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Open Issues in Prison Cases, Northwestern School of Law, 2016

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David M. Shapiro
August 2016

This is a summary of “open” legal issues involving the rights of prisoners
that will in some cases merit preservation with an eye toward further
review. For many of these issues, I have briefs or complaint language that I
will happily share with other attorneys. What follows constitutes general
information about the law, not legal advice.
Rights of pretrial detainees
For the following species of claims brought by pretrial detainees — failure
to protect, medical and mental health care, and conditions of confinement
— is the proper constitutional standard subjective deliberate indifference,
or a more plaintiff-friendly objective standard?
Why the issue remains open: Supreme Court precedent dictates that
claims regarding conditions of confinement, failure to protect, and
medical and mental health care brought by convicted prisoners are
governed by the subjective deliberate indifference standard, which
requires the plaintiff to show that a defendant subjectively knew of—
and disregarded—a substantial risk of harm. See Farmer v. Brennan,
511 U.S. 825 (1994). The Court has not, however, addressed the
standard for claims brought by pretrial detainees. While every circuit
has (more or less) applied the same subjective state of mind standard
to pretrial detainees, the Supreme Court held in Kingsley v.

Hendrickson, 135 S.Ct. 2466 (2015), that pretrial detainees, who have
not been adjudicated guilty of any offense, are entitled to greater
protections against excessive force than convicted prisoners, and that
a pretrial detainee can make out an excessive force claim based solely
on the objective unreasonableness of the force applied.
Although the narrow holding of Kingsley applies only to excessive
force claims brought by pretrial detainees, the reasoning of the
decision suggests that lower court authority extending subjective
standards designed for convicted prisoners to pretrial detainees must
be reexamined. The en banc Ninth Circuit recently concluded as
much. Castro v. County of Los Angeles, No. 12-56829, 2016 WL
4268955, at *1 (9th Cir. Aug. 15, 2016); see also David M. Shapiro, To
Seek A Newer World: Prisoners’ Rights at the Frontier, 114 Mich. L.
Rev. First Impressions 126 (2016).
Use of force
Does the “malicious and sadistic” standard continue to govern excessive
force claims brought by convicted prisoners, or is the proper standard an
objective one?
Why the issue remains open: Whitley v. Albers, 475 U.S. 312 (1986),
and Hudson v. McMillian, 503 U.S. 1 (1992), apply the “malicious and
sadistic” standard, a subjective state-of-mind test, to convicted
prisoners. The majority in Kingsley v. Hendrickson, 135 S.Ct. 2466
(2015), applied an objective standard to pretrial detainees and also
indicated a willingness to reconsider the “sadistic and malicious”
standard as applied to convicted prisoners: “We acknowledge that
our view that an objective standard is appropriate in the context of
excessive force claims brought by pretrial detainees pursuant to the
Fourteenth Amendment may raise questions about the use of a
subjective standard in the context of excessive force claims brought
by convicted prisoners. We are not confronted with such a claim,
however, so we need not address that issue today.” Id. at 2476.
Speech and Religious Exercise

What is the standard for censorship of outgoing mail from prisons and
Why the issue remains open: Procunier v. Martinez, 416 U.S. 396,
413 (1974), articulated the following standard for regulations
regarding the censorship of prisoner mail: “First, the regulation or
practice in question must further an important or substantial
governmental interest unrelated to the suppression of expression . . .
.Second, the limitation of First Amendment freedoms must be no
greater than is necessary or essential to the protection of the
particular governmental interest involved.”
In Turner v. Safley, 482 U.S. 78, 89 (1987), however, the Court applied
a less exacting standard to the censorship of mail sent to prisoners,
holding that such censorship need only be “reasonably related to a
legitimate penological interest.” Then, in Thornburgh v. Abbott, 490
U.S. 401, 413 (1989), the Court explicitly overruled the Martinez
standard as applied to mail sent to a prisoner and instead applied the
Turner legitimate penological interest standard. The Court justified
applying the Turner standard to incoming correspondence and the
Martinez standard to outgoing correspondence by noting the greater
“implications of incoming materials” (as opposed to outgoing
materials) for “prison security.” Id.
Thornburgh makes it fairly clear that the more exacting Martinez
standard continues to apply to censorship of outgoing mail (and
outgoing speech more broadly), and many courts have said as much.
E.g., Nasir v. Morgan, 350 F.3d 366, 369 (3d Cir. 2003). Other courts
have concluded the deferential “legitimate penological interest” test
applies even to outgoing mail. E.g., Samford v. Dretke, 562 F.3d 674,
678–79 (5th Cir. 2009); Smith v. Delo, 995 F.2d 827, 829–30 (8th Cir.
1993). See also John Boston and Daniel E. Manville, Prisoners’ SelfHelp Litigation Manual 188 & nn. 67-68 (4th ed. 2009).
Is a “substantial burden” on a prisoner’s religious exercise a required
element of a Free Exercise Clause claim?

Why the issue remains open: In O’Lone v. Estate of Shabazz, 482
U.S. 342 (1987), the Supreme Court applied the Turner legitimate
penological interest test, which does not include a substantial burden
element, to a prisoner’s free exercise claim. Nonetheless, federal
appellate courts are divided as to whether this additional
requirement applies in prisoner free exercise cases. See Ford v.
McGinnis, 352 F.3d 582, 592 (2d Cir. 2003) (“[T]he Circuits apparently
are split over whether prisoners must show a substantial burden on
their religious exercise in order to maintain free exercise claims.”).
May a prisoner be punished for filing grievances containing truthful
allegations that an official believes to be false?
Why the issue remains open: In general, the First Amendment
prohibits retaliating against prisoners for making truthful complaints
and filing truthful grievances. Toolasprashad v. Bureau of Prisons,
286 F.3d 576 (D.C. Cir. 2002) (“[O]fficials may not retaliate against
prisoners for filing grievances that are truthful . . .”); see also Bridges
v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
It is less clear whether the First Amendment prohibits punishing a
prisoner for submitting a truthful grievance that an official believes to
be false. In Procunier v. Martinez, 416 U.S. 396, 415 (1974), the
Supreme Court struck down a policy that allowed “censorship of
statements that ‘unduly complain’ or ‘magnify grievances,’
expression of ‘inflammatory political, racial, religious or other views,’
and matter deemed ‘defamatory’ or ‘otherwise inappropriate.’”
Procunier applied a least restrictive means test to prison speech
regulations, but, as discussed in greater detail above, this standard
has been largely overruled and replaced by the more deferential
“legitimate penological interest” test of Turner v. Safely, 482 U.S. 78
In Harris v. Walls, 604 Fed. Appx. 518 (7th Cir. 2015), the court stated
that a prisoner’s speech—even if true—could be punished because
officials “sincerely believed” it to be false. This is a problematic

holding because it would allow prison officials to insulate themselves
from liability by claiming a subjective and ultimately erroneous belief
that a prisoner’s truthful complaint (about, for example, being beaten
or raped) was false. Another court has stated that “the important
inquiry is whether defendants reasonably believed plaintiff was
lying.” Czapiewski v. Russell, No. 15-cv-208, 2016 WL 3920503, at *3
(W.D. Wis. July 18, 2016) (emphasis added).
In short, there are several possible tests. Truthful grievances may be
protected regardless of whether the defendants think they are
truthful. In the alternative, a mere subjective belief that the complaint
is false may defeat liability. There is also a middle ground position: A
subjective belief that the prisoner is lying defeats liability for
retaliation, but only if the subjective belief is also a reasonable one.
Is “some evidence” of a disciplinary violation sufficient to defeat a claim
that a prison official charged a prisoner with a disciplinary infraction in
retaliation for protected speech?
This question involves the interplay of the law governing two types
of claims that a prisoner may bring based on a disciplinary charge: (1)
a claim that a charge is so unsupported by evidence that it violates
procedural due process, and (2) a claim that a charge violates the
First Amendment because a prison official issued the underlying
disciplinary ticket in retaliation for speech. As for the first type of
claim, the Supreme Court has decided that the minimal showing of
“some evidence” is all that due process requires. Superintendent v.
Hill, 472 U.S. 445, 447, (1985).
When the claim is of the second species (i.e., the prisoner asserts that
an officer “put” a charge on her or him in retaliation protected
speech), the circuits are split as to whether “some evidence” to
support the prison’s finding of a disciplinary violation suffices to
defeat the prisoner’s First Amendment claim. Moots v. Lombardi, 453
F.3d 1020, 1023 (8th Cir. 2006) (applying “some evidence” standard to
retaliation claim); Nifas v. Beard, 374 F. App'x 241, 244 (3d Cir. 2010)
(same); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (rejecting

the “some evidence” standard for retaliation claims). See also John
Boston and Daniel E. Manville, Prisoners’ Self-Help Litigation
Manual 218 & n. 321 (4th ed. 2009).
Does the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) permit the recovery of compensatory and punitive damages
against municipal officials?
Why the issue remains open: In Sossamon v. Texas, 563 U.S. 277
(2011), the Supreme Court held that RLUIPA, interpreted in light of
state sovereign immunity, does not permit the recovery of monetary
damages against states and state officers sued in their official
capacities. Municipalities and municipal officers, however, do not
enjoy sovereign immunity, except when they are acting as arms of
the state. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280, (1977).
Some lower courts have uncritically extended the holding in
Sossamon to municipalities and municipal officials. E.g., Scott v.
Brown, No. 1:11-CV-2514-TWT-JFK, 2012 WL 1080363, at (N.D. Ga.
Jan. 31, 2012) (“Plaintiff's RLUIPA based damage claims fail because
the only possible Defendant, Sheriff Brown, is not liable for damages
in his official capacity (acting for the state) or in his individual
capacity.”), report and recommendation adopted, No. 1:11-CV-2514TWT, 2012 WL 1080322 (N.D. Ga. Mar. 30, 2012)
Others have allowed RLUIPA damages suits against such defendants
to proceed. E.g., Perfetto v. Plumpton, No. 14-CV-556-PB, 2016 WL
3647852, at *3 (D.N.H. July 1, 2016) (“Defendants principally cite
cases in which courts dismissed RLUIPA damages claims on
sovereign immunity grounds against state, rather than county,
employees. Sovereign immunity does not affect Perfetto's claim here,
however, because . . . counties, unlike states, do not enjoy sovereign
immunity.”) (citations omitted).
Does RLUIPA authorize respondeat superior liability?

Why the issue remains open: It is well-settled that suits under 42
U.S.C. § 1983 do not permit respondeat superior liability. Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009). Some courts have applied the same
rule to RLUIPA claims, but the statutory rationale for doing so is
unclear. A recent federal case from New Hampshire summarizes the
disagreement over this issue as follows:
[W]hat standard governs counties' liability under
RLUIPA for the alleged wrongful conduct of their
employees? In answering this question, some courts have
suggested that counties or municipalities can be held
vicariously liable under RLUIPA for their employees'
actions. See, e.g., Alderson v. Burnett, No. 1:07-CV-1003,
2008 WL 4185945, at *3 (W.D. Mich. Sept. 8, 2008) (stating
that “municipal entities can be held vicariously liable
under RLUIPA”); Layman Lessons, Inc. v. City of
Millersville, Tenn., 636 F. Supp. 2d 620, 643 (M.D. Tenn.
2008) (same); Agrawal v. Briley, No. 02 C 6807, 2004 WL
1977581 (N.D. Ill. Aug. 25, 2004) (“RLUIPA appears
implicitly to authorize respondeat superior liability
against municipalities ....”). Other courts disagree,
concluding that vicarious liability is unavailable under
RLUIPA. These courts reason that, as with Section 1983
claims, a county or municipality cannot be liable for a
RLUIPA violation merely because it employs a tortfeasor.
See, e.g., Mahone v. Pierce Cty., No. C10-5847 RBL/KLS,
2011 WL 3298898, at *3 (W.D. Wash. May 23, 2011), report
and recommendation adopted, No. C10-5847 RBL/KLS,
2011 WL 3298528 (W.D. Wash. Aug. 1, 2011); Greenberg
v. Hill, No. 2:07-CV-1076, 2009 WL 890521, at *3 (S.D.
Ohio Mar. 31, 2009) (“[T]o establish liability under
RLUIPA (and Section 1983), a plaintiff must prove,
among other things, the personal involvement of each
defendant in the alleged violation”); see also Patel v.
Bureau of Prisons, 125 F. Supp. 3d 44, 55 (D.D.C. 2015)
(concluding that “pure vicarious liability ... is not

sufficient to state a claim under [the Religious Freedom
Restoration Act]”).
Perfetto v. Plumpton, No. 14-CV-556-PB, 2016 WL 3647852, at *4 (D.N.H.
July 1, 2016).
Does the Religious Freedom Restoration Act (“RFRA”) permit the recovery
of compensatory and punitive damages against federal officials?
Why the issue remains open: RFRA authorizes claims “against a
government” for violations of religious rights, with “government”
defined to include an “official (or other person acting under color of
law) of the United States.” 42 U.S.C. §§ 2000bb-1(c) & 2000bb-2(1).1
Courts are divided as to whether that definition encompasses federal
officials sued for damages in their individual capacity. See Patel v.
Bureau of Prisons, 125 F. Supp. 3d 44 (D.D.C. 2015) (holding that
RFRA authorizes individual-capacity suits against federal officials);
Jama v. INS, 343 F.Supp.2d 338, 374 (N.D.J. 2004) (holding “federal
officials sued in their individual capacities are not immune from
suit”), But see Tanvir v. Lynch, 128 F.Supp.3d 756, 775-81 (S.D.N.Y.
Sept. 3, 2015) (holding that the law does not permit damages against
officials in their personal capacities under RFRA).
Prison Litigation Reform Act
Under the PLRA, may a prisoner sue for compensatory damages for free
speech and free exercise violations in the absence of physical injury?
Why the issue remains open: A provision of the PLRA, 42 U.S.C. §
1997e(e), provides: “No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for
The Supreme Court struck down RFRA in part in City of Boerne v. Flores, 521 U.S. 507
(1997), holding that Congress had exceeded its limited constitutional authority to
enforce the Fourteenth Amendment against state and local governments. Following
City of Boerne, RFRA continues to apply to religious claims brought against the federal
government by federal prisoners.


mental or emotional injury suffered while in custody without a prior
showing of physical injury . . .” Federal courts are deeply divided on
whether this “physical injury” limitation for compensatory damages
requires a plaintiff who suffers an injury to religious liberty or free
speech to make an additional showing of physical injury. Four
circuits require physical injury. Allah v. Al-Hafeez, 226 F.3d 247, 25051; Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005); Royal v.
Kautzky, 375 F.3d 720, 723 (8th Cir. 2004); Searles v. Van Bebber, 251
F.3d 869, 876 (10th Cir. 2001) (same result). Four others do not . King
v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015); Rowe v. Shake, 196 F.3d
778, 781-82 (7th Cir. 1999); Canell v. Lightner, 143 F.3d 1210, 1213 (9th
Cir. 1998); Toliver v. City of New York, 530 F. App'x 90, 93 n.2 (2d
Cir. 2013).
Under the PLRA, may a prisoner sue for punitive damages in the absence
of physical injury?
Courts are divided as to whether the physical injury provision of the
PLRA, cited above, extends only to claims for compensatory
damages, or also to punitive damages. Al-Amin v. Smith, 637 F.3d
1192, 1199 (11th Cir. 2011) (recovery of punitive damages is barred
without a showing of physical injury); Royal v. Kautzky, 375 F.3d
720, 723 (8th Cir. 2004) (the physical injury requirement applies only
to compensatory damages; punitive damages are not barred).
Qualified Immunity
Are claims to which qualified immunity might apply subject to a
heightened pleading standard?
Why the issue remains open: In Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993), the
Supreme Court rejected the contention that § 1983 claims are subject
to a heightened pleading standard. With one exception, every circuit
to consider the issue then held that overcoming qualified immunity
does not require heightened pleading. The one exception is the Fifth

Circuit. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Under Schultea, Fifth Circuit district courts routinely require litigants
to submit additional information to overcome a qualified immunity
defense at the pleading stage. In my view, this practice is
inconsistent with Leatherman.
Sexual Abuse and Strip Searches
Is reasonable suspicion required to strip search an arrestee who has been
taken to a jail but not yet arraigned and/or placed in general population?
Why the issue remains open: Florence v. Board of Chosen
Freeholders, 132 S.Ct. 1510 (2012), holds that an arrestee entering a
jail’s general population may be strip searched without reasonable
suspicion that the arrestee is in possession of contraband. Justice
Alito’s concurrence, however, suggests both that a strip search
without reasonable suspicion may not be justified in cases where the
arrestee has not yet been placed into general population, and that
placing an arrestee in general population prior to arraignment may
violate the Fourth Amendment:
It is important to note . . . that the Court does not hold
that it is always reasonable to conduct a full strip search
of an arrestee whose detention has not been reviewed by
a judicial officer and who could be held in available
facilities apart from the general population. Most of those
arrested for minor offenses are not dangerous, and most
are released from custody prior to or at the time of their
initial appearance before a magistrate. In some cases, the
charges are dropped. In others, arrestees are released
either on their own recognizance or on minimal bail. In
the end, few are sentenced to incarceration. For these
persons, admission to the general jail population, with the
concomitant humiliation of a strip search, may not be
reasonable, particularly if an alternative procedure is

Id. at 1524 (Alito, J., concurring).
Can “consensual” sex between a prisoner and a correctional officer violate
the Eighth Amendment?
Why the issue remains open: The Supreme Court has never
addressed this issue, and the lower courts are divided. Some federal
courts hold that a prisoner’s consent to have sex with a correctional
officer means that the intercourse does not violate the Eighth
Amendment. Graham v. Sherriff of Logan County, 741 F.3d 1118
(10th Cir. 2013); Hall v. Beavin, 1999 WL 1045694 (6th Cir. Nov. 8,
1999); Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997); see also
Phillips v. Bird, 2003 WL WL 22953175 (D. Mass. 2003); Ashely v.
Peery, No. 13-354, 2015 WL 9008501 *4 (M.D. La. 2015).
Other courts acknowledge that the relationship between a guard and
a prisoner presents a heightened risk of coercion. At least one court
has adopted a per se rule that “vaginal intercourse and/or fellatio
between an inmate and a correction officer . . . violates contemporary
standards of decency under the Eighth Amendment.” Carrigan v.
Davis, 70 F. Supp. 2d 448, 454 (D. Del. 1999); Chao v. Ballista, 772 F.
Supp. 2d 337, 350 (D. Mass. 2011) (“[T]o the extent that [other] cases
hold as a matter of law that voluntary sex between an officer and an
inmate can never amount to “pain” or never reach the seriousness
required by the Eighth Amendment, I must strongly disagree.”).
In the Ninth Circuit, “when a prisoner alleges sexual abuse by a
prison guard . . . the prisoner is entitled to a presumption that the
conduct was not consensual. The state then may rebut this
presumption by showing that the conduct involved no coercive
factors.” Wood v. Beauclair, 692 F.3d 1041, 1048–49 (9th Cir. 2012).
Monell liability
Are private prisons companies and contractors liable for constitutional
violations committed by their employees in respondeat superior, or are
they liable only if a Monell policy or practice violation occurs?

Why the issue remains open: Every circuit to consider the issue has
decided that Monell, and not respondeat superior, applies to private
jail and prison companies. However, the Supreme Court has not
decided the issue, there is no logical basis for it, and Seventh Circuit
Judges Posner and Hamilton have stated that such companies should
be liable in respondeat superior for the acts of their agents. Shields v.
Illinois Dep't of Corr., 746 F.3d 782, 785 (7th Cir. 2014).