, .

THE NA TIONAL PRISON PROJECTJOURNAL

A project of the American Civil Liberties Union Foundation, Inc.Vol. 10, No.4, Fall 1995· ISBN 1076-X

As you can see, this quarters edition of the National Prison Project Journal is rather more subduedthan usual -- missing our red mast head, glossy paper and even photographs. This last quarter has beena particularly difficult one for the NPP. We have been telling you for the past six months about thelegislation currently before Congress known in different bills as the "Stop Turning Out Prisoners Act" orthe "Prison Litigation Reform Act". As we go to press we do not know which of these bills, if either, willpass, when they will become law or precisely what their impact will be on our work. We do know thatthey will have a significant impact (the details of the legislation and the nature of that impact areexplained in the article below). While we wait to see exactly what is going to happen and how best wecan adjust to the radically changed circumstances in which we will be working, we are limiting ourexpenditures to basic necessities. Providing information to our Journal subscribers is certainly anecessity - the color printing and the glossy papers we can forgo. We hope by our next edition we willbe producing something that looks rather more like the Journal you are used to.

The Prison Litigation Reform ActThe "Stop Turning Out

Prisoners Act" (STOP),which passed the House asTitle III of HR 667 and wasbefore the Senate JudiciaryCommittee as S.400, be­came part of the State, Jus­tice and Commerce Appro­priations Bill (H.R. 2076)this fall, added by the Ap­propriations Sub-CommitteeChair (and aspiring Republi­can presidential candidate)Phil Gramm.

When the bill reachedthe floor of the Senate, Sen­ator~ Orrin Hatch and BobDole (another aspiring presi­dential candidate) substitut­ed their Prison Litigation Re­form Act (PLRA) for theSTOP language and thisversion passed the Senateby a voice vote on Septem­ber 29. As the Journalgoes to print, the bill is dueto come before the joint

Senate-House ConferenceCommittee. When a com­promise has been workedout between the House andSenate bills, H.R. 2076 willeither be sent to PresidentClinton for signature as itstands, or it will be joinedtogether with other bills andsent to him as part of along-term Continuing Reso­lution to provide funds torun the govemment until thedetailed budget is workedout.

The PLRA is in somerespects even worse thanSTOP. While proponents ofthe bill have been talking agreat deal about "frivolous"prisoner lawsuits as thoughthey were the only target ofthis legislation, the reality isthat the PLRA will impactmeritorious lawsuits involv­ing serious constitutionalissues. It will severely limit

the federal courts in rem­edying abuses suffered byprisoners in all cases, eventhose that seek to enjoin therape of juvenile and womenprisoners by prison guards,the sadistic beatings of pris­oners, and the failure to pro­vide prisoners with minima'­Iy adequate medical andmental health care.

Among many provisionsthe bill would -Prevent states from enteringInto consent decrees byrequiring a finding of a viola­tion before a court couldissue any relief in a prisonconditions case, therebyeffectively prohibiting court­enforceable consent de­crees. If plaintiffs counselare not agreeable to a non­enforceable settlementagreement, which will be thecase in most circumstances,the bill forces prison offiCIals

to choose between (1) goingto trial and risking a findingof liability, even in a casethat they believe they willlose; or (2) making an ad­mission of liability.Call for the immediate termi­nation of all existing consentdecrees, upon motion by thedefendant, unless the courtholds a trial and makes afinding of a current violationof a federal right. The pro­vision destroys all the workthat has been done by bothsides in reaching agreementand could lead to conditionsin every prison and jail thatis currently operating undera consent decree decliningto their previous unconstitu­tional state.Render emergency relief allbut ineffective by requiring apreliminary injunction to ter­minate 90 days after entryunless the court makes theinjunction final within the 90days. The parties wouldtherefore have to completediscovery and the courtcomplete a trial and issue adecision within the 90-dayperiod, an extremely unreal­istic time frame. Preliminaryinjunctions are designed toaddress emergencies, ofteninvolving life and death situ­ations, that cannot wait forthe length of time requiredto conduct a full trial. Ter­mination of a preliminary in­junction, without attention towhether there is good causefor the injunction to remainin effect, deprives a court ofthe power to prevent a de­fendant from returning to lifethreatening practices.Require any relief that is thesUbject of a pending motionto go out of effect 30 daysafter the filing of a motion.

This provision is particularlydamaging given that the billrequires a court to terminateall existing consent decrees,unless the court conducts atrial and finds a violation offederal law. Thirty days issimply not an adequateamount of time for the par­ties to engage in discoveryand the court to hold a trialand issue a ruling. Thisprovision allows defendantsto revert to practices thatwere found by a court to beunconstitutional, simply be­cause the court has not hadtime to retry the case.Render special masters in­effective by limiting amaster's powers to makingfindings based on the re­cord, essentially making amaster a second judge orMagistrate. The most usefulpurposes served by mastersrelate to formulation andimplementation of in­junctions, mediation of dis­putes between the parties,and reporting to the court oncompliance with a court'sorders. The bill prevents acourt from appointing amaster to serve in thesecapacities. The bill also lim­its the compensation of spe­cial masters so severely thatit will be very difficult to findsuitably qualified experts toundertake the work.Drastically limit the availabil­ity of attorney's fees by pre­venting a court from award­ing attorney's fees in all set­tled cases and for workdone by plaintiffs counselduring the remedial stage oflitigation. With no compen­sation payable for monitor­ing, defendants would beinsulated from any oversightof their compliance with a

court's orders. This wouldmake the orders worth littlemore than the paper theyare written on because de­fendants could fail to obeythem with impunity.

The bill also severelylimits attorney's fees for allother prison litigation work,tieing them to CJA Actrates, despite the fact thatprison litigation fees arecontingent on winning thecase and have to cover allthe fees and expenses forexperts.Deny prisoners damages formental or emotional injUrythat leaves no physicalscars effectively allowingprison guards to torture pris­oners without being liablefor damages provided thatthe torture does not cause"physical injury."

In addition to its impactin class action suits, the billalso imposes new restric­tions on pro-se filings (de­scribed in the "Dear PrisonProject" box on page 15)and prohibits some ameni­ties, such as weightliftingequipment and in-cell televi­sions, in federal prisons.

Taken together, the rro­visions of this bill constitutethe latest and most destruc­tive steps in the currentmovement towards theharsher and more mean­spirited treatment of prison­ers -- a movement that hasbeen condemned by correc­tions officials as well asprisoners' rights activists.Of course, a number of theprovisons are of question­able constitutionality and WIllbe challenged in the courtsHowever, final resolution ofthose challenges will takesome time.

2 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL

to apply further than protect­ing the ability of an inmateto prepare a petition or acomplaint." However, thisstatement was mdde in thecourse of upholding the in­spection of legal correspon­dence in the prisoners pres­ence, against a claim that itcould not be inspected atall. The question of legalassistance beyond thepleading stage was not pre­sented, and indeed Boundsv. Smith, the first systematicstatement of the right ofcourt access, had not evenbeen decided. The WolffCourt also held that prison­ers had the right to seekassistance from one anotherin civil rights actions as wellas in habeas corpus pro­ceedings. Referring to thisdiscussion, the appealscourt in Comett cites refer­ences to "present[ing) '"allegations" and "articulat­[ing) their complaints" assupporting its view that as­sistance is required only atthe pleading stage. Buthere, too, the quc5tion WJS

not presented in Wolff andthe Court did not purport toaddress it. Comett makessimilar use of sound bitesfrom Bounds v. Smith.

The Ninth Circuit is notthe first federal appealscourt to take this approachThe Tenth Circuit held someyears ago that the right tocourt access extends nofurther than the filing of acomplaint or petition.Nordgren v. Milliken, 762F.2d 851,855 (10th Clf),cert. denied, 474 U.S 1032

of meaningful legal papersby providing prisoners withadequate law libraries oradequate assistance frompersons trained in the law."

In Comett v. Donovan,51 F.3d 894 (9th Cir. 1995),the question presented was"whether the constitutionalright of access to the courtsrequires a state to providelegal assistance beyond thepleading stage." It arose atan Idaho state mental hospi­tal, which did not provide alaw library but--after beingsued--contracted with thecounty public defender toprovide limited legal servic­es to its patients. (Thecourts have treated thecourt access rights of thecivilly committed or detainedas generally equivalent tothose of prisoners. See,e.g., Ward v. Kort, 762 F.2d856, 858 (10th Cir. 1985);Orantes-Hemandez v.Smith, 541 F.Supp. 351,384 (C.D.Cal. 1982) (immi­gration detainees).)

The Comett court heldthat the obligation to providelegal assistance did not ex­tend beyond the pleadingstage. It supported thisconclusion primarily by mar­shalling out-of-contextphrases from SupremeCourt cases. For example,it cited as "the most directstatement on the subject"the observation in Wolff v.McDonnell, 418 U.S. 539,576 (1974), that "the Four­teenth Amendment due pro­cess claim based on accessto the courts ... has notbeen extended by this Court

Case Law Report -- Highlights of Most Important Casesby John Boston

ACCESS TO COURTSAs the Supreme Court

prepares to review a prisoncourt access case for thefirst time in 18 years, seeCasey v. Lewis, 43 F.3d1261 (9th Cir. 1994), cert.granted, 115 S.Ct. 1997(1995), two federal appellatecourts have issued strikinglyregressive decisions con­cerning the scope of theright. Both decisions arenotable not only for theirresults but also for their reli­ance on catchphrases fromprior case law in preferenceto any analysis of the natureof the right to court access.

Prisoners' right of ac-.cess to courts was firstacknowledged in Ex parteHull, 312 U.S. 546 (1941),which struck down a stateregulation requiring officialapproval before prisonerscould file habeas corpuspetitions, and in Johnson v.Avery, 393 U.S. 483 (1969),which invalidated a disciplin­ary rule forbidding prisonersto assist one another in pre­paring legal papers. BothHull and Johnson restedlargely on "the fundamentalimportance of the writ ofhabeas corpus...." Johnson,393 U.S. at 485.

In Bounds v. Smith, 430U.S. '~17, 828 (1977), how­ever, the Supreme Courtheld that there is a moregeneral "constitutional rightof access to the courts" andthat prison officials are re­quired not only to refrainfrom obstructing it but affir­matively to "assist inmatesin the preparation and filing

THE NATIONAL PRISON PROJECT FALL 1995 3

(1985). This view is actuallymore restrictive than theNinth Circuit's; Cornett doesdefine the "pleading stage"slightly more broadly thanthe initial filing, so as to in­clude the reply to a counter­claim or the answer to across-claim if one is assert­ed. 51 F.3d at 899. Theother circuit to rule on thisquestion took an evenbroader view of the pleadingstage. In Knop v. Johnson,977 F.2d 996, 1000 (6th Cir.1992), cert. denied subnom. Knop v. McGinnis, 113S.Ct. 1415 (1993), the SixthCircuit held that the state "isnot obligated to do anythingmore than assist inmates atthe pleading stage," 977F.2d at 1007 (quoting thedistrict court). However, ithad earlier stated thatmeaningful court access,"as the [district] court cor­rectly noted, entails not onlythe drafting of complaintsand petitions for relief but "also the drafting of respons­es to motions to dismissand the drafting of objec­tions to magistrates' reportsand recommendations." Id.at 1000 (citing the samepassage from the districtcourt). Presumably, then,the Sixth Circuit includesthis motion and objectionpractice as part of the"pleading stage."

The rationale for theCornett holding is the per­ceived necessity to

distinguishO between theconstftutionalrightofaccess to the courts andthe constftutional right tocounsel. .... The right ofaccess is designed toensure that a habeaspetition or a civil rights

complaint of a person instate custody will reacha court for consideration.Once the claim reachesa court, an indigent insti­tutionalized person is inthe same position as anindigent noninstitution­alized person filing, forexample, a civil rightsclaim.... The court candetermine whether theclaim warrants appoint­ment of counsel to rep­resent the plaintiff. If so,the court may requestan attorney to representan indigent plaintiff.

51 F.3d at 899 (citationsomitted).

This reasoning is ques­tionable on two grounds.First, it ignores reality toclaim that institutionalizedindigents ever are in thesame position as those whoare not physically confined.As another court pointedout:

[This} argumentoverlooks the fact thatan unincarcerated indi­gent person is free to goto an attorney, explainhis claim, and try to con­vince the attorney toaccept the representa­tion. Furthermore, if anunincarcerated personchooses to representhimself, he can go to alaw library to do legalresearch and educationhimself on how to pre­pare his petftion or com­plaint.

Carper v. Deland, 851F.Supp. 1506, 1522 (D.Utah1994), rev'd, 54 F.3d 613(10th Cir. 1995). Add to thisthe unwillingness of manylawyers to deal with prison­ers, plus the fact that an

incarcerated person facessubstantial restrictions inattempting to locate andinterview witnesses and oth­erwise gather evidence in afactually contested proceed­ing, and the absurdity ofCornett's view becomes ap­parent.

The other prong ofCornett's reasoning-thatonce a proper pleading isbefore the court, the courtcan determine whether toappoint counsel--is also atodds with reality. The wide­spread practice in the feder­al courts is seriously to con­sider the merits of a requestfor counsel only after thecase has survived disposi­tive motions. Very often therelevant motion will be amotion for summary judg­ment and not a motion todismiss. Summary judg­ment does not appear to beincluded even in Knop's ex-

.panded definition of "thepleading stage." Thus, un­der Cornett's and Knop'sreasoning, the prisonerwould not be entitled eitherto the use of a law library orthe assistance of legallytrained persons at this cru­cial point in the case.

In addition, courts canonly request attorneys torepresent indigent prisoners,see Mallard v. U. S. DistrictCourt for the Southern Dis­trict of Iowa, 490 U.S. 296,104 L.Ed.2d 318 (1989),and the supply of willinglawyers is inadequate. (Forexample, even in the South­ern District of New York,with its concentration of law­yers, its strong pro bonotradition, and its well-orga­nized counsel appointmentsystem, there is a very large

4 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL

backlog of cases in whichthe courts have ruled thatcounsel should be assignedbut no attorney has beenfound.)

A different questionabout the scope of Boundsis presented in Carper v.DeLand, 54 F.3d 613 (10thCir. 1995). Carper arose inthe Utah prison system,which--Iike the mental hospi­tal in Cornett--provides legalassistance through a con­tract with local attorneys;there are no law libraries inthe prisons and inmates arenot allowed assistance from"writ writers."

Several Utah prisonersfiled suit when the contract,formerly of broad scope,was changed to eliminategeneral legal assistance incivil matters and to restrictthe attorneys' services towrits of habeas corpus andchallenges to conditions ofconfinement. The federaldistrict court granted a pre­liminary injunction to thenamed plaintiffs and to sev­eral additional prisoners pre­serving the existing level ofservices to those individu­als. A class was then certi­fied of "all current and futureinmates in the Utah prisonsystem who seek to exer­cise certain legal rights."Carper v. DeLand, 851F.Supp. 1506, 1510-11 (D.Utah 1994). The court up­held some aspects of theUtah 'system but grantedsummary judgment to theplaintiffs on several issuesand issued an injunction.

The applicability ofBounds to civil proceedingshad not previously beenaddressed by the federalcourts in any consistent or

THE NATIONAL PRISON PROJECT

systematic fashion. In Jack­son v. Procunier, 789 F.2d307, 311 (5th Cir. 1986), thecourt stated generally thatthe right extended to civilclaims, but the case at handinvolved only an appealfrom an adverse civil judg­ment. The same court hadearlier stated that the rightapplies to "general civil legalmatters including but notlimited to divorce and smallclaims." Corpus v. Estelle,551 F.2d 68, 70 (5th Cir.1979). Two courts had heldthat the right is "strongest"with respect to "direct andcollateral appeals of criminalconvictions"; it is "alsostrong" in civil cases involv­ing fundamental constitu­tional rights; and it is "weak­er" when the case does notraise any constitutionalclaims. Cofield v. AlabamaPublic Service Commission,936 F.2d 512, 517 (11th Cir.1991); accord, In re Green,669 F.2d 779,785 (D.C.Cir.1981); see Straub v. Monge,815 F.2d 1467, 1470 (11thCir. 1987) (Bounds rightapplies to civil forfeiture pro­ceeding). The Sixth Circuitadopted a more restrictivebright-line rule in John L. v.Adams, 969 F.2d 228,234­37 (6th Cir. 1992), holdingthat the Bounds v. Smithright of "affirmative assis­tance" applies only to civilactions related to prisoners'incarceration. With respectto other kinds of civil ac­tions, this court held, prisonofficials' obligation is limitedto refraining from imposingbarriers or impediments tocourt access..

The district court inCarper took the approach ofthe Eleventh and District of

Columbia Circuits and ap­plied it with specificity to anumber of types of civilclaims. The court distin­guished between claims thatit thought raise "fundamentalinterests" and those that donot. Thus, it concluded thatthe state must provide as­sistance in opposing pro­ceedings to terminate pa­rental rights and in divorceproceedings, relying on theimportance--and the legalprotections--that the Su­preme Court has accordedto them in cases such asBoddie v. Conecticut, 401U.S. 371 (1971) (exemptingindigents from costs andfees in divorce proceed­ings), Stanley v. l!Iinois, 405U.S. 645 (1972) (requiringhearings for unwed fathersbefore termination of paren­tal rights), and Little vStreater, 452 U.S. 1 (1981)(requiring free blood testsfor indigents in paternityproceedings).

The Carper district courtsimilarly held that assis­tance is required in woriters'compensation matters.which it analogized to thewelfare benefits at issue InGoldberg v. Kelly. 397 U .s254 (1970), and ·for smallclaims involving propertytaken or destroyed by per·sons acting under color ofstate law. However, it heldthat other small claims,name change proceedings.personal injury and othertort cases, breach of con­tract claims, and collectionmatters do not invoke theBounds holding. Interest­ingly, the court also heldthat the obligation with re­spect to family law matters"would not extend to matters

FALL 1995 5

involving enforcement orcontempt proceedings ormodification proceedings indivorce cases." 851F.Supp. at 1506.

The district court's anal­ysis can be faulted. It is notclear that distinctions madefor purposes of requiringhearings, eliminating filingfees, and ensuring adequatefact-finding can be importedwholesale into the Boundsanalysis. Nor is it clear whya claim for workers' com­pensation for an injuryshould be treated differentlyfrom a claim for tort com­pensation for the same inju­ry sustained off the job,since either award may pro­vide the only means of sus­tenance for the injured per­son and his or her family.Nonetheless, the Carperdistrict court opinion is themost substantial effort byany court to explore the im­plications of Bounds for civilproceedings.

On appeal, the TenthCircuit responded to thislaborious analysis by dis­missing it out of hand, citingprevious circuit authoritythat stated, e.g., that ''weare persuaded that weshould not hold that theright of access to the courtsrequires more than the as­sistance of counsel throughcompletion of the complaintfor a federal habeas or civilrights action." Carper v.Deland, 54 F.3d 613 (10thCir. 1995), quoting Nordgrenv. Milliken, 762 F.2d 851,855 (10th Cir.), cert. denied,474 U.S. 1032 (1985).

The appeals court'sstatement that "settled pre­cedent" requires reversal ofthe district court's decision

is simply false. Like Cornettv. Donovan, it marshals out­of-context sound bites fromprevious opinions while ig­noring the fact, explained indetail in the district court'sopinion, that the question ofBounds' applicability to civilproceedings was not actual­ly presented in Nordgrenand the other Tenth Circuitcases. Rather, these deci­sions focused on the ques­tion whether the right ex­tends to assistance beyondthe pleading stage (dis­cussed above). Similarly,references in SupremeCourt cases, e.g., to "origi­nal actions seeking newtrials, release from confine­ment, or vindication of fun­damental rights," Bounds v.Smith, 430 U.S. at 427,were made in the course ofdescribing the issues beforethe Court in the particularcase, not in defining thereach of prisoners' courtaccess rights.

By its misplaced relianceon prior dicta, the appealscourt was able to avoid theneed for any actual analysisof the issues before it,which were substantial. Thequestion of the properscope of the Bounds rightcan be answered only bystarting with a clear under­standing of the nature andpurpose of the right to courtaccess.

This may seem like ahard task in theory, giventhe vagueness of the originsof the right, which havebeen found variously in theDue Process Clause, theEqual Protection Clause, theFirst Amendment, and thePrivileges and ImmunitiesClause of Article IV of the

Constitution. See, e.g.,Murray v. Giarratano, 492U.S. 1, 11 n. 6,109 S.Ct.2765 (1989); John L. v. Ad­ams, 969 F.2d 228, 231-32(6th Cir. 1992). But com­mon sense provides ampleguidance. The purpose of acourt system is presumablyto provide for the fair resolu­tion of disputes. It followsthat meaningful access tothat system does not endwith the filing of a pleadingthat then goes nowhere.See Bonner v. City ofPritchard, Ala., 661 F.2d1206, 1212-13 (11th Cir.1981) (right of court accesswas not satisfied by permit­ting prisoner to file a com­plaint and then dismissinghis case until the end of histen-year sentence); NAACPv. Meese, 615 F.Supp. 200,206 n. 18 (D. D.C. 1985)(right of court access ex­tends past pleading stage).Instead, it entails "all themeans a defendant or peti­tioner might require to get afair hearing from the judicia­ry." Gilmore v. Lynch, 319F.Supp. 105, 111 (N.D.Cal.1970), aff'd sub nom. Youn­gerv. Gilmore, 404 U.S. 15(1971) (per curiam). Suchmeans include, among oth­ers, the ability to respond tomotions directed to thepleadings, to respond to ormake motions for summaryjudgment or default judg­ment, to pursue discoveryand to engage in discoverymotion practice when nec­essary, to obtain the ap­pearance of necessary wit­nesses, to prepare the pre­trial submissions required bymodem courts, to addressissues of evidence and ofjury procedure and instruc-

6 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL

tions that arise at the trial,to pursue or defend appel­late proceedings, and toenforce or defend againstthe enforcement of judg­ments.

Restricting court accessrights to habeas and civilrights proceedings is alsoinsupportable if the right isviewed as one of meaning­ful access to society's insti­tutions for fair dispute reso­lution. The reason the statehas an affirmative obligationto facilitate prisoners' courtaccess is that incarcerationlimits their ability to act forthemselves. CompareDeShaney v. WinnebagoCounty Dept. of Social Ser­vices, 489 U.S. 189,200(1989) (holding that thestate's Eighth Amendmentduties to a prisoner arise'.'from the limitation which ithas imposed on his freedomto act on his own behalf.")The consequences of beinglocked up are the samewhether one is pursuing a §1983 action or a tort claimor defending a divorce orcontract proceeding, and therisk of denial of a fair hear­ing and resolution of one'sclaim or defense is likewisethe same.

It is worth noting that,although the right of courtaccess is generally viewedas an aspect of liberty, thelegal claims that a courtsystem is designed to pro­tect·are "a species of prop­erty protected by the Four­teenth Amendment's DueProcess Clause." Logan v.Zimmerman Brush Co., 455U.S. 422, 429 (1982). Thislong-settled principle is rein­forced by more recent deci­sions holding that "[t]he hall-

THE NATIONAL PRISON PROJECT

mark of property ... is anindividual entitlementgrounded in state law, whichcannot be removed except'for cause'''--a descriptionthat is broad enough to cov­er the right to use estab­lished adjudicatory proce­dures, and to assert defens­es as well as claims for re­lief. Id. at 430-31 (citationsomitted).

Holdings that a criminalsentence broadly extinguish­es a prisoner's liberty inter­ests during the term of con­finement, see Meachum v.Fano, 247 U.S. 215, 224(1976), do not extend toproperty interests, sincecriminal convictions in theUnited States do not auto­matically impair or extin­guish these. Forfeiture orconfiscation of a convict'sproperty must be specificallyauthorized either in thecriminal sentence itself (e.g.,by fine or restitution order)or by a separate statute orjudgment.

For these reasons, acourt access system thatprovides for the filing ofpleadings, but not for thefair opportunity to prosecuteand to try the underlyingclaims, runs counter to thedue process concems thatthe right of court access isdesigned to satisfy. Thesame is true of a court ac­cess system that extends tosome legal claims but not toothers.

These broad principlesapply no matter what kind ofcourt access system a stateelects to provide. However,as a practical matter, it is noaccident that the regressiveholdings of Comett andCarper were both asserted

in cases involving legal as­sistance programs and notlaw libraries. Once an insti~

tution has bought and in­stalled a law library, itmakes little sense--and itwould probably be unwork­able--to limit its use to pris­oners working on pleadings.Similarly, the same expen­sive sets Of case reportersand digests are required forresearch on criminal andcivil rights matters as forother kinds of civil proceed­ings; once these are pur­chased, it is hardly practicalto restrict the kinds of is­sues that can be re­searched, and the additionalcost of a few treatises andform books for civil mattersis relatively low.

By contrast, whenBounds is satisfied by hiringlawyers, the cost of the pro­gram will be directly relatedto the services rer')dered.Many prisoner advocatesare a little cynical about reli­ance on law libraries, whichconfer great benefits on theglib and the clever but, with­out more, do very little forthe majority of prisoners,many of whom are poorlyeducated, inarticul::tte, illiter­ate, or not fluent in English.But Carper and Cornettshow that a lawyer-baSedcourt access system maycome with so many stringsattached that the seemingadvantage of professionalassistance is ultimately illu­sory.

FALL 1995 7

Other CasesWorth Noting

U.S. COURT OF APPEALS

Hazardous Conditions andSubstances

Weaver v. Clarke, 45 F.2d1253 (8th Cir. 1995). Theplaintiff was double-celled witha heavy smoker and com­plained of various medical con­sequences. The defendantsdid nothing effective about ituntil a doctor ordered that hebe transferred. Aithough theevents occurred before Hellingv. McKinney, the plaintiff al­leged the violation of a clearlyestablished right under Estelle.since the defendants were al­legedly indifferent to his pres­ent medical needs and not justhis future needs.

Communication/ExpressionJones v. Coughlin. 45 F.3d

677 (2d Cir. 1995). Theplaintiffs allegation that he was"subjected to false misconductcharges as retaliation for hisexercise of a constitutionalright such as 'petitioning thegovernment for redress of hisgrievances" states a substan­tive due process claim. Itshould not have been dis­missed as conclusory on thisrecord, since the plaintiff hadhad no discovery, and sincehis testimony that one of thedefendants made retaliatorythreats, as well as the timesequence of events, wouldsupport an inference of retalia­tion.

Use of ForceMelendez v. City of

Worcester. 870 F.Supp. 11(D.Mass. 1994). Allegationsthat police officers forced anarrestee in a holding cell to thefloor and left him hog-tied for40 to 45 minutes supported aclaim of unconstitutional mis­use of force.

Searches-Person-ArresteesKel/y v. Foti, 870 F.Supp.

126 (E.D.La. 1994). The plain­tiff was arrested after makingan illegal turn and being unableto produce her driver's license.A visual body cavity search ofher violated the Fourth Amend­ment. Her lack of a picture 10and failure to post a low cashbond did not create reasonablesuspicion justifying the search.

Standing/Class Actions-Certifi­cation of Classes

Hvorcik v. Sheahan, 870F.Supp. 864 (N.D.IIl. 1994).The Sheriff failed to implementsafeguards to ensure that in­valid or obsolete arrest war­rants were purged from thecomputer. The court distin­guishes Lyons and holds thatthere is standing, since thethreat of recurrence of the con­duct O.e., baseless arrest) isgreater, and since a class hadbeen certified. unlike eitherLyons or O'Shea v. Littleton.The question is whether theclass has can demonstratesufficient stake to establishstanding.

Mental Health CareJudicial Disengagement

Taylor v. Wolff. 158 F.R.D.671 (D.Nev. 1994). A consentdecree concerning mentalhealth care was entered in1984; in 1988, the court foundthat the defendants had com­plied with only two of the provi­sions. The court appointed amonitor.

The court makes a "findingof compliance" ("in the dynamicsense"). However. it finds thatcompliance with requirementsconcerning transfer of inmatesneeding inpatient care to a newregional facility has now beenaccomplished. but that themaximum security inmatesmoved there are subject tolock-in and strip search re-

quirements that preclude thequality of treatment required inan inpatient facility. The courtstates that continued compli­ance will require satisfactoryprogress toward resolving thisproblem to provide effectivemental health care in a safeenvironment. Until this is donethe case will not be closedeven if the one-year period foradditional monitoring expires.

Discovery/SanctionsCal/wood v. Zurita, 158

F.R.D. 359 (D.V.1. 19994).After the defendants in a policemisconduct case filed by a prose prisoner failed to reply to hisdiscovery requests and mo­tions despite several court or­ders, the court deems thecomplaint's allegations estab­lished, precludes them fromasserting any defense or pre­senting any evidence or argu­ment refuting the admissionsthey had failed to respond to,and precludes them fromamending their answer to as­sert any counterclaims andfrom filing any dispositive mo­tions.

Protection from Irvnate AssaulHobbs v. Lockhart, 46 F 3d

864 (8th Cir. 1995). The plain­tiff. who was supposed to bekept isolated from other in­mates, was attacked wht:1I i:1II'

other inmate was releasedwhile he was outside his ce.The magistrate judge ordered a"pre-jury hearing" (citing theFifth Circuit case Spears v.McCotter) and then concludedthat no reasonable jury couldhave found in his favor; thedistrict judge dismissed thecomplaint.

This procedure was im­proper. Spears hearings areintended to determine whethera plaintiff is permitted to pro­ceed in forma pauperis. andthat issue had been decided.It was not a hearing on a rna-

8 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL

The "unclean hands" ofthose class members who ab­sconded from the drug facilitydid not provide the city a de­fense, since the class of plain­tiffs as a whole did not act inbad faith.

Contempt/Release of Prison­ers/Consent Judgments

Harris v. City of Philadel­phia, 47 F.3d 1342 (3d Cir.1995). The defendants unilat­erally changed their procedurefor designating prisoners forrelease under a consent de­cree. They could not be heldin contempt for doing so, sincethe decree did not require ob­taining court approval. Thechange reduced the number ofinmates eligible for release byeliminating several categories:inmates with "other holds," in­mates with state or federaldetainers, and inmate who are"a danger to themselves orothers" (Le., have bail over$75,000 or need mental healthtreatment). The defendantscannot be held in contempt forthe first category absent an un­ambiguous provision requiringtheir eligibility. The contemptfinding is upheld with respectto the other two categories. At1352: "While prior practicemay be of assistance in inter­preting a contract for purposesother than contempt, priorpractice does not provide theclarity of language that prece­dent informs us is a predicatefor any contempt ruling."

Protection from Inmate As­saultlJI,Jry Instructions andSpecial Verdicts

Randle v. Parker, 48 F.3d301 (8th Cir. 1995). The plain­tiff and his assailant were oneach other's "enemies list" af­ter a fight; they were twice letout into each other's presencecontrary to prison policy andthe plaintiff was assaulted bothtimes. The plaintiff received

THE NATIONAL PRISON PROJECT

injuries to his groin and eyeand required surgery. A juryawarded him $3500.

A jury verdict for the plain­tiff based on instructions that adefendant could be held liablebased on what he should haveknown was erroneous underFarmer and requires reversal.The jury instructions are quot­ed as to all the elements of anEighth Amendment claim.

Recreation and ExerciseAllen v. Sakai, 48 F.3d

1082 (9th Cir. 1995), amending40 F.3d 1001 (9th Cir. 1994).The plaintiff alleged that whilein segregation he was permit­ted only 45 minutes a week ofoutdoor recreation. The defen­dants had a "goal" of five hoursa week but said they didn'tmeet it because of the "logisti­cal difficulties" of taking oneinmate at a time to the yard.

Deprivation of regular out­door exercise has been previ­ously defined as a basichuman need. The subjectiverequirement of the EighthAmendment is met by thedefendants' awareness of theirown goal of five hours a week.Vague references to logisticalproblems cannot entitle the de­fendants to summary jUdgment.At 1088: "A rational fact-finderafter hearing the evidencemight determine that the defen­dants acted with at least delib­erate indifference to Smith'sbasic human needs ... by plac­ing inconsequential logisticalconcerns that might be nomore than matters of conve­nience above Smith's need forexercise."

Since the plaintiff was sub­ject to harsh conditions andindefinite and potentially long­term segregation, in light ofSpain v. Procunier the defen­dants were not entitled to quali­fied immunity. LeMaire v.Maass did not benefit thembecause in that case the plain-

tiff had been deprived of out­door exercise because of hismisconduct in segregation.

Pro Se Litigation/PleadingSimmons v. Abruzzo, 49

F.3d 83 (2d Cir. 1995). Thedistrict court should not havedismissed the plaintiffs corr­plaint for violation of the re­quirement of Rule 8,Fed.R.Civ.P., of a short andplain statement of the claimand concise and direct aver­ments. The complaint gavefair notice of the claims assert­ed: that medical staff falselyrecorded plaintiffs high temper­ature as normal, that defen­dants refused to give him pre­scribed medication for hispneumonia, and that they re­peatedly exposed him to coldambient temperatures that in­creased his breathing difficul­ties. It indicated the generaltime period and the locations ofthe events and ascribed manyacts to identified individual de­fendants. The existence ofadditional unclear material didnot make the complaint inade­quate. (After all, the defen­dants had already answeredthe complaint.) These allega­tions were also sufficient tostate a claim.

Religion--Practices--Hair andS havingiReligion-ServicesWithin Institution

Werner v. McCotter, 49F.3d 1476 (10th Cir. 1995).The district court erred in rely­ing on the Turner standard. At1479:

... The recent passage ofthe Religious FreedomRestoration Act of 1993 ...legislatively overturned anumber of recent SupremeCourt decisions, includingTurner and Shabazz, bydefining a statutory (if not aconstitutional) right to theexercise of reli-gion. ... While we have yet

FAll1995 11

to interpret the Act, ourfellow circuits have deter­mined that the claims ofprisoners fall within itsbroad language, ... andthat the Act is to be ap­plied retroactively.... Thisinterpretation accords bothwith the plain language ofthe statute and with thelegislative history of theAct, ... and we see no rea­son to disagree.

RFRA explicitly mentionsYoder, and the court reads intothe Act Yoder's "threshold re­quirements" for a Free Exer­cise claim. At 1479 n. 1:

First, the governmental ac­tion must burden a reli­gious belief rather than aphilosophy or a way oflife.... Second, the bur­dened belief must be sin­cerely held by the plain­tiff.... A plaintiff, however,need not hew to any partic­ular religious orthodoxy; itis enough for the plaintiff todemonstrate that a govern­ment has interfered withthe exercise or expressionof her or his own deeplyheld faith.The plaintiff in a RFRA

case must show a "substantialburden" on religious exerciseor expression. At 1480:

.... To exceed the "substan­tial burden" threshold, gov­ernment regulation mustsignificantly inhibit or con­strain conduct or expres­sion that manifests somecentral tenet of a prisoner'sindividual beliefs,...; mustmeaningfully curtail aprisoner's ability to expressadherence to his or herfaith; ormust deny a pris­oner reasonable opportuni­ties to engage in thoseactivities that are funda­mental to a prisoner's reli­gion. ... Thus, reasonabletime, place, or manner re­strictions upon communal

religious gatherings wouldoften not necessitate theidentification of a compel­ling state interest; however,regulations that, for exam­ple, prevented a devoutMuslim from observing dai­ly prayers would be subjectto the "compelling interest"test.... Similarly, the Actneed not drive a prison toemploy clergy from everysect or creed found withinits walls; however, the fail­ure to provide or allow rea­sonably sufficient alterna­tive methods of worshipwould, in the absence of acompelling state interest,run afoul of the Act. [Cita­tions and footnote omitted]The plaintiff made out a

prima facie case with respectto the denial of access to asweat lodge; the fact that theplaintiff is a high-security in­mate, by itself, provides inade­quate basis to balance thecompeting interests. Summaryjudgment for defendants waserroneous. The same is truefor possession of medicinebags, since the defendantsrelied on the "now-abandoned'reasonable relationship' test,"although the court suggeststhat the defendants are proba­bly entitled to win on this issuebecause high security inmatesare more apt to use the bagsfor smugg6ng drugs.

The absence of a Chero­kee religious advisor did notviolate the plaintiffs rights; theprison had six nondenomina­tional part-time chaplains andtwo Native American spiritualadvisors, who were LakotaSioux.

Women/Programs and Activi­ties

Parga v. Elliott, 49 F.3d1355 (8th Cir. 1995). The dis­trict judge dismissed a claimthat prison programs for wom­en were not unconstitutionally

unequal to men's programs,citing Klinger, but making nofindings. At 1356: "Klinger doesnot stand for the propositionthat women and men prisoninmates can never be similarlysituated for purposes of equalprotection analysis.." In thiscase, unlike Klinger, the plain­tiffs focused on differences inprograms with:n the sametypes of custody classificationand sentence length.

The case is remanded tothe district court for findingsabout the various programsand services, whether men andwomen were similarly situatedin terms of any particular pro­gram area, the differences In

the programs, and the reasonsfor them. The trial court shouldalso address whether the Turn­er standard or "heightenedscrutiny" is applicable. Thecourt cites with seeming ap­proval Pitts v. Thornburgh,which holds that heightenedscrutiny applies to prison gen­der cases involving "generalbudgetary and policy chOICes"rather than day-to-day prisonmanagement.

DISTRICT COURTS

Protection from Irmatlt As­sault/Appointment of Counsel

Tabron v. Grace. 871F.Supp. 227 (M.D.Pa 1994)The plaintiffs allegation that hewas assaulted after makingknown to prison officials thathe was in danger from a partIC­ular prisoner had sufficientmerit to support the ap­pointment of counsel. Theplaintiffs lack of legal educa­tion, the conflict of his workhours with the prison libraryhours, and the need for dISCOV­ery support appointment ofcounsel. The fact that thereare credibility issues in a casewhere state of mind is a cnhcalelement supports the ap­pointment of counsel. The dlf-

12 FALL1995 THE NATIONAL PRISON PROJECT JOURNAL

ficulty of finding counsel totake the case does not militateagainst appointing counsel.

The plaintiffs allegation issufficient to withstand summaryjUdgment; the court notes thatsummary judgment is partic­ularly inappropriate given is­sues of credibility and state ofmind.

Medical CarelProcedural DueProcess-Disciplinary Proceed­ings

McCorkle v. Walker, 871F.Supp. 555 (N.D.N.Y. 1995).The allegation that the plaintiffhas asthma and the defen­dants ignored a medical orderto house him on a lower tieruntil after he had had an asth­matic attack stated a claim; thecourt is unimpressed by thedefense that the plaintiff was inkeeplock so it didn't matterwhere he was housed.

An undisputed allegationthat the plaintiff was disciplinedon the basis of false chargesstated a claim for denial ofsubstantive due process.

The plaintiffs allegationthat he was denied counselduring a custodial interrogationstated a claim; the defendantssubmitted no evidence contest­ing its characterization as cus­todial. The lack of actual injurywent to damages and not tothe existence of a claim.

The defendants were notentitled to summary judgmenton the plaintiffs claim that hewas not provided legal materi­als while in keeplock. Recordsthat showed that materialswere signed out for him failedto show that he received them.. ,

Medical Care-Denial of Or­dered Care

Starbeck v. Linn CountyJail, 871 F.Supp. 1129(N.D.lowa 1994). The plaintiffhad a herniated disc; two doc­tors recommended correctivesurgery.

THE NATIONAL PRISON PROJECT

The plaintiffs back condi­tion constituted a serious medi­cal need.

Evidence that one defen­dant had said that surgerywould not be permitted be­cause the state did not want topay the cost of guards for theplaintiff during his recuperationraised a material question offact barring summary judgmentas to defendants at one prison.Defendants at another prisonwere not entitled to summaryjudgment in the absence of anyexplanation why they did notcarry out the course of treat­ment recommended by theconsulting doctors. In the ab­sence of such evidence, theirclaim that this case is about adifference of medical opinion isinsubstantial.

Procedural Due Process-Disc~

plinary Proceedingsllmmunity­Prosecutorial and Judicial

Payne v. Axelrod, 871F.Supp. 1551 (N.D.N.Y. 1995).Disciplinary hearing officers areentitled only to qualified immu­nity, not absolute immunity.

A claim that false disciplin­ary charges were filed in reta&­ation for the plaintiffs prior re­port of officer misconductstates a claim for violation ofthe right to petition for redressof grievances.

Heating and Ventila­tionISanitationiUse of Force

Miller v. Fairman, 872F.Supp. 498 (N.D.lII. 1994).Allegations that a jail was im­properly ventilated and thatafter inmates broke windows toobtain ventilation, they werenot replaced during the winter,and the jail was so cold thatthe plaintiff had to wear his bedlinens and could see hisbreath, involved core EighthAmendment requirements anda fortiori violated the Due Pro­cess Clause. Allegations thatthe defendants knew about the

problem sufficed to state a de­liberate indifference claim.

At 504: "This court fails tosee how having a pretrial de­tainee sleep in a flooded areaon a wet mattress infested withinsects and mice furthers anylegitimate governmental inter­est in maintaining the detentionfacility." The court believesthat these allegations wouldnot pass muster under theEighth Amendment, which theSeventh Circuit has held re­quire "extreme" deprivations.

At 505: "Pretrial detaineeshave a Fourteenth Amendmentdue process right against beingSUbjected by jail guards to ex­cessive force that amounts topunishment. "

Medical Care-5tanctards ofLiability-5erious MedicalNeeds

Carnell v. Grimm, 872F.Supp. 746 (D.Haw. 1994).At 755: "A 'serious' medicalneed exists if the failure totreat the need could result infurther significant injury or'unnecessary and wanton inflic­tion of pain.'" (Citation omitted)Ponce officers who had infor­mation that would lead a rea­sonable person to believe thata person in their custody hadjust been raped would havebeen confronted with a seriousmedical need. At 756. "...[AJn officer who has reason tobelieve someone has beenraped and then fails to seekmedical and psychologicaltreatment after taking her intocustody manifests de6berateindifference to a serious medi­cal need." Where there w~s

evidence that the defendantshad such knowledge, theywere not entitled to qualifiedimmunity.

Correspondence-Non4s­gaL/Procedural Due Process­Disciplinary Proceedings

Gee v. Ruettgers, 672

FALL 1995 13

F.Supp. 915 (D.Wyo. 1994).The plaintiff wrote to his broth­er making allegations about theconditions of his confinement,alleging retaliatory actions byprison officials, and stating thathe might die because of stop­page of his medication and de­hydration. The letter was con­fiscated and the plaintiff wasconvicted at a disciplinaryhearing with providing falseinformation to the public.

The defendants are notentitled to summary judgment,having failed to explain howallegedly untruthful informationmailed to a family member out­side the jail could threaten in­stitutional security and order.

The correspondence rulesare not unconstitutionallyvague. The prohibition on pro­viding "false information to anyofficial, court, news media,penitentiary employee, or thegeneral public" is not uncon­stitutionally vague on its face,but it is vague as applied to let­ters to a prisoner's immediatefamily. (The overbreadth of therule was apparently not raised.)

Habeas CorpusParisie v. Morris, 873

F.Supp. 1560 (N.D.Ga. 1995).A claim attacking the processemployed by the parole boardand not its decision can pro­ceed under § 1983 without ex­haustion of state remedies,notwithstanding Preiser. Heckv. Humphrey did not alter thatrule, established by precedentin this circuit. A judgment inthe plaintiffs favor "would nothave the result of shorteninghis stay in prison (although thismay be the ultimate effecf) ...."(1566, emphasis supplied)

Education and TrainingNichols v. Riley, 874

F.Supp. 10 (D.D.C. 1995). Theprovision of the 1994 ViolentCrime Control and Law En­forcement Act prohibiting the

use of Pell Grant funds for fed­eral or state prisoners does notdeny equal protection. Therational basis test applies, un­der which "courts look towhether there are plausiblereasons for congressional ac­tion; if so, jUdicial inquiry is atan end." (13) Budgetary con­straints, the desire to maximizeavailable funding for law-abid­ing students, the conclusionthat other sources of educa­tional funding for prisoners areavailable, the desire to elimi­nate fraud, "the notion thatprisoners and nonprisoners arenot similarly situated with re­gard to the contemporaneousneed for higher education," ora desire to shift these costs tothe states could all provide asufficiently rational purpose.Substantive due process wasnot violated; all that was re­quired is "a reasonable fit be­tween governmental purposeand the means chosen to ad­vance that purpose." (14)

Swnrnary JudgmentJReligion­Services Within Institution

Campbell-EI v. District ofColumbia, 874 F.Supp. 403(D.D.C. 1994). The plaintiff, aGrand Sheik of the MoorishScience Temple, was held inmaximum security for protec­tive custody, and was SUbjectto 23-hour a day lock-in and arule that limited gatherings,inclUding group prayer, to tenor twelve inmates.

The 23-hour lock-in is notunconstitutional; it was justifiedby security and in any case itwas voluntary.

The court can not deter­mine whether the limit on gath­erings of inmates passes mus­ter under the Religious Free­dom Restoration Act and theFirst Amendment. Althoughthe defendants cited securityconcerns, a factual record isnecessary.

Hazardous Conditions andSubstances

Gonyer v. McDonald, 874F.Supp. 464 (D.Mass. 1995).The plaintiffs' claim of free­floating asbestos fibers in theprison environment met theEighth Amendment's require­ment of objective seriousness.Allegations that the prison hadbeen cited for health code vio­lations for these violations sup­ported this claim. At 466:"With respect to prison healthhazards, state health codesreflect established public atti­tudes as to what those stan­dards are." The danger of can­cer from exposure to asbestosis sufficient to support anEighth Amendment claim.

Allegations that the pnsonwarden knew of the asbestosproblem for several years suffi­ciently met the subjectiveprong of the Eighth Amend­ment.

Procedural Due ProcessBrowning v. Vernon, 874

F.Supp. 1112 (D.ldaho 1994).The plaintiffs are assigned toIdaho's "Rider Program,· underwhich courts may retain juris­diction of persons convicted offelonies and place them in pris­on initially for purposes of ba­ing evaluated for potential re­lease on probation. Under therelevant procedures, posonstaff prepare and notify theinmates of the initial recom­mendation and permit them toread (but not keep) all evalua­tions; anybody with a negativerecommendation is immediatelyplaced in segregation. About24 hours later, the inmate isgiven a hearing and allowed torebut any information or recom­mendation, calling members ofthe staff and other inmates aswitnesses. A final report isthen sent to the sentencingcourt.

The plaintiffs alleged thatthese procedures violate due

14 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL

process because 24 hours isnot sufficient notice, they arenot given copies of the relevantdocuments to help them pre­pare for the hearing, and theirplacement in segregationmeans they cannot speak totheir attorneys, contact wit­nesses, or have access to thelaw library.

The lack of written regu­lations governing the proce­dures denies due process be­cause it exposes the plaintiffsto a high risk of arbitrary depri­vation.

The placement of riderswith an adverse tentative rec­ommendation in segregation isleft to future resolution on thissummary judgment motion.However, the defendants mustproVide staff assist~nce andaccess to a telephone forcounsel calls. If staff assis­tance is unavailable, defen­dants must ensure some otherway of contacting witnesses.Staff witnesses must be madeavailable. The defendants canrequire that plaintiffs summa­rize witnesses' testimony inadvance so that cumulative orirrelevant testimony can beexcluded.

Riders must be given na­tice that they have the right tocall witnesses at the rebuttalhearing. Riders are entitled toa copy of all materials thatcome before the decision-mak­er (staff evaluations, chronolog­ical reports, etc.), includingpsychological evaluations nor­mally not provided to sex of­fenders.

An impartial fact-findermust .b~ guaranteed by a prohi­bition against ex parte contactwith the decision-maker andthere must be guidelines forwho may serve on the commit­tee.

John Boston is the director ofthe Prisoners' Rights Project,Legal Aid Society of New York.

THE NATIONAL PRISON PROJECT

Dear Prison Project

Dear Prison Project:I understand that the Prison Litigation Reform Act

going through Congress will make a big difference to thefiling of pro se suits as well as to the class actions thatyour office does. What effect is it going to have?

Pro se litigant

Dear Pro SaThe Prison Litigation Reform Act (part of HR 2076 -­

the Commerce, State and Justice Appropriations Bill) hasa number of provisions designed to limit the filing of prose suits. These include --

• requiring that prisoners exhaust all administrativegrievance procec;fures (with no time limit given)empowering courts to summarily dismiss any suitthat is "frivolous, malicious, fails to state a claimupon which relief can be granteq, or seeks mone­tary relief from a defendant who is immune fromsuch relief'barring claims for mental or emotional injuries, un­less a physical injury is first proven

• providing for hearings to be held in the prison, orby telephone or video conference

• allowing defendants to waive answering com­plaints, unless the court finds that the plaintiff hasa reasonable opportunity of prevailing on themeritsrequiring payment of at least partial filing fees andcourt costs by prisoners and establishing a. gar­nishment procedure for pnsoners' accountsbanning further filings by any prisoner who hashad three or more cases dismissed as frivolous,malicious or failing to state a claim (unless thereis imminent danger of serious physical injury)allowing the court to revoke a federal prisonersgood time credits as a punishment for filing "mali­cious" or "harass[ing)" claims.

Remember, these new rules are not yet in effect butthey are almost certainly going to be passed by Congressand may be in effect by the end of the year (or evensooner) - we'll give you an update in our next issue.

FAll1995 15

Highlights -- National Prison Project Litigation

The following are major de­velopments in the NationalPrison Project's litigationprogram since July 1, 1995.Further details of any of thelisted cases may be ob­tained by writing the Project.

Casey v. Lewis --In May1995, the Supreme Courtgranted certiorari to the de­fendants for review of thetrial court's ruling that theArizona Department ofCorrections' policies uncon­stitutionally restrict prisoners'access to the courts. Thetrial court's ruling was madein November 1992 and up­held by the Ninth CircuitCourt of Appeals, in a unani­mous decision in November1994. The court affirmedvirtually all of the trial court'sorder which applies to all15,000 prisoners in the Ari- 'zona system. Oral argu­ment in the Supreme Courtis scheduled for November29, 1995. The parties havefiled their briefs. A numberof amicus briefs were also

National Prison ProjectAmerican Civil Liberties Foundation1875 Connecticut Ave., NW, #410Washington, D.C. 20009(202) 234-4830t.,..,

filed, including an amicus bythe Solicitor General sup­porting the prisoners.

Dulany v. Camahan -- In. June, the NPP, together with

the local ACLU affiliate, fileda class action suit on behalfof the women prisoners inthe Chillicothe CorrectionalCenter and the Renz Correc­tional Center, the women'sprisons in Missouri, alleginginadequacies in the medicalcare delivery system, includ­ing inadequate emergencycare and treatment for wom­en with chronic health prob­lems. Defendants respondedby filing a motion to dismissand a motion for summaryjudgement. A hearing willbe held on these motions onNovember 21, 1995.

Goldsmith v. Dean -- TheNPP filed a motion in federalcourt on August 25 askingthe judge to issue a prelimi­nary injunction to end physi­cal and sexual abuse of pris­oners in Vermont's sex

offender behavior modifica­tion program. Affidavits filedby several prisoners allegeabusive treatment during thedrama therapy sessions in­cluding simulated rape.Vermont's behavior modifIca­tion program for sex offend­ers allegedly includes othertechniques which the NPP ischallenging as unconstitu­tional as part of its overallconditions of confinementcase filed in. A hearing onthe preliminary injunction willbe held in November.

Shumate v. Wilson -- TheNPP, together with theNorthern and SouthernACLU and local counsel,filed suit in April alleging thatwomen at the Central Cali­fornia Women's Facility atChowchilla and the Califor­nia Institution for Women atFrontera received constitu­tionally inadequate medicalcare. The court held oralargument on the class actionmotion on September 14and subsequently an­nounced its intentior:l to certi­fy the class.

Nonpr')fit Org.u.s. Postage

PAIDWashington D.C.Permit No. 5248

16 FALL 1995 THE NATIONAL PRISON PROJECT JOURNAL