
2001 book-length report, No Escape: Male Rape in
U.S. Prisons. illdependent observers, including a
federal judge, have said that some prisoners in
Texas are vulnerable and need protection -- which
they are not getting.
ill one class-action case about Texas prison
conditions that has spanned 30 years, U.S. District
Judge William Wayne Justice observed: "Evidence
has shown that, in fact, prison officials deliberately
resist providing reasonable safety to inmates. The
result is that individual prisoners who seek
protection from their attackers are either not
believed, disregarded, or told that there is a lack of
evidence to support action by the prison system."
Judge Justice also said evidence "revealed a prison
underworld in which rapes, beatings, and servitude
are the currency of power."
The ACLU's National Prison Project won a
damages settlement last year in Colorado on behalf
of a woman who was sexually assaulted while being
transported between jails after her arrest. ill another
particularly brutal case, the ACLU represents
Roderick Keith Johnson, a gay African American
man who was repeatedly raped and sold by prison
gangs as a sexual slave for $5. The ACLU has filed
other sexual assault cases and continues its

Iraqi prisoner at Abu Ghraib.

investigations of abuse and rape.
The ACLU hopes that the justified outrage
over these despicable acts in Iraq will lead Congress
and the President to thoroughly investigate U.S.
prison and jail conditions as well and protect
American prisoners by repealing the physical injury
provision ofthe PLRA.

Appeals Court Affirms that Mississippi Death Row Conditions are Unconstitutional
ill the most comprehensive decision
regarding death row conditions in the last ten years,
the U.S. Court of Appeals for the 5th Circuit
affirmed a lower court's opinion that Mississippi's
death row is unconstitutional and requires
improvements.
"We believe this decision will have farreaching implications for thousands of other
prisoners," said Margaret Winter, Associate
Director of the ACLU's National Prison Project.
"We know that brutal prison conditions have
existed on Mississippi's death row for many years.
The appeals court has now affirmed that while the
state may be authorized to execute death-sentenced
prisoners, it may not torture prisoners to death while
they are pursuing their rights to appeal their

sentences."
ill a ruling issued in June in the case Russell
v. Johnson, the appeals court ordered Mississippi
prison officials to fix malfunctioning toilets that
spill human waste into cells, provide fans and ice to
prisoners on exceedingly hot days, stop mosquito
infestations and properly treat prisoners suffering
from mental illness. The ACLU brought the
challenge to the death row conditions together with
the law firm Holland & Knight, which provided pro
bono assistance in the case.
"Official indifference has brought the men
on death row to the brink of physical and mental
breakdown," said Steve Hanlon, a partner at
Holland & Knight. "We applaud the court's
decision for the human rights protections it affords
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NATIONAL PRISON PROJECT JOURNAL

to prisoners."
Commenting on the trial court's findings,
the 5th Circuit panel wrote: "We agree that the
conditions of inadequate mental health care... do
present a risk of serious harm to the inmates mental
and physical health." Furthermore, the court said,
"frequent exposure to the waste of other persons can
certainly present health hazards that constitute a
serious risk of substantial harm."
At issue in the ruling was an appeal filed by
the Mississippi Department of Corrections to stop a
district court order that found officials had violated
"minimal standards of decency, health and wellbeing" because ofthe deplorable conditions on
Mississippi's death row. The state was required to
remedy those conditions under the district court's
order. U.S. Magistrate Judge Jerry A. Davis ruled in
May 2003 that "no matter how heinous the crime
committed, there is no excuse for such living
conditions" on death row.
Expert testimony presented by the ACLU's
National Prison Project and Holland & Knight at
trial in February 2003 described torturous
conditions at Mississippi's State Penitentiary in
Parchman. "The presence of severely psychotic
prisoners who foul their cells, stop up their toilets,
flood the tiers with excrement, and keep other
prisoners awake all night with their incessant
screams and shouts," are "virtually certain to cause
medical illness and destruction of mental stability
and functioning," said psychiatrist Terry A. Kupers,
who testified after touring Unit 32C where death
row prisoners are confined. Kupers said that
conditions on the unit include solitary confinement
combined with "the extremes of heat and humidity,
a grossly unsanitary environment, vermin, arbitrary
and punitive disciplinary policies, and inadequate
health and mental health care."
Dr. Susi Vassallo, an expert in
thermoregulation and a volunteer through Doctors
ofthe World-USA's Medical Advocacy Project,
visited Mississippi's death row in August 2002 and
testified that the heat in the cells was "inhuman" and
highly likely to cause heat stroke and other heatrelated illness during the summer months. She
testified that it was merely a matter ofluck that no
death row prisoner had yet died from the heat.
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Winter/Spring 2004

Appeals Court Urged to Enforce Fire
Safety Regulations in Michigan Prisons
Citing the grave risks to the health and lives
of prisoners and their guards, the American Civil
Liberties Union in February urged a federal appeals
court to uphold a ruling directing the Michigan
Department of Corrections to ensure that its prisons
conform to national fire safety standards.
"Cellblocks are nearly one hundred years old
and they are not safe for prisoners or the officers
who guard them," said Elizabeth Alexander,
Director of the ACLU's National Prison Project.
"Even though the state's own study confirmed the
dangers, Michigan officials refuse to fix the
life-threatening problems."
In arguments before the Sixth Circuit Court
of Appeals, Alexander urged the court to uphold the
Michigan District Court's February 2003 ruling,
which came in response to an ongoing ACLU
lawsuit over prison conditions in the state. As the
district court noted, "The very substantial failures of
these facilities to allow for timely egress in the
event of a fire, to exhaust smoke, to sprinkle fire,
and to unlock doors means, simply, that many .
inmates in each facility would likely suffer smoke
inhalation or death in the event of fire. Simply put,
these risks are grave and unacceptable."
The ACLU's brief explains the complicated
and dangerous prison evacuation plan that requires
correctional officers to manually unlock doors
before prisoners can escape a burning facility. Each
cellblock is approximately the size of a football
field, and many prisoners are housed far from prison
exits. Stairwells are often too small to accommodate
large numbers of prisoners who would be fleeing
during a fire. In addition, incomplete sprinkler
systems and the lack of a smoke exhaust system
mean that smoke from a cell fire would rise from
that cell and expand, affecting more cells. When the
smoke reached the top ofthe block, it would move
horizontally through the block and then downward.
The space above the occupied cells in a cellblock
would be of limited use before smoke began .
affecting prisoners attempting to use the upper
galleries to exit. Smoke would also form eddies in

Winter/Spring 2004

NATIONAL PRISON PROJECT JOURNAL

areas that prisoners on other levels were trying to
use as exits.
Witness testimony at a previous court
hearing described a fire started in one of the
cellblocks several years ago by a prisoner who put a
few papers and a sheet in a trash can, ignited the
material, and placed his mattress over the fire. There
was so much smoke produced by the fire that
someone in the cell on the other side of the open
area could not see cells on the side ofthe block

where the fire had been started. Smoke had come up
in front of the tiers and into the cells on the opposite
side from where the fire had started.
"The February hearing in the case Hadix v.
Johnson was an important reminder to prison
systems across the country that the health and safety
of the men and women \\'e choose to confine are
protected by the Constitution," said Alexander.
"Michigan's continued indifference to proper fire
safety in its prisons is a tragedy waiting to happen."

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

I u.s. Supreme Court Cases I
Visiting/Deference/Cruel and Unusual
Punishment
Overton v. Bazzetta, 123 S.Ct. 2162 (2003).
The Supreme Court rules broadly on convicted
prisoners' visiting rights.
In response to increasing prison population
and volume of visits, with the attendant problems of
maintaining order, supervising children, and
preventing drug smuggling and trafficking, the
prison system introduced new restrictions on
visiting. This challenge to the restrictions applies
only to the non-contact visits to which the highest
security prisoners are limited.
The regulations do not infringe a
constitutional right of association. This case is not
appropriate for elaborating on it, because "the very
object of imprisonment is confinement, and freedom
of association is among the rights least compatible
with incarceration." (2167) The court doesn't hold
that any right to intimate association is ended by
incarceration, but this is not a case in which that
right need be explored, since the challenged
regulations meet the requirements of Turner v.
Safley.
The regulations barring minors unless they
are children, stepchildren, grandchildren, or siblings
ofthe prisoner; barring children ifthe prisoner's
parental rights have been terminated; and requiring

them to be accompanied by parent or legal guardian
bear a rational relationship to the valid interest in
internal security by reducing the total number of
prisoners and by limiting the disruption caused by
children, and are also rationally related to the
legitimate interest in protecting children from
sexual or other misconduct or from accidental injury
(2168)
Requiring the presence of adults charged
with protecting the child's best interests is
reasonable, as is the consanguinity limit. Id.: "To
reduce the number of child visitors, a line must be
drawn, and the categories set out by these
regulations are reasonable. . .. The prohibition on
visitation by children as to whom the inmate no
longer has parental rights is simply a recognition by
prison administrators of a status determination made
in other official proceedings." (The Court does not
mention the evidence which shows that many
prisoners give up their parental rights so their
children can be adopted, but attempt to maintain a
relationship with them anyway.)
The ban on former inmates, except for those
who are members of the prisoner's immediate
family and have been approved by the warden,
"bears a self-evident connection to the State's
interest in maintaining prison security and
preventing future crimes." (2168)
The ban on visits for prisoners with two
substance-abuse violations serves the legitimate
goal of deterring use of drugs and alcohol in prison.
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"Drug smuggling and drug use in prison are
intractable problems." (2168)
Prisoners have alternative means of
exercising their claimed constitutional rights of
association: messages through those who are
allowed to visit, letter, and telephone. At 2169:
"Alternatives to visitation need not be ideal,
however; they need only be available."
Accommodating the prisoners' demands
"would cause a significant reallocation of the prison
system's financial resources and would impair the
ability of corrections officers to protect all who are
inside a prison's walls," facts which invoke
"particularly deferential" review. (2169)
The prisoners have not suggested an
alternative that "fully accommodates the asserted
right while not imposing more than a de minimis
cost to the valid penological goal. [Citation to
Turner omitted.] Respondents have not suggested
alternatives meeting this high standard for any of
the regulations at issue." (2169) Proposals that
would increase the number of child visitors "surely
would have more than a negligible effect on the
goals served by the regulation" (i.e., reducing the
number of child visitors). The ban on former
prisoners could be time limited, "but we defer to
MDOC's judgment that a longer restriction better
serves its interest in preventing the criminal activity
that can result from these interactions." Shortening
the suspension of visits for those with substance
abuse offenses or limiting it to the most serious
violations "do not go so far toward accommodating
the asserted right with so little cost to penological
goals that they meet Turner's high standard."
(2170)
The ban on visits for those with substance
abuse offenses does not violate the Eighth
Amendment. At 2170:
Michigan, like many other
States, uses withdrawal of visitation
privileges for a limited period as a
regular means of effecting prison
discipline. This is not a dramatic
departure from accepted standards
for conditions of confinement. ...
Nor does the regulation create
inhumane prison conditions, deprive
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Winter/Spring 2004

inmates of basic necessities or fail to
protect their health or safety. Nor
does it involve the infliction of pain
or injury, or deliberate indifference
to the risk that it might occur. . .. If
the withdrawal of all visitation
privileges were permanent or for a
much longer period, or if it were
applied in an arbitrary manner to a
particular inmate, the case would
present different considerations.
An individual claim asserting such circumstances
would not support invalidating the whole regulation.
Psychotropic Medication/Federal Officials and
Prisons/Appeal
Sell v. United States, 123 S.Ct. 2174 (2003).
Involuntary medication may be required to render a
defendant competent "only ifthe treatment is
medically appropriate, is substantially unlikely to
have side effects that may undermine the fairness of
the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further
important governmental trial-related interests."
(2184) That standard may permit involuntary
medication only rarely, since "important
governmental interests" (emphasis in original) must
be at stake. Government has an important interest
in bringing people accused of serious crimes to trial,
but the facts of each case must be considered; e.g.,
if the defendant refuses to take medication and
therefore will be confined for a long time in a
mental institution, the risk of freeing a perpetrator
without trial will be diminished. The court must
find that medication will "significantly further" the
government interests, i.e., that it's likely the
medication will render the defendant competent and
unlikely it will have side effects interfering with the
defendant's ability to assist in his defense.
Medication must be "necessary" for its purpose, i.e.,
less intrusive alternatives must be unlikely to work.
If forced medication is justified for some
other reason, the foregoing standard need not be
met, and there are often strong reasons to address
those reasons before turning to trial competence
(e.g., it's easier to be confident that medication is
appropriate and necessary because someone is

NATIONAL PRISON PROJECT JOURNAL

dangerous than because the person may be rendered
competent by it).
NON-PRISON CASES
Cruel and Unusual Punishment
Ewing v. California, 123 S.Ct. 1179 (2003).
The appellant was sentenced to 25 years to life
under California's "three strikes" law for stealing
golf clubs. The sentence did not violate the Eighth
Amendment. The majority adopts the standard of
the plurality in Harmelin v. Michigan that considers
"the primacy ofthe legislature, the variety of
legitimate penological schemes, the nature of our
federal system, and the requirement that
proportionality review be guided by objective
factors," and "does not require strict proportionality
between crime and sentence. Rather, it forbids only
extreme sentences that are 'grossly disproportionate'
to the crime." (1187, quoting Harmelin)
Cruel and Unusual PunishmentlHabeas Corpus
Lockyer v. Andrade, 123 S.Ct. 1166 (2003).
The petitioner stole five videotapes worth $84.70 on
one occasion and four videotapes worth $68.84 on a
second occasion, was charged with two felonies
under California's "three strikes" legislation, and
was sentenced to two consecutive terms of 25 years
to life. This case, with more extreme facts than
Ewing, came up via habeas corpus rather than direct
appeal and is subject to the AEDPA rule that
remedies only violations of "clearly established law,
as determined by the Supreme Court of the United
States." The only thing "clear" about prior
disproportionality jurisprudence is that there is a
gross disproportionality standard. The lower court
decision does not apply incorrect legal principles,
nor does it apply the clearly established principles in
a manner that is objectively unreasonable, which
means "more than incorrect or erroneous," and
indeed more than "clear error."
RehabilitationlEx Post Facto Laws/Punishment
Smith v. Doe I, 123 S.Ct. 1140 (2003).
Convicted sex offenders and the wife of one of them
brought an Ex Post Facto Clause challenge to the
Alaska Sex Offender Registration Act (SORA),

Winter/Spring 2004

which requires the usual panoply of registration,
verification, photography, fingerprinting,
notification of changes of address, etc., with
information on the offenders and their whereabouts
made public.
The statute does not violate the Ex Post
Facto Clause because it was not punitive in intent
but was intended to protect the public,
notwithstanding that it was codified in the criminal
procedure code. Absent an identifiable punitive
intent, the court examines the statute's effects under
the punishment analysis of Kennedy v. MendozaMartinez. At 1149: "The factors most relevant to
our analysis are whether, in its necessary operation,
the regulatory scheme: has been regarded in our
history and traditions as a punishment; imposes an
affirmative disability or restraint; promotes the
traditional aims of punishment; has a rational
connection to a nonpunitive purpose; or is excessive
with respect to this purpose." Sex offender
notification doesn't have much history, and the
Court rejects the analogy to historical punishments
involving public shaming, humiliation, and
banishment. At 1150: "Our system does not treat
dissemination oftruthful information in furtherance
of a legitimate governmental objective as
punishment." The publicity may cause adverse
consequences for the convicted defendant, but that
isn't an integral part of the scheme's objective.
Internet notification doesn't change that conclusion.
!d.: "Widespread public access is necessary for the
efficacy of the scheme, and the attendant
humiliation is but a collateral consequence of a
valid regulation."
The scheme does not impose an affirmative
disability, since the offender need not update his
registration in person. The scheme is not analogous
to parole or probation or supervised release, since
persons subject to it can go where they want and
generally do as they wish, though they must report
some actions to police.
At 1152: "A statute is not deemed punitive
simply because it lacks a close or perfect fit with the
nonpunitive aims it seeks to advance." Alaska
could conclude that a sex offense conviction itself is
evidence of a substantial risk of recidivism; no caseby-case assessment of risk is necessary. At 1153:
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"The Ex Post Facto Clause does not preclude a state
from making reasonable categorical judgments that
conviction of specified crimes should entail
particular regulatory consequences." The scheme in
Kansas v. Hendricks required individual
assessment because the restraint was much more
serious than here.

RehabilitationlProcedural Due Process
Connecticut Dep't ofPublic Safety v. Doe,
123 S.Ct. 1160 (2003). The state sex offender
registration statute, which provides for posting of
the registry on the Internet and making it available
in state offices, does not deny due process. The
court does not reach the question whether under
Paul v. Davis, there is a liberty interest in avoiding
stigmatization as a sex offender. Even if there is,
sex offenders are not entitled to a hearing to
determine whether or not they are likely to be
currently dangerous, since current dangerousness is
irrelevant under the state statute, which operates
solely on the basis of a criminal conviction. Only if
that rule is substantively unconstitutional is there a
due process problem, and the plaintiff disavowed
any substantive due process argument.
Damages--Punitive
State Farm Mutual Automobile Ins. Co. v.
Campbell, 123 S.Ct. 1513 (2003). Excessive awards
of punitive damages constitute arbitrary
deprivations of property. The Court has directed
that appellate review of punitive damages "consider
three guideposts: (1) the degree of reprehensibility
of the defendant's misconduct; (2) the disparity
between the actual or potential harm suffered by the
plaintiff and the punitive damages award; and (3)
the difference between the punitive damages
awarded by the jury and the civil penalties
authorized or imposed in comparable cases."
(1520) Under those standards, the punitive award is
exceSSIve.
The court declines "to impose a bright-line
ratio which a punitive damages award cannot
exceed," but "in practice, few awards exceeding a
single-digit ratio between punitive and
compensatory damages, to a significant degree, will
satisfy due process." That may not be true where "'a
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Winter/Spring 2004

particularly egregious act has resulted in only a
small amount of economic damages,'" but
conversely: "When compensatory damages are
substantial, then a lesser ratio, perhaps only equal to
compensatory damages, can reach the outermost
limit of the due process guarantee." (1524)

Ex Post Facto Laws
Stogner v. California, 123 S.Ct. 2446
(2003). A revision ofthe statute oflimitations
permitting prosecution for sex-related child abuse
after the prior limitations period has expired, if the
prosecution is brought within a year of the victim's
report to the police, violates the Ex Post Facto
Clause. It is a new law that inflicts punishment on
people who under the old law were not subject to
punishment. It also changes the rules of evidence
formerly applicable, since statutes oflimitations rest
largely upon evidentiary concerns about reliability
of memory and unavailability of witnesses, and the
new law permits conviction on some quantum of
evidence while the old law forbade conviction on
any quantum of evidence.

IU.S. Court of Appeals Cases
Pre-Trial Detainees/Privacy/Damages-Intangible Injuries/Staffing--Sex/Pendent and
Supplemental Claims; State Law in Federal
Courts
Hill v. McKinley, 311 F.3d 899 (8th Cir.
2002). The plaintiff was arrested while drunk and
behaved in a disorderly fashion. After being placed
in a padded cell naked or nearly so, she was walked
naked down a corridor and placed on a restraining
board, where she remained for several hours. The
defendants did not violate the Fourth Amendment
by making her disrobe, requiring her to walk
through the jail naked, and putting her naked on the
restraint board, given her behavior. However,
keeping her there in that condition did violate the
Fourth Amendment. The defendants are entitled to
qualified immunity.
The plaintiffs verdict is affirmed on the state
law claim, based on the "intrusion upon seclusion"
theory of invasion of privacy, the elements of which

NATIONAL PRISON PROJECT JOURNAL

are "intentional intrusion upon the solitude or
seclusion of another which would be highly
offensive to a reasonable person." There is enough
evidence to support a jury finding that it was not
necessary to restrain the plaintiff naked.
The $2,500 damage award is affirmed. At
906: "For tactical reasons, Hill did not claim the
emotional distress damages ordinarily associated
with intrusion upon seclusion, submitting instead
only a claim for physical pain and suffering." A
reasonable jury could have found that the plaintiff's
physical injuries from the straps were caused by the
invasion of privacy in that the complete exposure
caused her such anger and anguish that she
struggled against the bonds.

Disabled/Procedural Due Process--Disciplinary
Proceedings/Grievances and Complaints about
Prison
Hargis v. Foster, 312 F.3d 404 (9th Cir.
2002), amending and superseding 282 F.3d 1154
(9th Cir. 2001). The plaintiff, who suffers from a
neurological disorder causing jerking and shaking,
declined to shave because doing so with a razor
blade endangered his safety (he had already cut
himself trying to do so), and they wouldn't let him
use an electric razor. He told an officer that his
actions and statements could come up in pending
litigation. He was convicted of a disciplinary action
for coercion, which resulted in his being denied
parole.
A regulation prohibiting "involvement in
any disorderly conduct by coercing or attempting to
coerce any official action" is not unconstitutional on
its face. However, the plaintiff's argument that his
conversation was not coercive should not have been
dismissed. At 410: "We assign no heightened
value to Hargis's speech." The court applies the
Turner test. "To the extent the dissent argues that
Shaw [v. Murphy] prohibits this sort of
examination, we disagree. The Supreme Court
specifically remanded Shaw" for that purpose. The
record shows that the plaintiff's statements, "taken
in the full context of his conversation with the
guard," may not have been an attempt to coerce. A
jury could reasonably conclude that he wanted to
comply with the shaving rule, had tried to shave,

Winter/Spring 2004

and was offering a way to do so by asking for access
to an electric razor, which he had been allowed to
use in the past. The plaintiff depicted a patient and
courteous effort to persuade the officer to back off
or get a supervisor; the officer's version leaves out
the details but does not contradict the plaintiff.
Documentation from prison staff said, e.g., "The
staffhere are not in fear of your court action and I
welcome inquiries from the court." These facts
raise a material question whether the defendants'
action had a rational connection with the legitimate
security concerns ofthe defendants and could
support a finding of "exaggerated response."

Publications/Religion/Law Libraries and Law
Books
Tarpley v. Allen County, Indiana, 312 F.3d
895 (7th Cir. 2002). The plaintiff, on admission to
jail, had his New International Version Bible
confiscated per a policy that prohibits retention of
personal reading materials. The jail implemented
that policy "to curb fights over who owned what and
to avoid compensation claims if the materials were
lost or stolen." (897) They gave the plaintiff a jail
copy of the same version of the Bible, which he was
allowed to keep in his cell, but without the
interpretive commentary in the plaintiff's own book.
They gave his Bible back when he was released.
The jail policy is upheld under the Turner
standard because it is "reasonably related to the
general interest in maintaining safe conditions and
in preventing later disputes over lost or damaged
items." (898) The plaintiff had an alternative--the
Bible the jail gave him. The plaintiff did not assert
that the commentary in his Bible "has the status of
something like the Jewish Talmud--non-Biblical
writings that have become part of the fundamental
texts of the religion as a whole.... Prisons are only
required to make reasonable efforts to provide an
opportunity for religious practice." (899) The jail
couldn't let the plaintiff keep a personal book
without compromising its general policy.
The plaintiff also alleged that he wished to
pursue several civil actions and a state habeas
corpus proceeding, but his claim is dismissed for
lack of "concrete injury" since he provides no
details of the cases he wished to pursue.
9

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Grievances and Complaints about
Prison/Qualified Immunity
Brown v. Crowley, 312 F.3d 782 (6th Cir.
2002). The plaintiff complained because he was
repeatedly dunned for the same debt by prison
authorities; after his grievances failed, he wrote to
the state police to ask for prosecution of this
"embezzlement," and they referred the complaint to
the Department of Correction, which said it was
meritless and charged him with misconduct for
filing a false complaint. He was acquitted at a
hearing.
A reasonable jury could conclude that the
plaintiff was subjected to adverse action that would
deter a person of ordinary finnness; the mere
issuance ofthe charge "subjected him to the risk of
significant sanctions." (789) The district court
erred in holding that there was no causal connection
between the retaliation and protected conduct
because the defendants had determined that the
plaintiff acted improperly and made false
allegations; that fact does not negate a causal
connection. (At 791: "We are dubious that the
issuance of a major misconduct ticket under such
circumstances could ever be deemed consistent with
First Amendment principles. If)
Verbal Abuse/Work Assignments/PLRA--Mental
or Emotional Injury
Calhoun v. Hargrove, 312 F.3d 730 (5th Cir.
2002). The plaintiff alleged that because of his
hypertension, asthma, epileptic seizures, glaucoma,
and head and knee injuries, he was limited to a fourhour work schedule with restrictions on walking,
standing, and lifting. He alleged that the defendant
routinely made him work 10- to 14-hour days and
would habitually call him into his office, tell him to
pick up sunflower seeds and shells he had spit onto
the floor, and spit more onto the floor while they
worked. He alleged additional similar harassment,
including being forced to beg for a meal.
At 734: "Neither the verbal abuse, nor the
begging for the meal allege a physical injury to
Calhoun and, though troubling, do not overcome §
1997e(e)." Claims of verbal abuse are not
actionable under § 1983. The allegations of work
beyond medical limitations state an Eighth
10

Winter/Spring 2004

Amendment claim, but they must also meet the
requirements ofthe PLRA mental/emotional injury
provision. The plaintiff alleged that his blood
pressure was at near-stroke level, and the district
court should have inquired into the severity of any
resulting injury.

PLRA--Exhaustion of Administrative Remedies
Brown v. Croak, 312 F.3d 109 (3d Cir.
2002). At 111 n.1: The argument that it is never
appropriate to dismiss for non-exhaustion at the
pleading stage is without merit. The plaintiffs
assertion that he was led to believe that he was
required to wait for completion of an investigation
before filing a grievance, and was then not informed
for months that the investigation was concluded,
was sufficient to preclude dismissal at this stage.
Defendants conceded that if the plaintiffs
allegation was correct, their non-exhaustion
argument would have no merit. "We agree." At
113:
Assuming security officials
told Brown to wait for the
termination of the investigation
before commencing a formal claim,
and assuming the defendants never
informed Brown that the
investigation was completed, the
formal grievance proceeding
required by DC-ADM 804 was never
"available" to Brown within the
meaning of 42 U.S.C. § 1997e. Cf
Miller v. Norris, 247 F.3d 736, 740
(8th Cir.2001) (holding that "a
remedy that prison officials prevent a
prisoner from 'utilizing' is not an
'available' remedy under § 1997e").
Medical Care--Standards of Liability--Serious
Medical Needs/Medical Care--Standards of
Liability--Deliberate Indifference/Municipalities/
Staffing--Training
Olsen v. Layton Hills Mall, 312 F.3d 1304
(10th Cir. 2002). A jury could find that obsessivecompulsive disorder is a serious medical need (it
allegedly gave rise to panic attacks in this case, but
the court does not rely on that fact). Evidence that

NATIONAL PRISON PROJECT JOURNAL

the plaintiff twice told the arresting officer he was
having a panic attack, without response, presents a
jury question of deliberate indifference.
Evidence that the County failed to train its
jail's prebooking officers to recognize obsessivecompulsive disorders and to know what to do about
it (in this case, they took his medication away)
presents a jury question as to deliberate
indifference.

RFRA and RLUIPA/Establishment of
Religion/State Officials and AgencieslReligion-Services Within Institution
Mayweathers v. Newland, 314 F.3d 1062
(9th Cir. 2002). The Muslim plaintiffs obtained
injunctive relief forbidding prison officials from
punishing prisoners for attending Jumu'ah services
and from withholding good time credits for
prisoners who attended them.
The Religious Land Use and
Institutionalized Persons Act does not violate the
Spending Clause, the Establishment Clause, the
Tenth Amendment, the Eleventh Amendment, or
the separation of powers.
PLRA--Mental or Emotional Injury/False
Imprisonment
Napier v. Preslicka, 314 F.3d 528 (ll th Cir.
2002). A prisoner who sued for arrest without
probable cause that was unrelated to his current
incarceration was nevertheless suing about mental
or emotional "injury suffered while in custody," and
since he was currently incarcerated, his claim was
barred by the PLRA mental/emotional injury
provision. "Custody" is interpreted in light of its
common meaning and not consistently with the
statutory term "prisoner."
The plaintiff himself alleged embarrassment
and mental anguish, so the court is not presented
with the argument that this case is not about mental
or emotional injury but about loss of liberty.
PLRA--Three Strikes Provision
Dubuc v. Johnson, 314 F.3d 1205 (lOth Cir.
2003). The three strikes provision is not
discretionary. At 1207-08: "To the extent that the
language of our cases or our practice may have

Winter/Spring 2004

departed from this absolute rule, they are contrary to
the statute."

Medical Care--Standards of Liability--Serious
Medical Needs/Personal Involvement and
Supervisory LiabilitylMedical Care--Standards
of Liability--Deliberate IndifferencelMedical
Care--Denial of Ordered Care/Grievances and
Complaints about Prison
Brockv. Wright, 315 F.d 158 (2d Cir. 2003).
The plaintiff complained that he was denied the
care of a dermatologist for a painful and disfiguring
keloid. The Regional Medical Director overruled a
referral to a dermatologist; the statewide Chief
Medical Officer had issued a policy forbidding
treatment ofkeloids absent "collateral symptoms."
The plaintiff won his grievance but the
Superintendent overturned the decision in deference
to the Regional Medical Director's decision, and the
Central Office Review Committee affirmed the
Superintendent. At 163:
We will no more tolerate
prison officials' deliberate
indifference to the chronic pain of an
inmate than we would a sentence that
would required the inmate to submit
to such pain. We do not, therefore,
require an inmate to demonstrate that
he or she experiences pain that is at
the limit of human ability to bear,
nor do we require a showing that his
or her condition will degenerate into
a life-threatening one.
The plaintiffs evidence shows "chronic pain
the magnitude of which probably falls somewhere
between 'annoying' and 'extreme.'" (163, emphasis
in original). Ifthe district court thought "only
'extreme pain' or a degenerative condition would
suffice to meet the legal standard," it was wrong,
"for we have long held that 'the Eighth Amendment
forbids not only deprivations of medical care that
produce physical torture and lingering death, but
also less serious denials which cause or perpetuate
pain.''' (Id., citing Todaro)
Factors guiding a determination that a
medical need is serious include but are not limited
to (at 152)
11

NATIONAL PRISON PROJECT JOURNAL

(1) whether a reasonable doctor or
patient would perceive the medical
need in question as "important and
worthy of comment or treatment,"
(2) whether the medical condition
significantly affects daily activities,
and (3) "the existence of chronic and
substantial pain."
The plaintiff has alleged "chronic pain that
interferes with his ability to conduct tasks
associated with daily living," supported by a
doctor's affidavit. Another doctor recommended
follow-up with steroid injections if the scar began to
keloid. A prison doctor made a referral to a
dermatologist. Whether 01: not he thought the
request was "routine," he at least thought it
"sufficiently serious to be 'worthy of comment.'"
(163)
The Superintendent could not be held liable
for overturning the favorable grievance decision in
deference to the medical policy. The director of the
grievance system, who signed the unfavorable
decision but was not a voting member of the
committee and was not shown to have had any
power in the process, could not be held liable.
However, the Chief Medical Officer could be held
liable for promulgating an unconstitutional policy
on keloids. A jury could find that the policy was
intended to prevent treatment ofkeloids for
purposes of alleviating moderate, but persistently
chronic, pain, since the defendant said it allowed
treatment only for "functional" reasons, and since he
said that the policy was "properly implemented" in
the plaintiffs case. A jury could also find that
steroid injections administered by a dermatologist
would have been more efficacious than no treatment
and that they were denied, not because of a medical
judgment that they weren't worthwhile, but because
they were forbidden by policy. That would be a
conscious choice to prescribe "easier and less
efficacious treatment" as in Williams v. Vincent.

Use of Force/Emergency/Chemical
Agents/Evidentiary Questions/Personal
Involvement and Supervisory Liabilityl
Injunctive Relief/Pendent and Supplemental
Claims; State Law in Federal Courts
12

Winter/Spring 2004

Combs v. Wilkinson, 315 F.3d 548 (6th Cir.
2002). Three plaintiffs alleged that they were
subjected to excessive force after a disturbance in
the death row unit--tear-gassed in their cells, maced
when they went to windows for air, beaten, kicked,
hit with a sledge hammer, slammed into stairways
and walls, etc. One plaintiff had a fractured skull.
The report of a prison system "use of force"
committee should not have been excluded from
consideration on defendants' summary judgment
motion. Since the committee was appointed
pursuant to state regulation, its report contains
findings of an investigation made pursuant to law
and is admissible under Rule 803(8), Fed.R.Ev. A
deposition of its chairperson stating that she chaired
the committee and the report was the report was
sufficient foundation. The fact that the report's
authors did not have personal knowledge of the
incident did not matter--the whole point of the rule
is to admit certain hearsay.
An officer's decision to use mace against a
plaintiff who placed his face near an open window
was made in haste and under pressure, and is
therefore entitled to substantial deference. He is
entitled to summary judgment.
Claims against unidentified officers (they
wore black uniforms, gas masks, and no name
badges) must be dismissed. Plaintiffs' argument to
the contrary amounts to a respondeat superior
claim.
The Director cannot be held liable. The
most that he did was approve the tactical plan, but
the plan itself is consistent with constitutional
standards.
The regional director, who witnessed the cell
extractions during which beatings allegedly
occurred, cannot be held liable. He claims to have
witnessed no brutality and plaintiffs fail to rebut
that statement. At 558: "Simply viewing the
extractions without evidence of more involvement
is insufficient to demonstrate that Hills 'implicitly
authorized, approved, or knowingly acquiesced' in
the use of excessive force against plaintiffs."
The warden cannot be held liable. He
approved the tactical plan, which was constitutional,
did not participate in or encourage any misconduct,
and gave instructions not to use excessive force ("no

NATIONAL PRISON PROJECT JOURNAL

Rambos").
The lieutenant who developed the tactical
plan and commanded the Security Response Team
is not entitled to summary judgment. Although
plaintiffs present no evidence that he personally
witnessed excessive force, the use of force
committee's report found that he inadequately
briefed the team members (only some were briefed
at all, and none were briefed on cell extractions),
that chemical agents were used to a potentially
lethal level, he "failed to maintain fundamental
control of the operation," and team members used
"questionable force."
The sergeant who was tactical commander
could not be held liable. The only evidence against
him was that he heard officers making comments
such as "this is the guy I want" and "I want to beat
his ass," and did not admonish them. This at most
proves negligence.

PLRA--Exhaustion of Administrative Remedies
Ferrington v. Louisiana Dept. of
Corrections, 315 F.3d 529 (5th Cir. 2002). A
grievance system that had been held
unconstitutional under the state constitution in one
respect did not abolish the administrative grievance
system and did not make the remedy "unavailable"
as a matter of federal law. At 532: "As long as a
prison administrative grievance system remains in
force (as the state assures us is the case), Ferrington
must exhaust." The plaintiffs near blindness did
not exempt him from exhausting--after all, he
managed to file this suit.
Rehabilitation
Linehan v. Milczark, 315 F.3d 920 (8th Cir.
2003). The petitioner was committed under the
state Sexually Dangerous Persons Act after several
decades of incarceration for multiple sexual
assaults. The standard announced by the state
supreme court, requiring "a finding of 'lack of
adequate control' in relation to a properly diagnosed
disorder or dysfunction, as well as findings of past
sexual violence and resultant likelihood of future
sexually dangerous behavior," is consistent with the
standard set by the Supreme Court in Kansas v.
Hendricks.

Winter/Spring 2004
Summary JudgmentlPLRA--Exhaustion of
Administrative Remedies/RFRA and
RLVIPAlPro Se Litigation
Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
2003). The PLRA exhaustion requirement does not
impose a pleading requirement. Rather, it creates a
defense, which defendants have the bvurden of
raising and proving.
PLRA--In Forma Pauperis Provisions--Filing
Fees
DeBlasio v. Gilmore, 315 F.3d 396 (4th Cir.
2003). At 397: "We hold that the PLRA fee
requirements are not applicable to a released
prisoner (assuming the prisoner made any required
payments while in prison) and that his obligation to
pay filing fees is determined by evaluating whether
he qualifies under the general in forma pauperis
provision of28 U.S.C. § 1915(a)(1)."
Medication/Medical Care--Standards of
Liability--Serious Medical Needs/AIDS
Smith v. Carpenter, 316 F.3d 178 (2d Cir.
2003). A jury rejected the plaintiffs claim of
deprivation ofHIV medication on two separate
occasions for several days at a time, finding he had
not proven a serious medical need. The defendants
submitted evidence that his medical condition had
not been adversely affected.
The finding that there was no serious
medical need is upheld. Although AIDS itself is a
serious condition, "the serious medical need inquiry
must be tailored to the specific circumstances of
each case." (185) When the complaint is about
temporary delay or interruption of otherwise
adequate treatment, the question is whether the
delay or interruption in treatment--not the
underlying medical condition--is objectively serious
enough to support an Eighth Amendment claim. At
186:
"[I]t's the particular risk of harm faced by a
prisoner due to the challenged deprivation of
care, rather than the severity of the prisoner's
underlying medical condition, considered in
the abstract, that is relevant for Eighth
Amendment purposes."
Evidence of the lack of adverse medical
13

NATIONAL PRISON PROJECT JOURNAL

effects was admissible (and "highly relevant") to
gauge the severity of the medical need (187). While
it is true that an Eighth Amendment claim may be
based on exposure to an unreasonable risk of future
harm, without a showing of injury, "the absence of
present physical injury will often be probative in
assessing the risk of future harm." (188) The court
cautions that in other cases, prisoners may be able to
present medical evidence of significantly increased
risk "even in the absence of present, detectable
adverse effects." (189)
Hazardous Conditions and Substances/Personal
Involvement and Supervisory Liability/Access to
Courts--Punishment and Retaliation/Qualified
Immunity
Atkinson v. Taylor, 316 F.3d 257 (3d Cir.
2003). The plaintiff--blind, diabetic, and having
had surgery for a pituitary adenoma--complained of
being forced to share a cell with heavy smokers.
His allegations satisfy to both prongs of the Helling
v. McKinney test (exposure to unreasonably high
levels ofETS and deliberate indifference) and
therefore amount to a violation of clearly
established law for which defendants are not
entitled to qualified immunity. The plaintiff also
presented evidence that society has become more
intolerant of unwanted ETS.
The defendants are not entitled to qualified
immunity with respect to the plaintiffs claims of
present injury, since the court has previously held
that Estelle v. Gamble clearly established that prison
officials can't be deliberately indifferent to existing
serious medical needs resulting from ETS. The
plaintiff has alleged a serious medical need, since he
claims nausea, inability to eat, headaches, chest
pains, difficulty breathing, numbness in limbs, teary
eyes, itching, burning skin, dizziness, a sore throat,
coughing, and production of sputum. The fact that
some people voluntarily tolerate such exposure is
beside the point, since prisoners cannot protect
themselves from it by leaving their cells. The
plaintiff alleged that after he complained of these
symptoms, a nurse said she couldn't transfer him to
a cell with a nonsmoker, and after he told other
prison officials about it, nothing changed. At 269:
"This evidence demonstrates deliberate indifference
14

Winter/Spring 2004

on the part of prison officials."
The plaintiffs claim of retaliation implicates
prisoners' clearly established First Amendment right
of court access. Defendants argued that the
deposition and interrogatory answers of a single
prisoner are insufficient to raise a factual issue of
supervisory knowledge and acquiescence. That is
the sort of evidence weighing that cannot be done in
an interlocutory qualified immunity appeal. They
also argued that evidence that the plaintiff wrote or
spoke to supervisors concerning his ETS exposure
and retaliatory harassment was insufficient as a
matter oflaw. However, these supervisory officials
were mostly not state-wide officials, and the
Commissioner was responsible only for a specific
state entity housing prisoners. At 271: "The scope
of his responsibilities are much more narrow than
that of a governor or state attorney general, and
logically demand more particularized scrutiny of
individual complaints." The other supervisory
defendants "have even narrower responsibilities as
links in a chain of command within a single prison."
Prior authority involving the state Governor and
Attorney General is distinguishable, and defendants
are not entitled to summary judgment.
PLRA--Exhaustion of Administrative
RemedieslMootness/Hazardous Conditions and
Substances
Davis v. New York, 316 F.3d 93 (2d Cir.
2002). The plaintiff complained of exposure to
second-hand smoke. His claim for injunctive relief
was not mooted by transfer and a new smoking
policy, since he asserted that actual conditions
remained the same.
The plaintiffs allegations that he had been
housed for years in areas where most inmates were
smokers, that in the honor block area he had been
surrounded by chain or frequent smokers and
constantly exposed to smoke, and that it caused him
to suffer dizziness, difficulty breathing, blackouts,
and respiratory problems, raised a material issue as
to whether he was subjected to unreasonably high
levels of ETS as required to make out an Eighth
Amendment claim under Helling.
The court notes a question whether the
plaintiff exhausted administrative remedies, but

NATIONAL PRISON PROJECT JOURNAL

since the defendants did not raise it and the district
court did not rule on it, the district court should
consider whether the issue is waived.

Habeas Corpus/Procedural Due Process-Disciplinary Proceedings
Nonnette v. Small, 316 F.3d 872 (9th Cir.
2002). The plaintiff alleged that prison officials
miscalculated his prison sentence and revoked good
time in a disciplinary proceeding without supporting
evidence. His claim would be barred by the
Heck/Balisok rule except that he is no longer in
prison and cannot use habeas corpus. Under the
separate opinions in Spencer v. Kemna, he may
proceed under § 1983.
The plaintiff did not present a challenge to
the conditions of his segregated confinement, and
therefore did not seek to show that this punishment
was atypical and significant. At 878-79: "His entire
challenge to the administrative segregation was that
it was imposed as a result of a disciplinary hearing
in which the adverse finding was supported by no
evidence. We have held that such a lack of fair
hearing violates due process, wholly apart from the
conditions of confinement and without regard to the
Sandin requirements. Burnsworth v. Gunderson,
179 F.3d 771, 775 (9th Cir. 1999)." This holding,
and Gunderson's, appear contrary to the Supreme
Court's decision in Sandin v. Conner.
Qualified Immunity/Procedural Due Process-Temporary Release
Anderson v. Recore, 317 F.3d 194 (2d Cir.
2003). In 1978, the court in Tracy v. Salamackheld
that prisoners in a temporary release program must
receive a hearing before their status is revoked.
That law remained clearly established after the
decision in Sandin v. Conner, which generally
altered due process analysis in prison cases. Sandin
did not place Tracy in any reasonable doubt because
it reaffirmed the due process principles on which
Tracy rested ("grievous loss" analysis combined
with a state law-based entitlement). Sandin did not
dispense with statutory or regulatory-based
entitlements, it just required atypical or significant
deprivation in addition. It relied on Wolff and
Morrissey, as did Tracy. This case differs from

Winter/Spring 2004
Sandin in that the plaintiff, as in Tracy, was not in
prison but was living outside the institution. The
existence of contradictory views among district
court judges on the viability of Tracy does not
matter, since those views had not emerged when the
plaintiffs temporary release was revoked, and in any
case the Circuit will follow its own non-overruled
precedent rather than district court decisions.

Rehabilitation/Deference
Ainsworth v. Stanley, 317 F.3d 1 (Ist Cir.
2002). The plaintiffs alleged that defendants' sex
offenders program violated their Fifth Amendment
right against self-incrimination by requiring them to
disclose their histories of sexual misconduct in
order to participate. The court upholds the program
under the Turner standard. It does not involve any
new penalties, since the prisoners are not being
given new sentences. The burden on the prisoners'
rights is mitigated by the voluntariness of the
program. The denial of parole is not 100%
automatic (just 97% or 98%, it appears). The state
does have a reasonable alternative that would not
impair its interests, i.e., granting limited immunity
to sex offenders who engage in compulsory
disclosures. However, doing so "is a policy choice
that lies in the state's hands." (The idea that if there
is a readily available alternative, the state is not
obliged to use it appears contrary to the analysis of
Turner v. Safley.)
Media/Deference/Federal Officials and Prisons
Kimberlin v. Us. Dep't ofJustice, 318 F.3d
228 (D.C.Cir. 2003). A federal statute (the
"Zimmer Amendment," a provision in an
appropriations act which has been re-enacted yearly
since 1997) prohibits the use of federal funds for
"the use or possession of any electric or electronic
musical instrument" in federal prisons. The Bureau
of Prisons promulgated a policy that said electric
instruments that were already present could stay put
but would not be repaired and new ones would not
be allowed, except for equipment used in
conjunction with religious services, stored in the
chapel area, and under the supervision of the
Religious Services Department.
The BOP's policy prohibiting prisoners'
15

NATIONAL PRISON PROJECT JOURNAL

possession of electric or electronic instruments does
not exceed statutory authority, since the statute may
reasonably be construed to prohibit paying for
incidental costs such as those for storage,
supervision, and electricity. It is also consistent
with the statutory purpose of making prisons more
punitive.
The prohibition does not implicate First
Amendment rights and is not subject to the Turner
standard, because Congress is not required to fund
the exercise of First Amendment rights. Even under
Turner, there would be no First Amendment
violation. The policy has a reasonable relationship
to the legitimate interest of conserving correctional
department funds. There are alternative ways of
making music, such as voice and acoustic
instruments. Striking down the policy would have
an adverse impact on prison resources since the
policy saves money. As for alternatives at minimal
cost, the court doesn't know how much money is
involved here, but since the other Turner factors all
weigh in defendants' favor, they win regardless.
By taking this approach, the appeals court
avoids discussing the holding of the district court,
which is that deterrence and punishment alone are
sufficient purposes to sustain measures making
prison more unpleasant. Kimberlin v. United States
Dept. ofJustice, 150 F.Supp.2d 36, 44-45 (D.D.C.
2001). One concurring judge thinks that is the
preferable rationale. The other judge, concurring in
part and dissenting in part, says that the "incidental
cost" approach is "a broad--indeed limitless--Iegal
principle under which prison officials may ban not
only the use and possession of electric guitars, but
also the exercise of virtually any other constitutional
right that requires electricity, guard supervision, or
other prison resources--including the sending and
receiving of inmate mail, and even the use and
possession of books and magazines." (236) The
notion that the BOP relies on, that punishment and
deterrence are sufficient justification to restrict
constitutional rights, is also an open-ended
principle, and one which in general is inconsistent
with the Turner analysis.

Transportation to CourtiPre-Trial Detainees
Simmons v. Sacramento County Superior
16

Winter/Spring 2004

Court, 318 F.3d 1156 (9th Cir. 2003). A default
judgment was entered against the plaintiff in a
personal injury action because at the time of trial he
was in j ail and representing himself and the Sheriff
refused to take him to court.
Because the plaintiffs action neither
challenged his conviction (which had not yet
happened) nor addressed the conditions of his
confinement, under Lewis v. Casey, the failure to
take him to court was one of the "incidental (and
perfectly constitutional) consequences of ...
incarceration" (1160, quoting Lewis). The plaintiffs
pre-trial status does not alter this conclusion
because it was not the result of an intent to punish.
Punitive intent "cannot be inferred from the nature
of the restriction--the failure to transport....
Keeping detainees in j ail, rather than transporting
them to court dates unrelated to their criminal
charges or conditions of confinement, serves a
legitimate penological interest" and is not excessive
in relation to it.

Pre-Trial Detainees/Color of Law and Liability
of Private Entities/Medical Care--Staffing-Access to Medical Personnel/Medical Care-Standards of Liability--Serious Medical Needs,
Deliberate Indifference/Medical Carel
Medication/Intake/Pendent and Supplemental
Claims; State Law in Federal Courts
Natale v. Camden County Correctional
Facility, 318 F.3d 575 (3d Cir. 2003). The diabetic
plaintiff was brought to jail by way of an emergency
room, where he received a dose of insulin and a
note stating that he "must have insulin," but not how
often and in what form. Nobody asked at the jail,
he was admitted to the general population, and
received another dose of insulin only after 21 hours.
He was released the same day and then had a stroke,
which he attributes to delay in providing insulin.
The state law malpractice claim need not be
supported by an "affidavit of merit" where common
knowledge is sufficient to determine the merit ofthe
case. The district court erred in framing the
question as whether the defendants failed to give the
plaintiff insulin timely. What they did wrong was
fail to call the plaintiffs treating physician, or even
ask the plaintiff, how often it was required. At 580:

NATIONAL PRISON PROJECT JOURNAL

"While laypersons are unlikely to know how often
insulin-dependent diabetics need insulin, common
sense--the judgment imparted by human experience-would tell a layperson that medical personnel
charged with caring for an insulin-dependent
diabetic should determine how often the diabetic
needs insulin."
This court has applied the same standard for
medical care claims under the Fourteenth
Amendment as under the Eighth Amendment,
though it is careful to note (581 n.5) that it isn't
really deciding that the standards are the same.
Since it is applying an identical standard, it doesn't
matter that the plaintiffs pled their case under the
Eighth Amendment.
The parties agree that insulin-dependent
diabetes is a serious illness and the plaintiffhad a
serious medical need.
At 582: "Because PHS [Prison Health
Services] is a state actor, employees of PHS are
considered prison officials."
Evidence that jail personnel knew that the
plaintiff was an insulin-dependent diabetic, that he
needed insulin, and that "PHS employees delayed
medical treatment for non-medical reasons," i.e.,
their policy was to have everyone seen within 72
hours, but "there was no practice in place to
accommodate inmates with more immediate
medication needs" (583), supported a claim of
deliberate indifference.
Prison Health Services cannot be held liable
on a respondeat superior basis, but only on the
basis of a relevant corporate policy or custom that
caused the constitutional violation alleged. There is
no evidence of an affirmative policy or custom that
prevented employees from asking how often the
plaintiff required insulin, but there is "evidence that
PHS turned a blind eye to an obviously inadequate
practice that was likely to result in the violation of
constitutional rights" (584), i.e., a screening policy
under which nobody could get medication to an
inmate until the inmate had seen the doctor, and he
or she might not see a doctor for 72 hours.
State-Federal Comity
Broussardv. Parish a/Orleans, 318 F.3d
644 (5th Cir. 2003). Imposition of fees intended to

Winter/Spring 2004

cover the costs of the bail bond system as a
prerequisite for release on bail did not deny due
process or constitute an unreasonable seizure or
cruel and unusual punishment. (The sheriff was
authorized to charge $15 unless the charge was
suspended by the judge, and the clerk could charge
$5.)
PLRA--Exhaustion of Administrative
Remedies/PLRA--Mental or Emotional Distress
Mitchell v. Horn, 318 F.3d 523 (3d Cir.
2003). The district court dismissed for nonexhaustion. At 529: "Mitchell argues that he did not
file a grievance because prison officials denied him
the necessary grievance forms and, as a result, he
lacked 'available' remedies. (The grievance policy
says that grievances should be filed on the proper
form.) The Commonwealth concedes this point."
In any case, failure to exhaust is an affirmative
defense, so dismissal for non-exhaustion before
defendants were even served was error.
On the plaintiffs separate claim that he was
subject to retaliatory discipline, he exhausted by
appealing the hearing examiner's decision all the
way up. The court does not hold as some courts
have that the alleged retaliatory action (setting
plaintiff up for a false disciplinary ticket) must be
separately grieved.
The plaintiffs claim that drugs were planted
in his cell as retaliation for his complaints was not
frivolous; actions which, standing alone, might not
be unconstitutional, may be unconstitutional if
motivated in substantial part by a desire to punish
someone for exercising constitutional rights. The
elements of such a claim are (at 530):
(1) constitutionally protected
conduct, (2) an adverse action by
prison officials '''sufficient to deter a
person of ordinary firmness from
exercising his [constitutional]
rights,'" and (3) "a causal link
between the exercise of his
constitutional rights and the adverse
action taken against him." [Citation
omitted.]
Several months in disciplinary confinement "would
deter a reasonably firm prisoner from exercising his
17

NATIONAL PRISON PROJECT JOURNAL

First Amendment rights."
The plaintiff complained he was denied due
process in his disciplinary hearing, for which he
served several months in disciplinary custody. At
532: "In deciding whether a protected liberty
interest exists under Sandin, we consider the
duration of the disciplinary confinement and the
conditions of that confinement in relation to other
prison conditions." The inquiry is fact-specific.
This case seems similar to one in which this court
held that 15 months in administrative custody under
similar conditions was held not to have deprived the
prisoner of a liberty interest. Differences like one
visitor per month and one pack of cigarettes per two
weeks versus one visitor and two packs of cigarettes
a week are "marginal." However, the district court
should develop the record further, and should
consider whether the "deplorable conditions" the
plaintiff experienced during four days in a cell
smeared with feces and infested with flies
constituted a deprivation of liberty.
The mental/emotional injury provision of the
PLRA applies only to compensatory damages and
not to injunctive and declaratory relief. At 534
n.lO: Requests for damages for loss of "status,
custody level and any chance at commutation" are
unrelated to mental injury and are not affected by
the statute.
The plaintiff argued that his four-day
confinement under filthy conditions, during which
he said he was deprived of food, drink, and sleep,
described a physical injury meeting the requirement
of the mental/emotional injury provision. At 534:
"Mitchell [asserts] that physical injury--including
starvation, dehydration, unconsciousness, pain, and
hypoglycemia--follow inevitably from the
conditions he alleges, and that he should not be
penalized for inartful pleading." Id.: "Loss of food,
water, and sleep are not themselves physical
injuries. However, physical injuries could result
from such deprivation after four days." He gets a
chance to amend. The injury must be more than de
minimis.

Searches--Person--Prisoners/PLRA--Mentalor
Emotional Injury
Calhoun v. DeTella, 319 F.3d 936 (7th Cir.
18

Winter/Spring 2004

2003). The plaintiff complained of a strip search
done in the presence of female guards. This
allegation states an Eighth Amendment claim if the
search was "not merely a legitimate search
conducted in the presence of female correctional
officers, but instead a search conducted in a
harassing manner intended to humiliate and inflict
psychological pain." (939) This seems to mean that
the presence of opposite sex staff is neither here nor
there as long as the search is otherwise legitimate.
But then, at 940:
Calhoun alleges that the officers
sexually harassed him through
behavior unrelated to legitimate
prison needs. In particular, he
alleges that the guards made "ribald
comments" and sexually explicit
gestures during the search, and that
they forced him to perform sexually
provocative acts. Furthermore, he
alleges that the female guards present
during the search were neither mere
passersby nor performing the
legitimate penological function of
conducting or monitoring the search;
they were instead invited spectators.
These allegations, if true, can only
lead to the conclusion that the prison
guards conducted the strip search in
a manner designed to demean and
humiliate Calhoun, and we therefore
conclude that he sufficiently states a
claim under the Eighth Amendment.
Here, the court seems to allow that the presence of
opposite sex staff can be part of the harassment.
The PLRA mental/emotional injury
provision applies to this claim. The state Attorney
General argues that the statute bars suit entirely,
requiring physical injury for any suit involving
mental or emotional injury. At 940: "We cannot
agree. This contention if taken to its logical
extreme would give prison officials free reign to
maliciously and sadistically inflict psychological
torture on prisoners, so long as they take care not to
inflict any physical injury in the process." That
sweeps too broadly and is foreclosed by prior
decisions. Ifthere is a non-physical injury other

NATIONAL PRISON PROJECT JOURNAL

than mental or emotional injury, it is compensable.
At 940-41:
Indeed, in the context of First
Amendment claims, we have held
explicitly that prisoners need not
allege a physical injury to recover
damages because the deprivation of
the constitutional right is itself a
compensable injury, regardless of
any resulting mental or emotional
injury. . .. Using a similar rationale,
several of our sister circuits have
concluded that § 1997e(e) does not
bar all recovery for violations of due
process or the right to privacy....
These decisions reflect an emerging
view that § 1997e(e), as the plain
language ofthe statute would
suggest, limits recovery "for mental
and emotional injury," but leaves
unaffected claims for nominal and
punitive damages which seek to
remedy a different type of injury.
That reasoning applies to Eighth
Amendment claims involving no physical injury-the violation ofthe right itself is a cognizable injury.
At 941: "This conclusion readily follows from the
fact that nominal damages 'are not compensation for
loss or injury, but rather recognition of a violation
of rights.'" The same is true of punitive damages.
At 942: "Punitive damages are awarded to punish
and deter reprehensible conduct." They are based
on evil motive or recklessness, says the Supreme
Court. Punitives can be awarded without
compensatory damages. Id.
PLRA--Three Strikes Provision/Work
Assignments
Martin v. Shelton, 319 F3d 1048 (8th Cir.
2003). The plaintiff alleged that he was forced to
work in 30-degree weather without warm clothing
and subsequently forced him to work in humid, 98degree weather despite his high blood pressure.
To invoke the three strikes imminent danger
exception (at 1050), the danger must exist when the
complaint or appeal is filed, and must threaten
continuing or future injury. The plaintiffs

Winter/Spring 2004

complaint that defendants forced him to work
outside in inclement conditions on two occasions
five months apart under dissimilar conditions did
not support a claim of ongoing danger.
Psychotropic Medication
Singleton v. Norris, 319 F3d 1018 (8th Cir.
2003) (en banc). Executing a prisoner who has
regained competency through forced medication
does not deny due process or constitute cruel and
unusual punishment as long as the forced
medication is medically appropriate.
Correspondence--Legal and Official/Grievances
and Complaints about Prison
Davis v. Goord, 320 F.3d 346 (2d Cir. 2003)
(opinion by Stein, D.J., joined by Calabresi and
B.D. Parker). The plaintiff alleged that items of
legal mail were opened outside his presence.
At 351: "Interference with legal mail
implicates a prison inmate's rights to access to the
courts and free speech as guaranteed by the First
and Fourteenth Amendments to the U.S.
Constitution...." A court access claim requires
action that hinders a plaintiffs efforts to pursue a
legal claim. Id.:
In addition to the right of
access to the courts, a prisoner's right
to the free flow of incoming and
outgoing mail is protected by the
First Amendment. . .. Restrictions
on prisoners' mail are justified only if
they "further[] one or more of the
substantial governmental interests of
security, order, and rehabilitation ...
[and] must be no greater than is
necessary or essential to the
protection ofthe particular
governmental interest involved." ...
In balancing the competing interests
implicated in restrictions on prison
mail, courts have consistently
afforded greater protection to legal
mail than to non-legal mail, as well
as greater protection to outgoing mail
than to incoming mail. ...
While a prisoner has a right
19

NATIONAL PRISON PROJECT JOURNAL

to be present when his legal mail is
opened, Wolffv. McDonnell, ... an
isolated incident of mail tampering is
usually insufficient to establish a
constitutional violation. . .. Rather,
the inmate must show that prison
officials "regularly and unjustifiably
interfered with the incoming legal
mai1." ...
Retaliation claims are approached with
skepticism, since any adverse action can be
characterized as retaliation. At 352:
Thus, in order to survive a motion to
dismiss a complaint, "a plaintiff
asserting First Amendment
retaliation claims must advance nonconclusory allegations ... (1) that
the speech or conduct at issue was
protected, (2) that the defendant took
adverse action against the plaintiff,
and (3) that there was a causal
connection between the protected
speech and the adverse action."
Since filing grievances is constitutionally
protected (352), the plaintiff meets that prong ofthe
test. At 353, quoting Dawes v. Walker: "Only
retaliatory conduct that would deter a similar
situationed individual of ordinary firmness from
exercising his or her constitutional rights constitutes
an adverse action for a claim of retaliation."
"Insulting or disrespectful comments" generally do
not meet that standard. However, not being given a
high fiber diet, having to wait for a medical
appointment, and having to get around defendants'
obstruction of his grievances meet that standard at
the pleading stage (even though he managed to get
the grievances resolved through "extraordinary
efforts").

Procedural Due Process--Disciplinary
Proceedings, Visiting/Punitive
Segregation/Recreation and Exercise/Religion-Services Within Institution
Phillips v. Norris, 320 F.3d 844 (8th Cir.
2003). 37 days in punitive segregation for carrying
contraband, with denial of contact visits, exercise,
and religious services, did not constitute a
20

Winter/Spring 2004

deprivation of liberty under the Sandin atypical and
significant test.
At 847: "A prisoner does not have a liberty
interest in contact visitation."
Id.: "A prisoner may have a liberty interest
in some access to exercise, but we have never set a
time limit on how often prisoners must be allowed
to exercise.. " While thirty-seven days is perhaps
pushing the outer limits of acceptable restriction," it
isn't atypical and significant.
!d.: "Limitations on religious services,
especially for a short period of time, have also been
found not to present an atypical and significant
hardship."
The foregoing conditions do not violate the
Eighth Amendment, since the plaintiff fails to show
"that the defendants were deliberately indifferent to
his health or safety, ... and that they acted
maliciously for the purpose of causing him harm,
Whitley v. Albers. ..." This court has upheld worse
conditions against Eighth Amendment challenge.

Dental Care/Grievances and Complaints about
Prison
Farrow v. West, 320 F.3d 1235 (11 th Cir.
2003). The plaintiff entered prison with only two
lower teeth, having had several extractions during
his previous prison term and having been unable to
get dentures in the three years he was out. As a
result he experienced pain and difficulty eating. He
received dentures 15 months after they were
prescribed, but less than one month after he filed
suit.
The plaintiff had a serious medical need. At
1244-45: "Weare not saying that merely having
few or no teeth and a definite need for dentures
constitutes a serious medical need in each case. But
in Farrow's case, the evidence shows pain, continual
bleeding and swollen gums, two remaining teeth
slicing into gums, weight loss, and such continuing
medical problems, establishing a serious medical
need." The plaintiff need not show a "life-long
handicap or permanent loss"; such a showing is
required when a need for immediate or emergency
attention is claimed.
There was evidence that the dentist had
knowledge of the seriousness of the plaintiffs

NATIONAL PRISON PROJECT JOURNAL

condition but failed to provide dentures for 15
months, and there were hiatuses in treatment of
eight and three months. At 1247: "This substantial
and inordinate delay in treatment" raises a jury
question of deliberate indifference even though the
plaintiff didn't require immediate treatment, given
that the defendants have not come forward with any
reasonable explanation for the delays.

NON-PRISON CASES
Color of Law and Liability of Private Entities
Miranda v. Clark County, Nevada, 319 F.3d
465 (9th Cir. 2003). The plaintiff spent 14 years on
death row before his conviction was overturned
based on ineffective assistance of counsel. The
state did not reprosecute. Now he sues the county
and the public defender, alleging that his conviction
resulted from two policies promulgated by the head
of the public defender's office: (a) giving all
defendants a lie detector test and allocating minimal
resources to those who failed, and (b) assigning the
least experienced lawyers on the staff to capital
cases without training or experience in the special
demands of such cases. (The lawyer who defended
the plaintiff was "fresh out oflaw school and an
assistant public defender for a little over a year
[and] had never tried a murder case, much less a
capital case.")
The assistant public defender did not act
under color of law in representing the plaintiff,
consistently with the decision in Polk County v.
Dodson. However, the head of the public defender's
office acted under color of law and was a municipal
policymaker in his capacity as the administrative
head of the agency, responsible for allocating the
office's resources. The court describes the lie
detector policy as "a policy of deliberate
indifference to the requirement that every criminal
defendant receive adequate representation,
regardless of innocence or guilt." The policy of
assigning inexperienced counsel is not held
unconstitutional, but the plaintiff has sufficiently
alleged a claim of deliberate indifference to training
needs. The court is unimpressed by the state's
argument that "as a matter oflaw, attorneys who
have graduated from law school and passed the bar

Winter/Spring 2004

should be considered adequately trained to handle
capital murder cases."

Habeas Corpus/Transfers
Harden v. Pataki, 320 F.3d 1289 (11th Cir.
2003). The plaintiff could pursue his allegation of
unlawful extradition via § 1983, notwithstanding
Heck, since a favorable decision would not
invalidate his conviction or sentence. Also, a
person abducted from one state to another and
placed in the demanding state's custody has no
claim for release in habeas corpus. Where federal
habeas corpus is not available to address
constitutional wrongs, § 1983 must be.

I U.S. District Court Cases I
Sexual Abuse/Procedural Due Process-Administrative Segregation
Ortiz v. Voinovich, 211 F.Supp.2d 917
(S.D.Ohio 2002). A jury could reasonably find that
a shift supervisor who told a prisoner who was
being sexually harassed by staff to stay around her
friends and "do anything you have to do to protect
yourself' did not take sufficient action to protect the
prisoner, who was sexually assaulted the next day.
The supervisor could have reassigned the officer or
ordered him to take the evening offwork, or
assigned another officer to keep a close watch on
him; if she lacked the authority, a jury could find
she should have reported the complaint to someone
who did.
The supervisor is not entitled to qualified
immunity. The right to be protected from violence
in prison was clearly established. A reasonable
official would know that doing little to protect the
plaintiff constituted deliberate indifference. Relying
on the "buddy system" is ineffectual since the prison
presumably has a curfew and the plaintiff would be
alone at some point during the evening.
Plaintiffs allegation that she was placed in
the "hole" ("security control") in retaliation for
reporting staff misconduct survives summary
judgment. Although placement in administrative
segregation generally is not atypical and significant
under Sandin, this is. At 929-30:

21

NATIONAL PRISON PROJECT JOURNAL

Winter/Spring 2004

Placement in segregation based on
such a retaliatory motive, as opposed
to legitimate penological interests, is
an atypical and significant hardship.
It is not an ordinary incident of
prison life for a person claiming to
be the victim of sexual assault by a
prison guard to be thrown into "the
hole" for no reason other than the
fact she reported the assaults to
prison officials. Due process
demands some legitimate
justification for putting Ortiz in
security control.
This is a pretty idiosyncratic view of how to do an
"atypical and significant" analysis.

The court cites the Rule 11 requirement that
anyone who files a lawsuit certify by his signature
that the allegations of the complaint are well
founded based on reasonable inquiry, and questions
whether multiple pro se litigants will actually be
able to do this. At 943: "The cost to prisoner pro se
litigants of managing a multi-plaintiff suit quickly
outpaces their ability to pay the costs. Prisoners
earn meager wages, if they earn wages at all. The
cost of photocopying documents alone is often
prohibitive." Prisoners who allow other prisoners to
prosecute joint actions on their behalf risk
subjection to the three strikes provision ofthe
PLRA. Exactly how any of this reasoning authorizes
the court to overrule Rule 20, Fed.R.Civ.P., on
permissive joinder of parties, is not explained.

Procedural Due Process--Temporary Release
McGoue v. Janecka, 211 F.Supp.2d 627
(E.D.Pa. 2002). The plaintiff did not have a liberty
interest in staying on work release, since his
placement on work release was part of his criminal
sentence, and the sentencing judge made the
decision to remove him from work release. Nor is
there a state-created liberty interest, since revocation
"did not impose anything upon plaintiff outside of
the ordinary incidents of prison life."

Drug Dependency TreatmentlMedical Care-Standards of Liability--Serious Medical Needs,
Deliberate Indifference/Qualified Immunity
Gonzalez v. Cecil County, Md., 221
F.Supp.2d 611 (D.Md. 2002). The decedent was
arrested and told jail medical personnel that he was
a heroin addict likely to undergo withdrawal. The
only treatment he got was Clonidine, a blood
pressure medication, twice a day, and Kaopectate.
He died two days after arrest of "pneumonia,
complicating narcotics abuse."
The allegation that the defendant nurses
knew the plaintiff was a heroin addict likely to
undergo acute withdrawal symptoms and that he
died of causes known to be related to drug
withdrawal support the claim that heroin addition is
a serious medical need and that the defendants were
deliberately indifferent. The fact that they provided
some treatment does not exonerate them if the
treatment was completely inappropriate.
Defendants are not entitled to qualified
immunity based on the claim that they acted in
conformity with established protocols. They cite no
authority for the proposition that they are entitled to
qualified immunity for "just following orders."

PLRA--Exhaustion of Administrative Remedies
Peoples v. Beldock, 212 F.Supp.2d 141
(W.D.N.Y. 2002) (Larimer, J.). Plaintiff said he
shouldn't have to exhaust because Porter v. Nussle
hadn't been decided and the law didn't require
exhaustion of his claim at the time he filed it. The
court dismisses without prejudice, saying he should
present his argument based on the change in law in
a new grievance and try to show that the change in
law constitutes "mitigating circumstances."
Pro Se Litigation
Lindell v. Litscher, 212 F.Supp.2d 936
(W.D.Wis.2002). The court declares that pro se
prisoner litigants will no longer be allowed to join
their claims; they will have to file individually.
This conclusion is reached based on manageability
grounds, and not on PLRA filing fee grounds as in
Hubbard v. Haley.
22

Homosexuals and TranssexualslMedical Care-Standards of Liability--Deliberate Indifference,
Serious Medical Needs/Financial Resources
Kosilek v. Maloney, 221 F.Supp.2d 156

NATIONAL PRISON PROJECT JOURNAL

(D.Mass. 2002). The plaintiff, a pre-operative maleto-female transsexual, challenged the failure to
provide him treatment and sought an injunction
requiring prison officials to retain a gender disorder
specialist and then do what the specialist says.
Defendants' policy---made by the Commissioner
rather than medical authorities--is to "freeze"
transsexuals in the condition they are in when first
incarcerated by providing only the treatment they
received at that time. This policy was motivated by
a combination of sincere security concerns and a
fear of public and political criticism. At 162: "As
stated earlier, security is a legitimate consideration
for Eighth Amendment purposes. A concern about
political or public criticism for discharging a
constitutional duty is not."
The court says that going forward the
Commissioner is on notice of the plaintiffs serious
medical need and lack of proper treatment, and that
it expects he will respond reasonably, by allowing
qualified medical professionals to recommend
treatment. If hormones or gender reassignment
surgery are recommended, he may properly consider
whether security issues make it impossible to
provide adequate medical care in prison, keeping in
mind that the plaintiff is already living largely as a
woman in a medium security male prison without
presenting a security problem. Denial of the
recommended care for reasons of cost or
controversy will violate the Eighth Amendment. At
161: "It is not, however, permissible to deny an
inmate adequate medical care because it is costly.
In recognition of this, prison officials at times
authorize CAT scans, dialysis, and other forms of
expensive medical care required to diagnose or treat
familiar forms of serious illness."
At 175: The experts agree "that a rigid
blanket policy prohibiting the initiation of hormones
in every case is not appropriate. This court
concurs."
At 183: "Generally, decisions concerning
medical care for an inmate must be based upon
Since the Supreme
'sound medical judgment.
Court's decision in Estelle, many other courts have
held that consciously choosing 'an easier and less
efficacious' course of treatment plan may constitute
deliberate indifference, if the choice was made for
III • • •

Winter/Spring 2004
non-medical reasons not rooted in a legitimate
penological purpose." The defendants' claim that
they have offered "some treatment" and that is all
the law requires is rejected, since the care the
plaintiff has received (counseling) is clearly
inadequate; "no informed medical judgment has
been made by the DOC concerning what treatment
is necessary to treat adequately Kosilek's severe
gender identity disorder." (186) The "Guidelines"
adopted by the Commissioner precluded the
possibility that the plaintiff will ever be offered
forms of treatment that may be necessary for his
disorder.
Gender identity disorder is not necessarily a
serious medical need; it has degrees of severity; but
the plaintiffs case is serious, having prompted him
to attempt suicide twice and self-castration once.

AIDS/Pre-Trial Detainees/Crowding/PLRA-Prospective Relief Provisions--Entry of Relief
Injunctive Relief/Monitoring and Reporting
Foster v. Fulton County, Georgia, 223
F.Supp.2d 1292 (N.D.Ga. 2002). HIV-positive jail
prisoners brought suit over conditions of
confinement and inadequate medical care. They
obtained a settlement in 2000. Based on the report
of Robert Griefinger, the court-appointed monitor,
and subsequent proceedings, the court concludes
that "much remains to be done to achieve full
compliance." To relieve overcrowding, it orders
defendants to start providing counsel within 72
hours of arrest for minor offenders who are denied
bail; to expand the authority of pre-trial services to
reduce the number of persons denied pre-trial
release or denied reasonable bond; to develop
mental health diversion and discharge planning; to
increase compensation for appointed counsel in
misdemeanors; and other interventions in the
criminal justice system. It directs development of a
staffing plan adequate to meet HIV-positive
prisoners' health care needs, including distribution
of medications and transportation to medical
appointments. It directs a system for timely access
to specialty care and timely delivery of medication.
It requires evaluation of the food service and steps
to see that inmates get prescribed medical diets. It
directs development of a plan to repair or replace
23

NATIONAL PRISON PROJECT JOURNAL

existing plumbing and HVAC systems. At 1300: "If
the jail cannot be renovated to cure these problems,
defendants should so advise the Court so that
construction of a new jail can be considered." Id. at
n.9: "The Court notes that in the past it has ordered
the construction of new jails in Cobb, Fayette, and
Douglas Counties after the county commissioners
acknowledged that a new facility was needed."
Publications/Injunctive Relief/PLRA-Prospective Relief Provisions--Entry of
Relief/Deference
Ashker v. California Dept. ofCorrections,
224 F.Supp.2d 1253 (N.D.Cai. 2002), a!f'd, 350
F.3d 917 (9 th Cir. 2003). The court strikes down a
rule that prisoners could only receive books in the
mail (sources already restricted to "approved mail
order vendors") if a pre-printed label signed by the
prisoner, along with a vendor stamp, is placed on
the package.
The policy fails the Turner v. Safley standard
because it is not rationally related to legitimate
penological objectives. The concern to make sure
books come directly from an approved vendor can
be satisfied by checking the vendor's address label
and invoice to make sure the package wasn't sent to
a third party and then re-shipped; while address and
invoice could be forged, so could the prison's labels.
Also, all personal property received by inmates in
themail.includingbooksandmagazines.is
searched before delivery to the prisoner. A claim
that on a single occasion drugs escaped detection by
a fluoroscope, without any detail about the incident,
even whether it involved books, proves nothing,
especially since all packages are searched anyway.
The fact that the label policy applies only to books
further undermines any common-sense relationship
to controlling contraband.
As to efficiency of mail processing,
defendants argued that packages not properly
labelled can be immediately returned to sender; but
in fact they are opened and searched anyway.
Defendants' assertion that only three people are
responsible for a "huge volume of mail property"
does not support their case absent evidence of how
much ofthemail consists of book packages, how
long it takes to search each package, and whether
24

Winter/Spring 2004

the label policy has in fact made operations more
efficient.
At 1263: Under the PLRA narrow tailoring
requirement, the proper relief is to enjoin the
challenged policy generally, not just for the
plaintiff, since it is a prison-wide policy.
Medical Care--Standards of Liability--Deliberate
Indifference, Serious Medical
Needs/Correspondence--NonLegal/Deference/Attorney Consultation
Rodriguez v. Ames, 224 F.Supp.2d 555
(W.n.N.Y. 2002). The plaintiff was denied the
right to receive information from the "Penn-Pals
Prison-Inmate Services Network," which places
prisoners' information onto an Internet site so
people can write to the prisoner. The action is
upheld under the Turner standard.
The plaintiff complained that a corrections
counselor stood three feet away from him during a
legal call. The call was only to a paralegal
employed by an attorney that plaintiff hoped would
represent him, and at the end of it the paralegal said
he would not take the plaintiffs case. There was no
Sixth Amendment violation because no criminal or
quasi-criminal proceeding was involved. At 566:
"Moreover, plaintiff was not communicating with
an attorney (or a member of his or her staff) who
had agreed to represent plaintiff in any capacity."
There is no violation of the right of access to courts
because the plaintiff was seeking counsel for this
very case, and he's brought it himself and
prosecuted it vigorously, so "plaintiffs access to the
courts has in no way been impinged upon." (566)
The foregoing holding illustrates why much
of what we used to think of under the broad rubric
of access to courts needs to be re-thought, e.g., as
claims under the First or Fourth Amendment.
Correspondence--Non-Legal/Deference
Hall v. Johnson, 224 F.Supp.2d 1058
(E.n.Va.2002). A policy limiting items of
incoming mail (not including legal, "special
purpose," educational, vendor, or governmental
mail, or to packages) to one ounce each did not
violate the First Amendment. The court first
characterizes the restriction as de minimis, since

NATIONAL PRISON PROJECT JOURNAL

anybody with more than a one-ounce letter can send
it in two envelopes, but then upholds it under the
Turner standard anyway. The policy has a rational
relationship to limiting contraband because it makes
scanning the mail easier. It doesn't attempt to limit
the amount of mail; that would present a more
serious issue. (The court does not explain how
opening more envelopes to go through the same
number of pages advances any interest. "Given the
deference afforded prison officials in light oftheir
expertise in such matters...," etc.) There are plenty
of alternative ways to exercise First Amendment
rights, since the regulation is content neutral and
does not impact the amount of mail prisoners can
receive. There is a potential "ripple effect" of
abrogating the regulation because prison officials
have said (again, "in their expert opinion") that it's
necessary in order to give mail room staff enough
time to screen mail effectively. The plaintiff has not
suggested any alternatives with de minimis impact
on security; additional screening personnel would
deplete the "severely limited" prison system budget.

PLRA--Exhaustion of Administrative
Remedies/Grievances and Complaints about
Prison/Access to Courts--Punishment and
Retaliation/Medication/Medical Care--Standards
of Liability--Deliberate Indifference, Serious
Medical Needs
Baskervile v. Blot, 224 F.Supp.2d 723
(S.D.N.Y. 2002). This decision construes the
PLRA exhaustion requirement in light ofthe
statement in Porter v. Nussle that its purpose is to
give prison officials an opportunity to resolve
problems. At 730: Although the plaintiffs
grievance was narrower in scope than his lawsuit,
prison officials addressed his claims, so he is
allowed to go forward with all of them.
At 731: "A prisoner's filing of a grievance
against a corrections officer is protected by the First
Amendment and retaliation in response to such a
grievance is an actionable claim." The same goes
for lawsuits. To plead a retaliation claim, the
plaintiff must allege subjection to conduct that
would deter a person of ordinary firmness from
exercising rights. Allegations of physical assault,
issuance of a false misbehavior report, and a

Winter/Spring 2004
restraint order requiring physical restraints and the
denial of other privileges, all met that standard. The
plaintiff sufficiently alleged a causal connection.
Despite the three-year gap between the lawsuit and
the alleged retaliation, and the failure to set out any
time frame or other details for his grievances, the
fact that the disciplinary charges were dismissed and
the restraint order was later found unwarranted
weigh in plaintiffs favor, as does the allegation that
officers made statements supporting a retaliatory
motive. A "colorable suspicion" suffices.
The plaintiffs allegations that a nurse failed
properly to evaluate his injuries though she was
aware of prior injuries, and failed to treat him
despite knowing that he could sustain further injury
without treatment, sufficiently stated a claim of
serious medical needs and of deliberate indifference
(a conclusion bolstered by evidence that once he got
to another prison, he was x-rayed, given medication,
and referred to a doctor for the injuries).
A prescription for high blood pressure
medication arguably indicates a serious medical
condition, but the plaintiff failed to allege deliberate
indifference based on a delay of only a few days in
refilling that medication.

PLRA--Exhaustion of Administrative
Remedies/Pre-Trial Detainees/Access to
Courts/Use of Force--Restraints/Procedural Due
Process--Disciplinary Proceedings/Publications/
Correspondence/Damages--Access to Courts
Davis v. Milwaukee County, 225 F.Supp.2d
967 (B.D.Wis. 2002). The plaintiff alleged that he
had no access to legal materials during 13 months in
jail, during which he tried to defend himself and
also to pursue five civil cases.
The plaintiff does not have a court access
claim as to his criminal case, since he had a courtappointed lawyer and/or stand-by counsel.
Exercising one's right to proceed pro se does not
give rise to alternative rights such as access to a law
library.
The plaintiffs right of court access was
violated by defendants' interference with his ability
to exhaust. The absence of legal materials meant he
did not know about the exhaustion requirement; if
he had known, he would not have had access to the
25

NATIONAL PRISON PROJECT JOURNAL

jail's grievance policy. He was advised by staffthat
the matter he sought to grieve was not grievable.
Res Judicata and Collateral Estoppel/Procedural
Due Process--PropertylMedication/Confiscation
and Destruction of Legal Materials/Food/Dental
Care
Livingston v. Goord, 225 F.Supp.2d 321
(W.D.N.Y. 2002) (Larimer, J.). The plaintiffs
allegation that his pain medication (ibuprofen) was
discarded by an officer does not state an Eighth
Amendment claim. Although denial of pain
medication could sometimes be considered
sufficiently serious, the plaintiffwas not suffering
"debilitating or intense pain" and the medication
only reduced, not eliminated, it anyway. At 329:
"An assertion of pain sensation alone,
unaccompanied by any large medical complications,
does not amount to a serious medical need under the
Eighth Amendment." (Citation omitted)
Hygiene/Protection from Inmate
Assault/Crowding
Liles v. Camden County Dept. of
Corrections, 225 F.Supp.2d 450 (D.N.J. 2002). An
allegation that fighting broke out when prisoners got
splashed with urine as they slept on the floor near
the toilets stated an Eighth Amendment claim, since
protection from physical harm is a basic need under
the Eighth Amendment. Special masters' reports
that the Warden said he read raised a material issue
of fact as to supervisory officials' actual knowledge
of the problem.
Pre-Trial Detainees/Use of ForcelMunicipalities
Jordan v. Cobb County, Ga., 227 F.Supp.2d
1322 (N.D.Ga. 2001). The plaintiff was arrested for
DWI; while in a police holding cell, an officer shot
him in the abdomen under disputed circumstances.
The Fourteenth Amendment use of force
standard is governed by the factors set out in
Johnson v. Glick. It "prohibits conduct that is
wanton, arbitrary, or intended to punish and ... may
require a showing of malicious or sadistic intent by
the officer." The Fourth Amendment provides a
more advantageous standard to plaintiffs (there's an
extensive discussion of why it's better), but it is not
26

Winter/Spring 2004
applicable because the plaintiff was a pre-trial
detainee. The court doesn't explain where the line
between arrestee and detainee is or why the plaintiff
is on the detainee side of the line.
PLRA--Three Strikes Provision/In Forma
Pauperis/PLRA--Screening and
Dismissal/Medical Care--Standards of Liability-Deliberate Indifference
Bond v. Aguinaldo, 228 F.Supp.2d 918
(N.D.IlI. 2002). The plaintiffs allegation that he has
medical problems that are "serious and ongoing and
causing him severe pain" meets, for pleading
purposes, the exception to the "three strikes"
provision for "imminent danger of serious physical
injury." He is not limited to suing only those
defendants directly responsible for the danger.
Since all his claims address the same condition for
which he is presently being denied care, he is
allowed to proceed against those responsible for his
past treatment at prisons where he no longer resides.
Pre-Trial Detainees/Protection from Inmate
AssaultlMunicipalitieslMedical Care--Statutes of
Limitations--Deliberate Indifference/State Law
Immunities
Gullett v. Haines, 229 F.Supp.2d 806
(S.D.Ohio 2002). The plaintiff, in a segregation
unit, was beaten during his one hour out of cell by
another prisoner. The officer is not entitled to
summary judgment, since plaintiff submitted
evidence showing that (at 821)
it appears that he was in a cellblock
where physical contact with other
inmates was forbidden, that inmates
in that cellblock were afforded a
single hour of solitary free time each
day, that the controls to the
individual cell doors were in the
exclusive control of the corrections
officers, and that Officer Jolly was
the corrections officer in charge of
said controls. . . . Furthermore, on
that day, while enjoying his one free
hour on the range, the plaintiff was
brutally beaten by an inmate....
These facts could support liability, since the

NATIONAL PRISON PROJECT JOURNAL

conditions were objectively unsafe (the officer
acknowledged that inmates are placed in the unit
because they are assaultive and combative). At 82122: "If the policy of segregation is ignored, such
that inmates in that sort of environment are
permitted to interact, an objective threat to the
safety of the affected inmates would be posed." The
plaintiff could also show deliberate indifference by
showing that the officer knew that the plaintiffs
attacker harbored animus toward him and that he
would act on that animus, and that he allowed a
confrontation to take place. (A paragraph later: it is
reasonable to infer that the officer "knew that other
inmates ... were likely to assault the plaintiff'
given the opportunity, and that he "was responsible
for not preventing such other inmate or inmates
from actually doing so." (823) So it is unclear
whether the court requires plaintiff to show that the
officer had knowledge about his assailant.)
PLRA--Exhaustion of Administrative
Remedies/Religion--Practices
Ford v. McGinnis, 230 F.Supp.2d 338
(S.D.N.Y. 2002) (Scheindlin, J.). The Muslim
plaintiff missed the Eid ul Fitr observances (i.e., end
of Ramadan feast) at his prison because he was
placed in SHU and transferred.
The plaintiff filed a grievance at the sending
prison, which was dismissed because he had been
transferred; he wrote to the Central Office Review
Committee complaining of no response; he was told
to seek review ofthe dismissal from the sending
prison before appealing; he did so, but did not
subsequently appeal to CORC, after failing to
receive any response from the sending prison. The
court declines to dismiss for non-exhaustion. At
343 n.5: "Under these circumstances, Ford was not
obligated to pursue an appeal before hearing from
Downstate. Although all of the administrative
remedies may not have been fully exhausted
technically, Ford made a substantial effort to obtain
administrative remedy."
Defendants argued that their actions didn't
violate the First Amendment because the feast "was
devoid of religious significance under the tenets of
Islam." Plaintiff responded that protected beliefs
"include any individualized, subjective practice

Winter/Spring 2004

whether grounded in an authentic religion or not.
Such an interpretation would extend First
Amendment protection to the idiosyncratic practices
of all inmates, no matter how unreasonable." (347)
The court cites a hypothetical belief that Holy
Communion requires drinking real blood. While
the plaintiffs claim in this case is not so bizarre,
"plaintiff points to no limiting principle, nor can this
Court find one, that would prevent plaintiffs
interpretation ofJackson from overwhelming
prisons with 'sincerely held' religious beliefs." The
Second Circuit's decision in Jackson v. Mann, 196
F.3d 316 (2d Cir. 1999), which plaintiff cites in
support of his argument, really only stands for the
proposition that "an inmate's beliefthat he is a
member of an established religion is entitled to First
Amendment protection, so long as that belief is
sincerely held." (346)
This decision appears contrary to the
Supreme Court's holding that First Amendment
protection "is not limited to beliefs which are shared
by all of the members of a religious sect." Thomas
v. Review Board, 450 U.S. 707, 715-16 (1981); see
Hernandez v. Commissioner, 490 U.S. 680, 699
(1989) ("[I]t is not within the judicial ken to
question the centrality of particular beliefs or
practices to a faith, or the validity of particular
litigants' interpretations of those creeds."); DeHart
v. Horn, 227 F.3d 47,56 (3d Cir. 2000) (en banc);
Love v. Reed, 216 F.3d 682,688-89 (8th Cir. 2000);
Martinelli v. Dugger, 817 F.2d 1499, 1504 (11th
Cir. 1987) ("[T]he Supreme Court has admonished
federal courts not to sit as arbiters of religious
orthodoxy.")
Further, the "limiting principle" in this
constitutional case is quite obvious: the Turner
standard itself, which requires only a reasonable
relationship between restrictions on religious
practice and legitimate penological interests, and
would suffice to protect prison officials from the
Communion blood example the court cites--as
would, for that matter, the compelling interest/least
restrictive alternative standard reinstated by the
Religious Land Use and Institutionalized Persons
Act.
Religion--Services Within Institution/Religion-27

NATIONAL PRISON PROJECT JOURNAL

Practices/PLRA--Exhaustion of Administrative
Remedies/Class Actions--Settlement, Effect of
Judgments and Pending Litigation/Summary
JudgmentlDeference
Gonzalez v. Litscher, 230 F.Supp.2d 950
(W.D.Wis. 2002). The Native American plaintiff,
housed in the state Supennax facility, complained
of deprivation of a sweat lodge, medicine bag,
ceremonial drums, feathers and smoking pipes, and
confiscation of a religious book from his cell.
Even though the defendants presented no
facts, "no reasonable person" could find that denial
of a sweat lodge violates the First Amendment as
applied to a prisoner in the most restrictive status at
the state's highest security prison. The court
engages in no Turner/O'Lone standard analysis, just
cites some case law.
The court denies summary judgment on the
claims of denial of medicine bag, ceremonial drums,
feathers and a smoking pipe, since the parties have
offered no argument or evidence for a
Turner/O'Lone analysis. However, defendants are
entitled to qualified immunity on these claims.
PLRA--Exhaustion of Administrative Remedies
Carter v. Robinson, 211 F.R.D. 549
(E.D.Mich. 2003). A plaintiff who had filed a
complaint after exhausting administrative remedies
could file an amended complaint adding new claims
as long as he had exhausted the new claims before
filing the amendment. The court rejects the
defendants' argument that new claims must be filed
in a separate complaint.
PLRA--Exhaustion of Administrative Remedies
Jeanes v. U.S. Dep't ofJustice, 231
F.Supp.2d 48 (D.D.C. 2002). Plaintiff failed to
exhaust because he did not try to resolve his claims
infonnally and did not file a remedy request with
the warden. Though the regulations pennit
bypassing these steps if the inmate reasonably
believes the issues are too "sensitive," the Regional
Office said they were not too sensitive and he
should go back and follow the procedures. The
agency, not the court, has discretion to decide what
is "sensitive."
The plaintiffs objection to bringing his
28

Winter/Spring 2004

complaint to the same people who perpetrated the
offenses against him amounted to a claim that the
administrative remedy was futile. However, as long
as it is there, it is available for purposes of the
PLRA.

Procedural Due Process--Disciplinary
Proceedings
Rivera v. Wohlrab, 232 F.Supp.2d 17
(S.D.N.Y. 2002). The plaintiff was disciplined for a
positive urine test and placed in keeplock for 90
days. Defendants said keeplock is like general
population, since keeplocked prisoners are allowed
to leave their cells for showers, visits, and legal
visits; get three showers a week; and are kept in
their own cells. The plaintiff, however, said he was
actually moved to an SHU with worse conditions.
These allegations create an issue of material fact as
to the conditions and duration of his confinement.
The plaintiffs disciplinary hearing did not
deny due process. Allegations of violation of the
state regulations concerning a corroborating test by
a different testing officer and concerning chain of
custody and handling of the urine sample did not
state a constitutional violation. As long as there
was "some evidence" of guilt (which the test results
constituted), due process was satisfied.
Pre-Trial Detainees/Transfer and Admission to
Mental Health Facilities/Negligence, Deliberate
Indifference and Intent/Financial Resources
Terry v. Hill, 232 F.Supp.2d 934 (E.D.Ark.
2002). Delays in transferring detainees to a forensic
psychiatric hospital, which sometimes exceeded a
year and on the average exceeded eight months for
inpatient evaluations and six months for treatment,
amounted to punishment under Wolfish. At 943-44:
The lack of inpatient mental health
treatment, combined with the
prolonged wait in confinement,
transgresses the constitution. The
lengthy and indefinite periods of
incarceration, without any legal
adjudication of the crime charged,
caused by the lack of space at [the
hospital], is not related to any
legitimate goal, is purposeless and

NATIONAL PRISON PROJECT JOURNAL

cannot be constitutionally inflicted
upon the members ofthe class.
While the Court will await the
remedy phase of this litigation to
attempt to determine what length of
wait is constitutionally permissible,
the length of wait experienced by
inmates today is far beyond any
constitutional boundary.
If the Court applied the
standard of deliberate indifference
..., the Court would find, looking at
the entire state of Arkansas,
including the executive and
legislative branches, that the State
has been deliberately indifferent to
the needs of pretrial detainees
ordered to receive mental health
evaluations or treatment. In his
official capacity, [the defendant] is
merely a representative ofDHS,
DMHS and the State of Arkansas in
the system of mental health
treatment. He is only able to operate
the system under the financial
structure allocated to his office from
the Arkansas Legislature. Under the
existing structure and financial
system, DMHS has known for at
least five years of the serious mental
health needs of class members and
has been aware that the failure to
provide inpatient care to class
members violated state circuit court
orders. DMHS has known that the
failure to provide inpatient care
amounts to punishment of members
of the class and increases the risk
that they will harm themselves or
others or suffer harm from other
inmates.
This is about as explicit a statement I've seen
ofthe proposition that in an official capacity case,
deliberate indifference is to be assessed with respect
to the knowledge of the governing entity as a whole.
The court notes that reform legislation was
passed but the legislature removed the language

Winter/Spring 2004

requiring funding. Limited resources do not excuse
constitutional violations.

Procedural Due Process--Disciplinary
Proceedings/Grievances and Complaints about
Prison/lnmate Legal Assistance/Qualified
ImmunitylDeference/PLRA--Mental or
Emotional Injury
Auleta v. LaFrance, 233 F.Supp.2d 396
(N.D.N.Y. 2002) (Kahn, J.). The plaintiff alleged
that he was placed in keeplock for seven and a half
days without a hearing in retaliation for helping
another prisoner with a grievance in his capacity as
inmate legal assistant.
The plaintiff has no due process claim
because seven and a half days locked up is not
atypical and significant under Sandin.
The court rejects the defendants' argument
that Shaw v. Murphy says there is no First
Amendment right to provide legal assistance to
another prisoner. Rather, Shaw says there is no
special right to do so, and the Turner standard
governs. The defendants put forth no interest that
was advanced by keeplocking the plaintiff. At 400:
"While in future cases the Government may be able
to identify government interests that are supported
by punishing inmates for conducting authorized
activities that were part of their assigned prison job,
this Court finds it difficult to conceive of such
interests."
The plaintiff had no alternative means of
providing authorized legal assistance to the other
prisoner. Prohibiting officials from keeplocking
prisoners for providing authorized legal assistance
as part of the prisoners' job assignments is not likely
to have a significant "ripple effect" on other
prisoners or staff. The question of alternative
means of satisfying the legitimate governmental
interest at stake is of limited relevance when no
legitimate interest has been advanced.
The plaintiff has standing to argue that
defendants' placement of him in keeplock was
unconstitutional because it interfered with the other
prisoner's right to petition for the redress of
grievances. He will be permitted to amend his
complaint to "allege that by placing Plaintiff in
keeplock, Defendant interfered with Rivera's right

29

NATIONAL PRISON PROJECT JOURNAL

to file a grievance." (402) By implication, the court
holds that he doesn't have a First Amendment right
of his own to protest someone else's treatment.
Placement in keeplock for seven and a half
days is sufficient adverse action to support a
retaliation claim under the "individual of ordinary
firmness" standard. The fact that it happened two
days after he identified himself as the person who
helped the grievant sufficiently supported a causal
connection.
At 403: "Plaintiff has not brought a § 1983
claim 'for mental or emotional injury.' Rather, he
has brought a claim for violations of his First
Amendment rights. The physical injury requirement
in 42 U.S.C. § 1997e(e) therefore does not apply to
the instant action. See, e.g., Cancel v. Mazzuca, 205
F.Supp.2d 128, 138 (S.D.N.Y.2002)...."
The defendants are not entitled to qualified
immunity. Though the court is not familiar with a
case in point, the Turner standard has been
established for many years..
Protection from Inmate
AssaultIMootness/Staffing--Training/PLRA-Prospective Relief Provisions--Entry of
Relief/Remedial Principles
Skinner v. Uphoff, 234 F.Supp.2d 1208
(D.Wyo. 2002). The court finds liability on
summary judgment on plaintiffs' claim of failure to
protect from inmate assault, based on defendants'
failure to carry out their own policy of investigating
inmate assaults to learn why they happened and to
prevent future occurrences, which they knew was
important and conceded would have prevented
some ofthe violent incidents at issue. At 1215:
"The Court agrees with Plaintiff that this 'code of
silence' adopted by the administration ... is
unconstitutional. It prevents supervisors from
discovering and abating dangerous prison
conditions." It will undermine any procedural
improvements. The code of silence amounts to
deliberate indifference.
No officer has ever been disciplined for
violating any prison policy involving inmate
assaults, even in cases where such violations have
been identified. At 1216: "Failure to discipline
subordinates whose behavior violates the
30

Winter/Spring 2004
constitutional rights of inmates can amount to
deliberate indifference if the supervisors knew of
the violations."
Allegations of changed policies do not refute
plaintiffs' case. At 1215: "New and improved
policies are meaningless if they are not followed.
Up to this point, there is simply no evidence that
such good-faith supervision, training, and
enforcement efforts are underway." The court notes
that defendants "claim repentance and show
evidence of reform in order to avoid a judgment
against them ... so often that an entire body of law
has been developed to address the problem." (1216)
Mootness may not be found unless the defendants
show that the unconstitutional practices have been
discontinued and there is no reasonable expectation
they will recur.
The court directs the parties to submit plans
"that, when implemented, will promptly and
effectively abate the Eighth Amendment violations
noted in this decision and reasonably protect against
a repetition ofthose violations," and "set forth the
remedies that will be implemented, the manner of
implementation, and a schedule of implementation."
It notes officials' testimony about a "culture" at the
prison that may make it difficult for senior
administrators to properly supervise and discipline
staff, and directs that the remedy address this
"culture."
Medical Care--Standards of Liability--Deliberate
Indifference/Medical Care--Standards of
Liability--Serious Medical Needsillenial of
Ordered Care/Personal Involvement and
Supervisory Liability/Class Actions--Effect of
Judgments and Pending Litigation
Johnson v. Wright, 234 F.Supp.2d 352
(S.D.N.Y. 2002) (Gorenstein, M.J.). The plaintiffs
Hepatitis C was being treated with Interferon and he
had a relapse. His doctor recommended that he be
treated with "Rebetron Therapy" (Interferon plus
Ribivarin) "as soon as approval can be obtained";
another doctor, to whom he had been referred, made
the same recommendation, as did a third doctor. He
was refused that treatment because he had had a
positive urine test for cannabinoids a year
previously. The consulting doctor reiterated the

NATIONAL PRISON PROJECT JOURNAL

recommendation. The next year (after the plaintiff
had grieved and otherwise complained) a nurse and
doctor at anotner prison asked that the plaintiff
receive Rebetron Therapy, and he did.
The plaintiffs allegation that his Interferon
treatment was inadequate and amounted to "no
treatment at all" and the failure to provide Rebetron
Therapy stated a deliberate indifference claim. At
360: "The fact that a plaintiff received regular
medical care does not preclude a finding of
deliberate indifference where the 'course of
treatment was largely ineffective and [the
defendant] declined to do anything more to attempt
to improve [the plaintiffs] situation.'" (Citation
omitted)
The allegation of a relapse in Hepatitis C
treatment sufficiently alleges a serious medical
need, since he alleges that the disease, if not treated
properly, would cause "severe internal organic
damage, e.g., chronic liver disease, cirrhosis, liver
cancer and inevitably death."
Differences of opinion over medical
treatment generally don't raise a constitutional issue.
However, here all the treating doctors agreed, and
treatment was denied by the prison administration
and a doctor who never examined or treated the
plaintiff, but who applied a policy barring treatment
where there has been a positive test for illegal drugs.
This is important. This is the most explicit
statement I have ever seen that meddling by persons
other than the treating doctors doesn't reduce the
controversy to a difference of opinion over proper
treatment.
Women/Crowding/lnjunctive Relief-Preliminary
Laube v. Haley, 234 F.Supp.2d 1227
(M.D.Ala.2002). The plaintiffs sued over crowding
and other conditions in the women's prisons and
seek a preliminary injunction. One of the three
prisons, Tutwiler, was designed for 364 prisoners
and holds 1017. The record shows that
overcrowding has grossly overtaxed facilities and
services such as medical care, that most prisoners
spend most of their time on their beds, that visibility
is limited in the dorms because of stacked bunk
beds, the facility is severely understaffed (92

Winter/Spring 2004

security staff for 1017 inmates) and dorms are
regularly left unattended (e.g., with roving officers
that alternate between dorms), some prisoners are
overclassified and mentally ill prisoners are often
placed in general population, weapons are widely
available, there are many fights (because inmates
can't retreat from conflicts, resources are scarce, and
tension is increased by crowding), there isn't enough
segregation space (2% rather than the 10% called
for by the American Correctional Association), and
inadequate ventilation and excessive heat. Repeated
requests for budget increases have been refused.
The court declines injunctive relief on
heating and ventilation in the absence of technical
information and expert testimony, and declines
crowding relief absent information about the
amount of space each inmate has and the amount of
time each inmate spends in it.
Protection from Inmate Assault,
Classification, Staffing---Surveillance, Totality of
Conditions (1244-46): The allegations concerning
crowding, supervision, classification, violence,
weapons, and segregation cells do not violate the
Constitution considered in isolation, but "the
combination of substantial overcrowding and
significantly inadequate supervision in open dorms"
violates the Eighth Amendment right to protection
from violence, chiefly because of the lack of
adequate supervision by staff. At 1246: "The
evidence shows that Tutwiler's rate of assault is
extremely high, beyond levels considered normal in
the harsh environment of a prison." (The court
doesn't say what the respective rates are.) The
overcrowding-caused breakdown in the
classification system, where inmates are placed in
any available bed, also contributes, as does the
prevalence of weapons and contraband.
Deliberate Indifference, Negligence, and
Intent; Financial Resources (1248-1251):
Defendants' actual knowledge of the risks to
prisoner safety related to crowding and staffing is
demonstrated by the Warden's and Commissioner's
own statements in affidavits and public forums. At
1248: "When prison officials are sued solely in
their official capacities, the lack of funds available
to them is not an adequate defense to a finding of a
constitution [sic] violation on their part." Official
31

NATIONAL PRISON PROJECT JOURNAL

capacity suits are the equivalent of suits against the
governmental entity. At 1249: From the state's
perspective, budgetary concerns are not an adequate
defense either. Defendants' responses to crowding-increased community corrections programs,
increased programs in the prison, staff overtime,
inmate counseling, and staffing requests--are
commendable but do not go far enough; they have
had "negligible impact on the massive danger posed
to inmates. . .. The defendants' measures are
superficial and only address some of the factors
creating Tutwiler's dangerous environment." At
Tutwiler's present capacity, "nothing short of
additional staffing is a reasonable response to the
facility's dire need for officers." (1251) The court
finds deliberate indifference.
Injunctive Relief--Preliminary (1251):
Plaintiffs are entitled to a preliminary injunction;
defendants are ordered to submit a plan within four
weeks that "redresses immediately and fully the
unconstitutionally unsafe conditions caused by
overcrowding and understaffingin open dorms at
Tutwiler." The finding of deliberate indifference
establishes probability of success. A continuing
constitutional violation is proof of irreparable harm
for injunctive purposes, and here the plaintiffs have
shown a failure to protect from risks of serious
physical harm, and actual harm in some cases. The
balance of hardship favors the plaintiffs; the
defendants will not be harmed by providing
sufficient staff and adequate facilities. At 1252:

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"The threat of harm to the plaintiffs cannot be
outweighed by the risk of financial burden or
administrative inconvenience to the defendants."
The public interest is in no way served by current
conditions. At 1252: "Rather, there is a strong
public interest in requiring that the plaintiffs'
constitutional rights no longer be violated, as well
as in prevention ofthe foreseeable violence that will
occur if present conditions persist."
Subsequent developments have been less
favorable to the plaintiffs. See 242 F.Supp.2d 1150
(M.D.Ala., Jan 29,2003) and 255 F.Supp.2d 1301
(M.D.Ala., Mar 28, 2003).
NON-PRISON CASES
Habeas Corpus
Fritz v. Colorado, 223 F.Supp.2d 1197
(D.Colo.2002). The plaintiff probationer
challenged application of a quarterly, lifetime sex
offender registration law. Probation is "custody" for
purposes of habeas corpus jurisdiction. However,
Heck v. Humphrey does not require the plaintiffto
proceed via habeas after exhaustion of state
remedies because he is not challenging the fact or
length of his probation and his challenge to the
registration requirement does not necessarily imply
the invalidity of his conviction or sentence. The
court rejects defendants' argument that the plaintiff
is challenging the "scope" of his probation and is
therefore bound by the Heck rule.

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