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Prisoner Rights Litigation, John R. Williams, 2003

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PRISONER RIGHTS LITIGATION
John R. Williams
51 Elm Street
New Haven, CT 06510
203.562.9931
Fax: 203.776.9494
E-Mail: jrw@johnrwilliams.com

Because prisoners do not forfeit all civil rights upon conviction, other actions
under Section 1983 also are available even to sentenced inmates. There is no
distinction, incidentally, between convicted and sentenced inmates. Once convicted,
the Eighth Amendment kicks in. Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000).
"Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turney v. Safley, 482 U.S. 78, 84 (1987). Like many areas
of litigation under section 1983, prison litigation takes place in a constantly-changing
legal environment. This is true partly because "[n]o static test exists that measures
whether conditions of confinement are cruel and unusual, for the Eighth Amendment
draws its meaning from the 'evolving standards of decency that mark the progress of a
maturing society.' Rhodes v. Chapman, 452 U.S. 337, 346 (1981).'' Talib v. Gilley,
supra, 138 F.3d 211, 214 (5th Cir. 1998).
The breathtaking increases in the imprisonment of our fellow citizens during
recent years are often commented upon. At the end of 1990, 20 of every 100,000
citizens were in federal prison and 272 were in state or local prisons. Eight years later,
38 of every 100,000 were in federal prison and 423 were in state and local prisons. On
December 31, 1998, 1,302,019 citizens were imprisoned somewhere in the United
States. Just six months later, the number had increased to 1,860,520. At that point,
11% of all black males, 4% of all Hispanic males, and 1.4% of all white males, in their
twenties and early thirties, were prisoners. Males were 12 times more likely than
females to be incarcerated. Beck, Prison and Jail Inmates at Midyear 1999 (DOJ Office
of Justice Programs Bulletin No. 181643); Beck and Mumola, Prisoners in 1998 (DOJ
Office of Justice Programs Bulletin No. 175687). Sixteen percent of these prisoners
have been identified as mentally ill. Ditton, Mental Health and Treatment of Inmates
and Probationers, (DOJ Office of Justice Programs Bulletin No. 174463). Almost 13%
were receiving active mental health treatment in 2000 and 10% were receiving
psychotropic medications. Mental Health Treatment in State Prisons. 2000 (Bureau of
Justice Statistics, July 2001, No. NCJ 188215).
Any discussion of prisoner litigation must begin with the "Prison Litigation Reform
Act" of 1996, 42 USC 1997e. Under that statute, the Section 1983 remedy has been
drastically limited for all sentenced inmates in the name of toughness on crime. See

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Alexander, "Prison Litigation Reform Act Raises the Bar," 16 Criminal Justice No.4, p.
10 (ABA Section of Criminal Justice, Winter 2002).
The most significant limitation of the PLRA is its requirement that "administrative
remedies" be exhausted before Section 1983 prison litigation may be brought.
Although the statute limits that requirement to "prison conditions" cases, every suit a
prisoner can file against prison officials is considered a "prison conditions" case and
therefore the exhaustion requirement applies. Porter v. Nussle, 534 U.S. 516 (2002);
Booth v. Churner, 532 U.S. 731 (2001 ). The authors of the statute, with exquisite
Orwellian sensibility, added to that requirement the following: "The failure of a State to
adopt or adhere to an administrative grievance procedure shall not constitute the basis
for an action .... " 42 USC 1997e(7)(a). But the Sixth Circuit, while adhering to the
exhaustion requirement, has intimated that while an allegation that the administrative
process is inadequate to redress the inmate's grievance is insufficient to avoid
dismissal under the statute, an allegation that exhaustion of administration is precluded
for some reason might avoid the bar. White v. McGinnis, 131 F.3d 593, 595 (6th Cir.
1997). The Eleventh Circuit doesn't think so and imposes the requirement even when it
appears that the relief available through an administrative appeal is not "plain, speedy
and effective." Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998). The exhaustion
requirement does not, however, extend to a requirement of pursuing the claim first
through the state courts. Jenkins v. Morton, 148 F.3d 257 (3d Cir. 1998); Pozo v.
McCaughtry, 286 F.3 1022 (7 1h Cir. 2002).
A Bivens action against federal prison officials may or may not be subject to the
exhaustion requirement because the feds don't provide any form of administrative appeal to prisoners, depending on where you are. Whitley v. Hunt, 148 F.3d 882 (5th Cir.
1998), held that there is no such exhaustion requirement. Another panel of the same
court has requested en bane reconsideration. Wright v. Hollingsworth, 201 F.3d 663,
666 (5th Cir. 2000). Three other circuits hold that the exhaustion requirement applies
anyway. Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir. 1999); Brown v. Toombs,
139 F.3d 1102 (6th Cir. 1998); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532
(7th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998). The Tenth Circuit
appears to agree that the exhaustion requirement does not apply in these
circumstances. Miller v. Menghini, 213 F.3d 1244 (10th Cir. 2000); Garrett v. Hawk,
127 F.3d 1263 (1Oth Cir. 1997).
Other courts have applied this requirement of exhausting non-existent monetary
damages remedies before filing federal suit in cases against state prison officials. Cruz
v. Jordan, 80 F. Supp. 2d 109 (S.D.N.Y. 1999) (Hellerstein, J.); Bumbles v. Hill, 182
F.3d 1064 (9th Cir. 1999).
The exhaustion requirement applies to suits by prisoners under what is left of the
Religious Freedom Restoration Act, 42 U.S.C. § 200bb, et seq., as well as to Section
1983 actions. Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001).

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The courts are in agreement that the exhaustion requirement is not a
jurisdictional one. It concerns only the timing of the action. Wyatt v. Leonard, 193 F.3d
876, 878-79 (6th Cir. 1999); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th
Cir. 1999); Tucker v. McAninch, 162 F.3d 1162 (6th Cir. 1998). Therefore, "district
courts have some discretion in determining compliance with" the exhaustion
requirement. Wyatt v. Leonard, 193 F.3d at 879. Accordingly, it is not necessarily
required that the prisoner have used the particular procedural devices prescribed by
state prison regulations for exhausting her administrative remedies so long as she has
by some method brought her claims adequately to the attention of the appropriate
officials. Hock v. Thipedeau, 238 F. Supp. 2d 446 (D. Conn. 2002) (Goettel, J.).
Moreover, administrative remedies are exhausted when the officials in charge of the
prison grievance system refuse to provide the inmate with the system's required
grievance forms. Mitchell v. Horn, 318 F.3d 523 (3rd Cir. 2003).
Exhaustion is an affirmative defense which is waived if not asserted by the
defendant. Jenkins v. Haubert, 179 F. 3d 19, 28-29 (2nd Cir. 1999); Foulk v. Charrier,
262 F.3d 687 (8th Cir. 2001); Torrence v. Pesanti, 239 F. Supp. 2d 230, 231 (D. Conn.
2003).
But the courts have an obligation to raise the issue sua sponte if the defendants
fail to do so. Brown v. Toombs, 139 F.3d 1102 (2d Cir. 1998); Curry v. Scott, 249 F.3d
493 (6th Cir. 2001). The court of course may not do so without first affording the
prisoner plaintiff notice of its intention and an opportunity to be heard on the issue.
Snider v. Melindez, 199 F.3d 108 (2d Cir. 1999). So what kind of affirmative defense is
that?
An inmate need not wait forever to exhaust his administrative remedies. They
will be deemed exhausted if a grievance has been filed and the time for responding
thereto has expired without a response, Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999); or
if the prison has failed to provide the inmate with the required grievance forms, Miller v.
Norris, 247 F.3d 736, 740 (8th Cir. 2001 ); Mitchell v. Horn, 318 F.3d 523 (3rd Cir. 2003).
In Days v. Johnson, 322 F.3d 863 (5th Cir. 2003), an inmate was excused from
exhausting administrative remedies by filing a written grievance concerning failure to
treat his broken hand when the broken hand made it impossible for him to write. If the
inmate missed the deadline for filing, he may not sue but instead must seek permission
to file an out-of-time grievance, the implication being that denial of such permission will
constitute sufficient exhaustion of remedies. Harper v. Jenkin, 179 F.3d 1311 (11th Cir.
1999).
The upside (and there's always an upside to the discerning eye) to the
exhaustion of administrative remedies provision of the PLRA is that the statute of
limitations for bringing the civil rights suit does not start to run until those remedies have
been exhausted. Brown v. Morgan, 209 F.3d 595 (6th Cir. 2000); Johnson v. Rivera,
272 F.3d 519 (7th Cir. 2001 ).

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The PLRA, however, applies only to plaintiffs who are prisoners at the time suit is
filed. Those who have served their sentences and been released are not crushed
under its heel. Greig v. Goord, 169 F.3d 165 (2d Cir. 1999); Janes v. Hernandez, 215
F.3d 541, 543 (5th Cir. 2000); Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir. 1998);
Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998). If the suit is filed before
the plaintiff is released, but he is released while the suit remains pending, the Eleventh
Circuit has held that the plaintiff is covered by the PLRA's requirements because the
determination of its applicability or inapplicablity is made at the moment of filing. Harris
v. Garner, 216 F.3d 970 (11th Cir. 2000).
The PLRA does not apply to detainees who have been committed civilly, rather
than criminally, under things like California's Sexually Violent Predators Act. Page v.
Torrey, 201 F.3d 1136 (9th Cir. 2000).
Actual physical injury is a necessary predicate to prison litigation under the
PLRA. 42 USC 1997(e)(7)(e). Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir.
1998); Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997) (holding a sore and bruised ear
resulting from guard brutality failed to qualify); Searles v. Van Bebber, 251 F.3d 869
(10th Cir. 2001). But see also Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998), holding
the limitation prospective only. This requirement applies only to actions for money
damages, however. It does not apply to suits seeking nominal and punitive damages.
Calhoun v. Detella, 319 F.3d 936, 941 (7th Cir. 2003. Nor does it apply to individual
suits for injunctive relief. Thompson v. Carter, 284 F.3d 411, 418 (2nd Cir. 2002);
Mitchell v. Horn, 318 F.3d 523, 533-34 (3rd Cir. 2003); Harper v. Showers, 174 F.3d
716, 719 (5th Cir. 1999); Zehner v. Trigg, 133 F.3d 459,462-63 (th Cir. 1997); Perkins
v. Kansas Dept. of Corrections, 165 F.3d 803, 808 (10th Cir. 1999); Harris v. Garner,
216 F.3d 970 (11th Cir. 2000) (en bane), cert. denied, 532 U.S. 1065 (2001); Davis v.
District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998). The PLRA generally so
limits actions for prospective injunctive relief that courts probably will be reluctant to
afford more than orders benefitting individual plaintiffs. See 18 U.S.C. 3626.
Another feature of the Prison Litigation Reform Act is the so-called "three strikes
section," which bars the courthouse door even to meritorious prisoner suits if the
prisoner has been misguided enough to file three prior suits that were dismissed for
frivolousness or maliciousness, or unlucky enough to have three prior suits dismissed
for failure to state a claim. 28 U.S.C. 1915(g). The statute does, however, have one
loophole. The ban is imposed "unless the prisoner is under imminent danger of serious
physical injury." See Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998) (conditions resulting
from vent emitting dust and lint into cell constituted serious physical injury); Gibbs v.
Roman, 16 F.3d 83 (3d Cir. 1997) (suit alleging that prison librarian permitted other
inmates to read his legal papers and thereby to learn that he was a government informer) (Gibbs apparently has a lot of time on his hands); Ashley v. Dilworth, 147 F.3d 715
(8th Cir. 1998). The constitutionality of this statutory bar has been upheld. Carson v.
Johnson, 112 F.3d 818 (5th Cir. 1997).

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The courts vary in their approach to determining whether a given piece of
unsuccessful litigation is to be counted as a "strike" for purposes of the "three strikes
ban". Many courts leave that determination to the court before which the defendants
are asserting the existence of the ban. In some places, however, federal judges make
the "strike" or "nonstrike" assessment when dismissing a prisoner suit. If the suit is
dismissed for whatever reason, these judges will make it a part of their ruling that this
dismissal either is or is not to be counted as a "strike" should the prisoner sue again.
Courts that do that have been required to give the prisoner plaintiff advance notice and
an opportunity to be heard on that issue. Snider v. Melindez, 199 F .3d 108 (2d Cir.
1999).
The PLRA also limits Section 1988 attorney fees so severely that few unsubsidized lawyers will find the litigation affordable. See 42 U.S. C. 1997e(7)(d)(3): "No
award of attorney's fees in an action described in paragraph (1) [suit brought by a
confined prisoner in which attorney fees are authorized by Section 1988] shall be based
on an hourly rate greater than 150 percent of the hourly rate established under section
3006A of title 18, United States Code, for payment of court-appointed counsel." It is
clear from the many cases that not surprisingly arose from this provision that it is within
the constitutional power of congress to enact and will be applied to that portion of
attorney fees earned subsequent to its enactment. Martin v. Hadix, 527 U.S. 343 (1999); Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Chatin v. Coombe, 186 F.3d 82 (2d
Cir. 1999); Collins v. Montgomery County Board of Prison Inspectors, 176 F.3d 679 (3d
Cir. 1999); Montcalm Publishing Corp. v. Commonwealth of Virginia, 199 F.3d 168 (4th
Cir. 1999) (fee provisions apply to non-prisoner intervening plaintiffs as well as to
prisoner plaintiffs); Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999); Beckford v. Irvin, 60
F. Supp. 2d 85 (W.D.N.Y. 1999). At least the time spent litigating the fee petition is
compensable, albeit at the same low rates. Hernandez v. Kalinowski, 146 F.3d 196 (3d
Cir. 1998).
If that isn't bad enough, the Fourth Circuit has held that even this minuscule fee
is really a cap available only to those providing the highest-quality representation and
that it applies retroactively to work done before the statute was enacted. Alexander S.
v. Boyd, 113 F.3d 1373 (4th Cir. 1997). The statute also imposes a 25% cap on contingency fees in such cases, which is to be credited against the now limited section
1988 award. At least that fee limitation is not applied retroactively. Martin v. Hadix, 527
U.S. 343 (1999); Blissett v. Casey, 147 F.3d 218 (2d Cir. 1998); Glover v. Johnson, 138
F.3d 229, 249-50 (6th Cir. 1998); Cody v. Hillard, 304 F.3d 767, 776-77 (81h Cir. 2002).
Unsuccessful inmates who have exhausted their remedies and sued, but lost, will be
liable for taxation of costs even if they are indigent. Singleton v. Smith, 241 F.3d 534
(61h Cir. 2001 ). The message in this, of course, is to wait to sue until your client is out of
jail if the statute of limitations will permit you to do so. Other than waiting, consider
including in the suit claims under other federal statutes which have their own attorney
fee provisions. The PLRA fee limitations apply only to suits brought under Section
1983. They do not cap fees available to successful plaintiffs under the ADA or the
Rehabilitation Act. Armstrong v. Davis, 318 F.3d 965 (91h Cir. 2003). However, the

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Eleventh Circuit has held that the fee limitations do apply to all Section 1983 suits filed
by prisoners, even if those suits do not apply to prison conditions. Jackson v. State
Board of Pardons and Paroles, 331 F.3d 790 (11 1h Cir. 2003).
Prison conditions cases are governed by the deliberate indifference standard,
which in the prison context requires actual knowledge of the risk to the inmate although
that knowledge can be inferred from other facts. Farmer v. Brennan, supra; Wilson v.
Seiter, 501 U.S. 294 (1991); Helling v. McKinney, 509 U.S. 25 (1993). "Because the
Eighth Amendment requires a subjective standard, to demonstrate an official's deliberate indifference, a plaintiff must prove that the official possessed knowledge both of
the infirm condition and of the means to cure that condition, 'so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent
it."' LaMarca v. Turner, 995 F.2d 1526, 1535-36 (11th Cir. 1993), quoting Duckworth v.
Franzen, 780 F.2d 645, 653 (7th Cir. 1985). Thus, jail officials were not liable for their
otherwise unconscionable misconduct in placing a "snitch" in a cell with the prisoner on
whom he had informed, because those who took that action had negligently failed to
note the relationship between the two. Rangolan v. County of Nassau, 217 F.3d 77 (2d
Cir. 2000).
"The appropriate test under the Eighth Amendment involves both subjective and
objective elements .... The subjective element is that the defendant must have had the
necessary level of culpability, shown by actions characterized by 'wantonness. '... The
objective element is that the injury actually inflicted must be sufficiently serious to
warrant Eighth Amendment protection .... With respect to the subjective element, the
definition of 'wantonness' varies according to the circumstances alleged .... As a general
matter, it is sufficient to show that a prison official acted with 'deliberate indifference' to
prisoners' health or safety .... The deliberate indifference standard does not require a
showing 'that a prison official acted or failed to act believing that harm actually would
befall an inmate; it is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm."' Blyden v. Mancusi, 186 F.3d 252,
262 (2d Cir. 1999). Cf., Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).
Prison brutality cases often quote the old language that the force used must
have been "malicious and sadistic" under the test of Johnson v. Glick, 481 F.2d 1028
(2d Cir. 1973). Hudson v. McMillian, 503 U.S. 1, 7 (1992); Romano v. Howarth, 998
F.2d 101, 105 (2d Cir. 1993); Johnson v. Bi-State Justice Center, 12 F.3d 133 (8th Cir.
1993). But "Hudson does not limit liability to that subset of cases where 'malice' is present. Rather, Hudson simply makes clear that excessive force is defined as force not
applied in a 'good-faith effort to maintain or restore discipline.' 503 U.S. at ? .... The
Court's use of the terms 'maliciously and sadistically' is, therefore, only a
characterization of all 'bad faith' uses of force and not a limit on liability for uses of force
that are otherwise in bad faith." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).
In any event, whether the force used in any particular case is or is not excessive is a
jury question. Wilkins v. Moore, 40 F.3d 954 (8th Cir. 1994).

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Simply put, any unnecessary and wanton infliction of pain upon an inmate is
actionable under Section 1983. Pelfrey v. Chambers, 43 F.3d 1034 (6th Cir. 1995);
Aldape v. Lambert, 34 F.3d 619 (8th Cir. 1994). "[T]he law of this Circuit is that to
support an Eighth Amendment excessive force claim a prisoner must have suffered
from the excessive force a more than de minimis physical injury, but there is no categorical requirement that the physical injury be significant, serious, or more than minor."
Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999).
"Deliberate indifference" in a prison conditions case, while less than intent to
injure, requires actual subjective awareness of an excessive risk to the health or safety
of the inmate and a failure to act despite that actual awareness. A prisoner plaintiff can
make out a prima facie case by showing that the risk was obvious, but the prison official
can defend by establishing that he personally was not aware of that risk despite its
objective obviousness. Farmer v. Brennan, 511 U.S. 825 (1994).
An Eighth Amendment claim has both objective and subjective components.
"The objective component relates to the seriousness of the injury .... The subjective
component relates to whether the defendants had a 'wanton' state of mind when they
were engaging in the alleged misconduct." Davidson v. Flynn, 32 F.3d 27, 29-30 (2d
Cir. 1994). Cf., Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996). "[W]antonness does
not have a fixed meaning but must be determined with 'due regard for differences in the
kind of conduct against which an Eighth Amendment objection is lodged.' ... Furthermore, the wantonness of conduct does not depend upon its effect on the prisoner, but
rather 'upon the constraints facing the official."' Davidson, supra, 32 F.3d at 30, fn. 2.
In the case of deliberate indifference to serious medical needs, the plaintiff must
demonstrate he "suffered objectively serious medical needs and ... that the prison
officials actually knew of but deliberately disregarded these needs." Tlamka v. Serrell,
244 F.3d 628, 633 (8th Cir. 2001 ).
"The standard applicable when determining whether prison officials unnecessarily and wantonly have inflicted pain, and thus have violated the Eighth
Amendment, varies with the type of violation alleged .... When the alleged constitutional
violation is that prison officials have used excessive force, 'the core judicial inquiry
is ... whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.' ... Factors relevant to this determination
include the threat the officials reasonably perceived, the need for the use of force, the
efforts made to minimize the force used, the relationship between the need for using
force and the amount of force used, and the degree of injury inflicted." Howard v.
Barnett, 21 F.3d 868, 871 (8th Cir. 1994) (citing Hudson v. McMillian, 112 S. Ct. 995,
998 (1992)).
The brutality of American prisons requires continued litigation of issues that
would have been thought to have been resolved long ago. See "Brutal Findings -Prison Rapists Go Unpunished, Victims Go Unrepresented," ABA JOURNAL (July
2001), p. 16. Thus, Nevada jailers went all the way to the Ninth Circuit on the question
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whether they should have been entitled to qualified immunity for firing buckshot at a
group of inmates when only one of them was the target. Robins v. Meecham, 60 F.3d
1436 (9th Cir. 1995). And inmates in the Second and Ninth Circuits had to appeal to
those courts because district judges couldn't see anything actionable when state correctional officials forced them to work without protection from exposure to asbestos.
LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998); Wallis v. Baldwin, 70 F.3d 1074 (9th
Cir. 1995).
Old fashioned prison guard brutality remains actionable even today. It is not
necessary that the guard be the actual perpetrator of the violence for him to be liable.
Because of the "deliberate indifference" standard, a guard who stands by and watches
other guards beat an inmate is jointly liable, as is the warden who receives reports of
the brutality and does nothing about it. Estate of Davis v. Delo, 115 F.3d 1388 (8th Cir.
1997).
A punitive diet of bread and water for one week also constitutes cruel and
unusual punishment and is actionable. Phelps v. Kapnolas, 123 F.3d 91 (2d Cir. 1997).
See Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998) (withholding food as a punishment may
constitute cruel and unusual punishment depending upon the circumstances).
Inadequate treatment of inmates' drug and alcohol withdrawal symptoms can be
actionable. Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990), involved a jail physician's
failure to distinguish between heroin withdrawal and the far more life-threatening
withdrawal from alcohol. Liscio, withdrawing from alcohol and suffering severe DT's,
was chained to a bed and treated as though he were withdrawing from heroin. Judge
Cabranes granted summary judgment to the defendants, finding this no more than a
routine medical malpractice case, but the Second Circuit, noting that the fact Liscio was
withdrawing from alcohol was apparent from his jail records, found the case to be an
example of deliberate indifference to serious medical needs, actionable under Section
1983. See also Lancasterv. Monroe County, 116 F.3d 1419 (11th Cir. 1997) (fatal
delay in providing medical care to chronic alcoholic who died of untreated DTs was
actionable). Because the "deliberate indifference" test requires more than mere
negligence, state law medical certification or expert witness requirements do not apply.
Typically, deliberate indifference is egregious enough to be apparent to a lay jury
without the help of experts. Natale v. Camden County Correctional Facility, 318 F.3d
575 (3rd Cir. 2003).
Denial of medical treatment when an inmate has serious medical needs is
actionable if the necessary state of mind is present. Chance v. Armstrong, 143 F.3d
698 (2d Cir. 1998) (failure to provide adequate dental care, resulting in pain, inability to
chew properly, and consequent extraction of a tooth); Koehl v. Dalsheim, 85 F.3d 86
(2d Cir. 1996) (Newman, C.J.) (denial of eyeglasses needed to treat serious eye
condition); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994); Austin v. Johnson, 328
F. 3d 204 (5 1h Cir. 2003) (two-hour delay in summoning medical treatment for
unconscious inmate suffering from heat stroke); Harris v. Hegmann, 198 F.3d 153 (5th

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Cir. 1999) (ignoring requests for immediate treatment of broken jaw); Ralston v. McGovern, 167 F.3d 1160 (7th Cir. 1999) (guard's refusal to give inmate medication prescribed to alleviate pain caused by radiation treatment for Hodgkin's disease); Reed v.
McBride, 178 F.3d 849 (7th Cir. 1999) (denial of life-sustaining medication previously
prescribed by outside physician); Roberson v. Bradshaw, 198 F.3d 645 (8th Cir. 1999)
(prison doctor continued to prescribe medication despite knowledge that inmate was
suffering adverse reaction to it); Cooper v. Schriro, 189 F.3d 781 (8th Cir. 1999) (denial
of dental treatment for painful cracked and decayed teeth); Miller v. Schoenen, 75 F.3d
1305 (8th Cir. 1996); Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (intentional
interference with previously prescribed medical treatment); Wakefield v. Thompson,
177 F.3d 1160 (9th Cir. 1999) (denial to discharging inmate of a sufficient supply of prescription psychotropic medication to sustain him until he could get a new prescription on
the outside); Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999) (inadequate treatment of
diabetes and hypertension); Brown v. Zavaras, 63 F.3d 967 (1Oth Cir. 1995) (denial of
treatment for gender dysphoria); Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996); Harris
v. Coweta County, 21 F.2d 388 (11th Cir. 1994); Howard v. Headly, 72 F. Supp. 2d 118
(E.D.N.Y. 1999) (Block, J.) (prison officials required inmate to perform sanitation duties
despite physician's orders to the contrary). Delay in providing care -- a factor in many
prison cases-- is itself actionable. Estate of Rosenberg v. Crandell, 56 F.3d 35 (8th
Cir. 1995) (fatal delay in treating esophageal carcinoma); Boyd v. Knox, 47 F.3d 966
(8th Cir. 1995) (three-week delay in treating infected wisdom tooth); Patterson v.
Pearson, 19 F.3d 439 (8th Cir. 1994). Placing a psychiatric prisoner in segregation and
restraints without specific medical approval is actionable indifference. Buckley v.
Rogerson, 133 F.3d 1125 (8th Cir. 1998). Treating an unconscious inmate as "a
human rat" by subjecting him to treatment with experimental drugs for research rather
than therapeutic purposes is an actionable violation. Johnson v. Meltzer, 134 F.3d
1393 (9th Cir. 1998).
What is a "serious medical need"? It is less than agony. "We will no more
tolerate prison officials' deliberate indifference to the chronic pain of an inmate than we
would a sentence that required the inmate to submit to such pain. We do not,
therefore, require an inmate to demonstrate that he or she experiences pain that is at
the limit of human ability to bear, nor do we require a showing that his or her condition
will degenerate into a life-threatening one." Brock v. Wright, 315 F.3d 158, 163 (2d Cir.
2002) (refusal to treat a painful keloid scar at the site of a knife wound).
It may be easier to prevail in a prison conditions case if the defendants are state
officials than if the prison is a part of the federal system. Something about looking after
one's own, maybe. Deeply offensive verbal ridicule and abuse of a preoperative
transsexual, accompanied by denial of estrogen treatments didn't bother the Second
Circuit at all because there aren't any federal regulations prohibiting it. Cuoco v.
Moritsugu, 222 F.3d 99 (2d Cir. 2000).
The sheriff of Butler County, Alabama, had his own unique approach to medical
care, which the Eleventh Circuit found constituted unconstitutional deliberate
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indifference. When an injured inmate was released from the county hospital and
returned to jail with instructions to provide medical care, he simply released the inmates
on bond and dropped them off by the side of the nearest public highway. Marsh v.
Butler County. Ala., 225 F.3d 1243, 1255-56 (11th Cir. 2000).
When sick inmates are paroled, the prison officials are obligated to provide them
with adequate medications and instructions to provide for their serious medical needs
during a reasonable transition period. Lugo v. Senkowski, 114 F. Supp. 2d 111
(N.D.N.Y. 2000) (Kahn, J.).
While mere medical malpractice does not alone meet the deliberate indifference
test, malpractice usually is a lesser included component of a prison case based on
deliberate indifference to medical needs. Hathaway v. Coughlin, 99 F.3d 550 (2d Cir.
1996). As a result, some courts tend to apply state law expert witness disclosure
requirements unique to medical malpractice litigation to these medical deliberate
indifference cases. See generally Sherrod v. Lingle, 223 F..3d 605 (7th Cir. 2000). So
it's wise to be aware of these rules.
Deliberate indifference in the prison medical context involves both an objective
component and a subjective component. "The objective component is met if the deprivation is 'sufficiently serious.' Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical
need is sufficiently serious 'if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.' Hunt v. Uphoff, 199 F.3d 1220, 1224
(1Oth Cir. 1999) ... The subjective component is met if a prison official'knows of and
disregards an excessive risk to inmate health or safety.' Farmer, 511 U.S. at 837.''
Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000).
"Ordinarily, a tooth cavity is not a serious medical condition, but that is at least in
part because a cavity is so easily treatable. Absent intense pain or other exigency, the
treatment of a cavity (in or out of prison) can safely be delayed by the dentist's schedule
or the patient's dread or neglect, can be subject to triage or the management of care,
can be mitigated or repaired temporarily, and can be coordinated with other related
conditions that need to be treated together. Nevertheless, a tooth cavity is a
degenerative condition, and if it is left untreated indefinitely, it is likely to produce agony
and to require more invasive and painful treatments, such as root canal therapy or
extraction .... Consequently, because a tooth cavity will degenerate with increasingly
serious implications if neglected over sufficient time, it presents a 'serious medical
need' within the meaning of our case law.'' Harrison v. Barkley, 219 F.3d 132, 137 (2d
Cir. 2000) (Jacobs, J.).
The county sheriff's practice of shackling all hospitalized pretrial inmates to their
beds and not taking them to court on their assigned court dates was found actionable
on equal protection grounds in May v. Sheahan, 226 F.3d 876 (7th Cir. 2000).

10

To succeed in a constitutional claim, the inmate "must demonstrate that the
medical deprivation was objectively serious and that prison officials subjectively knew
about the deprivation and refused to remedy it. Drowley v. Hedgepeth, 109 F.3d 500,
502 (8th Cir. 1997). A medical need is serious if it is 'obvious to the layperson or
supported by medical evidence, like a physician's diagnosis.' Aswegan v. Henry, 49
F.3d 461, 464 (8th Cir. 1995)." Moore v. Jackson, 123 F.3d 1082, 1086 (8th Cir. 1997).
"The standard for establishing an Eighth Amendment violation based on deliberate
indifference to a prisoner's medical needs contains both an objective and a subjective
prong. 'Objectively, the alleged deprivation must be sufficiently serious, in the sense
that a condition of urgency, one that may produce death, degeneration, or extreme pain
exists. Subjectively, the charged official must act with a sufficiently culpable state of
mind.' The required state of mind, equivalent to criminal recklessness, is that the
official'knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference."' Hemmings v.
Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998), quoting Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996).
"A prison is not required by the Eighth Amendment to give a prisoner medical
care that is as good as he would receive if he were a free person, let alone an affluent
free person. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). He is
entitled only to minimum care. Hudson v. McMillian, 503 U.S. 1, 9 (1992); Wellman v.
Faulkner, 715 F.2d 269, 271 (7th Cir. 1983); Harris v. Thigpen, 941 F.2d 1495, 1504
(11th Cir. 1991); Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988)." Maggert v. Hanks,
131 F.3d 670, 671-72 (7th Cir. 1997) (Posner, C.J.). Minimum care, however, is not the
same as no care at all. Thus, a four month delay in surgery for a serious medical
condition has been held deliberately indifferent and so much so that qualified immunity
was not available to the prison physician. Baker v. Blanchette, 186 F. Supp. 2d 100 (D.
Conn. 2001). Deprivation of an inmate's dentures and deprivation of his heart
medication both were deliberately indifferent under an Eighth Amendment standard.
Wynn v. Southward, 251 F.3d 588 (7th Cir. 2001). And in the case of ongoing
deprivations of necessary medical care, the statute of limitations does not begin to run
until the last day the inmate is incarcerated -thus also avoiding PLRA problems.
Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001).
On the other side of the coin, the forcible administration of antipsychotic
medication to a pretrial detainee, absent evidence that the medication was essential to
safety, has been held to constitute a violation of the Sixth Amendment right to a fair
trial. United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000). Is it also actionable under
Section 1983? No reason why not.
Denial of adequate medical care to an unconvicted pretrial inmate is actionable
under a comparable test (although arguably a somewhat less harsh one) but the action
is brought not under the Eighth Amendment but under the detainee's Fifth and
Fourteenth Amendment due process rights. Weyant v. Okst, 101 F.3d 845 (2d Cir.
11

1996).
Most prison physicians seem to be private practitioners working under contract to
the state. As such, while they are liable for constitutional violations, some courts have
held that they have no right to the affirmative defense of qualified immunity. E.g.,
Hinson v. Edmond, 192 F.3d 1342 (11th Cir. 1999). However, Correctional Services
Corp. v. Malesko, 534 U.S. 61 (2001 ), held that when a private corporation provides
contract services to the federal prison system, there is no private right of action under
Bivens. So this is a point at which federal and state prisoner rights apparently diverge,
since private contractors performing services for state prisons are held to be acting
under color of law for Section 1983 purposes. E.g., Flint ex rei. Flint v. Kentucky Dept.
of Corrections, 270 F.3d 340 (6 1h Cir. 2001 ).
Denying the ordinary amenities of prison life (haircuts in this instance) to
prisoners because of their medical condition (HIV-positive) has been held actionable as
an equal protection violation. Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995)
(Posner, C.J.). The Equal Protection Clause is a promising avenue for prison litigation.
For example, while it is unarguable that prisoners have no right to be housed in any
particular facility, they can make a viable equal protection claim if the housing
conditions available to one sex are superior than those available to the other. Yates v.
Stalder, 217 F.3d 332 (5th Cir. 2000).
Denial of adequate exercise is actionable, Williams v. Greifinger, 97 F.3d 699,
703-04 (2d Cir. 1996); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en bane);
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996); Allen v. Sakai, 48 F.3d 1082 (9th
Cir. 1995); Perkins v. Kansas Department of Correction, 165 F.3d 803 (10th Cir. 1999).
Refusal to do anything about lead in prison drinking water is actionable. Robinson v.
Page, 170 F.3d 74 7 (7th Cir. 1999). Denial of toothpaste over a long enough period
that gum disease and tooth decay results, is actionable. Penrod v. Zavaras, 94 F.3d
1399, 1405-06 (1Oth Cir. 1996). Failure to provide adequate clothing and bedding to
protect an inmate from extreme cold is actionable, but poor ventilation in the summer is
not. Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997). Failure to repair broken windows
in the cellblock, exposing an inmate to freezing and sub-zero temperatures in the winter
is an Eighth Amendment violation, as is permitting the area in front of a cell for several
days to be filled with human feces, urine and sewage water. Gaston v. Coughlin, 249
F.3d 156 (2d Cir. 2001).
Failure to take reasonable anti-suicide precautions when officials know of prior
suicides under existing conditions can constitute actionable deliberate indifference.
Thus, the plaintiff executor stated a claim when the sheriff placed a suicidal arrestee in
a cell with a known significant blind spot and tie off points, and provided the inmate with
a blanket and towel although a prior detainee had hanged himself in the same cell
under similar circumstances. Jacobs v. West Feliciana Sheriff's Department, 228 F.3d
288 (5th Cir. 2000).

12

"[S]evere or repetitive sexual abuse of an inmate by a prison officer can ... constitute an Eighth Amendment violation." Boddie v. Schnieder, 105 F.3d 857, 861 (2d
Cir. 1997) (Calabresi, J.). But "a small number of incidents in which [the inmate] was
verbally harassed, touched, and pressed against without his consent" may not rise to
the level of the Eighth Amendment. Ibid. See also Downey v. Denton County. Texas,
119 F.3d 381 (5th Cir. 1997). Well, maybe and maybe not. A single instance of rape or
attempted rape by a prison guard has been found a clear Eighth Amendment violation
by other courts. Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Giron v.
Corrections Corporation of America, 191 F. 3d 1281 (1Oth Cir. 1999) (plain error to
instruct a jury that, in addition to finding a rape, the jury also had to find that the guard
committed the rape maliciously and for the purpose of causing harm). In fact, cases
have found triable Eighth Amendment claims in much less than actual rape, sustaining
inmate claims of inappropriate touching and sexual propositioning, for example. E.g.,
Riley v. Olk-Long, 282 F.3d 592 (8 1h Cir. 2002); Coleman v. Vasquez, 142 F. Supp. 2d
226 (D. Conn. 2001 ).
Twice handcuffing an inmate to a hitching post, on one occasion for seven hours
without regular water or bathroom breaks, was held clearly unconstitutional by the
Eleventh Circuit, but the guards who did it were granted qualified immunity because
how could they have known that such behavior was illegal? Hope v. Pelzer, 240 F.3d
975 (11th Cir. 2001). Well, anyway, they'd better not do it again.
There seems to be no end to judicial blindness where prison brutality is
concerned. How can it be that in the 21st century it should be necessary for the
Second Circuit to reverse a judge of the Southern District for holding that a complaint
which specifically described repeated beatings by prison guards, failed to state a claim?
But it happened in Sims v. Artuz, 230 F.3d 14 (2d Cir. 2000).
"[The plaintiff] alleges that the conditions of his confinement have deprived him
of cleanliness, sleep, and peace of mind. These conditions include housing in filthy,
unsanitary cells. Such conditions, depending on the facts, might violate the Eighth
Amendment.. .. ln addition, sleep undoubtedly counts as one of life's basic needs.
Conditions designed to prevent sleep, then, might violate the Eighth Amendment.
Furthermore, [plaintiff] alleges frequent searches with no purpose but to harass him.
The Eighth Amendment 'always stands as a protection against' such 'calculated
harassment unrelated to prison needs."' Harper v. Showers, 174 F.3d 716, 720 (5th
Cir. 1999), quoting Hudson v. Palmer, 468 U.S. 517, 530 (1984).
"To establish a constitutional violation under the Eighth Amendment, an inmate
must meet both an objective and a subjective requirement. To meet the objective
requirement, the alleged violation must be 'sufficiently serious' by objective standards .
... The objective component is 'context specific, turning upon contemporary standards of
decency.' ... To meet the subjective requirement, the inmate must show that the prison
officials involved 'had a wanton state of mind when they were engaging in the alleged
misconduct.' ... However, the malicious use of force to cause harm constitutes an 'Eighth
13

Amendment violation per se ... whether or not significant injury is evident.' .. .This result
follows because 'when prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated.' ... Nevertheless, 'a de
minimis use of force will rarely suffice to state a constitutional claim."' Griffin v. Crippen,
193 F.3d 89, 91 (2d Cir. 1999) (citations omitted). The key point in all of this is that
whether the force used was de minimis is not necessarily determined by whether the
injuries can be so categorized. As the Third Circuit has held, the nature of the injury is
not constitutionally significant. It is the nature and motivation of the force used, and the
circumstances under which it was used, that is determinative. The nature of the injury
does nothing more than help to make the determinations that make a difference.
Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000).
The refusal to allow an inmate to make copies of his court papers and the refusal
to permit him the use of a pen for that purpose are First Amendment violations for
which the PLRA permits prospective individual injunctive relief but not damages unless
the inmate has been discharged. Allen v. Sakai, supra. Refusal to process prisoner
mail on which the prisoner used his religious name is actionable under the First Amendment, Malik v. Brown, 71 F.3d 724 (9th Cir. 1995); as is the practice of opening court
and other legal mail out of the prisoner's presence. Powells v. Minnehaha County
Sheriff Dept., 198 F.3d 711 (8th Cir. 1999); Bieregu v. Reno, 59 F.3d 1445 (3d Cir.
1995). Prison regulations which prohibit the use of "disrespectful language" in written
prisoner grievances violate the First Amendment rights of inmates. Bradley v. Hall, 64
F.3d 1276 (9th Cir. 1995). An overly broad prohibition on the possession of "sexually
explicit" materials by prisoners was properly attacked on First Amendment grounds in a
Section 1983 action by a prisoner. Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998).
Sex, of course, is far more interesting than law and therefore will occupy as
much of the attention of jailers as possible. As is usual in America, concerns about the
danger that someone, somewhere, may be having fun predominate the discourse.
Judges are torn between their professional concern for the First Amendment and their
more visceral fear that somebody may be getting more than they are. One might not
initially expect that to be a big issue when dealing with prisoners, for god's sake, but
here it is anyway. So the Ninth Circuit has approved prison regulations banning
publications that depict sexual penetration because it might lead to an attempt at
replication in the prison setting. Frost v. Symington, 197 F.3d 348 (9th Cir. 1999). A
broader ban on "all magazines" did not fare so well in the Eighth Circuit. Cooper v.
Schriro, 189 F.3d 781 (8th Cir. 1999). A limitation on the number of personal
photographs an inmate may keep in her cell also can be an Eighth Amendment
violation if the warden cannot show a legitimate penological objective for the rule.
Davis v. Norris, 249 F.3d 800 (81h Cir. 2001 ).
The PLRA limits prisoner suits for money damages to those involving at least
some element of physical injury. First Amendment violations, as most of us know and
as the cases illustrate, are ubiquitous in prisons. How do we get around the PLRA and
keep these suits coming? The Ninth Circuit, holding that First Amendment violations
14

can be redressed even if there are no damages, has held that the PLRA ban on suits
exclusively "for mental or emotional injury," is inapplicable for that reason. Canell v.
Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). The Third Circuit says that First
Amendment prisoner suits will be treated as suits for nominal compensatory damages,
thus avoiding PLRA, and that punitive damages will remain available. Allah v. AIHafeez, 226 F.3d 247 (3d Cir. 2000).
"It is well settled that the First Amendment protects the flow of information to
prisoners; any limitation must reasonably relate to a legitimate penological
interest. ... We look at four factors to determine whether a regulation reasonably relates
to a legitimate penological interest. ... First, a rational relationship must exist between the
regulation and the proffered legitimate governmental interest.. .. Second, we examine
whether inmates have available alternative means of exercising their asserted
rights .... Third, we consider how accommodating the asserted constitutional right would
affect guards, other inmates, and the allocation of prison resources .... Fourth, we look at
whether the prison can easily serve its interests with alternative means without
infringing upon the rights of prisoners." Croston v. Roe, 170 F.3d 957, 959 (9th Cir.
1999) (striking down a flat ban on receipt of publications not ordered directly from the
publisher). Citing Turner v. Safley, 482 U.S. 78 (1987).
Actionable wrongs in the prison context include verbal threats by a prison guard,
Burton v. Livingston, 791 F.2d 97 (9th Cir. 1986); Gaut v. Sunn, 792 F.2d 874 (9th Cir.
1986); Chandler v. D.C. Dept. of Corrections, 145 F.3d 1355, 1360-61 (D.C. Cir. 1998)
(Buckley, J.). Non-verbal threats (pointing a loaded gun at an inmate for no reason)
also are actionable. Thomas v. Gomez, 143 F.3d 1246 (9th Cir. 1998).
Injuries are actionable when caused by deliberately confining an inmate with
other inmates who are dangerous to him, Quinn v. Manuel, 767 F.2d 174 (5th Cir.
1985); Love v. Sheffield, 777 F.2d 1453 (11th Cir. 1985); and placing an inmate in a cell
inadequately designed and supervised to prevent suicides, when the prisoner then kills
himself, Garcia v. Salt Lake County, 768 F.2d 303 (1Oth Cir. 1985); Lightbody v. Town
of Hampton, 618 F. Supp. 6 (D. N.H. 1984). The estate of an inmate who committed
suicide by hoarding medications stated a claim against prison psychiatrists for
deliberate indifference when it was alleged that the psychiatrists knew of the inmate's
history of such behavior and therefore should have prescribed the medication in liquid
rather than tablet form so it could not be hoarded. Williams v. Mehra, 135 F.3d 1105
(6th Cir. 1998). Prison suicide cases also may involve the deliberate indifference of
prison psychiatrists. Comstock v. McCrary, 273 F.3d 693 (61h Cir. 2001).
Assigning hard labor to an inmate with known medical restrictions, resulting in
injury, is actionable as an Eighth Amendment violation. Williams v. Norris, 148 F.3d
983 (8th Cir. 1998).
The practice of assigning cellmates on a random basis has been shown to result
in an increased risk of inmate-on-inmate violence. That being so, the practice
15

'

'

constitutes deliberate indifference and is actionable by the victims. Jensen v. Clarke,
94 F.3d 1191 (8th Cir. 1996). Similarly, a triable issue is presented when an inmate
alleges that the practice of operating racially integrated exercise yards constitutes
deliberate indifference to inmate safety. Robinson v. Prunty, 249 F.3d 862 (9 1h Cir.
2001).
"Because '[b]eing violently assaulted in prison is simply not 'part of the penalty
that criminal offenders pay for their offenses against society," prison officials have a
duty to protect inmates from violence at the hands of inmates .... Yet because only cruel
and unusual punishment is prohibited by the Eighth Amendment, a prisoner must satisfy two requirements in order to state a constitutional violation. He must establish first,
that he is incarcerated under conditions posing a substantial risk of serious harm, and
second, 'deliberate indifference' to that risk .... Deliberate indifference requires a showing that the official knew the risk existed, but disregarded it." Spruce v. Sargent, 149
F.3d 783, 785 (8th Cir. 1998) (granting relief to prisoner raped by more than twenty different inmates, one of whom infected him with HIV). Quoting Farmer v. Brennan, 511
U.S. 825, 833-34 (1994); Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also
Rodriguez v. Connecticut, 169 F. Supp. 2d 39 (D. Conn. 2001) (placing inmate in cell
with member of rival gang is deliberately indifferent).
Prison officials' disclosure to other inmates of confidential information in a
prisoner's medical file showing that s/he was a transsexual violated the inmate's right of
privacy (although until this decision the law was insufficently clear to defeat a qualified
immunity claim) and, more significantly, constituted in itself a deliberate indifference to
the inmate's safety egregious enough to render the responsible officials liable under the
Eighth Amendment. "In our view, it was as obvious in 1991 as it is now that under
certain circumstances the disclosure of an inmate's HIV-positive status and-- perhaps
more so -- her transsexualism could place that inmate in harm's way. Accordingly, we
hold that.. .a reasonable prison official in December of 1991 would have known that
such disclosure, under certain circumstances and absent legitimate penological
purposes, could constitute deliberate indifference to a substantial risk that such inmate
would suffer serious harm at the hands of other inmates." Powell v. Schriver, 175 F.3d
107, 115 (2d Cir. 1999) (Jacobs, J.).
The First Amendment guarantees all prison inmates the right of "meaningful
access" to the courts. Bounds v. Smith, 430 U.S. 817, 822-25 (1977); Lewis v. Casey,
518 U.S. 343 (1996). See also Johnson v. Avery, 393 U.S. 483, 484 (1969). The
"fundamental constitutional right of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in
the law." Bounds, supra, at 828. However, "Bounds does not guarantee inmates the
wherewithal to transform themselves into litigating engines capable of filing everything
from shareholder derivative actions to slip-and-fall claims." Rather, it mandates
providing inmates with resources necessary "to attack their sentences, directly or
collaterally, and ... to challenge the conditions of their confinement. Impairment of any
16

other litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration." Lewis, supra.
Accordingly, the First Amendment prohibits seizing an inmate's pro se briefs and
other legal materials, Morello v. James, 810 F.2d 344 (2d Cir. 1987). The seizure of pro
se legal materials, or the legal materials of a "jailhouse lawyer," most typically is
actionable as a violation of the inmate's First Amendment right of access to the courts.
Newell v. Sauser, 79 F.3d 115 (9th Cir. 1996); Petrick v. Maynard, 11 F.3d 991 (10th
Cir. 1993). A correction official's action in intentionally misdelivering a box of an
inmate's legal and personal materials in retaliation for the inmate's communication with
the press is actionable as a First Amendment violation. Crawford-EI v. Britton, 523 U.S.
574 (1998).
The First Amendment may extend to formation by inmates of a "prisoners legal
defense center". Nicholas v. Miller, 189 F.3d 191 (2d Cir. 1999), but only if the action is
brought by the beneficiary of such a center rather than by a "paralegal" inmate running
one, since inmates have no First Amendment right to assist other inmates with their
litigation. Shaw v. Murphy, 532 U.S. 223 (2001).
Retaliation against a prisoner for filing an internal grievance and attempting to
find inmates to represent the grievants is actionable as a First Amendment violation.
Gayle v. Gonyea, 313 F. 3d 677 (2d Cir. 2002); Graham v. Henderson, 89 F. 3d 75 (2d
Cir. 1996); Gaston v. Coughlin, 81 F. Supp. 2d 381 (N.D.N.Y. 1999). See also
Thaddeus-X v. Blatter, 110 F.3d 1233 (6th Cir. 1997). "This court has held that retaliation against a prisoner for pursuing a grievance violates the right to petition government
for the redress of grievances guaranteed by the First and Fourteenth Amendments and
is actionable under Section 1983. Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988) (prisoner alleged that false disciplinary charges were issued in retaliation for his
cooperation with an investigation into inmate abuse).
"'[l]ntentional obstruction of a prisoner's right to seek redress of grievances is
precisely the sort of oppression that. .. section 1983 [is] intended to remedy.' ld. at
589 ... (quoting Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). The right to petition
government for redress of grievances -- in both judicial and administrative forums -- is
'among the most precious of the liberties safeguarded by the Bill of Rights.' ld. (quoting
United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967))." Graham v.
Henderson, supra, 89 F.3d at 80.
Retaliation for engaging in protected activities like filing complaints or grievances
seems to be almost universally actionable under the First Amendment.
Johnson
v. Stovall, 233 F.3d 486 (7th Cir. 2000); DeWalt v. Carter, 234 F.3d 607 (7th Cir. 2000).
Bringing false disciplinary charges against an inmate in retaliation for the prisoner's use
of prison grievance procedures has been held actionable as a First Amendment
violation. Dixon v. Brown, 38 F.3d 379 (8th Cir. 1994). Indeed, just the same as
outside the walls, retaliation in any form for the filing of complaints internally or with

u.

17

outside agencies has been considered actionable under Section 1983. Rivera v.
Senkowski, 62 F.3d 80 (2d Cir. 1995); Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995);
Jones v. Coughlin, 45 F.3d 677 (2d Cir. 1995); Woods v. Smith, 60 F.3d 1161 (5th Cir.
1995); Babcock v. White, 102 F.3d 267 (7th Cir. 1996) (holding qualified immunity
defense unavailable because the law prohibiting such retaliation was clearly
established); Black v. Lane, 22 F.3d 1395 (7th Cir. 1994); Cornell v. Woods, 69 F.3d
1383 (8th Cir. 1995); Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997); Penrod v. Zavaras,
94 F.3d 1399 (1Oth Cir. 1996).
Transferring an inmate to a different facility within the system, or to another state
under an interstate compact, in retaliation for exercising a protected First Amendment
right, is actionable as a First Amendment violation even though inmates in general have
no liberty interest in nontransfers sufficient to afford them a right to due process at
transfer time. Davis v. Kelly, 160 F.3d 917 (2d Cir. 1998); Tajeddini v. Gluch, 942 F.
Supp. 772 (D. Conn. 1996); Goff v. Burton, 91 F.3d 1188 (8th Cir. 1996); Sisneros v.
Nix, 95 F.3d 749 (8th Cir. 1996).
"In order to sustain a retaliation claim, the plaintiff must demonstrate that he
engaged in constitutionally protected conduct and that the 'protected conduct was a
substantial or motivating factor in the prison officials' decision to discipline the plaintiff.
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Once the plaintiff carries his
initial burden, 'the defendants must show by a preponderance of the evidence that they
would have disciplined the plaintiff even in the absence of the protected conduct."'
Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998), quoting, inter alia, Mt. Healthy
City School Dist. v. Doyle, 429 U.S. 274, 287 (1977). Cf., Davidson v. Chestnut, 193
F.3d 144 (2d Cir. 1999).
The jury in such a case must be instructed, as in every First Amendment
retaliation case, that the test is whether retaliation for the exercise of a protected First
Amendment right was "g_ substantial or motivating factor" rather than the reason for the
challenged action. See Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977). Failure to charge correctly on this point is plain error. Reynolds
v. Green, 184 F.3d 589, 594-95 (6th Cir. 1999).
Similarly, termination from a prison employment program in retaliation for an
inmate's refusal to sign away his property interest in earnings on his prison account was
held actionable under Section 1983. The fact that the inmate had no right to the job did
not mean that it could be taken from him in retaliation for his exercise of a constitutional
right. Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997).
Non-inmates whose correspondence with inmates is delayed or otherwise
interfered with in violation of their First Amendment rights of association may sue
responsible prison officials for such violations. Rowe v. Shake, 196 F.3d 778 (7th Cir.
1999).

18

Requiring an inmate to attend religion-based narcotics rehabilitation meetings
upon pain of being rated a higher security risk and suffering adverse effects for parole
eligibility violates the establishment clause of the First Amendment. Kerr v. Farrey, 95
F.3d 472 (7th Cir. 1996). A prison policy of supplying Orthodox Jewish prisoners with
one frozen kosher dinner supplemented with nonkosher vegetarian or non-pork meals
violates inmates' First Amendment free exercise rights. Ashelman v. Wawrzaszek, 111
F .3d 67 4 (9th Cir. 1997); and the state can't charge inmates a premium for complying
with this constititutional mandate. Beerheide v. Suthers, 286 F.3 1179 (10th Cir. 2002).
Inmates are entitled to be provided a diet which does not violate the tenets of their
religious beliefs. Jackson v. Mann, 196 F.3d 316 (2d Cir. 1999). On the other hand, a
prison may constitutionally furnish cold Kosher meals to Jewish inmates while
furnishing hot non-pork meals to Muslim inmates on days when pork is served.
Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998). Prison officials' denial of hot meals to
Muslim prisoners in segregation during Ramadan has been held a First Amendment
violation. Makin v. Colorado Dept. of Corrections, 183 F.3d 1205 (10th Cir. 1999).
Denial of communion wine to Catholic inmates may be a First Amendment violation.
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002). Denial of Native American religious items to an inmate solely on the ground that he was not himself Native American is
an equal protection violation. Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001).
Despite the implications of some of these cases, it really is not acceptable to
discriminate among religions without a legal justification. Thus, a Wisconsin prison
regulation that allowed inmates to wear crosses only if they were part of a rosary was
struck down by the Seventh Circuit on the ground that it discriminated against
Protestants. Sasnett v. Litscher, 197 F.3d 290 (7th Cir. 1999).
Although the equal protection clause does not require prisons to provide identical
treatment of all faiths, it does require a good faith effort in light of practical realities.
Moreover, a mere inconvenience to the practice of a particular religion is not a First
Amendment violation; to be actionable, there must be a substantial burden imposed
and interference with a tenet or belief which is central to the religion's doctrines.
Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997).
In determining whether a prison regulation violates an inmate's right to freedom
of religion, the court must consider: "(1) whether there is a rational relationship
between the regulation and the legitimate government interests asserted; (2) whether
the inmates have alternative means to exercise the right; (3) the impact that accommodation of the right will have on the prison system; and (4) whether ready alternatives
exist which accommodate the right and satisfy the governmental interest." Benjamin v.
Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). Applying this test, one court has denied
summary judgment to prison officials seeking to justify their ban on the wearing of the
Muslim kufi. Ali v. Szabo, 81 F. Supp. 2d 447 (S.D. N.Y. 2000).
A prison requirement that, to receive religious accommodation, an inmate must
register his religious preference with prison officials has been upheld as an appropriate
19

precondition. Jackson-Bey v. Hanslmaier, 115 F.3d 1091 (2d Cir. 1997). Even more,
the Second Circuit finds no problem with allowing the prison's official "Jewish Chaplain"
to determine whether an inmate claiming to be Jewish really was Jewish, provided a
similar official religious test was required for those professing other religions. Jackson
v. Mann, supra. Martin Luther wouldn't have had a chance with these rules.
Prisoners whose religious beliefs may not precisely accord with the
majority views of the priesthood of a mainstream religion probably would be better off
picking a new name for their religion than starting their own Reformation. Then they will
get the benefit of traditional American church-state separation doctrine like this:
"Courts should not undertake to dissect religious beliefs because the believer admits
that he is 'struggling' with his position or because his beliefs are not articulated with the
clarity and precision that a more sophisticated person might employ." Thomas v.
Review Board of the Indiana Employment Security Division, 450 U.S. 707,715 (1981).
"It is not the place of the courts to deny a man the right to his religion simply because
he is still struggling to assimilate the full scope of its doctrine." Love v. Reed, 216 F.3d
682, 688 (8th Cir. 2000).
At a time when budget-cutting politicians are increasingly inclined to reduce
prison staffs to the point that the prisoners are left to run the institutions themselves,
complicity of guards in prisoner victimizations of other inmates is a growing issue. It is
actionable. Prison guards are liable for one prisoner's attack upon another if the guards
acted or failed to act with the intent to inflict injury at a time when the injury was readily
preventable. Pavlick v. Mifflin, 90 F.3d 205 (7th Cir. 1996); Gibbs v. Franklin, 18 F.3d
521 (7th Cir. 1994). In Scott v. Moore, 85 F.3d 230 (5th Cir. 1996) (Wisdom, J.), the
court imposed liability upon a municipality for operating a jail so understaffed that a
single male guard could be left alone with a female inmate when that policy was shown
to have caused a rape.
Prisons, never safe places, are growing increasingly dangerous to all inmates.
Department of Justice research shows that 14% of all prison inmates-- and 20% of
those under age 25 --have been assaulted while in prison. Profile of Jail Inmates
1996, April 1998, NCJ 164620, p. 13. The failure to provide a reasonably safe
environment for prisoners is actionable against whomever can be shown to be
responsible. Giroux v. Somerset County, 178 F.3d 28 (1st Cir. 1999) (guard placed
inmate in cell with another inmate although on notice that he was in protective custody);
Hayes v. New York City Dept. of Corrections, 84 F.3d 614 (2d Cir. 1996); Snider v. Dylgg, 188 F.3d 51 (2d Cir. 1999) (inmate beaten by other inmates after guard declared
"open season" on him); Nami v. Fauver, 82 F.3d 63 (3d Cir. 1996); Horton v. Cockrell,
70 F.3d 397 (5th Cir. 1995); Haley v. Gross, 86 F.3d 630 (7th Cir. 1996); Doe v. Washington County, 150 F.3d 920 (8th Cir. 1998) (overcrowding resulting in beatings, rapes
and torture of juvenile inmate is actionable); Newman v. Holmes, 122 F.3d 650 (8th Cir.
1997) (opening door to cell of inmate in isolated confinement actionable by the other
inmate he thereupon assaulted); Erickson v. Holloway, 77 F.3d 1078 (8th Cir. 1996);
Smith v. Arkansas Dept. of Correction, 103 F.3d 637 (8th Cir. 1996); Marsh v. Butler
20

County. Alabama, 212 F.3d 1318, 1329 (11th Cir. 2000) ("prison officials have a duty
to ... protect prisoners from violence at the hands of other prisoners").
Accordingly, branding an inmate a "snitch" or a "rat"- universally the route to
brutality by other inmates - is an actionable Eighth Amendment violation. Benefield v.
McDowall, 241 F.3d 1267 (10th Cir. 2001). See Dawes v. Walker, 239 F.3d 489 (2d Cir.
2001) (holding such conduct is actionable only if it actually opens the inmate up to such
assaults). Note that Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002), incorrectly
cites Dawes as holding that a guard's mere statement to other inmates is not actionable
without noting that it is not actionable only if the "opening up" part is omitted.
Subjecting male inmates to routine strip searches either conducted or observed
by female guards has been held an actionable violation of the inmates' right of privacy.
Moore v. Carwell, 168 F.3d 234 (5th Cir. 1999); Canedy v. Boardman, 16 F.3d 183 (7th
Cir. 1994); Hayes v. Marriott, 70 F.3d 1144 (10th Cir. 1995). Similarly, opening an inmate's non-legal mail has been held actionable under the Fourth Amendment as an
invasion of privacy. Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir. 1994). Once again,
it is hard to see that kind of litigation surviving the "reform" law except as an action for
an injunction or for nominal and punitive damages.
The Fourth Amendment also protects prison visitors against improper searches
by prison guards, for example the strip searches of female visitors so frequently
litigated. EJL., Burgess v. Lowery, 201 F.3d 942 (7th Cir. 2000); Spear v. Sowders, 71
F.3d 626 (6th Cir. 1995). These non-prisoners are unaffected by the PLRA.
Litigation for exposure to environmental cigarette smoke was all but inevitable
after the Supreme Court's ruling that such confinement conditions can under appropriate circumstances be the subject of Section 1983 litigation and relief. Helling v.
McKinney, 509 U.S. 25 (1993). See Warren v. Keane, 196 F.3d 330 (2d Cir. 1999)
(right to be free form environmental cigarette smoke is "clearly established"); Whitley v.
Hunt, 158 F.3d 882 (5th Cir. 1998); Rochon v. City of Angola. Louisiana, 122 F.3d 319
(5th Cir. 1997); Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001 ); Weaver v. Clarke,
120 F.3d 852 (8th Cir. 1997); Scott v. District of Columbia, 139 F.3d 940 (D.C. Cir.
1998). In response, many jails are becoming "smoke free"-- but is that cruel and
unusual punishment for smokers? See "New Sentence for Inmates: No Smoking,"
New York Times, July 7, 1996, p. 17. The Ninth Circuit doesn't think so, Webber v.
Crabtree, 158 F.3d 460 (9th Cir. 1998); but wait until the Fourth Circuit gets to it.
Probably both groups of inmates, so long as they remain incarcerated, will have to
show some physical injury to keep claims for money damages alive in court -- but they
can sue for injunctive relief at any time.
In Walker v. Bates, 23 F.3d 652 (2d Cir. 1994), the Second Circuit held that the
denial of a proper request to call witnesses at an inmate disciplinary hearing was
actionable and the fact that the denial later was reversed internally did not preclude the
action if the inmate suffered any punitive confinement before the error was corrected.
21

However, in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court limited those
kinds of prisoner due process rights to cases in which the prison seeks to impose
"restraint which ... imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life," and exempted from that category the imposition of
punitive confinements which, "with insignificant exceptions, mirrored those conditions
imposed upon inmates in administrative segregation and protective custody." 115 S.
Ct. at 2300-02.
Prison transfer and disciplinary hearings sometimes, but not always, must be
conducted in a manner which comports with at least the rudiments of due process.
Sandin v. Conner, 515 U.S. 472 (1995). If the discipline imposed is atypical and a
significant hardship on the inmate, then the inmate is entitled to procedural due process
at his disciplinary or transfer hearing. Brooks v. Difasi, 112 F.3d 46 (2d Cir. 1997);
Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997). As the court held in Keenan v. Hall, 83 F.3d
1083 (9th Cir. 1996) (Fletcher, J.), whether the conditions in the transferee prison are
atypical or impose a significant hardship is a question of fact for trial. Cf., Hemphill v.
Delo, 105 F.3d 391 (8th Cir. 1997). The testimony of the inmate alone may be
sufficient to establish this point, especially since it is both the conditions of confinement
and the duration thereof which must be evaluated in making the termination. It is for
the jury, not for the judge, to assess the credibility of the inmate's claims. Sealey v.
Giltner, 197 F.3d 578 (2d Cir. 1999). But whether the facts meet the legal test is a
question of law. Colon v. Howard, 215 F.3d 227 (2d Cir. 2000). What does that mean?
In deciding whether the inmate's circumstances meet that test, the court should
consider factors including "(1) the effect of disciplinary action on the length of prison
confinement; (2) the extent to which the conditions of the disciplinary segregation differ
from other routine prison conditions; and (3) the duration of the disciplinary segregation
imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133,
136 (2d Cir. 1998); Hanrahan v. Doling, 331 F.3d 93 (2nd Cir. 2003). "[l]n conducting
the Sandin analysis to determine whether a disciplinary sentence 'imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life,' ...
courts should consider the degree and duration of the sentence actually imposed in the
hearing and not the maximum sentence that might have been imposed." Scott v.
Albury, 156 F .3d 283, 287-88 (2d Cir. 1998). Such punishment does not violate the
Eighth Amendment unless it is "totally without penological justification, grossly disproportionate, or involve[s] the unnecessary and wanton infliction of pain." Horne v.
Coughlin, 155 F.3d 26, 31 (2d Cir. 1998), quoting Rhodes v. Chapman, 452 U.S. 337,
346 (1981); Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984). Judges must
continue to engage in fact-intensive hearings and then make their factual and legal
determinations with a sensitive eye to the realities and nuances of prison life. Ramirez
v. McGinnis, 75 F. Supp. 2d 147 (S.D.N.Y. 1999) (Carter, J.).
That test was met in Simmons v. Cook, 154 F.3d 805 (8th Cir. 1998), where
paraplegic inmates were placed in solitary confinement cells without consideration of
the fact that they were paraplegics and with the result that they often were unable to eat
because their wheelchairs could not reach the food slots quickly enough and that they
22

were unable to move their bowels because of the prison's failure to provide the
necessary supplies or assistance. 154 F.3d at 808. It also is met whenever the result
of a classification program is to brand an inmate or ex-inmate as a sex predator.
Chambers v. Colorado Dept. of Corrections, 205 F.3d 1237 (10th Cir. 2000). In the
eyes of some judges (who presumably never have had the experience themselves) the
"mere" placement of a pretrial detainee in the segregation unit of a special prison
doesn't cut it, however. Valentin v. Murphy, 95 F. Supp. 2d 99 (D. Conn. 2000)
(Fitzsimmons, USMJ).
When the punishment imposed after a defective disciplinary hearing is a loss of
good time credits, the correct remedy may or not be first to go to state court and obtain
restoration of the time in a habeas corpus action. The accomplishment of that objective
starts the statute of limitations running on the damages action for denial of due process.
Johnson v. Coombe, 156 F.2d 273 (S.D.N.Y. 2001). However, when the plaintiff
already has fully served the period of his additional incarceration, any habeas petition
would be dismissed for lack of a case or controversy. In that instance, it is not
necessary first to bring the habeas corpus action. Nannette v. Small, 316 F.3d 872 (9 1h
Cir. 2002).
In Colon v. Howard, 215 F.3d 227 (2d Cir. 2000), the judges wrestled with Judge
Newman's desire to establish a "bright line rule" as to how long a period of confinement
meets the standard of an "atypical, significant deprivation" under Sandin and Judge
Walker's desire to stay loose about it and decide each case on its own facts. Judge
Newman proposed 180 days as the "bright line" but the judges couldn't agree. Judge
Walker, concurring in the judgment in that case, observed that he "would not be
surprised if the ultimate rule in this circuit for the duration of SHU incarceration that
triggers due process ... is something close to 180 days [as Judge Newman advocates].
At present, 101 days in the SHU does not trigger due process protection, see Seeley v.
Giltner, 197 F.3d 578 (2d Cir. 1999), while, with this case, 305 days does. The gap will
soon narrow and a rule will emerge .... " 215 F.3d at 237. Actually, some Second Circuit
cases already had narrowed it. Thus, in Welch v. Bartlett, 196 F.3d 389, 391 (2d Cir.
1999), the court thought 90 days in that case was enough. And in Kalwasinski v. Mars~. 201 F.3d 103 (2d Cir. 1999), the court found that 180 days was sufficient. But see
Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000), holding that whether confinement in
administrative detention for 514 days was or was not an Eighth Amendment violation
would have to be decided by a jury.
More is involved than just the length of time, however. It is the fact-specific
nature of the confinement that ultimately governs. Once a long period of time in some
sort of close confinement is established, the plaintiff would seem to have made out at
least a prima facie case; but the ultimate resolution of the case still demands a factual
analysis of the precise nature of the confinement involved. Tellier v. Fields, 230 F.3d
502 (2d Cir. 2000).
Denial of due process in prison disciplinary or transfer hearings apparently will
23

remain an area for litigation. See Sealey v. Giltner, 116 F.3d 47 (2d Cir. 1997); Black v.
Coughlin, 76 F.3d 72 (2d Cir. 1996); Howard v. Grinage, 82 F.3d 1343 (6th Cir. 1996);
Gotcher v. Wood, 66 F.3d 1097 (9th Cir. 1995). But see Wagner v. Hanks, 128 F.3d
1173 (7th Cir. 1997) (Posner, C.J.) (holding that prison transfer cases almost never rise
to constitutional dimensions because the standard of comparison is not conditions of
confinement within a particular prison but rather within the entire state prison system
including its harshest facility). This Seventh Circuit test, however, has not been
adopted everywhere. The Second Circuit, for example, holds that "whether the
conditions of a segregation amount to an 'atypical and significant hardship' turns on the
duration of the segregation and a comparison with the conditions in the general
population and in other categories of segregation." Arce v. Walker, 139 F.3d 329, 336
(2d Cir. 1998). This language seems to refer to the one prison with which the particular
plaintiff is involved.
"In evaluating whether [the inmate] had a liberty interest in avoiding adjustment
segregation, the district court should begin by determining the usual conditions of
administrative segregation at [the specific prison where this plaintiff is confined]. It
should treat those conditions as the baseline for evaluating whether [the plaintiff's
punishment] was an 'atypical and significant hardship.' If using that comparison the
court finds that his adjustment segregation was 'atypical and significant,' it should then
take into account the possibility that [the plaintiff] will be transferred to other prisons.
The district court should redefine the comparative baseline by reference to more
restrictive conditions at other prisons if it finds that it is likely both that inmates serving
sentences similar to [plaintiffs] will actually be transferred to such prisons and that once
transferred they will actually face such conditions. The term 'likely,' as we use it here,
means not that the combination of events must be more probable than not, but that
there must be a substantial chance of its occurrence.'' Hatch v. District of Columbia,
184 F.3d 846, 858 (D.C. Cir. 1999).
There also are cases in which the liberty interest has been created by internal
regulation. In those cases, the foregoing analysis is unnecessary and the right to due
process protections is assumed. Tellier v. Scott, 49 F. Supp. 2d 607 (S.D. N.Y. 1998)
(Wood, J.), aff'd, 230 F.3d 502 (2d Cir. 2000). See also, §UL., Giano v. Selsky, 238
F.3d 223 (2d Cir. 2001 ). Examples of liberty interests created by administrative
regulation are temporary release programs or temporary work release programs.
Removal from such a program after having been placed in it requires procedural due
process because the regulations have created such a liberty interest. Anderson v.
Recore, 317 F.3d 194 (2d Cir. 2003); Quartararo v. Hoy, 113 F. Supp. 2d 405 (E.D.N.Y.
2000) (Seybert, J.).
What are the procedural due process protections to which an inmate is entitled
under these circumstances? For one thing, there must be a meaningful notice to the
prisoner of what he's charged with and its basis; for another, there must be "some
evidence" at the disciplinary hearing to support the action taken. "Minimum
requirements, we think, include a notice that is something more than a mere
24

formality .... The effect of the notice should be to compel'the charging officer to be
[sufficiently] specific as to the misconduct with which the inmate is charged' to inform
the inmate of what he is accused of doing so that he can prepare a defense to those
charges and not be made to explain away vague charges set out in a misbehavior
report." In this case, the allegations that segregation was to be based on "past
admission to outside law enforcement about involvement with Latin Kings," "recent
tension in B-Unit involving gang activity," and "statements by independent confidential
informants" were held too vague to enable the inmate to respond and defend himself.
Taylorv. Rodriguez, 238 F.3d 188, 193 (2d Cir. 2001).
"Although the hearing requirement for placement in administrative segregation
may be met by an 'informal, nonadversary' proceeding ... , it is a bedrock requirement of
due process that such hearing be held 'at a meaningful time and in a meaningful
manner,' Mathews v. Eldridge, 424 U.S. 319, 333 (1976). A hearing is not 'meaningful'
if a prisoner is given inadequate information about the basis of the charges against him.
A prisoner should not...have to guess what conduct forms the basis for the charges
against him." Taylor v. Rodriguez, supra, at 193.
The Second Circuit, after Walker v. Bates, continues to permit suits for damages
against prison hearing officers who fail to provide assistance, including help in obtaining
favorable testimony, to inmates facing disciplinary hearings. Ayers v. Ryan, 152 F.3d
77, 80-81 (2d Cir. 1998). There comes some point at which the utter absence of due
process may become actionable even if the punishment imposed on the inmate is itself
no big deal. Thus, in Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999), the court
held that a hearing at which "no shred of evidence of the inmate's guilt was presented"
was so grossly lacking in due process that it didn't matter that no cognizable liberty
interest was affected by the result. In keeping with the lesser injury, however, the
remedy also was minimal -- expungement of the adverse record rather than money.
The Second Circuit has held repeatedly "that a prisoner has a protected liberty
interest in continuing in a work release program." Kim v. Hurston, 182 F .3d 113, 117
(2d Cir. 1999); Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir. 1978); Severino v.
Negron, 996 F.2d 1439, 1441 (2d Cir. 1993). In Kim, the court noted that, while Sandin
may have appeared to cast doubt on the rationale of cases finding that a liberty interest
can be created by departmental regulation, the subsequent ruling in Young v. Harper,
520 U.S. 143, 152-53 (1997), held that a "preparole conditional supervision program"
was similar enough to parole to invoke the procedural protections of Morrissey v.
Brewer, 408 U.S. 471 (1972). The Kim court found that work release programs cannot
be distinguished in any meaningful way from the kind of program found protected in
Young. 182 F.3d at 117-18.
An inmate has a protected liberty interest in good time credits already earned.
Wolffv. McDonnell, 418 U.S. 539, 556-58 (1974). An inmate does not have a liberty
interest in earning such credits, however, so that excluding an inmate from good time
credit eligibility for just about any reason does not create a constitutional problem and
25

'.

there is no right to procedural due process on that issue. Abed v. Armstrong, 209 F.3d
63 (2d Cir. 2000).
Once the right to due process is found, the issue then becomes the old one of
"how much process is due". Traditional concepts seem to apply. Thus, in Quaratararo
v. Catterson, 73 F. Supp. 2d 279 (E. D. N.Y. 1999) (Seybert, J.), failure to provide the
prisoner with 24 hours advance notice of the hearing concerning his removal from a
work release program and removal from the program solely on the basis of a parole
hold each separately was found to have denied due process. In McClary v. Coughlin,
87 F. Supp. 2d 205 (W.O. N.Y. 2000), a jury found the defendant correctional officers
liable for failing to provide a segregated inmate with meaningful "periodic review" of his
segregation status. The court reduced the $660,000 verdict to $237,500 or $175 per
day for each day of unconstitutional segregation. 87 F. Supp. 2d at 218-19. I wonder
which one of these judges would sign on for administrative segregation in a New York
prison for $175 per day.
A debate has arisen whether Heck v. Humphrey, 512 U.S. 477 (1994), applies to
bar damages actions based upon due process denials at prison disciplinary hearings
when the result of a successful suit would call into question the validity of the
punishment imposed if that punishment could have been challenged in collateral state
proceedings. See,~. Black v. Coughlin, 76 F.3d 72, 73 (2d Cir. 1996). There would
seem to be two issues here: (1) Does the suit call into question the validity of the
punishment imposed? If so, and if there is a means of collateral attack, suit is barred.
Edwards v. Balisok, 520 U.S. 641 (1997); Clarke v. Stalder, 154 F.3d 186 (5th Cir.
1998). (2) Is there a means of collaterally attacking the punishment imposed other
than through the section 1983 action?
A related question is whether in any event the section 1983 action can be
brought to redress injuries inflicted by the hearing after the punishment has been
completed and there is no other means of challenging it. Thus, in Spencer v. Kemna,
523 U.S. 1 (1998), a majority of the court expressed the view that when there is no
other remedy available, Heck does not bar the section 1983 action.
In a like vein, the Second Circuit has held that when the prisoner has been
discharged from custody, so that his challenge to the disciplinary hearing will have no
effect on the duration of his sentence, there is no need to show a favorable termination
of the proceeding in the administrative phase and the plaintiff can go directly to the
issue of compensatory damages. Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999). In
an Eighth Circuit case, Ellis v. Bolin, 208 F.3d 1068 (8th Cir. 2000), the prisoner was
never notified of the disciplinary hearing and thus was unable to attend it. He avoided
the Heck v. Humprey problem by seeking only damages for denial of the right to attend,
not challenging the outcome of the hearing he missed.
An action for denial of due process in connection with an administrative hearing
is complete in itself and need not await the outcome of that hearing. However, if the
26

L __________ _

outcome of the hearing is a removal of good time credits, thus lengthening the prison
stay, the court may refuse to entertain a Section 1983 action and hold that the proper
remedy is a state habeas corpus action. See Clayton-EI v. Fisher, 96 F.3d 236 (7th Cir.
1996). That "may" probably became a "must" when the Supreme Court decided
Edwards v. Balisok, 520 U.S. 641 (1997), and held that when the punishment imposed
at a procedurally defective disciplinary hearing is a loss of good time credits, a section
1983 action for damages is not the proper remedy because it necessarily implies the
invalidity of the underlying hearing's result-- which must be attacked successfully first.
But if the inmate challenges not the duration of his confinement but only the more harsh
conditions thereof resulting from the procedurally defective hearing, he may go directly
with Section 1983 and skip the habeas. Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997).
Habeas corpus is required only when relief, if granted, necessarily implies or automatically results in a speedier release from confinement. Anyanwutaku v. Moore, 151 F.3d
1053 (D.C. Cir. 1998); Boyce v. Ashcroft, 251 F.3d 911 (101h Cir. 2001).
Personal participation by a defendant in inflicting the injury upon an inmate is
unnecessary so long as the defendant implicitly authorized, approved or knowingly
acquiesced in the actions or inactions at issue. Hicks v. Frey, 992 F.2d 1450 (6th Cir.
1993). "We have construed personal involvement. .. to mean direct participation, or
failure to remedy the alleged wrong after learning of it, or creation of a policy or custom
under which unconstitutional practices occurred, or gross negligence in managing
subordinates." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (Kearse, J.). "We have
long recognized that supervisors may be 'personally involved' in the constitutional torts
of their supervisees if: (1) the supervisory official, after learning of the violation, failed to
remedy the wrong; (2) the supervisory official created a policy or custom under which
unconstitutional practices occurred or allowed such policy or custom to continue; or (3)
the supervisory official was grossly negligent in managing subordinates who caused the
unlawful condition or event." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998), citing
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
"Multiple tortfeasors who concurrently cause an indivisible injury are jointly and
severally liable; each can be held liable for the entire injury. It is not essential that all
persons who concurrently caused the harm be joined as defendants .... Consequently, a
tortfeasor who cannot prove the extent to which the harm resulted from other concurrent causes is liable for the entire harm .... Persons who concurrently violate others'
civil rights are jointly and severally liable for injuries that cannot be apportioned."
Northington v. Marin, 102 F.3d 1564, 1569 (1Oth Cir. 1996).
For me, the most inspiring demonstration of the law of possibly unintended
consequences was the widespread application of the Religious Freedom Restoration
Act, 42 USC 2000bb, in prisoner rights litigation-- often successfully. ~.Jolly v.
Coughlin, 76 F.3d 468 (2d Cir. 1996); Small v. Lehman, 98 F.3d 762 (3d Cir. 1996);
Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996); Mack v. O'Leary, 80 F.3d 1175 (7th
Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996); Wernerv. McCotter, 49
F.3d 1476 (1Oth Cir. 1995). That source of endless amusement to the unchurched was
27

.

~

.
limited when the Supreme Court threw out the statute as applied to the states in City of
Boerne v. Flores. 521 U.S. 507 (1997). But see In re Young, 141 F.3d 855 (8th Cir.
1998), holding that the RFRA remains applicable to federal defendants-- thus,
presumably, in suits against federal prison officials. The concept has made a
comeback, anyway, in the Religious Land Use and Institutionalized Persons Act of
2000, 42 U.S.C. § 2000cc-1 (b)(1 ), which conditions the receipt of federal funds for
prisons upon the guarantee of just such wide-ranging religious freedom to inmates.
See Mayweathers v. Newland, 314 F.3d 1062 (9 1h Cir. 2002), upholding the new
statute's constitutionality.
Another issue often presented at the drafting stage of prisoner litigation is
whether the action should be one for damages under Section 1983 or a habeas corpus
petition. Sometimes the issue is a complicated one. The rule of thumb, such as it is,
asks whether the prisoner challenges the "fact or duration" of confinement (habeas
corpus is necessary) or "conditions" of confinement (Section 1983). See Edwards v.
Balisok, 520 U.S. 641 (1997); Cook v. Texas Dept. of Criminal Justice, 37 F.3d 166 (5th
Cir. 1994). In another formulation, the Fifth Circuit held that if a favorable determination
of the litigation would not automatically entitle the prisoner to accelerated release, he
should sue under Section 1983, but if it would do so he should bring a habeas petition.
Clarke v. Stalder, 121 F.3d 222 (5th Cir. 1997).
One of the obvious and intractable problems of prisoner litigation is the extent to
which the defendants control all information, witnesses and access. In Anderson v.
Romero, 42 F.3d 1121 (7th Cir. 1994), the plaintiff died before trial and his lawyer did
not know the identity of the next of kin or how to contact them. The Illinois Attorney
General was delighted and declined to supply the information. Chief Judge Posner,
writing for the Seventh Circuit, held that the All Writs Act, 28 USC 1651 (a), empowered
the court to order the Attorney General -- a non-party -- to provide the information so
the litigation could proceed.
Yet another obvious problem in prisoner litigation is what a jury may consider to
be the somewhat unappetizing nature of many of the plaintiffs. The Ninth Circuit has
provided a touch of relief by restraining the extent to which the nature of the inmate's
underlying convictions can be shown to the jury. Scott v. Lawrence, 36 F.3d 871 (9th
Cir. 1994).
Not surprisingly, the excuse for closing the courthouse door to prisoners with
legislation like the PLRA --the stated fear that prisoner petitions will prevent the courts
from handling other business -- is a bogus one. While the number of prisoner petitions
filed in federal court by state and federal inmates did indeed triple between 1980 and
1996, the rate at which prisoners filed these petitions actually decreased by 17%. The
increased number of petitions, therefore, is explained entirely by the exponential growth
of the prison population, caused by the very same politicians who now would deny them
access to the courts to redress their grievances. Scalia, Prisoner Petitions in the Federal Courts. 1980-96, October 1997, NCJ 164615 (U.S. Dept. of Justice, Bureau of
28

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Justice Statistics). See also, ~. Prison and Jail Inmates at Midyear 1998, March
1999, NCJ 173414 (Ibid.); Prisoners in 1997, August 1998 NCJ 170014 (Ibid.);
Correctional Populations in the United States, March 1999 NCJ 171684 (Ibid.)
In many ways, prison law can be applied to the involuntary occupants of other
state institutions, like mental hospitals -- except that, presumably, these inmates are
more like pretrial detainees than sentenced inmates. See, e.g., Davis v. Rennie, 264
F.3d 86,97-98 (1st Cir. 2001); Terrance v. Northville Regional Psychiatric Hospital, 286
F.3d 834 (6th Cir. 2002); Noble v. Schmitt, 87 F.3d 157 (6th Cir. 1996) (involuntarily
committed psychiatric patients stated valid claim against psychiatric aides for restraint
and forcible medicating without justification and for restriction of privileges in retaliation
for exercise of First Amendment rights); Kennedy v. Schafer, 71 F.3d 292 (8th Cir.
1995) (failure to provide a safe and humane environment, leading to suicide of
voluntary patient); Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995) (failure to protect
patient from sexual abuse by psychiatric aide); Uhlrig v. Harder, 64 F.3d 567 (1Oth Cir.
1995) (holding evidence insufficient to prove that placement of homicidal patient in
general patient population constituted deliberate indifference sufficient to impose
liability when he murdered another patient); Dolihite v. Maughan, 74 F.3d 1027 (11th
Cir. 1996) (hospital social worker's failure to take appropriate steps to ward off known
suicidal behavior of adolescent patient). But see Stevens v. Umsted, 131 F.3d 697 (7th
Cir. 1997) (holding that a student at a state school for the disabled was not "in
custody"). So far, the "prison reform" pols have not yet taken a shot at these victims.

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