Pro Bono Sembiar November 16, 2005

Sponsored by

Eastern District of Michigan Chapter

The United States District Court The Federal Bar Association Eastern District ofMichi~an Eastern District ofMichz~an UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN AND THE FEDERAL BAR ASSOCIATION

PRO BONO TRAINING SEMINAR

November 16, 2005

PROGRAM

8:30 a.m. Registration and Continental Breakfast

9:00 a.m. Welcome and Introduction Denise Page Hood, U.S. District Judge and Julia Pidgeon, President, FBA

9:15 a.m. “Overview ofPrison Litigation Reform Act” (Tab 1) Wallace Capel, Jr., U.S. Magistrate Judge

9:40 a.m. “The Elements ofa Prisoner’s Civil Rights Claim” (Tab 2~) Erica M. Eisinger, Clinical Director, Wayne State University Law School

10:00 a.m. “Proving Your Case” - Patricia Streeter, Civil Rights Attorney (Tab 3)

10:20 a.m. ‘Magistrate Judges’ Involvement in Prison Cases” (Tab 4~) Steven Pepe, U.S. Magistrate Judge

10:30a.m. BREAK

10:50 a.rn. “Federal Judges’ Involvement in Prison Cases” (Tab 5) Avern Cohn, U.S. District Judge

11:10 a.m. “The Learning Experience ofPrison Cases” (Tab 6) Arthur Tarnow, U.S. District Judge

11:25 a.m. “Reimbursement ofExpenses and Other Things to Know” (Tab 7,) David J. Weaver, Court Administrator

11:35 a.m. “Dealing with Defendants’ (‘ounsel and the Michigan Depart. of (‘orrections” Leo Friedman, Assistant Attorney General, Corrections Division (Tab 8)

11:55 a.m. “Establishing a Relationshz:p with Your Client” (Tab 9,) Daniel Manville, Clinical Staff Attorney, Wayne State University Law School

12:10 p.m. Panel Discussion: “Living Proofthat Prison Cases are Fun” (Tab 10) Panelists: Thomas W. Cranmer, President, State Bar of Michigan; Matthew F. Leitman, Miller Canfield; John S. LeRoy and Matthew Jakubowski, Brooks & Kushman; Stephen Boehringer and Laura Sagolla, Dykema Gossett.

12:30 p.m. Wrap Up - Denise Page Hood, U.S. District Judge

12:45p.m. LUNCH Acknowledgments

United States District Court, Eastern District of Michigan

The Honorable Bernard A. Friedman, Chief Judge

The Honorable Denise Page Hood, The Honorable Arthur J. Tarnow,

The Honorable Victoria A. Roberts, U.S. District Court, Pro Bono Committee

Federal Bar Association, Detroit Chapter

Julia Pidgeon, President

The Honorable Mark Goldsmith and Daniel Manville, Pro Bon Committee Co-Chairs

Special Thanks

Ilene and Michael Shaw Grant Fund

The Honorable Julian Abele Cook, Jr., U.S. District Judge

The Honorable Robert H. Cleland, U.S. District Judge

David J. Weaver, Court Administrator, U.S. District Court, Eastern District of Michigan

William F. Lewis, Case Manager, U.S. District Court

Charlene R. Gill, Judicial Assistant, U.S. District Court

Stephanie Miszkowski, Assistant, Court Administrator’s Office

Thomas M. Schehr and Anthony Marion, Dykema Gossett, PLLC

Kelly Rimmer and Maya Watson, Wayne State University Law School Students “Overview of Prison Litigation Reform Act”

“The Elements of a Prisoner’s 1~1~ights Claim”

“Proving Your Case”

- --

“Magistrate Judges’ Involvement in Prison Cases” j “Federal Judges’ Involvement in Prison Cases”

“The Learning Experience of Prison Cases”

“Reimbursement of Expenses and Other Things to Know”

“Dealing with Defendants’ Counsel and the Michigan Department of Corrections”

Client”

Panel Discussion: “Living Proof That Prison Cases are Fun” EXHIBIT 1 “Overview of Prison Litigation Reform Act”

Wallace Capel, Jr. United States Magistrate Judge Prison Litigation Reform Act: Overview

Purpose: The Prison Litigation Reform Act [PLRA] was enacted in 1996 to prevent frivolous lawsuits.

II. Provisions: 42 U.S.C. § 1997e, 42 U.S.C. § 807 and 808, 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and 18 U.S.C. § 3626.1

A. Filing

• Exhaustion under 42 U.S.C. § 1997e(a): Prisoners must exhaust all available administrative remedies prior to filing in federal court.

• Physical Injury Requirement under 42 U.S.C. § 1 997e(e): There is no remedy in the PLRA for mental or emotional injury without a pre-existing physical injury.

• Three Strikes under 28 U.S.C. § 19 15(g): Where a prisoner has brought three or more claims that were determined to be either “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” he or she may not bring 2mother action “unless the prisoner is under imminent danger of serious physical injury.”

B. Mandatory Review and Dismissal

• Pre-docketing Review under 28 U.S.C. § 1915A: The Court is required to review a claim under PLRA as soon as possible and specifically look to whether it is: “(1) is frivolous, malicious, or fails to state a claim upon which reliefmay be granted; or (2) seeks monetary relieffrom a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)

• Factors to be considered under 42 U.S.C. § 1997e(c): The Court may dismiss a case, or claims within, without looking first at administrative remedies when the “claim is, on its face, frivolous, malicious, fails to state a claim upon which reliefcan be granted, or seeks monetary relief from a defendant who is immune from such relief.”

• Timing of Dismissal under 28 U.S.C. § 1915(e)(2): Notwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court

tThis Outline of Provisions was gathered from the Resource Guide for Managing Prisoner Civil Rights Litigation published by the Federal Judicial Center and the provisions and issues discussed can be found in more detail within same. RESOURCE GUIDE FOR MANAGING PRisoNER CIvIL RIGHTS LITIGATION (1996) available at http://www.f]c.gov/public/pdf.nsf/ lookup/prisoner.pdf/$File/prisoner.pdf. determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

C. Requirements for Achieving In Forma Pauperis [IFP1 Status

•Statement of assets under 28 U.S.C. § 1915(a): Requires “an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress,” as well as “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.”

• Filing Fee under 28 U.S.C. § 1915 (b)( 1 )-(2): This section explains the partial initial filing fee and the subsequent monthly payments due. Additionally, under 28 U.S.C. § 191 5(b)(4), “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”

• Payment of Costs under 28 U.S.C. § 1915(f): In the event that judgement is against the prisoner, he or she may make payments in the same fashion outlined by 28 U.S.C. § 1915(b)(1)-(2).

D. Provisions Affecting Management of Cases

• Waiver ofDefendant’s Right to Reply under 42 U.S.C. § 1 997e(g): Defendant may waive the right to reply and same will not be treated as an admission; however, the court may order a reply where “it finds that the Plaintiffhas a reasonable opportunity to prevail on the merits,” and no relief will be granted to a Plaintiff unless there is a reply.

• Use of Telecommunications Technologies under 42 U.S.C. § 1997e(f): Allows certain communications during pretrial proceedings and hearings “by telephone, video conference, or other telecommunications technology.”

E. Limits on Relief & Sanctions

• Limits under 18 U.S.C. § 3626:

2 Among other things, the amendments to section 3626 • limit the prospective relief, including preliminary injunctive relief; that the court may grant; • limit the court’s authority to release or prohibit admission of prisoners, or require that three-judge courts issue such orders; • add provisions speeding the termination ofprospective relief orders; and • limit and govern the court’s authority to appoint special masters to conduct hearings and prepare findings of fact. RESOURCE GUIDE FOR MANAGri’~G PRIsoNER CIVIL RIGHTS LITIGATION 4 (1996) available at http://www.fjc.gov/public/ pdf.nsf/ lookup/prisoner.pdf/$File/prisoner.pdf.

• Limits under 28 U.S.C. § 1932: The Court may on its own motion

or that of a party “order the revocation of such earned good time credit. . . that has not yet vested,” if: “(1) the claim was filed for a malicious purpose; (2) the claim was filed solely to harass the party against which it was filed; or (3) the claimant testifies falsely or otherwise knowingly presents false evidence or information to the court.”

• Sanctions under 42 U.S.C. § 807 and 808: Requires satisfaction of outstanding restitution orders to any award of compensatory damages to a prisoner, including making “reasonable efforts” to notify victims eligible for such restitution.

F. Attorneys’ Fees under 42 U.S.C. § 1997e(d):

• Attorney fees are not to be awarded in prisoner civil rights litigation unless: (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiffs rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. 42 U.S.C. § 1997e(d)(1) (footnote omitted).

• Additionally, “[w]henever a monetaryjudgment is awarded in an action described in paragraph (1), a portion ofthejudgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney~s fees awarded against the defendant.” 42 U.S.C. § 1997e(d)(2). Further, the amount of fees may not exceed the “hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3).

3 EXHIBIT 2 “The Elements of a Prisoner’s Civil Rights Claim”

Erica M. Eisinger Clinical Director Wayne State University Law School THE ELEMENTS OF A PRISONER’S CIVIL RIGHTS CLAIM

Prof. Erica M. Eisinger Wayne State University Law School 471 West Palmer St. Detroit MI 48226 313/577-3348, e.eisinger(~wayne.edu

Prepared for the Pro Bono Training Seminar United State District Court for the Eastern District of Michigan November 16, 2005

The Statute. 42 U.S.C. § 1983 provides:

Every person who, under color ofany statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation ofany rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . (emphasis added).

II. The Elements of a § 1983 Action — What a Prisoner Must Plead

A. “Person”

1. Who/what are included as “persons”?

a. Municipalities and counties are “persons.” Monell v. Department ofSoc. Serv., 436 U.S. 658 (1978) (municipalities, as well as other local governing bodies, are “persons” under § 1983); Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000) (counties are “persons’~,).

b. State officials sued in their individual capacities for money damages are “persons.” Hafer v. Melo, 502 U.S. 21(1991). Inmates seeking damages under § 1983 are required clearly to set forth in their pleadings that they are suing state defendants in their individual capacities for damages. Wells v. Brown, 891 F.2d 591 (6t1I Cir. 1990).

c. State officials sued in their official capacities for injunctive relief are “persons.” Will v. Michigan Dep ‘t ofState Police, 491 U.S. 58, 71 n.10 (1989).

1 Prof Erica M Eisinger Pro Bono Training Seminar November 16, 2005

2. Who/what are ~ “persons”?

a. States are not “persons,” because they enjoy 1 1th amendment immunity. Will, 491 U.S. at 71.

b. State officials sued in their official capacities for money damages are not “persons” for purposes of § 1983 liability. Id.

c. Territories are not “persons” under §1983. Ngiraingas v. Sanchez, 495 U.S. 182 (1990).

B. “Under Color of’ State Law

1. Acting “under color of’ law means “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Monroe v. Pape, 365 U.S. 167, 184 (1961) (citation omitted).

2. Private contractors providing prison services may be liable. Canton v. Harris, 489 U.S. 378 (1989); West v. Atkins, 487 U.S. 42, 55-56 (1988) (private physician who contracted with state to provide medical services to inmates two days per week was acting under color of state law).

C. Causation

1. There is no respondeat superior under § 1983. Monell, 436 U.S. at 690-91 (for municipal liability, constitutional violation must stem from an official policy or custom that is the “moving force” behind the violation).

2. Jzidividual defendants must be personally involved or directly participate in wrong. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

3. A plaintiff must plead and prove that a supervisor who was not a direct participant encouraged, implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Bellamy, 729 F.2d at 421; Taylor v. Michigan Dep ‘t of Corrections, 69 F.3d 76, 81(6th Cir. 1995) (issue of fact whether warden properly discharged duty to adopt and implement transfer policy).

2 Prof Erica M Eisinger Pro Bono Training Seminar November 1& 2005

D. Violation of Federal Constitutional and Statutory Rights - Limitations in Prison Context

Standard of review. Turner v. Safley, 482 U.S. 78, 89-91 (1987) (prison policy must be reasonably related to legitimate penological interests); see, e.g. McElhaney v. Elo, 2000 WL 32036 (6th Cir. (Mich.)) (unpublished opinion) (dismissing claims of Native American inmate that he was denied free exercise of religion based on prison’s security claims and existence of alternatives).

2. Liberty interest. Sandin v. Conner, 515 U.S. 472 (1995) (due process liberty interests generally limited to freedom from “atypical and significant” hardship in relation to the ordinary incidents of prison life).

3. Access to courts. Lewis v. Casey, 518 U.S. 343 (1996) (inmate alleging denial of access to courts must show actual injury such as inability to meet a filing deadline or to present a claim); but cf Thaddeus-Xv. Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (en banc) (retaliation claim under first amendment or substantive due process that prisoner suffered adverse consequences for exercising constitutional right constitutes adequate injury).

4. Prison discipline, conflict with habeas remedies. Heck v. Humphrey, 512 U.S. 477 (1994 (state prisoners challenging fact or duration of confinement cannot seek damages for allegedly unconstitutional confinement if the civil verdict would imply that the criminal conviction was wrong); Edward v. Balisok, 511U.S. 825 (1996) (applying Heck to prisoners seeking damages for the unconstitutional deprivation of good- time credits); Spencer v. Kemna, 523 U.S. 1 (1998) (dicta: individual may seek damages in a § 1983 suit for an allegedly unconstitutional parole revocation; Heck’s favorable-termination requirement does not have to met when it would be impossible to meet); Muhammad v. Close, 540 U.S. 749 (2004) (Heck doesn’t apply to suit challenging prison disciplinary hearing that does not challenge fact or duration of confinement); Wilkinson v. Dotson, 125 5. Ct. 1242 (2005) (inmates’ suit to invalidate certain state procedures concerning parole decisions, which might not necessarily lead to their speedier release from confinement, not barred by Heck).

3 Prof Erica M Eisinger Pro Bono Training Seminar November 16, 2005

E. Physical Injury

1. The Prison Litigation Reform Act (PLRA) prohibits a prisoner from bringing a civil action for damages “for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).

2. Physical injury is not required for all constitutional damage claims. See, e.g., Rowe v. Shake, 196 F.3d 778, 78 1-82 (7th Cir. 1999) (“A prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained.”); Mason v. Schriro, 45 F. Supp. 2d 709, 7 16-20 (W.D. Mo. 1999) (racial discrimination).

3. The PLRA may bar compensatory damages for lack of physical injury, but not nominal and punitive damages. Marrie v. Nickels, 70 F. Supp. 2d 1252, 1264 (D. Kan. 1999).

4. “Presumed” damages may be awarded to compensate for a harm that is difficult to measure. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 310-12 (1986).

F. Exhaustion of Administrative Remedies

1. The PLRA requires that prisoners exhaust “such administrative remedies as are available” before bringing actions with respect to prison conditions.” 42 U.S.C. § 1997e(d)(2).

2. Booth v. Churner, 531 U.S. 956 (2001) (in case of excessive force, exhaustion required even when prisoner seeks money damages and grievance process does not permit such an award).

3. Sixth Circuit requires a plaintiff to plead exhaustion with specificity. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833 (1998) (plaintiff must attach to complaint documentary proof of exhaustion); contrast Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 20 (2d Cir. 1999).

4. Sixth Circuit requires “total exhaustion.” Jones Bey v. Johnson, 407 F.3d 801 (6t~~ Cir. 2005) (mixed complaint alleging exhausted an unexhausted claims must be completely dismissed with prejudice).

4 EXHIBIT 3 “Proving Your Case”

Patricia Streeter Civil Rights Attorney PROVING YOUR CASE November 16, 2005 2005 Pro Bono Seminar United States District Court, Eastern District of Michigan

Presented By: Patricia A. Streeter 221 North Main Street, Suite 300 Ann Arbor, Michigan 48104 Telephone: 734.222.0088 Email: [email protected]

Proving your case is all in the pre-trial preparation. The following are some practice points you may find helpful.

1. At the Time of Appointment

By the time of your appointment, several preliminary issues are likely to have been resolved, including exhaustion of administrative remedies under the Prison Litigation Reform Act and the sufficiency of the pleadings. Reading the magistrate judge’s reports and related orders will give you an overview of the case and provide you with a starting point for your research into the cause of action you will prosecute.

You should immediately find out if there are any pending deadlines and act promptly seek any necessary extension of time. If there is a pending motion for summary disposition, do not hesitate to request 60 to 90 days to become familiar with the case and conduct any discovery necessary to respond to the motion. Extensions of time are usually not denied when counsel can show diligence in moving the case forward.

2. Know the Elements of the Cause of Action

Understand the elements of the cause of action you will prosecute. Spend time early in the case with the jury instructions to plan what you will argue to the jury. Spend a few hours with the instructions for prisoner civil rights cases in O’Malley, Federal Jury Practice and Instructions, Civil, Fifth Ed. This information will help you in working with your client in building the facts necessary for trial.

3. Evaluate Plaintiffs Proofs Claims

a. Learn what is in the record already. Request copies of the court file. Copies will be provided by the Court within days of your request at no charge based upon your

—1— order of appointment. In addition to the orders that have been entered, the parties may have filed documents as attachments to their pleadings that will be useful in understanding the case and as potential trial exhibits.

b. Contact your client as soon as possible with a letter of introduction that clearly states that your appointment is for this case only, and request that all questions be directed to you in writing.

4. Determine Additional Sources of Information

a. Follow your initial client contact with a substantive exchange. Meet with your client to discuss the case. Telephone communications may be monitored and are limited to 20 minutes in duration. Mail may be visually “scanned”. These methods of communication should be reserved for procedural information. In addition, depending on custody level, a prisoner’s ability to make telephone calls, even collect calls, may be restricted in number or the times when they can be made.

1. Review the elements of the claim and ask for each what information might be available to seek in discovery. This might be done by reviewing each paragraph of the complaint by paragraph asking what additional facts the client knows that can help prove the claim. This is usually a good time to explain the “personal knowledge” requirement for competent testimony.

2. Ask your client to write out a statement of the events, and to separately list all witnesses, including what each observed.

3. Contact any potential prisoner witnesses by letter, and tell them not to correspond directly with your client, as the MDOC reads all correspondence between prisoners, including the mail of litigants and their witnesses.

b. Gather existing information. Obtain documents already in possession of your client or are a matter of public record. Check the MDOC website for information, , and use its Offender Tracking Information System (OTIS) to check on the location of prisoner witnesses. Don’t forget Michigan statutory authority and the Administrative Rules.

c. Determine what information to seek in discovery. Whether from your client or colleagues who have litigated against the MDOC, learn about other sources of information that support the dates, times and factual aspects of the claim, including internal records that most prisoners are familiar with, such as

- Housing Unit Logs and other log books

-2- - Details and other internal permissions and authorizations

- Critical Incident Reports (with accompanying witness statements)

- Misconduct tickets and related Hearing Officer Reports

- Institutional Grievances and Responses

- Client’s Institutional and Counselor’s files

- Client’s Health Care Record

- Policy Directives and Operating Procedures

- Internal Affairs investigations

- Defendants’ employee file

2. Act promptly to preserve records. The MDOC has record destruction policies in place that may affect information pertinent to your case. Promptly write to your opposing counsel and request that they advise the MDOC to preserve the specific records you will seek.

5. Discovery

Utilize the discovery provisions of the Federal Rules of Civil Procedure to the fullest, from sending interrogatories and requests to produce document to on-site visits to inspect and photograph or other recording. For on-site visits, make your own images. Resist the offers by the MDOC to take the images for you or use their equipment. To do so will guarantee that they have the same information you have, whether or not you intend to use it at trial. Furthermore, the images could end up as exhibits for the defense.

Protective Orders. Depending on what you are requesting, some requests, such as Internal Affairs investigations or the defendants’ personnel files, will be objected to. If you can show relevance to the claims, a protective order should address the concerns. Plaintiff’s willingness to enter into the protective order can be stated in the discovery request. Do not agree, however, to the standard form protective order the AG’s office is presently using because of various outrageous restrictions, such as agreeing not to discuss the information you learn with your client.

The MDOC often redacts other prisoner names and numbers from various documents it provides, claiming that it is protecting the privacy rights of these prisoners or that providing the information is a threat to the security and good order of the prison. You have a right to these names and numbers so that you can prepare your case, and there is no security risk for this information to be provided.

6. Amend the Complaint

You should amend the complaint to at least clean up the pro se language that is often not helpful. For damages, ask for nominal, compensatory and/or punitive damages

-3- without listing an amount. Keep in mind the physical injury requirement for recovery of mental or emotional injury under the Prison Litigation Reform Act. 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury”). Remember, too, that a person released from prison is no longer a prisoner, so a suit filed after release is not “brought by a prisoner,” although a few courts have held that § 1997e(e) applies to them notwithstanding its language.

7. Deposition and Trial Subpoenas for MDOC Employees

In most cases, the defendants in your case are being sued individually, and the MDOC is not a party. Therefore, the MDOC requires a subpoena for the appearance of its non-party staff for both deposition and trial. Normally this is accomplished by delivering the subpoena, with the witness fee, to the Litigation Coordinator at the institution where the staff person is currently employed.

MDOC staff are not kept informed of the progress of litigation, even when they are sued, unless they are asked to provide affidavits to support motions, provide deposition testimony, or appear for trial. By making depositions one of the last phases of your discovery, you should put to good use this advantage in your questioning.

8. Joint Final Pretrial Order

As with all federal civil cases, the Joint Final Pretrial Order will control your trial. I recommend that you start a draft early in the case. Not only is its preparation the responsibility of the plaintiff, it will assist in setting your internal timetable for discovery.

9. Criminal Convictions

The nature and even the name of your client’s criminal convictions should not be admitted. If your opponent will not stipulate to limiting this information, you should file a motion in limine that limits the conviction information to the number of criminal convictions that your client and each witness is now serving or were discharged from parole that are not more than ten years ago.

10. Contacts with Opposing Counsel

When your opponent is an Assistant Attorney General, you must be diligent in documenting all requests and agreements between counsel, then follow up on them.

-4- EXHIBIT 4 “Magistrate Judges’ Involvement in Prison Cases”

Steven Pepe United States Magistrate Judge UNITED STATES MAGISTRATE JUDGES INVOLVEMENT IN PRISONER CASES by Magistrate Steven D. Pepe

UNITED STATES MAGISTRATES IN THE EASTERN DIsTIcT OF MICHIGAN

In Detroit: In Divisional Offices

KOMIVES, PAUL J. (313) 234-5200 CHARLES E. BINDER (989) 894-8820 FAX: (313) 234-5497 Chambers 629 FAX: (989) 894-8819 Court Clerk Eddrey Butts 5201 Court Clerk Jean L. Broucek Law Clerk (Career) Bryan Schneider Secretary Mary E. Dobbick Law Clerk (Career) Christina L. Farinola Law Clerk (career) Mimi D. Bartkowiak Address: Room #323 MORGAN, VIRGINIA M. (313) 234-5210 P.O. Box 913 FAX: (313) 234-5496 Chambers 651 Bay City, Ml 48707 Secretary Barb M. Radke Courtroom Deputy Jennifer Hernandez 5212 Law Clerk (career) David McDaniel MAGISTRATE JUDGE WALLACE CAPEL, JR. (810) 341-7850 SCHEER, DONALD A. (313) 234-5215 FAX: (810) 341-7854 FAX: (313) 234-5498 Chambers 648 Court Clerk Pete Peltier 7887 Court Clerk Michael Lang 5217 Secretary Marsha L. Heinonen Secretary Tern L. Hackman Law Clerk (Career) Larry M. Gropman Law Clerk (Career) Lori A. Lookliss Address: 600 Church Street, Room 112 WHALEN, R. STEVEN (313) 234-5115 Flint, Ml 48502 Executive Magistrate Judge FAX: (313) 234-5650 Chambers 673 MAGISTRATE JUDGE STEVEN 0. PEPE (734) Court Clerk Susan Jefferson 5089 741-2298 Secretary Gina Wilson 5116 FAX: (734) 741-2051 Law Clerk (Career) Amy Humphreys 5119 IN DETROIT: (313) 234-5224 Court Clerk William J. Barkholz MAJZOUB, MONA K. (313) 234-5205 Law Clerk (career) Ann Marie Byers Chambers 704 Law Clerk David Ecklund FAX (313) 234-5495 Address: P.O. Box 7150 Courtroom Deputy Lisa Bartlett 5206 Ann Arbor, Ml 48107 Law Clerk (Career) Michael Dezsi 5207 or 200 E. Liberty St., Suite 114 Law Clerk (Career) Jeremy Schulze 5208 Ann Arbor, Ml 48104

MICHIGAN DEPARTMENT OF CORRECTIONS WEBSITE

MDOC Prisons and Camps information and telephone numbers:

http ://www.rnichigan.gov/corrections/O, 1607,7-119-138113 85---,00.html UNITED STATES MAGISTRATE JUDGES INVOLVEMENT IN PRISONER CASES -

1. TASKS PERFORMED BY THE COURT STAFF ATTORNEY UNDER THE DIRECTION OF EXECUTIVE MAGISTRATE WHALEN:

The Prison Litigation Reform Act applied to convicted prisoners, juveniles, probation, parole and pretrial detainees.

28 U.S.C.A. § 1915 (h) “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”

A. INITIAL SCREENING BEFORE FILING AND SERVICE BY THE U.S. MARSHAL:

IN FORMA PAUPERIS PETITION.

28 U.S.C. § 1915 Proceedings in forma pauperis

(a)(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.

*** (b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of— (A) the average monthly deposits to the prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. (2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

2 (3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.

(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.

(c) Upon the filing of an affidavit in accordance with subsections (a) and (b) and the prepayment of any partial filing fee as may be required under subsection (b), the court may direct payment by the United States of the expenses of (1) printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court; (2) preparing a transcript of proceedings before a United States magistrate judge in any civil or criminal case, if such transcript is required by the district court, in the case of proceedings conducted under section 636(b) of this title or under section 3401(b) of title 18, United States Code; and (3) printing the record on appeal if such printing is required by the appellate court, in the case of proceedings conducted pursuant to section 636(c) of this title. Such expenses shall be paid when authorized by the Director of the Administrative Office of the United States Courts.

(d) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.

*** (f)(1) Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States.

(2)(A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered.

(B) The prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection (a)(2).

If the prisoner qualifies, Executive Magistrate Judge Whalen will sign an order allowing filing of the case and service by the U.S. Marshal. Service by the U.S. Marshal is generally attempted initially seeking waiver of service under Fed.R. Civ. P. 4(d) for MDOC employees by mailing the waiver forms, summons and complaint to the prison 3 litigation coordinator to get the papers to the defendant. If the defendant is a former prison employee, a magistrate judge can order that addresses be produced under a protective order maintaining their confidence except for use by the Marshal for service.

B. THREE STRIKES REVIEW BY STAFF ATTORNEY:

28 U.S.C.A. § 1915(g): In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. If it is determined that plaintiff has three or more frivolous claims, the staff attorney, after review by Magistrate Judge Whalen, prepares a memorandum opinion and order for the district judge assigned to the case to dismiss.

2. TASKS PERFORMED BY A MAGISTRATE JUDGE ONCE THE CASE IS FILED AND ASSIGNED UNDER 28 U.S.C. 636(b) FOR ALL PRETRIAL MATTERS:

A. FRIVOLOus CLAIMS: (Staff attorneys do not screen for frivolous claims.) Forma Pauperis Cases Prior to 1996, courts could under 28 U.S.C. § 1915(d) dismiss a forma pauperis case if the allegations of poverty were untrue or the court found the action was frivolous or malicious. Yet, for civil litigants who paid their filing fee, the judicial power to dismiss on its own initiative was not available. Generally, in a civil case, “a district court faced with a complaint which it believes

may be subject to dismissal must ... notify all parties of its intent to dismiss the complaint [and] give the plaintiff a chance to either amend his complaint or respond to the reasons stated by the district court in its notice of intended sua sponte dismissal.” Tinglerv. Marshall, 716 F.2d 1109, 1112 (6th Cir.1983). This notice and opportunity to amend common law doctrine was abrogated for prisoners in 1996, by the Prison Litigation Reform Act of 1995 (“PLRA”), Pub.L. No. 104-134, §~ 801-810, 110 Stat. 1321 (1996). The Prison Litigation Reform Act of 1995 tightened the forma pauperis statute for prisoners and allowed a court to dismiss sua sponte under 28 U.S.C. § 191 5(e)(2) which replaced the former § 1915(d). Section 1915(e)(2) now provides: Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that- 4 (A) the allegation of poverty is untrue; or (B) the action or appeal- (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

Yet, § 191 5(e)(2) applies only to in forma pauperis actions and not to individuals who pay their initial filing fee in a lump sum and not according to the partial/installment pay

provisions available to inmates. Benson v. O’Brian , 179 F.3d 1014, 1015 -1016 (6th Cir. 1999). Yet, if you are bringing a “prisoner” litigation as broadly defined above, Congress provided courts with sua sponte power to dismiss frivolous law suits without notice or an opportunity to amend by changing not only the forma pauperis provisions of § 191 5(e)(2), but also adding 28 U.S.C. § 1915A Screening: (a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for dismissal. --On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

The Sixth Circuit has held that the district courts are not to permit plaintiffs to amend a complaint to avoid dismissal pursuant to these provisions. See McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir.1997). Thus, now 28 U.S.C. § 1915A requires a district court to screen all civil cases brought by prisoners to determine if the complaint is frivolous and if so, the case must be dismissed. If a magistrate judge determines a matter is frivolous or is suing a party who has absolute immunity, the magistrate judge will prepare a report and recommendation for dismissal and submit it to the district judge assigned to the case.

B. APPoINTMENT OF COUNSEL:

28 U.S.C.A. § 191 5(e)(1) “The court may request an attorney to represent any person unable to afford counsel.”

5 In most cases, due to the scarcity of pro bono attorneys and the abundance of cases, magistrate judges deny initial requests for assignment of counsel without prejudice to the motion being renewed once the case has survived an initial motion to dismiss and/or summary judgment.

C. EXHAUSTION OF PRISON GRIEVANCE REMEDIES: The PLRA requires that a prisoner must exhaust administrative remedies before filing suit in the district court. 42 U.S.C. § 1997e(a) (2004) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” “Prison conditions” has been widely defined by the courts and includes excessive force, medical neglect, and retaliation claims of inmates. The plaintiff-prisoner has the burden of proving that a grievance has been fully exhausted, Baxter v. Rose, 305 F.3d 486, 488 (6th Cir.2002), and the prisoner must attach documentation to the complaint as proof. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998). Thus, there is a heightened pleading requirement for prisoners on the issue of exhaustion. Exhaustion is not jurisdictional yet it is mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999), even if proceeding through the administrative system would be “futile.” Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir.1999). Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002), involved a Prisoner who claims he had exhausted administrative remedies, but failed to properly plead this and tried to amend to say this clearly. The Sixth Circuit said an inmate cannot amend a complaint in order “to cure a pleading defect,’ or “to correct the pleading defect” (305 F.3d at 487) or

“to cure the failure to plead the exhaustion of administrative remedies. . . “Id. at 488. But if an inmate exhausts he may “always refile his complaint and plead exhaustion with sufficient detail to meet our heightened pleading requirement.” Id. at 489. Freeman v. Francis., 196 F.3d 641 (6th Cir. 1999), also involved an inmate who claims he had exhausted, and in response to the motion to dismiss noted that before filing his law suit he “made some attempts to go through the grievance procedures” but the Sixth Circuit noted “we must dismiss plaintiff’s complaint because he filed his federal complaint before allowing the administrative process to be completed.” 196 F.3d at 645, Freeman, decided before Baxter, did not move to amend so that issue was not before the court. Again, he never p/ed a viable § 1983 claim because that requires exhaustion before pleading it. Bey v. Johnson ,407 F.3d 80 1(6th Cir. ,2005), has recently clarified that a case must be dismissed if it is a “mixed” complaint with even one non-exhausted claim. That decision noted: If a district court is presented with a “mixed” petition, it has the power under subsection (c)(2) to dismiss any frivolous claims, exhausted or not, with prejudice. However, dismissal under subsection (a) allows the court to dismiss the entire action without prejudice. The Smeltzer court [Sme/tzer v. Hook 235 F.Supp.2d 736 (W.D.Mich.,2002)] recognized that Congress must have intended 6 that courts could use subsection (c)(2) to dismiss unexhausted claims as frivolous to keep them from “holding up” the others. Smeltzei,. 235 F.Supp.2d at 744. In the alternative, the court could dismiss the entire action without prejudice and allow the prisoner to re-file only exhausted claims.

Id. at 807

While motion to amend generally are not allowed to avoid a dismissal for failure to exhaust, Judge Tarnow in Carter v. Robinson, 211 F.R.D. 549 (E.D.Mich.,2003), allowed a motion to amend to add a claim, not originally brought (and thus not earlier dismissed), where the inmate exhausted during the pendency of the case in which he later sought to amend the complaint. When the plaintiff moved to amend he plead past exhaustion and satisfied 42 U.S.C. §1997e(a) and thus stated a prima facie case. In Boles v Overton, 03-72073, 2005 WL 2658953 (E.D.Mich., October 18,2005), Judge Duggan refused to allow plaintiff to amend his pleading to add a now exhausted claim that had earlier been dismissed as unexhausted [before the total exhaustion rule was adopted by the Sixth circuit in Bey v. Johnson 1. Also, Judge Lawson in Casarez v. Mars, 2003 WL 21369255, *5..6 (E.D.Mich.,2003), allowed an inmate who properly plead that he has exhausted (unlike the plaintiff in Baxter) but who failed to provide the supporting documentation with his complaint, to provide it in response to a motion to dismiss.

D. DISCOVERY Under 28 U.S.C. § 636(b)(1 )(A) magistrate judges undertake discovery motions as in other civil cases.

E. DlsPosmvE MOTIONS Under 28 U.S.C. § 636(b)(1 )(B) magistrate judges hold hearings and write reports and recommendations for district judges. If the district judge has referred the case and the parties have consented to magistrate judges handling the case under 28 U.S.C. § 636(c), the magistrate judge will hear and rule on dispositive motions.

F. TRIAL Magistrate judges to whom the case has been referred for all pretrial proceedings will issue writs of habeas corpus ad testificandum to have plaintiff and any inmate witnesses brought to court for trial. If the district judge has referred the case and the parties have consented to magistrate judges handling the case under 28 U.S.C. § 636(c), the magistrate judge will preside at the trial.

7 EXHIBIT 5 “Federal Judges’ Involvement in Prison Cases”

Avern Cohn United States District Judge ______I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Plaintiff,

-vs- Case No. Hon: Defendant.

PRETRIAL ORDER NO. I

This is a prisoner civil rights case brought under 42 USC §1983. It is now at issue.

To expedite consideration, plaintiff is directed to file with the Court, with a copy to defendant, within forty (40) days:

1. A short narrative statement of the facts he expects to prove at a trial.

2. A list of the witnesses he expects to call at a trial, including a short summary

of the testimony he expects each witness will give.

3. A list of the exhibits he expects to offer at a trial.

After this information is filed, the Court will direct a response by defendants.

SO ORDERED.

AVERN COHN United States District Judge

Dated: Detroit, Michigan

S:\JUDY~Pr~sonerOrder1 .wpd ______/

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Plaintiff,

-VS- Case No. Hon: Defendant.

PRETRIAL ORDER NO. 2

On the Court entered a pretrial order requiring

plaintiff to file a short narrative statement of the facts he expects to prove at trial, together

with a list of witnesses and exhibits. The order was complied with on

with a copy being sent to defendant’s attorney as shown by a proof of service

accompanying it. Defendant is directed to file within forty (40) days:

1. A short narrative statement of the facts they expect to prove at trial.

2. A list of the witnesses they expect to call at a trial, including a short summary

of the testimony they expect each witness will give.

3. A list of the exhibits they expect to offer at a trial.

SO ORDERED.

AVERN COHN United States District Judge

Dated: Detroit, Michigan

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H [1] Federal Civil Procedure €~‘2339 l70Ak2339 Most Cited Cases Briefs and Other Related Documents District court judge has discretion to grant new trial if verdict appears to judge to be against weight of evidence. Fed.Rules Civ.Proc.Rule 59(a), 28 United States Court of Appeals, U.S.C.A. Sixth Circuit. Florence BELL and Earnest Bell, Sr., as personal [2] Federal Courts €~825.1 representatives for 1 70Bk825.1 Most Cited Cases Earnest Bell, Jr., deceased, Plaintiffs-Appellees, Court of Appeals reviews for abuse of discretion V. district court’s decision granting motion for new Robert JOHNSON et al., Defendants, trial. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. Allen Blatter, Defendant-Appellant. No. 03-2634. [3] Federal Civil Procedure €‘2344 l70Ak2344 Most Cited Cases Argued: Jan. 25, 2005. District court did not abuse its discretion in granting Decided and Filed: April 20, 2005. new trial on damages, in state prison inmate’s First Amendment retaliation action against corrections Background: Former state prison inmate sued officer arising from officer’s searches of inmate’s corrections officers, alleging, inter alia, that they cell that followed inmate’s filing civil rights action had retaliated against him, in violation of First against officer; jury awarded no punitive damages Amendment, for filing civil rights suit. Following based on its conclusion that officer had not acted remand, 308 F.3d 594, and following jury verdict “wantonly” or “oppressively,” even though jury awarding $1,500 in compensatory damages but no simultaneously found facts that met verdict form’s punitive damages, the United States District Court “abuse of authority [or] power” definition of those for the Eastern District of Michigan, Avern Cohn, terms, i.e. that cell searches would deter ordinary 3., granted new trial on damages, and subsequently person from continuing to exercise his rights and entered judgment on verdict against officer for were motivated at least in part by inmate’s protected $6,000 in compensatory damages and $28,000 in conduct and had proximately caused injury, and that punitive damages. Officer appealed. officer had failed to show that he would have conducted searches absent inmate’s lawsuit. Holdings: The Court of Appeals, Moore, Circuit U.S.C.A. Const.Amend. 1; Fed.Rules Civ.Proc.Rule Judge, held that: 59(a), 28 U.S.C.A. (1) District Court did not abuse its discretion by granting new trial on damages, given jury’s [4] Federal Courts €~819 inconsistent findings regarding whether officer had 170Bk819 Most Cited Cases acted wantonly or oppressively, and Court of Appeals reviews district court’s denial of (2) recusal of District Court judge was not recusal motion for abuse of discretion. warranted by judge’s comments at status conference following grant of new trial. [5] Judges €~49(1) Affirmed. 227k49(1) Most Cited Cases Extrajudicial source for judge’s opinion about case West Headnotes or party is neither necessary nor sufficient to require

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recusal; instead, presence of extrajudicial source of case and provided parties with information that merely weighs in favor of finding either appearance might affect their decisions as to whether to settle, of partiality, or but did not constitute expression of bias or bias or prejudice. 28 U.S.C.A. § 455(a-b). appearance of partiality. 28 U.S.C.A. § 455(a-b). *998 ARGUED: Paul D. Reingold, Michigan [6] Judges €Z~49(2) Clinical Law Program, Ann Arbor, Michigan, for 227k49(2) Most Cited Cases Appellees. John L. Thurber, Office of the Attorney Recusal of district court judge was not required, in General, Lansing, Michigan, for Appellant. ON state prison inmate’s First Amendment retaliation BRIEF: Paul D. Reingold, Michigan Clinical Law action against corrections officer in which jury had Program, Ann Arbor, Michigan, for Appellees. John returned verdict in inmate’s favor but had awarded L. Thurber, Office of the Attorney General, only $1,500 in compensatory damages and no Lansing, Michigan, for Appellant. punitive damages, by judge’s comment that he would retry case until damages of $9,000 were Before: MOORE and GILMAN, Circuit Judges, awarded, made at status conference following grant GW1N, District Judge. [FN*J of new trial on damages; jury had already found officer liable, so comment could not indicate bias in FN* The Honorable James S. Gwin, favor of one party on liability phase. 28 U.S.C.A. § United States District Judge for the 455. Northern District of Ohio, sitting by designation. [71 Judges €z~49(1) 227k49(l) Most Cited Cases Recusal of district court judge was not required, in OPINION state prison inmate’s First Amendment retaliation action against corrections officer in which jury had MOORE, Circuit Judge. returned verdict in inmate’s favor but had awarded only $1,500 in compensatory damages and no This First Amendment retaliation claim relates to a punitive damages, by judge’s sharing with counsel series of events that we have addressed in three for both sides, during status conference following prior published decisions. Two of those decisions grant of new trial on damages, piece of paper found came in a related case, Thaddeus-X v. Blatter, 110 in jury room containing several numbers F.3d 1233 (6th Cir.l997), vacated on grant of presumably showing possible damages verdicts; rehearing en banc and affd in part by en banc action constituted effort to facilitate settlement. 28 court, Thaddeus-X v. Biatter, 175 F.3d 378 (6th U.S.C.A. § 455. Cir.1999) (en banc), and one in a prior appeal in this case, Bell v. Johnson, 308 F.3d 594 (6th [8] Judges €Z~49(2) Cir.2002) (“Bell I “). Following our order of 227k49(2) Most Cited Cases remand in Bell i~ the First Amendment retaliation Recusal of district court judge was not required, in claim went to trial, and the jury returned a verdict in state prison inmate’s First Amendment retaliation favor of Plaintiff-Appellee Earnest Bell, Jr. (“Bell”) action against corrections officer in which jury had [FN1J and against Defendant_*999 Appellant Allen returned verdict in inmate’s favor but had awarded Blatter (“Blatter”), awarding $1,500 in only $1,500 in compensatory damages and no compensatory damages but no punitive damages. punitive damages, by judge’s comment that he was The district judge granted a new trial on the issue of inclined to award attorney fees against officer and damages and declined to recuse himself after that those fees might exceed those normally allowed allegedly making several challenged comments at by Prison Litigation Reform Act, made at status an off-the-record status conference. This new trial conference following grant of new trial on damages; resulted in a verdict of $6,000 in compensatory comment may have demonstrated opinion of merits damages and $28,000 in punitive damages against

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Blatter. The two issues presented in this appeal are string. (1) whether the district judge abused his discretion In April 1994, Bell sought legal assistance in in granting the new trial on damages; and (2) pursuing a variety of civil rights claims from a whether the district judge abused his discretion in jailhouse lawyer named Thaddeus-X who was declining to recuse himself from the case. We housed in a nearby cell. On April 20, 1994, Bell AFFIRM the judgment of the district court. and Thaddeus-X signed a legal assistance agreement, which was approved by a deputy FN1. Plaintiff Earnest Bell, Jr. (“Bell”) warden. With Thaddeus-X’s assistance, Bell filed died on April 28, 2004, shortly after his a lawsuit against seventeen prison guards and appellate proof brief was filed. Plaintiffs administrators, including Sgt. [Allen] Blatter and Florence Bell and Earnest Bell, Sr., Bell’s Officer Mark Stimpson. Bell’s suit alleged a parents, are now pursuing this case on number of claims, including a challenge to his Bell’s behalf. placement in administrative segregation. Before the lawsuit was filed, prison guards assisted Bell I. BACKGROUND by providing him with writing materials and by In Bell L we summarized much of the factual passing papers and legal materials between Bell background to this case as follows: [FN2] and Thaddeus-X. Bell claims that the guards began treating him FN2. Because, in Bell v. Johnson, 308 differently afler the lawsuit was filed. The guards F.3d 594 (6th Cir.2002) (“Bell I “), we began refusing to provide Bell with writing were reviewing a district court’s prior grant supplies or to pass legal materials between Bell of judgment as a matter of law to the and Thaddeus-X. According to Bell, and fellow defendants, this summary drew all inmate Eric Waddell, Bell’s lawsuit was common inferences in Bell’s favor. See id. at 601. knowledge among the guards because Thaddeus-X frequently boasted about the suit, Bell is a fonner prisoner at the State Prison for and because the prisoners on the floor had Southern Michigan in Jackson. In 1993-94, Bell discussed the suit by shouting from cell to cell. was serving a sentence for armed robbery. He In response to what he perceived to be undue was assigned to administrative segregation during harassment by several of the prison guards, Bell his stay at Jackson because he was diagnosed sent a “Notice of Litigation” to the seventeen with AIDS and had engaged in consensual sex named defendants *1000 in his lawsuit on June 3, with another inmate. Bell was paroled in 1994. 1994. The notice explained that Bell had filed a Bell returned to Jackson later that year after he federal lawsuit against the named defendants and violated his parole by failing a drug test. When warned that “[a]ny further harassment or he returned to prison, Bell was once again retaliation will be reported immediately to [the assigned to administrative segregation based upon district judge] by plaintiff.” his prior sexual misconduct. On June 6, 1994, Sgt. Blatter conducted a search In administrative segregation, prisoners are of Bell’s cell while Bell was in the prison yard for housed alone in cells with steel doors. Prisoners his daily hour of “yard time.” When Bell in segregation are locked in their cells for returned to his cell, he found the cell in disarray, twenty-three hours each day, but are allowed to and he noticed that some of his legal papers and spend one hour in the prison yard, where the his medical diet snacks had been taken. Waddell, inmates are placed in cages to isolate them. whose cell was directly across the hail from Because prisoners in segregation are not allowed Bell’s, saw Blatter enter the cell and leave with to congregate, the prisoners communicate with papers and Bell’s snacks. Bell testified that he each other by yelling through cracks under the was allowed to keep the medical snacks in his cell cell doors, passing notes through guards, or because he had AIDS and he needed extra food to sliding notes between cells using paper and slow his weight loss. At trial, Blatter admitted to

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conducting the cell search and to removing Bell’s in connection with either the June 6 or the June medical snacks, although he denied taking any 20 search of Bell’s cell. legal papers. Blatter also acknowledged that the Bell stated that his legal materials were never food was given to Bell for medical reasons. returned to him. He eventually was able to obtain Bell filed two grievances conceming the June 6 copies from his sister, who had kept duplicates of search of his cell. On June 7, 1994, Bell spoke some of his filings. Bell testified that he became with Sgt. Blatter and asked him about the legal angry and afraid as a result of the actions of materials. According to Bell, Blatter responded prison officials regarding his lawsuit. He by telling Bell that “if [he] knew what was good explained: “I was angry. It got to the point for him, that [he] better write the courts [and] where I was kind of skeptical from going to the have the litigation dismissed.” On June 8, the yard. I had started being afraid because my prison staff moved Thaddeus-X from the second medical snacks, they could have started to, doing floor to the base level of administrative anything to my food segregation, making it very difficult for Bell to *1001 Bell J~ 308 F.3d at 597-98 (citations and communicate with him about the lawsuit. That footnote omitted, alterations in Bell I ). A day, Bell filed an amended complaint describing magistrate judge recommended that Bell’s other the retaliatory cell search on June 6. claims be dismissed, but that his First Amendment On June 15, 1994, notice of Bell’s lawsuit was retaliation claim (relating to the June 6, 1994 and officially received by the prison litigation June 20, 1994 searches) be allowed to go forward, coordinator on behalf of defendants Blatter and and the district judge adopted this recommendation. Stimpson. On June 20, 1994, Officer Stimpson The case was held pending our decision in a related allegedly came to Bell’s cell and told Bell that he case, Thaddeus-~ 175 F.3d 378, involving a “was going to pay” for filing the lawsuit. While separate claim by Bell and “his jailhouse lawyer, Bell was in the prison yard on June 20, Sgt. Thaddeus-X.” Bell L 308 F.3d at 600. Following Blatter and Officer Stimpson again searched our en banc decision in Thaddeus-~ Bell’s First Bell’s cell. Bell returned to find that more of his Amendment retaliation claim went to jury trial legal materials were missing. Waddell observed (“Trial No. 1”) from January 17 to January 18, this search from his cell and saw Blatter and 2001. At the close of Bell’s case, the defendants Stimpson confiscate Bell’s food and legal papers. moved for judgment as a matter of law pursuant to Bell filed another grievance four days later Federal Rule of Civil Procedure 50(a), and the seeking the return of his property. district judge granted that motion. We reversed the Michigan Department of Corrections (“MDOC”) district court’s decision to enter judgment as a policy regulates shakedowns of prisoners’ cells. matter of law and remanded the case for further MDOC Policy Directive 04.04.110 provides that proceedings. The chief district judge then ordered “no search shall be conducted for the purpose of the case reassigned, for reasons of docket harassing or humiliating a prisoner.” The policy efficiency, to another district judge. The case was further instructs prison staff to “use reasonable then retried before another jury (“Trial No. 2”) from care in conducting the search to protect and February 18 to February 19, 2003. The jury did not safeguard the prisoner’s property and ... attempt find Stimpson to be liable, but found Blatter to be to leave searched areas in a similar condition to liable for $1,500 in compensatory damages, but no what they were prior to the search.” Prison staff punitive damages. The district judge entered are also directed to enter the cell search into the judgment on February 26, 2003, and the next day cell-search log and to complete a Bell timely filed a motion for new trial on the issue contraband-removal record and a notice of intent of damages. On August 25, 2003, the district judge to conduct an administrative hearing whenever granted the motion, finding as follows: non-dangerous contraband is removed from a The damage award of $1500.00 in compensatory prisoner’s cell. No entry was made in the damages with no award for punitive damages was cell-search log, nor was any notice of intent filed, against the great weight of the evidence at trial

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considering the egregiousness of Blatter’s conduct existed which would allow appellate fees to be and the effect such conduct had on Bell. Blatter awarded outside of the 150% cap contained in the should have been punished for his conduct. Prison Litigation Reform Act Clearly, the jury found that Blatter not only J.A. at 109 (Brief in Support of Recusal) (citations retaliated against Bell for filing a lawsuit, but also omitted). In his order denying the recusal motion, that he tried to cover up his misconduct by telling the district judge provided some clarification and falsehoods. The jury’s award of only $1500.00 in adopted a portion of Bell’s description of the compensatory damages as a consequence is “context” of the comments, but did not explicitly seriously flawed. See Holmes v. City of repudiate any of the statements attributed to him by Massillon, Ohio, 78 F.3d 1041, 1045-46 (6th Blatter’s attorneys. [FN3] J.A. at 148-49 (Order Cir. 1996). Bell is therefore entitled to present his Denying Recusal Motion). The district judge also case for damages to a second jury. The verdict is noted that “[t]he undersigned’s comments at the simply not one which a jury, given the evidence status conference were not intended to be taken detailed above and applying the instructions on literally, as Bell’s counsel recognizes, but rather the law set forth above, could reasonably have were an attempt, perhaps a bit heavy-handed, to reached. The evidence shows that Blatter’s resolve the case short of a third trial. Rhetorical conduct was wanton and oppressive and is such promiscuity is not the same as bias.” J.A. at 150 that the “jury awarded damages in an amount (Order Denying Recusal Motion). The case again substantially less than unquestion[ably] proved by went to jury trial (“Trial No. 3”), and this trial the ... uncontradicted and undisputed evidence.” resulted in a verdict of $6,000 in compensatory Walker v. Bain, 257 F.3d 660, 67 [4] (6th damages and $28,000 in punitive damages against Cir.2000). Blatter, who then filed this appeal. Joint Appendix (“J.A.”) at 103-104 (Memorandum and Order Granting Plaintiffs Motion for a New FN3. However, the district judge did issue Trial on Damages (“Order Granting New Trial”)) an order stating the following: (omission in Order Granting New Trial). Contrary to Blatter’s argument, the undersigned did not indicate that this case On September 23, 2003, a status conference took was worth $9000.00 and no other verdict place, off the record, in the district judge’s would be accepted. Rather, the chambers. At this conference, the district judge undersigned indicated, as it had in the made several comments that led defendants to order granting a new trial, that this amount request that the district judge recuse himself from appeared reasonable to resolve both Bell’s the case. According to Blatter, claim for damages and the attorney fees [d]uring the course of the status conference, the likely to be awarded, including fees trial court informed Blatter’s counsel, John L. incurred on appeal, if Bell was successful Thurber, that he should inform his supervisor that at trial. At all times, however, counsel and the Court would try the instant case as many the undersigned understood that this was a times as necessary until a jury reached a verdict matter for the parties to decide. Indeed, of at least $9,000.00. The Court also handed when it became clear that settlement was counsel for both sides a note left over from the not likely, the undersigned set the case for jury’s deliberations which contained several trial. numbers on it which presumably showed several Joint Appendix (“J.A.”) at 151 (Order possible verdicts. Finally, the Court informed Mr. Denying Recusal Motion). Thurber that it would award Bell’s counsel, Paul Reingold, all of his fees for a previous appeal II. ANALYSIS because the *1002 Court had spoken with Lynn A. Jurisdiction Branham, the Dean of Cooley Law School in Grand Rapids, and she indicated that authority As Bell sued under 42 U.S.C. § 1983, the district

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court had jurisdiction pursuant to 28 U.S.C. § 1331. See, e.g., Tobin v. Astra Pharm. Prods., We have jurisdiction over the appeal pursuant to 28 Inc., 993 F.2d 528, 542 (6th Cir.), cert. U.S.C. § 1291. denied~ 510 U.S. 914, 114 S.Ct. 304, 126 L.Ed.2d 252 (1993). B. Motion for New Trial [t]he scope of review of a damage award is [1] Federal Rule of Civil Procedure 59(a) provides extremely narrow. A trial court may not grant a that “[a] new trial may be granted to all or any of new trial on the ground of insufficient damages the parties and on all or part of the issues ... in an unless the jury verdict is one that could not action in which there has been a trial by jury, for reasonably have been reached. The remedy of a any of the reasons for which new trials have new trial for inadequate damages is appropriate heretofore been granted in actions at law in the only where the evidence indicates that the jury courts of the United States.” Fed. R. Civ. P. 59(a). awarded damages in an amount substantially less The Supreme Court has noted that “the authority of than unquestionably proved by the plaintiffs trial judges to grant new trials” pursuant to Rule uncontradicted and undisputed evidence. Thus, if 59(a) “is large.” Gasperini v. Ctr. for the the verdict is supported by some competent, Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. credible evidence, a trial court will be deemed not 2211, 135 L.Ed.2d 659 (1996); see also id. (“ ‘The to have abused its discretion in denying the trial judge in the federal system,’ we have motion. reaffirmed, ‘has ... discretion to grant a new trial if Walker v. Bain, 257 F.3d 660, 674 (6th Cir.200l) the verdict appears to [the judge] to be against the (citations omitted), cert. denied~ 535 U.S. 1095, 122 weight of the evidence.’ “ (quoting Byrd v. Blue S.Ct. 2291, 152 L.Ed.2d 1050 (2002). Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958))). [3] Here, Blatter has conceded, among other things, that Bell’s initial lawsuit constituted protected First [2] We review a decision granting a motion for a Amendment conduct; that Blatter entered, new trial for abuse of discretion. Holmes v. City of searched, and “removed food” from Bell’s cell while Massillon, 78 F.3d 1041, 1045 (6th Cir.), cert. Bell was in the yard on June 6, 2004, but did not list denied~ 519 U.S. 935, 117 S.Ct. 312, 136 L.Ed.2d this search into the jail’s Administrative Segregation 228 (1996). [FN4] *1003 Under this standard, we Second Floor Log Book (“Log Book”); and that will reverse a decision granting a new trial when we Blatter (together with Stimpson) entered and have a “definite and firm conviction ... that the court searched Bell’s cell while Bell was out in the yard below committed a clear error of judgment in the on June 20, 2004, but did not enter this search into conclusion it reached upon a weighing of the the Log Book. J.A. at 531 (Stipulation of Facts). In relevant factors.’ “ Id. at 1045 (quotation omitted). addition, according to its verdict form, the jury As we have previously noted, found that: (1) Blatter took “an adverse action against the Plaintiff that would deter a person of FN4. In Gasperini v. Ctr. for the ordinary firmness from continuing to exercise his Humanities, Inc., 518 U.S. 415, 116 S.Ct. rights under the First Amendment”; (2) Blatter’s 2211, 135 L.Ed.2d 659 (1996), the “adverse action [was] motivated at least in part by Supreme Court confirmed that abuse of Plaintiff Bell’s protected conduct”; (3) Blatter discretion is the appropriate standard for failed to “show that he would have taken the same review of a federal district court’s denial of action in the absence of the protected activity”; (4) a motion for a new trial. Id. at 434-36, 116 B latter’s “conduct [was] the proximate cause of S.Ct. 2211. Nothing in Gasperini requires injuries to Plaintiff Bell”; (5) $1,500 was the us to alter our prior practice of applying appropriate “amount of damages [to] compensate this standard to review of a district court’s the Plaintiff for the injuries he received as a grant of a motion for a new trial as well. consequence of Defendant Blatter’s actions”; and

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(6) Blatter did not “act wantonly or oppressively, as presented to the jury, together with Blatter’s defined on pages 24 and 25 of these instructions, to stipulation of facts, indicates that both the June 6, violate the Plaintiff’s right not to be retaliated 1994 search of Bell’s cell and the June 20, 1994 against,’ and Bell was accordingly not entitled to search of Bell’s cell took place while Bell was in the punitive damages. J.A. at 58-59 (Verdict Form for prison yard and did not have access to the cell, and Allen Blatter--Retaliation). [FN5] were possible only because of Blatter’s official position and authority. As these searches depended FN5. The definitions of “wantonly” and entirely on Blatter’s authority and power over Bell, “oppressively” referenced in the verdict the jury’s finding that Blatter did retaliate against form provided: Bell requires, according to the instructions given to An act or a failure to act is “wantonly” the jury, an additional finding that Blatter acted done, if done in reckless or callous “oppressively.” J.A. at 102-03 (Order Granting disregard to, or indifference to, the rights New Trial) (quoting jury instructions). [FN6] of one or more persons, including the injured person. FN6. Additionally, there is also some An act or failure to act is “oppressively” reason to believe that the uncontradicted done, if done in a way or manner which evidence supported a finding that Blatter injuries [sic), or damages, or otherwise acted “wantonly.” Blatter’s undisputed violate [sic] the rights of another person testimony at trial indicates that he knew with unnecessary harshness or severity, as that any retaliation against a prisoner for by misuse or abuse of authority IorJ filing grievances (and, by logical power~ or by taking advantage of some extension, for filing lawsuits) would be weakness, or disability, or misfortune of improper. J.A. at 356 (Blatter Test.). This another person. is arguably sufficient to require a finding J.A. at 102-03 (Order Granting New Trial) that B latter “wantonly” retaliated against (quoting jury instructions) (emphasis Bell because, at the very least, Blatter’s added). knowledge that his action was wrongful indicates that the action was done with Given these findings, the district judge did not “indifference” to Bell’s rights. J.A. at 102 abuse his discretion in granting a new trial. (Order Granting New Trial) (quoting jury Considering the evidence presented at trial, the instructions). jury’s answers to questions one through four of the verdict form were in conflict with its answer to The uncontradicted and undisputed evidence question *1004 six. It is uncontradicted that Blatter indicates that Blatter acted oppressively in was in a position of substantial authority and power retaliating against Bell’s exercise of his First over Bell. In fact, there are few other situations Amendment rights. We must uphold the district where a person exercises such complete authority court’s decision unless we have “a definite and firm and power over another human as that exercised by conviction” that the district court “committed a a prison officer over those individuals detained in clear error of judgment in the conclusion it administrative segregation in the State of Michigan. reached.” Holmes, 78 F.3d at 1045 (internal See Bell L 308 F.3d at 597. The definition of acting quotations omitted). As the facts of this case do not “oppressively” submitted to the jury provides that justify such a firm conviction, we must affirm the an action is “oppressive[ ]“ when it violates another district judge’s decision to order a new trial on person’s rights “with unnecessary harshness or damages. severity,” and that action “by misuse or abuse of authority [or] power” qualifies as action undertaken C. Motion for Recusal “with unnecessary harshness or severity.” J.A. at 103 (Order Granting New Trial). The testimony [4][5] We review a lower court’s denial of a recusal

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motion for abuse of discretion. Youn v. Track~ Inc., in favor of finding either an appearance of partiality 324 F.3d 409, 422 (6th Cir.2003). The main under § 455(a) or bias or prejudice under § federal recusal statute [FN7] provides in relevant 455(b)(1). See Liteky, 510 U.S. at 554-56, 114 part: S.Ct. 1147.

FN7. Blatter cites two federal statutes as [6] Even accepting Blatter’s account of the the basis of his motion for recusal, 28 off-the-record status conference, it is apparent that U.S.C. § 144 and 28 U.S.C. § 455. the district judge did not abuse his discretion in However, the Supreme Court has declining to recuse himself pursuant to § 455. [FN8] explained that subsection (b)(l) of § 455 First, a statement by the district judge that he “entirely duplicate[s] the grounds of would continue to retry the case until Bell received recusal set forth in § 144 (‘bias or a total verdict of at least $9,000 was not improper prejudice’), but (1) ma[kes] them as long as the district judge believed that a verdict applicable to all justices, judges, and of less than $9,000 would be against the clear magistrates (and not just district judges), weight of the evidence, requiring him to grant a and (2) place[s] the obligation to identify motion for a new trial pursuant to Rule 59(a). [FN9] the existence of those grounds upon the As the jury had already made a liability judge himself, rather than requiring recusal determination, the statement could not indicate that only in response to a party affIdavit.” the judge was biased (or create an appearance of Liteky v. United States, 510 U.s. 540, 548, bias) in favor of one party winning the liability 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). phase--the jury had already determined that Bell Accordingly, it is not necessary for us had prevailed in that phase. In fact, given the separately to address § 144. post-verdict certainty of Blatter’s liability, the time already consumed in litigation, the importance of (a) Any justice, judge, or magistrate judge of the the constitutional rights at stake, and (now, with the United States shall disqualify himself in any benefit of hindsight) the $34,000 verdict actually proceeding in which his impartiality might reached by the jury in Trial No. 3, $9,000 seems to reasonably be questioned. be a minimum damages figure relatively favorable (b) He shall also disqualify himself in the to Blatter. Accordingly, such a comment by the following circumstances: district judge would show neither bias nor an (1) Where he has a personal bias or prejudice appearance of partiality. concerning a party, or personal knowledge of disputed evidentiary facts concerning the FN8. Blatter argues strenuously that the proceeding district judge should have accepted the *1005 28 U.S.C. § 455(a)-(b) (emphases added). affidavits submitted with Blatter’s recusal In Liteky v. United States, 510 U.S. 540, 114 S.Ct. motion as true and immediately recused 1147, 127 L.Ed.2d 474 (1994), the Supreme Court himself. However, the affidavits--which explained that consideration of the “extrajudicial merely state that the district judge told source factor” is necessary when making counsel the case would be retried again if determinations under both § 455(a) and § 455(b)(1) the verdict were less than $9,000, that the Contrary to the suggestion of prior caselaw, see, district judge told counsel he planned to e.g., Wheeler v. Southland Corp., 875 F.2d 1246, award the maximum attorney fees possible 1251 (6th Cir.1989), the Supreme Court clarified if Bell prevailed in a new trial, and that the that an extrajudicial source for a judge’s opinion district judge showed counsel a piece of about a case or a party is neither necessary nor paper found in the jury room--are legally sufficient to require recusal. Liteky, 510 U.S. at insufficient to require recusal. These 554-56, 114 S.Ct. 1147. Instead, the presence of an allegations, even if true, do not extrajudicial source is merely a thumb on the scale demonstrate either an appearance of

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partiality, 28 U.S.C. § 455(a), or actual counsel. bias or prejudice, 28 U.S.C. § 455(b)(1). See Liteky, 510 U.S. at 555, 114 S.Ct. [8] Third, the district judge’s statement that he was 1147. Moreover, we do not require that the inclined to award attorney fees (and that those fees case be transferred to another judge to might exceed those normally allowed by the Prison determine the legal sufficiency of the Litigation Reform Act) showed neither bias nor the affidavits. See, e.g., City of Cleveland v. appearance of partiality. The district judge was Krupansky, 619 F.2d 576, 578 (6th Cir.) simply providing the parties with additional (per curiam), cert. denied, 449 U.S. 834, information that might affect their decisions as to 101 S.Ct. 106, 66 L.Ed.2d 40 (1980). whether it would be appropriate to settle the case. At most, this statement demonstrated that the FN9. We express no opinion as to whether district judge thought that Bell had presented a the district judge could have granted meritorious case at trial. An opinion of the merits successive new-trial motions following of the case, resulting from a judge’s experience with repeated jury verdicts of less than $9,000, the case in the course of his or her official duties, is or whether he could have granted a not sufficient to justify § 455 recusal unless it new-trial motion after a verdict only demonstrates a “deep-seated favoritism or slightly below $9,000. We hold simply antagonism that would make fair judgment that, on the facts currently presented, a impossible.” Id. at 555, 114 S.Ct. 1147. Such is mere effort to inform the parties of the manifestly not the case here, where the district minimum damages that would have judge both had substantial experience with the case survived a new-trial motion, based on the and expressed an opinion clearly justified by the evidence presented in Trial No. 2, did not evidence presented at trial. [FN1 1] require recusal. FN11. The parties devote substantial space [7] Second, the district judge’s decision to discuss to Anderson v. Sheppard, 856 F.2d 741 (or share with counsel) the piece of paper found in (6th Cir.1988), an earlier recusal case. the jury room does not demonstrate bias, prejudice, However, as the extreme and extensive or the appearance of partiality. [FNIO] It was comments in Anderson were wholly simply an effort by the district judge to facilitate a different from those involved here, *1006 settlement potentially advantageous to both Anderson does not require reversal in the parties by providing them with more complete present case. information about the potential outcome of a new trial. There is no allegation that the district judge We must uphold the district court’s recusal decision disclosed this information only to a single party, or unless we have “a definite and firm conviction that that he made the disclosure to one party before the trial court committed a clear error of judgment.” sharing it with the other. Moreover, it seems clear Youn, 324 F.3d at 422 (internal quotation omitted). that the piece of paper found in the jury room Although we do not condone the statements qualifies as a “fact[ ] introduced or event[ attributed to the district judge during the September occurring in the course of the current proceedings,” 23, 2003 status conference, which the judge himself Litelcy, 510 U.S. at 555, 114 S.Ct. 1147, and conceded were “a bit heavy-handed,” we do not accordingly cannot serve as an extrajudicial factor have a firm conviction that the statements made in weighing in favor of recusal. the context of encouraging a settlement constituted a clear error of judgment. We therefore affirm the FN1O. As no party asserts that the district district judge’s decision not to recuse himself from judge’s action was actually improper, we this case. express no opinion on the general propriety of disclosing jury-room notes to III. CONCLUSION

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H [1] Federal Civil Procedure €‘2142.1 170Ak2l42.1 Most Cited Cases Briefs and Other Related Documents [1] Federal Civil Procedure €~2148.1 l70Alc2 148.1 Most Cited Cases United States Court of Appeals, In considering motion for judgment as a matter of Sixth Circuit. law, court should review all of the evidence in the Earnest BELL, Jr., Plaintiff-Appellant, record; in doing so, however, court must draw all V. reasonable inferences in favor of the nonmoving Robert JOHNSON, et al., Defendants, party, and it may not make credibility Mark Stimpson; Allen Blatter, determinations or weigh the evidence. Fed.Rules Defendants-Appellees. Civ.Proc.Rule 50, 28 U.S.C.A. No. 01-1286. [2] Federal Civil Procedure €~‘2127 Argued: Aug. 8, 2002. 170Ak2 127 Most Cited Cases Decided and Filed: Oct. 17, 2002. When considering motion for judgment as a law, court should give credence to the evidence favoring Former state inmate sued prison guards, alleging, the nonmovant as well as that evidence supporting inter alia, that they retaliated against him in the violation of First Amendment for filing civil rights moving party which is uncontradicted and lawsuit. The United States District Court for the unimpeached, at least to the extent that that Eastern District of Michigan, John Corbett OMeara evidence comes from disinterested witnesses. J., granted judgment as a matter of law for guards Fed.Rules Civ.Proc.Rule 50, 28 U.S.C.A. at the close of former inmate’s case-in-chief. Former inmate appealed. The Court of Appeals, Moore, [3] Civil Rights €~‘1376(2) Circuit Judge, held that: (1) whether guards took 78k1376(2) Most Cited Cases adverse actions against former inmate which were (Formerly 78k2 14(2)) not merely de minimis, but rather were sufficient to Under doctrine of qualified immunity, government deter person of ordinary firmness from continuing officials performing discretionary functions to engage in protected conduct, was question for generally are shielded from liability for civil jury; (2) former inmate engaged in protected damages insofar as their conduct does not violate conduct when he filed initial complaint against clearly established statutory or constitutional rights prison guards; and (3) guards were not entitled to of which a reasonable person would have known. qualified immunity from former inmate’s retaliation claim. [41 Civil Rights €‘1376(1) 78k1376(1) Most Cited Cases Reversed and remanded. (Formerly 78k214(1))

West Headnotes [41 Civil Rights €‘1376(2) 78k1376(2) Most Cited Cases [1] Federal Civil Procedure €‘2127 (Formerly 78k2 14(2)) l70Ak2 127 Most Cited Cases Evaluating defense of qualified immunity involves a two-step inquiry: first, the court must determine

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308F.3d594 Page 2 308 F.3d 594, 2002 Fed.App. 0364P (Cite as: 308 F.3d 594) whether, based upon the applicable law, the facts between elements one and two--that is, the adverse viewed in the light most favorable to plaintiffs show action was motivated at least in part by plaintiffs that a constitutional violation has occurred; if a protected conduct. U.S.C.A. Const.Amend. 1. violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is [10] Civil Rights €ZZ1431 to ask whether the right was clearly established. 78k1431 Most Cited Cases (Formerly 78k244) [5] Federal Courts €‘776 Whether a government official’s retaliatory action is 170Bk776 Most Cited Cases sufficiently severe to deter a person of ordinary Defendant’s entitlement to qualified immunity is a firmness from exercising his or her First question of law that is reviewed de novo. Amendment rights is a question of fact. U.S.C.A. Const.Amend. 1. [6] Civil Rights €‘1376(2) 78k1376(2) Most Cited Cases [11] Civil Rights €‘1431 (Formerly 78k2 14(2)) 78k1431 Most Cited Cases For a right to be clearly established, in the qualified (Formerly 78k244) immunity context, the contours of the right must be Unless claimed retaliatory action by government sufficiently clear that a reasonable official would official is truly inconsequential, plaintiffs claim that understand that what he is doing violates that right. he or she suffered retaliation for exercise of First Amendment right should go to the jury. U.S.C.A. [7] Civil Rights €‘1376(2) Const.Amend. 1. 78k1376(2) Most Cited Cases (Formerly 78k214(2)) [12] Civil Rights €~1429 Although it need not be the case that the very action 78k1429 Most Cited Cases in question has previously been held unlawful for (Formerly 78k244) right to be deemed “clearly established” for Whether adverse actions taken by prison guards purposes of qualified immunity, the unlawfulness against inmate were not de minimis, but rather were must be apparent in the light of preexisting law. sufficient to deter person of ordinary firmness from continuing to engage in protected conduct, was [8] Civil Rights €~1376(2) question for jury in inmate’s action alleging that 78k1376(2) Most Cited Cases guards retaliated against him for exercising his First Clarity Amendment right of access to the courts, given (Formerly 78k2 14(2)) evidence showing that, after inmate filed civil rights In determining whether a constitutional right is action against them, guards twice left inmate’s cell clearly established for purposes of qualified in disarray, confiscated his legal papers without immunity, Court of Appeals looks first to decisions returning them, and stole medical diet snacks that of the Supreme Court, then to its own decisions and had been provided to inmate to alleviate his weight decisions of other courts within its circuit, and loss from AIDS, and given inmate’s testimony that finally to decisions of other circuits. these actions caused him to fear leaving his cell and led him to worry that guards were tampering with [9] Constitutional Law €~‘82(3) his food. U.S.C.A. Const.Amend. 1. 92k82(3) Most Cited Cases A First Amendment retaliation claim essentially [13] Civil Rights €~1404 entails three elements: (1) plaintiff engaged in 78k1404 Most Cited Cases protected conduct; (2) an adverse action was taken (Formerly 78k240(4)) against plaintiff that would deter a person of ordinary firmness from continuing to engage in that [13] Civil Rights €~1431 conduct; and (3) there is a causal connection 78k1431 Most Cited Cases

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(Formerly 78k244) [18] Courts €Z~107 Evidentiary burden of inmate asserting First 106kl07 Most Cited Cases Amendment retaliation claim is merely to establish Unpublished cases are not binding precedent. the factual basis for his claim that alleged retaliatory acts amounted to more than a de minimis injury; [19] Civil Rights €‘1376(7) once this threshold has been passed, it is up to the 78k1376(7) Most Cited Cases trier of fact to determine whether, under the (Formerly 78k214(7)) circumstances, the acts were capable of deterring a Under the clearly established standard applicable to person of ordinary firmness from engaging in the inmate claims for First Amendment retaliation at the protected conduct. U.S.C.A. Const.Amend. 1. time prison guards allegedly retaliated against inmate for filing civil rights lawsuit, reasonable [14] Constitutional Law €~82(l3) official would have been aware that actions such as 92k82(13) Most Cited Cases harassing cell searches and confiscation of inmate’s For purposes of inmate claim alleging retaliation for legal papers and other property could give rise to exercise of First Amendment rights, inquiry into cognizable retaliation claim, even if such conduct whether defendants’ acts were capable of deterring a did not meet the “shocks the conscience” standard person of ordinary firmness from engaging in the applicable to substantive due process claims; protected conduct is an objective one, and does not therefore, guards were not entitled to qualified depend upon how particular inmate reacted; there is immunity from inmate’s First Amendment no requirement that inmate show actual deterrence. retaliation claim alleging such conduct. U.S.C.A. U.S.C.A. Const.Amend. 1. Const.Amends. 1, 14. *596 Paul D. Reingold (argued and briefed), [151 Constitutional Law €~91 University of Michigan Clinical Law Program, Ann 92k9 1 Most Cited Cases Arbor, MI, for Appellant.

(15] Prisons €~13(4) John L. Thurber (argued and briefed), Office of the 31 Oki 3(4) Most Cited Cases Attorney General, Lansing, MI, for Appellees. State inmate engaged in protected conduct when he filed civil rights action against prison guards, for Before KEITH, MOORE, and GILMAN, Circuit purposes of subsequently asserted claim that guards Judges. retaliated against inmate for his exercise of First Amendment right of access to the courts, even OPINION though inmate’s initial claims were dismissed on summary MOORE, Circuit Judge. judgment. U.S.C.A. Const.Amend. 1. The Appellant Earnest Bell, Jr., a former inmate at [16] Constitutional Law €~91 the State Prison for Southern Michigan in Jackson 92k9 1 Most Cited Cases (“Jackson”), appeals the district court’s grant of Protected conduct, for the purposes of a First judgment as a matter of law to Amendment retaliation claim, encompasses a Defendants-Appellees, Alan Blatter and Mark prisoner’s efforts to access the courts in direct Stimpson, following the presentation of plaintiffs appeals, habeas corpus actions, and civil rights case-in-chief in a jury trial. Bell’s § 1983 claim claims. U.S.C.A. Const.Amend. 1. alleged that Blatter and Stimpson, who are both prison guards at Jackson, shook down his cell and [17] Courts €~‘90(2) confiscated his legal papers and medical diet snacks 106k90(2) Most Cited Cases in retaliation for a civil rights lawsuit filed by Bell A panel of the Court of Appeals may not overrule while he was an inmate at Jackson. The district the decision of the full circuit sitting en banc. court determined that Bell’s evidence was

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insufficient as a matter of law to show that a person and Thaddeus-X signed a legal assistance of ordinary firmness would be deterred by the agreement, which was approved by a deputy alleged retaliatory acts. *597 Alternatively, the warden. With Thaddeus-X’s assistance, Bell filed a district court found that the standard for First lawsuit against seventeen prison guards and Amendment claims was not clearly established at administrators, including Sgt. Alan Blatter and the time of the events in question. The district Officer Mark Stimpson. Bell’s suit alleged a court concluded that the established standard at the number of claims, including a challenge to his time of the alleged retaliatory acts required an placement in administrative segregation. Before inmate to show that the defendants’ conduct the lawsuit was filed, prison guards assisted Bell by “shocked the conscience.” Finding that Bell could providing him with writing materials and by passing not meet this burden, the court determined that the papers and legal materials between Bell and defendants were entitled to qualified immunity. Thaddeus-X. For the reasons that follow, we REVERSE the district court’s decision and REMAND for further Bell claims that the guards began treating him proceedings consistent with this opinion. differently after the lawsuit was filed. The guards began refii~ing to provide Bell with writing supplies I. FACTS AND PROCEDURE or to pass legal materials between Bell and A. Factual Background Thaddeus-X. According to Bell, and fellow inmate Eric Waddell, Bell’s lawsuit was common Bell is a former prisoner at the State Prison for knowledge among the guards because Thaddeus-X Southern Michigan in Jackson. In 1993-94, Bell frequently boasted about the suit, and because the was serving a sentence for armed robbery. He was prisoners on the floor had discussed the suit by assigned to administrative segregation during his shouting from cell to cell. In response to what he stay at Jackson because he was diagnosed with perceived to be undue harassment by several of the AIDS and had engaged in consensual sex with prison guards, Bell sent a “Notice of Litigation” to another inmate. Bell was paroled in 1994. Bell the seventeen named defendants in his lawsuit on returned to Jackson later that year after he violated June 3, 1994. The notice explained that Bell had his parole by failing a drug test. When he returned filed a federal lawsuit against the named defendants to prison, Bell was once again assigned to and warned that “[a]ny further harassment or administrative segregation based upon his prior retaliation will be reported immediately to [the sexual misconduct. district judge) by plaintiff.” Joint Appendix (“J.A.”) at 332. In administrative segregation, prisoners are housed alone in cells with steel doors. Prisoners in On June 6, 1994, Sgt. Blatter conducted a search of segregation are locked in their cells for twenty-three Bell’s cell while Bell was in the prison yard for his hours each day, but are allowed to spend one hour daily hour of “yard time.” When Bell returned to in the prison yard, where the inmates are placed in his cell, he found the cell in disarray, and he noticed cages to isolate them. Because prisoners in that some of his legal papers and his medical *598 segregation are not allowed to congregate, the diet snacks had been taken. Waddell, whose cell prisoners communicate with each other by yelling was directly across the hall from Bell’s, saw Blatter through cracks under the cell doors, passing notes enter the cell and leave with papers and Bell’s through guards, or sliding notes between cells using snacks. Bell testified that he was allowed to keep paper and string. the medical snacks in his cell because he had AIDS and he needed extra food to slow his weight loss. In April 1994, Bell sought legal assistance in At trial, Blatter admitted to conducting the cell pursuing a variety of civil rights claims from a search and to removing Bell’s medical snacks, jailhouse lawyer named Thaddeus-X who was although he denied taking any legal papers. Blatter housed in a nearby cell. On April 20, 1994, Bell also acknowledged that the food was given to Bell

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for medical reasons. J.A. at 347. Prison staff are also directed to enter the cell search into the cell-search log and to Bell filed two grievances concerning the June 6 complete a contraband-removal record and a notice search of his cell. On June 7, 1994, Bell spoke of intent to conduct an administrative hearing with Sgt. Blatter and asked him about the legal whenever non-dangerous contraband is removed materials. According to Bell, Blatter responded by from a prisoner’s cell. No entry was made in the telling Bell that “if [he] knew what was good for cell-search log, nor was any notice of intent filed, in him, that [he] better write the courts [and] have the connection with either the June 6 or the June 20 litigation dismissed.” J.A. at 371 (Pl.Exh.20). On search of Bell’s cell. June 8, the prison staff moved Thaddeus-X from the second floor to the base level of administrative Bell stated that his legal materials were never segregation, making it very difficult for Bell to returned to him. He eventually was able to obtain communicate with him about the lawsuit. [FN1] copies from his sister, who had kept duplicates of That day, Bell filed an amended complaint some of his filings. Bell testified that he became describing the retaliatory cell search on June 6. angry and afraid as a result of the actions of prison officials regarding his lawsuit. He explained: “I FN 1. Base level of segregation is was angry. It got to the point where I was kind of traditionally reserved for potential suicides skeptical from going to the yard. I had started and mentally ill inmates, and is known for being afraid because my medical snacks, they could

its “unpleasant and unhealthy conditions.” have started to, doing anything to my food ....“ l.A. Thaddeus-X v. Blatter~ 175 F.3d 378, 384 at217(BellTr.at 126). (6th Cir.1999) (en banc). B. Procedural History On June 15, 1994, notice of Bell’s lawsuit was officially received by the prison litigation Plaintiff filed his initial pro se complaint on May coordinator on behalf of defendants Blatter and 27, 1994. Bell’s original complaint *599 named Stimpson. On June 20, 1994, Officer Stimpson seventeen defendants, including Stimpson and allegedly came to Bell’s cell and told Bell that he Blatter, and alleged a number of claims including “was going to pay” for filing the lawsuit. LA. at racial discrimination, retaliatory harassment, 373 (Supp.Compl.). While Bell was in the prison privacy violations, violations of due process, and yard on June 20, Sgt. Blatter and Officer Stimpson allegations that certain conditions of his again searched Bell’s cell. Bell returned to find confinement were cruel and unusual. On July 5, that more of his legal materials were missing. 1994, Bell filed a supplemental complaint adding a Waddell observed this search from his cell and saw claim of First Amendment retaliation based upon Blatter and Stimpson confiscate Bell’s food and the cell searches by Stimpson and Blatter. On legal papers. Bell filed another grievance four days August 15, 1995, a federal magistrate judge issued a later seeking the return of his property. report recommending dismissal of all of plaintiffs claims except for his retaliation claims relating to Michigan Department of Corrections (“MDOC”) the searches of his cell on June 6 and June 20, 1994. policy regulates shakedowns of prisoners’ cells. In analyzing the First Amendment retaliation MDOC Policy Directive 04.04.110 provides that claim, the magistrate judge rejected defendants’ “no search shall be conducted for the purpose of argument that Bell was required to show that the harassing or humiliating a prisoner.” J.A. at 347 alleged retaliatory actions “shocked the (Exh. 12). The policy further instructs prison staff conscience.” The magistrate judge noted that the to “use reasonable care in conducting the search to Sixth Circuit had previously ruled that claims based protect and safeguard the prisoner’s property and upon explicit constitutional guarantees should be attempt to leave searched areas in a similar analyzed according to the relevant standards condition to what they were prior to the search.” applicable to the particular right at issue, rather than

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the “shocks the conscience” standard applicable to antagonism which, all too often, leads to physical substantive due process claims. J.A. at 60 (citing conflict and injury.... A theft motivated by an Braley v. City of Pontiac, 906 F.2d 220, 226 (6th intent to intimidate a prisoner through ad hoc, Cir. 1990)). The magistrate judge then concluded unofficial discipline is particularly odious, to the that the plaintiffs allegation stated a valid First point of shocking the conscience. Amendment retaliation claim in light of cases from J.A. at 101. Consequently, the magistrate judge this court and other circuits permitting First recommended that defendants’ motion for summary Amendment claims to go forward on similar facts. judgment on the merits *600 and on qualified The district court entered an order on October 4, immunity be denied. The district court adopted the 1995, adopting the magistrate judge’s report and magistrate’s report and recommendation in an order recommendation. Plaintiff subsequently secured entered on December 10, 1997. counsel, and filed a second amended complaint on May 9, 1997. Bell’s second amended complaint The district court placed Bell’s case on the inactive asserted only the First Amendment retaliation docket for several months while it awaited this claims arising from the two searches of Bell’s cell court’s en banc decision in Thaddeus-X v. Blatter, on June 6 and June 20, 1994. 175 F.3d 378 (6th Cir.1999). The suit in Thaddeus-X was filed separately from the instant Defendants filed a motion for summary judgment case. That suit was filed by the plaintiff Bell along in 1997 after this court handed down its decision in with his jailhouse lawyer, Thaddeus-X. Although McLaurin v, Cole, 115 F.3d 408 (6th Cir.1997), the two cases were docketed with different district vacated, 202 F.3d 269 (6th Cir.1999) (unpublished judges, they involved substantially the same table decision). Defendants claimed that McLaurin sequence of events. The instant appeal concerns clarified the legal standard for First Amendment the original suit filed by Bell, to which Bell’s First retaliation claims, insofar as it held that an inmate Amendment retaliation claims relating to the two alleging First Amendment retaliation must be able cell searches of June 6 and 20, 1994, were to show that the alleged retaliatory actions were so subsequently added. The suit in Thaddeus-X egregious or oppressive that they “shocked the alleged retaliation claims on behalf of both Bell and conscience.” The magistrate judge addressed this Thaddeus-X arising from other actions taken by claim in his November 12, 1997 report and prison officials in response to Bell’s suit, in addition recommendation. Noting that McLaurin was “[t]he to an Eighth Amendment claim raised by only recent published opinion by the Sixth Circuit Thaddeus-X challenging the conditions of addressing the issue of a prisoner’s claim of incarceration on the base level of administrative retaliation,” the magistrate judge concluded that the segregation. Bell’s claim in Thaddeus-X stemmed “shocks the conscience” test was the appropriate from his allegations that another cell-block officer legal standard for Bell’s claim. J.A. at 100. named Karazim deliberately harassed him and Nevertheless, the magistrate judge concluded that threatened to serve him only cold meals unless he the facts presented by Bell were sufficient to state a dropped his lawsuit. Thaddeus-X 175 F.3d at 399. claim under the McLaurin standard. The magistrate judge explained: In Thaddeus-X we definitively stated that the I am satisfied that, should it be determined that “shocks the conscience” test was not the appropriate Defendants in fact engaged in the disputed standard for a prisoner First Amendment retaliation conduct, their actions reach the level of shocking claim. Id. at 383, 387-88. Instead, we explained the conscience, and of an egregious abuse of that an adverse action undertaken in retaliation for a governmental power. The unwarranted seizure prisoner’s exercise of his or her First Amendment of a prisoner’s authorized property, whatever the rights could violate the First Amendment “if it is monetary value of that property may be, is an capable of deterring a person of ordinary firmness ignoble and cowardly abuse of authority, at best. from exercising his or her right to access the It contributes to the malignant distrust and courts.” Id. at 398.

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After we issued our opinion in Thaddeus-X the his or her First Amendment rights. In reaching this instant suit was returned to active status and the conclusion, the court explained: district court scheduled a jury trial. [FN2] The trial I’m not sure how this evidence could be presented began on January 17, 2001. At the close of the frankly, perhaps by an expert, if there are any plaintiff’s case, the defendants moved for judgment experts. I’m not sure either that we’re dealing as a matter of law pursuant to Federal Rule of Civil with a very good legal standard if it requires Procedure 50(a). The defendants argued that Bell’s jurors to divine what level of character firmness proof was insufficient to satisfy the standard for would be required to allow a prisoner in retaliation announced in Thaddeus-X In the administrative segregation to persist. How do alternative, the defendants argued that the “shocks jurors do that? They’re there, we hope they’re the conscience” standard should be applied to there based on their own experience. Well, that defendants’ conduct, since that was the standard in is an experience that only a rare ... juror ... would effect at the time of their actions. ever have. J.A. at 320-21. Following the district court’s FN2. After this court en banc decided dismissal of his claims, plaintiff filed a timely Thaddeus-X Bell renewed his earlier notice of appeal. motion to consolidate the instant case with Thaddeus-X Bell noted that Thaddeus-X II. ANALYSIS had voluntarily dismissed his separate A. Standard of Review Eighth Amendment claim, with the result that the only claims remaining in either [1][2] Under Federal Rule of Civil Procedure case were the First Amendment retaliation 50(a)(l), the moving party is entitled to judgment as claims arising from the same sequence of a matter of law if the nonmoving party “has been events following Bell’s initiation of the fully heard on an issue and there is no legally instant lawsuit. The district court entered a sufficient evidentiary basis for a reasonable jury to one-sentence order on November 7, 2000, find for that party on that issue.” In considering a denying plaintiffs motion for consolidation. Rule 50 motion, “the court should review all of the evidence in the record.” Reeves v. Sanderson The district court granted defendants’ motion. The Plumbing Prods., Inc., 530 U.S. 133, 150, 120 court first noted its belief that “[t]he proposition S.Ct. 2097, 147 L.Ed.2d 105 (2000). “In doing so, that a plaintiff would be able to use [section] 1983 however, the court must draw all reasonable to protect one of our most sacred constitutional inferences in favor of the nonmoving party, and it rights based not upon his own effective deprival may not make credibility determinations or weigh [sic] of those rights but upon a deprival [sic] which the evidence.” Id. “That is, the court should give might have injured some hypothetical person of credence to the evidence favoring the nonmovant as ordinary firmness--whatever that means--is not a well as that evidence supporting the moving party judicially or juridically satisfying proposition.” that is uncontradicted and unimpeached, at least to J.A. at 319. Turning to the merits, the court the extent that that evidence comes from concluded that the “shocks the conscience” disinterested witnesses.” Id. at 151, 120 S.Ct. 2097 standard, rather than the Thaddeus-X standard, was (quotation omitted). “the only law of which guards who are defendants here *601 could have been aware on June 1994.” B. Qualified Immunity J.A. at 320. The court concluded that, as a matter of law, the plaintiff had not shown that defendants’ [3][4][5] Both parties characterize the district actions shocked the conscience. In the alternative, court’s ruling as a determination that the defendants the court ruled that Bell had presented insufficient are, as a matter of law, entitled to qualified evidence to show that the defendants’ actions would immunity from suit. According to the doctrine of deter a person of ordinary firmness from exercising qualified immunity, “government officials

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performing discretionary functions generally are F.3d 564, 579 (6th Cir.1997) (quotation omitted). shielded from liability for civil damages insofar as their conduct does not violate clearly established Although the district court did not explicitly statutory or constitutional rights of which a discuss the various aspects of the qualified reasonable person would have known.” Harlow v. immunity standard, the court apparently concluded Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 that defendants were entitled to judgment as a L.Ed.2d 396 (1982). Qualified immunity involves matter of law as to both prongs of the qualified a two-step inquiry. First, the court must determine immunity test. First, the court found that Bell had whether, based upon the applicable law, the facts not shown sufficient facts to establish that a viewed in the light most favorable to the plaintiffs constitutional violation had occurred under the show that a constitutional violation has occurred. controlling legal standard announced in Thaddeus-X Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, In particular, the court found insufficient evidence 2156, 150 L.Ed.2d 272 (2001). “[IJf a violation to show that the alleged retaliatory actions--the two could be made out on a favorable view of the shakedowns of plaintiffs cell and the concomitant parties’ submissions, the next, sequential step is to confiscation of his legal papers and medical diet ask whether the right was clearly established.” Id.; snacks--would deter a person of ordinary firmness see also Dickerson v. McClellan, 101 F.3d 1151, from engaging in protected conduct. Second, 1158 (6th Cir. 1996). Ultimately, qualified immunity assuming that Bell could carry his burden under the is a question of law that is reviewed de novo. See Thaddeus-X standard, the court concluded that this Dickerson, 101 F.3dat 1157. standard was not clearly established in 1994 and that a reasonable officer would not have understood [6][7][8j For a right to be clearly established, that retaliatory actions falling short of “[tjhe contours of the right must be sufficiently “conscience-shocking” abuses of power could give clear that a reasonable official would understand rise to a constitutional violation. Concluding that that what he is doing violates that right.” Russo v. no reasonable officer would have known that City of Cincinnati, 953 F.2d 1036, 1042 (6th shaking down an inmate’s cell and confiscating legal Cir. 1992) *602 (quoting Anderson v. Creighton, documents and food could be found to be 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 “conscience-shocking,” the court determined that (1987)). “Although it need not be the case that ‘the the defendants were entitled to judgment as a matter very action in question has previously been held of law under the second prong of the qualified unlawful, ... in the light of pre-existing law, the immunity test as well. unlawfulness must be apparent.’ “ Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). As the 1. Constitutional Violation Supreme Court has recently explained, “officials can still be on notice that their conduct violates [9] The first step in the qualified immunity analysis established law even in novel factual is determining whether the plaintiff has presented circumstances.” Hope v. Pelzer~ 536 U.S. 730, ----, sufficient facts to show that the defendants’ conduct 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002). violated his constitutional rights. Bell’s only claim “Although earlier cases involving ‘fundamentally in the instant case is that the defendants violated his similar’ facts can provide especially strong support First Amendment rights by conducting two for a conclusion that the law is clearly established, shakedowns of his cell and confiscating his legal they are not necessary to such a finding.” Id. In papers and medical diet snacks in retaliation for his determining whether a constitutional right is clearly exercising his right of access to the courts. The established, we “look [ ] first to decisions of the controlling legal test for prisoners’ First Amendment Supreme Court, then to decisions of this court and retaliation claims was set forth in this court’s en other courts within our circuit, and finally to banc decision in Thaddeus-X~ decisions of other circuits.” Chappel v. A retaliation claim essentially entails three Montgomery County Fire Prot. Dist. No. 1, 131 elements: (1) the plaintiff engaged in protected

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conduct; (2) an adverse action was taken against adverse action no matter how minor. Id. at 397 the plaintiff that would deter a person of ordinary (quoting Bari~ 677 F.2d at 625). Whether a firmness from continuing to engage in that retaliatory action is sufficiently severe to deter a conduct; and (3) there is a causal connection person of ordinary firmness from exercising his or between elements one and two--that is, the her rights is a question of fact. See id. at 398-99; adverse action was motivated at least in part by Davidson v. Chestnu4 193 F.3d 144, 150 (2d the plaintiffs protected conduct. Cir. 1999) (noting that question of whether one-day 175 F.3d at 394. “Although the elements of a First denial of inmate’s exercise opportunities was de Amendment retaliation claim [are] constant, the minimis was “factual in nature”). underlying concepts *603 that they signify will vary with the setting--whether activity is ‘protected’ or an [11] Our discussion of the “adverse action” action is ‘adverse’ will depend on context.” Id. at requirement in Thaddeus-X makes it clear that, in 388. most cases, the question of whether an alleged retaliatory action poses a sufficient deterrent threat a. Adverse Action to be actionable will not be amenable to resolution as a matter of law: The district court dismissed Bell’s claim on the We emphasize that while certain threats or grounds that he had failed to present sufficient deprivations are so de minimis that they do not evidence to satisfy the second prong of the rise to the level of being constitutional violations, Thaddeus-X test, insofar as the court discerned that this threshold is intended to weed out only the defendant had “not presented evidence that inconsequential actions, and is not a means would allow a jury to conclude that a person of whereby solely egregious retaliatory acts are ordinary firmness ... would have been deterred from allowed to proceed past summary judgment. asserting constitutionally protected rights by the Thaddeus-X 175 F.3d at 398 (emphasis added); events of June 6 and June 20, ‘94.” J.A. at 320. We see also Bart, 677 F.2d at 625. Thus, unless the conclude that the district court misapplied the claimed retaliatory action is truly “inconsequential,” standard for adverse action set forth in Thaddeus-X the plaintiffs claim should go to the jury. and consequently erred in granting judgment as a Thaddeus-X 175 F.3d at 398. matter of law to the defendants on this issue. Applying this standard in Thaddeus-~ a majority [10] In Thaddeus-X we explained that of the en banc court decided to remand Bell’s “government actions, which standing alone do not retaliation claims to the district court for violate the Constitution, may nonetheless be determination of whether “there is a genuine issue constitutional torts if motivated in substantial part of material fact regarding the deterrent effect of the by a desire to punish an individual for exercise of a claimed deliberate harassment and cold meals that constitutional right.” 175 F.3d at 386. would continue unless and until he dropped his Nevertheless, we also determined that some adverse lawsuit against the warden.” Id. at 399. In so actions are so de minimis that they do not give rise holding, the majority of the en banc court rejected to constitutionally cognizable injuries. Id. at 396. the argument of the dissenters that these allegations Accordingly, we held that an official action will be were insufficient as a matter of law to deter an deemed “adverse” only if it could “ ‘deter a person inmate from pursuing a lawsuit. Id. at 403 of ordinary firmness’ from the exercise of the right (Suhrheinrich, J., dissenting); see also id. at 408 at stake.” Id. (quoting Bart v. Te(ford, 677 F.2d (Kennedy, J., *~5~J4 dissenting). In contrast to 622, 625 (7th Cir.l982)). Although the “ ‘[effect Bell’s complaints, which presented a close case, the on freedom of speech] need not be great in order to en banc court observed that it “need not pause for be actionable,’ “ we explained that “ ‘[i]t would long in the case of plaintiff X: his allegations, if trivialize the First Amendment’ “to allow plaintiffs true, certainly meet the standard. Harassment, to bring First Amendment retaliation claims for any physical threats, and transfer to the area of the

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prison used to house mentally disturbed inmates, concerning [the plaintiffs] challenge to his especially combined with the conditions allegedly conviction and a law book,” which were never present there, would likely have a strong deterrent returned. Wright, 795 F.2d at 965. The court effect.” Id. at 398; see also Herron v. Harrison, concluded that the plaintiff had “sufficiently alleged 203 F.3d 410, 416 (6th Cir.2000) (holding that facts bringing actions that might not otherwise be committing prisoner to administrative segregation offensive to the Constitution, such as the search for five days was adverse). itself or the confiscation and destruction of [legal

and] nonlegal materials ..., within the scope of the [121 Based upon the foregoing principles, we Constitution by alleging that the actions were taken conclude that the district court erred in ruling that in retaliation for filing lawsuits and administrative Bell had presented insufficient evidence to show grievances.” Id. at 968. Although Wright did not that the defendants’ actions could deter a person of explicitly consider the “ordinary firmness” question, ordinary firmness from engaging in protected the court applied essentially the same conduct. Initially, we note that a number of cases well-established principles of First Amendment from other circuits have held that confiscating an retaliation law that formed the basis for this court’s inmate’s legal papers and other property constitutes decision in Thaddeus-X sufficient injury to support a First Amendment retaliation claim. See Penrod v. Zavaras, 94 F.3d In addition, we have previously suggested in dicta 1399, 1404 (10th Cir.1996) (reversing grant of that a retaliatory cell search and seizure of an summary judgment to defendants on inmate’s claim inmate’s legal documents satisfies the adverse action that guards conducted harassing cell searches, prong of the Thaddeus-X test. Walker v. Bain, 257 seized legal materials, refused to provide inmate F.3d 660, 664 (6th Cir.2001), cert. denied~ 535 U.s. with hygiene items, and transferred inmate to 1095, 122 S.Ct. 2291, 152 L.Ed.2d 1050 (2002). segregation in retaliation for suit against prison In Walkei~, a jury in a civil trial concerning an officials); Green v. Johnson, 977 F.2d 1383, inmate’s First Amendment retaliation claim returned 1389-91 (10th Cir.1992) (holding that inmate’s special interrogatories finding that “both defendants allegation that guards destroyed his legal materials improperly confiscated and removed [*605 the in retaliation for his filing of suits and grievances plaintiffs] personal papers from his cell, that [the stated a cognizable First Amendment claim); plaintiffs] previous filing of grievances and Wright v. Newsome, 795 F.2d 964, 968 (11th lawsuits was a substantial and motivating factor Cir.1986) (same); Hall v. Sutton, 755 F.2d 786, behind this conduct, but that the defendants’ actions 787-88 (11th Cir.1985) (holding that inmate alleged did not constitute an egregious abuse of power or sufficient facts to state a claim of First Amendment otherwise shock the conscience.” Id. at 672. A retaliation based upon the alleged confiscation of verdict initially was entered for the defendants his tennis shoes in retaliation for a prior lawsuit based upon the jury’s conclusion that the retaliatory against prison officials); see also Zimmerman v. acts were not conscience-shocking. [FN3] Shortly Tribble, 226 F.3d 568, 573-74 (7th Cir.2000) after the trial, the en banc court handed down its (reversing dismissal of claim that prison law opinion in Thaddeus-X Based upon the standard librarian repeatedly denied prisoner access to the set forth in Thaddeus-X~ the district court granted prison law library in retaliation for protected the plaintiffs motion to amend the judgment and conduct). In Wright, the Eleventh Circuit entered a judgment in favor of the plaintiff on his determined that a prisoner had alleged sufficient retaliation claim. Although the entry of judgment injury to state a First Amendment retaliation claim for the plaintiff was not before us on appeal in by asserting that correctional officers conducted a Walker we observed that “[u]nder the applicable retaliatory search of his cell and that “[i]n the standard [announced in Thaddeus-X 1’ then, [the course of the search, [the defendants] destroyed plaintiff] had proven a First Amendment retaliation seven of [the plaintiffs] photographs and some legal violation” based on the retaliatory shakedown and

papers .... [and] also seized legal pleadings seizure of documents. Id.

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FN3. The district court’s decision to public employees [and] ... average citizens,” we see require a finding of “conscience-shocking” no basis for concluding that prisoners should be behavior was prompted by this court’s required to tolerate the theft of their property, 1997 decision in McLaurin, 115 F.3d at including legal documents and medical dietary 411. Walker~ 257 F.3d at 672. Thus, for supplements, as the price of petitioning the courts. the purposes of our discussion in Part Id. at 398. ILB.2.a. of this opinion, we note that the application of the “shocks the conscience” [13] The defendants have offered no authority to standard in Walker has little bearing on the contrary. Instead, they argue that the plaintiff whether the “shocks the conscience” failed to present expert testimony or other evidence standard was regularly applied to inmate about the deterrent effect the defendants’ actions retaliation claims before McLaurin. would have on an ordinarily firm prisoner *606 in segregation. Defendants apparently contend that We find these cases persuasive, and consequently Thaddeus-X imposes a burden on the plaintiff to we hold that Bell has presented sufficient evidence present independent witness testimony that a given to meet his burden under the adverse action prong set of actions would deter a hypothetical prisoner of of the Thaddeus-X test. Bell’s evidence shows that ordinary firmness from engaging in protected the defendants twice left the plaintiffs cell in conduct. The district court expressed similar ideas. disarray, confiscated his legal papers without Nothing in our opinion in Thaddeus-X or any returning them, and stole the medical diet snacks subsequent case, however, suggests that separate that had been provided to him to alleviate his testimony about the likely effects of certain actions weight loss from AIDS. Bell testified that these on prisoners of ordinary firmness, in the abstract, is actions caused him to fear leaving his cell and led required. Our conclusion in Thaddeus-X that him to worry that the guards were tampering with physical threats and a transfer to base level of his food. If believed, this evidence tends to show segregation would be sufficient to deter a person of that the defendants’ actions had an intimidating ordinary firmness from engaging in protected effect on the plaintiff, and therefore could have conduct, for example, was not based upon any deterred others. The fact that defendants independent testimony in the record predicting how repeatedly stole plaintiffs legal papers certainly had an average prisoner would react to these actions. the potential to directly impede his pursuit of his 175 F.3d at 398. This was a conclusion that could claim, and may have caused others to believe that be drawn simply from the facts concerning the any efforts they might expend in preparing legal nature of the threats and the conditions of claims would be wasted since any materials they confinement on the base level. The plaintiffs prepared could easily be destroyed or confiscated. evidentiary burden is merely to establish the factual In addition, a jury could infer that deliberately basis for his claim that the retaliatory acts amounted depriving a prisoner of dietary supplements to more than a de minimis injury. Accord Dawes v. designed to ameliorate the weight-loss effects of a Walker, 239 F.3d 489, 493 (2d Cir.2001) (holding deadly disease like AIDS could deter a person of that prisoner’s evidentiary burden under “ordinary ordinary firmness from pursuing his or her legal firmness” standard was to show that guards’ rights. These actions are certainly more severe references to him as an “informant” or “rat” than the threats of cold food and noncooperation by “actually risked inciting other inmates against the the prison guards that plaintiff Bell alleged in [plaintiff],” and was not merely harmless Thaddeus-X We think that Bell’s evidence at least name-calling). Once this threshold has been passed, is sufficient to show that the actions taken toward it is up to the trier of fact to determine whether, Bell were not “inconsequential.” Thaddeus-X 175 under the circumstances, the acts were capable of F.3d at 398. Although it is true that “the definition deterring a person of ordinary firmness from of adverse action is not static across contexts” and engaging in the protected conduct. Suppan v. “[p]risoners may be required to tolerate more than Dadonna, 203 F.3d 228, 234-35 (3d Cir.2000).

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[14] Defendants further argue that Bell cannot [15][16] Defendants maintain that, even if this prove that their actions were sufficient to deter court determines their actions to be adverse, protected conduct, given that Bell himself was not plaintiff has not shown that he engaged in protected deterred from persisting in this lawsuit. Thaddeus-X conduct because the underlying suit, which makes clear, however, that the adverseness inquiry allegedly provoked the defendants’ acts of is an objective one, and does not depend upon how retaliation, has been dismissed. The defendants the particular plaintiff reacted. 175 F.3d at 398; concede that protected conduct, for the purposes of accord Sanders v. St. Louis County. 724 F.2d 665, a First Amendment retaliation claim, encompasses a 666 (8th Cir.1983) (“It is not necessary that the prisoner’s efforts to access the courts in direct inmate succumb entirely or even partially to the appeals, habeas corpus actions, and civil rights threat so long as the ... retaliatory act was intended claims. We so held in Thaddeus-X 175 F.3d at 391 to limit the inmate’s right of access [to the Nevertheless, they argue that this right extends courts].”). The relevant question is whether the only to meritorious, or at least nonfrivolous, suits, defendants’ actions are “capable of deterring a and that the district court’s dismissal of Bell’s person of ordinary firmness;” there is no underlying civil rights claims on summary judgment requirement that the plaintiff show actual demonstrates that his suit was not protected conduct. deterrence. Thaddeus-X 175 F.3d at 398 (emphasis added). Defendants’ argument would effectively Defendants rely on this court’s decision in Herron, foreclose all retaliation claims, since the fact that a 203 F.3d at 415. In Herron, an inmate claimed claim was before the court would be conclusive that prison guards retaliated against him after he proof that the plaintiff was not deterred. We filed a suit under the Religious Freedom Restoration emphasize again that the “ordinary firmness” Act (“RFRA”). After the Supreme Court found the standard is “intended to weed out only RFRA unconstitutional in City of Boerne v. Flores, inconsequential actions.” Id. The factual question is 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 whether the injury inflicted is so slight that it could (1997), the district court dismissed the plaintiffs not reasonably be expected to deter protected suit as frivolous. Herron, 203 F.3d at 413. On conduct. The standard is not intended to foreclose appeal, a panel of this court dismissed the relief to all but the superfirm plaintiffs, who are retaliation claim, finding that the inmate’s RFRA willing and able to persist in their suits in the face suit was not protected conduct because the district of retaliatory actions that would cause most court had dismissed the entire complaint as plaintiffs to crumple. Rather, the purpose of the frivolous. Id. The Herron court noted that “[a]n standard is to avoid trivializing the First inmate has an undisputed First Amendment right to Amendment by eliminating suits based upon file grievances against prison officials on his own insignificant acts of retaliation. See Ban, 677 F.2d behalf.” Id. at 415. The court explained, however,

at 625 (“It would trivialize the First Amendment to that “[t]his right is protected ... only if the hold that ... if the Mayor of Springfield had frowned grievances are not frivolous. Thus, [the plaintiffs]

at Miss Bart for running for public office he would pursuit of legal claims ... was protected conduct be liable for damages ....“). only to the extent that the underlying claims had merit.” Id. (citing Lewis v. Casey, 518 U.S. 343, In sum, we conclude that Bell’s evidence is 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). sufficient to demonstrate that the claimed retaliatory acts were not merely de minimis acts of harassment. [17] Defendants’ argument is without merit. The This is all *607 that is required to reach a jury on question of whether Bell’s initial civil rights lawsuit the issue of whether the retaliatory actions could constituted protected conduct was conclusively deter a person of ordinary firmness from engaging resolved in Thaddeus-X 175 F.3d at 396 n. 12. As in protected conduct. noted above, Thaddeus-X addressed several distinct retaliation claims alleged by the plaintiff in the b. Protected Conduct instant case, Bell, and his jailhouse lawyer,

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Thaddeus-X, which arose from the same nucleus of settled, bought, and sold.” Id. at 353 n. 3, facts at issue here. The protected conduct asserted 116 S.Ct. 2174. Bell’s suit lost at summary in Thaddeus-X was the very same lawsuit asserted judgment; it was not dismissed as being to be the protected conduct in the instant case. The frivolous. Therefore, the Herron rule en banc court in Thaddeus-X held that Bell’s suit would not apply in the instant case. was protected conduct. [FN4J In reaching this conclusion, the court noted that the fact that the suit *608 2. Whether the Relevant Law Was Clearly did not survive summary judgment did not render Established the act of filing it any less protected. Id. A panel of this court may not overrule the decision of the full The district court held that even if plaintiff could circuit sitting en banc. LRL Props. v. Portage satisf~’ his burden under the Thaddeus-X standard, Metro ifous. Auth., 55 F.3d 1097, 1105 n. 2 (6th this standard was not clearly established at the time Cir.1995). We are therefore bound by the of the events in question. Instead, the district court Thaddeus-X court’s determination that Bell’s lawsuit determined that the established law in June of 1994 was protected conduct. [FN5] required an inmate asserting a First Amendment retaliation claim to prove that the alleged retaliatory FN4. In addition, the parties jointly actions were so egregious or oppressive that they stipulated before trial in the instant case “shocked the conscience.” Thus, the district court that “Plaintiff engaged in conduct concluded that a reasonable officer would not have protected by the Constitution’s First been aware that retaliatory acts falling short of Amendment right to petition the “conscience-shocking” abuses of power would give government for redress when he filed this rise to constitutional liability. Based upon our original May 26, 1994 lawsuit.” J.A. at review of the relevant case law, we conclude that 376. Defendants cannot now maintain that the district court mischaracterized the law that was the plaintiff failed to prove that his suit clearly established in 1994. The clear weight of was protected conduct, when they have published authority in this circuit in 1994 directed already stipulated to this fact. courts not to apply the “shocks the conscience” standard to inmate retaliation claims expressly FN5. Even if we were to apply the raised under the First Amendment. Under the standard announced in Herron, Bell’s suit standard that was applied to such claims in 1994, a would still qualify as protected conduct. reasonable official would have been aware that Herron’c ruling is limited to retaliation actions such as harassing cell searches and claims involving suits dismissed as confiscation of legal papers and other property frivolous. The Supreme Court’s decision in could give rise to a First Amendment retaliation Lewis, upon which Herron relied, makes it claim. clear that a claim need not be successful to be non-frivolous. Lewis, 518 U.S. at 353 The defendants argue that Cale v. Johnson, 861 nn. 2-3, 116 S.Ct. 2174. Lewis explained, F.2d 943, 949-50 (6th Cir.1988), established that for example, that the fact that a claim is the “shocks the conscience” test applied to inmate procedurally defaulted does not necessarily retaliation cases in 1994. We disagree. In Cale, make the suit frivolous. Id. at 353 n. 2, an inmate alleged that prison guards violated his 116 S.Ct. 2174. Moreover, Lewis substantive due process rights by falsely accusing distinguished between “arguable” claims him of possessing marijuana and placing him in and “frivolous” claims, and explained that administrative segregation in retaliation for his “[d]epriving someone of an arguable complaints about prison conditions. The Cale (though not yet established) claim inflicts court found these allegations sufficient to state a actual injury because it deprives him of substantive due process claim. Id. at 948. The something of value--arguable claims are court began its discussion by explaining that the

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standard for “malicious prosecution-type we explained that “[e]xisting case precedent substantive due process claims” was “whether indicates that a failure to reappoint an individual to ‘ defendants’ conduct ‘shocks the conscience.’ Id. at a position is ... impermissible, even where there was 949 (quotations omitted). Applying this standard, no cognizable expectation of continued service, if the court concluded that maliciously framing an reappointment was denied because of the inmate for an offense, and subjecting him to a risk individual’s exercise of First Amendment rights.” of prolonged incarceration resulting from the loss of Id. at 376. Thus, Newsom clearly established that good-time credits, for no other reason than to an inmate need not show that the retaliatory action, punish him for exercising his First Amendment standing alone, was sufficiently egregious to violate rights was an egregious abuse of governmental the Constitution. Indeed, in finding that the power. Id. at 950. Although it made reference to plaintiffs had shown irreparable injury, we the First Amendment, “[the Cale court] clearly explained that “even minimal infringement upon explained that the inmate’s claim was based on his First Amendment values constitutes irreparable general substantive due process rights and not on injury.” Id. at 378. Although we made passing the First Amendment.” Thaddeus-X 175 F.3d at reference to Cale in the Newsom case, id. at 376-77, 387-88. Cale drew the “shocks the conscience” we did not apply the Fourteenth Amendment standard from a malicious prosecution case and a “shocks the conscience” standard. To the contrary, case involving child custody rights, not from First we emphasized that “direct retaliation by the state Amendment cases. 861 F.2d at 949, The Cale court for having exercised First Amendment freedoms in made reference to the First Amendment only in its the past is particularly proscribed by the First condemnation of the defendants’ motives. We Amendment.” Id. at 379 (emphasis added). therefore do not think a *609 reasonable officer would have expected Cale to apply to inmate claims In Gibbs, an inmate “jailhouse lawyer” alleged that raised expressly under the First Amendment. prison officials intentionally delayed his release from administrative segregation in retaliation for his We conclude that the established law governing assisting other prisoners with legal matters. We prisoner First Amendment retaliation claims in 1994 held that these allegations stated an actionable First was instead set forth in two cases from this circuit Amendment retaliation claim. Gibbs, 10 F.3d at 379 decided after Cale: Newsorn v. Norris, 888 F.2d In our discussion of the plaintiffs claim, we cited 371 (6th Cir.1989), and Gibbs v. Hopkins, 10 F.3d Mt. Healthy City School District Board of 373 (6th Cir.1993). In Newsom, we affirmed the Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. grant of a preliminary injunction directing a prison 568, 50 L.Ed.2d 471 (1977), a public employment warden to reappoint certain prisoners to their retaliation case, for the proposition that former posts as inmate legal advisors. The “government officials may not retaliate against plaintiffs in Newsoni alleged that the warden had persons who have participated in constitutionally refused to reappoint them as inmate advisors in protected conduct.” Gibbs, 10 F.3d at 378. We retaliation for complaints they had filed with the also observed that a First Amendment retaliation prison disciplinary board. We concluded that claim is equivalent to a claim of direct interference plaintiffs had shown sufficient likelihood of success with First Amendment rights: on their retaliation claim to warrant the injunction. Here, segregation of a “jailhouse lawyer” in We explained that, even though the plaintiffs had no retaliation for providing legal aid is equivalent to protected property interest in maintaining their the prison regulation barring [inmate legal] positions as inmate advisors, “[i]t is well recognized assistance in [Johnson v.j Avery [, 393 U.S. 483, that it is constitutionally impermissible to terminate 490, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)]. Each even a unilateral expectation of a property interest instance is an example of state action by prison in a manner which violates rights of expression officials which potentially may result in a denial protected by the First Amendment.” Newsorn, 888 of access to the courts. If proven to be true, said F.2d at 375. Drawing on public employment cases, actions are constitutionally impermissible.

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Gibbs, 10 F.3d at 378. The Gibbs case made it Mansfield Apartment Owners Ass’n v. City of clear that a retaliation claim may lie, even when the Mansfield, 988 F.2d 1469, 1476 (6th Cir.1993). allegedly retaliatory conduct itself would not be These cases, we think, had clearly established by actionable if taken for nonretaliatory reasons. Id. at 1994 that the “shocks the conscience” test would *610 379. Thus, after Gibbs--which was issued not apply to § 1983 claims based expressly on the just one year before the events at issue in the instant First Amendment. See Riley v. Kurtz, 893 F.Supp. case--we think it was clear that an inmate’s First 709, 718 (E.D.Mich.1995) (“In light of the more Amendment retaliation claim would be assessed recent Supreme Court decision in Graham v.

according to the same standards applied to such Connor ... I am confident that the Sixth Circuit in claims in the other contexts, rather than the “shock another case involving a prison guard’s intentional the conscience” standard applicable to substantive infringement of an inmate’s First Amendment rights due process claims. by some retaliatory acts or threats would, like Newsom, allow the finding of a constitutional tort

In addition, we think that any reasonable doubt as without the need for ... a separate finding, in a to whether the “shocks the conscience” test applied bench trial, that this behavior also either ‘shocks the to First Amendment retaliation claims was almost conscience’ or is an ‘egregious abuse of

certainly dispelled by the Supreme Court’s opinion governmental power.’ “). Our conclusion is in Graham v. Connor, 490 U.S. 386, 109 S.Ct. supported by the fact that in his 1995 report and 1865, 104 L.Ed.2d 443 (1989), issued one year recommendation, the magistrate judge in the instant after Cale, and our own cases following Graham. case expressed the belief that it was clear, under In Graham, the Supreme Court rejected the use of Graham, 490 U.S. 386, 109 S.Ct. 1865, 104 the Fourteenth Amendment “shocks the conscience” L.Ed.2d 443, and Braley, 906 F.2d at 225-26, that standard in cases involving excessive force claims the “shocks the conscience” test did not apply to otherwise cognizable under the Fourth Amendment. Bell’s First Amendment retaliation claims. J.A. at

Id. at 394, 109 S.Ct. 1865. The Graham Court 60 (“Two years after Cale ... the Sixth Circuit clearly instructed that “[t]he validity of [a § 1983] recognized that substantive due process claims

claim must ... be judged by reference to the specific based on explicit constitutional guarantees ... offer a constitutional standard which governs that right,” more concrete, and therefore superior, guide to rather than the more general “shocks the judges than intuitive standards such as behavior that conscience” test applicable to substantive due shocks the conscience.” (quotations omitted)). process claims. Id. After the Supreme Court’s decision in Graham, we held in a number of cases Defendants rely on this court’s 1997 opinion in that the “shocks the conscience” test applied only to McLaurin, 115 F.3d 408, as evidence that the claims that could not be traced to an explicit “shocks the conscience” test applied to prisoner constitutional guarantee. As one panel explained in retaliation claims at the time of the defendants’ 1990: actions. In McLaurin, a panel of this court If appellant’s § 1983 claim is construed to be observed that “this court has repeatedly demanded based on an alleged violation of substantive due *611 that retaliation claims arising from the process, then the claim must be based either on a exercise of First Amendment rights be shocking to violation of an explicit constitutional guarantee the conscience.” Id. at 410. Thus the McLaurin (e.g., a fourth amendment illegal seizure court concluded that the plaintiff inmate in that case violation) or on behavior by a state actor that could not state a valid retaliation claim where the shocks the conscience. Appellant’s complaint only retaliatory act alleged was the filing of a false alleges no violation of a specific constitutional major misconduct ticket. Id. at 411. Defendants guarantee. Therefore the claim must be based on contend that the McLaurin court’s observation that behavior that shocks the conscience. the “shocks the conscience” test had been routinely Braley, 906 F.2d at 225-26; see also Mertik v. applied in this circuit prior to 1997 demonstrates Blalock, 983 F.2d 1353, 1367 (6th Cir.1993); that this standard was the clearly established law in

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1994. cert. denied, 514 U.S. 1036, 115 S.Ct. 1400, 131 L.Ed.2d 288 (1995), and Gibbs, [18] Defendants’ reliance on McLaurin is 10 F.3d at 378, and stated simply that misplaced. First, McLaurin was decided several “[r]etaliation against an inmate for years after the events at issue in the instant suit, and exercising his constitutional rights is itself therefore could not form the basis for a reasonable a violation of the Constitution.” officers understanding of the law in 1994. Id. at Thaddeus-X 110 F.3d 1233, 1997 WL 410. Second, we think that McLaurin incorrectly 169387, at *3~ There was no suggestion in described the state of the law when it observed that the original Thaddeus-X opinion that the the Sixth Circuit had consistently required inmates plaintiff had to meet the heightened to show “conscience-shocking” behavior to state “shocks the conscience” test. Rather, the retaliation claims. In fact, all of our published court stated that “[t]o the extent [the authority following Cale and preceding McLaurin defendants’] retaliatory actions go beyond

was to the contrary. [FN6] Other than the Cale de minimis, ... they support a retaliation opinion, the only authorities cited by McLaurin on claim.” Id. at *9, 215 F.3d 1327. the “shocks the conscience” requirement were unpublished cases. It is well-established law in this FN7. Defendants also rely on an circuit that unpublished cases are not binding unpublished per curiam order issued by precedent. Salamalekis v. Comm ‘r of Soc. Sec., 221 this court in Thaddeus-X v. Wozniak, 215 F.3d 828, 833 (6th Cir.2000); Cattin v. Gen. F.3d 1327, 2000 WL 712383 (6th Cir.). In Motors Corp., 955 F.2d 416, 431 n. 14 (6th Wozniak, which was appealed by the Cir.1992). The concurrence in McLaurin made plaintiff Thaddeus-X pro Se, a panel of this this very point. McLaurin, 115 F.3d at 413 (Ryan, court affirmed the district court’s grant of concurring) (“[T]he majority’s reliance on qualified immunity in a prisoner First unpublished case law may be interesting as an Amendment retaliation claim. In that academic matter, but those cases simply do not have order, we observed that “the [Thaddeus-X the weight of authority.”). Thus, the unpublished en banc] court noted that this circuit cases cited in McLaurin could not have provided previously had applied inconsistent any assurance to a reasonable official that the analyses for [prisoner] retaliation claims, “shocks the conscience” standard would have been often requiring a prisoner to demonstrate applied in 1994, particularly in light of clear that the defendant’s conduct ‘shocks the

published authority to the contrary. [FN7] conscience.’ “ Id. at *2, 215 F.3d 1327. We Moreover, we note that the *612 McLaurin opinion decline defendants’ invitation to adopt the cited by the defendants was vacated in a per curiam reasoning of Wozniak. Wozniak was order, McLaurin, 202 F.3d 269 (6th Cir.1999) unpublished and therefore is not binding (unpublished table decision), and therefore any on this panel. Salamalekis, 221 F.3d at 833 statements contained in that opinion lack Moreover, we think that Wozniak precedential value. misconstrued Thaddeus-X Although it is true that the Thaddeus-X en banc opinion FN6. Tellingly, the original panel decision noted the existence of inconsistent in Thaddeus-X issued approximately two authority in this circuit, the Thaddeus-X months before McLaurin, discerned no court explicitly observed that the “shocks ambiguity in the law of First Amendment the conscience” standard had been retaliation. 110 F.3d 1233, 1997 WL imposed “mainly in unpublished opinions.” 169387, at ~ 3 (6th Cir. April 11, 1997). 175 F.3d at 387. Based upon our review Rather, in setting forth the governing of the published authority available in retaliation principle, the panel cited Zilich 1994, we conclude that the law of First v. Longo, 34 F.3d 359, 364 (6th Cir.1994), Amendment retaliation was clear at that

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time that the “shocks the conscience” actionable under § 1983 has been established for standard did not apply to First Amendment some time and an objectively reasonable official retaliation cases. could not fail to know of it.”), cert. denied, 503 U.s. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). [19] We conclude that Gibbs and Newsom set forth This authority further informs our understanding of the legal standards for a First Amendment what law was clearly established in 1994. See retaliation claim of which a reasonable official Chappel, 131 F.3d at 579. In combination with our would have been aware in 1994. Under this own decisions in Gibbs and Newsorn, we think this standard, it was clear that adverse actions falling authority would have alerted a reasonable prison short of ‘conscience-shocking” abuses of power official in 1994 that confiscating legal papers and would give rise to a cognizable constitutional claim other property in retaliation for the prisoner’s if they were undertaken in retaliation for a prisoner’s exercise of his right of access to the courts would exercise of his or her First Amendment rights. We violate the inmate’s constitutional rights. conclude that a reasonable official would have been aware that, under the Gibbs and Newsom standard, In sum, we conclude that the plaintiffs’ allegations, conducting harassing cell searches and confiscating if proven, would establish a violation of the law that an inmate’s legal papers and medical dietary was clearly established in 1994. Our review of the supplements in retaliation for the inmate’s exercise relevant case law reveals that it was not until of his right of access to the courts would give rise to McLaurin was issued in 1997 that a reasonable constitutional liability. These actions are official might expect to escape liability for comparable in seriousness, we think, to the warden’s retaliatory acts falling short of conscience-shocking refusal to reappoint a prisoner as an inmate legal abuses of power. Prior to that opinion, the advisor that was at issue in Newsorn, 888 F.2d 371. published authority in our circuit made it clear that That opinion, in particular, made it quite clear that the “shocks the conscience” test did not apply to an injury inflicted in retaliation for an inmate’s retaliation claims expressly brought under the First protected conduct need not be severe to be Amendment. We therefore *613 determine that actionable. Id. at 378. defendants are not entitled to qualified immunity.

Moreover, we note that, at the time of the III. CONCLUSION defendants’ actions, at a number of cases from other Based upon the foregoing discussion, we circuits had held that inmate allegations REVERSE the district court’s grant of judgment as substantially similar to Bell’s stated cognizable a matter of law to the defendants and REMAND for claims for First Amendment retaliation under the further proceedings consistent with this opinion. same basic First Amendment principles that underlie Gibbs and Newsom. See Wright, 795 F.2d 308 F.3d 594, 2002 Fed.App. 0364P at 968; Green, 977 F.2d at 1389-91; Hal1~ 755 F.2d at 787-88; accord Penrod, 94 F.3d at 1404 Briefs and Other Related Documents (Back to (denying qualified immunity because clearly top) established law in 1992 prohibited confiscating legal materials, denying prisoners hygiene items, • 01-1286 (Docket) and transferring prisoners to segregation in (Mar. 02, 2001) retaliation for accessing courts); cf Seizer v. Engelke, 943 F.2d 921, 925 (8th Cir.1991) (“This is END OF DOCUMENT a clear case of a prisoner who was subjected to retaliatory cell searches and conduct violations for bringing the illicit conduct of a prison guard to the attention of prison officials. The law making retaliation for the exercise of a constitutional right

http ://print.westlaw.comldelivery.html?dest=atp&format=HTMLE&datajd=B005 5800000... 11/8/2005 EXHIBIT 6 “The Learning Experience of Prison Cases”

Arthur J. Tarnow United States District Judge EXHIBIT 7 “Reimbursement of Expenses and Other Things to Know”

David J. Weaver Court Administrator UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

NON-APPROPRIATED FUND VOUCHER

Request for Reimbursement of Pro Bono Attorney Expenses in Civil Cases

Attorney Name: ______

Address: ______

Case Information

Case Number: ______

Case Name: ______

Type: Prisoner Civil Rights

Employment Discrimination

Judge Assigned:

Date Judgment Entered:

Date Withdrawn or Dismissed (if applicable): Request for Reimbursement of Pro Bono Attorney Expenses in Civil Cases Page 2

Reimbursement Requested (Refer to attached instructions.)

Depositions & transcripts ______

Investigative/Expert Services ______

Travel ______

Fees for Service of Process ______

Interpreter Services ______

Photocopying, Telephone Calls ______

Total Reimbursement Requested ______

Attorney’s Signature (Date)

Reviewed:

David J. Weaver, Court Administrator (Date)

Approved:

United States District Judge (Date)

Completed requests for reimbursement should be forwarded to:

David J. Weaver Court Administrator 814 Theodore Levin United States Courthouse Detroit, Michigan 48226 Rev. 7/99 Attachment to Non-Appropriated Fund Voucher: Request for Reimbursement of Pro Bono Attorney Expenses in Civil Cases

(1) Reimbursement of Pro Bono Attorney Expenses in Civil Cases

(a) The Non-Appropriated Fund (Fund) may be used to reimburse attorneys who are acting in connection with the Pro Bono Civil Assignment Panel for certain expenses associated with the evaluation, preparation or presentation of civil actions in the Eastern District of Michigan.

(b) Applications for reimbursement of pro bono attorney expenses by the Fund are submitted to the Court Administrator for review and recommendation to the judicial officer to whom the case was assigned for approval. Forms requesting reimbursement are available at all Clerk’s Office locations in the Eastern District of Michigan.

(c) The Fund may not be used to reimburse attorneys for expenses associated with the preparation or presentation of an appeal to the United States Court of Appeals or the United States Supreme Court. A pro bono attorney’s responsibility to a client continues through entry of judgment and the filing of notice of appeal if the client wishes to appeal. (d) The maximum amount that may be disbursed from the Fund in any case is $1,000.00, unless substantial documentation is provided indicating that additional reimbursement is warranted.

(e) Requests for reimbursement from the Fund may be made exparte.

(f) Reimbursementfrom the Fund is limited to the following allowable expenses. Failure to provide receipts or other written documentation as proof may result in a request being returned for additional information or not being approved.

i) Depositions and Transcripts. Attorneys may order transcripts of depositions necessary in the preparation of the case. Cost of transcripts may not exceed the page rate for ordinary transcript established in the Eastern District of Michigan. Attorneys may be required to show that they first attempted to obtain pro bono court reporting services from a member of the Michigan Association of Professional Court Reporters.

ii) Investigative or Expert Services. Attorneys may request investigative or expert services necessary in the preparation of the case. Such services require prior approval of the judicial officer to whom the case is assigned.

iii) Travel. Attorneys may request reimbursement for mileage at the current rate authorized for federal employees as well as out-of-pocket expenses for parking.

iv) Fees for Service of Process. Attorneys may request reimbursement for fees for service of papers and the appearance of witnesses.

v) Interpreter Services. Attorneys may request reimbursement for costs of interpreter services.

vi) Photocopyinc~, Telephone Calls. Attorneys may request reimbursement for out-of-pocket expenses incurred for photocopying, photographs used in the case, toll calls, etc., only if costs were incurred outside the attorney’s office and necessary to the preparation of the case.

(g) The Fund may not be used to reimburse attorneys for general office expenses, including office overhead, payroll, equipment depreciation, basic telephone service, etc.

(h) The Fund may not be used to reimburse expenses that may be statutorily recovered or costs or fees taxed against the party or attorney.

(2) Attorneys’ Fees Not Reimbursable from the Fund

Attorneys’ fees may not be reimbursed from the Fund. However, in any action or proceeding to enforce a provision of 42 U.S.C.A. §~ 1981, 1981a, 1982, 1983, 1985 and 1986, title IX of Public Law 92-318, the Religious Freedom Restoration Act of 1993, or title VI of the Civil Rights Act of 1964, the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988.

(3) Requests for Reimbursement

(a) Requests for reimbursement from the Fund must be filed within 30 days of entry of judgment. If the attorney has withdrawn or been dismissed prior to the entry of judgment, the request for reimbursement must be filed within 30 days of withdrawal or dismissal.

(b) Requests for reimbursement from the Fund must be made on a form available at all Clerk’s Office locations in the Eastern District of Michigan. EXHIBIT 8 “Dealing With Defendants’ Counsel and the Michigan Department of Corrections”

Leo H. Friedman Assistant Attorney General Corrections Division Michigan Department of Attorney General

• Organization Chart of Department

• Description of Corrections Division

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8 I I I Corrections Division Department of Attorney General

The Corrections Division provides legal advice and representation to the Michigan Department of Corrections and the Michigan Parole Board. While the majority of the workload consists of the representation of the Department of Corrections and the Michigan Parole Board and their employees in the federal and state court systems, the Division also provides legal advice and consultation regarding employment issues, contracts, etc., as well as interpretation of state and federal constitutions, statutes and rules, agency decisions, policies and procedures. Commencing June 1, 2004, the Division assumed the review of all extraditions and interstate rendition requests received by the Governo?s Office. Additionally, commencing August 16, 2004, the Corrections Division assumed the review of all petitions to set aside conviction (expungements) filed with the state courts pursuant to MCL 780.621 et seq, and the representation of the Michigan State Police (MSP) concerning the litigation of orders for setting aside convictions that the MSP contests.

Section Duties Intake Section

Handles initial federal court pre-discovery motions in pro se cases.

Federal Section

Handles all federal court trial litigation where apro se prisoner complaint has not been dismissed by an initial pre-discovery motion handled by the Intake Section, all federal court trial litigation where the prisoner is represented by counsel, and all federal court appellate litigation.

State Section

Handles all state court trial and appellate litigation. _ •t~) •o~i~

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• Organization Chart of Department

• Prison and Camp Facilities

• Annual Facts and Figures (2003)

• Descriptions of MDOC Prisons and Camps within the jurisdiction of the Eastern District ______I IL toresponslbllitie~.ReportstheAdministratoradministrativelyof

Organizational Chart Page 1 of 2

www~michigan.gov Release Date: April 11, 2002 (To Print: use your browsers print function) Organizational Chart

Administration & Programs ~Adminlstratiori

Health Care Servic

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http ://www.michigan.gov/pririterFrjendfly/0, 1687,7-119-1441 13 368---MOhlml lflhlQ/7flflc Map Michigan Department of Corrections COrrectional Facilities Administration Prison and Camp Facilities As of June 30, 2005

• INSTUfUTIONS (44) ~ CAMPS(11)

1. Ojibway Correctional Facility B. Camp Ottawa 2. Baraga Max. Correctional Facility A. Camp Kitwen 3. Marquette Branch Prison 4. Alger Max. Correctional Facility C. Camp Cusino 5. Newberry Correctional Facility D. Camp Manistique 6. Chippewa Correctional Facility 6. Straits Correctional Facility 6. Hiawatha Correctional Facility 6. Kinross Correctional Facility 7. Pugsley Correctional Facility 8. Oaks Correctional Facility 9. Standish Max. Correctional Facility E. Camp Lehman 10. Earnest C. Brooks Correctional Facility 10. Muskegon Correctional Facility 10. West Shoreline Correctional Facility 11. Carson City Correctional Facility 11. Boyer Road Correctional Facility 12. Mid~Michigan Correctional Facility 12. Pine River Correctional Facility 12. St. Louis Correctional Facility 13. Saginaw Correctional Facility 14. Richard A. Handlon Correctional Facility 14. fonia Maximum Correctional Facility 14. Deerfield Correctional Facility 14. Michigan Reformatory-t 14. Bellamy Creek Correctional Facility 14. Riverside Correctional Facility 15. Thumb Correctional Facility 16. Macomb Correctional Facility 17. G. Robert Cotton Correctional Facility 17. Cooper Street Correctional Facility 19. Mound Correctional Facility 21. Florence Crane Correctional Facility H. SAl (Boot Camp) 19. Ryan Correctional Facility G. Camp Branch 17. Charles E. Egeler RGC* 20. Huron Valley Complex 21. Lakeland Correctional Facility 17. Parnall Correctional Facility - Men’s1 22. Parr Highway Correctional Facility 17. Southern Michigan Correctional Facility Women’s 22. Gus Harrison Correctional Facility 18. Robert Scott Correctional Facility* F. Camp Brighton + Michigan Youth Correctional Facility

* Includes reception centers ~ Private, leased institution operated by Wackenhut Corporation for prisoners under the age of 20. ± Currently not operational I Inpatient psychiatric units operated by the Michigan Department of Community Health. 2003 Annual Report

Facts and figures year end 2003

Number ofprisons 43

Number ofcamps 11

Special Alternative Incarceration Program

Prisoner popultion--institutions and camps 48,929

Number ofprisoners age 17 or less 93

Number ofpai olees 17,449

Number ofpiobationers 55,171

Numbet ofoffendei s in ColTections Centei s 204

Prisoners on Electronic Monitoring 266

Total offenders supervised by MDOC 122,019

FYI 2003 budget $1,683,830,830

Number ofMDOS staff 17,295 including 8,982 corrections officers

www. michigan. go v/corrections 29 2003 Annual Report 2003 Annual Facts and Figures

Michigan prisoners:

35 average age for men Other special use housing such as mental health, protective segregation: 3.3 percent 36 average age for women Paroles 53.2 percent were black Number ofparoles granted in 2003: 12,789 43.7 percent were white Average role approval rate: 51.8 percent 3.1 percent American Indians, Hispanics and Asians Prison commitments: 10,312 (excluding additional sentence imposed Percentage ofprisoners housed at security level: Yearly costs per prisoner in FY2003 CRP: .9 percent (centers and electronic monitoring) Average: $24,680

Level I: 35.1 percent Minimum l...evel I: $18,684 Level II: 35.2 percent Med in rn/Close: Level III: 3.1 percent Level II: $19,273 Level IV: 10.8 percent Levelifi: $18,838 LevelV: 4.0 percent Level IV: $24,005 Level VI: ~Prisoners in Level VI are generally housed in administrative segregation or Multi-Level: $21,153 detention.) Maximum Administrative Segregation: 3.2 percent Level V and VI: $30,803

Detention: 0.9 percent Parole/Probation Supervision: Reception: 3.4 percent $ 1,800

www. michigan. go v/corrections 30 CAMP BRIGHTON Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browsers print function) Last Update: May 02, 2005 CAMP BRIGHTON

ADW: Thomas DeSantis 7200 Chambers Road Pinckney, Ml 48169 Telephone: (734) 878-6623

Region 3 Livingston County

General

Camp Brighton, located near Pinckney, operates under the direction of the Huron Valley Complex - Women’s and houses 404 female prisoners. Prisoners work on public works assignments in different cities throughout three adjacent counties. One work crew is assigned to support the Department of Natural Resources Tree Improvement project. The camp programs include Adult Basic Education, GED preparation and testing, life skills and pre release preparation, substance abuse education and intensive outpatient substance abuse therapy, Alcoholics Anonymous, assaultive offender programming, domestic violence counseling and group counseling. Routine medical, dental and Mental Health Services are provided on site. Serious medical problems are treated at the Duane L. Waters Hospital in Jackson or at a local hospital.

http://www.michigan.gov/printerFrjendly/O, 1687,7-119-1381 1388-51 87--.OO.html lOhlQ/200S COOPER STREET CORRECTIONAL FACILITY Page 1 of2

www.m ichigan.gov Release Date: November 29, 2001 (To Print: use your browsers print function) Last Update: September 20, 2005 COOPER STREET CORRECTIONAL FACILITY

Region 3 Jackson County Warden Bruce Curtis TELEPHONE: (517) 780-6175 OPENED: 1997 3100 Cooper St. AGE LIMIT: Males 17 or older Jackson, MI 49201 SECURITY LEVEL: Secure Level I Current jobs in Jackson

General

The Cooper Street Correctional Facility (JCS) was created from the former Michigan Parole Camp. It was expanded, with an increase in security, to create a Secure Level I prison which opened in July, 1997. It is located across the street from the Southern Michigan Correctional Facility (JMF) which was the former State Prison of Southern Michigan.

Cooper Street also serves as a centralized staging point for prisoners transferring to the Camp Program and as a release facility for prisoners who are about to parole, discharge, or transfer to community center placement.

The facility is an active member of the Department’s Community Liaison Committee in the Jackson County area, and maintains open lines of communication between the community and prison administration.

Programming

Academic programming includes Adult Basic Education , General Education Development preparation and testing, vocational training and prerelease programming. Cooper Street offers various religious activities, work assignments and several self-improvement programs, such as Alcoholics Anonymous. A residential substance-abuse treatment program, currently run by SHAR, Inc., opened in late 1998. Eligible lower-risk prisoners are permitted to work on community projects on public work crews (e.g., snow removal at hospices), or on gate pass details at the facility, both of which are under the supervision of staff outside of the prison.

Routine medical, psychological and dental services are provided on site. Serious medical problems may be treated at Duane L. Waters Hospital or at Foote Hospital, both of which are in Jackson.

Security Cooper Street has double fences, razor-ribbon wire, a perimeter detection system and a grounds

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patrol vehicle outside the prison’s secure perimeter

httix//www.michj~an.~ov/nrjnterFrjend1v/O I 6X7~7- 1 1 9-1 ~ Ri 1 ~ (in html 1 fl/i OI’)flflc G. ROBERT COTTON CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: March 02, 2005 G. ROBERT COTTON CORRECTIONAL FACILITY

Region 3 Jackson County Warden Doug Vasbinder TELEPHONE: (517) 780-5000 3500 N. Elm Road OPENED: 1985 Jackson, MI 49201 AGE LIMIT: Males, all ages SECURITY LEVELS: I, Secure Level I, II and IV Current Jobs in Jackson

General The G. Robert Cotton Correctional Facility sits on 114 acres and is located northwest of the intersection of Elm Road and 1-94 in Jackson County. The prison is a combination of pole barns, which have weatherized buildings, sealed concrete flooring and plaster-board walls, and other buildings that are brick, mortar, steel and glass.

Programming Academic programming includes Adult Basic Education, General Education Development preparation, Special Education and several vocational training programs. Routine medical and dental care are provided on site. Serious medical problems are treated at the department’s Duane L. Waters Hospital. Security Security includes three 12-foot fences, rolls of razor-ribbon wire, two perimeter towers, an acoustic sensing system and an electronic detection system. A patrol road surrounds the perimeter of the facility, and a vehicle responds to all detection system alarms. Surveillance camera systems are located throughout the facility.

httn://www.michi~an.~ov/orinterFñend1v/O.1687~7-1 1 9-1 3X1 1 ~XR-~~-- nn hfml 1 fl/i Q/’flft~ CHARLES EGELER RECEPTION AND GUIDANCE CENTER Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: February 09, 2005 CHARLES EGELER RECEPTION AND GUIDANCE CENTER

Region 3 Jackson County Warden Nick Ludwick TELEPHONE: (517) 780-5600 3855 Cooper St OPENED: 1988 Jackson, MI 49201 -7547 AGE LIMIT: Males, 17 years and up SECURITY LEVEL: I Current jobs I Jackson Reception V

General The Charles Egeler Correctional Facility sits on 53 acres and also houses the 86-bed Duane L. Waters Hospital. Egeler, along with the ~thern Michigan CorrectionaIFacuity and Parna~ Correction I Facility, was carved out of the old State Prison of Southern Michigan (SPSM). The maximum-security hospital within the facility provides medical services to both male and female prisoners from many of the state’s prisons and camps.

Security The perimeter of the facility is protected by a double chain link fence, electronic monitoring systems and razor-ribbon wire. An emergency-response vehicle also patrols the perimeter.

http ://www.michigan.gov/printerFrjendly/0.1687.7-119-1381 1388-533 X--OOhtml 1OI1Q/2flflS CHARLES EGELER RECEPTION AND GUIDANCE CENTER ANNEX Page 1 of I

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: January 22, 2004 CHARLES EGELER RECEPTION AND GUIDANCE CENTER ANNEX

Region 3 Jackson County Warden Nick Ludwick TELEPHONE: (517) 780-6000 3855 Cooper Street OPENED: 1934 Jackson, MI 49201 AGE LIMIT: Males, 17 and older SECURITY LEVELS: Reception center only Current jobs. in Jackson

General The Charles Egeler Reception and Guidance Center Annex (RGC) was formerly part of the ~ta~ Prison of Southern Michi9an. RGC acts as the main intake point for male prisoners with new sentences and those who have violated their parole and are being sent back to prison. Here the prisoners are classified and await transfer to an appropriate facility or camp.

The reception center for females is located at the ~itScottCoirectionalFacifl~y.

http://www.michigan.gov/printerFrjendly/O. 16873-119-1381 1388-1 9490--~ Oft html 10/1 Q/900c GUS HARRISON CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browsers print function) Last Update: July 14, 2005 GUS HARRISON CORRECTIONAL FACILITY

Region 3 Lenawee County

Warden Kenneth Romanowski TELEPHONE: (517) 265-3900 2727 East Beecher SL OPENED: 1991 Adrian, Ml 49221 AGE LIMIT: Males, all ages SECURITY LEVELS: I, II and IV Current jobs in Adrian

Genera I The Gus Harrison Correctional Facility is named after the department’s first director. It is a multi- security prison on the eastern border of the city of Adrian. The facility consists of six housing units.

Programming Programming includes academic and vocational instruction, work assignments, general and law library services, psychological group counseling, substance-abuse treatment, horticulture and English as a second language. Prisoners are provided on-site routine medical and dental care. Serious problems are treated at the department’s Duane L. Waters Hospital in Jackson. Emergencies are referred to a local hospital.

Security The Gus Harrison facility protects its perimeter with double chain-link fences, razor-ribbon wire, electronic detection systems, a patrol vehicle and two gun towers.

htto://www.michi~an.~ov!orinterFriend1v/Oi 6873-1 1 9-1 3R1 1 ~RR-S~SQ-- nfl html lflhlQ/2flflc HURON VALLEY COMPLEX - WOMEN’S Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: May 09, 2005

HURON VALLEY COMPLEX - WOMENS

Region 3 Washtenaw County Warden Susan Davis TELEPHONE: (734) 434-5888 OPENED: 1994 3511 Bemis Road Ypsilanti, Ml 48197 AGE LIMIT: Females, all ages SECURITY LEVELS: I and II Current jobs in YpsUanti

General The facility’s seven housing units currently include Level I and II general population, Residential Substance Abuse Treatment (RSAT), acute care, infirmary, and detention prisoners. ~eginning in May 2005, women participating in the Michigan Prisoner Re-Entry Initiative will be housed here also. Huron Valley Complex-Women shares many services with Huron Valley Complex-Men, including personnel, prisoner records, business office and maintenance operations. Region Ill health care administrators’ offices are also on-site.

Programming Adult Basic Education and General Education Development preparation classes are offered, as is pre-release/life skills instruction. Vocational training is available in auto mechanics, building trades, business education technology, horticulture, and graphic arts. Prisoners have access to religious programs, substance abuse treatment, psychological services, general library and law library. Prisoners are provided on-site routine medical and dental care. Medical emergencies are referred to a local hospital.

Security The facility includes two perimeter chain-link fences and electronic detection systems. Vehicles and armed personnel patrol the perimeter.

http://www.michigan.gov/printerFrjendly/O, 1687,7-119-138 L 1388-11693 O--.O0.html 1O/19/2flflS HURON VALLEY COMPLEX - MEN’S Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: May 02, 2005 HURON VALLEY COMPLEX MEN’S

Region 3 Washtenaw County

Warden Susan Davis TELEPHONE: (734) 572-9900 3201 Bemis Road Ypsilanti, MI 48197 OPENED: 1981 AGE LIMIT: Males, all ages Current jobs in~ Ypsilanti SECURITY LEVEL: IV

General The prison has five housing units, each containing two floors; a school; a recreation building; an infirmary; a power plant; and a food service facility, which also services Huron Valley Complex- Women, the Technical Rule Violation Center, and the Forensic Center. The majority of prisoners have serious mental illness and cannot function adequately in a general prison population. They receive evaluations and treatment services from the Michigan Department of Community Health under a cooperative agreement and are classified into acute care, rehabilitation treatment services, or residential treatment programs. A small cadre of general population prisoners also reside at the facility, working in food service, the barber shop, etc.

Programming A wide range of therapeutic programs is offered, as are Adult Basic Education, Special Education and General Education Development preparation. Prisoners also have access to religious programs, general library and law library. Prisoners are provided on-site routine medical and dental care. Medical emergencies are referred to a local hospital.

Security The prison is surrounded by two 12-foot fences with razor ribbon wire and a special electronic detection system. Vehicles with armed personnel patrol the perimeter.

http ://www.michigan. ~ov/nrinterFriendlv/0. 1687.1-119-1 381 1 ~ RR-~3 c4-- fill html 1 fill oI’,i’~nc MACOMB CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: January 22, 2004 MACOMB CORRECTIONAL FACILITY

Region 3 Macomb County Warden Hugh Wolfenbarger TELEPHONE: (586) 749-4900 34625 26 Mile Rd. OPENED: 1993 New Haven, MI 48048 AGE LIMIT: Males, all ages SECURITY LEVELS: I, II and IV Current jobs in ~

General The Macomb Correctional Facility sits on a 100-acre site. It comprises 11 major buildings and two minor buildings, totaling about 300,000 square feet. The prison contains three Level II housing units, two Level IV units and one Level I building outside the security perimeter. Four other buildings house a school, the administration offices, support services and storage.

Programming Educational programming includes Special Education, General Education Development preparation, Adult Basic Education and vocational classes. Facility staff work closely with community groups and encourage community volunteer participation.

Routine health and dental care are provided on site. Major emergencies are treated in a community hospital or at the Duane L. Waters Hospital in Jackson.

Security The perimeter of the prison is enclosed by double, 12-foot galvanized chain link fences topped with coiled stainless steel razor-ribbon wire. The wire is also in the space between the two fences to enhance the barrier. A third, 12-foot galvanized chain link fence, topped with stainless steel razor- ribbon wire provides a buffer between the facility property lines and the perimeter road. An electronic detection system is in use on the inner perimeter and the buffer fences. The prison’s security was further enhanced in 1997 by the addition of two gun towers. An armed officer in a perimeter response vehicle provides a continuous patrol.

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www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser~s print function) Last Update: January 31, 2005 MOUND CORRECTIONAL FACILITY

Region 3 Wayne County

Warden Andrew Jackson TELEPHONE: (313) 368-8300 17601 Mound Road Detroit, MI 48212 OPENED: 1994 AGE LIMIT: Males, all ages. CurrentJobs in Detroit SECURITY LEVELS: II

General The two state prisons in the city of Detroit are rare because of their placement in a densely populated urban setting. Mound Correctional facility is on the east side of the site; Ryan Correctional Facility is on the west side. The maintenance/warehouse functions are shared by the two facilities. Mound sits on 39 acres previously owned by the Daimler Chrysler Corporation which used the area to store new cars prior to shipping. It now contains buildings to house prisoners as well as those to provide educational programs, food services, health services, and administrative services. The prison has a small segregation unit.

The facility is separated from the community along Mound Road by buffer fencing, a planting berm with evergreen and deciduous trees, as well as two perimeter security fences. The entire complex of Mound and Ryan Correctional Facilities covers 78 acres.

Programming The prison’s academia programs provide for special and remedial education through completion of General Education Development certification for prisoners including those in segregation. The priority is to develop reading skills for each prisoner at least to the eighth grade level. Most prisoners are required to obtain GED certification prior to release from the facility. The career and technical education programs include horticulture, building maintenance, building trades, and computer literacy.

As with most Michigan prisons, volunteers help staff in providing prisoners with religious and other life enrichment programs.

Minor health care services are providedat the prison. Serious cases are treated at the Duane Waters Hospital in Jackson as well as at local facilities.

Security Mound Correctional Facility has four gun-towers to complement double 12 foot fences that are topped with coiled stainless steel razor ribbon wire. As at all secure facilities, an electronic detection system is inside the inner security fence. An armed vehicle patrols the perimeter in response to

http://www.michigan.gov/printerFriendly/o, 1687,7-119-1381 1388-53 52--MOhtml 1 (Vi Q/9nnc MOUND CORRECTIONAL FACILITY Page 2 of 2

emergencies 24 hours a day. Buffer fences separate the surrounding area from the prison and help to keep intruders away.

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www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser~s print function) Last Update: March 02, 2005 PARNALL CORRECTIONAL FACILITY

Region 3 Jackson County Warden Harold White TELEPHONE: (517) 780-6004 1780 E. Parnall OPENED: 1926 Jackson, MI 49201 AGE LIMIT: Males, 21 and up SECURITY LEVEL: Level I Current jobs in Jackson

General This prison is the minimum-security section of what was part of the former State Prison of Southern Michigan. When the entire complex is divided into separate facilities, Parnall will also contain the old No. 7 block.

Programming Parnall Correctional Facility offers educational, vocational and religious programs, as well as psychological treatment. Work assignments in food service, maintenance and iyjj~hj~ an State hidustries are available. There is a health care unit at the facility. The Duane L. Waters Hospital, which treats more serious health problems, is nearby.

Security The perimeter of this prison consists of two chain link fences that are topped with razor-ribbon wire.

http://www.michigan.gov/printerFriendly/O, 1687,7-119-1381_i 388-533 9--.OO.html loll 9/2005 PARR HIGHWAY CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov (To Print: use your browser’s print function) Release Date: November 29, 2001 Last Update: December 28, 2004 PARR HIGHWAY CORRECTIONAL FACILITY

Region 3 Lenawee County Warden Kenneth Romanowskj TELEPHONE: (517) 263-3500 OPENED: 1989 2727 East Beecher St. Adrian, Ml 49221 AGE LIMIT: Males, all ages SECURITY LEVEL: Secure Level I Current jobs in Adrian

General The Parr Highway Correctional Facility is a Secure Level I prison consisting of seven buildings surrounded by two electronically monitored fences.

Programming Academic and vocational programs are offered, including substance-abuse treatment, General Education Development completion and Adult Basic Education. Other programs include training in electronics, food service and maintenance. Prisoners are provided on-site routine medical and dental care. Serious problems and emergencies are treated via local community providers, or at the Duane L. Waters Hospital in Jackson. Security The perimeter consists of two 16-foot fences with razor-ribbon wire, electronic detection systems, two gun towers and an armed alert response vehicle.

http ://www.michigan.gov/printerFriendlly/o,1687,7-119-138 1_i 38 8-5342--,00.html 10/19/2005 RYAN CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov (To Print: use your browser’s print function) Release Date: November 29, 2001 Last Update: January 31, 2005 RYAN CORRECTIONAL FACILITY

Region 3 Wayne County

Warden Raymond Booker TELEPHONE: (313) 368-3200 17600 Ryan Road Detroit, Ml 48212 OPENED: 1991 AGE LIMIT: Males, all ages QL.rrent jobs in Detroit SECURITY LEVELS: II

General

The Ryan Correctional Facility is located on the east side of Detroit on 39 acres, off Ryan Road. The land was previously used by Daimler Chrysler AG to store cars. The facility contains buildings for housing, educational and vocational instruction, food services, a health clinic, dialysis unit, administrative offices, storage and security. The prison has a small segregation unit and is separated from the surrounding area by a six-foot landscaped berm with evergreen and deciduous trees.

Programming The institutions academic program provides for special and remedial education as well as General Education Development completion for all prisoners, including those in segregation. Vocational training includes an on-the-job training program for porters and food service. The food service class serves meals as part of the training. About 200 community volunteers help staff in providing prisoners with faith-based programming. Health care is provided at the prison, at the Duane L. Waters Hospital in Jackson or at local hospitals in the event of emergencies. A dialysis unit was opened in March 1995, serving approximately 44 offenders. Security Security is provided by two 12-foot fences, electronic detection systems, razor-ribbon wire, gun towers and buffer fencing.

http://www.michigan.gov/printerFrjencjly/o,1687,7-119-138 1_i 388-53 50--,00.html 10/19/2005 ROBERT SCOTT CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: June 07, 2004 ROBERT SCOTT CORRECTIONAL FACILITY

Region 3 Wayne County Warden Clarice Stovall TELEPHONE: (734) 459-7400 47500 Five Mile Road OPENED: 1991 Plymouth, MI 48170 AGE LIMIT: Females of all ages SECURITY LEVELS: I, II, IV, V and Reception Center Currert jobs in~ Plymouth

General The Robert Scott Correctional Facility serves as the reception center for all newly-committed female prisoners. It is located on 35 acres in western Wayne County. Housing consists of five double- winged and one single-winged units, day room areas, laundry rooms and staff offices.

One building complex contains areas for food preparation, prisoner and staff dining, and health care; another, a warehouse and maintenance. The administration building comprises executive offices, a records section, visiting rooms, non-contact visiting rooms, staff training rooms and the facility’s control center.

Programming Adult Basic Education, General Education Development certification, Special Education, and vocational classes, are offered.

Prisoners employed by Michigan State Industries manufacture janitorial products, plastic bags and dentures. The Prisoner Services Building houses classrooms, a gymnasium, library, vocational lab, beauty shop, quartermaster, and prisoner store.

There are outpatient and residential treatment programs for mentally ill prisoners, substance-abuse programming, parenting programs, special programs for pregnant prisoners and domestic violence programs.

Routine medical and dental care are provided on site. Serious medical problems are treated at the Duane L. Waters Hospital in Jackson or at a local hospital.

Security Security includes three 12-foot fences topped with razor-ribbon wire, gun towers, electronic perimeter detection systems, electrically-powered gates to isolate each wing in the housing units in case of a disturbance and cell doors equipped with high-security locks. A road surrounds the perimeter of the facility and is constantly surveyed and patrolled by armed staff.

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www.m ichigan.gov Release Date: November 29, 2001 (To Print: use your browsers print function) Last Update: January 22, 2004 SOUTHERN MICHIGAN CORRECTIONAL FACILITY

Region 3 Jackson County Warden Si. Burt TELEPHONE: (517) 780-6100 4002 Cooper St. OPENED: 1997 Jackson, MI 49201 AGE LIMIT: Males, 21 and older

Current jobs. in Jaçksç.n SECURITY LEVELS: II and IV

General The Southern Michigan Correctional Facility opened in 1997, after renovations were made to the former State Prison of Southern Michigan, once the largest walled prison in the world. Areas of the facility include housing, recreation, medical, school, library, quartermaster, food service, special activities and administration.

Southern Michigan Correctional Facility houses Level II and IV prisoners who have specific needs: medical, area court hearing(s), scheduled parole/discharge in the near future, educational/vocational, single cell or Administrative Segregation.

The facility is an active member of the Department’s Community Liaison Committee in the Jackson County area and maintains open lines of communication between the community and prison administration.

Programming The education/vocational programs provide opportunities for prisoners to improve their knowledge and skills, while special activities provide productive and diverse opportunities.

Educational/vocational programs include Adult Basic Education, General Education Development, Pre-Release, Social Skills, Visual Graphic Arts, Business Education Technology and an Optical program. Special activities are comprised of group psychotherapy (impulse control, anger management and sex offender therapy), substance abuse counseling and Alcoholics/Narcotics Anonymous.

Prisoners are employed in a variety of assignments, including food service, maintenance, grounds keeper and Michigan State Industries (MSI). MSI is a factory inside the secure perimeter of the facility and has three divisions. The Optical division grinds lenses which provide eyeglasses for prisoners throughout the state. The Print Shop division produces paper forms used by all State of Michigan agencies and the Textiles division, using weaving and sewing machinery, produces clothing items and bedding material for all Department of Corrections facilities.

The facility also provides a variety of religious programs for prisoners.

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Security Security includes a 40’ brick perimeter wall, gun towers and electronic detection systems. A road surrounds the perimeter of the facility and is under constant surveillance and patrolled by armed staff.

http://www.mjchjgan.~ov/orjnterFrjend1v/o1 6X77-1 1 9-1 ~R1 1 ~RR-c~c7_ flfl lifml 1 nIl OI~)flriC THUMB CORRECTIONAL FACILITY Page 1 of 1

www.m ichigan.gov Release Date: November 29, 2001 (To Print: use your browser~s print function) Last Update: March 02, 2005 THUMB CORRECTIONAL FACILITY

Region 3 Lapeer County Warden Millicent Warren TELEPHONE: (810) 667-2045 3225 John Conley Drive OPENED: 1987 Lapeer, MI 48446 AGE LIMIT: Males,all ages SECURITY LEVELS: II and IV Current jobs inLapeer

General The Thumb Correctional Facility has two Level IV housing units. There are four Level II housing units including day showers, laundry facilities and staff offices. The segregation unit is equipped with stainless steel sinks and toilets, and slotted doors for feeding. Other buildings include the prison services building, which has academic and vocational classrooms, libraries, a barber shop, a food service building for prisoner and staff dining, health care area. warehouse and maintenance areas. There is an administrative building for staff offices, records, visiting, staff training, hearings and the institution’s control center. Michigan State Industries has a building where it provides industrial laundry services for state and other nonprofit agencies.

Programming Prisoners can involve themselves in academic, vocational and religious programming. Prisoner work programs include the prison’s laundry. Treatment programs include substance-abuse counseling, group therapy, clubs and organizations. Prisoners are provided on-site medical and dental care; serious and emergency care is provided by the department’s Duane L. Waters Hospital in Jackson.

Security The perimeter security includes triple 12-foot fences with razor-ribbon wire, towers, electronic perimeter detection systems and a perimeter vehicle with armed personnel.

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www.michigan.gov Release Date: November 29, 2001 (To Print: use your browsers print function) Last Update: May 18, 2005 CAMP LEHMAN

ADW: Michael W. Curley 5135 Hartwick Pines Road Grayling, Ml 49738 Telephone: (989) 348-8101

Region 1 Crawford County General Under the direction of the ~tan~s[ xinwr.c~crrectionaiFadllity, Camp Lehman is north of Grayling. The camp sits on 19 acres of land donated by the Department of Natural Resources and can house 582 prisoners. A total of 105 employees work at the camp. Its programs include ABE, General Education Diploma, a prerelease program, substance-abuse treatment, Alcoholics Anonymous and group counseling. The camp has 11 prisoner work crews, two of which are logging crews that supply wood for other camps that utilize wood heat.

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www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser’s print function) Last Update: January 03, 2005 SAGINAW CORRECTIONAL FACILITY

Region 1 Saginaw County

Warden Jan Trombley TELEPHONE: (989) 695-9880 9625 Pierce Rd. OPENED: 1993 Freeland, MI 48623 AGE LIMIT: Males, all ages SECURITY LEVELS: I, II and IV Current jobs inFreeland

General The 43-acre facility in Tittabawassee Township, Saginaw County, was built on a 142-acre site and is comprised of 11 buildings totaling about 225,590 square feet. The facility includes three Level II buildings, two Level IV buildings, and one Level I building along with buildings for education, programs, administration, food service, health care and maintenance. Programming Academic programming includes special education, General Education Development completion, Adult Basic Education and vocational education, as well as life-role competency programs. Religious and library (law and general) services are provided by institution staff and community volunteers. Routine medical care is provided on site. Major emergencies are treated at a local hospital or at the Duane L. Waters Hospital in Jackson. Security The perimeter of the prison is enclosed by a double, 12-foot fence, topped with razor-ribbon wire. The wire is also installed in the open space between the fences to enhance the barrier. An electronic detection system has been placed on both the inner and outer fences. In 1996, a third fence, with its own electronic detection system, was erected. Security cameras, strategically placed within the prison and around the perimeter, allow 24-hour remote observation and videotaping of prisoner activities. Two gun towers were added in 1997. A perimeter vehicle with armed personnel is on patrol 24 hours a day.

http://www.michi~an.~ov/orjnterFrjend1v/ft1 6R77-1 1Q-1 ~5~1 1 ~ fin 1~*m1 1 (1/1 C1/~)1IriC STANDISH MAXIMUM CORRECTIONAL FACILITY Page 1 of 1

www.michigan.gov Release Date: November 29, 2001 (To Print: use your browser~s print function) Last Update: January 22, 2004

STANDISH MAXIMUM CORRECTIONAL FACILITY

Region 1 Arenac County Warden Thomas Birkett TELEPHONE: (989) 846-7000 4713 West M-61 Standish, MI 48658 OPENED: 1990 AGE LIMIT: Males, all ages Current jobs in Standish SECURITY LEVEL: V

General Standish Maximum Correctional Facility is comprised of six 88-bed housing units. Three units are for general population; two are for administrative segregation, including detention cells; and one is a protective custody unit. Other buildings on the grounds provide food service, health care, maintenance, programming, and administrative functions. Standish’s mission is to safely house difficult, hard to manage prisoners and work to transition them to lower custody level facilities. Programming Academic programs include Adult Basic Education, General Education Development (GED) completion and Special Education. In-cell study programs are available to prisoners who are not allowed to leave their cells for security reasons. Treatment services include counseling, substance abuse services, Assaultive Offenders psychotherapy and religious services. Many program resources are expanded through participation by community volunteers (local clergy and lay people), which allows more prisoners to participate in the programs. A unique program in place, Secure Status Out-patient Program (SSOP), successfully treats mentally ill prisoners in a general population setting with a goal of keeping them out of administrative segregation. Standish also has on-site legal and general libraries that are available to prisoners. Prisoners are provided with excellent on-site routine medical and dental care. Serious emergency cases are treated at the Standish Community Hospital and the Duane L. Waters Hospital in Jackson. Standish also provides out-patient mental health treatment with Department of Mental Health staff.

Security The level V perimeter is protected by 16-foot high double chain link fences topped with razor-ribbon wire, which are monitored with state-of-the-art electronic detection systems. There are five gun towers that overlook the interior of the facility and provide perimeter security. A patrol vehicle with armed personnel constantly patrols the prison perimeter.

//~IT11rXX1 y~r~ /i~,f~rPr~,,U~,Iñ 1 1~Q’7 ‘7 11 C) 1 2Q1 1 ~QQ ~‘)i~O flA 1 All Al’~AA~ Prison Litigation Reform Act 68 be treated as a reprogramming of funds under section 605 of this Act and shall not be available for obligation or expenditure except in compliance with the procedures set forth in that section. SEC. 616. NotwithstarzdinE section 106 of Public Law 104—91, the general provisions for the Department of Justice that were in cluded in the coi:ference report to accompany H.R 2076 ~:d were identified in the amendment to Public Law 104—91 made &v section 211 of Public Law 104—99 shall continue to remain in effect as en acted into law. SEC. 617. Upon enactment of this Act, the provisions of section 201(a) of Public Law 104—99 are superseded. TITLE VII—RESC’ISSIQNS DEPARTMENT OF JUSTICE

GENEp~ ADMINISTRATION

WORJ(JNG CAPI7’AL FUND

(RESCISSION) Of the unobilgated balances available under this heading, $6.5~,00O,000 are rescinded. DEPARTMENT OF STATE

ADMINISTRATION OF FOREIGN AFFAIRS ACQUISITION AND MAJIQTENANCE OF BUILDINGS ABROAD

(RESCISSION) Of the unobtigated balances available under this heading, $64,500,000 are rescinded. £~ELATED AGENCIES

UNTrED STATES JNFORMATION AGENCY

RADIO CONSTRUCTION

(RESCISSION) Of the urwbligated balances available under this heading, $7,400,000 are rescinded. TI~ 7111—PRISON LiTIGATION REFORM SEC. 801. SHORT TT~L& This title may be cited a-s the “Prison Litigation Reform Act of 1995”~ SEC. 802. APPROPRJATE REM~DfES FOR PRISON CONDITIONS. (a) IN GENEPJ.L.—Section 3626 of title 18, United States Code, is amended to read as follows: “~,~3626. Appropriate remedies with respect to prison condi tions

“(a) REQUIREMENTS’ FOR RELIEF. — 69

“(1) PRosp~c~i-pvE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective reLief unless the court finds that such relief is narrowly drawn, extends no further than nec essary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation nf the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief “(B) The court shall not order any prospective relief that i-c quires or permits a government official to exceed his or her au thority under State or local law or otherwise violates State or local law, unless— “(‘i) Federal law permits such relief to be ordered in violation of State or local law; “(ii) the relief is necessary to correct the violation of a Federal right; and “(iii) no other relief will correct the violation of the Fed eral right. “(‘C) Nothing in this section shall be construed to authorize the courts, in exercising their remedial powers, to order the con struction of prisons or the raising of taxes, or to repeal or de tract from otherwise applicable limitations on the remedial powers of the courts. “(2) PREuMIN~Y INJUNCTIVE RELIEF—In any cwd action with respect to prison conditions, to the extent otherwise author ized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief Preliminary in junctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires prelimi nary relief; and be the least intrusive mean-s necessary to correct that harm. The court shall give substantial weight to any ad verse impact on public sufety or the operation of a criminal jus tice system caused by the preliminary relief and shall rex c( the princzDles of comity set out in paragraph (1KB) in tailorzng any preliminary relief Preliminary injunctive relief shall auto matically expire on the date that is 90 days after its entry, un less the court makes the findings required under subsection (a)(l) for the entry of prospective relief and makes the order final before the expiration of the 90-day period. “(‘3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no prisoner release order shalt be entered unless— “(i) a court has previously entered an order for less . -. trusive relief that has failed to remedy the deprivation of the Federal rig/it sought to be remedied through the pris oner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only 70

by a three-judge court in accordance with section 2284 of title 28, if the requirements ofsubparagraph (E) hcwe been met. “(C) A party seeking a prisoner release order in Federal cow-t shall file with any request for such relief a request for a three-judge court and materials sufficient to demonstrate that the requiremenLc ofsubparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been me4 a Fedcral judge before whom a civil action with resnect to prison conditions is pending who believes that a prictrn release order should be considered may sua sponte request the conven ing of a three-judge court to determine whether a prisoner re lease order should be entered. ‘(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that— ‘Ti) crowding is the primary cause of the violation of a Fedcrr~l ‘ight; and no other relief will remedy the violation ~f the Fed eral right. “(F) Any ~te or local official or unit i.f government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of program facili ties, or the prosecution or custody of persons who niay be re leased from, or not admitted to, a prison as a result of a pris oner release order shall have standing to oppose the imposition or continuation in effect of such relief and. to seek termination of such relief and shall have the right to intervene in any pro ceeding relating to such relief ‘Tb) TEw.irNATzoN OF’ REIJEF.— ‘Ti) TERMINATION OF PROSPECTIVE RELIEF.—(A) In any civil action with respect to prison conditions in which prospec tive relief is ordered, such relief shall be terminable upon the motion of any party or intervener— ‘Ti) 2 years after the date the court granted or approved the prospective reliet “(‘ii) 1 year after the date the court hm~ entered an order denying termination of prospective relief under this para graph; or “(iii) in the case of an order issued on or before the date of enactment of the Prison Litigation Reform Act, 2 years after such date of enactment. ‘TB) Nothing in this section shall prevent the parties fro,n agreeing to terminate or ,nodify relief before the relief is termi nated under subparagraph (A). “(2) IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF.—!n any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that !.q~he relief is narrowly draw~’,~~7ends no further than necessary to correct the viola - tion of the Federal right, and’is the least intrucfve means nec essary to correct the violation of the Federal right. “(3) LIMrFATI0N.—Prospective relief shall not terminate if the court makes written findings based on the record that pro- 71

spective relief remains necessary to correct a current or ongoing violation of the Federal righ4 extends no further than necessary to correct the violation of the Federal righ4 and that the pro spective relief is narrowly drawn and the least intrusive means to correct the violation. “(4) TERMINATION OR MODiFICATION OF RELIEF.—Nothing in this section shall prevent any party or intervener from seek ing modification or termination before the relief is termL ~ under paragraph (1) or (2), to the extent that modification or termination would otherwise be legally permissible.

“(c) SE~rrLEMEi’rrs. — “(1) CONsENT DECREES.—In any civil action with respect to prison conditions, the court shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in subsection (a). “(2) PRIvATE SETTLEMENT AGREEMENTS. —t’~ ~hing in this section shall preclude parties from entering into a ~rivate settlement agreement that does not comply with the limitations on relief set forth in subsection (a), f the terms of thai ~gree ment are not subject to court enforcement other thcu-z the rein statement of the civil proceeding that the agreement settled. “(B) Nothing in this section shall preclude any party claim ing that a private settlement agreement has been breached from seeking in State court any remedy available under State law. “(d) STATE LAW REMETh’ES.—The limitations on. remedies in this section shall not apply to relief entered by a State court based solely upon claims arising under State law. “(a) PROCEDURE FOR MOTIONS AFFECTING PROSPECTIVE RE LIEF.— “(I) GENE~u..y—The court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions. “(2) Auro~irzc STAY.—Any prospective relief subject to a pending motion shall be automatically ~yed during the pe riod— “(~A)ü) beginning on the 30th day after such motio.~ £S filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); or “(ii) beginning on the 180th day after such motion is filed, in the case of a motion made under any other law; and “(B) ending on the date the court enters a final order ruling on the motion. “(f) SPECIAL MASTERS.— “(1) IN GENERAL.—{’A) In any civil action in a Federal court with respect to prison conditions, the court may appoint a spe cial master who shall be disinterested and objective and who will give due regard to the public safety, to conduct hearings on the record and prepare proposed findings of fact. “(B) The court shall appoint a special master under this subsection during the remedial phase of the action only upon a finding that the remedial phase will be sufficiently complex to warrant the appointment. 72

“(2) A pomMEN~—.~’A) If the court determines that the av pointment of a special master i-s necessary, the court shall request that the defendant institution and the plaintiff each sub mit a list of not more than 5 persons to serve as a special mas ter. “(‘B) Each party shall have the opportunity to remove up to 3 persons from the opposing party’s lisL ‘IC) The court shall select the master from the persons re ~-maining on the list afler the operation ofsubpai-agraph (B). “(‘3) INTERLOCUTORY APPEAL—Any party shall have the right to an inI~erlocutoiy appeal of the judge’~s selection of the special master under this subsection, on the ground of partial ity. “(4) COMPF.r.IsATION—The compensation to be allowed to a special master under this section shall be based on an hourly rate not greater th-tn the hourly rate estQ~lis/ze~. .~,der section 3006A for payment of court-appointed counse4 plus c.~its rea sonably incurred by the special master. Such compensation and costs shall be paid with furzds appropriated to the Judiciary. “(‘5) REGULAR REVIEW OF APPOINTMEI’IT.—In any civil ac tion with respect to prison conditions in which a special master is appointed under this subsection, the court shall review the appointment of the special master every 6 months to determine whether the services of the special master continue to be re quired under parc~rczph (1). In no event shall the appointment of a special master extend beyond the termination of the relief “(6) LIMrrATI0Ns ON POWERS AND DUTIES.—A special mas ter appointed under this subsection— “(A) may be authorized by a court to conduct hearings and prepare proposed findings of fact, which shall be made on the record,- “(‘B) shall not make any findings or communications ex parte; “(C) may be authorized by a cout to assist in the druel opment of remedial plans; and “(D) may be removed at any time, but shall be relieved of the appointment upon the termination of relief “(g) DEFINITIONS.—As used in this section— “(1) the term ‘consent decree’ means any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settle ments; “(‘2) the term ‘civil action with respect to prison conditions’ means any ciuii proceeding arising under Fede: ~ law with re spect to the conditions of confinement or the effects of actions by government official-s on the lives of persons confined in pris on, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prisorz~ “(3) the term ‘~prisoner’ means any person subject to incar ceration, detention, or admission to any facility who is accused of convicted of sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program; 73 “(4) the term ‘prisoner release order’ includes any order, in ciuthng a temporary restraining order or preliminary injunctive rdlief that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or rw,zadmis sion ofprisoners to a prisorç ~T5) the term ‘prison’ means any Federal, State, or local [a cthty that incarcerates or detains juveniles or adults accused o~t convicted oj’ sentenced for, or adjudicated delinquent for, viola tions of criminal law; Y6) the term ‘private settlement agreement’ means an agree ment entered into among the parties that is not subject tojudi cia.! enforcement other than the reinstatement of the civil pro ceeding that the agreement settled, “(7) the term ‘prospective relief’ means all relief other than compensatory monetary damages; “(8) the term ~special master’ means any person appointed by a Federal cow~t pursuant to Rule 53 of the Federal Rules of Civil Procedure or pursuant to any inherent power of the court to exercise the powers of a master, regardless of the titi~ ‘~r de scription given by the courr; and ‘(9) the term ‘relief means all relief in any form that may be granted or approved by the court, and includes consent de crees but does not include private settlement agreements. ‘.

(1,) APPLICATION OF AMENDMENT. — (1) IN GENERAL_-Section 3626 of title l8~ United States Code, as amended by this section, shoJi apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title. (2) TECHNICAj. AMENDME?’fl’.—Szthsectjons (b) and (d) of section 20409 of the Violent Crime Control and Law Enforce-. ment Act of 1994 are repealed. (c) Cu~pJcAz. AMEND?~fEN7’.—The table of sections at the begin ning of subchapter C of chapter 229 of title 18, United States Code, is amended to read as follows: 3626. Appropriate remedies with respect to prisot~ co,zditions. SEC. 803. AMENDMENTS TO CIVIL RIGHTS OF INSTIT[JTfQN,4jjy~jj PERSONS ACT. (a) INITIATION OF CIVIL AcTION&—,S’ection 3(c) of the Civil Rights of Institutionalized Persons Act (42 U.S.C. L997a(c)) (re ferred to in this section as the “Act’9 is amended to read as. follows: “(c) The Attorney General shall personally sign any complaint filed pursuant to this section. “. (f~) CERTIFICATION REQUJREMENTS.—ection 4 of the Act (42 U.S.C. 1997b) is amended— (1) in subsection (a)— (A) by striking “he” each place it appears and inserting “the Attorney General”; and (B) by striking “his” and inserting “the Attorney Gen eral’s”; and (2) by amending subsection (b) to read as folLows: “(b) The Attorney General shall personally sign any certification made pursuant to this section.”. 74 (c) Ii’rrERvEjy-rroN IN ACTIONs .Section 5 of the Act (42 US.C. 7997c) is amended— (1) in szthsectjon (b)— (A) in paragraph (1), by striking “he” each place it ap pears and iizserting “the Attorney Generai’~ and (B) by amending paragraph (2) to read as follows: “(2) The Attorney General thai1 personally sign any certification made pursuant to this section. “; and (2) by amending subsection (c) to read as follows: 7c)~ The Attorney General shlpersonn~~y sign any motion to intervçze made pursuant to this section.”. (d) Sun’s BY ~ 7 of the Act (42 U.S. C. 1997e) is amended to read as follows: SEC. 7. ~ “(a) APPLJc.4~jz.J’~-y OF ADMIrnS7’RATIVE REMErnFs~No action shall be brought with respect to prison condition3 under section 1979 of the Revjsec’ Statutes of the United States (42 U.S. C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administratiL,.. .-‘~medies as are available are exhausted “(b) FMwRE OF STATE To ADOPT OR ADHERE TO ADMINISTRA TWE GpjEv~rcE PRocEDURE. —The failure of a State to adopt o,. adhere to an admirListratj~ grievance procedure shall not constitute the basisfor an action under section 3 or 5of this Act. “(c) DfsMISS~~f) The court shall on its own motion or on the motion of a party dismiss any action brought with respect to priso~~z conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jczi4 prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be grantec4 or seeks monetary relief from a defendant who is immune from such relief “(2) In the event that a claim is, on its face, frivolous, mali cious, fails to state a claim upon which relief can be ~ranted~ or seeks monetary relief from a defendant who is immune from such relief the court may dismiss the underlying claim without first re quiring the exizazistioa of administrative remedies. “(d) Ai~roiiJqEy3 FEES.—(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 2 of the Revised Statutes of the United States (42 U.S.C. 1988), such fees shall not be awarded, except to the extent that— “(A) the fee was directly and reasonably incurred in prov ing an actual violation of the plaintiffs rights protected by a statute pursuant to which a fee may be awarde~4 ~rnder eection 2 of the Revised S.’atutes; and “(B)(i) the amount of the fee is proportionately related to the court ordered relieffor the violation; or “(ii) the fee was directly and reasonably incurred in enforc ing the relief ordered for the violation. “(2) Whenever a monetary judgment is awarded in an action de scribecz! in paragraph. (1), a portion of the judgment (not to exceed 25 percent) shalt be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not 75 greater than 150 percent of the judgment, the excess shall be paid by the defendant. ~T3) No award of attorney’s fees in an action described in para graph (1) shaWb~ based on an hourly rate greater than 150 percent of the hourly rate established under section 30064 of title 18~, United States Code, for pay7~zent of court-appointed counseL T4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney’s fee in an amount greater than the amount authorized under this subsection, i1 me fee is paid by the individual rather than by the defendant pursuant to section 2 of the Revised Statutes of the United States (42 U.S. C. 1988). STe) LIMTTATION o~v RECOVERY.—No Federal civil action may be brought by a prisoner confined in a jai1~, prison, or other correctional facility, for mental or errwtionryj injury suffered while in custody a prior showing ofphysical injury. ‘1j9 HEAr~ivGS.-_(J) To the extent practicable, in any action brought with respect to prison condition.s in Federal court pursuant to section 1979 of the Revised Statutes of the United ~. ztes (42 ~LS.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility, pretrial proceedings in which the prisoner’s participation is required or permitted shall be conducted by telephone, video conference, or other telecommuni cations technology without removing the prisoner from the facility in which the prisoner is confined. ‘~(2) Subject to the agreement of the official of the Federal, State, or local unit ofgovernment with custody over the prisoner; hearings may be conducted at the facility in which the prisoner is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference, or other communications technology in any hearing held at the facility. ‘Yg) WAiVER OF REPLY._(J) Any defendant may waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1979 of the Re vised Statutes of the Un i’~d States (42 U.S” 1983) or any other Federal law. Notwithstanding any other law or rule of procuure, such waiver shalt not constitute an admission of the allegations con tained in the complaint. No relief shalt be granted to the plaintiff unless a reply has been filed. “(‘2) The court may require any defendant to reply to a com plaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail an the merits. “rh) DEFINJTIQN.—As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is ac cused of; convicted of; sentenced for, or adjudicated delinquent 1~r, violations of criminal law or the terms and conditions of parole probation, pretrial release, or diversionary program.”. (e) REPOi~ TO CONGp~sS—Sectjon 8 of the Act (42 U.S.C. 1997/) is amended by striking “his report” and inserting “the re port”. ~ NOTICE TO FEnE~&t DEPAJ?TMENTS_Section 10 of the Act (42 U.S.c. 1997k) is amended— (1) by striking “his action” and inserting “the action”; and 76 (2) by striking “he is satisfied” and inserting “the Attorney General is satisfled~ SEC. 804. PR CEErn2y(~ IN FORMA. PAUPERJ& (a) FIf~.&vG FEES.—,Sethjj~ 1915 of title 28, United States Code, is amended— (1) iii subsection (a)— (A) by striking “(a) Any” and inserting “(a)(1) Subject to subs€ctj0~ (b), any”,

~, (B) by striking and costs’~ (C) by striking ‘makes affidavit” and inserting sub iviEs an affidavit that includes a statement of all assets such prisoner possesses” (1)) by striking “such costs” and inserting “such fees”, (E) by striking ~‘he” each place it appears and inserting ‘the person”, (1~) by adding immediately after paragraph (1), the fo&~ving izew paragraph. “(‘2) A prisoner seehing to bring a civil action or appeal a judg ment in a civil action or prc’—”~eding without prepayment of fees or security therejbr in addition to filing the affidavit filed under para graph (1), shall submit a certified copy of the trust fiend account statement (or institutiwwj equivalent) for the prisoner for the 6- month period immediatedy preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each pris on at which the prisoner is or was confined. “~ and (G) by striking “An appeal” and inserting “(3) An ap peal”, (2) by redesignating subsections (b), (c), (d), and (e) as su&. sections (c), (d), (e), and (,9, respectively; (3) by inserting after subsection (a) the following new sub section,~ “(Z)(1) Notwithstanding subsection (a), if a prisoner bi tags a civil action or files an appeal in forina paupers, the prisoner shall be required to pay the full amount of a filing fee, The court shalt assess and, when funds ~zist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of— “(A) the average monthly deposits to the prisoner’s account; or “(‘B) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. “(2) After payment of the initial partial filing fee, the prisoner shall be requiro~ “ make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s accoz~::t The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. “(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or crirrzinnj judgment “(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason PT

that the prisoner has ~ assets and no means by which to pay the initial partial [ding fee.”; (4) in subsection (c), as redesignated by paragraph (2), by striking “subsection (a) of this section” and inserting “sub sections (a) and (b) and the prepayment of any partial filing fee as may be required unaer subsection (bY; and (5) by amending subsection (e)~ as redesignated by para graph (2), to read as follows: “(eX?) The court may request an attorney to represent any per son unable to afford counseL (2) iVotwithstanding any filing fee, or any portion thereoj” that may have been paid, the court shall dismiss the case at any time if the court determines that— “(A) the allegation ofpoverty is untrue; or “(B) the action or appeal— “(‘1) is frivolous or malicious; “(ii) fails to state a claim on which relief may be grant ed~ or “(iii) seeks monetary relief against a defendant who immune from such relief”. (b) ExcEp-rioN TO DISCHAJZGE op D~s-r IN BANIQ?uprcy PRO CEEDING.—Section 523(a) of title 11, United States Code, is amend ed— (1) in paragraph (16), by striking the period at the end and inserting “; or”; and (2) by adding at the end the following new paragraph: “(17) for a fee imposed by a court for the filing of a case, motion, complaint, or appeal, or for other costs and expenses as sessed with respect to such filing, regardless of an assertion of poverty by the debtor wider section 1915 (b) or (f) of title 28, or the debtors status as a prisoner, as defined in section 19 !5(h) of title 28. ‘~ (c) COSTS.—Section 1915(f) of title 28, United States Code (as redesignated by subsection (a)(2)), is amended— (1) by striking “f) Judgment” nserting “(/2(l) Judg ment”; (2) by striking “cases” and inserting “proceedings “ and (3) by adding at the end the following new paragraph: “(2)(A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered. “(B) The prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection (~a)(2). “(C) In no event shall the costs collected exceed the amount of the costs ordered by the court. “. (d) SuccEss!lIE ~ 1915 of title 28, Unite.~ States Code, is amne,zded by adding at the end the following new subsection: “(g) In no event shcdl a prisoner bring civil action or ~ppeal a judgment in a civil action or proceeding under this section)if the prisoner has, on 3 or more prior occasions, while incarcerated or de tained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 78 malicious, or fizils to state a claim upon which relief may be grant ed, unless the prisoner is under imm~nent danger of serious physical injw-J. ‘~. (e) DEFZNrrI0N.—&ctjon 1915 of title 28~ United States Code, is amended by adding at the end the following new subsection: “(h) As used in this section, the term ‘prisoner’ means any per son incarcerated or detained in any f~zdility who is accused ot con victed of sentenced /~r, or a4judicated deünquent for, violati~n3 of criminal, law or the terms and conditions of parole, probation, pre trial release, or diversionary program, “.

SEC. ~. ~JUDfCfAL SRE&V1NG (a) IN GFWER~—Chapter 123 of title 28, United States Code, is amended by inserting after section 1915 the following new sec tion: “~1915A~ Screening “(a) Sc r1.c_The court shall review, before docketing, if feasible o’~, in any e~,ent, as soon as practicable after docketing, a complaint in a civi .~‘t~on in which a prisoner seeks rea,-ess from a governmental ent~~ or offlc..; or employee of ‘ governmental en tity. (b) GRouNDs FOR DISMISSAI..—On review, the court shall iden tify cognizable claims or dismiss the complaint, or any portion of the corzzplaint, if the complaint— ‘Ti) is frivolous, malicious, or fails to state a claim upon which relief may be granted,~ or “(2) seeks monetary relief from a defendant who is immune from such relief “(c) DEFINrn0N.—As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is ac cused of convicted of sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionaiy program. “~ (b) TECHNIcAL AMENDMEN~F.—The analysis for chapter 123 of title 28, United States Code, is amended by inserting after the item relating to section 1915 the /ollowing new item: 1915A; Screening. SEC. 806. FEDERAL TORT CLAIMS. Section 1346(b, of title 28, United States Code, is amended— (1) by striking “(b)” and inserting “(b)(1)” and (2) by adding at the end the following: “(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered white in custody without a prior showing of physical injury. “. SEC. 807. PA YMENT OF DAMAGE AWARD IN SATISFACTION OF PENDING RESTFTUTION ORDERS. Any compensatory damages awarded to a prisoner in connec tion with a civil action brought against any Federal, •~tat~, or local jail, priton, or correctional facility or against any official or agent of such jail, prison, or correctional facility, shall be paid directly to satisfy any outstanding restitution orders pending against the pris 79

oner. The remainder of any such award after full payment of all pending restitzdion orders shaLl be forwarded to the prisoner. ssc.. ~& NOTICE TO CRIME VICTIMS OF PFJ~DING DAMAGE AWARD. Prior to payment of any compensatoiy damages awarded to a prisoner in connection with a civil action brought against any Fed era4 State, or local jail, prison, or cc’rrectiorw.l facility or against any official or agent of suciz jail, prison, or correctional fi~cu~y, rea ~c~abl~e efforts thai.’ be made to rwtifj the victims of the crime for which the prisoner was convicted and incarcerated concerning the pending payment of any such compensatory damages. SEC. 8’~ EARNED RELEASE CREDiT OR GOOD TIME CREDIT REVOCA TION.. (a) IN G&vEEAI—Chapi’er 123 of title 28, United States Code, is amended by adding at the end the following new section. “~1.932. Revocation ofearned release credit 7n any civil action brought by an adult convicted of a crime and confined in a Federal correctional facility, the court may orc’r the revocation of such earned good time credit under section 3624(b) of title 18~ United States Code, that has not yet vested, i/ on its own nwtion or the motion of any party, the court finds that— “(1) the claim was filed for a malicious purpose; “(2) the claim was filed solely to harass the party against which it was flled, or “(3) the claimant testifies falsely or otherwise knowingly presents false evidence or information to the court.”. (b) TEcHNIc~ AMENDMENT.—The analysis for chapter 123 of title 28, United States Code, is amended by inserting after the item relating to section 1931 the following: 1932. &coc,ith~z of earned rete~ise credit. (c) AMENDMENT OF SECTIoN 3624 OF TITLE 18.—Section 3 624(b) of title 18, United States Code, is amended— (1) in paragraph. (1)— (A) by striking the first sentence; (B) in the second sentence— (i) by striking “A prisoner” and inserting “Subject to paragraph (2), a prisoner”; (ii) by striking “for a crime of violence,”; and (iii) by striking “such”; (C) in the third sentence, by striking “If the Bureau” and inserting “Subject to paragraph (2), if the Bureau”; (D) by striking the fourth sentence and inserting the following: “In awarding credit under this section, the Bu reau shall consider whether the prisoner, during the rel evant period, has earned, or is making satisfactory prog”ss toward earning, a high school diploma or an equivalent de gree.”; and (‘E) in the sixth sentence, by striking “Credit for the last” and inserting “Subject to paragraph (2), credit for the last”; and (2) by amending paragraph (2) to read as follows: “(2) Notwithstanding any other law, credit awarded under this subsection after the date of enactment .f the Prison Litiga 80 tion Reform Act shall vest on the date the pri-soner is released from custody. “. SEC. 810. SF21ERAB(Ly~f If any provision of this title, an amendment made by this title, or the application of such provision or amendment to any person or circumstance is held to be uncoizstjtutjon~i the remainth’r of thL5 title, the amendmey~ made by this title, and the applicatio;; .~ the provisions of such to any person or circumstance shall nat be af. fect:d Thereby. 27zis Act may be cited as the ~‘Departmerz.ts of Commerce, Jus tice, and State, the Judiciary, and Related Agencies Approprjatio~ Act, 1996. ‘ (b) For prograrrz3, projects or activities in the District of Colum bia Appropriations Act, l996~ provided as follows, to be effective as if it had been enacted into law as the regular a,r2rooriations Act:

AN ACT Making appropriatio~ for the government of the District of Co lumbia and other activities chargeable in whole or in part against the revenues of sald District for the fiscal year ending September 30, 1996, and for other purposes. TITLE I—FISCAL YEAR 1996 APPROPRIATIONS

FEDEp~± PAyM~q-r TO THE D!STpJC7’ OF COLUMBIA For payment to the District of Columbia for the fiscal year end ing September 30, 1996 $660,000,Ooo, as authorized by section 5O2(a) of the District of Columbia Self-Government and Govern mental Reorganization Act, Public Law 93—198, as amended (D. C. Code, sec. 47-3406.1).

FEDEp~~ Co~rrpJmurION ro RE~J~JREMENT FUNDS For the Federal contribution to the p~I:,, Officers and Fire Fighters’, Teachers~ and Judges’ Retirement Funds, as authorized by the District of Columbia Retirement Reform .4ct, a,Oproved iVo vember 17~ 1979 (~93 Stat. 866; Public Law 96—122), $52,070,000.

DIVISION OF EXPENSES The following amounts are appropriated for the District of Co lu,nbia for the current fiscal year out of the general f.tnd oft/ic Dis trict of Columbia, except as otherwise specifically provided.

GOvERNMEN-~lL DIREC-J’JOW AND Suppo,~1 Governmental direction and support, $149, 130,000 and 1,498 full-time equivalent positions (end of year) (including $117~464,QQQ and 1, 158 full-time equivalent positions from local f.znds, $2,464,000 and 5 futl-t~me equivalent positions from Federal f.mncls, $4,474,000 and 71 fitlI-time equivalent positions from other funds, and $24,728,000 and 264 full-time equivalent positions from intra District funds): Provided, That not to exceed $2,500 for the ?vfayor, $2,500 for the Chairman of the Council of the District of Columbia, and $2,500 for the City Administrator shall be available from this EXHIBIT 9 “Establishing a Relation e with Your Client”

Daniel Manville Clinical Staff Attorney Wayne State University Law School ESTABLISHING A RELATIONSHIP WITH YOUR CLIENT By Dan Manville

Introductory Letter Even Before Total File Review -Who you are. -Be clear to the client that this is the only case that you can handle for him/her and that you cannot can advise as to criminal matters. -Ask for a detailed written statement as to who, what, when, where and why as to each claim contained in the pro se complaint. -What other documents they may have not yet filed with the court. -What other witnesses. -Possible other defendants. -If injuries needing medical care, advising them to keep seeking medical care even if denied so a record can be established. -Have client list your telephone number on PIN and let the client know that if you need to talk to him/her that you will advise the client either by letter or calling the prison. -Send retainer agreement (see attached).

-Enclose MDOC ‘ s medical release and release of information forms for signature and return (see attached). Advise every client to inform the prison mailroom to treat mail from you as legal mail. -Advise client to inform you when s/he is moved to another prison.

II Second Letter, after Review of File -Detailed questions based upon the review of the pleadings filed and the information you obtained back from the first letter. -Depending on the issue(s) in the case, have the client draw a diagram of where the events occurred, along with a detailed description of that area.

ifi Writing back to Client -You may get a number of letters from the client. -If you can’t answer questions from client within 1-2 weeks due to your schedule, send a short letter stating that.

IV Telephone Call with Client -If your client is a good distance away and you need to talk to that ~:lient and a visit is not feasible, call the prison and ask to talk to the warden’s secretary. Tell the secretary that you have been appointed to a case where inmate Dan Manville, 135706, is your client. You need to talk to him and you are wondering whether a telephone call can be arranged so that the inmate Manville can call you at 10:00 am on a particular day. You will seldom get an agreement to have the call done the same day you are calling but you might get an agreement to have the call done the next

1 day. Make sure that your client already has your telephone number on his PIN (see I, above).

V Discovery Requests -Send copy of all discovery requests and ask them for comments or suggestions. -Unless discovery responses are voluminous or subject to protective order, I send these to my client and ask them for comments or lead to other discovery.

VI Motions -Send a copy of any motions or responses filed and ask for comments or suggestions.

VII Orders

-Send a copy of all orders - scheduling order, etc.

Vifi Depositions -Depending on ability of client I do ask for suggestions as to questions to ask the defendants. -Ask client for suggestions as to possible people to depose and why each person. -Advise client s/he cannot attend the deposition of the defendants even if done at the prison where the client is confined. -Send a copy of deposition to client once received.

IX Meeting with Client -Need to call prison and arrange for date and time. -I do contact visitation even at higher level prisons. Level V prisons has wire mesh and area to slide papers back and forth.

X Settlement -Explain that MDOC can seek up to 90% ofjudgment or the actual costs of room and board from any settlement or judgment. -I also explain that MDOC may agree not to seek reimbursement if settlement is reasonable

XI Trial -Send client Joint Final Pretrial Order when entered. -Proposed Jury Instructions -Proposed Verdict Form

XII Attorney Grievance Commission -If you do all of the above, it is unlikely that one will be filed.

Xffl Malpractice Lawsuit -If you do all of the above, it is unlikely that one will be filed.

2 RETAINER AND FEE AGREEMENT

I. INTRODUCTION

(“the Client”), by signing this agreement, retains Daniel E. Manville, Staff Attorney and Adjunct Professor of the Wayne State University Law School Civil Rights Litigation Clinic (the “Attorney”) to advise and represent the client in the client’s case (“the case”) against ,and any other persons who may be liable for the clients injuries (“the defendants”) alleged in the pending lawsuit in which counsel has been appointed. By signing this agreement the Client and the Attorney agree to enter into an Attorney-Client relationship and to be bound by the following terms:

II. THE ATTORNEY’S DUTIES

The Attorney is obligated to advise and represent the Client in the case. The obligation extends only through the entry of judgment by the U.S. District Court for the Eastern District of Michigan or settlement by the parties. After entry of judgment or settlement, it shall not be necessary for the Attorney to perform any further services for the Client in the absence of a new retainer agreement. If, in the absence of a new retainer agreement, the Attorney provides further services, with the Clientts express or implied consent, the terms of this agreement will continue in effect.

The Attorney agrees to keep the Client advised of all significant steps in the case and to seek the Client’s advice and consent on all major decisions regarding the case, including any settlement offers.

III. THE CLIENT’S DUTIES

The Client agrees to provide all information and papers requested by the Attorney and to cooperate fully in any proceedings in connection the case, including but not limited to attending scheduled meetings or hearings, answering interrogatories, appearing for depositions, and participating cooperatively injudicial or other proceedings as may arise time to time in the case. The Client agrees not to communicate with the court or administrative tribunal, or with other parties to the case, without the Attorney’s consent. The Client also agrees not to misrepresent or conceal any facts when communicating with the Attorney.

The Client understands that if the defendants prevail in the case the defendants may recover certain costs from the Client. If the defendants also demonstrate that the action was frivolous, unreasonable, groundless or litigated in bad faith merely to harass or oppress the defendants, defendants may also recover their Attorney’s fees from the Client. The Attorney and the Client hereby agree that in their best judgment the case is meritorious; it is not frivolous, unreasonable, groundless, nor is it the purpose of the Client or the Attorney to vex, harass, or oppress the defendants. In the event that any fees, costs or expenses are assessed against the Client, the Client

3 agrees that he is legally responsible for the payment of those fees, costs or expenses.

IV. TERMINATION OF REPRESENTATION

A. The Attorney’s Right to Withdraw

The Attorney may withdraw from representing the Client if:

1. The Client violates any of the duties in Section ifi (the previous section); 2. The Client indicates an intention to give false testimony, or is found to have misrepresented or concealed facts that affect the value of the case; 3. The Client directs the Attorney to file any paper, or insists on advancing any claim or defense which the Attorney reasonably believe might subject him to sanctions; 4. The Client makes a fiscally unreasonable decision as to settlement of the case; 5. The Client fails to honor the financial obligations set forth in this agreement; or 6 The Attorney is required or authorized by law to withdraw from the Client’s case.

If the Attorney withdraws for any of these reasons, they will give the Client reasonable advance notice in writing of their intentions.

B. The Client’s Right to Discharge the Attorney

The Client may discharge the Attorney, or direct the Attorney to discontinue the case, at any time. However, the attorney cannot withdraw from the case without an order from the court. If the Attorney has appeared as counsel of record for the Client in any court, the attorney will promptly move for an order in accordance with the Client’s decision.

C. Payments Required Upon Termination

If the Attorney withdraws or the Client discharges the Attorney, the Attorney will have a lien against any un-reimbursed out-of-pocket expenses and for hours already spent on the case. Unless additional lawyers have represented the Client, in which case the Client will pay the Attorney a pro rata share of all Attorneys’ fees paid out at the successful termination of the case (such that the Attorney will receive an equal percentage of the product of the Attorney’s actual hours and current regular hourly bill rate).

V. EXPENSES TO BE INCURRED

The Attorney will have complete discretion to incur litigation and other out-of-pocket expenses in the prosecution of the case, and will ordinary advance these sums on the Client’s behalf. These expenses include (but are not limited to) such items as the fees paid to courts, court reporters, lay and expert witnesses, investigators and process servers; the Attorney’s travel expenses, long distance telephone and facsimile transmission, and photocopying charges; courier or messenger

4 service, and computer database access charges; and the cost of special exhibits and supplies purchased for the case.

VI. PAYMENTS REQUIRED WHEN THE CASE IS FINISHED

A. The Client understands that the Client could retain the Attorney to represent the Client by compensating the Attorney on a monthly basis at the Attorney’s regular hourly rates. The Client expressly declines to do so, believing that such terms are beyond his means, and chooses the terms of this contingent fee agreement instead. Under this agreement, the Client and the Attorney agree to a contingent fee arrangement in this case, which means that the Attorney will obtain fees only upon a successful settlement or judgment in this case.

B. Any settlement offer of a fixed sum which includes a division proposed by the offering defendant or defendants between damages and Attorney’s fees shall be treated by the Client and the Attorney as the offer of a single sum of money, and the division of the offer by the offeror into damages and Attorney’s fees shall be completely disregarded by the Client and the Attorney. If such an offer is accepted, it shall be treated as the recovery of a single sum of money to be apportioned between the Client and the Attorney according to this agreement.

C. The Client agrees that regarding any negotiation to settle this lawsuit the issue of relief for the Client will be negotiated separately and independently of the issue of Attorney/s fees and costs.

In the event that the Attorney recovers for the Client a sum of money for damages, by settlement or judgment, the Attorney’s fees for their services shall be paid immediately out of this sum, even if a separate recovery of Attorney’s fees is contemplated, and shall be the greater of “a reasonable hourly fee in a contingent case” or “a standard personal-injury contingent fee,” as those terms are defined in this section, plus any litigation costs advanced by the Attorney; provided, however, that where a separate recovery of Attorney’s fees is contemplated at the time a recovery of the sum of money is secured, the Client’s payment of Attorney’s fees and expenses out of the recovered sum will not exceed one-half of the damage recovery.

For purposes of this paragraph of the agreement only, a “reasonable hourly fee in a contingent case” shall be defined as the Attorneys’ fees computed at his regular hourly rates of $ per hour for ______. The Client understands that this hourly fee is set only for purposes of this paragraph of the fee agreement, and the Attorney intends to seek equal or higher rates from the defendants in the event that a court-ordered fee is sought or obtained.

A “standard personal-injury contingent fee” shall be defined as one-third of the recovery if the case is concluded before any appeal is taken, and 40% of any recovery after an appeal is taken by any party. Where a separate recovery of Attorney’s fees or costs or both is secured after an initial recovery of damages for the Client, “the recovery” for purposes of the computation of a standard personal-injury contingent fee shall exclude such later recovery of fees or costs or both.

5 B. If, after recovery of damages, the Attorney secures a separate recovery of Attorney’s fees from defendants on behalf of Client, any portion of this separate recovery shall be refunded to the Client only to the extent that this separate recovery exceeds the amount of fees previously deducted from any sum of money awarded to Client, less any litigation expenses and costs advanced by the Attorney not yet recovered from the defendants.

E. Any litigation expenses or costs recovered from defendants in the case will first be applied to litigation expenses and Attorney’s fees owed by the Client to the Attorney and then any remaining recovered expenses or costs will be paid to the Client.

VII. ASSIGNMENT AND LIEN

The Client hereby assigns to the Attorney all rights and interests the Client may have in any claims against the defendants for costs, expenses and Attorney’s fees based on the Attorney’s work.

The Client hereby gives the Attorney a continuing lien on the Client’s claim and the proceeds thereof for the amount of the Attorney’s fees, out of-pocket expenses, and costs for which the Client is obligated under this agreement. This Attorney’s lien is given by the Client pursuant to Michigan law.

VIII. CONFIDENTIALITY

The Client understands that the Attorney may consult with other attorneys, experts in other fields, investigators and others concerning the case. The Client authorizes the Attorney to consult with such persons and to divulge to them such privileged information as is necessary for them to assist the Attorney in connection with the case.

IX. SETTLEMENT OF THE CASE

The Attorney will not settle the action on the Client’s behalf without the Client’s prior authorization. If the Client settles the case, even after the termination of representation, the Client will inform the Attorney at the earliest possible moment. The Client, by law, has the right to make all decisions regarding the settlement of the case. In exchange for the Attorney’s promises in this agreement, the Client hereby gives up a portion of that right and agrees not to accept any settlement which does not include a monetary component sufficient to insure receipt by the Attorney of a reasonable hourly fee in a contingent case as defined in Paragraph VI above, unless the Attorney consent to the settlement or the Client makes reasonable alternative arrangements for the payment of the Attorneys’ fees and expenses.

X RETENTION OF PLEADING FILES

The Client is informed that he has Ninety (90) days from the entry of the final judgment in this litigation to request that his pleading files be sent to him. If no request is submitted within these

6 MICHIGAN DEPARTh’IENT OF CORRECTIONS - Bureau of Health Care PATIENT’S AUTH 4835-7121 10/89 ORIZATION FOR DISCLOSURE OF HEALTH RECORDS CHJ-121

(NUMBERj~—(DATE OF BIRTH) Name and address of person(s) or Name and address of person(s) or organization(s) by whom disclosure organization(s) to whom information is to be made. is to be given. RELEASED RELEASED FROM: ______

SPECIFIC INFORMATION TO BE DISCLOSED (Include dates of treatment):

PURPOSE AND NEED FOR SUCH DISCLOSURE:

I understand that my records (including alcohol, drug abuse, mental status and serious infectious and corn mini- cable diseases includmg venereal diseases, tuberculosis, HIV, Afl)S and ARC) are protected under the State and Federal Confidentiality Regulations and cannot be disclosed without my written consent unless otherwi~ provided for in the regulations.

I understand that I may revoke this authorization at any time and that this authorization pertains to fulfillment of the above stated purpose(s) and will automatically expire after six months from date of signature.

I have read the above, and acknowledge that I am familiar with and fully understand the terms and conditions of

- this authorization.

IDO HEREBY CONSENT TO THE DTSCLOSUpJg OF THE ABOVE DESCRH3ED INFORMA-rTON CONTAINED IN MY HEALTH RECORD.

DATE •.~..• ~.•.• PATIENrs SIGNATU~

~~SEDBY~

Prohibition of iedisclosure: This mformation has been disclosed to you from records whose confidentiality..~ .~.is protected by Federal and State Law. Federal regulations (42 CF Part 2) prohibit you from making any further disclosure of this information except with the specific written consent of the person to whom it pertains. A general authorization for the release of medical or other information if held by another party is not sufficent for this purpose. Drug abuse office and treatment act of 1972 (21 USC 1175) comprehensive alcohol abuse alcoholism prevention, treatment and rehabilitation act of 1970 (42 USC 4582) , federal register, Vol.40 No. 127, Tuesday, July 1, 1975.

Requested by: Physician (Please Pnnt) _____ -.

MICHIGAN DEPARTMENT OF CORRECTIONS ‘FORMATION RELEASE AUTHORIZATION AUTHOR TV: MCL 791.206 ~O—269 COMPLET~’~ VolUntarY PENALTY: None ~ITUTIONORAGEN~Y I hereby authorize:

to release the below mentioned information from my files or records to:

~ONS OR AGE~Y INFORMATl0N 15 T0 BE RELE~D T0

~lFlC TYPE OF INFORMATI0N TO BE REL SED

APPROVING SIGNATURE DPJE IIDENTIFYING TITLE OR NUMBER

WITNESS SIGNATURE [DATE IDENTIFYING TITLE

DATE IDENTIFYING TITLE EXHIBIT 10 Panel Discussion:

“Living Proof That Prison Cases Are Fun”

Panelists

Thomas W. Cranmer, President, State Bar of Michigan Matthew F. Leitman, Miller Canfield John S. LeRoy, Brooks & Kushman Matthew M. Jakubowski, Brooks & Kushman Stephen R. Boehringer, Dykema Gossett Laura A. Sagolla, Dykerna Gossett TRYING AN EXCESSIVE FORCE CASE: CLIFFORD ARMSTRONG V WEBB, et al

For Panel Discussion “Living Proof That Prison Cases Are Fun” November 16, 2005 How did we get this case?

Referral from Judge Edmunds

Discovery had been “corn pleted”

Set for trial in one month

2 THE RAW MATERIALS...

Client who claimed serious neck, head, and back injuries resulting from excessive force. But no medical records substantiating this. Client who claimed that he was knocked to the floor, hit his chin on the desk, and was kneed in the back by Sargeant while in his cell. No testimony of bunkie who was in the cell at the time. Client who was very familiar v..ith the grievance procedure at the prison. But who did not report this incident until weeks later.

3 THE RAW MATERIALS. •0

Client who is clean-cut, soft-spoken, with slight build. But who is serving life for murdering an 87-year old man.

4 THE RAW MATERIALS...

Documented condition of prostate problems that caused frequent urination. Disobeyed the order to go back to his cell because of this condition. Had been allowed to go to the bathroom during count time before. Two guards and one sargeant who came on the scene roughed him up in his cell, dragged him down the hallway, up a flight of stairs, and threw against a wall, where he was knocked unconscious. Three eye-witnesses to the event, who give credible, consistent testimony in deposition.

5 THEMES OF THE CASE

THIS WHOLE MESS COULD HAVE BEEN AVOIDED.

PRISONERS HAVE RIGHTS TOO

YOU DO THE CRIME, YOU DO THE TIME, BUT THE PUNISHMENT IS THE TIME, NOT GETTING BEATEN UP.

6 TECHNOLOGY FOR ORGANIZING TRIAL MATERIALS SUMMATION allows you to:

Image all documents in searchable format. Store all deposition transcripts in searchable format. Store all pleadings in searchable format.

— — Prison cases are a great opportunity to learn trial technology because they are generally not that document-intensive.

7 TECHNOLOGY FOR PRESENTA TION AT TRIAL

SUMMATION is not the right program for trial

presentation -

We used TRIAL DIRECTOR—more flexibility.

ELMO as back up in case of break-down or new materials.

8 Witness Examinations

Be ready for surprises—a prisoner witness with his affidavit in his pocket who pulls it out to testify (!)

Be ready for witness jitters—even a determined and intelligent plaintiff can get less effective when nervous.

Be comfortable with your own style.

9 THE UPSIDE OF DEFEAT

Even though we did not prevail, we got:

pro bono credit; experience, experience, experience; good will for the firm; the feeling that we had helped out someone who needed our help. usay_you refuse to accept defeE& I like that!”