THE NATIONAL PRISON PROJECT

A Project of the American Civil Liberties Union Foundation, Inc. Vol. 14, NO.1 &2, Spring/Summer 2000· ISSN 1076-769X

No Lost Causes Remaking Advocacy for a New Millennium

By Jackie Walker AIDSInformation Coordinator

Over the past five years a number of ofthe mechanics oforganizing and ways to build conferences have been organized to address issues new alliances. ofHIVIAIDS in prisons. Most have focused on In each session, panelists explored avenues service delivery issues involving medical care, ofchange or provided information crucial to e'ducation and prevention programs, and discharge organizing efforts. The segregation session not planning. No Lost Causes: A Na,tional Action only updated participants on legal efforts in both Meeting on HIV and Hepatitis in Prisons, held this states, but proposed a joint strategy to organize past June at the National Prison Project, is among local meetings in Alabama and Mississippi. the first to focus on the much maligned A word. During the hepatitis C session, attorney Jack Beck Advocacy. For the first time in years issues of ofthe Prisoners' Rights Project gave details on the advocacy and organizing are taking center-stage. obstacles New York state prisoners face receiving The impetus for the conference was the treatment despite a New York Department of U.S. Supreme Court's January 2000 decision in Corrections medical protocol for hepatitis C. Davis v Hopper which let stand the Alabama While Tamara Serwer, Southern Center for Department ofCorrections policy ofsegregating Human Rights, discussed the intricacies of prisoners living with HIV/AIDS. The policy developing successful litigation against the Fulton excludes infected prisoners from education, County Jail in Atlanta because ofits failure to vocation and recreation programs, as well as provide adequate HIVIAIDS treatments. Even the religious services. Their separation prevents them lunch session'was booked as Asia Russel, ACT from participating" in programs required for good UP Philadelphia, Judy Greenspan, the HIV in time credit eligibility. Prison Committee ofCalifornia Prison Focus, and The meeting, hosted by the National Prison Catherine Hanssens, Lambda Legal Defense and Project and organized in cooperation with the Education Fund, updated participants on activist Southern Center for Human Rights, California strategies for responding to felony charges against Prison Focus, Lambda :I;.-egal Defense and HIV positive prisoners accused of"criminal HIV Education Fund, the American Foundation for exposure." Prisoners have become increasingly AIDS Research and the Brown University AIDS vulnerable to charges oftrying to infect correction Program, focused on prisoner segregation policies staffthrough spitting and biting which generally in Alabama and Mississippi, HIVIAIDS treatment cannot cause transmission. injails, criminalization ofHIV and the case of Participants in these sessions expressed a Gregory Dean Smith, Hepatitis C and HIV co­ range ofviews about the impact ofthe day's infection and the growing Hepatitis epidemic in proceedings. Julie Falk, Southland Prison News, prisons and jails. The day ended with a discussion said, "The group ofpeople assembled and the list The National Prison ProjectJOURNAL Spring/Summer 2000 ofresources was the most valuable thing for me." the issue and bringing more people to the table." Itwas a sentiment often expressed and evident as A follow-up meeting is planned for January 2001. participants huddled in groups exchanging business cards or organizational newsletters. Ifyou would like to receive additional Other participants like Gavin Cook, a staff information about No Lost Causes: A National attorney with Prisoners' Legal Services, took a Action Meeting on HIV and Hepatitis in Prisons, a long range view noting, "There's a need to limited number ofconference summary reports are network and come up with some common plan for available free ofcharge from the NPP. all states. But we also need to get Mississippi and Alabama up to date on the status ofmedical care and treatment ofprisoners living with HIV/AIDS." Jubilee Justice Campaign 2000 Over 125 people attended the meeting. Former prisoners, AIDS activists, attorneys, The Coalition for Jubilee Clemency is physicians, prisoners' rights activists, as well as organizing a Religious Leaders' petition drive drug company representatives and federal agencies asking President Clinton, before he leaves office, and public health officials joined to begin a to release on supervised parole those Federal national movement. A movement which has prisoners who have served at least five years for already begun to progress. low-Ievel,.nonviolent drug offenses. Ifyou would like to sign the petition or find out how to Next Steps participate in the campaign, contact: The Coalition Since No Lost Causes, local meetings have for Jubilee Clemency, c/o CJPF, 1225 Eye St., occurred in both Alabama and Mississippi. On NW, #500, Washington, DC 20005-3914. You September 9, twenty-three people gathered in can also visit their website at cjpf.org/c1emency. Jackson, Mississippi to develop a strategy regarding the segregation policy. At this meeting, attendees decided to form the Coalition for Prisoners with HIV (CPH) and to ask for a meeting with Mississippi Department of Corrections Commissioner Robert Johnson. CPH members have since met with Commissioner Johnson. Ofthe meeting, Carla Shaw, CPH member and parent ofa prisoner in the HIV Unit, says, "He was very receptive and asked for a reasonable amount oftime to study what we were asking fot." During a second meeting Commissioner Johnson announced the creation of a task force. On November 4, a similar meeting occurred in Montgomery, Alabama. Over 25 representatives ofcommunity and religious organizations met to develop a plan ofaction. Jeanne Locicerno, a law fellow at the Alabama ACLU, says, "I think the meeting was a huge success where advocates from across the state who were dedicated to changing the policy met. We are carefully considering the best way to deal with

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The National Prison Project]OURNAL Spring/Summer 2000 Case Law Report: Highlights ofMost Important Cases

By John Boston Director Prisoner Rights Project ofthe NYLegal AidSociety

PLRA's enactment, "there is no retroactivity IU.S. Supreme Court Cases problem," since plaintiffs' attorneys were on notice ofthe PLRA rates. "Ifthe attorney does not wish PLRA: Attorneys" Fees to perform services at this new, lower, pay rate, Martin v. Hadix, 119 S.Ct. 1998 (1999). she can choose not to work." 119 S.Ct. at 2007. In a dispute over retroactivity of42 U.S.c. § The Court rejects the plaintiffs' argument that 1997e(d)(3)'s restrictions on hourly rates, the attorneys face ethical constraints in withdrawing Court looks generally at PLRA § 803(d) (42 from litigation and that the PLRA therefore U.S.c. § 1997e(d)) and concludes it is "better read attached new legal consequences to the pre-PLRA as setting substantive limits" on fees than decision to appear in the case, stating that "they do prescribing the temporal scope ofits provisions. not seriously contend that the attorneys here were 119 S.Ct. at 2004. It therefore rejects prison prohibited from withdrawing from the case during officials' arguments that the statutory text itself the post-judgment monitoring stage...." Id.; see prescribes application ofPLRA rates to work done Martin v. Hadix, 1999 WL 200681 at *42-43 before the PLRA's enactment. The Court also (U.S., March 30, 1999) (transcript oforal rejects the plaintiffs' argument, based on argument). The dissenting opinion cites Michigan legislative history, that the removal ofthe fees Rules ofProfessional Conduct, Rule 1.3 Comment provision from § 802 ofthe statute, which has an 1999, which states that "a lawyer should carry explicit retroactivity provision, to § 803, which through to conclusion all matters undertaken for a does not, raises a negative inference that the fees client." 119 S.Ct. at 2012 (emphasis supplied). provisions were intended to apply only to cases It is arguable that Martin is limited to its filed after the PLRA's enactment. Since the two facts by (a) the fact that the court had statutory sections address "wholly distinct subject prospectively set out fee rates and a mechanism matters," and since in any case the reason for for paying them, creating an enhanced expectation moving the fees provision is not known, no such on the attorneys' part; (b) the fact that it involves inference is justified. 199 S.Ct. at 2004-05. post-judgment monitoring and the rejection ofthe In the absence ofan express prescription of argument about attorneys' ethical obligations is its temporal reach, a statute is presumed to apply stated in relation to the post-judgment monitoring prospectively only. 119 S.Ct. at 2006. The PLRA stage. fees limitations would have a retroactive effect as to work done before PLRA's enactment. The Non-Prison Cases attorneys had a reasonable expectation, based on reliance on the district court's determination of Procedural Due Process: Property market rates, that they would be paid those rates. City ofWest Covina v. Perkins, 119 S.Ct. To apply the PLRA limitations after the fact 678 (1999). At 681: "would 'attac[h] new legal consequences' to A primary purpose ofthe completed conduct." 119 S.Ct. at 2006, quoting notice required by the· Due Process Landgrafv. USIFilm Products, 511 U.S. 244, 270 Clause is to ensure that the (1994). However, as to work done after the opportunity for a hearing is

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meaningful.... Iffollows that when Court decisions, but its source has not been law enforcement agents seize identified. Non-residents' right to equal treatment property pursuant to warrant, due is protected by the Privileges and Immunities process requires them to take Clause ofArticle IV absent a "substantial reason" reasonable steps to give notice that to treat them differently. New arrivals' right to the property has been taken so the equal treatment is also protected by the Privileges owner can pursue available and Immunities Clause ofthe Fourteenth remedies for its return.... Amendment, which entitles residents ofa state Individualized notice that the citizenship ofthat state as well as ofthe United officers have taken the property is States. Strict scrutiny, not some form of necessary in a case such as the one intermediate scrutiny, is appropriate for before us because the property discrimination against new citizens. A California owner would have no other measure prescribing lower welfare payments for reasonable means ofascertaining recent limmigrants from states with lower welfare who was responsible for his loss. benefits does not pass this scrutiny. Neither the No similar rationale justifies requiring duration ofstate residence nor the location ofprior individualized notice ofstate-law remedies which, residence has any relevance to citizens' need for like those at issue here, are established by benefits or equitable allocation offunds; the state's published, generally available state statutes and fiscal justification therefore fails. Congress's case law. Memphis Light, Gas & Water Div. v. approval ofdurational residency requirements Craft is distinguished on the ground that in that makes no difference, since Congress cannot case, the procedures ofwhich customers had to be authorize states to violate the Fourteenth notified :were not publicly available. Amendment, and in any case the Citizenship Clause ofthe Fourteenth Amendment binds Qualified Immunity/Assistance of federal as well as state governments. Counsel/Standing This opinion does not rely on the Equal Conn v. Gabbert, 119 S.Ct. 1292 (1999). Protection Clause, but its evaluation ofthe At 1295: " ...[A] court must first determine statute's classifications is in substance an equal whether the plaintiffhas alleged the deprivation of protection analysis. an actual constitutional right at all, and ifso, proceed to determine whether that right was Communication and) Expression clearly established at the time ofthe alleged City ofChicago v. Morales, 119 S.Ct. 1849 violation." (1999). A Chicago anti-loitering statute (held The use ofa search warrant to detain an unconstitutional on vagueness grounds) was not attorney t'O keep his client from being able to overbroad because it applied only to remaining in consult with him at the grand jury did not deny the one place "with no apparent purpose," excluding plaintiffattorney a liberty interest in practicing assemblies designed to support or oppose a point law. Cases supporting such a right all deal with a ofview. At 1857: "Its impact on the social complete prohibition and not a briefinterruption contact between gang members and others does ofthe pursuit ofan occupation. not impair the First Amendment 'right of The attorney lacks standing to raise the association' that our cases have recognized," rights ofhis client to have him outside the grand jury room for consultation. Disabled Albertson's, Inc., 119 S.Ct. 2162 (1999). Equal Protection The plaintiffhad severely impaired vision in one Saenz v. Roe, 119 S.Ct. 1518 (1999). The eye. Whether he could proceed under the right to travel has been upheld in several Supreme Americans with Disabilities Act depended on

4 The National Prison ProjectJOURNAL Spring/Sununer2000 whether his monocular vision "substantially PLRA: Intervention/Standing limited" his seeing. That means more than a mere Ruiz v. Estelle, 161 F.3d 814 (5th Cir. "difference." The determination must take into 1998). The amended PLRA intervention provision account the person's ability to compensate for the authorizes individual legislators to intervene to impairment. The existence ofthe disability must challenge prisoner release orders regardless of be determined on a case-by-case basis. whether they have authority to bind the legislature The defendants were entitled to enforce fiscally. (819-21) A consent decree limiting Department ofTransportation standards ofvisual prison population density is a prisoner release acuity for truck drivers notwithstanding the order notwithstanding the authorities' ability to existence ofa waiver procedure. avoid releases by building more prisons. (825-27) The statutory grant ofintervention is Murphy v. United Parcel Service, Inc., 119 constitutional; although it is doubtful that the S.Ct. 2133 (1999). Under the Americans with legislators would have standing sufficient to Disabilities Act, whether an impairment satisfy Article III, they need not do so as long as "substantially limits" one or more major life another party seeking the same reliefdoes have activities is assessed with reference to mitigating standing. (828-33) There is substantial contrary measures (in this case, medication for high blood authority on this point. See id. at 831 (citing pressure). That means someone whose disability cases). is substantially corrected can still be fired for it without having a remedy under the ADA. Ifthe Pre-Trial Detainees/Protection from Inmate person is "regarded as" disabled, he or she may Assault still sue under the ADA, but disqualification from Perkins v. Grimes, 161 F.3d 1127 (8th Cir. a single job (here, truck driving) does not amount 1998). The plaintiffwas raped by his cellmate in a to being regarded as disabled; the plaintiffmust be county jail holding cell after being arrested for regarded as unable to perform a "class ofjobs" to public intoxication. Defendants knew the cellmate fall under that rubric. was a disruptive individual but the district court found that they did not know he posed a risk of Sutton v. United Airlines, Inc., 119 S.Ct. serious injury to the plaintiffbecause the plaintiff 2139 (1999). A person is disabled under the did not tell them. The two had been celled Americans with Disabilities Act ifhe or she together on previous stays in jail. possesses a physical impairment that substantially limits one or more major life activities. This Rights ofStaff/Disabled assessment is to be made with respect to corrective Kees v. Wallenstein, 161 F.3d 1196 (9th or mitigating measures. A person with a visual Cir. 1998). The plaintiffcorrection officers were impairment whose vision is corrected with permanently disabled and could not occupy eyeglasses to 20/20 is not disabled under the positions requiring inmate contact. They were not statute. qualified individuals with a disability, for These plaintiffs were also not "regarded" purposes ofthe Americans with Disabilities Act, as disabled for purposes afthe ADA, since there since no accommodation would allow them to was no evidence that they are regarded as unable have direct inmate contact, an essential function of to work in a "broad class ofjobs," which is the their position. Incidental inmate contact is meaning ofthe statutory term "substantially common even to control room positions and the limits." These plaintiffs were viewed as unable to ability to restrain inmates during an emergency is work only as global airline pilots. critical to jail security.

Suicide Prevention/State Law Immunities Court ofAppeals Cases I I Paynefor Hicks v. Churchich, 161 F.3d

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1030 (7th Cir. 1998). The decedent was arrested concerned that people who were actually in prison while drunk and promptly hanged himselfin a had nothing to lose and could get a sabbatical from police holding cell. The plaintiffs settled with the prison to federal court by filing litigation. city defendants for $110,000, leaving the state defendants in the case. Wendell v. Asher, 162 F.3d 887 (5th Cir. Federal claims should not be dismissed 1998). The PLRA exhaustion requirement is not based on state law immunities. jurisdictional, which means it "may be subject to The claim against one deputy was properly certain defenses such as waiver, estoppel, or dismissed because he was not on notice that the equitable tolling." (890) It eliminates the decedent posed a danger to himself; the facts that discretionary interest-balancing approach of the decedent was intoxicated and "his tattoo former 42 U.S.c. § 1997e set out in McCarthy v. questioned life and ... he cursed angrily" do not Madigan. Exhaustion must be completed before create an obvious, substantial risk ofsuicide. filing suit; otherwise the case must be dismissed There were no allegation ofsuicidal tendencies, no even ifexhaustion has been completed after filing. claim or evidence ofpast suicide attempts or Conclusory allegations that administrative warnings from family members ofa mental procedures are inadequate do not excuse failure to disturbance and suicidal condition; his behavior exhaust. Also, dismissal without prejudice will was not alleged to be increasingly bizarre, erratic not cause.injustice or render judicial relief or wild. (The court goes through the usual litany unavailable, since the plaintiffs now-exhausted about detainees having at least the protection claim is not time-barred, and he can still exhaust provided by the Eighth Amendment.) the other claim that he did not grieve. (How? As The claim against the municipality fails noted below, there is a IS-day deadline for filing because there is no evidence that county the grievance.) policymakers knew that being at the overcrowded At n. 2: The court refuses to entertain the facility where the decedent died exposed him to a plaintiffs argument that he is seeking money substantial risk ofinjury. damages only and therefore the grievance The state law claims against the procedure is not "available," since this is municipality and Sherifffor failing to maintain an inconsistent with his pleadings in the district court. adequate jail are barred by state immunity law On remand, he can limit his request for relief as he which absolutely bars such claims. However, that desires. immunity does not extend to wilful and wanton The Texas grievance procedure takes about acts, and the allegation that the sheriffdid know of 90 days: prisoners get 15 days to file a step 1 the risk ofself-harm and directed the prisoner's grievance, the response is due within 40 days after placement in the jail anyway does state such a receipt, the prisoner has 10 days to appeal, the claim. response is due within 40 days after receipt.

PLRA: Exhaustion ofAdministrative Remedies Publications Greig v. Goard, 169 F.3d 165 (2d Cir. United States v. Bee, 162 F.3d 1232 (9th 1999). An ex-prisoner who files suit after release Cir. 1998). The criminal defendant, convicted of is no longer a prisoner for purposes ofthe PLRA sexually abusing a child, was sentenced to prison exhaustion requirement. The statute refers to and given a condition ofsubsequent supervised prisoners "confined" in prison, and the definition release that he "not possess any sexually ofprisoner refers to persons "incarcerated" or stimulating ofsexually oriented material deemed "detained," and the plaintiffwas none ofthese at inappropriate by his probation officer and/or the time he filed suit. This distinction is consistent treatment staff, or patronize any place where such with statutory intent as well ,as language because material or entertainment is available." The the legislative history indicated that Congress was condition does not violate the First Amendment.

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The relevant statute requires conditions to be standing. However, since the named plaintiffs had "reasonably related" to and involve "no greater never had standing, federal jurisdiction never deprivation ofliberty than is reasonably attached, and there was no case for new plaintiffs necessary" to deter criminal conduct, protect the to join, and there had been no case when class public, and provide the defendant with certification was sought. Mootness may be cured "correctional treatment in the most effective by joinder ofnew plaintiffs, but not initial lack of manner." That standard is met. The court says standing. nothing about First Amendment law. The named plaintiffs' claims must have at least "colorable merit" to confer standing; ifthey Federal Officials and Prisons/Personal lose on the merits later, new plaintiffs may be Property joined. Frivolous claims, however, do not "engage Montano-Figueroa v. Crabtree, 162 F.3d the jurisdiction" ofthe federal courts. This 548 (9th Cir. 1998). The federal prisons' Inmate jurisdictional inquiry may be conducted at any Financial Responsibility Program, which provides time until the judgment becomes final. for development ofa plan for inmates to pay The court rejects what it calls dictum in obligations such as court-ordered assessments, East Texas Motor Freight System, Inc. v. restitution, and fines, with deprivation of Rodriguez that states that ifany class member had privileges and preferred housing as a sanction for standing at the time ofcertification, Article III is noncompliance, does not improperly intrude on satisfied even ifthe named plaintiffs prove not to the court's sentencing authority or constitute an have been members ofthe class. illegal delegation ofauthority. The court tap­ The actual injury requirement ofLewis v. dances around contrary authority and says the Casey in court access cases is different from the plaintiff "has not presented a meritorious approach taken in due process cases, where the constitutional claim that prisons may not maintain improper denial ofthe hearing is actionable at work programs that require inmates to pay court­ least for nominal damages even ifa proper hearing imposed fines or restitution." (550) would have had the same result, and is injury enough to support federal jurisdiction. Federal Officials and Prisons/Pre-Trial The injury requirement does not mean a Detainees plaintiffmust prove he would have won, only that Magluta v. Samples, 162 F.3d 662 (11th he was prevented from litigating a nonfrivolous Cir. 1998). The plaintiffsued over the conditions case. In an injunctive case (434-35): ofhis confinement. He was acquitted and later It is enough if[plaintiffs] can show failed to show up for trial on other charges. His that they are highly likely to have a suit was dismissed under the fugitive meritorious suit in the future that disentitlement doctrine. The dismissal is reversed they will not be able to litigate because there is no "nexus" between his fugitive effectively because ofthe status and the civil action that was dismissed. defendants' infringement ofthe constitutional right ofaccess. A Law Libraries and Law Books/Standing/Class probabilistic harm, ifnon-trivial, Actions: Certification ofClasses can support standing. Walters v. Edgar, 163 F.3d 430 (7th Cir. ...In the usual case, the possibility 1998). After Lewis v. Casey, the district court ofsome day having a non­ dismissed a class action about law library services meritorious suit will be too on the ground that none ofthe named plaintiffs speculative to support a present had had standing. Naming other members ofthe request for an injunction. But we class as representatives would have been proper if can imagine a case in which the the existing named plaintiffs had ever had plaintiffs claim has accrued but he

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has not sued as yet (perhaps reasons. At 398: blocked by the prison's In cases such as this, where the unconstitutional behavior) and the appellant was authorized to proceed statute oflimitations hasn't run. in forma pauperis in the district The plaintiffs in this action were not court, a district judge who after denied access to courts by the restrictions on receiving the notice ofappeal segregated prisoners. One ofthem had managed doubts that it is in good faith to file 13 suits using form complaints and other should, before yanking the pleading forms with occasional assistance from appellant's IFP status, notify the inmate law clerks. The ability to litigate a denial appellant ofthe impending change ofaccess claim may be evidence that the plaintiff ofstatus and give him an has no denial ofaccess claim. opportunity to submit a statement Since this suit was dismissed for lack of ofhis grounds for appealing. On standing, all previous rulings and findings of the basis ofthe appellant's response unconstitutionality in it should be vacated. to the notice, the judge can make a At 433: "The danger that a class action responsible assessment ofthe issue will have to be dismissed for lack ofstanding of ofgood faith. This procedure will the named plaintiffs, even though unnamed reduce the number ofcases in members ofthe class might have standing, is which we are compelled to remand another reason... for scrupulous adherence to the for a fuller statement ofthe judge's requirement that the determination whether to reasons for believing that the certify a suit as a class action be made 'as soon as appeal is not taken in good faith. practicable after the commencement ofthe action.' Fed.R.Civ.P.23(c)(1)." Here it took three years. Pate v. Stevens, 163 F.3d 437 (7th Cir. 1998). The plaintifflost at trial on his police PLRA: Filing Fees misconduct claim. The district court certified that Celske v. Edwards, 164F.3d 396 (7th Cir. he took his appeal in bad faith. 1999). The district court certified that the The certification was in error. Newlin v. plaintiff, IFP in that court, was not appealing in Helman said that a litigant who moves under good faith because he didn't provide a reason for Fed.R.App.P. 24(a) for IFP in the district court, wanting to appeal. It relied on Newlin v. Helman's but doesn't articulate any grounds for appeal, can statement that "A plaintiffwho has been told that be found not to be appealing in good faith, and IFP the claim is foreclosed and then files a notice of denied. That rule was applied erroneously here. appeal without offering any argument to Newlin involved a § 1915A dismissal. This case undermine the district court's conclusion is acting went to a jury and the plaintiffarticulated grounds in bad faith." That case was barred by absolute in motions for judgment as a matter oflaw and for immunity and the statute oflimitations. Herel the a new trial, which put the court on sufficient plaintifffailed to respond to a motion to dismiss, notice ofthe issues for appeal. This is not strictly the court found that the allegations ofthe a PLRA holding because the relevant provision complaint were insufficient, and summary was only renumbered and not amended. judgment was granted on his medical care claim Review ofbad faith determinations because "all the evidence" showed his care was remains de novo; the PLRA did not change adequate. But decisions like this are sometimes anything substantive on that subject. wrong and are reversed, and nothing the court said suggests the claim is frivolous. As to the failure to AppeaIIMootness/Standing/Non-English give reasons, nothing in Rule 24, Fed.R.App.P. Languages/Privacy/Procedural Due Process: says that a notice ofappeal is supposed to contain Disciplinary Proceedings/Medical

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Care/Remedial Principles such right. The Fourth and Eighth Amendments Franklin v. District ofColumbia, 163 F.3d don't support it. Due process does not support it. 625 (D.e.Cir. 1998). A judgment on liability that Plaintiffs have to disclose their medical condition does not order reliefis not a final judgment and to government employees to get treatment, and therefore not appealable. they are claiming that they have a right to disclose An injunction concerning interpreters at their condition only to certain government parole hearings is vacated as moot with respect to employees. The right ofprivacy, when felons, since their parole matters have been recognized, has been recognized as against the transferred to the U.S. Parole Commission, and for State. To recognize it in this form would require lack ofstanding with respect to misdemeanors, that interpreters be supplied for every language since no "named member ofthe class" was shown spoken by prisoners. to be a misdemeanant who did not understand parole proceedings because oflack ofEnglish Use ofForce proficiency. Gomez v. Chandler, 163 F.3d 921 (5th Cir. Plaintiffs have no right to interpreters in 1999). To support an Eighth Amendment use of classification and housing determinations and in force claim, an injury must be more than de disciplinary proceedings in the absence ofliberty minimis but need not be significant. This plaintiff interests under Sandin. The district court1s meets the standard. He alleged cuts, scrapes, reasoning that ifdefendants have hearings, they contusions to the face, head and body as a result of must comport with due process, is simply wrong. being kllocked down so his head hit the floor and At 635: his face scraped the floor, being repeatedly It is worth repeating that punched and then kicked in the face and head. broad decrees rendered in the name (His medical records said a 1 cm. abrasion; the ofthe Due Process Clause, decrees court notes that photographs showed a mark mandating what must occur no considerably larger than that.) matter what the circumstances, represent the sort ofjudicial Suicide Prevention/Negligence, Deliberate legislating we have rejected in the Indifference and Intent/Theories: Due Process past.... Ifthe district court detected Collignon v. Milwaukee County, 163 F.3d a due process violation in a 982 (7th Cir. 1998). The schizophrenic decedent particular hearing or hearings, the was arrested, released, and arrested again, and court should have identified the released again to his parents. He committed proceeding and provided the suicide. District with an opportunity to Both the deliberate indifference standard rectify the deficiency.... and the Youngberg professional judgment standard The failure to provide interpreters at require a showing ofcriminal recklessness because medical encounters did not violate the Eighth only that standard "provides adequate notice of Amendment absent evidence ofdeliberate what conduct is or is not permitted." (988) The indifference. The District had a paper policy and professional judgment standard "requires this court thinks imperfect enforcement ofit does essentially the same analysis as the Eighth not satisfy the deliberate indifference requirement. Amendment standard." At 989: "A plaintiffcan There was no senior policymaker shown to be show that the professional disregarded the need deliberately indifferent. There were lots of only ifthe professional's subjective response was resources devoted to monolingual prisoners. so inadequate that it demonstrated an absence of The district court held that the lack of professional judgment, that is, that no minimally interpreters for medical encounters violated a right competent professional would have so responded ofmedical privacy. The appeals court finds no under those circumstances." (989)

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The jail psychiatrist knew that the decedent two are concededly not realistically at issue (why had a serious mental illness and posed some risk is not explained). As for psychotherapy, there was for suicide, and that he had not been taking his no showing ofa need for it. In any case the medication because ofthe side effects. Her medical director does not diagnose or prescribe for prescription ofa sub-therapeutic dose ofThorazine particular patients. That is done by local medical to form a "therapeutic alliance" with the decedent personnel, with grievance and appeal procedures and gradually increase the dosage was not a which are not contended to be inadequate. response that no competent professional would have made. The fact that the plaintiffs expert Pre-Trial Detainees/Crowding/Sanitation/Cell thought there was a better course did not make the Confinement/Recreation and Exercise/PLRA: defendant liable. The fact that he was on the Mental or Emotional Injury/Length ofStay highest level ofsuicide watch did not support Craig v. Eberly, 164 F.3d 490 (10th Cir. liability. At 990: "Placing a pre-trial detainee on 1998). The plaintiffclaimed that while he was in some level ofsuicide wa~ch, even the highest jail he was confined with five or six other level, does not demonstrate a subjective awareness prisoners in an 11x15 foot cell, he received no ofa substantial risk ofimminent suicide." It is a clean bed linens, he was permitted only two safety measure that is not incompatible with a showers a week in an unsanitary shower stall, the treatment plan that does not presuppose an sink in his cell was frequently clogged, ventilation imminent risk ofsuicide. was inadequate, and he was only allowed out-of­ Police defendants who had the decedent in cell recreation once. custody but released him rather than retaining The PLRA mental or emotional injury custody and getting treatment for him did not provision does not apply to claims that accrued violate his rights. There is no constitutional right before its enactment. At 494: "The language 'may to be taken into custody for the purpose of be brought' clearly indicates that § 1997e(e) receiving treatment. The incremental stress applies only to cases commenced after its claimed to have been created by their detention of enactment, not to those pending at the time." the decedent was not a basis for liability; the At 495: "Although the Due Process Clause police would not have been liable ifthey did governs a pretrial detainee's claim of nothing and it makes no sense to hold them liable unconstitutional conditions ofconfinement,... the for doing something. Government is liable when Eighth Amendment standard provides the it restrains an individual from getting help and benchmark for such claims." The defendants are doesn't provide help itself, but here they did not not entitled to summary judgment on the plaintiffs restrain him. allegations because the facts are disputed. E.g., the plaintiffalleges he received only two Personal Involvement and Supervisory recreation periods, and the defendants said it was Liability/Homosexuals and once a week; defendants disputed the claim Transsexuals/Qualified Immunity/Federal concerning the sink. The parties also disputed the Officials and Prisons length ofthe plaintiffs confinement. At 496: Farmer v. Moritsugu, 163 F.3d 610 "The difference between enduring certain harsh (D.e.Cir. 1998) (per curiam). The transsexual conditions for seven weeks versus six months may plaintiffcomplained that she received no be constitutionally significant." The duration of treatment. The Bureau ofPrisons medical director each condition is also not clear. was entitled to qualified immunity. The Bureau's policy regarding transsexualism is concededly Habeas Corpus constitutional. Under that policy, there were three Moody v. Rodriguez, 164 F.3d 893 (5th treatment options potentially available: hormone Cir. 1999). Federal courts lack jurisdiction under therapy, castration, and psychotherapy. The first § 1983 to stay executions; litigants must proceed

10 The National Prison ProjectJOURNAL Spring/Summer 2000 via habeas corpus. anguish has caused his physical condition to deteriorate. The court does not address whether PLRA: Screening and Dismissal this states a claim but leaves it for the district Humphries v. Various Federal USINS court. The district court must also determine Employees, 164 F.3d 936 (5th Cir. 1999). whether the mental/emotional injury provision Dismissals under 28 U.S.c. § 1915(e)(2)(B)(1) are bars compensatory, punitive, or nominal damages. governed by abuse ofdiscretion standard. At 940: At 808 n. 6: the provision would clearly bar a "In determining whether a district court abused its claim for compensatory damages absent physical discretion, we consider factors such as 'whether (1) injury, but would not so clearly bar other kinds of the plaintiffis proceeding pro se, (2) the court damages; e.g., for a due process claim, which inappropriately resolved genuine issues of involves an "absolute" right. (The court ignores disputed fact, (3) the court applied erroneous legal the statutory language, which refers to "actions" conclusions, (4) the court has provided a statement not "claims.") Even ifdamages are barred, an ofreasons which facilitates 'intelligent appellate injunction is not (citing Davis and Zehner). review,' and (5) any factual frivolousness could The district court should have examined have been remedied through a more specific evidence before holding that the plaintiffs pleading.'" (1992 citation omitted) This is not a treatment (23 and a halfhours a day lock-in, out new holding or an interpretation ofthe PLRA, but only for a shower, and required to wear the face it is a useful indication that prior law survives the mask during the shower) is not atypical and PLRA. significant under Sandin. Defendants'statement that it is ordinary for prisoners to be segregated for Drug Dependency Treatment/Federal Officials various offenses and to be isolated because of and Prisons extreme behavior "does not fully address both the Martinez v. Flowers, 164 F.3d 1257 (10th duration and degree ofplaintiffs restrictions as Cir. 1998). The petitioner was denied a sentence compared with other inmates." (809) reduction after he had successfully completed a The plaintiffs exercise restriction stated an substance abuse program. The Federal Bureau of Eighth Amendment claim in light ofprecedent Prisons did not exceed its statutory authority in concerning long-term deprivations ofout-of-cell excluding prisoners who had prior, rather than exercise and the fact that defendants knew about it current, convictions for violent offenses from the through grievances and their regular review ofhis sentence reduction program. status. The face mask requirement, which the PLRA: Screening and Dismissal/PLRA: Mental plaintiffsaid did not keep him from spitting at or Emotional Injury/AIDS/Procedural Due guards because he could do it when he took a Process/Medication/Restraints/Recreation and shower, and which therefore was only a Exercise punishment for his HIV status, stated an Eighth Perkins v. Kansas Dept. ofCorrections, Amendment claim. 165 F.3d 803 (10th Cir. 1999). The HIV-positive The failure to provide protease inhibitors plaintiffwas made to wear a face mask which in addition to AZT and 3TC does not state an covered his entire head whenever he left his cell, Eighth Amendment claim; "prison officials have and also was denied all outdoor exercise, after recognized his serious medical condition and are spitting at guards during recreation. treating it. Plaintiffsimply disagrees with medical Dismissals under § 1915(e)(2)(B)(ii) for staffabout the course ofhis treatment." (811) failure to state a claim are reviewed de novo, as they were before the PLRA., Refusal ofTreatment/Transfer and The primary harm the plaintiffalleges is Commitment to Mental Health mental or emotional, but he says his mental Facilities/Federal Prisons and

11 The National Prison ProjectJOURNAL Spring/Summer 2000

Officials/Magistrates/Religion criticisms ofdefendants' actions during the last United States v. Muhammad, 165 F.3d 327 days ofthe decedent's life are not persuasive in (5th Cir. 1999). The government sought to light ofthe three-month record oftreating his commit the defendant to a psychiatric hospital medical condition. At 591: "Mistreatment for a following her conviction. Her attorney's consent short time might in some circumstances be to proceeding before a magistrate judge permitted evidence ofa culpable state ofmind, but the facts the judge finally to dispose ofthe matter; her here do not justify such a conclusion." personal consent is not required. Commitment is a There is no evidence ofknowledge ofa civil proceeding within a magistrate judge's serious medical need. The decedent's deterioration jurisdiction. in the last few days ofhis life was not clearly Use ofa preponderance ofevidence different from his condition earlier in his standard for civil commitment ofprisoners is not incarceration ("wildly sporadic"). There is no clearly unconstitutional because it is less ofa evidence that incontinence is indicative ofa liberty deprivation than commitment ofa free serious health threat. citizen. The court does not definitively decide this There is no evidence ofdisregard of constitutional question because it was not raised medical needs. Defendants were "continually below and it reviews the district court's action only solicitous" ofthe decedent's needs; they placed for plain error. him in a cell where he could readily be observed; The government showed that the defendant he was repeatedly examined by medical personnel, is a present danger to selfor others because including a neurologist. (among other things) she insisted on remaining in a special housing unit, did not interact with staffor Personal Property/Federal Officials and other inmates when she needed something, and Prisons refused medical evaluation despite indications of McGhee v. Clark, 166 F.3d 884 (7th Cir. severe anemia. She did all this on religious 1999). The Bureau ofPrisons did not usurp a grounds; mental health personnel said she had judicial function by imposing a' schedule "persecutory and religious delusions." governing the plaintiffs payment ofthe criminal The defendant raised First Amendment fine imposed as part ofhis sentence. The court did claims only on appeal, and the court declines to not delegate its function to the Bureau; it made the consider them even under a plain error standard. It fine payable immediately and the Bureau merely notes that the Religious Freedom Restoration Act's attempted to implement that direction. constitutionality as applied to federal government The Inmate Financial Responsibility action remains disputed. Program has been uniformly upheld against constitutional attack. Bureau personnel's decision Medical

12 The National Prison ProjectJOURNAL Spring/Summer 2000 given three Tylenol, but was not pennitted to see Medication/Medical Care: Standards of medical personnel for bleeding, a lump on his Liability and Serious Medical Needs head, and bodily pain until the following Ralston v. McGovern, 167 F.3d 1160 (7th Wednesday, where he was treated in a perfunctory Cir. 1999). The plaintiff, who has Hodgkin's and abusive way. Then he was sent to the Disease and is undergoing radiation treatment with Regional Medical Center, where he was examined painful sequelae, was prescribed pain medication. and told to come back ifhe experienced loss of An officer refused him his medication even though consciousness. The next day he fainted but again he complained that he couldn't swallow and was received perfunctory and disparaging treatment at spitting blood. the prison. The district judge erred in holding that the The plaintiff "failed to rebut Regional's plaintiffs mouth and throat pain was not a serious evidence that it was a private entity and did not act medical need. Detennining what medical needs under color ofstate law in treating him." (412) are serious is a question ofjudgment not No details are given. The plaintiffis pro se. susceptible to mechanical resolution. At 1162: The evidence could support a jury finding ... [T]he civilized minimum is a that the facility defendants intended to punish the function both ofobjective need and plaintiff; summary judgment for defendants is ofcost. The lower the cost, the less reversed. need has to be shown, but the need must still be shown to be Procedural Due Process: Disciplinary substantial. It seems to us that to Proceedings/SanctionslHabeas Corpus refuse to treat, at trivial cost, the Carr v. O'Leary, 167 F.3d 1124 (7th Cir. pain caused by cancer and cancer 1999). The plaintiffdid not appear for the treatments borders on the morning count because there was a riot going on barbarous. Realism requires and he was threatened with bodily hann. He and recognition that the terror which every other inmate whoJhad failed to appear were cancer inspires magnifies the pain disciplined with six months' loss ofgood time and discomfort ofthe frequent side credits. The defendants did not move for effects ofcancer treatments. It is summary judgment under Heck v. Humphrey not as ifRalston were demanding (1994) until the Seventh Circuit held it applicable esoteric, experimental, or expensive to prison disciplinary proceedings in 1996, after interventions. Such a demand the plaintiffhad been granted summary judgment would raise very serious questions, on liability. Since the application ofHeck was especially since the side effects of foreseeable, defendants waived the issue. In which he complains were not life­ addition, five Justices in Spencer v. Kemna have threatening.... Ralston was not stated that a person whose habeas petition has seeking an expensive or been mooted by release can proceed via § 1983 unconventional treatment; he just even ifthe claim would otherwise be barred by wanted the pain medicine that the Heck. Hence the defendants should not be prison doctor had prescribed for relieved from their waiver. him. The prison guard's deliberate The court directs the Illinois attorney refusal ofit was a gratuitous general's office to show cause why the authors of cruelty, and not a trivial one, even the state's briefshould not be sanctioned for ifthe context ofcancer is ignored. unethical advocacy for statements in it; the court A blistering that prevents a person cites its repeated prior condemnations ofthe from swallowing and,causes him to office's work. spit blood is a source ofdiscomfort acute enough to constitute a serious

13 The National Prison ProjectjOURNAL Spring/Summer 2000

medical need, at least when it can relied on the "substantial burden" language of be readily and inexpensively RFRA, which many courts applied in a way alleviated. narrower than the usual First Amendment The defendant is not entitled to qualified standard.) immunity; the standard applicable to pain The allegation ofstrip and body cavity medication was "reasonably clear and definite as searches performed by an opposite sex officer applied to a case as extreme as this" (1162). absent an emergency, at a time when same sex officers were available to conduct the search, was Rights of Staff not frivolous, and the legality ofsuch searches was Hafford v. Seidner, 167 F.3d 1074 (6th Cir. not clearly established so as to entitle the 1999). The plaintiffcorrection officer complained defendants to qualified immunity. At 237: "We ofa pretty appalling course ofracial and religious must balance the need for the particular search harassment (he is a Muslim), consisting of against the invasion ofthe prisoner's personal physical threats as well as racial slurs and a failure rights caused by the search." by management to do anything about it. These The Eighth Amendment claim was allegations were sufficient to withstand summary properly dismissed, since the Fifth Circuit has held judgment as to his claim ofa racially hostile that the Fourth Amendment provides the proper working environment but not a religiously hostile analysis. This would appear to be contrary to working environment; accusations that he was Hudson v. Palmer, which holds that searches preparing for a holy war and that his religion conducted for harassment can violate the Eighth taught hatred ofwhite people do not meet the Amendment. Supreme Court's standard prescribing that '''simple teasing,' offhand comments, and isolated incidents Correspondence: Legal and Official!Attorneys' (unless extremely serious) will not amount to Fees and Costs/PLRA: Filing Fees discriminatory changes in the 'terms and Talley-Bey v. Knebl, 168 F.3d 884 (6th Cir. conditions ofemploYment'" and that "conduct 1999). A claim ofrefusal by a staffmember to must be extreme to amount to change in the terms accept legal mail for mailing wasproperly rej ected and conditions ofemploYment." However, the because it could not possibly be causally related to court should allow at trial for the possibility that the dismissal ofthe plaintiffs lawsuits. Nor did the racial animus ofco-workers was augmented by such refusal violate the Eighth Amendment by their religious bias. depriving the plaintiffofthe minimal necessities, oflife. Searches: Person and The district court properly divided an PrisonerslReligioll/Staffing: Sex assessment of$41.00 in costs between the two Moore v. Carwell, 168 F.3d 234 (5th CiI. plaintiffs, since both chose to prosecute the case. 1999). The plaintiffalleged that multiple strip and At 887: body cavity searches performed by a female We wish to make clear, officer violated the Eighth and Fourth however, that in cases involving Amendments and violated his religious rights. class actions, district courts are not (He stated that the Baptist faith requires modesty to assess fees and costs to each and forbids him from being viewed naked by a member ofthe class. As a class female other than his wife.) action certification is normally The district court dismissed the First made long after the complaint is Amendment claim as frivolous under RFRA case filed, the responsibility ofpaying law; it is directed to reconsider the claim under the required fees and costs rests Employment Division v. Smith. (The reason this with the prisoner or prisoners who could make a difference is that the district court signed the complaint. In class

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actions on appeal, the prisoner or policy does not state a claim under § 1983. prisoners signing the notice of appeal are obligated to pay all Publications/Religion/Access to appellate fees and costs. Courts/Personal Property Chriceol v. Phillips, 169 F.3d 313 (5th Cir. Correspondence: Non-LegaVSearches 1999). The plaintiffcomplained that he was United States v. Gordon, 168 F.3d 1222 denied materials from Aryan Nations/Church of (10th Cir. 1999). Letters are generally protected Jesus Christ Christian. The relevant rule forbade by an expectation ofprivacy, but the sender's material that presents "an immediate and tangible expectation ordinarily terminates upon delivery. threat to the security and order ofthe facility or to At 1228: "Because Defendant sent the letters to an inmate rehabilitation," and specifically material inmate at a correctional facility, fully aware that that "advocates racial, religious, or national hatred prison officials could lawfully and, would likely, in such a way so as to create a serious danger of [commas sic] inspect the letters, he had no violence in the facility." It also provided for reasonable expectation ofprivacy in them." (The notice and the opportunity to file a grievance. letters contained photographs ofthe defendant The withholding ofmail did not violate the with large amounts ofcurrency.) plaintiff's First Amendment free exercise rights. Defendants' policy "restricting access to potential Correspondence: Legal and OfficiaVAccess to violence producing materials is valid" (316) under Courts/Pendent and Supplemental Claims; the Turner test. The plaintiffhad alternatives, State Law in lj'ederal Courts since he received and possessed many other Boswell v. Mayer, 169 F.3d 384 (6th Cir. religious and political materials. The magistrate 1999). The plaintiffalleged that defendants judge found that the materials were "incendiary to opened a piece ofmail from the state Attorney the point ofbeing almost certain to cause General's office in his absence. He has no interracial violence, and nearly all ofthem openly standing to raise a court access claim absent a advocate violence or other illegal activities." showing ofprejudice. However, the court There are no ready alternatives to censorship; construes his complaint as raising a First allowing him to read them in the presence of Amendment claim based on the right to receive security would impose more than de minimis cost. mail, as to which he has standing. The plaintiff The defendants refused to approve a loses on the merits. The defendants' policy of disbursement from the plaintiff's account to file treating Attorney General mail as privileged mail this suit, but the plaintiffcould not show actual ifthe envelope contains the return address ofa injury and denial ofcourt access because his licensed attorney and has markings that warn ofits parents paid the fee. At 317: privileged..contents, and ifthe prisoner has Arguably, withholding access to a requested its treatment as legal mail, is prison account to pay for legal fees constitutional. After all, mail from the Attorney could, at a minimum, cause a delay General or a prosecutor's office will generally in access to the courts. consist ofdocuments in the public record; seldom Withholding money from a plison will such mail be sensitive or confidential. The account could also effectively deny policy passes muster under the Turner standard access to obtaining an attorney, given prison officials' need to inspect for filing a complaint, or mailing other contraband. The plaintiffdid not allege that the legal documentation. contents ofthe envelope were privileged or that it bore the necessary markings. PLRA: Judgment Termination Noncompliance with state laws and Imprisoned Citizens Union v. Ridge, 169 administrative procedures in promulgating the F.3d 178 (3d Cir. 1999). The PLRA termination

15 The National Prison ProjectJOURNAL Spring/Summer 2000 provisions are constitutional. The final judgment effect. (189) rule has an exception for prospective reliefwhere the underlying law is changed. The underlying PLRA: Three Strikes Provision law is the law ofprospective reliefin federal Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. courts. (184-86) Since reliefcan be retained on 1999), withdrawing 163 F.3d 584 (9th Cir. 1998). the showing ofa constitutional violation, the The PLRA three strikes provision does not deny PLRA does not curtail Eighth Amendment rights. due process, equal protection, or access to courts, (The court seems to think this is responsive to the and does not violate the Ex Post Facto Clause or contention that the "underlying law" is the Eighth the principle ofseparation ofpowers. Strict Amendment.) Wheeling Bridge turned on the scrutiny does not apply because there is no prospective/retrospective distinction, not public "fundamental interest" at stake. (The plaintiff vs. private rights. (186-87) Even ifthe challenged the defendants' limits on free postage. public/private rights distinction governed, it would The court says access to courts is not implicated not matter; private rights are unaffected by the because the defendants' rule does not implicate PLRA; PLRA operates on the public right to have that right. The court here addresses the merits of non-federal claims vindicated in a federal forum. the underlying claim in resolving an issue which is (The court doesn't quite say this but that seems to logically prior to and independent ofthe merits of be what it means.) the underlying claim.) Since there is no No rule ofdecision is prescribed. PLRA fundamental interest at stake, the statute does not provides a standard and does not pre-empt the infringe upon court access. At 1180: "Inmates are decision process. (184-86) The relevant still able to file claims--they are only required to underlying law, once again, is the federal courts' pay for filing those claims." Prisoners may have injunctive power. to save their money, and filing may therefore be Courts retain authority to enforce effective delayed. The court ignores situations (appeal remedies under the PLRA, since they can hear deadlines, statutes oflimitations) where delay may constitutional claims and grant equitable reliefto be fatal. At 1181: The interest in saving money remedy violations. (188) by curbing defense costs in prison litigation meets Equal protection strict scrutiny does not the rational basis requirement. apply to the PLRA. Court access is not burdened; remedies are merely limited. The rational basis Mental Health Care/Use of Force/Restraints test is met by the "unquestionably legitimate Campbell v. Sikes, 169 F.3d 1353 (1Ith purposes" ofminimizing prison micro­ Cir. 1999). The plaintiffwas admitted to prison management by federal courts and preserving and had her previously prescribed medication, judicial resources. (188-89) which was appropriate for bipolar disorder, The. court did not err in refusing to stay its discontinued, albeit by a psychiatrist who saw her decision pending agreement to enforce the decree frequently. She was also placed in restraints by state courts; the stalutesays "immediate repeatedly during the same period for seemingly termination." Speculation that there might be deranged behavior. Sometimes she was in "L­ contractual obligations the defendants might not shaped restraints," a euphemism for hog-tying, for carry out provides no basis for the federal court to up to 27 hours. She was never diagnosed by stay in the act. Any valid contract claims must be prison staffwith a psychiatric disorder, just as pursued in state courts. having a history ofpolysubstance abuse. Past non-compliance with orders does not There was no deliberate indifference. The prevent termination ofthe judgment; that result is defendant psychiatrist was not shown to have contrary to the statutory language. (188-89) It known that the plaintiffhad bipolar disorder, that would also be an inappropriate remedy for civil he had misdiagnosed her, or that his treatment was contempt because it would have no coercive grossly inadequate. The failure to review her prior

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The National Prison ProjectJOURNAL Spring/Summer 2000 medical records was not deliberately indifferent transferred, for the transferee institution may not where a summary ofher records was reviewed. receive instructions concerning required Expert affidavits stating that her care was payments." substandard are not sufficient to withstand At 708: "Ignoring a judicial order, as summary judgment because they do not address Warden Fanello did, because a prisoner the defendants' subjective intent. Prior authority is contradicts it, is out ofthe question. We reiterate distinguished onthe ground that in it, the the point ofNewlin: Custodians must remit as plaintiffs condition was so obvious that ordered under §1915 without regard to the knowledge can be inferred. prisoner's wishes. A prisoner's complaint or notice The use ofrestraints did not violate the ofappeal is all the authorization needed to debit Eighth Amendment, since the plaintiffwas his trust account; wardens must follow the statute undisputedly a danger to herself and others and (and judicial orders) rather than contrary directions had shown great ingenuity in escaping from less from their charges." severe restraints. She was also monitored every 15 minutes. She got meals, bathroom breaks, and Federal Officials and Prisonsffirug Dependency sometimes a mattress to lie on. Defendants Treatment complied with all their own procedures, including Pelissero v. Thompson, 170 F.3d 442 (4th documentation, and in some cases refused requests Cir. 1999). The Bureau ofPrisons' regulation to restrain her. stating that convictions involving the use or possession offirearms were not "nonviolent PLRA: Filing Fees/Contempt offenses" entitling prisoners to early release ifthey Hall v. Stone, 170 F.3d 706 (7th Cir. successfully completed drug treatment programs 1999). The plaintiffwas denied IFP status was not unreasonable, and the program statement because the district court thought he was not in which it was contained was not subject to the indigent. He didn't payor apply for IFP in the rule-making procedures ofthe Administrative appeals court and his case was dismissed. The Procedures Act. district court ordered the Warden ofAllenwood to remit $105 from the plaintiffs account, and the Publicationsffieference warden refused to do so on the ground that the Crofton v. Roe, 170 F.3d 957 (9th Cir. plaintiffhad not authorized it. The appeals court 1999)..A state regulation barred receipt of ordered the warden to show cause why he should publications not ordered from the publisher and not be held in contempt, and his response was that paid for out ofthe prisoner's account. the prisoner had been transferred and the warden The regulation is unconstitutional under at the receiving prison had authorized payment. the Turner standard. The district court held that it That isn't good enough. It doesn't say why he is not reasonably related to concerns about fire disregarded;the order and what procedures have hazards and storage space, since other regulations been put in place to ensure that similar orders will limit the number ofbooks a prisoner may possess. be followed. He is held in contempt with It is not reasonably related to prevention of sanctions withheld to give him the opportunity to contraband, since there is no rational distinction purge the contempt by showing he has put into between the prisoner's ordering from the publisher place an administrative system that will prevent and a frien<,i or family member ordering from the this from happening again, transfers publisher. The gift prohibition is not necessary to notwithstanding. ensure efficiency ofprison operations, since the At 708: The warden's initial response "is prison can regulate the number ofgift publications unfortunately not unique. Other prisons likewise prisoners can receive. (The prison had in fact not have occasionally failed to comply; the problem limited the number ofpublications prisoners could seems to be especially severe when prisoners are possess.) The prohibition is also not reasonably

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The National Prison ProjectjOVRNAL Spring/Summer 2000

related to preventing strong-arming (extortion of judgment at some length. prisoners' family and friends), since the prison permitted family and friends to send money, Municipalities/Negligence, Deliberate which raises the same concerns. Permitting them Indifference and Intent to send money and gift packages but not Sharp v. City ofHouston, 164 F.3d 923 constitutionally protected publications also (5th Cir. 1999). In a Title VII case, a muncipality troubled the district court. can be held liable for sexual harassment based on On·appeal, defendants raised only the jury findings including that there was no effective contraband and strong-arming arguments, supervision over the workplace in question and emphasizing that the prison must monitor the that the police department "tolerated and even source ofall items coming to the prisoner; but in fostered an attitude offierce loyalty and light ofthe publisher only rule, that concern was protectiveness within its ranks" resulting in a code not furthered by the no-gift rule. The fact that ofsilence about misconduct. However, this is other gift items are also prohibited does not justify characterized as a finding under a "should have prohibiting items protected by the First known" standard--constructive rather than actual Amendment. Thus the state has "offered no knowledge. justification for a blanket ban on the receipt ofall gift publications, nor has it described any Use ofForcelMunicipalities/Res Judicata and particular risk created by prisoners receiving such Collateral Estoppel/Summary Judgment publications." (961) Thomas v. Roach, 165 F.3d 137 (2d Cir. A federal statute, 18 V.S.c. § 1702, which 1999). A plea ofnolo contendere to a criminal criminalizes the obstruction ofcorrespondence, charge cannot bar a subsequent § 1983 action does not apply in the prison context. arising from the same set offacts. A temporary delay in delivery of While a litigant cannot defeat a summary publications resulting from prison officials' judgment motion by submitting an affidavit that inspection does not deny First Amendment rights. contradicts his earlier sworn statements, the rule The district court properly denied a applies only where the plaintiffhad been continuance so the plaintiffcould take discovery "examined at length" on the subject, and not where on the publisher only rule, since he did not show his prior statements were "vague and that application ofthat rule ever hindered his inconclusive." (144) receipt ofpublications. At 145: "A municipality may be liable under § 1983 in cases ofpolice brutality where the Non-Prison Cases City's failure to supervise or discipline its officers amounts to a policy ofdeliberate indifference." Attorneys' Fees and Costs However, a series ofcivilian complaints that were Fletcher v. City ofFort Wayne, Ind., 162 investigated and found to be unfounded cannot F.3d 975 (7th Cir. 1998). Plaintiffs in two establish a policy ofdeliberate indifference. excessive force cases accepted offers ofjudgment of$5,000 and $2,500 although their complaints Municipalities/Use of Force sought $150,000 and $30,000. The district court Mettler v. Whitledge, 165 F.3d 1197 (8th properly concluded that these were nuisance Cir. 1999). At 1205: settlements and the plaintiffs were not prevailing This Court has held parties. However, the court rejects the proposition municipalities liable under Monell that a disclaimer ofliability in the offer of when the plaintiffs have produced judgment automatically precludes attorneys' fees. evidence ofprior complaints The court discusses the strategy ofoffers of sufficient to demonstrate that the municipalities and their officials

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ignored police misconduct.... officers liable for excessive force and awarded ...Evidence that a police department nominal damages, plus punitive damages against has failed to investigate previous one officer. incidents similar to the incident in Excessive force does not automatically question may support a finding that entitle a claimant to compensatory damages, e.g., a municipal custom exists, and that where claims ofinjury lack credibility or the such a custom encourages or allows injuries lack monetary value, or where some force officers to use excessive force was justified and that accounted for the injuries. without concern for punishment. The court distinguishes a prior case in which However, a single incident usually doesn't uncontested evidence ofpain and suffering entitled suffice to prove a municipal custom, and the plaintiffto more than nominal damages, since inadequate investigation ofthe current incident here there was a videotape ofthe plaintiffbefore could not have caused the current incident. and after, and evidence that cast doubt on the claims ofinjury. Use ofForce/Summary Judgment/Personal The district court's order to bifurcate the Involvement and Supervisory Liability claims against the individual defendants from Procedural Due Process those against the municipality, with the municipal Bass v. Robinson, 167 F.3d 1041 (6th Cir. claims to commence immediately upon a finding 1999). The plaintiffalleged that a police officer ofliability against the officers, is reviewed for put him in a headlock and slammed his head abuse ofdiscretion. It is upheld both because a against a tree several times even though he was trial against the municipality might have proven not resisting. The district court granted summary unnecessary had the officers been absolved, and judgment to the defendant, terming his claims because evidence that would be used against the "unfounded." This was error; the court credited municipality would have been inadmissible the defendants' version ofevents rather than the against the individual defendants (e.g., the officers' plaintiffs. personnel records and prior claims ofexcessive The court also erred in granting summary force against the Police Dept.) Other cases have judgment against the supervisor who failed to come out differently, but "[b]y its very nature, intervene. At 1048: "Supervisory liability under § discretion yields differing outcomes." (316) 1983 cannot attach where the allegation ofliability The district court erred in dismissing the is based upon a mere failure to act.... Instead, the claim against the municipality. Although the liability must be based on active unconstitutional plaintiffcould not have recovered any more behavior." (Wrong, according to most courts.) damages (the compensatory verdict against the The allegation that the supervisor attempted to officers being preclusive, and municipalities being cover up the !llisconduct after the fact gives rise to immune from punitive damages), he was entitled a question offact whether the supervisor to an award ofnominal damages against the encouraged or condoned the use ofexcessive municipality. There is a long discussion ofwhy "a force. finding against officers in their individual No due process claim was stated by the capacities does not serve all the purposes of, and is excessive force allegations, since the plaintiffdid not the equivalent of, a judgment against the not plead inadequacy ofpost-deprivation municipality." (318) The decision to bifurcate remedies. should not extinguish the right to obtain such a judgment. The court points out that the 'defendants Use ofForce/Damages: Assault and can simply default and pay their dollar, and Judge Injury/TriallMunicipalities Jacobs, concurring, adds that a default judgment Amato v. City ofSaratoga Springs, 170 lacks preclusive effect and may be grounds for F.3d 311 (2d Cir. 1999). A jury found two police reducing or denying attorneys' fees.

19 The National Prison ProjectJOURNAL Spring/Summer 2000

Privacy The plaintiffs claims are deemed to be Paul P. v. Verniero, 170 F.3d 396 (3d Cir. individual capacity claims based on the fact that 1999). The registration and community he is suing the defendants for damages for their notification provisions ofMegan's Law are upheld. individual conduct, except for the Executive The constitutional right to privacy is discussed at Director, against whom the allegations were of some length. official policies. This states a claim against the Director in his official capacity. Allegations against two jail lieutenants that District Court Cases they knowingly exposed the plaintiffto the risk of further assault and knowingly prevented him from receiving medical care for his serious medical False Imprisonment needs were sufficient at the pleading stage. Brady v. Dill, 24 F.Supp.2d 129 (D.Mass. 1998). Iflaw enforcement officers held the Rehabilitation/Searches: plaintiffeven though they knew that he was not Persons/Privacy/Standing the person named in a warrant, they could be held Lile v. McKune, 24 F.Supp.2d 1152 liable under the Fourth Amendment. (D.Kan. 1998). The plaintiffwas required to complete a sex offender treatment program or Use ofForce/Evidentiary Questions/Pre-Trial suffer impaired ability to earn good time, transfer Detainees to maximum custody, and loss ofprivileges for the Wilson v. Williams, 161 F.3d 1078 (7th review period, which "mirror the consequences . Cir. 1998). The plaintiffwaived his objection to imposed for serious disciplinary infractions." The references at trial to his having murdered a police plaintiffrefused to sign an "Admission ofGuilt" officer by not renewing it at the appropriate time form, objected to the requirement that participants at trial after his in limine motion had been denied. provide a written sexual history (verified by (This is the majority view in federal court.) polygraph) which includes all prior activities Counsel may ask the court for leave to enter a including uncharged criminal offenses, and continuing objection. Also, the plaintiffs own objected to penile plethysmograph testing. Staff references to the facts in the opening statement are required to report any uncharged sex offenses and afterward waived any objection. Admission that are disclosed, and program files are subject to ofthe evidence was not plain error. It was also subpoena. harmless error; the court thinks the plaintiffs case The required sexual history is was weak and contradictory. The court also notes incriminating for Fifth Amendment purposes. that the trial court conducted extensive voir dire to (The court does not reach the question whether the avoid prejudice on this point. written "admission ofresponsibility" for the current offense invokes Fifth Amendment Protection from Inmate Assault/Personal protection.) The sex offender program operates to Involvement and Supervisory Liability/Eye compel the disclosure ofsuch incriminating Care/Municipalities testimony. The court distinguishes the clemency Boyce v. Fairman, 24 F.Supp.2d 880 hearings at issue in Ohio Adult Parole Authority v. (N.D.Ill. 1998). The plaintiffwas attacked by Woodard on the ground that the Court found them other inmates and threatened with further attack if to be voluntary. This case would be similar to he complained. He complained, jail officials Woodard ifthe consequences ofnon-cooperation refused to place him in protective custody, and he were limited to effects on the discretionary grant was attacked again in the yard. He was not ofparole. However, the adverse consequences to permitted a return visit for his eye injury and lost classification, housing and privileges are sufficient VISIOn III one eye. to constitute Fifth Amendment compulsion. (The

20 The National Prison Project]OURNAL Spring/Summer 2000

Kansas Supreme Court has reached the same volunteers from that site and from the Ra-Here­ conclusion with respect to restrictions on earning Behutet Camp in Kansas City to assist with good time. Bankes v. Simmons, 963 P.2d 412 Thelemic spiritual needs. (1998).) The court rejects the defendants' The restrictions are upheld under the argument that ifno liberty interest is denied, there Turner standard. The court first notes that is no compulsion. defendants have expended much effort to The state may require the disclosures at accommodate the The1emic religion. The denial issue ifit extends immunity against their use in ofsome allegedly religious items (sword, dagger, subsequent criminal proceedings. etc.) clearly serves interests in safety and security, The use ofpenile plethysmography to and a Thelemic religious authority said they measure response when prisoners are played audio weren't necessary anyway. They would create a recordings ofsexual scenes does not violate the ripple effect because others would want them too. Fourth Amendment. Prisoners have no legitimate Defendants' censorship ofchapter 12 of expectations ofprivacy in their cells. At 1161: Aleister Crowley's Magick in Theory and Practice "A search ofa prisoner's body, however, is a is upheld because it discusses blood sacrifices, "a qualitatively different matter.... A prisoner retains topic that could clearly pose a threat to prison a privacy interest in the integrity ofhis own safety and security." (1228) A letter between the person." The collection ofrevealing private plaintiffand another prisoner on the same subject physiological data has been found to be an was also properly censored. invasion ofprivacy interests. However, the The Thelemic group is only allowed to reasonableness ofthis intrusion is measured by the practice once a week and is required to have Turner standard. The practice has a valid, rational outside clergy present. Religious groups need not connection to a rehabilitative program; its be treated identically as long as each has a intrusiveness is mitigated by the fact that staffdo reasonable opportunity to exercise its beliefs. The not touch or observe the inmate during the court does not refer to any official justification of procedure and do not videotape it. The fact that the differences. this procedure has garnered only limited A limit of$30 a payroll period on outside acceptance by the courts, that its usefulness is items does not deny equal protection as applied to diminished by the involuntariness ofthe program, the plaintiff; it is an incentive program and the and that staffs training and expertise is marginal, plaintiffhas not achieved a level in the program are outweighed by the deference owed defendants. permitting greater expenditures. The limit is not The consequences to the plaintiffof an ex postfacto violation because it does not noncooperation with the procedure render it increase his punishment. involuntary and give the plaintiffstanding to A limit on the number and value ofbooks challenge it. ~ the plaintiffcan possess does not deny due process or equal protection. Religion: Services Within/Practices Institution/Publications/Correspondence/Religi Federal Officials and on: Practices/Personal Property Prisons/Emergency/Protection from Maberry v. McKune, 24 F.Supp.2d 1222 Harm/Statutes ofLimitations (D.Kan. 1998). The plaintiffcomplained of Jackson v. United States, 24 F.Supp.2d 823 restrictions on his religious practice as a follower (W.D.Tenn.1998). The plaintiffsustained carbon ofthe First Hermetic Order ofThelema, a religion monoxide poisoning while locked down during a founded in 1904 by Aleister Crowley. Prison fire started during a riot. The Clinical Director officials recognized the religion and arranged for a ordered that he remain in the pri'son medical visit from Thelemic clergy from the Khensu-Ra­ facility rather than be sent to a hospital. Six days Oasis in Bellevue, Nebraska, and sought later, when he finally got to a hospital, he was

21 The National Prison ProjectJOURNAL Spring/Summer 2000 ordered that he remain in the prison medical 461 (S.D.N.Y. 1998). A Department of facility rather than be sent to a hospital. Six days Correction captain pled guilty to administrative later, when he finally got to a hospital, he was charges related to an incident ofmisuse offorce found to have a collapsed lung. and cover-up by correctional staff. He then The plaintiffs Bivens claim is barred by the alleged that he was denied due process oflaw in one-year Tennessee statute oflimitations on that he was threatened with criminal prosecution, personal injury actions. The period was not tolled bullied, treated disrespectfully, etc. The only legal while the Federal Tort Claims Act claim was question is whether he was coerced into waiving under consideration, since constitutional claims his due process right to a hearing. He was advised may not be pursued under FTCA. by competent counsel, there was no violence or The court denies the government summary threat ofviolence, and there was no withholding of judgment under the discretionary exception to the exculpatory evidence or other prosecutorial FTCA because it failed to show how the decision misconduct, so his waiver was voluntary and to leave the plaintiffin his cell during the fire was intelligent. made. In his deposition the plaintiffattested to The court denies the government summary the code ofsilence, stating that it would be judgment on the merits. The doctor who refused difficult for him to remain at DOC ifhe testified to send the plaintiffto the hospital never x-rayed against co-workers. him or took a blood sample to determine ifhe had CO in his blood, and the government has provided Pre-Trial Detainees no evidence that the doctor exercised the requisite Zimmerman v. Tippecanoe Sheriffs Dept., degree ofskill. The only evidence ofthe proper 25 F.Supp.2d 915 (N.D.Ind. 1998). course oftreatment was the paramedics' act of Procedural Due Process-­ bringing the plaintiffto the front gate for Disciplinary Proceedings (920): evacuation to a hospital. Sandin does not apply to detainees, The plaintiffs incarceration gave rise to a who are entitled to procedural due duty ofcare to the plaintiff. Staffleft their posts process in disciplinary proceedings. during the fire, showing that the government Here there was some evidence breached its duty to the plaintiff. The CO because staffsaid the plaintiffhad poisoning and the collapsed lung show proximate confessed. cause. (This is not explained.) The government Procedural Due Process-­ presented no evidence that the housing units were Administrative Segregation (921): cleared ofsmoke before the prisoners were locked Placement ofan escape risk in in or that leaving them locked in while fires segregation without a hearing, and burned out ofcontrol was reasonable. requiring him to wear leg irons when out ofhis cell, was not Habeas Corpus unlawful punishment. Moreno v. State ofCalifornia, 25 Procedural Due Process-­ F.Supp.2d 1060 (N.D.Cai. 1998). Parole Disciplinary Proceedings, Personal conditions are part ofthe criminal sentence and Property (921): The plaintiff therefore subject to the Heck rule requiring them alleged that his cell was stripped to be invalidated by a state forum or else for 14 days. The Fourteenth challenged via habeas corpus after exhaustion Amendment requires no process rather than via § 1983. when officials search a cell or remove property to ensure security. Rights of Staff Personal Property (922): Smylis v. City ofNew York, 25 F.Supp.2d Short-lived deprivation of 22 The National Prison ProjectJOURNAL Spring/Summer 2000

commissary buys does not violate Protection from Inmate Assault the Constitution. Mabine v. Vaughn, 25 F.Supp.2d 587 Attorney Consultation (E.D.Pa. 1998). The plaintiffhad a separation (922): The plaintiffcomplained of order from another prisoner whose brother he had lack ofattorney-client killed. He was assaulted by that prisoner, who confidentiality; however, the was permitted to be in the same population only defendants denied listening in on because oferror. There was no showing that the conversations and and there was no defendants actually knew about the separation evidence to the contrary. The order before the attack. The plaintiffrequired no appearance ofimpropriety does not medical treatment after the attack; his injuries are violate the Constitution. "constitutionally de minimis" and do not meet the Correspondence, serious harm standard ofFarmer v. Brennan. Procedural Due Process--Property (924): Allegations that an officer Crowding/Equal Protection/Classification: hid the plaintiff's outgoing mail do Race not state a claim since another Simpson v. Horn, 25 F.Supp.2d 563 officer found it and mailed it a few (E.D.Pa. 1998). Defendants are entitled to hours later. Allegations that summary judgment on plaintiff's overcrowding unspecified, non-written items were claim. Although he presented evidence ofa prison removed from correspondence do overtaxed by its population with breakdowns in not state a claim ifthere are post­ services and maintenance, it does not show a deprivation remedies available. deprivation ofbasic human needs. It shows, at Dental Care, Serious most, discomfort, sometimes limited to isolated Medical Needs (925-26): The instances. There is no evidence ofdeliberate plaintiff's dental complaint does not indifference, in that defendants either did not meet the serious medical needs know ofthe plaintiff's problems, or their conduct standard in the absence ofpain and (like delays in making repairs and providing discomfort, which he did not allege. supplies) was negligence at most. Use ofForce--Restraints A policy ofcell assignment that takes into (926): The plaintiffalleged that account inmates' history ofracial violence or after he had been subdued during propensity for it meets the Turner standard. The an escape attempt he was plaintiff's evidence ofthe existence ofa "chart handcuffed so tightly that he board" listing black, Hispanic and white cells, suffered permanent nerve damage. along with a memo seeming to suggest a more The defendant is denied summary categorical segregation policy and remarks made judgment. to him by staff, comprise sufficient evidence of Communication with intent to withstand summary judgment. Media, Correspondence--Legal and The prohibition ofracial segregation in Official (927): The refusal to mail prison is a clearly established right which may be letters to a newspaper reporter and abridged in narrowly tailored and particularized an attorney pursuant to a policy circumstances. against sending mail with anything on the envelope other than address PLRA: Prospective Relief and return address did not violate Restrictions/Attorney the Constitution, since he could Consultation/Standing/Deference resend the letters. Williams v. Price, 25 F.Supp.2d 623 (W.D.Pa. 1998). The plaintiffs alleged that the

23 The National Prison Project]OURNAL Spring/Summer 2000 defendants failed to provide them with facilities overhear their conversations prevented them from for confidential conversations with counsel. The being able to discuss private matters with their court entered an injunction directing them to do attorneys. This is sufficient injury. so. Defendants then moved to alter or amend under the PLRA, and the district court remanded AIDS/Special Diets to the magistrate for proceedings consistent with Polanco v. Dworzack, 25 F.Supp.2d 148 the PLRA. Plaintiffs did not pursue their request (W.D.N.Y. 1998). The failure ofthe defendants to for injunctive reliefbut sought only declaratory provide the HIV-positive plaintiffwith the brand relief name dietary supplement he wanted was not The plaintiffs did not invoke the right of deliberately indifferent. He raised only a court access because they could not meet the difference ofopinion about medical treatment. Lewis v. Casey injury requirement. Rather, they Defendants provided him with appropriate medical argued that their First Amendment free speech attention, including dietary supplements in the rights and their Fourteenth Amendment privacy form ofnight snacks. He did not lose weight rights were infringed. The Sixth Amendment was during the period in question. not relevant because the plaintiffs are convicted prisoners. At 628: ReligionlDamages: Intangible Injuries, Now that the constitutional Punitive/Use of Force right ofaccess to court is no longer Arroyo Lopez v. Nuttall, 25 F.Supp.2d 407 available to prisoners to preserve (S.D.N.Y. 1998). The defendant officer shoved the confidentiality oftheir the plaintiffwithout justification while he was communications with their counsel praying. His actions lacked any penological unless they can meet the difficult justification. Heis not entitled to qualified test ofinjury set forth in Lewis, or immunity. unless the Sixth Amendment is The court awards $2,000 for his emotional available, they will reasonably look distress and $5,000 in punitive damages. The to the right ofprivacy to assure PLRA mental or emotional distress provision is their right to confidential not mentioned; the incident antedates the PLRA. communications with counsel. This seems to be an appropriate Sexual Abuse/Jurisdictional, Procedural and application ofthe right ofprivacy. Litigation Questions/Protection from The court therefore grants plaintiffs' motion for Harm/Food/Color ofLaw declaratory relief. Gwynn v. Transcor America, Inc., 26 The right to attorney-client confidentiality F.Supp.2d 1256 (D.Colo. 1998). The plaintiffwas is also -protected by the First Amendment. This transported from Oregon to Colorado by the claim is governed by the Turner standard. defendant pursuant to a contract for extradition Defendants have raised no order, security, or other transportation. The trip took 145 hours and passed administrative need to deny privacy in these through seven states. The plaintiffalleged that she consultations. Although prisoners have an was endangered by the drivers' excessive speed alternative--written communication--the only and lack ofsleep, provided inadequate food, and impact accommodation would have on others is raped and sexually assaulted. soundproofing the rooms. Defendants' reliance on Venue was proper in Colorado, since the Laird v. Tatum is misplaced. In that case the defendants, acting under contract with Colorado, government was collecting public information essentially acted as prison guards for and agents of about people who mayor may not have been Colorado. The plaintiff, though not claiming rape chilled in their expressive activities. The present in Colorado, said she was sexually assaulted and plaintiffs showed that the ability ofothers to fondled in all ofthe states including Colorado, and

24 The National Prison ProjectJOURNAL Spring/Summer 2000

sexual assault short ofrape is actionable under § (S.D.N.Y. 1998). The plaintiffwas sentenced to 1983. two years in disciplinary segregation and served The Colorado court has personal 376 days before he got his conviction reversed in jurisdiction over the individual Transcor state court. The time he served was atypical and employees, who lived in Tennessee, since they significant under Sandin. The court reviews data acted under color ofColorado law, transported the on the nature and length ofdisciplinary sanctions plaintiffto Colorado, and performed tortious acts and notes, e.g., that the time the plaintiffserved is in Colorado. longer than all but 2.2% ofthe confinement Sexual assaults by the defendants occurred sentences imposed. under color ofstate law because they used state Sandin has brought due process analysis P9wer as a coercive force to further their wrongful "full circle." At 630: "It now appears that the acts. The fact that sexual abuse was not part of 'grievous loss' test ofGoldberg has been their jobs is beside the point; abuse need not be resurrected and repackaged as the 'atypical and "perpetrated in the performance ofthe actor's significant' hardship requirement in Sandin...." assigned tasks" to be under color oflaw. Under that analysis, the court first addresses Allegations ofunsafe driving are not atypical and significant hardship, and then objectively serious enough to state an Eighth determines whether the plaintiffhad a liberty Amendment claim or a substantive due process interest. Prior Second Circuit law holding that claim. administrative and disciplinary segregation The plaintiffs allegation that she was implicates liberty interests is still good. provided food only from McDonald's or Arby's, The New York disciplinary system and and not much ofthat, and that she was forced to prison system are different from that in Sandin. In sign for meals she was not actually given, fails Hawaii, there is only one maximum security because ten ofthe nineteen meals she received prison, compared to many in New York. The New were in various jails along the way, and she did York system permits the possibility ofunlimited not allege any harm resulting from the deprivation solitary segregation. There is a bigger difference offood. between general population and segregation in New York. In Hawaii, officials retain broad Correspondence/Publications/Mootness discretion to place prisoners in segregation for DiRose v. McClennan, 26 F.Supp.2d 550 punitive and non-punitive reasons. In New York, (W.D.N.Y. 1998). The plaintiffwas found with there is a catchall provision for administrative letters detailing an escape plan and convicted of segregation but it is only used in "emergency or disciplinary charges. Prison officials instituted a unusual situations." (633) Id.: "The limited mail watch. This action was fully justified by number, exigent circumstances, and frequent security concerns. Failure to follow defendants' review ofsuch segregations bespeak their internal directive did not violate the Constitution. atypicality." There are significant differences The refusal to permit catalogs was moot, since the between the treatment ofprisoners in punitive plaintiffhad prevailed in grievances challenging segregation and other forms ofsegregation. these denials. A Department ofMotor Vehicles Decisions holding that segregation can Driving Abstract record ofa corrections officer never be atypical and significant have not applied was properly deemed contraband and intercepted "the rigorous factual analysis commanded by because ofthe need to keep officers' addresses Sandin." (634) The duration and degree of from prisoners. restriction must be considered. The relevant comparison here is between disciplinary Procedural Due Process: Disciplinary segregation and general population, since Proceedings/Qualified Immunity protective custody conditions are closer to general Lee v. Coughlin, 26 F$upp.2d 615 population than to segregation, and administrative

25 .The National Prison ProjectjOURNAL Spring/Summer 2000 segregation "is closely cabined by extensive state outside prison. It is a "common sense assumption" restrictions." (635) Id.: "In New York, unlike that telephone restrictions serve legitimate Hawaii, the full isolation ofpunitive confinement, penological purposes. Prison officials need not compounded by the duration and the loss ofall present evidence that the evils they wish to privileges oflong-term punitive confinement, do prevent have actually occurred. impose a 'major disruption' on an inmate's Prisoners have alternative means of environment." That is especially true where the communication, i.e. visiting and correspondence. sentence is longer than received by 99% ofthe The plaintiffs' complaints ofinability to call inmate population. particular people under particular circumstances The basis for comparison under Sandin is are dismissed because they did not try to resolve the sentence actually imposed, not the potential them administratively by seeking exceptions. sentence. Having said that, the court examines the Expanded telephone privileges would have time actually served. an effect on prison resources because ofthe time it At 637: "The effect ofprolonged isolation takes to approve and to change telephone lists and on inmates has been repeatedly confirmed in to monitor calls. There are no obvious, easy medical and scientific studies." alternatives, and other well-run prison systems use At the time ofthe incident complained of, similar restrictions. the law was clearly established that disciplinary At 1296: "The legality ofmonitoring segregation without due process was inmate calls to an attorney is not settled." unconstitutional. Sandin did not retroactively Monitoring such calls does not deny access to disestablish that law. courts in the absence ofproofofinjury as required by Lewis v. Casey. In any case the evidence did Telephones/Attorney Consultation not support the existence ofmonitoring oflegal Arney v. Simmons, 26 F.Supp.2d 1288 calls, which contravened prison policy. The fact (D.Kan. 1998). Under prison policy, prisoners can that "facility phones" are monitored is not make telephone calls only collect and to persons unconstitutional given that attorney calls on the previously placed on a list limited to 10; calls can "inmate phones" are not. be recorded and monitored; calls are automatically terminated when the outside party tries to transfer Protection from Inmate Assault/Statutes of the call or make it a three-way call. The Limitations/Cruel and Unusual Punishment: monitoring feature is disabled for persons Proof ofHarm identified and verified as attorneys. The telephone Daily v. Monte, 26 F.Supp.2d 984 list can be changed every 120 days, or more (E.D.Mich. 1998). Substituting a named frequently under some circumstances. Public defendant for a John Doe defendant is a change in officials-may not be placed on the lists, but other parties, such that an amendment relates back to the arrangements are made to contact such "privileged time offiling ofthe original complaint ifthe persons" on a case by case basis. These calls are requirements ofRule 15(c), Fed.R.Civ.P. are subject to monitoring. otherwise met. The court rejects Sixth Circuit Courts are divided over whether there is authority indicating that such a substitution cannot any First Amendment right to telephone access at meet the "mistake ofidentity" requirement ofthe all. The court does not resolve this question but rule, preferring earlier authority to the contrary. upholds the restrictions under the Turner standard. The court finds that the new defendants received They are content-neutral and unrelated to sufficient notice under the rule because an suppressing expression. They are logically investigation ofthe incident must have been connected to legitimate security interests in conducted in response to the plaintiffs avoiding escape plots and the planning ofassaults, interrogatories and that the new defendants are other violent acts, and harassment ofpeople named in the incident reports supplied by defense

26 The National Prison ProjectJOURNAL Spring/Summer 2000 counsel. reduction after he had successfully completed a The plaintiffs assertions that he repeatedly substance abuse program. The Federal Bureau of complained to the defendants about threats of Prisons did not exceed its statutory authority in assault and actual assaults from other prisoners, excluding prisoners who had prior, as well as and that they saw his bruises and saw him hit on current, convictions for violent offenses from the one occasion and did nothing, sufficiently sentence reduction program. supported his Eighth Amendment claim. At 989: ".... [T]he fact that Plaintiffwas fortunate enough AIDS/Pre-Trial Detainees/Medical Care: to be rescued before serious harm was done does Standards ofLiability and Serious Medical not preclude a finding that he was in fact at Needs substantial risk ofserious harm." McNally v. Prison Health Services, 28 F.Supp.2d 671 (D.Me. 1998). The HIV-positive Criminal ProceedingslUse ofForce/Pre-Trial plaintiffwas incarcerated and told the medical Detainees staffhe needed his medications immediately. His United States v. Walsh, 27 F.Supp.2d 186 doctor confirmed his diagnosis, medication, and (W.D.N.Y. 1998). The defendant, a correctional dosage. The plaintiffwas also suffering from officer at the Orleans County Jail, was convicted symptoms including fevers, night chills, and night ofcriminal civil rights violations for stepping on a sweats. He didn't get his meds. These facts prisoner's penis on several occasions. The sufficiently pled that defendants had actual notice prisoner was mentally ill; the officer weighed 400 that he needed medical care and that they refused pounds; the officer required the prisoner to submit to provide it. to this treatment before he would give him a The allegation that a physician confirmed cigarette. The charges were corroborated by three that the plaintiffwas on a medication protocol for other officers and another prisoner. HIV treatment, and that HIV is a serious medical The court rejects defendant's argument that condition, sufficiently alleged a serious medical the force used was "merely the application ofde need. minimis force ... and was at most a spontaneous Assuming sigilificant harm is an element act under Johnson v. Glick...." (l92) Rather, it ofa medical care claim, the plaintiffshowed it, was force ofthe sort that is "repugnant to the alleging fevers, night sweats and chills, infections conscience ofmankind." Id.: "Stepping on one's from cuts and bruises, and "psychological stress penis is not 'routine discomfort' [that] is 'part of over being forced to endure a potentially fatal the penalty that criminal offenders pay for their deprivation ofprescribed medication." (674) offenses against society.'" (Citation omitted) The These allegations and the time sequence conduct was wanton and malicious because there sufficiently pled causation. was no needJor it, there was no threat reasonably perceived by the defendant, and the defendant Class Actions: Settlement/PLRA: made no effort to temper the severity ofhis SettlementslHygiene response. Austin v. Hopper, 28 F.Supp.2d 1231 The plaintiffwas a detainee for part ofthe (M.D.Ala.1998). In the Alabama chain gang time in question and a sentenced prisoner at other litigation, the parties settled the claim concerning times. The court charged the jury under the lack ofadequate toilet facilities. Defendants Eighth Amendment and neither party objected. agreed to promulgate a procedure providing for soap, water, and toilet paper; one portable toilet Drug Dependency Treatment/Federal Officials for every 40 inmates; and for medium security and Prisons inmates who work on prison grounds for whom no Martinez v. Flowers, 164 F.3d 1257 (lOth toilet facilities are available, "reasonable efforts Cir. 1998). The petitioner was denied a sentence will be made to allow privacy for those who need

27 The National Prison Project]OURNAL Spring/Summer 2000 to relieve themselves," and a shovel will be an objection." (1238, quoting earlier opinion) provided for those who must defecate. The court approves the settlement. At 1234: "[T]he court was unable to evaluate the underlying fairness ofthe agreement Rights of Particular Groups/Theories: Due without obtaining the views ofthe members ofthe ProcesslHabeas Corpus class." At 1236: "As required by Rule 23(e) ofthe Martinez v. Greene, 28 F.Supp.2d 1275 Federal Rules ofCivil Procedure, the court (D.Colo. 1998). A statute requiring that criminal ordered the parties to provide notice ofthe aliens detained for deportation hearings beheld settlement ofthe toilet-facilities issue to the without bond denies due process on its face putative class ofplaintiffs." It was posted on because, substantively, it is a deprivation ofliberty bulletin boards in all dormitories, in law libraries and is not narrowly tailored to meet valid and in dining rooms, and sent to county jails to legislative goals, and procedurally, denies facilitate notice to state inmates there. "The notice individualized consideration ofwhether each alien informed inmates about the nature ofthe is a flight risk and a threat to the community's settlement, the advantages and disadvantages of safety. the terms ofthe agreement, and the right to file an Federal courts retain jurisdiction under the objection to the settlement, and the parties also federal habeas statute and the Suspension Clause provided inmates with forms for filing such to review aliens' claims ofconstitutional violation, objections." notwithstanding the broad language ofAEDPA .At 1235: "Before approving the settlement suggesting otherwise. agreement, the court must determine whether it complies with the PLRA." However, this is a Medical Care: Standards of Liability and private settlement agreement not subject to the Deliberate Indifference/Medical Care: PLRA. "The agreement does not require judicial Standards ofLiability and Serious Medical enforcement ofits terms, but rather contemplates Needs enforcement through mechanisms permitted by the Hudak v. Miller, 28 F.Supp.2d 827 PLRA: reinstatement ofthe action and state-court (S.D.N.Y. 1998). The plaintiffcomplained of relief." chronic headaches repeatedly for nine months at At 1235: "Judicial policy favors ·voluntary one prison; he continued to complain at other settlement as the means ofresolving class-action prisons; he was finally sent out for a CT scan, and cases." proved to have a large aneurysm, which was At 1236: "In determining whether a surgically corrected. settlement agreement is fair, adequate, and A serious medical need must be reasonable, the obvious first place a court should "sufficiently serious, in the sense that a condition look is to the views ofthe class itself." Most ofurgency, one that may produce death, objectors misunderstood what was going on (e.g. degeneration, or extreme pain exists." (830, complained about other issues). The 26 objections citation omitted). It is not disputed that plaintiffs are a small percentage ofthe class; where a need was serious. settlement provides for structural changes Obviousness ofa risk may support an affecting everyone similarly, and there are no inference ofactual knowledge. At 831: "It should conflicts ofinterest within the class, majority be noted that the knowledge which Hudak must sentiment should be given great weight. But show Dr. Miller had is not that Hudak had a brain silence may not mean consent. "The court is aneurysm ... but rather that Miller knew that Judak especially wary ofsuch silence in the context of had some serious medical problem which bore prison litigation where the members ofthe class further investigation." The, doctor's self-serving are likely to have lower literacy levels, as well as statement that he believed, based on the evidence, limited access to materials to enable them to file that the headaches were from tension can't defeat 28 The National Prison ProjectJOURNAL Spring/Summer 2000 liability ifthe facts indicated that the risk ofa Correctional supervisors who allegedly serious problem was so obvious that he must have directed security officers not to release plaintifffor known about it. The fact that he treated the medical appointments could be found deliberately plaintiffevery time he came in and gave him a indifferent. neurological examination was also not dispositive. Medical personnel who, respectively, At 832: "[T]he mere fact that the plaintiffwas repeatedly reported the plaintiffs complaints and treated in some manner, while it may 'substantially symptoms and repeatedly scheduled appointments weaken[]' his claim ... does not foreclose a finding for him could not be found deliberately ofdeliberate indifference ifMiller knew that his indifferent. treatment was inadequate." Defendants not served within 120 days The fact that another doctor with access to would not be dismissed on that ground; "the 120­ the same facts also missed the aneurysm doesn't day period is not absolute and '[a]n indulgent prove the defendant didn't have actual knowledge; attitude towards pro se plaintiffs suing in forma officials at another prison, reviewing plaintiffs pauperis, especially when they are incarcerated, grievance, reached the conclusion that further has been manifest in a number ofcases.III (804, investigation and testing were warranted. citation omitted) The doctor's state111ent that "inmates are hostile" is not evidence ofbias supporting a claim Classification: Race ofdeliberate indifference. Anthony v. Burkhart, 28 F.Supp.2d 1239 (M.D.Fla. 1998). The plaintiffalleged that a Medical Care: Quarantine/Medical Care: private nonprofit corporation that administers Standards ofLiability and Deliberate prisoner work discriminated against him in Indifference/Medical Care: Standards of denying him an office position and then Liability and Serious Medical Needsillental terminating him. The court grants summary Care/Personal Involvement and Supervisory judgment to defendants. Liability/Service of Process/Grievances and At 1245: "Clearly, prison officials cannot Complaints about Prison discriminate against Plaintiffon the basis ofhis Ramos v. O'Connell, 28 F.Supp.2d 796 age, race, or handicap in choosing what job to (W.D.N.Y. 1998). The plaintiffwas placed in assign him.... Furthermore, prison officials cannot medical quarantine after he refused to be tested for punish Plaintifffor exercising his First tuberculosis. He had a dental abscess and over a Amendment rights by denying him certain job period ofmonths staffrefused to take him out of assignments or transferring him from one job to his cell for medical or dental appointments, another." despite a grievance decision in his favor. Denial ofa routine blood test is not a Class Actions: Certification ofClasses/Medical serious medical need. However, an abscessed Care: Standards ofLiability: Serious Medical wisdom tooth is. The court notes that the Second Needs/Medication Circuit has just held that a toothache that cause~ Maldonado v. Terhune, 28 F.Supp.2d 284 "great pain" is a serious medical need. (D.N.J. 1998). The plaintifftested positive for The Superintendent who granted a tuberculosis while incarcerated; he was given grievance and directed that plaintiffgo to a dentist INH, which caused some liver problems. could not be found deliberately indifferent. The defendants were not deliberately An official who was responsible for indifferent in not doing TB testing every six enforcing a policy denying medically quarantined months rather than yearly and in giving him INH. inmates medical and dental treatment, and who In both cases they were following standard was alleged to have done so with respect to the medical practice. plaintiff, could be found deliberately indifferent. A pro se prisoner is inadequate to represent

29 The National Prison ProjectJOURNAL Spring/Summer 2000 the interests ofother prisoners in a class action. PLRA: Exhaustion ofAdministrative At 290: "Active tuberculosis is surely a Remedies/State Officials and AgencieslHabeas 'serious medical need,' ... and even the latent Corpus/Procedural Due Process: Disciplinary presence ofthe tuberculosis bacterium, as shown Proceedings/Res Judicata and Collateral in a positive Mantoux test, is a condition which Estoppel must be treated with the utmost care and caution. Beeson v. Fishkill Correctional Facility, As a general rule, it is not required that latent 28 F.Supp.2d 884 (S.D.N.Y. 1998). The court health problems blossom into full fledged disease should not assume that a plaintiffs failure to before being considered serious." specify the capacity in which a defendant is sued At 290: "Prescribing medication that may means that it's an official capacity case dismissible have side effects does not amount to 'deliberate under the Eleventh Amendment; the court should indifference' to serious medical needs as is look to the course ofproceedings. necessary to support a claim under Estelle.... A claim that defendants assaulted the What is required is that grison officials be mindful plaintiffand destroyed his property in events ofside effects and take reasonable steps to avoid leading up to a disciplinary hearing is not barred serious harm." by Edwards v. Balisok because it is not a challenge to the finding ofthe disciplinary Access to Courts/Grievances and Complaints hearing, though the court does observe that some about Prison assertions may eventually be barred by collateral Lewis v. Cook County Dept. of estoppel under principles ofadministrative res Corrections, 28 F.Supp.2d 1073 (N.D.IlI. 1998). judicata. This is dictum; I have never seen The plaintiff, who worked in the law library, was administrative res judicata used in a prison observed to have what he said was a pimple and a discipline case (yet). doctor said was a hickey. They asked him whether A use offorce claim is subject to he was homosexual or had been attacked, both of administrative exhaustion; the court rejects which he denied, then fired him. He had contrary authority. It rejects the statutory previously filed a grievance against the lieutenant construction that the narrowing oflanguage from who made the decision. fonner § 1997e(a) to the current PLRA language Plaintiffstates a claim for retaliation excludes use offorce actions. It also rejects "because he has properly alleged a chronology of arguments based on the ordinary meaning ofthe events from which retaliation can be inferred." "effect" ofprison conditions (since the statutory (1076) Retaliation does not have to be the only definition ofprison conditions pre-empts ordinary logical inference that can be drawn. To pursue a meaning), and the argument from Farmer v. retaliation claim, plaintiffneed not show that he Brennan's distinction between conditions cases was prejudiced in the litigation ofa non-frivolous and use of force cases. McCarthy v. Bronson claim. The court does not explain this conclusion supports the court's interpretation. Also, the in Lewis v. Casey tenns. argument that the purported legislative purpose--to Absent injury, plaintiffdoes not state an avoid interference with prison management--is not access to courts claim. affected by use offorce disputes, is rejected The plaintiffdoes not state an equal because there is "mischief' inherent in reliance on protection claim on the ground ofdiscrimination legislative history, and in any case PLRA's by sexual orientation unless he alleges that he is a purposes include reducing frivolous lawsuits as homosexual; an equal protection plaintiffmust well. Anyway, it is a fonn ofmicromanagement allege he or she is a member ofan identifiable for courts even to decide these cases ifthey could minority and that membership caused differential be resolved by prison officials. treatment. This is probably overruled by Village Damage claims must be exhausted even if ofWillowbrook v. Olech, 120 S. Ct. 1073 (2000). the administrative remedy doesn't provide for 30 The National Prison Project]OURNAL Spring/Summer 2000 damages. The opposite argument contravenes the disappointment, the Court put its stamp of statutory language, which no longer addresses the approval on the direct legislative suspension of adequacy ofremedies, but only their availability. judicial decisions," said Ken Falk, Legal Director The opposite argument also makes applicability of ofthe Indiana Civil Liberties Union, who argued the exhaustion requirement depend on the vagaries the case before the High Court last April. "This ofstate law (i.e., whether a grievance system does ruling has grave repercussions not only for prison or does not provide damages), and would frustrate litigation cases, but for any case that Congress the legislative purpose to reduce the volume of may choose to weigh in on." frivolous prison litigation. Also, this court's At issue is the automatic stay provision of position is supported by the statement in the PLRA, which provides only 90 days for courts McCarthy v. Madigan that where Congress to rule on often complex cases before previously mandates exhaustion, rather than leaving it to entered judgments are stayed. In effect, Falk said, courts' discretion, exhaustion is required. Even Congress is forcing its timetable on an already without this authority, a balancing analysis would overworked federal court system. "At least the call for exhaustion because it serves agencies' Justices didn't foreclose the possibility that district interest in resolving their own internal problems, courts could suspend stays on court-ordered avoids the purposeful evasion ofadministrative decrees on due process grounds," he added. processes, and promotes judicial efficiency by Writing in a dissent joined by Justice getting rid ofmore prisoner cases. Stevens, Justice Stephen Breyer said that the majority ruling in this case ignores the "extreme Non-Prison Cases circumstances that at least some prison litigation originally sought to correct, the complexity ofthe Use ofForce resulting judicial decrees, and the potential Pritzker v. City ofHudson, 26 F.Supp.2d difficulties arising out ofthe subsequent need to 433 (N.D.N.Y. 1998). The plaintiff, arrested for review those decrees in order to make certain they perjury after voluntarily surrendering, stated a follow Congress' PLRA directives." Fourth Amendment claim for excessive force by Margaret Winter, NPP's Associate alleging that a police officer placed handcuffs Director, said the ruling is yet another example of tightly around his wrists and chained him to a how the 1996 Prison Litigation Reform Act has bench, and that he had previously sustained an restricted federal courts from exercising their injury to both wrists. (444) judgment in the majority ofprison litigation cases, many ofthem involving rape and sexual abuse, High Court Allows Congress' Limits on physical abuse, squalid conditions and lack of Prison Litigation medical care. The case is Us. v French et al., consolidated with Miller v. French et al., Nos. 99­ In a fresh blow to the independence ofthe 224 and 99-582, respectively. federal courts, the Supreme Court in June reinstated a key provision ofthe 1996 Prison Litigation Reform Act. Legislative Updates The American Civil Liberties Union, which argued against the law's provision in US. v BOP Medical Copayment Now Law French, said that allowing Congress to second­ The Federal Prisoner Health Care guess the Courts violates the constitutional Copayment Act of2000, [see Journal Fall 1999/ principle ofseparation ofpowers and further Winter 2000 edition], was signyd into law by the weakens a federal court sysiem already hobbled by President in October. The law authorizes the government-imposed limits. "Much to our director ofthe Federal Bureau ofPrisons to collect

31 The National Prison ProjectJOURNAL Spring/Summer 2000 a fee not less than $1 from a prisoner for each U.S. House. health care visit made by that prisoner. Certain The new law provides $10 million in grant health care services are exempted from the fee money to States to establish demonstration mental including, preventative care services, emergency health courts. The project seeks to divert mentally services, prenatal care, diagnosis or treatment of ill persons accused ofnonviolent offenses away chronic infectious diseases, mental health care, or from prison orjail and into treatment. This new substance abuse treatment. Prisoners should not amendment to the Omnibus Crime Control and be discouraged from seeking necessary medical Safe Streets Act of 1968 states that each program treatment. A last minute amendment to the law will provide ''voluntary outpatient or inpatient also requires comprehensive coverage for services mental health treatment, in the least restrictive relating to HIV/AIDS for each Federal prisoner manner appropriate, as determined by the court, when medically appropriate. The BOP may not that carries with it the possibility ofdismissal of assess or collect a fee for this coverage. charges or reduced sentencing upon successful completion oftreatment." Supervision of Grants for Mental Health Diversion Courts treatment compliance may not exceed the Pass Congress maximum sentence or probation for the charged According to a Department ofJustice July offense. 1999 report, nearly 16 percent ofall prisoners in State prisons and local jails suffer from mental illness·. The National Alliance for the Mentally III NPP is Moving! estimates that 25 to 40 percent ofthe nation's mentally ill will come into contact with the As ofJanuary 1,2001 our new criminal justice system. Statistics like these as address will be 733 15 th Street, NW, Suite well as Representative Ted Strickland's first hand 620, Washington, DC 20006. The new knowledge, from working as a psychologist phone number will be 202-393-4930. treating prisoners in a maximum security prison, inspired him to introduce America's Law Enforcement and Mental Health Project in the

The National Prison Project Non-Profit American Civil Liberties Union Foundation U.S. Postage 1875 Connecticut Avenue, NW, Suite 410 PAID Washington, DC 20009 Permit No. 5248 Washington, DC ~21

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